Barbee v. Stephens, Director TDCJ-CID

Filing 83

Memorandum Opinion and Order denying 24 PETITION for Writ of Habeas Corpus: Based on the foregoing, the Court DENIES Barbee's petition for a writ of habeas corpus. In accordance with Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. &# 167; 2253(c), the Court DENIES Barbee a certificate of appealability because he has (1) failed to make a substantial showing of the denial of a constitutional right, and (2) failed to show that jurists of reason would find it debatable (a) whether th e petition states a valid claim of the denial of a constitutional right and (b) whether the Court was correct in its procedural rulings. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); 28 U.S.C. § 2253(c)(2). If Barbee files a notice of appeal, he may proceed in forma pauperis on appeal. 18 U.S.C. § 3006A(7). (Ordered by Judge Terry R Means on 7/7/2015) (mdf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
STEPHEN DALE BARBEE,
Petitioner,

§
§
§
§
§
§
§
§
§
§

V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

Civil Action No. 4:09-CV-074-Y
(death-penalty case)

MEMORANDUM OPINION AND ORDER
ON PETITION FOR WRIT OF HABEAS CORPUS
Stephen Dale Barbee petitions for a writ of habeas corpus,
contending that he is innocent and that his state conviction and death
sentence are unconstitutional.

The case is before the Court after

a stay and abeyance during which Barbee returned to state court for
exhaustion proceedings that included a live hearing. Having reviewed
the parties’ arguments and the record from both the initial and
subsequent state habeas proceedings, the Court denies the petition
for relief and dismisses this action with prejudice.

I.
A.

BACKGROUND

Factual Summary

The following is a brief summary of the events leading up to
Barbee’s conviction. The actual evidence is discussed in detail in
addressing with the claims that follow.
Lisa Underwood owned a bagel shop in Fort Worth.
dating Stephen Dale Barbee, a customer of the shop.

She began
Lisa became

pregnant in July of 2004 and told Barbee that she believed he was
the father of the unborn child. Lisa’s family and friends had planned
a baby shower for Lisa at 4 p.m. on Saturday, February 19, 2005, but
she never arrived. The Fort Worth police were notified and began an
investigation into her disappearance.
Unbeknownst to the Fort Worth detectives at that time, Barbee
had been stopped by a deputy sheriff earlier that same morning while
walking along a service road near a wooded area in another county.
He was wet and covered in mud.

He gave the deputy a false name and

fled on foot.
Lisa’s home, which she shared with her seven year-old son Jayden,
showed no signs of forced entry. Jayden’s shoes were on top of the
fireplace hearth, and his glasses were next to his bed. Lisa’s blood
was in the living room, on the rug, and on the furniture.

Having

learned that Barbee had been in a relationship with Lisa, the police
inquired at the home of Barbee’s ex-wife, Theresa. Although divorced,
Theresa and Barbee still operated a tree-trimming business and a
concrete-cutting business together.

Theresa lived in their former

marital home with an employee of the concrete business named Ron Dodd.
Theresa told Barbee that the police were looking for him and asked
what he had done.

She urged him to turn himself in.

On Monday, Lisa’s Dodge Durango was found in a creek approximately 300 yards from where Barbee had been stopped by the deputy
sheriff two days earlier. The windows were down, the hatchback was

2

up, and there was a bottle of cleaning solution in the cargo area.
On the same day, Fort Worth detectives traveled to Tyler to speak
with Barbee, his wife, Trish, and Dodd. Barbee and Dodd were in Tyler
working on a job trimming trees.

They agreed to go to the Tyler

Police Department for questioning.
Barbee initially gave a recorded interview stating that he had
not seen or heard from Lisa in months. He then asked to use the bathroom. While in the bathroom with a detective, Barbee confessed that
he killed Lisa by starting a fight with her and then holding her face
down into the carpet until she stopped breathing. He also admitted
that he held his hand over Jayden’s mouth and nose until he stopped
breathing. Barbee said he did it because Lisa was going to ruin his
family and his relationship with his wife. He said that Dodd had
helped him plan the murder, had dropped him off at Lisa’s house
beforehand, and had picked him up afterwards, near the area where
he was stopped by the deputy.
recorded.

This “bathroom confession” was not

Afterwards, Barbee gave another, recorded statement to

police, which was ultimately suppressed. He then spoke with his wife,
Trish, which was also recorded in the police interview room.

The

next day, Barbee took the police to the place where he had buried
the bodies.

Barbee recanted his confession a few days later.

The prosecution’s case at the guilt phase relied primarily on
Barbee’s flight from the deputy sheriff, the bathroom confession,

3

his recorded statement to Trish, and his knowledge of details about
the burial site.
At the sentencing phase of trial, the State presented evidence
from Theresa that, during the course of their marriage, Barbee had
assaulted her on four occasions and had assaulted a driver in a roadrage incident.

The State also presented evidence that Barbee had

verbally abused a former coworker who had rejected his attempts to
have a relationship. The defense presented testimony from a pastor
at Barbee’s church, Barbee’s mother, his aunt, a niece, a church
acquaintance, an ex-girlfriend, and the girlfriend of Barbee’s exroommate. The defense also presented testimony from a prison security
expert, a confinement officer who had known Barbee his whole life,
and the courtroom bailiff, who described Barbee’s behavior in jail.
B.

Procedural summary

The jury convicted Barbee and sentenced him to death for the
murders of Lisa and Jayden.

State v. Barbee, No. 1004856R (213th

Jud. Dist. Ct., Tarrant Co., Tex. Feb. 27, 2006).

Attorney Mary

Thornton was appointed to represent Barbee on appeal.
p. 116).1

(Doc. 66-5,

The Texas Court of Criminal Appeals (“CCA”) affirmed the

judgment in a unanimous opinion. Barbee v. State, No. AP-75359, 2008

1

All electronically filed documents are cited by ECF docketing number
followed by the .pdf page number. This includes all pleadings and the electronically filed state court records from the exhaustion proceedings.
The one-volume paper record from the initial state habeas litigation is cited
“SHR” followed by the page number.

4

WL 5160202 (Tex. Crim. App. Dec. 10, 2008), cert. denied, 558 U.S.
856 (2009).
While the appeal was pending, Barbee retained Don Vernay, who
raised four claims in an initial application for state habeas relief.
(SHR 2, 102.)

The convicting court adopted the State’s proposed

findings of fact and conclusions of law and recommended relief be
denied.

(SHR 250.)

The CCA adopted the findings and conclusions

and denied relief.

Ex parte Barbee, No. WR-71,070-01, 2009 WL

82360(Tex. Crim. App. Jan. 14, 2009)(per curiam).
One year later, through appointed counsel A. Richard Ellis,
Barbee filed his first federal habeas-corpus petition and moved for
a stay and abeyance.

(Doc. 24, 30.) The Court granted the stay and

allowed Barbee to return to state court to exhaust a claim that his
trial counsel, Bill Ray and Tim Moore, had labored under a conflict
of interest. (Doc. 47.) Mr. Ellis filed a subsequent habeas
application in the convicting court, raising twenty-one claims for
relief. (Docs. 66-1, 66-2, 66-3, 66-4.) A live hearing was held on
the conflict-of-interest claim, after which the CCA denied relief.
The other twenty claims were dismissed as an abuse of the writ. Ex
parte Barbee, No. WR–71070–02, 2013 WL 1920686 (Tex. Crim. App. May
8, 2013). Barbee then filed an amended federal petition (Doc. 61),
the State filed its amended answer (Doc. 68), and Barbee filed a reply
(Doc. 77).

All twenty-one claims are now exhausted.

5

II. CLAIMS FOR RELIEF
Barbee asserts the following claims:
1.

Actual innocence;

2.

Trial counsel (Bill Ray and Tim Moore) had a conflict
of interest;

3.

Trial counsel were ineffective at the pre-trial
stage;

4.

Trial counsel were ineffective at the guilt phase;

5.

Trial counsel were ineffective at the sentencing
phase;

6.

Pervasive and prejudicial pretrial publicity rendered
the trial inherently unfair;

7.

Trial counsel were ineffective for failing to move
for a change of venue;

8.

The state court proceedings violated due process;

9.

The trial court erroneously denied Barbee’s challenge
for cause to Juror 126;

10.

The trial court erroneously denied Barbee’s motion
to suppress all statements made to Detective Carroll;

11.

The Texas “12-10" rule is unconstitutional because
it fails to inform jurors that a “hold-out” juror
would result in a life sentence;

12.

The three-drug lethal-injection protocol violates the
Eighth Amendment;

13.

The Texas death-penalty statute is unconstitutional
because the mitigation special issue has no burden
of proof;

14.

The trial court erroneously denied Barbee’s request
to inform the jury that the failure to answer a
special issue would result in a life sentence;

6

15.

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

16.

The “death-qualification” of Barbee’s jury violates
the Constitution and international law;

17.

The Texas death-penalty statute violates international treaties and the Eighth Amendment;

18.

Appellate counsel (Mary Thornton) rendered ineffective assistance;

19.

The prosecution violated Brady v. Maryland by
providing only an edited version of Barbee’s recorded
confession;

20.

The assistant medical examiners who testified lacked
the authority to hold public office; and

21.

The cumulative effect of the trial errors violates
due process.

III.
A.

STANDARD OF REVIEW

Claims adjudicated on the merits in state court

Barbee’s

petition

is

subject

to

the

amendments

of

the

Antiterrorism and Effective Death Penalty Act of 1996 in 28 U.S.C.
§ 2254(d) (“AEDPA”).2 Under AEDPA, a claim adjudicated on the merits
in state court is barred in federal court unless it (1) is “contrary
to” federal law then clearly established in the holdings of the
Supreme Court or “involved an unreasonable application of” such law,
or (2) “is based on an unreasonable determination of the facts” in
light of the record before the state court. See § 2254(d)(1), (d)(2);
Harrington v. Richter, 562 U.S. 86, 100 (2011). This review ultimately
2

All subsequent citations to § 2254 are to 28 U.S.C. § 2254.

7

examines only the state court’s “‘decision’ and not the written
opinion explaining that decision.” See Maldonado v. Thaler, 625 F.3d
229, 239 (5th Cir. 2010) (quoting Neal v. Puckett, 286 F.3d 230 (5th
Cir. 2002) (en banc)).

And it is limited to the record that was

before the state court that adjudicated the claim on the merits.
§ 2254(d); Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
Congress meant these conditions to be difficult to meet, but they
stop short of imposing a complete bar on the relitigation of claims
already rejected in state proceedings.

Richter, 562 U.S. at 102.

A state court’s decision is “contrary to” Supreme Court precedent
if the state court applies a rule that contradicts governing law or
confronts facts that are materially indistinguishable from Supreme
Court precedent, yet arrives at a different result.

Coleman v.

Thaler, 716 F.3d 895, 901 (5th Cir. 2013) (quoting Williams v. Taylor,
529 U.S. 362 (2000)). A state court’s application of Supreme Court
precedent is “unreasonable” when the state court identifies the
correct governing legal principle but applies it unreasonably to the
facts of a particular case. Id. at 901-02. The petitioner must show
that the state court ruling was “was so lacking in justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”

Richter, 562

U.S. at 103; see also White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
Thus, “even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Richter, 562 U.S. at 102;
8

Woodall, 134. S. Ct. at 1702 (stating a “merely wrong” holding or
“clear error” will not suffice).
When challenging the factual basis of the state court’s decision,
petitioner bears the burden of rebutting the state court’s factual
findings by clear and convincing evidence.
Titlow, 134 S. Ct. 10, 15 (2013).

§ 2254(e)(1); Burt v.

A “decision adjudicated on the

merits in a state court and based on a factual determination will
not be overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court proceeding.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

A “state-court

factual determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first
instance.”

Wood v. Allen, 558 U.S. 290, 301 (2010). A presumption

of correctness attaches to explicit findings of fact as well as
“unarticulated findings [that] are necessary to the state court's
conclusions of mixed law and fact.” Pippin v. Dretke, 434 F.3d 782,
788 (5th Cir. 2005)(citing Pondexter v. Dretke, 346 F.3d 142, 148
(5th Cir. 2003)).
B.

Claims dismissed in state court as procedurally barred

As noted, twenty of the claims presented in the amended petition
were presented in state court in the subsequent habeas application
and dismissed as abusive under Texas law.

When the state court

decision rests on a state law ground that is independent of a federal
question and adequate to support the judgment, federal courts will
9

not review the merits of the case.

Coleman v. Thompson, 501 U.S.

722, 729 (1991); Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001).
The United States Court of Appeals for the Fifth Circuit has
consistently held that the Texas abuse-of-the-writ statute is a valid
state-law procedural ground that forecloses federal habeas review
where, as here, there is no indication that the CCA’s order relied
on federal law in dismissing the petition.

See McGowen v. Thaler,

675 F.3d 482, 499 (5th Cir. 2012).
Barbee may overcome this bar by showing either (1) cause for
the procedural bar and actual prejudice as a result of the violation
of federal law or (2) that failure to consider the claim will result
in a fundamental miscarriage of justice. Smith v. Johnson, 216 F.3d
521, 524 (5th Cir. 2000).

The fundamental-miscarriage-of-justice

exception is limited to cases of (1) actual innocence and (2)
ineligibility for the death penalty.

Schlup v. Delo, 513 U.S. 298

(1995); Sawyer v. Whitley, 505 U.S. 333, 346-47 (1992).

Barbee’s

first claim for relief is an actual-innocence claim lodged under this
exception.
For “substantial” claims of ineffective assistance against trial
counsel, the ineffective assistance of initial state habeas counsel
(in this case, retained counsel Don Vernay) may be cause to excuse
the procedural bar.

See Trevino v. Thaler, 133 S. Ct. 1911 (2013);

Martinez v. Ryan, 132 S. Ct. 1309 (2012). As discussed below, Barbee

10

relies on Martinez and Trevino to overcome many of the procedural
bars asserted by Respondent.
Finally, if a petitioner can make the showing of ineffective
habeas counsel under Trevino or can demonstrate actual innocence,
the procedural bar is excused, the deference under § 2254 is
inapplicable, and a plenary or de novo review is appropriate. See
Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003); Johnson
v. Cain, 215 F.3d 489, 494 (5th Cir. 2000).

IV.

ACTUAL INNOCENCE (CLAIM 1)

Barbee asserts that Ron Dodd murdered Lisa and Jayden Underwood.
Dodd was an employee of the business that Barbee and Theresa continued
to operate after their divorce. Dodd dated and lived with Theresa.
In support of this claim, Barbee points out that he recanted his
confession to the police, that the State’s case makes little sense
because he had no criminal history, and that the task of disposing
of the victim’s 166-pound pregnant body was too difficult for one
person.

Dodd, by comparison, had a history of violent assault and

had nothing to gain by implicating himself in the mere disposal of
the bodies.

Barbee argues that, between the two of them, Dodd is

the person more likely to commit murder.
A. Relevant facts (claim 1)
In his 2010 declaration, Barbee provides the following version
of the offense:

Lisa was upset because she wanted Barbee to tell

11

his current wife, Trish, about the pregnancy. Barbee refused to do
so unless Lisa agreed to DNA testing to confirm paternity. On the
night of the murders, Barbee asked Dodd if he would come with him
to visit Lisa, to see how she was doing. Dodd agreed and drove Barbee
to Lisa’s house, but then left to go have dinner with Theresa. Barbee
eventually called Dodd to pick him up, and the two men returned to
Theresa’s house.

While the men talked in Theresa’s driveway, Dodd

offered to talk to Lisa about getting a DNA test and Barbee agreed.
They again drove to Lisa’s house, but Barbee stayed in the truck this
time because he did not want Lisa to see he had been crying.

Dodd

was in the house for fifteen to twenty minutes. When Dodd came out,
he said, “Your problems are solved, go get her truck.” Barbee went
up to Lisa’s door, and Dodd “suddenly left” in his truck.

Barbee

entered the house, saw the bodies and, believing he would be blamed,
loaded the bodies into Lisa’s Dodge Durango and drove from the scene.
He called Dodd and told him he had the bodies with him. Dodd was
“totally shocked,” but he agreed to meet Barbee in a deserted place
where he helped remove the bodies from the truck.

At this time,

Barbee noticed that Dodd had changed his clothes. Dodd did not want
to help bury the bodies, so he threw a shovel to Barbee and left.
When Barbee finished burying the bodies, he ditched Lisa’s truck and
again called Dodd, who agreed to pick him up on the highway. While
walking to meet Dodd, however, Barbee was stopped by the deputy
sheriff, after which he falsely identified himself and fled.

12

Eventually, Dodd located Barbee, and they returned to Theresa’s house
where Theresa washed Dodd’s clothes. (Doc. 66-3, p. 81.)
In his petition, Barbee lists the following as evidence of his
innocence and Dodd’s guilt:
1.

A 2010 declaration from Theresa’s father stating that
his son, Danny Dowling, told him “that Rod [sic] Dodd
had told him right after the murders that he had to
punch Lisa in the face 25-26 times before ‘the
fucking bitch would go down.’” (Doc. 66-3, p. 13334.)

2.

The same quote from Dowling, as contained in the 2010
declaration of Tina Church, founder of “The Other
Victims Advocacy,” who conducted her own investigation before trial. (Doc. 66-3, p. 109, 112.)

3.

Theresa’s statement to Church that Dodd wanted his
clothes washed at 4 a.m. on the night of the murders,
and Dodd’s admission to Church that he washed his
vehicle the next morning. (Doc. 66-3, p. 111.)

4.

A 2010 declaration from Barbee’s niece stating that
Theresa had said how much she hated Barbee and wanted
him “gone,” and had stated in Dodd’s presence that
she wished Barbee would just die and that there had
to be way to get him out of the office. (Doc. 66-3,
p. 104-05.)

5.

Dodd’s status as a parolee for aggravated assault and
his cohabitation with Theresa, who “stood to benefit
to the tune of a half-million dollars upon the demise
of Mr. Barbee.” (Doc. 61, p. 133). Dodd’s arrests
or convictions for the following misdemeanors:
telephone harassment, driving while license suspended, failure to appear, criminal mischief,
unauthorized use of a motor vehicle, and assault.
(Doc. 66-3, p. 148-54.)

6.

A 2010 declaration by Barbee’s mother that states
that soon after the murders, Theresa had Barbee sign
over the businesses to her, Dodd was instrumental in
causing a serious head injury to Barbee about a month
before the murders, and prior to the murders, Theresa
changed a $500,000 company bonding policy to a life
13

insurance policy naming herself as the sole beneficiary. (Doc. 66-3, p. 66, 73-75.)
7.

)

Church’s 2010 “confirmation” of Theresa and Dodd’s
financial motive to have Barbee “out of the way.”
(Doc. 66-3, p. 109-11.)

8.

Evidence of financial misdeeds by Theresa which were
relayed to trial counsel, as detailed in the affidavit of mitigation specialist Amanda Maxwell. (Doc.
66-3, p. 46, 49.)

9.

The following character evidence:
<

a 2010 declaration from the father of Barbee’s best
friend in middle school stating that Barbee was
well-behaved, although he had had no contact with
Barbee since high school (Doc. 66-3, p. 97);

<

a 2010 declaration of Barbee’s aunt, who said she
has always known Barbee to walk away from any kind
of confrontation (Doc. 66-3, p. 136-37);

<

a 2010 declaration from a girlfriend of Barbee’s
former roommate who said she never saw Barbee
angry, he was crazy about Trish’s kids, and it was
hard to believe he was guilty (Doc. 66-3, p. 140);
a 2010 declaration from his cousin that she did
not believe Barbee was capable of such an act, and
she believed him when he proclaimed his innocence
to her (Doc. 66-3, p. 142-43).

<

10.

The following information about the falsity of
Barbee’s confession:
<

Barbee’s 2010 declaration that his confession was
false because the police threatened him with the
death penalty (Doc. 66-3, p. 93);

<

a 2010 declaration from his niece stating that
Barbee told her he confessed because Dodd threatened to hurt his family (Doc. 66-3, p. 107);

<

a 2010 declaration from the author of a book about
the murders, Lethal Charmer, stating that Barbee
told her he confessed because Dodd threatened to
hurt his family (Doc. 66-3, p. 146);

14

<

a 2005 letter to trial counsel from confession
expert Richard Leo stating that Barbee maintained
that the confession was coerced, the circumstances
surrounding the bathroom confession were unusual,
and the police selectively turned the recording
device off and on. (Doc. 66-3, p. 156; Doc. 61,
p. 140.)

(Doc. 61, p. 131-141; Doc. 77, p. 16.)
Respondent contends that Barbee has not made a case for actual
innocence based on new evidence but merely argues the innocence theory
that he believes trial counsel should have presented.

Respondent

also contends the innocence theory lacks credibility for various
reasons. (Doc. 68, p. 40-41.)
B.

Discussion (claim 1)

Freestanding claims of actual innocence are not cognizable on
federal habeas corpus review. Graves v. Cockrell, 351 F.3d 143, 151
(5th Cir. 2003). So to the extent Barbee seeks relief on grounds of
innocence, the claim is denied.3 In federal court, Barbee’s innocence
claim may serve only as a gateway through which a procedurally barred
constitutional claim may be considered on the merits.
In Schlup v. Delo, the Supreme Court held that a habeas
petitioner can overcome a procedural bar to reach the consideration
of the merits of his constitutional claims if he establishes that
a constitutional violation has probably resulted in the conviction

3
Texas law, on the other hand, recognizes freestanding habeas claims of
actual innocence based on newly discovered evidence. Ex parte Elizondo, 947 S.W.2d
202 (Tex. Crim. App. 1996). Barbee availed himself of such a claim. (Doc. 66-1,
p. 15, 56.)

15

of one who is actually innocent.

Schlup, 513 U.S. at 327. To prove

an actual-innocence claim, a petitioner must present new, reliable
evidence not presented at trial that establishes that, more likely
than not, no reasonable juror would have found the petitioner guilty
beyond a reasonable doubt. Id. at 327. Examples of new evidence that
may establish factual innocence are exculpatory scientific evidence,
trustworthy eyewitness accounts, credible declarations of guilt by
another, and critical physical evidence not presented at trial.
Schlup, 513 U.S. at 324. This determination is based on a consideration of “all the evidence, old and new, incriminating and exculpatory,
without regard to whether it would necessarily be admitted” at trial.
House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks
omitted).

The

analysis

begins,

therefore,

by

reviewing

the

incriminating evidence in the record.
Barbee was stopped by a deputy sheriff on the night of the
murders about 300 yards from where the victim’s Durango was later
found in a creek. (23 RR 95-98, 114.) Barbee was wet and muddy below
the waist, gave a false name, and fled on foot. (23 RR 84-89.)

Two

days later, Barbee took the police to the victims’ burial site. (24
RR 122-27.)

Lisa’s business partner confirmed that Lisa had been

in a relationship with Barbee and believed he was the father of her
unborn child.

(23 RR 46-50.)

Barbee confessed to the police that

he murdered Lisa because she was going to ruin him.

He explained

that Dodd dropped him off at Lisa’s house to pick a fight with her,

16

but she would not take the bait.

Dodd picked him up and asked if

they needed to hire a hitman. Barbee said, “No, I can do this,” and
Dodd took him back to Lisa’s where he successfully started a fight
with her, punched her in the nose, and held her face down in the
carpet until she stopped breathing. When Jayden came into the room
crying, Barbee placed his hand over Jayden’s nose and mouth until
he stopped breathing.

He put both bodies in the Durango and drove

to the burial site where he buried them together and said a prayer.
(24 RR 102-106).

Barbee admitted that he tried to clean the house

and covered a blood stain with a piece of furniture.

(24 RR 106.)

The physical evidence at the murder scene corroborates this detail.
(23 RR 28-29, 208-09, 216-17, 221.)
Relying on a letter from confession expert Richard Leo, Barbee
claims the incriminating statements he made to the police were false.
(Doc. 61, p. 383.) The letter is not new evidence, however; it was
sent to trial counsel in 2005. Nevertheless, Barbee emphasizes the
following portion of the letter, purportedly from Dr. Leo:
Further, Mr. Barbee consistently maintained to counsel that
during the interrogation he was coerced into stating that
he committed the murders by threats of the death penalty,
that portions of his interrogation, including Det. Carroll
banging on the table and threatening him, were missing from
the recording provided to counsel, and that he spent only
a brief time in the bathroom with Det. Carroll. Notwithstanding these facts, counsel did not give Mr. Barbee the
option of testifying during the suppression hearing, thus
leaving the State’s case unrefuted.
There is little doubt that the most damaging evidence in
this case was Mr. Barbee’s alleged statement to Det.
Carroll. To say that the circumstances of the alleged
17

“bathroom” confession are unusual are an understatement.
This alleged confession was not memorialized in Det.
Carroll’s notes and it occurred conveniently out of
recording range. It simply defies coincidence that the
tape recorder was turned off just as the detectives began
to accuse Mr. Barbee of the murders, and that none of his
responses after this point nor any of the police interrogation appear on the recording, until later when Det. Carroll
leads him through his statement after the alleged
“confession” in the bathroom.
(Doc. 61, p. 140-41.)
In truth, the paragraphs set out above are not part of Dr. Leo’s
letter to counsel. (Doc. 66-3, p. 156.) This misrepresentation about
the contents of Dr. Leo’s letter was discussed in the state court
hearing. Federal habeas counsel explained that the falsity was the
unintended result of a typographical error. (Doc. 66-8, p. 37, 46.)
Incredibly, the amended petition filed post-abeyance retains this
substantive error.
Dr. Leo actually concluded that Barbee’s confession looked “far
more likely to be true than to be false” based on the following:
(1) Barbee led police to the bodies, and his account that he was
covering up for Dodd does not make sense since Dodd had no motive
to murder Lisa, (2) if Barbee were going to recant, the time to do
so would have been when his wife, Trish, came into the interrogation
room, and (3) Barbee told his ex-wife, Theresa, out of the presence
of the police, that he committed the murders. Dr. Leo did not think
his testimony would help the defense because the prosecution could
easily turn him into a state’s witness. (Doc. 66-3, p. 157.)

18

Dr.

Leo’s opinion is therefore not merely unhelpful to the innocence
argument but helps defeat it.
As Dr. Leo suggested, there is additional, potent evidence of
Barbee’s guilt in the form of his conversation with Trish, which was
recorded in the police station immediately following his police
confession. (24 RR 116-19.) The Court has reviewed the contents of
this recording. (SX PT-1 (on compact disc).)4 It begins with Trish,
visibly shocked, stating, “You killed her? You killed her? Friday
night?” and asking how Barbee did it.
down too long.”

Barbee replies, “I held her

He says that Lisa called and threatened him for

months, and states at various times that he "made a bad decision,"
“it was an accident,” and he "can't take it back."

Trish silently

calculates that Lisa was eight months’ pregnant, that she and Barbee
were dating eight months ago, and asks, “Why did you cheat on me?”
and “How could you sleep with me and sleep with her?” She asks Barbee
what she should tell his mom and dad.

Barbee states that his life

is over and he will "lose everything now."

Near the end, he states

that he is “so glad” he told her because it would have eaten him
alive.

She sits in Barbee’s lap throughout most of the recording,

holding his head, with Barbee’s arms wrapped around her. A reasonable
juror could easily conclude that their unconstrained crying, moaning,

4

The compact discs that are in the record have apparently been mislabeled.
The disc labeled PT-1 is actually PT-2 and vice-versa.

19

hyperventilating, and Barbee’s repeated expressions of regret and
anxiety are genuine.
In addition to the foregoing, Barbee’s ex-wife, Theresa,
testified at sentencing about Dodd and Barbee’s whereabouts on the
night of the murders.

She stated that Dodd twice left their home

with Barbee and came back without him, and left again when Barbee
called about 3 a.m., which coincides with the time Barbees reveals
in his confession and the time he was stopped by the deputy.

(25

RR 87-90.) Theresa said that, on the Sunday following the murders,
she spoke to Barbee about Lisa, who was by then the subject of a wellpublicized missing-persons case.

Theresa asked Barbee, “What have

you done?” He never told her what he did, but he cried and said his
life was over.

He asked her for help and said he was “guilty until

proven innocent.” (25 RR 91-94.) Barbee told Theresa he loved her
and had hurt her enough, and told her to get the businesses out of
his name “because of everything that was going to happen afterwards.”
She urged him to turn himself in, saying, “Please don’t make me call
the police.” On Monday, Barbee told her he was going to talk to the
police. He called her crying on Monday night after he had confessed.
He told Theresa that he had gone to Lisa’s to do the right thing if
the baby were his, but they fought, and Lisa hit him, and before he
knew it, he held her down.

Theresa asked about the boy, and Barbee

said he did not mean to kill him; he was just trying to keep him

20

quiet.

She asked whether Dodd had helped him, and Barbee replied

that Dodd’s mistake was picking him up. (25 RR 94-95.)
The following day, however, Barbee told Theresa in the presence
of his family (his mother, father, niece, brother-in-law, and Trish)
that they “had it all wrong,” and he did not do it.

(25 RR 96-98.)

Theresa visited Barbee in jail every week for seven months. (25 RR
86-87, 98.)

She asked him why he changed his story, and he simply

got angry because she did not believe him.

(25 RR 99-100.)

During

her last visit, Barbee held up a piece of paper on which he had
written a message asking her to tell everyone else that Dodd committed
the murders and set him up. (25 RR 100-02.) He said they could get
back together and try to have a baby if he got out of jail. (25 RR
101.) She walked out, and he subsequently took her off his visitors
list.

(25 RR 103.)
The Court now turns to the evidence and argument that Barbee

presents for innocence.

First, Barbee contends that the State’s

theory makes little sense because he could not have “single-handedly
placed the pregnant 166-pound Lisa in her SUV.” (Doc. 61, p. 131.)
Obviously, this is not new information.

Moreover, it is flatly

refuted by Barbee’s own 2010 declaration in which he states:

“I

dragged Lisa, who weighed about 170 pounds, into the garage and placed
her in the Durango.” (Doc. 66-3, p. 91-92.)

The innocence theory,

on the other hand, makes little sense because it fails to account
for the fact that Dodd could not have known that Barbee would confess.

21

Second, Barbee presents no authority that reliable evidence of
innocence can take the form of an acquaintance’s post-conviction
opinion that the petitioner is “not the sort of person” who could
commit murder. The Court finds that the character evidence (in the
various declarations of his family members and acquaintances) is not
sufficient to show that no reasonable juror would have found him
guilty beyond a reasonable doubt.
Third, Barbee presents no authority that the double-hearsay
statements made by Dowling to Church and to Theresa’s father are
trustworthy evidence contemplated by Schlup. They contradict Dowling’s
other, unacknowledged statements to Church.

Specifically, Dowling

attributed the statement--“I had to hit [her] 25-26 times”--to Barbee
as well as Dodd and ultimately could not remember who said it. Also,
when Dowling first saw the missing victims’ “Amber Alert” on the side
of the road, he said to himself, “That’s probably something that
[Barbee] would do.” (Doc. 66-3, p. 112.)
Fourth, the fact that Dodd washed his clothes on the night of
the murders and washed his vehicle the next morning does not negate
Barbee’s involvement in the murder or necessarily prove that Dodd
did anything more than help Barbee dispose of the bodies.
Fifth, Barbee’s terrible headaches and the head injury caused
by Dodd dropping a pipe on his head were discussed by Theresa during
her testimony and was not new information. (25 RR 76-77; Doc. 66-3,
p. 48, 164-65.) And, as discussed in later claims, a head injury or

22

debilitating headaches would not prove Barbee did not commit murder;
this sort of evidence provides an excuse for wrongdoing and is
therefore inconsistent with the actual-innocence assertion.

(Doc.

66-8, p. 23-24.)
Sixth, the evidence of alleged financial misdeeds by Theresa,
the purported motive for Dodd to commit double murder, is not new.
Trial mitigation specialist Amanda Maxwell reported it to trial
counsel.

(Doc. 66-3, p. 49; Doc. 66-7, p. 26; Doc. 66-8, p. 22.)

Seventh, the post-conviction declarations by a book author and
Barbee’s acquaintances that Barbee confessed only because he was
threatened merely repeat information originating from Barbee himself
and are not new or objectively reliable.
“When identity is in question, motive is the key.” House, 547
U.S. at 540.

Even assuming Dodd and Theresa had financial reasons

to want Barbee out of the way, it was Barbee, not Dodd, who had the
motive for wanting Lisa out of the way.

Barbee’s own declaration

provides the motive for murdering Lisa when he states: (1) Lisa showed
up at his apartment when Trish and her kids were visiting, (2) he
described Lisa to Trish as “a psycho I used to date,” (3) Lisa would
not take “no” for an answer, continued to call, leave notes at his
apartment, and show up at his work, (4) Lisa demanded he tell Trish
about her pregnancy even though Lisa would not take a paternity test,
and (5) Trish had already given him ultimatums about his relationship
with ex-wife Theresa. (Doc. 66-3, p. 85-90.) The record as a whole,

23

reinforces, not undermines, the State’s theory about Barbee’s motive
for wanting Lisa dead. Cf. House, 547 U.S. at 541 (finding Schlup
standard met where new DNA evidence undermined State’s theory of
sexual assault and removed the motive proffered by the State to link
House to the crime).
This claim simply presents the innocence theory that Barbee
believes trial counsel should have presented. It presents no newly
discovered evidence required by Schlup. The theory is unsound and
conflicts with Barbee’s own declaration. Barbee fails to demonstrate
that, more likely than not, in light of new evidence, no reasonable
juror would find him guilty beyond a reasonable doubt.

Claim 1 is

denied.

V.

CONFLICT OF INTEREST (CLAIM 2)

Barbee asserts that he received ineffective assistance of trial
counsel because Bill Ray had a secret understanding with the trial
judge that he would “move” the case rapidly and put up a minimal
defense. Barbee contends that this conflict of interest caused Ray
to fail to investigate his innocence and to jettison “a multitude”
of mitigating evidence.

(Doc. 61, p. 148-49.)

Respondent argues

that the state court’s rejection of this claim was reasonable.
The initial state habeas proceedings touched upon issues relevant
to counsel’s representation at punishment, and the conflict-ofinterest claim was fully litigated in the subsequent writ proceedings

24

during the abeyance. Thus, the relevant facts that follow are from
both state proceedings.
A.

The initial state habeas proceedings (claim 2)

Barbee’s initial state application alleged that trial counsel
were ineffective for failing to present significant mitigating
evidence at sentencing. (SHR 24). In support, Barbee presented the
affidavit of their mitigation investigator, Amanda Maxwell; a letter
discussing mitigation themes from trial expert Dr. Goodness; and
written statements from neuropsychologist Stephen Martin, Pastor Nancy
Cearley, and Barbee’s mother. Dr. Martin opined that Barbee had subtle
to mild brain damage, primarily frontal-lobe impairment. (SHR 44-45.)
Pastor Cearley and Barbee’s mother both stated, among other things,
that if they had been asked, they would have testified that Barbee
was not a future danger to society. (SHR 47, 49.)
Maxwell stated in her affidavit that Bill Ray asked her to
investigate the educational, psychological, medical, institutional,
cultural, and social history of Barbee and his family. She detailed
her experiences with the defense team as they worked on the case and
prepared for trial. She interviewed twenty-one potential witnesses
and obtained records relating to Barbee’s mental and physical health,
education, and employment.

She investigated the family’s history

of abuse, their criminal history, and religious and cultural
influences, which she verified through collateral sources. She stated
that she was not allowed to meet with the witnesses prior to testi-

25

fying, however, because Ray had used another investigator to do that.
As a result, she believed the mitigation testimony presented at trial
was ineffective.

(SHR 33-37.)

Mr. Ray and Mr. Moore provided a joint affidavit in response.
(SHR 60, 66.) They said that Barbee continuously changed his version
of the murders such that it was difficult to develop a defensive
theory that would be beneficial or consistent at both stages of trial.
(SHR 67.)

Counsel did not present evidence of head injury, mental

illness, or hydrocodone abuse, because presenting this evidence would,
in effect, be an admission that Barbee was in fact guilty as charged,
even though Barbee had maintained his innocence in spite of overwhelming evidence to the contrary. Counsel said that the “overwhelming
thought in mitigation is some acceptance of responsibility,” which
Barbee refused to give. (SHR 71.) Counsel attached to their affidavit
a letter Barbee had written to counsel describing what happened during
his police confession, a Memorandum of Understanding between trial
counsel and Barbee, Barbee’s letter to confession expert Dr. Richard
Leo, Dr. Leo’s letter to trial counsel, Dr. James Shupe’s letter to
trial counsel, and Maxwell’s notes to counsel about her interview
with Tim Davis, a friend of Barbee’s.

(SHR 75-100.)

Counsel stated that they did not call Tim Davis to testify
because Davis indicated he was with Barbee during a road-rage incident
where Barbee “attempted to kill” the driver of the other vehicle.
(SHR 71.)

Maxwell’s memorandum to trial counsel summarizing her

26

interview with Davis shows that after Barbee cut off another truck
in traffic, the other truck motioned for Barbee to pull over. Barbee
told Davis to “watch this,” as he brought his truck to a stop. An
older man and his son approached and started hitting Davis and Barbee,
and they all ended up fighting on the shoulder.

Davis had to pull

Barbee off the son and the old man to keep him from hurting them
“really bad.” Barbee and Davis left, and Barbee threw the other man’s
car keys out the window about two miles down the road.

Davis also

told Maxwell, “Steven had no off button,” “he could take care of
himself,” and was stronger than two men put together.
B.

(SHR 99.)

The subsequent state habeas proceedings (claim 2)

At the subsequent writ hearing, Barbee presented testimony in
an effort to show that Mr. Ray was financially beholden to Judge
Robert Gill for appointments in probation revocations cases and that
Ray knew he had to move Barbee’s case as quickly as possible. Barbee
attempted to circumstantially show a conflict of interest through
evidence of (1) counsel’s alleged attempts to have Barbee plead
guilty, (2) counsel’s alleged lack of interest in Barbee’s innocence,
and (3) counsel’s “mysterious refusal” to present all mitigation
evidence amassed by the defense team, Davis’s testimony in particular.
1. Amanda Maxwell
Maxwell’s testimony reiterated much of the information contained
in her affidavit. She also testified that this was her first capital
murder case, and that Mr. Ray had told her to put negative as well

27

as positive information about Barbee in her written report.
66-7, p. 24.)

(Doc.

She had developed information about Barbee’s head

injuries, a suicide attempt, and Barbee’s hydrocodone abuse.

She

requested counsel to obtain a neuropsychological evaluation, but
counsel did not respond. (Doc. 66-7, p. 25.) She reported that
Barbee’s ex-wife Theresa told Barbee that he had better sign both
businesses over to her or the State would take them because his DNA
was all over the crime scene.

She testified that Theresa had been

embezzling funds from the company and owed money to Barbee’s mother.
(Doc. 66-7, p. 26.) Maxwell said trial counsel were constantly trying
to encourage Barbee to plead guilty, they would not let her order
records herself, and she never talked to the defense psychologists.
(Doc. 66-7, p. 26-27.) She did not hear from Mr. Ray after submitting
her complete mitigation report. (Doc. 66-7, p. 27-28.) Ray had hired
another investigator to re-interview all the witnesses she had
previously interviewed. (Doc. 66-7, p. 27-28.) She believed there
were witnesses who should have been called and information, such as
the head injuries and hydrocodone use, that should have been
presented. (Doc. 66-7, p. 28.)

She also had a list of “crime-week

stressors” that Barbee faced during the week leading up to the murders
that she said was not presented at trial.

(Doc. 66-7, p. 30.)

She

said that Mr. Ray and Mr. Moore had conveyed to her that they found
Barbee “disgusting because he cried.” (Doc. 66-7, p. 31.) She also
said that when Mr. Ray saw her affidavit in this case, he fired her

28

from another capital case in which she was working. (Doc. 66-7, p.
31.)
Maxwell admitted that her laundry list of crime-week stressors
could have been aggravating for the defense, and that Barbee’s mother
had a life-long pattern of running interference for Barbee and wanted
a different attorney from the very beginning. (Doc. 66-7, p. 33-34.)
Barbee’s parents had paid for his acts of vandalism and theft in his
past, and his mother was emotionally and socially invested in his
being innocent. (Doc. 66-7, p. 33-34.) Maxwell also uncovered negative information about Barbee, such as vandalism and setting fire
to baby hamsters in his pre-teen years.

(Doc. 66-7, p. 36, 46.)

When the prosecutor attempted to cross-examine Maxwell about her
interview with Davis, Maxwell said she did not have her notes from
the interview but only had an email she had sent to Mr. Ray. She said
her written notes were destroyed, and she did not include the Davis
interview in her social history report because she felt it was very
prejudicial. (Doc. 66-7, p. 32, 36.) She said she has destroyed her
handwritten notes in all sixteen of the capital cases she has worked
since Barbee’s.

(Doc. 66-7, p. 37.)
2. Tim Davis

Tim Davis testified that he had been best friends with Barbee
for eight to ten years and was the best man at Barbee’s wedding to
Theresa. (Doc. 66-7, p. 51.) He said that Maxwell’s report of his
2005 interview is not truthful and twisted his words.

29

(Doc. 66-7,

p. 54, 57.)

He also said that Barbee did not attempt to kill the

driver of the other vehicle, as stated in counsel’s affidavit.

He

said it was a simple fist fight after he and Barbee were attacked
by men in a truck who had run them off the road. (Doc. 66-7, p. 5152.) Had he been called to testify, he would have given his opinion
that Barbee was not a future danger to society. (Doc. 66-7, p. 57.)
Davis testified that he was not aware of any physical confrontations
between Barbee and Theresa, and did not know that, as a juvenile,
Barbee had broken 47 school windows and robbed a concession stand
in Parker County.

He knew that, at the time of the road-rage

incident, Barbee was working as a volunteer police officer. (Doc.
66-7, p. 54-55; Doc. 66-3, p. 128 (declaration and supplement).)
3. Calvin Cearley
Calvin Cearley testified that he is married to Pastor Nancy
Cearley, who testified at trial, but he was not contacted by the
defense team. If he had been called to testify, he would have said
that Barbee was not likely to commit future acts of violence. He said
that Barbee and Theresa were leaders in the children’s church. Barbee
loved animals and children and was respectful and polite. Cearley
was not aware of Barbee’s misconduct at a young age, but only knew
him in the church setting.

(Doc. 66-7, p. 57-59; Doc. 66-3, p. 119

(declaration).)

30

4. Nancy Cearley
Nancy Cearley said she has known Barbee twenty years and his
parents came to her church.

She described Barbee and Theresa’s

leadership in the children’s church and said Barbee was easy going,
friendly, likeable, polite, and respectful.
to commit acts of violence.

She never knew Barbee

Although she testified at trial, she

was not asked her opinion about Barbee’s propensity for future
dangerousness.

Had she been asked, she would have said he is not

likely to commit future violent acts. She knows Barbee did not commit
murder, and there is no evidence that would change her mind.

She

believed his attorneys were just “going through the motions.”

She

admitted that she did not know Barbee when he (1) broke into a baitand-tackle shop and robbed it, (2) broke the windows at Azle High
School, and (3) broke into a concession stand at Parker County. (Doc.
66-7, p. 59-62; Doc. 66-3, 120 (declaration).)
5. Barbee’s brother-in-law
Barbee’s brother-in-law testified that he was married to Barbee’s
older sister, who died at the age of 20 when she was pregnant with
their second child. Barbee’s older brother David also died at age
20 in a car accident.

These deaths devastated Barbee.

If he had

been called to testify, he would have said that Barbee is absolutely
not likely to commit future violent acts. He saw Barbee fight only
once, with a house guest who was behaving inappropriately and refused
to leave. He did not attend trial and never saw Barbee’s confession
31

recording but did not believe Barbee confessed to killing the victims.
He knew about some trouble Barbee had growing up, including breaking
into the Parker County concession stand.

He did not remember the

road-rage incident, Barbee’s breaking 47 windows at Azle High School,
or stealing jewelry and other possessions from the school locker room.
(Doc. 66-7, p. 63-66; Doc. 66-3, p. 123 (declaration).)
6. Barbee’s niece
Barbee’s niece testified that her mother was Barbee’s sister
and that she and Barbee are very close. Barbee was playful and always
wanted to make her laugh, spoil her, and take care of her.

She

testified that Theresa and Barbee were in debt to Barbee’s parents
when the murders occurred. She described Barbee’s home with Theresa
as expensive, gorgeous, “a great home” of about 6,000 square feet.
She worked for their concrete cutting business between 2002 and 2004
as Theresa’s assistant.

Theresa started paying bills with company

money, deposited a large amount of cash, once said she wished Barbee
would die, and once falsely claimed that Barbee had hit her.
was rude and uncouth.

Dodd

If she had been asked during her trial

testimony, she would have testified that, in her opinion Barbee would
not commit future acts of violence. She attended trial and watched
Barbee’s confession tape but did not believe it. (Doc. 66-7, p. 6672; Doc. 66-3, p. 104 (declaration).)

32

7. Sharon Colvin
Sharon Colvin testified that she is a pastor and friend of
Barbee’s mother and knew Barbee for about a year when he was young.
She testified that she spoke to Barbee’s trial attorneys but they
did not ask her to testify. She would have testified, if asked, that
Barbee was not likely to commit future dangerous acts.

She had

nothing bad to say about Barbee. (Doc. 66-7, p. 72-73; Doc. 66-3,
p. 126 (declaration).)
8. Barbee’s mother
Barbee’s mother testified that Mr. Ray and Mr. Moore came to
her house once and talked to her on the phone a couple times before
the trial. Maxwell came to her house two or three times to discuss
Barbee’s background and she believed Maxwell “knew everything,” but
very little of Maxwell’s work was presented to the jury.

She

testified that Barbee is a giver with a loving heart and a hard
worker.

She testified that Barbee did not have anyone to talk to

about the deaths of his older siblings because she and her husband
were “just making it” themselves. Barbee cried on his twentieth
birthday and said it was the worst day of his life.

She promised

to buy him a boat or give him money if he lived to be twenty-one.
She said Barbee’s problem in high school was that he loved to be
funny, and he had some trouble completing his GED in reading. She
helped him financially with buying and building the home he shared
with Theresa, and he let Theresa have everything when they divorced.

33

Barbee’s mother said counsel told Barbee that if he pled guilty
they might be able to save his life.

Counsel wanted her to watch

the recording of his confession but she never did. There were things
she would have liked to have testified about at trial but counsel
did not ask, specifically, that she had taught Barbee right from
wrong. She was shocked when Mr. Ray told the jury that Barbee was
guilty. She did not know about a road-rage incident with Davis, and
if asked, she would have testified that Barbee was not a future threat
to anyone. She said she had never seen anyone so broken in her life
as Barbee was after his lawyers visited him in jail.

She said that

she and “his daddy had to go, and literally scoop him off the floor.”
On cross-examination, she admitted Barbee was involved in breaking
windows at the Azle school, but she did not know about incidents
involving a bait and tackle shop or the Parker County concession
stand.

(Doc. 66-7, p. 83-88; Doc. 66-3, p. 66-76 (declarations).)
9. Trial Judge Robert Gill

Judge Gill testified that he appointed Mr. Ray on a lot of the
probation revocations in his court. (Doc. 66-7, p. 77-79; Doc. 66-8,
p. 9.)

He liked to appoint Ray because Ray “worked” the cases and

made himself available on Friday afternoons, when Gill scheduled
revocation hearings. (Doc. 66-7, p. 82.)

Gill acknowledged that a

newspaper article had reported that a federal judge harbored serious
due-process concerns about the way Gill handled plea bargaining in
the revocation cases and found Mr. Ray ineffective in one revocation

34

case. (Doc. 66-7, p. 78-79.) Judge Gill agreed that, about two years
before their appointment in Barbee’s case, Ray and Moore made campaign
contributions to Judge Gill in the amounts of $1000 and $300,
respectively.

(Doc. 66-7, p. 81.)

Gill also testified that, when

he was a candidate in the election for district attorney, he would
have considered a high disposition rate something he would want to
publicize; however, he thought he had an average disposition rate
as a judge. (Doc. 66-7, p. 81.) He said there was no type of agreement between him and Mr. Ray about how Ray was going to handle
Barbee’s case.

(Doc. 66-7, p. 82.)
10.

Lead counsel Bill Ray

Mr. Ray testified that he was licensed in 1985 and is board
certified in criminal and criminal appellate law.
32.)

(Doc. 66-8, p.

At the time he was appointed, about 70-80 percent of his

criminal practice among four counties was court-appointed.
66-7, p. 182.)

(Doc.

Somewhere between 25 and 75 percent of his court-

appointed practice came from Judge Gill’s court. (Doc. 66-7, p. 182.)
Prior to Barbee’s trial, he had tried two other death-penalty cases
to conclusion.

(Doc. 66-7, p. 182.)

He testified that he did not

have any sort of agreement or deal with Judge Gill.

Judge Gill

appointed him on a large number of cases starting in 2001 or 2002,
but it could have ended at any time, and it ultimately did.
66-8, p. 7-9.)

(Doc.

He made $710,000 from Judge Gill’s appointments

between 2001 and 2007.

(Doc. 66-8, p. 8.)

35

He said that campaign

contributions are a common practice and that he has contributed to
the campaigns of more than ten judges in Tarrant County. (Doc. 66-8,
32-33.)
Hearing exhibits showed that Mr. Ray and Mr. Moore billed the
court for 350 and 260 hours of out-of-court time, respectively. (Doc.
66-6, p. 16, 21, 24; Doc. 66-7, p. 80.) Mr. Ray hired Kathy Minnich
as a investigator and replaced her with Stanley Keaton when she moved
out of state.

(Doc. 66-8, p. 4; 24 RR 174.)

Maxwell was the

mitigation specialist. (Doc. 66-8, p. 5.) He also hired two forensic
psychologists,

a

forensic

psychiatrist,

an

expert

on

false

confessions, a computer investigator, and a DNA expert. (Doc. 66-8,
p. 15, 38; 1 CR 35, 46; 2 CR 298.)

Ray said Judge Gill placed no

limitations on his handling of the defense, made no threats or
implications that he would not receive appointments, and denied no
request for experts.

(Doc. 66-8, p. 33.)

Mr. Ray’s theory at the guilt stage was that Barbee should be
acquitted of capital murder because Lisa’s asphyxiation death was
an unintentional consequence due to her advanced pregnancy.
66-8, p. 6; 25 RR 9-18.)

(Doc.

Mr. Ray’s strategy at punishment was to

show that the prisons were able to handle violent offenders, and that
Barbee could conform to life in prison. (Doc. 66-8, p. 30-31.) Ray
presented character and social-history testimony from Barbee’s mother,
Barbee’s aunt, Pastor Nancy Cearley, a young woman Barbee met at
church, Barbee’s ex-girlfriend, and the girlfriend of Barbee’s former

36

roommate.

Ray presented testimony from prison classification and

security expert Susan Perryman, as well as a Tarrant County
confinement officer who had known Barbee his whole life, and the court
bailiff, who testified about Barbee’s good behavior during the trial.
(25 RR 121-175, 26 RR 2-105.)
Mr. Ray disagreed with the assertion that he tried to convince
Barbee to plead guilty and did not investigate his innocence. Rather,
he told Barbee to consider a plea because his confessions to the
police made it difficult to prove innocence. (Doc. 66-8, p. 3, 5.)
He attempted to have Barbee’s family view Barbee’s recorded confession
because they did not believe that he had confessed, especially his
mother. Ray did not do this to convince them that Barbee was guilty,
but to show them that it was a problem in the case.
5.)

(Doc. 66-8, p.

Ultimately, the district attorney told Ray there would be no

plea agreement anyway.

(Doc. 66-8, p. 44.)

Mr. Ray investigated Dodd, obtained his criminal history, spoke
with his assault victim, and knew Dodd had meet a man named Donald
Painter while incarcerated.
on Barbee’s head.

Ray also knew Dodd had dropped a pipe

(Doc. 66-8, p. 3, 23, 41.)

Ray filed subpoenas

under seal (so that they would be unknown to the State) in an attempt
to locate an ex-girlfriend with whom Barbee had worked at the Blue
Mound Police Department.5 Ray learned that Barbee had a secret cell

5

According to Barbee’s mother, Barbee had had a child with this fellow Blue
Mound officer but gave up his parental rights. (Doc. 66-3, p. 72.)

37

phone with which he called a girlfriend while he was married to
Theresa. Through sealed subpoenas, he learned from cell tower records
that Barbee had placed a call to Dodd at 1:47 a.m. on the night of
the murder, which was initiated from a tower near the victim’s home.
Barbee also placed calls to Dodd from a tower near the location where
the bodies were found, where he was trying to get Dodd to pick him
up before he was stopped by the police. The State did not know about
these incriminating cell tower records. (Doc. 66-7, p. 42, 55; Doc.
66-8, p. 33-34.) Maxwell also advised Mr. Ray that Barbee was trying
to get his ex-wife, Theresa, to implicate Dodd. (Doc. 66-7, p. 38-39;
see 25 RR 100-101 (Theresa’s testimony).)
Regarding Barbee’s innocence claim, Mr. Ray explained that Barbee
first wrote Ray a letter about his confession to police, stating that
both of the murders were accidental.

The first time they met in

person, Barbee told Ray he did not commit the murders. Ultimately,
Barbee stated he was not there at all, that Dodd did it. (Doc. 66-8,
p. 16; SHR 75.) Ray identified three problems with the “Dodd did it”
theory. First, Barbee would have to testify, and Barbee did not want
to testify.

(Doc. 66-8, p. 16-18.)

Second, Dodd had no motive to

kill the victims that Mr. Ray could prove. Mr. Ray would have wanted
someone better than Barbee’s niece to testify that Theresa was
embezzling money from the company that Barbee had already signed over

38

to her.6 Mr. Ray pointed out that the financial-motive evidence was
weak because Dodd was already living with Theresa in Barbee’s spacious
former home, and Barbee and Theresa were already divorced.

Third,

Dodd could not have known that Barbee would later confess to the
police. Mr. Ray said he told Barbee a thousand times that they could
not sell that. (Doc. 66-8, p. 22.) Mr. Ray also retained the services
of a confession expert, Dr. Leo, to assess the veracity of Barbee’s
confession, but Dr. Leo‘s report was not favorable to the defense.
(Doc. 66-8, p. 37.)
Mr. Ray consulted with psychologists Kelly Goodness and Barry
Norman and with psychiatrist James Schupe.

Dr. Goodness found no

significant symptoms of head injury, no indication that Barbee had
bipolar disorder, and no long-term or significant hydrocodone abuse.
Dr. Goodness believed Barbee had Lyme’s Disease, which can cause mood
swings that mimic bipolar disorder, as well as rage and violent
tendencies. Mr. Ray believed this played into the State’s hand and
was not helpful to the defense.

Dr. Shupe found bipolar disorder,

polysubstance abuse, social stressors, a history of closed-head
injuries, and antisocial personality disorder, some of which could
have been helpful if Barbee had accepted responsibility for the
murders. But Shupe believed that Barbee diminished his responsibility
for the murders because he did not like the situation he was in and

6

Mr. Ray’s testimony suggested that a niece would have implicit bias, but
he also testified that the niece had a concerning criminal history. (Doc. 66-8,
p. 45.)

39

was fixated on how his mother would view him if she thought he was
guilty.

Ray did not think Shupe would help the defense, and he was

also worried that the bipolar diagnosis was inconsistent with the
Lyme’s Disease diagnosis.

(SHR 52 (Goodness report), 98 (Shupe’s

report); Doc. 66-8, p. 38-39.) Dr. Norman believed Barbee suffered
from mild depression, but otherwise did not think anything was wrong
with Barbee, specifically relating to the head injury. (Doc. 66-8,
p. 43-44.) Mr. Ray also explained that, if he had called one of the
mental health experts to testify, the State would have been entitled
to an expert that would probably reach the same harmful conclusions.
(Doc. 66-8, p. 43-44; 2 CR 302, Lagrone motion.) (SHR 207, finding
that state would have had Barbee interviewed by Dr. Price.)
Regarding his decision not to present evidence of the head
injuries, hydrocodone use, and migraine headaches, Ray said this
evidence would suggest a reason why Barbee committed the murders and
undermine Barbee’s innocence claim.

Even at the punishment phase,

Ray generally did not believe that “excuse” evidence helped the client
when the jury has just rejected the innocence defense and found the
client guilty.

Ray also knew that the witnesses who were going to

testify at punishment believed that the jury wrongly convicted Barbee,
and it would be inconsistent with their assertions to offer evidence
that excused the murder.

For the same reason, Ray could not offer

evidence of remorse, even though he believed remorse could be a
successful strategy in some cases.

40

(Doc. 66-8, p. 24, 29.)

Mr. Ray did not call Davis as a character witnesses because Davis
had been with Barbee in the road-rage incident. Although Davis testified at the habeas hearing that he and Barbee were the victims in
the incident and he had never seen Barbee get violent with anybody
(doc. 66-7, p. 52), Maxwell and both trial counsel testified that
Davis told them otherwise at the time of trial.

(Doc. 66-7, p. 38;

Doc. 66-8, p. 40, 53.)
Mr. Ray did not call inmate Donald Painter to testify at guilt
even though he would say that Dodd confessed to committing the murders
to him. Painter’s life-long criminal history aside, Ray had learned
that Barbee and Painter had an agreement whereby Barbee would pay
Painter for his testimony.

Although Ray believed the exchange of

money was Painter’s idea, Ray believed for this reason that Painter
would have been “worse than anybody else we could have got to the
courtroom.”

(Doc. 66-8, p. 41-45; Doc. 66-6, p. 62, 64.)

When challenged about his decision not to present lay opinion
testimony regarding Barbee’s lack of future dangerousness, Ray
explained at length that he would not ask his mitigation witnesses
whether they believed Barbee to be a future danger because that would
have opened them up to questions about Barbee’s prior bad acts, which
would have been damaging no matter how they answered. In this regard,
Ray had information that Barbee built fires as a little kid, set fire
to hamsters, killed an animal when he was on a date, offered to bribe
Painter to testify, and severely beat an older man in the road-rage

41

incident at the same time he was employed as a volunteer police
officer. (Doc. 66-7, p. 35-36, 38, 55; Doc. 66-8, p. 27-28.)
11. Co-counsel Tim Moore
Mr. Moore testified that he was licensed in 1978 and 100% of
his practice is criminal law.

He had been appointed by Judge Gill

in two or three other cases at the time of Barbee’s trial and had
tried six death-penalty cases in his career. (Doc. 66-8, p. 49, 55.)
He made campaign contributions to every criminal judge in the county.
(Doc. 66-8, p. 50.) He said that Judge Gill did not limit or direct
how they conducted Barbee’s defense and made no threats about future
appointments.

(Doc. 66-8, p. 55.)

Moore said that Barbee’s family was convinced that he was not
guilty.

Moore and Ray wanted the family to view the recorded

confession so that the family would know what counsel were dealing
with. (Doc. 66-8, p. 50.) Although Barbee asserted that his confession was false and that Dodd had committed the murders, Moore believed
that the only way to get this information before the jury was to have
Barbee testify, which he refused to do.

(Doc. 66-8, p. 51.)

Moore

knew about Barbee’s head injury but Dr. Goodness could not find any
effect from it. He knew about Barbee’s hydrocodone use and headaches
and the road-rage incident. Moore testified, as did Ray, that Davis
lied about what he originally told them about the road-rage incident.
(Doc. 66-8, p. 25, 52-53, 57.)

42

Moore testified that he believed jurors are less likely to give
a defendant the death penalty if he accepts responsibility and shows
remorse.

(Doc. 66-8, p. 54.)

Mr. Moore believed that the biggest

problems they faced in terms of future dangerousness were the facts
of the offense.

(Doc. 66-8, p. 57.)
12. Dr. Stephen Martin

Dr. Martin did not testify, but his written statement given in
connection with Barbee’s original habeas application was admitted
into the record.

(Doc. 66-3, p. 53; Doc. 66-7, p. 23.) The written

statement asserts that he conducted a neuropsychological evaluation
of Barbee in 2007 and that the results “reflect a subtle to mild
degree of diffuse neuropsychological impairment along with subtle
bilateral hemisphere dysfunction” and that the areas of impairment
“appear to reflect primarily frontal lobe-mediated abilities.” Martin
opined that the “damaged frontal lobes would have likely increased
[Barbee’s] impulsivity tendencies and reduced his ability to fully
consider the consequences of his actions” during the offense. Martin
further opined that trial counsel were ineffective for failing to
present the testimony of an expert such as himself. (Doc. 66-3, p.
53-60.)
13.

Dr. J. Randall Price

43

The State called Dr. Price to refute the opinion of Dr. Martin.7
Dr. Price is a clinical and forensic psychologist and neuropsychologist who has taught university classes in psychology, criminal
psychology, and forensic psychology for forty years. He has consulted
in over 300 capital murder trials, both for the defense and the
prosecution. (Doc. 66-8, p. 59.) Dr. Price reviewed Dr. Martin’s
affidavit and raw test data; the evaluations of Drs. Goodness, Shupe,
and Norman; Maxwell’s report; and Barbee’s medical history file.
(Doc. 66-8, p. 60.)

Dr. Price testified at the writ hearing that

he found two scoring errors by Dr. Martin and that Dr. Martin did
not analyze the test results against age and education norms, which
is the standard practice in the field. When Dr. Price adjusted for
these two things, the test results obtained did not indicate either
generalized brain impairment or frontal lobe impairment. He agreed
that a direct blow to the head from a 400-500 pound pipe would
certainly be likely to cause some brain injury, but he found no
evidence of that in the files.

Dr. Price also found no evidence of

brain damage following two car accidents.

He said Drs. Shupe,

Goodness, and Norman all had face-to-face evaluations of Barbee and
also saw no evidence of brain injury. (Doc. 66-8, p. 62-63.)

7

Dr. Price also provided a written affidavit in 2008 in connection with
the original habeas application with substantially the same content as his live
testimony. (SHR 182.)

44

B.

Applicable law (Claim 2)

The clearly established federal case law governing claims of
ineffective assistance of trial counsel can be found in Strickland
v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529 U.S.
362, 398-99 (2000).

Under Strickland, a petitioner must first

demonstrate that counsel’s representation fell below an objective
standard of reasonableness.

Strickland, 466 U.S. at 688.

This

determination asks “whether an attorney’s representation amounted
to incompetence under ‘prevailing professional norms,’ not whether
it deviated from best practices or most common custom.”
562 U.S. at 105.

Richter,

A petitioner must also demonstrate prejudice,

meaning a reasonable probability, sufficient to undermine confidence
in the outcome, that but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland, 466
U.S. at 694.
A lawyer who acts under a conflict of interest may deny his
client the effective assistance of counsel. E.g., Cuyler v. Sullivan,
446 U.S. 335, 348 (1980). In Sullivan, the Supreme Court held that,
in cases involving the representation of multiple co-defendants where
no objection was raised in trial, a reviewing court does not presume
that the mere possibility of a conflict resulted in ineffective
assistance. Id. To establish ineffective assistance of counsel in
this situation, the defendant must demonstrate that “an actual
conflict of interest adversely affected his lawyer’s performance.”
45

Id. at 348-49. An “actual conflict” exists when counsel “is compelled
to compromise his or her duty of loyalty or zealous advocacy to the
accused by choosing between or blending the divergent or competing
interests.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000).
“Adverse effect” requires evidence that “‘some plausible alternative
defense strategy or tactic’ could have been pursued but was not
because of the actual conflict impairing counsel’s performance.” Id.
Once the defendant shows that a conflict of interest actually affected
the adequacy of the representation--as opposed to a “mere theoretical
division of loyalties”--he need not demonstrate Strickland prejudice
in order to obtain relief.

Sullivan, 446 U.S. at 349-50; Mickens

v. Taylor, 535 U.S. 162, 171 (2002) (discussing holding in Wood v.
Georgia, 450 U.S. 261 (1981)).
Neither the Supreme Court nor the Fifth Circuit has expanded
Sullivan to cover the type of conflict alleged in this case, a
conflict with the lawyer’s personal interests. Mickens, 545 U.S. at
176 (holding that the extension of Sullivan remains an open question
as far as Supreme Court jurisprudence is concerned); Beets v. Scott,
65 F.3d 1258, 1271(5th Cir. 1995)(applying Strickland, not Sullivan,
where alleged conflict is with lawyer's personal interests, reasoning
that there is little distinction between lawyer who inadvertently
fails to act and one who for selfish reasons decides not to act).
On the other hand, Texas courts apply the Sullivan presumption to
all conflict-of-interest claims.
46

Acosta v. State, 233 S.W.3d 349,

356 (Tex. Crim. App. 2007).

So the state court here applied Sullivan

as required by Texas jurisprudence, and then applied Strickland as
required by federal jurisprudence, and found no error under either
standard. (Doc. 66-5, p. 150-53.) Barbee contends that the statecourt ruling was based on an unreasonable determination of the facts
and an unreasonable application of law. He urges the Court to apply
the Sullivan standard, which would relieve him of the burden to show
prejudice.

(Doc. 77, p. 24-25.)
C.
1.

Analysis of state court ruling (claim 2)
State court factual findings (claim 2)

Barbee takes issue with many of the state-court findings. Some
of the challenges, however, simply ignore the evidence that supports
the finding. (Challenge to Findings 31, 36, 54-64, 65-70, 78, 80-82,
88-89, 91, 96-97, 108, 110, 111-128, 130.)

Some only reassert the

argument or the facts that were rejected by the state court, or
otherwise take issue with the finding without identifying why it is
unreasonable. (Challenge to Findings 12, 31, 36, 46, 54-64, 139-53.)
Other challenges attack findings that do not undermine the ultimate
ruling of the state court. (Challenge to Findings 12, 36, 46, 13438.)

Still others are based on an incorrect interpretation of the

law. (Challenge to Finding 31, 36, 111-128, 130, 134-38.)

Several

are based, unpersuasively, on semantics. (Finding 13, 65-70, 78, 8082, 111-128, 130.) The Court rejects these challenges because they
merely reargue the issues in different ways and do not attempt to

47

overcome the state-court findings by clear and convincing evidence.
See Wood, 558 U.S. at 301 (holding that state-court factual
determination is not unreasonable merely because federal habeas court
would reach different conclusion in the first instance). Four
arguments merit a more detailed discussion, however, because they
are themes throughout this petition.
a. Nos. 54-64 (Dr. Leo). These findings conclude that defense
counsel’s decision not to call Dr. Leo to testify was a result of
reasonable professional judgment, not a conflict of interest. Barbee
asserts that these findings are contrary to the record because they
do not take into account that Ray could not testify that he had
informed Dr. Leo that “Mr. Barbee’s admission that he had helped move
the bodies did not indicate that he was necessarily guilty of the
murders.” The necessary inference here is that counsel should have
told his expert that his client was not guilty in order to generate
an opinion that the confession was, therefore, false. Barbee adjusts
this argument somewhat in his reply, asserting simply that counsel
did not tell Dr. Leo that Barbee had admitted to helping conceal the
bodies. (Doc. 77, p. 18-19.) This allegation is flatly contradicted
by the record.

Ray’s letter to Dr. Leo lays out all of Barbee’s

versions of what happened, including the version that Dodd committed
the murders and Barbee only “took the bodies and buried them.” (Doc.
66-6, p. 32-33.)

Barbee himself wrote a letter to Dr. Leo stating

that Dodd committed the murders and that Detective Carroll scared

48

him about the death penalty, so he confessed to the police, to Trish,
and to Theresa.

(SHR 84.) Clearly, Dr. Leo was aware of Barbee’s

claims of innocence and of having only moved the bodies.
Barbee next asserts that Ray gave false information to Dr. Leo
about Barbee’s whereabouts.

Ray testified, however, that he had

corrected this erroneous information and then asked Dr. Leo whether
the new information would alter his opinion. Dr. Leo said it would
not.

(Doc. 66-8, p. 21-22.)
Barbee’s remaining arguments are grounded in the assertion that

Dr. Leo did not receive information that underpins Barbee’s theory
that Dodd is the real murderer, suggesting that Mr. Ray intentionally
engineered an unfavorable outcome from Dr. Leo. In Mr. Ray’s letter
to Dr. Leo, counsel describes the romantic and working relationships
between Barbee, Trish, Lisa, Theresa, and Dodd.

It also sets out

Dodd’s confession to police. (Doc. 66-6, p. 32-33.) Barbee provides
no evidence that Dr. Leo was deprived, intentionally or otherwise,
of information that would have changed his opinion. Barbee’s circular
argument simply asks the Court to (1) presume that Barbee is innocent,
(2) deduce that his confession is, therefore, false (3) conclude that
Dr. Leo’s unfavorable opinion must, therefore, be due to counsel’s
withholding what he considers to be the critical evidence of his
innocence, and (4) conclude that the withholding of this evidence
is due to a conflict of interest.

49

b. No. 88-89, 91 (Negative information in mitigation report).
These findings assert that Mr. Ray instructed Maxwell to include
negative as well as positive information in her report because counsel
found this useful to the defense, not because of any conflict of
interest. The findings are supported by Ray and Moore’s testimony
that, without knowing all the negative information about a client,
they could improvidently put somebody on the witness stand who knew
something that would be devastating. (Doc. 66-8, p. 37, 56.) Barbee
nevertheless complains that these findings are misleading and “miss
the point” because Maxwell put negative information in a report that
was later given to the prosecution and used against Barbee.
Barbee explored this subject at the state hearing in an attempt
to demonstrate Ray’s disloyalty. Maxwell testified that she has had
extensive training through the Texas Defender Service and that they
have advised her to destroy her handwritten notes and, contrary to
counsel’s request in this case, put only positive information in her
final reports. (Doc. 66-7, p. 32, 39-40.) Maxwell apparently believed
that her report in this case had been disclosed to the State, but
counsel’s testimony shows that the prosecutors were not provided a
copy before trial. (Doc. 66-7, p. 40; Doc. 66-8, p. 37, 56.)

It

appears that the State received Maxwell’s report during the exchange
of evidence in the initial habeas proceeding. (Doc. 66-7, p. 48; SHR
64.) Dr. Price’s affidavit states that Maxwell’s mitigation report

50

was attached to Dr. Martin’s statement.8 (SHR 187.) Barbee therefore
fails to rebut the state court’s finding regarding counsel’s motive
for wanting negative information included in the mitigation report.
c. Nos. 111-128, 130 (Road-rage incident, opinion testimony).
Barbee challenges the state court’s findings about the road-rage
incident with Davis.

The potential exposure of this incident on

cross-examination was cited as one reason why counsel did not call
Davis as a character witness.

(Doc. 66-8, p. 25-26.)

Barbee takes issue with the state court’s findings because
Davis’s testimony at the writ hearing and in a 2010 supplemental
declaration described the incident as self-defense, which undermines
counsel’s stated reason for not calling Davis. (Doc. 66-3, p. 130;
Doc. 66-7, p. 52.)

But the testimony of Ray, Moore, and Maxwell

support the finding that, at the time of trial, Davis portrayed Barbee
as the aggressor with no “off button.” The state court was entitled
to credit the testimony of counsel and Maxwell rather than Davis,
and this Court may not reweigh the conflicting evidence on habeas
review.

See Kately v. Cain, 704 F.3d 356, 361 (5th Cir.), cert.

denied, 133 S. Ct. 2746 (2013) (concluding district court erred in
reweighing

conflicting

evidence).

Because

the

state

court’s

credibility determination was reasonable, it is also reasonable that
counsel chose not to take the risk of calling Davis to testify. To

8

Maxwell’s 25-page mitigation report is not part of the state-court records
filed with this Court.

51

the extent that Barbee complains that trial counsel remembered Davis’s
saying Barbee attempted “to kill” the other driver while Maxwell
reported only that Barbee had “no off button” and had to be pulled
off the other men, the Court sees this as a distinction without much
difference: either version would give the jury the impression that
Barbee is confrontational and willing to use violence.
Barbee argues that Ray’s concerns are a bogus, after-the-fact
pretext to justify his failure to present mitigating evidence through
Davis.

He asserts that all Ray had to do to avoid any harmful

testimony was ask “each prospective witness if they knew about it.”
He asserts, as a general proposition, that Barbee’s violent past
behavior was no reason to limit the examination of any of the
mitigation witnesses and that all witnesses should have been asked
whether, in their opinion, Barbee would be a future danger.

(Doc.

61, p. 212.) This argument overlooks the applicable law.
Ray was not concerned that his potential witnesses knew about
the road-rage incident. He was concerned that the State knew about
it, and that a question seeking a witness’s opinion about Barbee’s
propensity for future violence would open the subject to crossexamination.

See, e.g., Wilson v. State, 71 S.W.3d 346, 350 (Tex.

Crim. App. 2002) (holding that witness who testifies to capital
defendant’s good character may be cross-examined to test the witness’s
awareness of relevant specific instances of conduct). Ray explained
at length that such a witness could be impeached with good-faith

52

questions about his knowledge of Barbee’s bad acts, and it does not
matter what the witness’s answer is; the jury would hear the damaging
questions.

(Doc. 66-8, p. 28, 57.)

Ray thought it was extremely

likely that the prosecution knew about the road-rage incident (and
other things Barbee had done, like animal cruelty and vandalism).
He believed it would have been a big gamble to put Davis on the
stand–-even “ineffectiveness, per se”--despite his having “a lot of
nice things to say about Mr. Barbee.” (Doc. 66-8, p. 25-26.) Barbee
provides no authority that the state court’s findings on this issue
are incorrect, much less unreasonable.
d. Nos. 134-138 (Memorandum of Understanding). These findings
deal with a Memorandum of Understanding that set out counsel and
Barbee’s positions on the main issues in the case. (Doc. 66-3, p.
169.) Because Mr. Ray used the memorandum to defend Barbee’s claim
of ineffectiveness at the state habeas hearing, Barbee concludes this
is proof of counsel’s conflict of interest. Barbee presents no facts
to dispute that Barbee willingly signed the memorandum after reading
and editing it, nor does he demonstrate that it contains inaccurate
facts.

He fails to show that the memorandum is anything more than

a practical tool to preserve facts in anticipation of the inevitable
post-conviction litigation that occurs in every death-penalty case.
Barbee fails to rebut the state-court finding that counsel’s
preparation of the memorandum was not a conflict of his interests
with Barbee’s interests.

53

In sum, Barbee does not argue that the state-court ruling is
unreasonable in light of the evidence. Rather, he picks and chooses
from the facts in the record to support his claim and simply disagrees
with the state-court ruling. This Court has reviewed the facts that
Barbee cites correctly with the facts that he omits, and cannot
conclude that the state-court ruling was based on an unreasonable
determination of facts.

E.g., Hyde v. Branker, 286 F. App’x 822,

832 (5th Cir. 2008) (rejecting argument that “picks and chooses from
the[] facts to support [Petitioner’s] ineffective assistance claim”).
The Court will not further parse the individual findings here because
they did not result in an unreasonable state-court decision. See
Morrow v. Dretke, 367 F.3d 309, 314 (5th Cir. 2010) (citing Santellan
v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001)) (holding that it is
the state court’s ultimate decision that is tested, not every jot
of its reasoning).
2.

State-court legal conclusions (claim 2)

Barbee’s petition contains a section entitled “The 2254(d)(1)
analysis.” (Doc. 61, p. 215.) The section states, “Petitioner has
shown at length that there was an actual conflict here and that his
interests were prejudiced by various acts and omissions of the trial
attorneys. The evidentiary hearing in this matter brought out clearly
the many ways in which the trial attorney’s interests were put ahead
of their client’s interests.” Barbee concludes that both the Sullivan

54

and Strickland tests have been met and then refers to an earlier
“Section C” of his argument in support.
Section C contains the argument that a conflict of interest is
demonstrated by the alleged failings of counsel, failings rejected
by the state court and addressed by this Court above. Section C does
not address how the state-court ruling is an unreasonable application
of federal law.

It is an exact copy of the substantive argument

Barbee presented in his original petition, prior to the state-court
ruling on this very issue. (Doc. 24, p. 74-83.) Accordingly, Barbee
fails to show that the state-court ruling was based on an unreasonable
application of clearly established federal law.
3.

Conclusion (claim 2)

The state courts did their job during abeyance.

Barbee tried

to demonstrate that trial counsel made decisions harmful to his client
that could only be explained by a conflict of interest. But the trial
attorneys testified and provided reasons for their decisions. Counsel
and Judge Gill denied the existence of any agreement, implied or
otherwise.

Barbee was able to cross-examine his trial counsel and

the trial judge and present testimony from Maxwell and others in an
attempt to establish something more than a hypothetical conflict of
interest. The claim does not present an actual conflict that forced
counsel to choose between his self-interest and his duty to his
client. Furthermore, Barbee did not present evidence that some
“plausible alternative defense strategy or tactic could have been

55

pursued” but for the alleged conflict. See Perillo, 205 F.3d at 781
(internal quotation marks and citation omitted). Thus, Barbee failed
to establish that an actual conflict of interest adversely affected
counsel’s performance. See, e.g., Russeau v. Stephens, 559 F. App'x
342, 358 (5th Cir.), cert. denied, 135 S. Ct. 338, 190 L. Ed. 2d 110
(2014).
The state court concluded that Barbee did not show that an actual
conflict of interest affected counsel’s performance under Cuyler v.
Sullivan. (Doc. 66-5, p. 152.a) The state court also concluded that
Barbee did not show deficient performance or the prejudice required
under the usual Strickland standard. (Doc. 66-5, p. 153.) This Court
has addressed Barbee’s arguments and concludes that Barbee has failed
to demonstrate that the state-court ruling involved an unreasonable
determination of the facts or an unreasonable application of
Strickland or Sullivan.

VI.
A.

See § 2254(d). The Court denies claim 2.

PRETRIAL ASSISTANCE OF COUNSEL & BRADY (CLAIMS 3, 19)
Counsel’s challenge to recorded confession (claim 3a)

Claim 3a asserts that trial counsel provided ineffective
assistance for failing to properly challenge the “veracity of the
video recording of Mr. Barbee’s interrogation,” and contends that
it was “altered and edited” and “inexplicably stops” as soon as the
detectives accuse Barbee of the murders. (Doc. 61, p. 221.) In his
Reply, however, he clarifies that he makes no “alteration” claim,

56

only a claim that the recording has unexplained gaps and “stops and
starts.” (Doc. 77, p. 26.) Barbee raised this claim in his original
state habeas application, and the state court denied it on the merits.
(SHR 18, 203, 217.)
Barbee

contends

the

state-court

ruling

is

based

on

an

unreasonable determination of facts because the state court (1) relied
on Dr. Leo’s opinion, which was ill-informed for the reasons addressed
in claims 1 and 2, and (2) falsely assumed this complaint is one of
“alteration” when it is in fact a complaint of “unexplained gaps”
and “stops and starts.”
The Court has already rejected the contention that counsel
undermined the reliability of Dr. Leo’s opinion by failing to provide
certain information. Counsel did not misinform Dr. Leo.

Barbee

himself wrote to Dr. Leo, moreover, and said his confession was false
because Detective Carroll had scared him into confessing. (SHR 8588.) The Court now turns to the reasonableness of the state court’s
ruling that counsel provided adequate representation in challenging
Barbee’s confessions.
Barbee does not reveal how the state court’s characterization
of this complaint as an “alteration” claim matters to its resolution.
But accepting as correct Barbee’s interpretation of his complaint
as one of “unexplained gaps” and “stops and starts,” the Court
nevertheless concludes that the state court’s ruling was not
unreasonable.

57

1. Facts from trial
At a two-day hearing on the motion to suppress, Mr. Ray presented
the testimony of Barbee’s wife Trish, Tyler Police Detective Cashell,
and four Fort Worth police officers, including Detective Carroll.
Ray moved to suppress all of Barbee’s statements under the Fifth
Amendment, Miranda v. Arizona, and the applicable Texas statute.
Ray believed the confession was a critical piece of evidence. (SHR
67.)

Seven months prior to the hearing, Ray met with Detective

Cashell and made a recording that he would later use to examine
Cashell at the suppression hearing.

(22 RR 32-35, 38.)

Thus, it

appears that Ray was aware of the importance of this issue and began
his investigation early.
At the suppression hearing, the parties freely addressed the
“discrepancy” of stops and starts. (15 RR 15-16.) The first 8-minute
break was taken to photograph Barbee’s lower body because the person
who had fled from the deputy sheriff two days earlier had run through
briars.

The recording was stopped because Barbee had to take off

his pants for the photographs. (15 RR 16-19, 61-62.) On the recording,
Detective Carroll announces that he is stopping the tape and states
why. (SX PT-2, title 1 at 00:28:12.)

Detective Carroll testified

that he spoke to Barbee during this break about whether he was the
man on the deputy’s squad car videotape.

(15 RR 16-18, 20.)

The next part of the recording continues with a discussion about
what happened when Barbee was stopped by the deputy sheriff at 3:30

58

in the morning on Saturday. (15 RR 18-19.) On the recording, Barbee
tells the officers that Dodd came to pick him up after he fled from
the deputy. Detective Carroll then announces that he is stopping the
recording to go ask Dodd about that. (SX PT-2, title 2 at 00:04:50.)
Detective Carroll testified that, during this break, Detective Jamison
was making Barbee mad, so he asked Jamison to leave the interview
room. (15 RR 20-22.) After listening to Dodd’s interview, Detective
Carroll popped his head into Barbee’s interview room and asked, “Does
FM 407 ring a bell or sound familiar to you?”
to let Barbee think about that for a while.

He then walked out

He did not go back in.

(15 RR 22, 64-65.) Carroll testified that “FM 407" was the area where
the bodies were later found buried.

(22 RR 18, 62.)

Carroll testified that Barbee subsequently opened the door and
asked to use the restroom.

(15 RR 65.) Over the course of 45-60

minutes, Barbee made the unrecorded confession to Carroll in the
bathroom, admitting that he killed Lisa and Jayden after making a
plan with Dodd to do so.

(15 RR 24-32.)

Carroll testified that he

and Barbee then left the bathroom and went to an office to map the
location of the burial site on a computer.

(15 RR 33-34.)

The recording then restarts in the interview room. (15 RR 35.)
Barbee is crying. Detective Carroll gives the Miranda warnings again,
and Barbee states, “I’d like to get one,” meaning a lawyer, and asks
if that would be bad.

After some discussion, however, Barbee

continues with the interview.

Carroll recites that they have been

59

talking and have agreed not to get into what Dodd did. Barbee then
points to the handheld recorder and signals that he would like to
stop the recording. Carroll turns off the recording. (SX PT-1, title
1); (15 RR 36-37.)

Carroll testified that Barbee wanted to ask

Carroll off-camera if he could tell Lisa’s family, face-to-face, what
had happened.

Carroll told Barbee he could not promise anything.

(15 RR 35-36.) (SX PT-1, title 2, 00:01:01.) The recording begins
again and Barbee gives a tearful statement admitting he killed Lisa
and Jayden and buried the bodies. When the interview concludes, Trish
comes into the room and converses with Barbee for more than thirty
minutes.

(15 RR 35-37.) (SX PT-1, title 2.) The content of their

conversation is summarized in claim 1.
The following morning, Barbee directed two detectives to the
location of the bodies. The bodies were found as Barbee described,
buried together in a shallow grave not large enough to conceal them.
(15 RR 39-41, 45, 70-71.)
Judge Gill suppressed the portion of the recording that followed
Barbee’s request for a lawyer.

Judge Gill admitted the unrecorded

statements Barbee made in the bathroom because they contained facts
regarding the location of the bodies that were later found to be

60

true.9 He also admitted the statements made the next morning because
Barbee had reinitiated contact with the police.

(22 RR 78-79.)

2. Facts from state habeas proceedings
Counsel’s affidavit provided in the original habeas proceeding
states that they viewed the recordings of both Barbee and Dodd and
had no reason to believe Barbee’s video had been altered other than
the starts and stops.

(SHR 68.)

Ray said that, if the police or

the district attorney had deleted a portion of the recording, they
had no way of knowing that fact. (SHR 68-69.) To the extent Barbee
could have provided contradicting information about what occurred
during the gaps on the recording, he refused to testify. (SHR 68-69,
79.)
3. Analysis
Barbee challenges the state-court ruling by asserting that,
contrary to counsel’s affidavit, counsel did not give him the option
of testifying. Under section 2254(d), however, this Court asks only
whether the state court’s ruling was reasonable given the facts before
it. Counsel’s affidavit and the Memorandum of Understanding together
demonstrate that counsel adequately informed Barbee of his right to
testify and that Barbee’s decision not to testify was knowingly made.
(SHR 79, ¶ 9.) Barbee provided no evidence to the contrary. The state

9

Under Texas law, unrecorded oral statements are inadmissible unless the
statement contains assertions of facts or circumstances that are found to be true
and “conduce to establish the guilt of the accused” such as the finding of stolen
property or the instrument of the crime. See Tex. Code Crim. Proc. Ann. art. 38.22,
§ 3(c).

61

court was entitled to believe the testimony of counsel, and its
factual determination was not unreasonable.

See Kately, 704 F.3d

at 361.
Counsel persuaded the trial court to suppress the last portion
of Barbee’s recorded confession. Even without the benefit of Barbee’s
testimony at trial, moreover, Ray introduced cellphone records and
department manuals so that he could argue that Detective Carroll’s
testimony about the unrecorded bathroom confession was not credible.
(25 RR 11-16; DX 2, 4.) Barbee fails to identify what additional
investigation or strategy counsel should have pursued to challenge
his confession. He fails to argue how it would have made a difference
given the other evidence of guilt.

This complaint against counsel

is grounded on the unsupported assertion that Barbee was coerced into
confessing.

But his willingness to assert in a petition what he

refused to testify about at trial does not make the state habeas
court’s conclusion unreasonable or counsel ineffective.

Claim 3a

is denied.
B.

Brady claim (claim 19)

In related claim 19, Barbee contends that the state court
unreasonably denied his claim that the police violated his rights
under Brady v. Maryland, 373 U.S. 83 (1963), by providing “only an
edited version” of the confession recording.

(Doc. 61, p. 472.)

He asserts that he “is informed, believes and therefore alleges that
these tapes were edited to remove those portions of Mr. Barbee’s

62

interrogation during which he was coerced into confessing.”

(Doc.

61, p. 473.) Respondent contends the state court reasonably overruled
this claim in Barbee’s initial state application. (SHR 222.)
The prosecution violates a defendant’s due process rights when
it withholds evidence that is favorable to the defendant and material
either to guilt or punishment, regardless of the good or bad faith
of the prosecutor. See Brady, 373 U.S. at 88. To prove a Brady violation, the defendant “must show that ‘(1) the prosecution did not
disclose the evidence; (2) the evidence was favorable to the defense;
and (3) the evidence was material.’” United States v. Davis, 609 F.3d
663, 696 (5th Cir. 2010) (quoting United States v. Fernandez, 559
F.3d 303, 319 (5th Cir. 2009)). “Evidence is material if there is
a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.”
Id. at 696 (quoting United States v. Severns, 559 F.3d 274, 278 (5th
Cir. 2009)). “A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” Id.
The state court’s rejection of this claim in the initial habeas
proceeding is supported by the affidavits of the prosecutor and trial
counsel. The prosecutor averred that the Fort Worth detectives made
him a copy of the original recording while he waited, that they
represented to him that the recordings were complete copies of the
originals, and that he has no reason to believe their assertion was
untruthful. (SHR 191-92.) Trial counsel stated they had no reason

63

to believe the recording was altered beyond being stopped and started
and that Barbee’s allegations were not supported by any fact known
to counsel.

(SHR 68.)

In his Reply, Barbee contends that the state-court findings are
flawed because he did not have the opportunity to cross-examine the
prosecutor and police detectives.

Barbee does not allege or show

that he sought an opportunity to cross-examine the prosecutor and
police detectives in the initial state habeas proceedings.

His

failure to develop this issue in the state court does not render the
state court’s factual determination unreasonable.

See § 2254(e).

And, furthermore, he provides no objective, factual basis to conclude
that the detectives or the prosecutor may have provided false
testimony.
Barbee also complains that the state court wrongly interpreted
this claim as one of “alteration” rather than “omission.” (Doc. 77,
p. 56-57.)10 Barbee’s own pleadings refer to the allegedly missing
portions of the recording as an “alteration.” To the extent the state
court did likewise, there is no unreasonable error. In this Circuit,
federal habeas courts focus on the propriety of the ultimate decision
reached by the state court and do not evaluate the quality, or lack
thereof, of its supporting written opinion. See Maldonado, 625 F.3d
at 239; Morrow, 367 F.3d at 314.
10
He also complains that the state court findings “latch onto Dr. Leo’s
letter,” which he claims provided an uninformed opinion that the confession was
more likely to be true than false. (Doc. 61, p. 478.) The Court has already
addressed the “Dr. Leo” arguments in full.

64

Barbee fails to demonstrate that the state court’s denial of
his Brady claim was unreasonable for the simple reason that he
provides no factual basis--let alone the “clear and convincing
evidence” required under the AEDPA--for the Court to conclude that
Brady material might exist. See Schlang v. Heard, 691 F.2d 796, 799
(5th Cir. 1982) (holding that mere conclusory statements do not raise
a constitutional issue in a habeas case).
Barbee complains, however, that he was denied funding to advance
this claim in federal habeas proceedings. (Doc. 61, p. 473.)

The

Court remains convinced that it correctly denied his request to fund
a fishing expedition under Brady. Despite being given the opportunity
to supplement his request for funds prior to abeyance, Barbee failed
to provide any meaningful specificity as to the precise information
he expected to develop through such assistance. (Doc. 22, p. 8-10.)
Barbee presented no new evidence in support of the claim during
abeyance, where it was dismissed.

He filed no further funding

requests in this Court post-abeyance and has yet to provide objective,
factual support for his claim that Brady material may exist. Claim
19 is denied.
C.

DNA testing (claim 3b)

In claim 3b, Barbee contends “it does not appear that all the
DNA samples that were taken [from the crime scenes] were tested,”
and that counsel was therefore ineffective for failing to complete
the DNA testing prior to trial.

Barbee complains that this claim
65

cannot be proven because he was denied funding for DNA testing,
presumably, in state court. He makes the claim in order to preserve
it for future litigation.

(Doc. 61, p. 228-29.)

Respondent asserts the claim is defaulted because it was raised
in the subsequent state application and dismissed as an abuse of the
writ. See McGowen, 675 F.3d at 499. Barbee responds that the
procedural default should be excused because state habeas counsel,
Don Vernay, rendered ineffective assistance in failing to present
the claim in the initial state application. While it is true that
the ineffective assistance of initial state habeas counsel may excuse
a procedural bar on “substantial” claims of ineffective assistance
of trial counsel, Barbee has not shown that this claim against trial
counsel is substantial.
A claim is substantial if it has “some merit.” See Trevino, 133
S. Ct. at 1921; Martinez, 132 S. Ct. at 1318.

Barbee does not

identify any sample for testing. Moreover, the DNA analyst’s trial
testimony did not inculpate Barbee.

Both victims’ sexual assault

kits tested negative for semen and all samples tested by the analyst
were either inconclusive or excluded both Barbee and Dodd as contributors. (24 RR 29-33, 51-53, 60.) Yet the jury found Barbee guilty.
Barbee fails to explain how yet another DNA test that excludes him
as a contributor could exonerate him when all the others did not.
Claim 3b is procedurally barred or, alternatively, lacks merit.

66

VII.
A.

COUNSEL’S ASSISTANCE AT THE GUILT PHASE (CLAIMS 4a-d)
Lack of medical testimony (claims 4a(i) and 4a(ii))

Barbee complains that trial counsel did not effectively present
a case for actual innocence through two kinds of expert testimony.
He contends the claim was exhausted in the original state writ application and that the state court’s ruling was unreasonable.

(Doc.

61, p. 234-35.) Respondent contends this claim is defaulted because
it was raised in the subsequent state application and dismissed as
abusive.

(Doc. 68, p. 95.)

The claim in Barbee’s initial state application asserts that
trial counsel abandoned Barbee by “confessing Mr. Barbee’s guilt to
the jury during closing argument without his client’s knowledge [or]
consent.”

(SHR 22.)

While the present claim is also a claim of

ineffective assistance during the guilt phase, it is not the substantial equivalent because it rests on a distinct factual basis:

the

failure to rely on experts. See Whitehead v. Johnson, 157 F.3d 384,
387 (5th Cir. 1998)(in exhaustion context, claim is not the
“substantial equivalent” if it presents new legal theories or new
factual claims).
This claim was raised in Barbee’s subsequent state application
during abeyance.

(Doc. 66-1, p. 92.)

It was dismissed as abusive

under article 11.071, section 5, of the Texas Code of Criminal

67

Procedure. (Barbee, 2013 WL 1920686, at *1.) It is therefore subject
to procedural default in federal court. See McGowen, 675 F.3d at 499.
Barbee responds that any failure to bring the claim “fully” in
the initial state proceedings is excused under Trevino. See Trevino,
133 S. Ct. 1911. The exception to procedural bar in Trevino does not
help Barbee because, as discussed below, he fails to show that the
sub-claims against trial counsel have some merit and are therefore
“substantial.” See Martinez, 132 S. Ct. at 1318.
1.

Cause of death (sub-claim 4(a)(i))

In this sub-claim, Barbee contends counsel were ineffective
for failing to use experts to rebut the assistant medical examiners’
testimony about the cause of death.

(23 RR 136, Dr. Mark Krouse;

24 RR 154, Dr. Lloyd White.) Barbee presents no evidence supporting
this claim.

The record shows, moreover, that both trial counsel

personally interviewed the medical examiners months before trial in
preparing for this case.

(23 RR 198; 24 RR 167.)

Barbee claims that he is unable to present evidence of counsel’s
alleged ineffectiveness because the Court denied his request for
expert assistance from a pathologist/coroner. The Court denied
Barbee’s request for an expert to evaluate the testimony of the
medical examiners because Barbee failed to show a reasonable necessity
for the assistance requested.

(Doc. 21, 23.)

Barbee failed to

provide any meaningful specificity as to the information he expected
to develop through such an expert, even when given the opportunity

68

to supplement his request for funds.

(Doc. 22, p. 13-14.)

Barbee

made no request for funds post-abeyance. Because Barbee sought expert
assistance for a fishing expedition on what was then an unexhausted
claim, the Court remains convinced that the request was properly
denied.
2.

Sub-claim 4(a)(i) has no merit.
Neuropsychological evidence (sub-claim 4(a)(ii))

In this sub-claim, Barbee complains that trial counsel did not
present neuropsychological testimony at the guilt phase regarding
the effect of his head injury or frontal-lobe injuries and impairment.
(Doc. 61, p. 233.)

A similar complaint was made in claim 3 of the

original state application regarding trial counsel’s failure to
present such evidence at the punishment phase.

(SHR 24, 200.)

It

was supported by the affidavit of Dr. Martin (SHR 39.) and refuted
by the State with Dr. Price’s affidavit (SHR 182.)
Although the claim before this Court relates to the guilt phase
of trial, in support of it Barbee argues that the state-court ruling
on the punishment-phase claim was an unreasonable determination of
the facts. (Doc. 61, p. 234.) He argues specifically that: (1) the
state court rubber-stamped the State’s proposed findings, (2) Barbee’s
unwillingness to accept responsibility, if true, does not justify
trial counsel’s strategic decision to forego head-injury evidence,
and (3) trial counsel’s strategy cannot be reasonable because neuropsychiatric testing was not done, despite Maxwell’s recommendation.
The Court does not find these assertions persuasive.

69

First, 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). Second, as trial counsel stated in his affidavit
and his testimony, the presentation of head injury or other “excuse”
evidence at the guilt phase presupposes that Barbee did something
to excuse, and it would have been inconsistent with Barbee’s assertion
that he did not commit the offense.

To the extent Barbee contends

otherwise, he appears to argue that counsel could have presented head
or brain injuries in support of a “diminished capacity” theory at
guilt due to a lack of impulse control. But Texas does not recognize
any affirmative defenses other than insanity based on mental disease,
defect, or abnormality.

See Ruffin v. State, 270 S.W.3d 586, 593

(Tex. Crim. App. 2008) (holding that diminished mental-state defenses,
that exonerate or mitigate an offense because of a person’s supposed
psychiatric compulsion or inability to engage in normal reflection
or moral judgment, do not exist in Texas).
Third, the record shows that trial counsel’s investigation of
Barbee’s head injuries was professionally reasonable even though
counsel did not hire a neuropsychologist.

Barbee’s assertion that

trial counsel ignored Maxwell’s advice does not alter this conclusion.
As trial counsel pointed out, Maxwell is not a doctor. (Doc. 66-8,
p. 25.)

Trial counsel retained three mental-health professionals,

anyone of whom could have recommended an additional neuropsychological

70

assessment.

They did not.

See Couch v. Booker, 632 F.3d 241, 246

(6th Cir. 2011)(“Trial counsel may rely on an expert’s opinion on
a matter within his expertise when counsel is formulating a trial
strategy.”). In fact, none of the experts found anything wrong with
Barbee due to head injuries.

The conclusion of these experts was

confirmed by Dr. Price in post-conviction proceedings.

(SHR 182.)

(Doc. 66-8, p. 62-63.) Dr. Martin’s lone declaration to the contrary
does not mean that the trial experts were all wrong or that trial
counsel were ineffective.

See Hinton v. Alabama, 134 S. Ct. 1081,

1089 (2014) (per curiam) (“The selection of an expert witness is a
paradigmatic example of the type of ‘strategic choic[e]’ that, when
made ‘after thorough investigation of [the] law and facts,’ is
‘virtually unchallengeable.’”).

This sub-claim has no merit.

3. Conclusion as to claim 4a
The sub-claims in 4a are not “substantial” and are therefore
procedurally barred.

Alternatively, they have no merit.

Claim 4a

is denied.
B. Counsel’s closing argument (claim 4b)
Barbee contends that counsel provided ineffective assistance
when they conceded Barbee’s guilt during jury argument without his
permission. He characterizes this as abandonment by counsel, subject
to the Sixth Amendment standard in United States v. Cronic, 466 U.S.
648, 659 (1984) (eliminating Strickland’s prejudice requirement when
counsel entirely fails to subject the prosecution’s case to meaningful
71

adversarial testing).

Respondent does not dispute that the claim

is exhausted and subject to review under § 2254(d). Respondent
contends, however, that Cronic does not apply and that the state
court’s

rejection

of

the

claim

under

Strickland

was

not

unreasonable.11
1. The state court’s legal conclusions (claim 4b)
Initially, Barbee fails to show that the state court, in applying
Strickland rather that Cronic to this issue, unreasonably applied
clearly established federal law.

(SHR 216.)

For Cronic to apply,

the attorney’s failure to subject the state’s case to meaningful
adversarial testing must be complete. Wright v. Van Patten, 552 U.S.
120, 124 n.1 (2008).

Cronic does not apply where counsel failed to

participate in only parts of trial, such as where counsel did not
present closing argument. E.g., Bell v. Cone, 535 U.S. 685, 696-97
(2002) (holding that Cronic does not apply in death-penalty case where
counsel did not present mitigating evidence and waived closing statement); Haynes v. Cain, 298 F.3d 375, 380-382 (5th Cir. 2002) (holding
that Strickland, not Cronic applies to claim where counsel conceded
in opening statement that defendant kidnaped, raped, and robbed the

11

Barbee also asserts that the state-court findings are not entitled to
a presumption of correctness under § 2254(e)(1) because the state habeas judge
was different from the trial-court judge. His supporting authority predates the
AEDPA, however, and he fails to demonstrate or even argue that this rule is still
good law. 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").

72

victim, but did not kill her). So the state court correctly analyzed
the claim under Strickland rather than Cronic.
2. The state court’s determination of facts (claim 4b)
The

appropriate

inquiry

under

Strickland

focuses

on

the

adversarial process, not on the accused’s relationship with his lawyer
as such.

Cronic, 466 U.S. at 657 n.21.

If counsel is a reasonably

effective advocate, he meets constitutional standards irrespective
of his client’s evaluation of his performance, and courts therefore
attach no weight to either the client’s expression of satisfaction
with counsel’s performance at the time of his trial or to his later
expression of dissatisfaction. See id. (citing Jones v. Barnes, 463
U.S. 745 (1983); Morris v. Slappy, 461 U.S. 1 (1983)).
Where, as here, counsel has conceded guilt of a lesser-included
offense, Barbee simply bears the burden to prove that this decision
was objectively unreasonable under Strickland. McNeill v. Polk, 476
F.3d 206, 217 (4th Cir. 2007). Judicial review of defense counsel’s
summation is highly deferential and doubly-deferential when conducted
“through the lens of federal habeas.” Yarborough v. Gentry, 540 U.S.
1, 6 (2003). And, consistent with the Strickland standard of giving
great weight to trial counsel’s judgment on strategy and approach,
“[t]actical decisions, made on an informed and reasoned basis, do
not fall below Strickland standards simply because they do not succeed
as planned." Jones v. Butler, 837 F.2d 691, 693-94 (5th Cir. 1988).

73

In this case, Barbee mischaracterizes the complained-of closing
argument.

Counsel did not concede Barbee’s guilt when he did not

dispute that Barbee killed Jayden. Counsel reiterated that capital
murder requires two knowing or intentional murders, he reminded the
jury of those definitions, and then he argued that Lisa’s death did
not fit the definition because Barbee’s conduct was not intentional
or knowing–-he simply held her down too long. (25 RR 10, 18.)

This

argument capitalized on testimony elicited from the medical examiner
during cross-examination that the more pregnant the victim, the less
time it would take to die, and that he could not rule out that Barbee
held Lisa down for only thirty seconds.

(23 RR 189, 200.) This was

a reasonable argument, under Texas law, that Barbee was not guilty
of capital murder.

See Tex. Penal Code Ann. § 19.02(b) (defining

murder as causing the death of a person intentionally or knowingly),
§ 19.03(a)(7) (defining capital murder as two murders committed during
the same criminal transaction). (25 RR 8-18.) The record also
reflects, incidentally, that Ray explained his argument to Barbee
before he presented it to the jury.

He did not ask Barbee’s

permission to make it (nor did he have to), and Barbee did not tell
him not to make it.

(Doc. 66-8, p. 6.)

Barbee contends the state-court ruling was factually unreasonable
because the record shows that Barbee was steadfast in his assertions
to counsel that he was innocent. The record flatly refutes the implication that Barbee has always maintained his innocence.

74

In the

recording of his police interview, Barbee first told the detective
that he had not seen Lisa in several months. (SX PT-2, title 1 at
00:17:00, et seq.) In his bathroom confession to Detective Carroll,
Barbee stated that he killed Lisa and Jayden after making a plan with
Dodd to do so. (24 RR 103-04.) In his recorded conversation with
Trish, Barbee stated that he accidentally held Lisa down too long.
(24 RR 119; SX PT-1, title 2 at 00:27:25, et seq.)

He later told

Theresa the same story. After that, Barbee recanted his confession.
(66-8, p. 46.)
In light of the above, the assertion that Barbee was consistent
to counsel about his limited role in the offense is irrelevant:
counsel necessarily had to deal with all the statements and information known to the prosecution in formulating a reasonable trial
strategy. And he had to do this without Barbee’s testimony. Counsel’s
strategy in closing argument was within the realm of reasonable
professional assistance.

It coincided with the powerful evidence

of Barbee’s recorded confession to Trish that he held Lisa down too
long. It was corroborated by the medical examiner’s concession that
Lisa may have been held down for only thirty seconds before she died.
(23 RR 201; 25 RR 14-15.)

Counsel refuted the unrecorded bathroom

confession (in which Barbee confessed to planning the murder) by
pointing out Detective Carroll’s demeanor while testifying, his lack
of a timely written report, his willingness to lie to get the
confession, and his inability to find the bodies based on what Barbee

75

told him in bathroom--all elicited by counsel on cross-examination.
(24 RR 135-45, 152; 25 RR 15-16.) If the jurors believed the recorded
confession to Trish over the unrecorded confession to the detective,
counsel provided a theory under which they could convict Barbee of
a lesser offense and avoid a death sentence. (2 CR 391, lesserincluded offense instruction.)

The state court’s ruling upholding

these strategic choices was objectively reasonable.
Barbee’s assertion that he was prejudiced is also unpersuasive.
To show prejudice in state court, Barbee had to show a reasonable
probability, sufficient to undermine confidence in the outcome, that
the innocence theory would have generated a different trial result.
See Neal v. Cain, 141 F.3d 207, 214-15 (5th Cir. 1998) (holding that
petitioner’s complaints regarding counsel’s failure to raise specific
defenses did not satisfy prejudice prong of Strickland where proposed
defenses were without merit). In this proceeding, Barbee has to show
that the state court’s ruling on this issue was objectively
unreasonable. As discussed in claim 1, however, his innocence theory-that Dodd framed Barbee for the murders so that he could financially
benefit from Barbee’s incarceration or execution--makes little sense.
Dodd was already living in Theresa’s house; Theresa and Barbee were
already divorced. Even assuming Dodd had a financial motive to get
Barbee out of way, it would have made more sense to kill Barbee rather
than frame him for a double murder. It certainly made no sense that,
after framing Barbee, Dodd would come back and assist him in getting

76

rid of the bodies and fleeing law enforcement. It fails to account
for the fact that Barbee, not Dodd, had the motive to kill Lisa and
fails to account for the fact that Dodd could not have known Barbee
would confess to the police, to his wife, and to his ex-wife.
3. Conclusion (claim 4b)
Barbee does not show that the state-court rulings under
Strickland regarding (1) the lack of deficient performance during
closing argument and (2) lack of prejudice, were unreasonable. Claim
4b is denied.
C.

Counsel’s use of phone records (claim 4c)

Barbee complains counsel was ineffective when he called his
investigator to testify about records obtained from the City of Fort
Worth regarding cellphone calls made by Detectives Carroll, McCaskill,
and Jamison during their investigation of the murder. (24 RR 174-75.)
Barbee asserts that counsel failed to explain the significance of
these records or argue them to the jury, so the jury had no way of
ascertaining their evidentiary value. Respondent contends the claim
is barred under Coleman because it was raised for the first time in
Barbee’s subsequent state application and dismissed as abusive.
Barbee asserts that any default is excused under Trevino because state
habeas counsel was ineffective for failing to raise this claim in
the initial state habeas application.
The claim is defaulted because Barbee fails to show it is
“substantial” as required to excuse procedural default under Trevino.
77

Counsel used the cellphone records to discredit Detective Carroll’s
testimony about what Barbee said during the bathroom confession.
Carroll testified that, during this trip to the bathroom, Barbee
admitted that he and Dodd planned the murder because Lisa was going
to ruin him. (24 RR 103-06.) Carroll further testified that Barbee
gave accurate information about the location of the bodies during
this confession.

(24 RR 106-08.)

Yet he admitted on cross-

examination that the police could not find the bodies that evening.
(24 RR 151-52.) Ray emphasized his testimony in jury argument, using
the cellphone records to postulate that the detectives were trying
to find the bodies but could not because Detective Carroll’s entire
testimony about the bathroom confession was untrue:
The problem with that is [Carroll] said he knew where those
bodies were[,] based on the statement that Stephen had
given him in the bathroom in the Tyler Police Department,
and yet as many times as [Carroll] called Detective
Thornton, his boss, he didn’t tell him that. Because if
he had, they would have found those people.
(25 RR 12.) Barbee makes assertions, but no argument, that counsel’s
use of the cellphone records was below reasonable professional
standards.

In fact, it appears that, after successfully moving to

suppress Barbee’s recorded confession, counsel made a reasonable,
multi-faceted

effort

to

discredit

Carroll’s

testimony

of

the

unrecorded confession. In addition to using the cellphone records,
counsel

also

attempted

to

discredit

Carroll’s

testimony

by

highlighting his demeanor while testifying, his lack of a timely

78

written report, and his willingness to lie to get the confession.
(24 RR 135-45, 152; 25 RR 15-16.)
Barbee fails to assert prejudice from this alleged error, and
the Court can find none. Counsel simply gave the jury a reason not
to believe Detective Carroll’s incriminating testimony. Because this
claim has “no merit,” Barbee fails to show that it is “substantial.”
Claim 4c is denied because it is procedurally barred and, in the
alternative, has no merit.
D.

The medical examiners’ testimony (claim 4d)

Barbee asserts that counsel was ineffective for failing to object
to

the

medical

examiners’

testimony,

which

he

contends

speculative, based on conjecture, and very prejudicial.

was

Barbee

concedes that this complaint was brought for the first time in
Barbee’s subsequent state application and dismissed as abusive. (Doc.
61, p. 246.)
Trevino.

He contends that any default should be excused under

The Court concludes, for the reasons stated below, that

the claim is not substantial as required by Trevino.
The speculative testimony of which Barbee appears to complain
concerns the possible causes of the victims’ injuries.

This issue

was not discussed in counsel’s original affidavit nor did Barbee
question counsel about it at the subsequent writ hearing.

It goes

without saying that, in the absence of any evidence showing why trial
counsel decided not to object (or otherwise showing the decision was
presumptively unreasonable), Barbee fails to overcome the presumption

79

of reasonableness that is usually afforded counsel’s strategic
decisions.

See Titlow, 134 S. Ct. at 17.

Furthermore, a reviewing court is required to affirmatively
entertain the range of possible reasons trial counsel may have had
for not objecting.

Pinholster, 131 S. Ct. at 1407.

The Court need

not look far. Testimony as to the various possible causes of injuries
does not appear to be erroneous where the indictment alleges multiple
manner and means for each victim.

See Sanchez v. State, 376 S.W.3d

767, 774 (Tex. Crim. App. 2012) (holding that, because indictment
permitted a conviction under four alternative manner and means, the
State could obtain a conviction if any of the alternatives were
proven). The indictment here alleges two alternative manner and means
for each victim’s death--by smothering Lisa with the weight of the
defendant’s body, smothering Jayden with his hand, and smothering
both victims with an object or means “unknown to the grand jury.”
(1 CR 2.)

Thus, trial counsel could reasonably conclude that

testimony opining on the possible causes of the victims’ injuries,
one of which was “unknown,” was not objectionable, and counsel is
not ineffective for failing to lodge a meritless objection.

See

Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002) (holding that
counsel is not deficient for failing to object to testimony that is
admissible). Barbee also fails to explain how the failure to lodge
such an objection prejudiced him. (Doc. 61, p. 243.) This complaint

80

is not substantial and has no merit. Claim 4d is procedurally barred
or, alternatively, denied on the merits.

VIII.

COUNSEL’S REPRESENTATION AT PUNISHMENT (CLAIMS 5A-5F)

In claims 5a-5f, Barbee contends counsel provided ineffective
assistance at punishment.

He argues that counsel presented a

“halfhearted mitigation case” due to a lack of investigation and
preparation.

He also complains that counsel failed to have the

witnesses address the issue of future dangerousness. Barbee asserts
that trial counsel’s explanatory affidavit was “nonsensical” and that
the state court adopted this “nonsense” verbatim.

(Doc. 61, p. 255.)

The Court will address each contention in turn.
A.

Susan Evans’ testimony (claim 5a)

Barbee contends trial counsel’s presentation of testimony from
a former Texas prison warden was ineffective.

Respondent asserts

that the claim is defaulted because it was raised in the subsequent
writ application and dismissed as abusive. Barbee responds, without
elaborating, that any default is excused under Trevino.

He fails

to demonstrate, however, that this claim is “substantial” such that
the procedural bar exception in Trevino could apply.
Evans’s testimony occupies over ninety pages of the trial record
and was presented to support counsel’s argument that Barbee could
successfully serve a life sentence. (27 RR 10-11.) Evans explained
the qualifications and training of prison employees, their defensive

81

tactics and training, “use of force” policies, and ongoing testing.
She stated that prison employees are professionals trained to handle
any type of offender and any type of situation.

(26 RR 3-32.)

She

described the prison classification system and explained that Barbee,
if given a life sentence, would never be classified in the leastrestrictive category (G1) and would have to serve 10 years before
he could be eligible for G2.

(26 RR 33-43.)

She described the

restrictions and privileges related to various levels of security.
(26 RR 45-70.) She testified that the inmates serving life sentences
are not always the worst inmates because they are in a controlled
environment with less stressors, and she testified that people in
prison mellow with age. (26 RR 72.) She also testified that prison
rules changes over time and often become more restrictive, not less,
and that the prison does its best to recognize and address developing
patterns among offenders.

(26 RR 92-93.)

Barbee picks and chooses unidentified fragments of Evans’s
testimony on direct and cross examination and presents them in a list,
out of context.

He then concludes: “the presentation of these

damaging facts to the jury can be explained only by a lack of investigation and preparation. It defies rational comprehension to imagine
how any of Ms. Evans’s testimony could have possibly been construed
as helpful to the defense.”

(Doc. 61, p. 273.)

The presentation of witnesses is generally a matter of trial
strategy. Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010). Barbee

82

fails to acknowledge the overall strategy for this testimony--to show
that Barbee could serve a life sentence and what that life sentence
would be like. Because Barbee fails to acknowledge counsel’s overall
strategy, he makes no argument for why that strategy was unreasonable.
He also makes no argument to show prejudice under Strickland.
Claim 5a is procedurally defaulted because Barbee fails to show
that this claim is “substantial.”
merit.
B.

Alternatively, the claim has no

Claim 5a is denied.
Counsel’s sentencing investigation (claims 5b, 5c)

Claims 5b and 5c assert that, during the sentencing phase of
trial, counsel violated Wiggins by failing to present certain
mitigating evidence as well as evidence negating future dangerousness.
Wiggins v. Smith, 539 U.S. 510 (2003) (reiterating Strickland’s rule
that counsel has duty to make a reasonable investigation or a
reasonable decision that makes particular investigations unnecessary).
Because Barbee incorporates the analysis of claim 5c into claim 5b,
the Court addresses them together. (Doc. 61, p. 287-88.)
Barbee appears to acknowledge that some portion of the claim
may be subject to procedural default because it was dismissed in the
subsequent state proceedings, but he asserts that Trevino excuses
any default. (Doc. 61, p. 288.) Respondent appears to acknowledge
that some portion of the claim was adjudicated on the merits in the
first state proceeding, but to the extent the claim differs in “type
or scope” from what was raised in the first proceedings, Respondent
83

asserts that any surplus claim is defaulted and Trevino does not
excuse the default because the claim is not substantial. (Doc. 68,
p. 109, 119.)

The parties do not specify exactly which portion of

the claim may be barred and which portion not.
The parties also disagree about what evidence the Court may
consider.

Respondent argues under Pinholster that the Court may

consider only the evidence presented with Barbee’s first application,
when the claim was adjudicated on the merits.

See Pinholster, 131

S. Ct. at 1398; (Doc. 68, p. 119.) But Barbee argues that the Court
can also consider the evidence from the subsequent writ proceeding
because it is “in the record” and the subsequent proceeding addressed
counsel’s alleged ineffectiveness due to a conflict of interest.
To the extent the subsequent proceeding did not actually apply
evidence to the Wiggins issue, Barbee seeks an evidentiary hearing
in this Court.

(Doc. 77, p. 38-39.)

It is clear that the Wiggins claim that was adjudicated in the
first state habeas proceeding was both legally and factually enlarged
in the subsequent proceedings and dismissed as abusive. It is also
clear that much of the evidence adduced in the subsequent proceeding
vis-a-vis the conflict-of-interest claim (claim 2) would be relevant
to an evaluation of counsel’s representation under Wiggins. But under
Pinholster, only the evidence that was before the state court that
adjudicated the Wiggins claim on the merits may be considered by this
Court under § 2254(d). The evidence and the claims developed in the

84

initial and subsequent state proceedings overlap, however, making
it impractical if not impossible to parse the claims and the facts
between them.

Indeed, neither party attempts to identify and

delineate the boundaries of the adjudicated claims and evidence.
For these reasons, and in the interest of addressing trial
counsel’s representation thoroughly and conclusively, the Court
believes that claims 5b and 5c can be more easily resolved by looking
past any procedural default. See Busby v. Dretke, 359 F.3d 708, 720
(5th Cir. 2004) (noting that habeas court may look past any procedural
default if the claim may be resolved more easily on the merits).
For purposes of the following discussion, therefore, the Court will
(1) assume the claims are not barred, and (2) use the entire record,
including the subsequent-writ evidence, in analyzing the state court’s
rejection of the Wiggins claim. The Court will also review this claim
de novo because if Barbee is correct that any procedural default is
excused by initial state habeas counsel’s ineffectiveness, then a
plenary review would be appropriate. See generally Woodfox, 609 F.3d
at 794; Mercadel, 179 F.3d at 275.
1.

The evidence at trial (claims 5b, 5c)

The State presented three witnesses at punishment: Barbee’s exwife Theresa, Barbee’s former co-worker, and the coach of Jayden’s
soccer team.

Theresa testified about her marriage to Barbee, four

instances of domestic violence, and a road-rage incident on their
first anniversary when Barbee followed another car to a dead end

85

street and punched the driver through the window. She described the
argument that ended their marriage on the Fourth of July in 2003 in
which he threatened to put her through the wood chipper and she hit
him.

She testified about their tree-trimming and concrete-cutting

businesses, how the businesses were in debt, and how she had Barbee
sign them over to her after his arrest. (25 RR 28-51.)

After their

divorce, she began dating Dodd, who worked for Barbee, and Dodd moved
into her house. She stated that Dodd was arrested in connection with
this case and faces twenty years’ imprisonment.

(25 RR 51-55.)

She explained Dodd and Barbee’s comings and goings on the night
of Lisa’s disappearance.

On the following Sunday morning, she saw

Barbee at the office and told him the police had been at the house
asking about him, his Corvette, and a girl that he used to date who
was missing.

Barbee cried and said his life was over.

He told her

to get the businesses out of his name, that he loved her, and had
hurt her enough. She asked him to turn himself in and not make her
call the police. (25 RR 90-94.) She talked to Barbee Monday night
after he had confessed to the police, and he said he did not mean
to kill Lisa and Jayden.

When she asked about Dodd’s involvement,

he said Dodd’s mistake was picking him up. A day or two later, she
visited him in jail with his family, and he told her she had it all
wrong, that he did not do it. (25 RR 94-98.) She visited him in jail
every week for about seven months.

On the last visit, he held up

a piece of paper saying they could get back together and try to have

86

a baby.

He also asked her to say that Dodd had “slipped” and was

guilty of the murders.

She quit visiting him after that.

(25 RR

98-103.)
On cross-examination, Theresa conceded that she shared blame
for the marital fights. (25 RR 86-87.) She confirmed that Barbee’s
sister and brother died tragically and that Barbee was close to them
both. (25 RR 56-58.) She testified about the state of her businesses
and how she had a lawyer prepare documents for Barbee to sign over
his share without compensation. (25 RR 59-62.) Theresa acknowledged
that her house is the largest in their subdivision and that Barbee’s
mother had put up the collateral on a loan to build a pool.

(25 RR

63-64.)
Theresa conceded that she had told the grand jury that she did
not take seriously Barbee’s threat to put her through the wood
chipper. She admitted that she had told the grand jury they had three
fights during their marriage, not four. (25 RR 66-67.)

Theresa

acknowledged that Dodd had been on parole, and he did not deny
involvement but admitted he picked up Barbee. (25 RR 71-72.) Counsel
also elicited testimony from Theresa about the crime-week stressors,
specifically:

Barbee’s horrible, worsening headaches; fighting

between her and Barbee; fighting between Trish and Barbee; Barbee’s
dad’s being diagnosed with cancer; and problems with the business
when some of the crew quit and Dodd had to be taken off of concrete
work to trim trees.

Theresa described the accident several weeks

87

earlier where a 400-500 pound pipe hit Barbee on the head, and he
was knocked unconscious and admitted to the hospital. (25 RR 74-77.)
Theresa also described a conversation she had with Barbee on the night
of the murders about the pressure he was under. (25 RR 84-85.)
Under cross-examination, Theresa relayed a suicide attempt by
Barbee in 2002 or 2003, when she found him “halfway in the water face
down” in the pool.

He was blue and cold and ended up spending the

night in the hospital. (25 RR 77-81.) Theresa described their work,
while they were married, with the children at Azle Bible Way Church,
where Calvin and Nancy Cearley were pastors. They put on puppet shows
and raised money for the kids.
was good with the kids.

She said Barbee wanted to do it and

The program grew under them and she said

“it was a wonderful thing.”

(25 RR 105-07.)

The State’s second witness during the punishment phase was a
woman who worked with Barbee at United Parcel Service in 2000 or 2001.
She testified that Barbee called her often and claimed that he was
not married.

He once trimmed her trees for free without her

knowledge, and when she later told him she was not interested in a
relationship, Barbee responded with a "big outburst" and yelled and
cursed at her.

(25 RR 108-19.)

The State presented the testimony of Jayden’s soccer coach, who
testified that Lisa’s bagel shop sponsored their soccer tournament
every year. He also identified Jayden in a photograph of the soccer
team.

(26 RR 106-09.)

88

The first witness for the defense was Pastor Nancy Cearley.
She had known the Barbee family since 1989.

She performed Barbee

and Theresa’s wedding, and they became leaders of the children’s
church for about three years.

She never had any complaints from

parents about Barbee, and Barbee built up the children’s church from
about 10-15 children to about 75-80 children.

Under cross-

examination, Cearley said she sat through the trial and did not
believe that Barbee killed the victims in this case. (25 RR 121-32.)
Barbee’s mother testified next. She described the tragic deaths
of her two older children, who died when Barbee was 14 and 16, one
from a virus and other from a car accident.

She described her work

as a teacher’s aid for 24 years and her husband’s work at Bell
Helicopter for 31 years. She said Barbee did not graduate from high
school because he shut down after his brother died, but he earned
a GED.

Through her testimony, counsel admitted school photographs

of Barbee.

She described a time when Barbee wanted to earn money

by mowing lawns, but he came home with nothing because he mowed a
little old lady’s yard for free.

She said Barbee did not know what

to do with himself after his brother died, but he decided he wanted
to be a policeman. He went to community college, got a diploma, and
worked as a volunteer reserve officer at Blue Mound Police Department.
To earn money, he started his own tree-trimming business after cutting
down a tree in his mother’s yard that had been struck by lightning.
He later hired Theresa to help out because he felt sorry for her.

89

Barbee’s mother testified that Theresa paid the bills while Barbee
did all the work.

Barbee’s mother said that she and her husband,

who is undergoing chemotherapy, visit Barbee in jail every week.
She testified that they would support Barbee as best they can. She
told the victim’s family she knew their pain, that her daughter was
pregnant when she died, and that she wanted them to be forgiving and
“not bitter” because she had “been there.”

(25 RR 133-150.)

Barbee’s aunt testified that Barbee visited her in South
Carolina. Right before he got his GED, Barbee stayed with her for
three or four months while he was looking for a job. She loves Barbee
dearly and will support him. (25 RR 151-155.)
Barbee’s niece, the daughter of Barbee’s deceased older sister,
testified that she was an infant when her mother died and two years
old when her uncle died.

She and Barbee are more like brother and

sister, and she loves him with all her heart.

(25 RR 155-57.)

Another witness testified that she met Barbee at church when
she was thirteen. Barbee would come to her house and work on trucks
with her stepfather.

Her little sister adored Barbee and looked

forward to going to church because of him.

She said that she was

there to support Barbee and visits him in the jail. (25 RR 160-67.)
An ex-girlfriend testified that she met Barbee at an amusement
park, and that they became romantically involved after his divorce.
She testified that they contemplated getting married but Barbee wanted
a child and she did not.

She visits Barbee almost every weekend in

90

jail, and they are still close friends.

She also said that Barbee

was not the type of man who could murder two people, and she did not
believe he did it.

(25 RR 168-175.)

Susan Evans testified about the prison conditions under which
Barbee would live if given a life sentence. (26 RR 2-96.) Her
testimony is summarized in claim 5a.
The ex-girlfriend of Barbee’s former roommate testified that
she got to know Barbee through her boyfriend and during Barbee’s
visits to his ex-girlfriend’s family in Austin. She testified that
she was there to support him.

(26 RR 97-99.)

A confinement officer for the Tarrant County Sheriff testified
that he dated Barbee’s sister in high school and played pee-wee
baseball with Barbee’s brother. He and his parents have known Barbee
and his family his whole life.

He testified that they are people

of strong faith, and this case has tested their faith.

(26 RR 99-

102.)
The final witness for the defense was the court bailiff. He
testified that he was primarily responsible for transporting Barbee
to court.

He said that over the course of trial, including jury

selection, Barbee had not been a problem and had not made any threats.
(26 RR 102-05.)
2. Jury arguments (claims 5b, 5c)
The State’s argument focused on the circumstances of the offense,
Barbee’s cruelty to his coworker at UPS, and his violence and

91

manipulative behavior with Theresa. (27 RR 2-5.)

The State argued

that all Barbee had to do was tell his wife about the pregnancy and
that his failure to do so was a failure in his character.

The

prosecutor reasoned that Barbee will do whatever he needs to do to
protect what he holds dear, even in prison.

He replayed a portion

of Barbee’s recorded confession, pointing out that Barbee is “yukking
it up” with the police right up until he knew he was caught, and only
then goes into “I’m sorry” mode. The prosecutor emphasized the facts
of the offense in detail.

(27 RR 16-24.)

Tim Moore told the jury that a punishment based on revenge has
no place in the law.

He pointed out that the State had a year to

“look high and low” for prior violent acts by Barbee and that all
they brought were four occurrences from a jilted ex-wife, one of which
was an accident. He guaranteed that Barbee had “no criminal history
whatsoever,” because the State would have brought it if he did.
Moore argued that if the State asks jurors to execute somebody,
the jury ought to know that person.

He said that three hours did

not define Barbee’s life and that there were 36 years before that
when he was not a violent person. He summarized the testimony that
Barbee came from a good family with hardworking parents and that the
death of his siblings shut him down, but he overcame it, got a GED,
when to college, and started a successful business. He argued that
the witnesses who knew Barbee as a Sunday school teacher and had
dinners with him knew his true character. While Moore acknowledged

92

that some of these witnesses questioned the jury’s verdict, he asked
the jury not to hold it against Barbee.

Counsel urged the jury to

use that testimony to see the real Barbee, because those people
believed him innocent even though some of them sat through the trial.
Finally, Moore reminded the jury that Barbee had good behavior while
incarcerated and can be controlled by the prison so that he would
not present a future danger.

Counsel emphasized that Barbee would

be almost 80 years old before he is eligible for parole.

(27 RR 6-

11.)
Bill Ray discussed the connection between mitigation and moral
blameworthiness. He pointed out that Barbee’s moral blameworthiness
was reduced by the fact that he took the police to the victims’ bodies
so that they could have a decent burial. He reminded the jurors that
a unanimous vote was needed for a death sentence, and that they did
not have to answer the special issues at all if they were not sure
in their hearts.

He argued that the two State’s witnesses were

insufficient to meet the State’s burden of proof beyond a reasonable
doubt and reminded them of Susan Evans’s testimony that people who
have killed often make the best prisoners because the triggering
circumstances do not repeat themselves in prison.
3.

(27 RR 12-16.)

Applicable law (claims 5b, 5c)

Strickland does not require counsel to present mitigating
evidence in every case. Wiggins, 539 U.S. at 533. Rather, the Court
is concerned with whether the result of a particular proceeding is

93

unreliable because of a breakdown in the adversarial process that
our system counts on to produce just results. See Strickland, 466
U.S. at 689, 696. The Constitution imposes “one general requirement:
that counsel make objectively reasonable choices.” Bobby v. Van Hook,
558 U.S. 4, 9 (2009). Counsel are “strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Pinholster, 131 S. Ct. at 1403
(quoting Strickland, 466 U.S. at 690)). This standard not only gives
trial counsel the benefit of the doubt, but affirmatively entertains
the range of possible reasons counsel may have had for proceeding
as they did. Id. at 1407.
Regarding counsel’s duty to investigate, strategic decisions
made by counsel following a thorough investigation are “virtually
unchallengeable.” Strickland, 466 U.S. at 690. “[S]trategic choices
made after a less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the
limitations on investigation. Id. at 691.
Barbee must also demonstrate that there is a reasonable probability that he was prejudiced.

See Strickland, 466 U.S. at 694.

A

“reasonable probability” of prejudice requires a substantial, not
just a conceivable, likelihood of a different outcome. Pinholster,
131 S. Ct. at 1403. For claims that challenge counsel’s sentencing
investigation, the reviewing court reweighs the evidence in aggravation against the totality of available mitigating evidence and deter-

94

mines whether there is a probability, sufficient to undermine confidence in the outcome, that the jury would have assessed a life
sentence.

See Wiggins, 539 U.S. at 534.

Complaints based upon uncalled witnesses are not favored because
such decisions are strategic, and speculation as to what the witnesses
would have said in court is too uncertain. See Alexander v. McCotter,
775 F.2d 595, 602 (5th Cir. 1985).

A petitioner who raises such a

complaint must demonstrate that the witness was available to testify
and would have testified, and that the proposed testimony would have
been favorable to the defense.

See id.

Under the AEDPA standard of review, “[t]he pivotal question is
whether the state court’s application of the Strickland standard was
unreasonable,” not whether defense counsel’s performance fell below
Strickland’s standard. Richter, 562 U.S. at 101. The review is “doubly
deferential” and gives both the state court and the defense attorney
the benefit of the doubt.

Titlow, 134 S. Ct. at 13.

A plenary or

de novo review is appropriate, however, when a procedural default
is excused by a showing of cause and prejudice. E.g., Woodfox, 609
F.3d at 794; Mercadel, 179 F.3d at 275.
5.

Discussion (claims 5b, 5c)

The Court understands claims 5b and 5c to allege that counsel
were ineffective for failing to:
(1) ask the witnesses who testified “their assessment of
the likelihood of [Barbee’s] committing future violent
acts” (doc. 61, p. 274-75);

95

(2) present all the mitigating information found in (a)
the declarations of Barbee’s mother, Sallie Boyd, Mandy
Carpenter, Tina Church, Calvin and Nancy Cearley, Barbee’s
brother-in-law, Barbee’s niece, the friend of Barbee’s
mother, Tim Davis, Theresa’s father, Barbee’s aunt, the
girlfriend of Barbee’s former roommate, and Barbee’s cousin
and (b) the writ hearing testimony of Amanda Maxwell, Tim
Davis, Calvin and Nancy Cearley, Barbee’s brother-in-law,
Barbee’s niece, and the friend of Barbee’s mother (doc.
61, p. 275-87); and
(3) present all the information negating Barbee’s future
dangerousness found in (a) the declarations of Bobby and
Sallie Boyd, Barbee’s brother-in-law, Barbee’s niece,
Calvin and Nancy Cearley, the friend of Barbee’s mother,
Tim Davis, Theresa’s father, Barbee’s aunt, the girlfriend
of Barbee’s former roommate, and Barbee’s cousin, (b) the
letter from Dr. Kelly Goodness to trial counsel, and (c)
the writ hearing testimony of Maxwell, Tim Davis, Calvin
and Nancy Cearley, Barbee’s brother-in-law, Barbee’s niece,
and the friend of Barbee’s mother.
(Doc. 61, p. 288-302.)
The Court categorizes the allegedly overlooked information into
the following categories: (1) good character evidence; (2) Barbee’s
reaction, including academic struggles, to the loss of his siblings;
(3) his head injuries and their effects, including headaches and
hydrocodone abuse; (4) his suicidal ideation; (5) opinion testimony
that he would not be a future danger; and (6) evidence discrediting
Theresa. The last category included evidence that she: was mouthy,
aggressive, and controlling; had ruined Barbee and changed him for
the worst; once lied to police about Barbee’s hitting her; was open
about her sexual exploits with Dodd; once said she wished Barbee would
die and leave the office; stole from the business; and failed to give

96

Barbee’s niece enough hours to keep her employment after she informed
Barbee of Theresa’s business practices.
a. Witnesses’ availability. The Court notes that Sallie Boyd
states in her declaration that she was asked to testify at trial,
but she declined. (Doc. 66-3, p. 99.) Her husband, Bobby Boyd, does
not state in his declaration that he was available and would have
testified at trial.

(Doc. 66-3, p. 97.) Thus, Barbee cannot show

that counsel was ineffective for failing to present either of these
witnesses.

See Alexander, 775 F.2d at 602.

b. Lack of future dangerousness.

Barbee repeats his argument

that counsel should have presented evidence of Barbee’s lack of future
dangerousness.

As previously discussed, Barbee’s contention that

counsel should have asked the punishment witnesses their opinion about
Barbee’s propensity for future dangerousness overlooks the fact that
such a witness could have been impeached with good-faith questions
about their knowledge of extraneous bad acts.
71 S.W.3d 346.

See, e.g., Wilson,

Counsel stated in their affidavit and in their

testimony that this might have opened the door to cross-examination
about the road-rage incident, Barbee’s setting fire to hamsters,
vandalism, killing an animal while on a date, or bribing Daniel
Painter. Counsel emphasized that other people knew about these acts,
and it was possible the State knew about them as well.12 (SHR 71.);
12
Later in claim 7, Barbee contends that counsel’s strategy was illogical
because “The state’s meager case for future dangerousness did not rely on crossexamining the defense witnesses.” (Doc. 61, p. 315.) This argument puts the cart
before the horse: had Barbee’s trial counsel opened the door for inquiry into

97

(Doc. 66-8, p. 27-28, 57.) Counsel was, in fact, able to argue to
the jury that Barbee had no criminal history and was not a juvenile
delinquent because the jury did not learn about his acts of vandalism,
theft, and animal cruelty which came to light at the writ hearing.
Barbee also contends that counsel should have presented the
testimony of Dr. Goodness to show his lack of future dangerousness.
(Doc. 61, p. 296.) Barbee fails to show that Dr. Goodness would have
testified to this opinion, however. To clarify, Dr. Goodness prepared
two reports for counsel, one was a “Dangerousness Risk Assessment”
and the other was a letter evaluating possible mitigating facts and
theories.

(Doc. 66-8, p. 38; Doc. 66-3, p. 62.)

Barbee does not

present Dr. Goodness’s risk assessment to support this claim.
Although he states that she conducted a risk assessment, she cites
the mitigation letter and selected facts within it, and then states
that she “did not think Mr. Barbee would be a future danger,”
suggesting that this was her opinion.

(Doc. 61, p. 296.)

The mitigation letter does not contain an opinion from Dr.
Goodness as to Barbee’s risk of future dangerousness. The mitigation
letter states that she found no significant symptoms suggestive of
a head injury, no developmental delay, no reading disability, no
exposure to alcohol in the womb, no bipolar mood disorder, and no
significant hydrocodone abuse.

She found a diagnosis for Lyme’s

Barbee’s character by cross-examination, the State’s case might well have relied
more upon cross-examination.

98

Disease in his medical records, which can mimic bipolar disorder and
trigger a severe aggressive episode but is treatable. Dr. Goodness
concluded that this was a mitigating factor that also increased his
dangerousness. (Doc. 66-3, p. 63.) Ray testified that Dr. Goodness’s
testimony was not helpful to the defense because it played into the
State’s theory of the murder.

(Doc. 66-8, p. 39, 47.)

Ray also

testified that Dr. Goodness said that a defendant in his late thirties
would present a low statistical risk of committing future violent
acts.

(Doc. 66-8, p. 30.) But Ray did not testify about Dr.

Goodness’s opinion as to Barbee’s risk. Hence, the record does not
show that Dr. Goodness believed Barbee presented a low risk of a
future dangerousness.
Assuming she did have such an opinion, Dr. Goodness’s testimony
would have subjected her to potentially damaging cross-examination
about Barbee’s bad acts, as discussed above. In addition, it would
have allowed the State to evaluate Barbee with its own expert, Dr.
Price, which counsel did not want to allow.

(SHR 72, 207.) (Doc.

66-8, p. 44.) See generally Davis v. State, 313 S.W.3d 317, 352 (Tex.
Crim. App. 2010) (citing Lagrone v. State, 942 S.W.2d 602 (Tex. Crim.
App. 1997)). This would have provided an opportunity for the State
to obtain a damaging diagnosis or learn harmful things about Barbee’s
past.

See E.g., Yowell v. Thaler, No. 10-70026, 2011 WL 4056707,

*1-2 n.1 (5th Cir. Sept. 12, 2011) (noting defense attorney’s
statement that, "Based on my experience in the past, there's probably

99

no way on God's green earth that we're going to do anything to allow
the State to examine our client with one of their own experts").
Barbee does not show that counsel’s decision to avoid an evaluation
by the State’s expert was outside the wide range of reasonable
professional assistance.
c. “Matters of degrees.” Some of the information that Barbee
claims trial counsel should have presented is more of the same
information the jury received at trial.

The jury knew Theresa was

dating Dodd, that they were living in Barbee’s former marital home,
that Dodd was arrested in connection with this case, that Dodd had
been on parole, and that Dodd did not deny assisting Barbee in moving
the bodies.

Theresa acknowledged her share of the blame for their

marital fights. She testified that Barbee tragically lost his brother
and sister with whom he been close, that she had Barbee transfer his
interest in the businesses to her, that she owed Barbee’s mother
money, and that Barbee tried to commit suicide, and that he was hit
on the head with a pipe and hospitalized weeks before the murders.
Counsel elicited information about the crime-week stressors that
Barbee faced, including headaches, his dad’s cancer, arguments with
Theresa and with Trish, and problems with the business.

Theresa

described their participation in the youth ministry as “wonderful,”
and she said Barbee was good with the kids. Although Barbee minimizes
this testimony because it was elicited from a state’s witness rather
than a defense witness (doc. 61, p. 283, n.137), the Court is not

100

persuaded. Mitigating information can actually have more impact when
elicited on cross-examination from a reticent state’s witness.
In addition, Nancy Cearley provided information about the family
and their church involvement. Barbee’s mother described the deaths
of her older children, their affect on Barbee, and his failure to
graduate from high school. She described how Barbee picked himself
up, got a GED, went to college, and started his own business.

She

discussed his job at the Blue Mound Police Department and her
husband’s chemotherapy.

Other witnesses expressed their love and

support for Barbee and his family.
Because the jury heard this information, Barbee’s complaint
regarding good character evidence, his stable family, the loss of
his siblings, head injuries, suicidal ideation, and the negative
character evidence about Theresa, comes down to a matter of degrees.
Courts must be “particularly wary of arguments that essentially come
down to a matter of degrees.

Did counsel investigate enough?

Did

counsel present enough mitigating evidence? Those questions are even
less susceptible to judicial second-guessing." Skinner v. Quarterman,
576 F.3d 214, 220 (5th Cir. 2009) (quoting Dowthitt, 230 F.3d at 743).
d. Mildly mitigating evidence. A good deal of the information
that Barbee claims counsel overlooked is only mildly mitigating, such
as the opinions of his friends and family that he is of good character
and from a stable family, his academic struggles, the loss of his
siblings through illness and a car accident, head injuries (to which

101

no trial expert attributed any brain damage), voluntary short-term
hydrocodone abuse, and evidence discrediting Theresa.

Experienced

counsel could have reasonably decided that the jury would be
unimpressed with an attempt to humanize Barbee on account of these
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; physical torment; sexual
molestation and repeated rape while in foster care; periods of
homelessness; and diminished mental capacities).
e. Potentially harmful evidence. Some of the information that
Barbee contends counsel overlooked is double-edged or harmful. 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).

Thus, counsel could have reasonably decided that linking

Barbee’s offense to volitional abuse of his wife’s painkillers would
have been unwise.

Counsel could have also reasonably decided (and

apparently did decide) that presenting evidence to excuse Barbee’s
behavior at punishment, when Barbee refused to take any responsibility
for the crime, would diminish their credibility before the jury.
The supporting declarations also contain harmful information
that the potential witnesses could have provided on cross-examination,
specifically, evidence that reinforced the picture of Barbee as a

102

man who did not commit himself in his relationships with women and
supported the State’s theory of motive. The girlfriend of Barbee’s
former roommate, for example, stated that Lisa would always show up
at Barbee’s apartment and obviously wanted more of a relationship
than Barbee did.

(Doc. 66-3, p. 140.)

Barbee’s niece stated that

she believed Lisa expected to grow closer with Barbee, and that a
visit from Lisa prompted Barbee to make an agreement with Theresa
that his “girlfriends” would not come to the office.

(Doc. 66-3,

p. 106.) Barbee’s mother stated that Barbee previously had a child
with a coworker at the Blue Mound Police Department but he gave up
his parental rights.

(Doc. 66-3, p. 72.)

Barbee’s cousin stated

that Barbee told her he had no problem with Theresa’s dating Dodd
because it kept Theresa “off his ass.” (Doc. 61, p. 142.) Tim Davis
stated that Barbee could have any girl he wanted and could really
“talk the talk.”
f.

(Doc. 66-3, p. 128.)

Counsel’s affidavit. Barbee contends that the state-court

ruling was based on an unreasonable determination of the facts because
it relied on counsels’ joint affidavit, which was deficient for
several reasons.
Barbee first asserts that it demonstrates their disloyalty to
Barbee by revealing client communications in order to defend
themselves against Barbee’s ineffective-assistance allegations. (Doc.
61, p. 303.)

He provides no authority for this contention.

To the

contrary, defendants who claim their attorneys were ineffective waive

103

the privilege as to all communications necessary to defend the claim.
See United States v. Ballard, 779 F.2d 287, 292 n.8 (5th Cir. 1986);
Laughner v. United States, 373 F.2d 326, 327 (5th Cir. 1967). Counsel
here did nothing more than defend the claim against them.
Barbee contends counsels’ assertion that Barbee provided multiple
versions of the murder, which made a consistent theory of defense
difficult, was a “serious misrepresentation” because (1) Barbee gave
different versions of the murder well before counsel were appointed
in the case and (2) counsel state in their joint affidavit that Barbee
“was steadfast in his assertion that he was innocent.”

(Doc. 61,

p. 304.) This allegation was discussed in connection with claim 4b.
The fact that Barbee gave different versions of the murder prior to
the appointment of counsel and yet steadfastly maintained his
innocence after counsel’s appointment means nothing.

Counsel had

to contend with the prior inconsistent statements made by their client
and known to the prosecution, whether or not counsel were appointed
at the time they were made.
Barbee contends the Memorandum of Understanding between Ray and
Barbee that was attached to counsel’s affidavit is extremely troubling
because it “was obviously prepared to use against their client at
some future date.” (Doc. 61, p. 304.) The Court has already concluded
that the memorandum is no more than a method to preserve facts for
inevitable post-conviction litigation, it contains Barbee’s own
deletions and edits, and he does not claim he signed it unknowingly.

104

If anything, this case demonstrates the necessity of memorializing
the parties’ understanding at the time of trial.

Without it, the

facts could be limited to a sanitized report by a mitigation
specialist who destroys her handwritten notes in an attempt to prevent
the discovery of truthful information during the post-conviction
litigation.

(Doc. 66-7, p. 32, 36-37, 39-40.)

Barbee also contends that counsel’s assertion that they consulted
with and interviewed witnesses concerning Barbee’s family background
belies the declarations attached to his federal petition in which
the “declarants state that they had no interaction whatsoever with
the attorneys.” (Doc. 61, p. 305.) In fact, Maxwell’s report shows
the broad scope of her search for information upon counsel’s request,
and Barbee’s mother wrote in her declaration that Maxwell “had all
kinds of information about Stephens’s whole life” with names and
addresses for follow-up. (Doc. 66-3, p. 47-48, 68.) Barbee’s mother
testified that Maxwell “knew everything.”

(Doc. 66-7, p. 87.) In

addition to Maxwell, counsel retained Dr. Goodness to look for
mitigation information and comment upon the themes developed for the
case. (Doc. 66-3, p. 62.) Maxwell’s criticism during post-conviction
litigation was that counsel did not present all the information she
collected, not that her investigation was abbreviated or insufficient.
The declarations attached to the petition do not delve into new,
unexplored territory. It appears that this complaint is based on the
distinction that Maxwell, rather than counsel, did the actual

105

interviewing. (Doc. 61, p. 305.) Lacking information to the contrary,
the Court assumes that counsel were privy to the work generated by
the defense team they assembled. This argument is therefore semantic
and lacks merit.
Barbee next disputes counsels’ assertion that Barbee chose not
to testify and calls it a “remarkable piece of sophistry” because
it relies in part on a portion of the Memorandum of Understanding
that Barbee had crossed out.

(Doc. 61, p. 305.)

This argument

relates to counsels’ explanation for why Barbee did not testify at
the motion-to-suppress hearing. (Doc. 61, p. 306.) This particular
claim for relief, however, relates to sentencing.
The memorandum aside, Barbee’s complaint that counsel did not
let him testify at sentencing is refuted in the trial record:
MR. RAY: I need to put one thing on the record. . . .
Steve, Judge Gill is letting me do this now, but we’re
doing it as if we did it before we had rested. I told you
just like we did in the guilt-innocence phase of your trial
that you can testify in the punishment phase; is that
correct?
THE DEFENDANT: Yes.
MR. RAY: Okay. And if you want to testify, we can
have that situation so that you can testify in this trial.
Do you understand that?
THE DEFENDANT: Yes.
MR. RAY: And you indicated to me that you did not want
to testify; is that correct?
THE DEFENDANT: Yes.
MR. RAY: So even though we are doing this after the
fact, you don’t want me to ask Judge Gill-–and I assure
106

you he would allow me-–to reopen for purposes of you
testifying?
THE DEFENDANT: Correct.
MR. RAY: You do not want to testify?
THE DEFENDANT: No.
MR. RAY: No means, yes, you don’t want to testify?
THE DEFENDANT: I don’t want to testify.
(26 RR 110-11.) The Court finds no evidence in the record to support
Barbee’s assertion that counsel did not let him testify at sentencing
or elsewhere.
Barbee takes issue with counsel’s statement that if Barbee had
taken some responsibility for his actions, he might have been able
to receive a life sentence.

(Doc. 61, p. 306.)

Barbee again

challenges counsel’s stated belief that excuse-type evidence would
be inconsistent with Barbee’s assertion of innocence, because innocent
people get head injuries.

Despite Barbee’s asserted metaphysical

confusion over this issue (doc. 61, p. 307-08), his own expert, Dr.
Martin, corroborates counsels’ view.

Considering the behavioral

effects caused by frontal lobe impairment, Dr. Martin opined that
“a broader and more accurate explanation for why Mr. Barbee could
have engaged in a violent crime emerges.” In Dr. Martin’s opinion,
“Barbee’s violent actions at the time of the offense would have been
mediated by emotional factors as opposed to reason, due to the
aforementioned damage to his frontal lobes.” (Doc. 66-3, p. 59-60.)
Barbee’s present assertion that “innocent people get head injuries”
107

does not change the fact that a jury in a criminal case would view
such evidence as an explanation for the commission of the crime. And
without some acceptance of responsibility, a jury might see such
evidence as simply aggravating or, at the least, a ploy for undeserved
sympathy. Trial counsel reasonably concluded that the presentation
of such evidence might do harm in this case.
Barbee also challenges counsels’ justification for not calling
Davis as a witness.
2.

This matter was previously addressed in claim

It is based on counsel’s use of the words “attempted to kill”

to describe Barbee’s behavior during the road-rage incident, while
Maxwell reported only that Barbee had no “off switch” and that Davis
had to pull Barbee off the son and the old man to keep him from
hurting him “really bad.”

(Doc. 61, p. 309.)

Counsel’s choice of

words describing this behavior as an “attempt to kill,” even if
inaccurate, does not undermine counsel’s decision not to present Davis
as a witness. Either way, it demonstrates Barbee’s confrontational
and aggressive nature. Counsel could reasonably decide not to risk
exposing this event to the jury, especially given that Theresa
testified about a very similar road-rage incident on their first
wedding anniversary.

(25 RR 49-51.) With two similar events, the

jury would be unlikely to view them as anomolies.
Barbee also makes specific challenges to individual findings
by the state court at both the original and subsequent writ
proceedings.

(Doc. 61, p. 317.)

Many of them ignore the evidence

108

that supports the findings; others are based on erroneous assertions
of fact, such as that Maxwell’s report was provided to the prosecution
before trial.

Most of them have been addressed elsewhere in this

opinion. The Court will not analyze the individual findings further
because, for the reasons stated here and elsewhere, they did not
result in an unreasonable adjudication. See Morrow, 367 F.3d at 314
(holding that it is the state court’s ultimate decision that is
tested, not every jot of its reasoning). The record does not support
Barbee’s claim that counsel were deficient in their investigation
or unreasonable in their strategy at sentencing.
g.

No prejudice.

Even assuming counsel were deficient, the

record does not demonstrate that the additional evidence presented
by post-conviction counsel would have undermined confidence in the
punishment verdict.

As Barbee repeatedly suggests, his lack of a

criminal history was a strong argument for a life sentence.

Trial

counsel capitalized on this. They argued that “three hours” did not
define Barbee as a person. They emphasized Barbee’s lack of a juvenile record and the good people who supported Barbee throughout trial
because they knew him as another person. But counsel also believed
(doc. 66-8, p. 183), and the record supports, that the State’s
strongest argument for the death penalty was the offense itself, in
which Barbee ended the life of a pregnant woman, the seven year-old
son who came to her defense, and an unborn child who Barbee knew might

109

be his own.13

It is beyond reasonable to conclude that the

aggravating facts of the offense greatly outweigh any mitigating
effect of the additional evidence counsel allegedly overlooked.
h. Conclusion for claims 5b and 5c. Barbee fails to demonstrate
that it was necessarily unreasonable for the CCA to conclude (1) that
he did not overcome the strong presumption of counsel’s competence
and (2) that he failed to undermine confidence in the jury’s sentence
of death. See Pinholster, 131 S. Ct. at 1403.

Even under a de-novo

standard of review, the Court concludes that this claim fails for
the reasons stated above.

Claim 5b and 5c have no merit and are

denied.
C.

Head injuries and hydrocodone use (claim 5d)

Barbee contends that counsel were ineffective for failing to
present evidence of his head injury and hydrocodone use at sentencing.
(Doc. 61, p. 326.) Respondent argues that the state court’s rejection
of this claim during the initial state habeas proceedings was
reasonable. (Doc. 61, p. 129.)
As

already

stated,

trial

counsel

retained

two

forensic

psychologists (Drs. Goodness and Norman) and a forensic psychiatrist
(Dr. Shupe). Dr. Shupe’s letter to trial counsel stated that Barbee
had a history of closed head injuries, but that his failure to accept
some responsibility impaired counsel’s chance of obtaining a life

13

The autopsy and subsequent paternity testing apparently excluded Barbee
as the father. (Doc. 66-6, p. 32)

110

sentence through mitigation. Dr. Shupe stated that Barbee appeared
fixated on how his mother would view him if she thought he was guilty
and expressed that he would rather be executed than have his mother
see him plead guilty.

(SHR 98.) Dr. Goodness’s report to trial

counsel stated that Barbee “does not appear to have significant
symptoms suggestive of a head injury” and that his report of
hydrocodone use “does not suggest long-term significant abuse.” (SHR
54.) Maxwell also reported to counsel that Barbee had a history of
head injuries, culminating in the work-site injury that led to his
hospitalization about a month before the murders. She reported that
Barbee had been taking hydrocodone that had been prescribed for Trish.
Maxwell had found “through research” that hydrocodone is contraindicated for head injuries and she had requested that Barbee be examined
by a neuropsychologist, which counsel did not arrange. (SHR 35.)
The state habeas evidence included a statement from Dr. Stephen
Martin, previously discussed in claim 2, in which Dr. Martin concluded
that Barbee had a “subtle to mild degree of diffuse neuropsychological
impairment along with subtle bilateral hemisphere dysfunction” and
frontal lobe damage. (SHR 39.) The state’s habeas expert, Dr. Price,
opined that Dr. Martin erred in scoring and interpreting his raw test
data and stated that the re-scored tests did not support a finding
of generalized brain damage or frontal lobe damage.

(SHR 185.)

Trial counsel stated in their joint affidavit that, after
discussing the matter, they did not hire a neuropsychologist because

111

they determined that a head-injury theory would necessitate that
Barbee was guilty as charged, which contradicted his assertion that
he was completely innocent. They also believed that the overwhelming
thought in mitigation is “some acceptance of responsibility.” Without
some acceptance of responsibility, counsel believed the head injury
and hydrocodone abuse would only serve to diminish mitigation. (SHR
71.)

The state court concluded that counsel’s decision not to use

“head injury” and “hydrocodone abuse” evidence was reasonable given
Barbee’s lack of significant symptoms and his unwillingness to accept
responsibility.

(SHR 209-10.)

Barbee asserts the state-court ruling was unreasonable, but makes
no real argument, restating only that innocent people can have head
injuries and a head injury “is not in any way dependent or diminished
by a claim of actual innocence.”

(Doc. 61, p. 330-31.)

The Court

has previously addressed this argument, noting that such evidence
provides an explanation for violent conduct and is therefore
inconsistent with Barbee’s assertion of innocence.

In his reply,

Barbee suggests that a head injury which did not result in brain
damage (i.e., one that did not contribute to the criminal conduct)
would have been presented by constitutionally effective counsel
because, under Tennard, it is relevant even without a “nexus” to the
offense, that is, even if it is unconnected to the crime. (Doc. 77,
p. 48.) Tennard v. Dretke, 542 U.S. 274 (2004).
persuaded.

112

The Court is not

Tennard does not purport to establish standards for counsel’s
representation under Strickland.

Rather, it addresses the Eighth

Amendment requirement that the states give the jury a vehicle for
considering and giving effect to constitutionally relevant mitigating
evidence, which it defines as evidence the sentencer could reasonably
find justifies a sentence less than death. Id. at 285.

Strickland

does not require counsel to present all constitutionally relevant
mitigating evidence; Strickland does not require counsel to present
any mitigating evidence, as long as counsel acts reasonably. Wiggins,
539 U.S. at 533.

The Court therefore rejects Barbee’s implication

that Tennard sets a standard for counsel’s representation under the
Sixth Amendment.
Tennard is distinguishable on its facts, moreover, because it
deals with low IQ, which it concludes is inherently mitigating even
when there is no evidence that it contributed to the crime. See
Tennard, 542 U.S. at 287 (holding that low IQ evidence is constitutionally relevant irrespective of whether defendant establishes nexus
between mental capacity and the crime). Barbee provides no authority
that a blow to the head, without resulting brain damage, is similarly
inherently mitigating. In fact, Tennard acknowledges that “evidence
of a trivial feature of the defendant’s character or circumstances
of the crime is unlikely to have any tendency to mitigate the
defendant’s culpability.”

Id. at 286.

113

The state court could have reasonably decided that counsel’s
decision not to present head-injury and hydrocodone evidence was
within the bounds of reasonable professional representation. Claim
5d is denied.
D.

Low intelligence (claim 5e)

In this subclaim, Barbee contends that trial counsel were
ineffective for failing to present, through his mother’s testimony,
evidence of Barbee’s “sub-average intellectual functioning.” (Doc.
61, p. 331.) Barbee contends his mother could have testified about
his difficulties in school with reading, his rank in the bottom 20%
of the class, his requirement of “extra help,” and struggles through
his academic career, and the fact that it took him three attempts
to pass the GED. In support of this claim, he points to the testing
of Dr. Martin with the Wechsler Adult Intelligence Scale-3, which
placed his verbal IQ at 87 (low average), his performance IQ at 99
(average), and his full-scale IQ at 91 (average). He also relies on
Dr. Martin’s testing with the Wide Range Achievement Test-3, which
placed Barbee’s academic achievement in the 13th, 16th and 27th
percentile for reading, spelling and arithmetic, respectively. Barbee
asserts, without argument, that Trevino excuses any procedural default
of this claim because his counsel during the initial state habeas
proceedings was ineffective.

(Doc. 61, p. 333.)

Respondent contends the claim is procedurally barred because
it was presented for the first time in the subsequent state habeas

114

application and dismissed as abusive. (Doc. 68, p. 130.) Respondent
argues that Trevino does not excuse the procedural bar because Barbee
fails to show that the claim is substantial or that it would have
provided relief in state habeas proceedings.
Barbee makes no argument in support of this claim, but simply
states that it “overlaps” with subclaims 5d and 5f, and incorporates
those arguments by reference.

(Doc. 61, p. 332.)

After carefully

reviewing the record, the Court concludes that this claim is not
substantial, as required by Trevino.
The Court first observes that there is little or no evidence
Barbee has sub-average intellectual functioning.
one “low-average” verbal IQ score.

Barbee presents

The remaining IQ scores are

average. The test results on the Wide Range Achievement Test-3 place
his academic achievement at the 7th- and 8th-grade levels, but as
the name implies, the test measures Barbee’s academic achievement
not his intelligence. Further undermining Barbee’s claim of low
intelligence is the report of Dr. Goodness who found that Barbee
suffered

no

developmental

delay,

does

not

possess

a

reading

disability, and was not exposed to alcohol in the womb. (SHR 54.)
Even Dr. Martin opined that Barbee’s reading skills and, to a lesser
degree, his spelling and math skills were consistent with his
educational level. (Doc. 66-3, p. 56; SHR 42.) Low academic
achievement can be caused by a number of factors other than low
intelligence, such as excessive school absences or a personal tragedy,

115

such as a death in the family.

The jury heard about Barbee’s

struggles with school after the death of his siblings, how he “shut
down,” dropped out of school, but eventually earned his GED.

(25

RR 138, 144.) These scores would simply be more details of what the
jury already knew.
Even assuming trial counsel were ineffective, however, Barbee
fails to demonstrate prejudice.

The jury knew Barbee received his

GED, attended community college, earned a diploma that allowed him
to become a police officer, operated two businesses with employees,
drove a Corvette, and owned the largest home in his neighborhood which
had a movie room and a pool. These circumstances suggest that Barbee
has not been hindered by his allegedly low intelligence and that a
reasonable juror would not find it significantly mitigating given
the facts of this particular case.
In short, there is no little or no evidence of low intelligence,
and the evidence Barbee does present fails to undermine confidence
in the verdict.

Accordingly, claim 5e has “no merit” and is also

procedurally barred.
E.

Brain damage (claim 5f)

Barbee contends counsel was ineffective for failing to present
expert testimony regarding the effects of Barbee’s head injuries,
including frontal lobe and brain impairment, as diagnosed by Dr.
Martin. (Doc. 61, p. 333.) Respondent argues that the state court’s
rejection of this claim was not unreasonable.

116

(Doc. 68, p. 138.)

“Counsel has a duty to make reasonable investigations or to make
a

reasonable

decision

that

makes

particular

investigations

unnecessary.” Strickland, 466 U.S. at 691. Barbee asserts that trial
counsel’s strategy was based on an unreasonable investigation because
they did not retain a neuropsychologist. “The selection of an expert
witness is a paradigmatic example of the type of ‘strategic choic[e]’
that, when made ‘after thorough investigation of [the] law and facts,’
is ‘virtually unchallengeable.’” Hinton, 134 S. Ct. at 1089 (quoting
Strickland, 466 U.S. at 690). When counsel recognizes the possible
issues regarding a client’s mental capacity and the need for expert
assistance and employs an expert at trial, counsel is not ineffective
for failing to canvass the field to find a more favorable expert.
Dowthitt v.Johnson, 230 F.3d 733, 748 (5th Cir. 2000), abrogated on
other grounds, Lewis v. Thaler, 701 F.3d 783, 790 (5th Cir. 2012).
This Circuit has held that “Counsel should be permitted to rely upon
the objectively reasonable evaluations and opinions of expert
witnesses without worrying that a reviewing court will substitute
its own judgment” and in hindsight “rule that his performance was
substandard for doing so.” Smith v. Cockrell, 311 F.3d 661, 676 (5th
Cir. 2002), overruled on other grounds, Tennard, 542 U.S. 274.
As stated above, trial counsel used two psychologists and a
psychiatrist to evaluate Barbee. Dr. Shupe met with Barbee for five
hours and reviewed extensive medical records. (SHR 98.) Dr. Goodness
conducted a risk assessment as well as a mitigation evaluation and

117

opined that Barbee did not appear to have significant symptoms
suggestive of a head injury. (SHR 54.) The state court’s conclusion
that

trial

counsel

conducted

a

reasonable

investigation

into

psychiatric and psychological evidence was not unreasonable, and
counsel was not ineffective for relying on the opinions of his experts
that there was no evidence of brain damage to explore further.
Aside from the fact that the experts did not find evidence of
brain damage, counsel faced the additional problem that such evidence
would be inconsistent with Barbee’s assertions of innocence and the
belief and testimony of other punishment witnesses that he was
innocent. Counsel also knew that the presentation of expert testimony
would subject Barbee to an evaluation by the state’s expert, (SHR
72,) which could lead to the disclosure of harmful information in
his past or a harmful diagnosis. Under these circumstances, any
disagreement with counsel’s decision not to pursue a brain-damage
theory is not a basis for finding counsel ineffective. See Wesbrook
v. Thaler, 585 F.3d 245, 251 (5th Cir. 2009)(holding that court may
not find ineffective assistance merely because it disagrees with
counsel’s trial strategy); see also Williams v. Cain, 125 F.3d 269,
278 (5th Cir. 1997) (concluding counsel is not deficient in failing
to locate an expert to testify that his client was retarded or
mentally ill when initial expert concluded otherwise, especially when
counsel knows of the state’s ability to rebut any such evidence with
its own experts).

118

Barbee also fails to demonstrate that the state court’s finding
of no prejudice was unreasonable. Although Barbee’s post-conviction
expert, Dr. Martin, opined that he had mild or subtle brain damage,
the State’s expert would have provided the opposite opinion because
he believed Dr. Martin erred in scoring and interpreting his raw test
data. (SHR 185.) The state court’s choice between two conflicting
experts does not demonstrate an unreasonable ruling under the AEDPA’s
deferential standards of review.

Kately, 704 F. 3d at 361 (state

habeas court is entitled to credit evidence, even though it is
contradicted).
Barbee contends, however, that the state-court ruling was
unreasonable “on its face” because, despite the conflicting expert
affidavits, the state court found that there were no controverted
factual issues.

(Doc. 61, p. 338.)

In fact, the state court found

that there were “no controverted, previously unresolved factual issues
material to the legality” of Barbee’s confinement and bypassed the
opportunity to hold a live hearing. (SHR 197. Emphasis added.) The
state court made this finding after receiving the parties’ briefs
and exhibits.

Barbee provides no authority, and this Court is not

aware of any, that such paper hearings render the state-court ruling
unreasonable.

See Green v. Johnson, 116 F.3d 1115, 1120 n.4 (5th

Cir. 2012) (noting that the Fifth Circuit has consistently upheld
the validity of paper hearings in state habeas proceedings).

119

Barbee fails to demonstrate that it was necessarily unreasonable
for the CCA to conclude (1) that he did not overcome the strong
presumption of counsel’s competence and (2) that he failed to
undermine confidence in the jury’s sentence of death. See Pinholster,
131 S. Ct. at 1403.

IX.

Claim 5f is denied.

PRETRIAL PUBLICITY AND COUNSEL’S FAILURE TO
MOVE FOR CHANGE OF VENUE (CLAIMS 6 & 7)

In claim 6, Barbee contends that the county where his trial was
held was so saturated with prejudicial and inflammatory media
publicity that a fair jury could not be seated. It created a hostile
atmosphere in which a fair trial was impossible, he argues, such that
prejudice is presumed and he need not show actual juror bias.

In

claim 7, he contends trial counsel were ineffective in failing to
move for a change of venue based on this unfair pretrial publicity.
Barbee acknowledges that these claims were raised for the first time
in his subsequent state application and dismissed as abusive.

He

argues, however, that any default may be excused under Trevino because
counsel who handled his first state writ was ineffective. Respondent
asserts that the claims are procedurally barred and have no merit.
As noted previously, the Trevino inquiry requires this Court
to examine whether the claim against trial counsel has “some merit.”
See Martinez, 132 S. Ct. at 1318.

The question of whether trial

counsel was ineffective for failing to move for a change of venue

120

(claim 7) depends on the viability of the pretrial publicity claim
(claim 6).
A.

The Court will therefore address claim 6 first.

Adverse pretrial publicity and change of venue (claim 6)
A petitioner seeking to challenge his conviction on the ground

that he was denied a fair trial before an impartial jury because of
adverse pretrial publicity ordinarily must demonstrate an actual,
identifiable prejudice attributable to that publicity on the part
of members of his jury.

See Mayola v. Alabama, 623 F.2d 992, 996

(5th Cir. 1980) (citing Irvin v. Dowd, 366 U.S 717, 723 (1961)). The
constitutional standard for ensuring a fair trial in the face of
prejudicial pretrial publicity can usually be satisfied through voir
dire that ferrets out such prejudice.

United States v. Lipscomb,

299 F.3d 303, 344 (5th Cir. 2002). “Prominence does not necessarily
produce prejudice, and juror impartiality . . . does not require
ignorance.”

Skilling v. United States, 561 U.S. 358, 381 (2010)

(emphasis in original). The Constitution is satisfied if “the juror
can lay aside his impression or opinion and render a verdict based
upon the evidence presented in court.”

See Irvin, 366 U.S. at 723.

There are circumstances, however, such as media interference
in the courtroom during trial or the repeated airing of a videotaped
confession, that warrant a presumption of prejudice without any
examination of the voir-dire transcript for actual juror prejudice.
E.g., Sheppard v. Maxwell, 384 U.S. 333 (1966) (due process denied
where 5-hour inquest of defendant without counsel was publicized live
121

from high school gymnasium and “bedlam reigned” during trial where
newsmen took over practically the entire courtroom); Estes v. Texas,
381 U.S. 532 (1965) (due process violated where massive press
clippings had given case national notoriety and at least 12 cameramen
were engaged in courtroom throughout pretrial hearing, taking motion
and still pictures); Rideau v. Louisiana, 373 U.S. 723 (1963) (due
process violated by televising defendant in the act of confessing
to the crime); Irvin, 366 U.S. at 727 (due process violated where
90% of prospective jurors entertained some opinion of defendant’s
guilt and 8 out of 12 jurors seated thought defendant was guilty).
Although Barbee’s claim relies on these cases, the Court does not
find any factual support for such a presumption. See Skilling, 130
S. Ct. at 2915 (holding that a presumption of prejudice attends only
the extreme case); Murphy v. Florida, 421 U.S. 794, 798 (1975)
(characterizing the reversals in Irvin, Rideau, Estes, and Sheppard
as based on a “trial atmosphere that had been utterly corrupted by
press coverage”).
Barbee’s claim is based on eighteen Internet articles published
by the Fort Worth Star Telegram between February 21 and 27th, 2005,
and one article published February 18, 2006. (Doc. 66-2, p. 80-120.)
Voir dire began in January of 2006. The articles contain fact-based
reporting on Barbee’s lack of a criminal record, Dodd’s arrest for
a parole violation, Barbee’s incriminating statements to the police,
events leading up to finding the bodies and the Durango, the pretrial

122

suppression hearing, and the allegations against Barbee.

They do

not assume his guilt. There are sympathetic articles about the victims as well. But none of the articles contain blatantly prejudicial
information of the type readers “could not reasonably be expected
to shut from sight.”

Skilling, 130 S. Ct. at 2916; see Beck v.

Washington, 369 U.S. 541, 556 (1962) (contrasting "straight news
stories" with “invidious articles which would tend to arouse ill will
and vindictiveness”). These articles, many of which contain the same
information republished over a week-long period, are far from showing
that the media coverage was inflammatory or vindictive.
Barbee does not show that this is one of those extreme cases
where press coverage has utterly corrupted the trial atmosphere, such
that prejudice is presumed. He does not allege actual prejudice or
otherwise attempt to demonstrate prejudice. Accordingly, Barbee fails
to show that a change of venue was required due to extensive pretrial
publicity. See Andrews v. Collins, 21 F.3d 612, 632 (5th Cir. 1994)
(finding no error in the denial of a venue change where publicity
concerning the murder was largely factual in nature and defendant
failed to uncover deep or widespread prejudice against him during
voir dire).
B.

Counsel’s representation (claim 7)

Trial counsel were, therefore, not ineffective for failing to
move for a change of venue.

See Koch, 907 F.2d 524, 527 (5th Cir.

1990)(counsel is not required to make futile motions or objections);
123

United States v. Parker, 877 F.2d 327, 330 (5th Cir. 1989) (holding
that a change of venue should not be granted on the mere showing of
widespread publicity).
The decision to forego a change of venue was professionally
reasonable for the additional reasons that, in counsel’s experience,
a venue change often results in the trial being held in a smaller,
more conservative county that is less favorable to the defense and
that believes the defendant is a notorious criminal.

Counsel also

believed that publicity issues can be adequately resolved in jury
selection, and this is supported by case law.

(Doc. 66-8, p. 2,

49);see Lipscomb, 299 F.3d at 344 (prejudicial pretrial publicity
can usually be ferreted out during voir dire).
Because trial counsel were not ineffective, habeas counsel did
not render ineffective assistance by failing to challenge their
representation.

Claims 6 and 7 are procedurally barred and not

subject to the exception in Trevino because the claims have no
merit.14

The Court also denies claims 6 and 7 on the merits.
X.

STATE COURT HEARING (CLAIM 8)

Relying on case law that predates the AEDPA, Barbee argues that
the state court violated his constitutional rights when it concluded
that there were no controverted, previously unresolved factual issues

14

The procedural default of claim 6 is not excused for the additional reason
that Barbee has not shown that the Trevino exception applies to pretrial publicity
claims.

124

material to the legality of his confinement and refused to hold a
live hearing on all but the conflict-of-interest claim.

He also

complains that the judge who presided over the proceedings was not
the same judge who presided over trial (that is, the same judge
alleged in claim 2 to have had a secret agreement with trial counsel),
and that the habeas judge adopted verbatim the State’s proposed
findings and conclusions.

Barbee concludes that the state court

essentially abdicated its constitutional responsibilities and was
a rubber stamp for the State. He contends its ruling is not entitled
to any deference and suggests that this Court is now required to hold
an evidentiary hearing under Townsend v. Sain, 372 U.S. 293 (1963).
He also asserts that the matter must be remanded for another
evidentiary hearing in state court.

(Doc. 61, p. 361, 363, 365.)

An attack on a state habeas proceeding cannot serve as a basis
for setting aside a valid conviction because it is “an attack on a
proceeding collateral to the detention and not the detention itself.”
Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (quoting Millard
v. Lynaugh, 810 F.2d 1403 (5th Cir. 1987).)

Barbee’s reliance on

the “full and fair” hearing requirements in Townsend and the former
statute are unpersuasive, moreover, given the subsequent amendments
in the AEDPA and the Supreme Court opinion in Pinholster. 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,

125

along with the other situations which previously swept aside the
presumption”); see also McCamey v. Epps, 658 F.3d 491, 497 (5th Cir.
2011)(noting that Pinholster narrows the circumstances under which
federal habeas hearings may be held). Under the AEDPA’s deferential
standard, the state habeas court is “not required to hold a live
evidentiary hearing or carry out any particular set of procedures;
it must only act reasonably.” Garza v. Stephens, 575 Fed. Appx. 404,
410 (5th Cir. 2014) (per curiam) (citing Valdez). The Fifth Circuit
also rejects the contention that habeas findings adopted verbatim
from those submitted by the State are not entitled to deference.
See Green, 699 F.3d at 416 n.8.

And it consistently upholds the

validity of paper hearings in state court.

Green v. Johnson, 116

F.3d at 1120 n.4.
In his reply, Barbee cites to Ford v. Wainwright, 477 U.S. 399
(1986) and Panetti v. Quarterman, 551 U.S. 930 (2007) for his
contention that a hearing is required when the petitioner makes a
substantial showing of ineligibility for the death penalty due to
insanity or incompetency and the state-court procedures provide an
inadequate opportunity to develop the claim.

In Ford, the Florida

procedures were inadequate because they denied Ford the opportunity
to present information relevant to his sanity, denied him the
opportunity to challenge or impeach state-appointed experts, and
placed the insanity decision wholly within the executive branch.
Ford, 477 U.S. at 400.

In Panetti, the state court conveyed false
126

information to Panetti’s counsel, failed to provide notice and keep
Panetti informed of his opportunity to present his case, and failed
to provide Panetti the opportunity to submit expert evidence in
response to court-appointed experts.

Panetti, 551 U.S. at 950-51.

Barbee, on the other hand, does not make a claim that he is
ineligible for the death penalty. He was not ignorant of the statecourt procedures and was not restricted in the evidence he could
attach to his state applications. He received expert assistance (Dr.
Martin); he then received federal funds to re-investigate his
mitigation case; and he was able to present a large quantity of
additional witness declarations in state court during the abeyance.
At the subsequent writ hearing, he examined trial counsel and the
trial judge regarding his allegation that they had a secret agreement.
He presented live testimony from his mitigation specialist and others.
He was able to cross-examine the State’s expert, Dr. Price, at the
subsequent writ hearing, although the State was unable to crossexamine his expert, since Dr. Martin did not testify.

Barbee’s

comparison of his case to Ford and Panetti is unpersuasive. The Court
denies claim 8.

XI.

DENIAL OF CHALLENGE FOR CAUSE (CLAIM 9)

In claim 9, Barbee contends the trial court erroneously denied
a defense challenge for cause to Juror 126, a “biased, pro-death
juror.”

Barbee argues that she had “misinformation” from various

media outlets and a “glaring belief in Petitioner’s guilt.”
127

He

contends that the trial court’s belief that the juror could base her
verdict strictly on the evidence presented at trial conflicts with
the record.

(Doc. 61, p. 379-80.)

He argues that such juror bias

requires automatic reversal.
Respondent contends the claim is barred because, although Barbee
complained about the denial of the challenge for cause on direct
appeal, his argument relied upon state law, not the federal
Constitution.

And, when the federal claim was presented in state

court during abeyance, it was dismissed as abusive.

(Doc. 68, p.

156-57.) The Court agrees that this claim is procedurally barred for
these reasons. See McGowen, 675 F.3d at 499; Barbee, 2008 WL 5160202,
at *7.

Barbee makes no argument to overcome the procedural bar.

Alternatively, the claim lacks merit. Barbee relies on Leonard
v. United States and Smith v. Phillips to argue that the seating of
a biased juror violates the Sixth Amendment. See Leonard v. United
States, 378 U.S. 544 (1964) (reversing conviction where prospective
jurors were sitting in courtroom and heard guilty verdict returned
against defendant in similar type case); Smith v. Phillips, 455 U.S.
209, 217 (1982) (“Due process means a jury capable and willing to
decide the case solely on the evidence before it, and a trial judge
ever watchful to prevent prejudicial occurrences and to determine
the effect of such occurrence when they happen”).

In cases where,

for example, the juror is an employee of the prosecuting agency, a
close relative of a participant in the trial or the criminal

128

transaction, or a witness or somehow involved in the crime, the Sixth
Amendment may require a presumption of juror bias.

See Brooks v.

Dretke, 444 F.3d 328, 330 (5th Cir. 2006).
Circumstances that may give rise to presumed bias are not present
in this case.

Nor does Barbee allege that he was denied the oppor-

tunity to prove actual bias. Indeed, he emphasizes his examination
of Juror 126 during voir dire and counsel’s argument on the challenge
for cause. Barbee simply contends that the state judge made the wrong
call when he denied the challenge as follows:
The Court, when she began to go into all this, I took–-I
observed her completely and totally the whole time. I have
listened to what she had to say. I vacillated as she
vacillated. And I feel like frankly that based upon what
I have observed that I am going to overrule the challenge
and she will be juror number 42. And it’s based strictly
on what I saw today and what I observed her to do.
(21 RR 71.)
Juror 126 had stated that, at least a year before, she had heard
two or three reports on television about a missing pregnant woman,
her body being found in a field, and her boyfriend borrowing a truck
and knowing where she was dumped.

At the time, Juror 126 believed

Barbee was involved because “most crimes are done by people that know
you” but she did not trust her memory and lost interest in the story
once the victim had been found.

She repeatedly asserted that she

did not have any opinions about Barbee because she did not know all
the facts at the time and news reports can be wrong. (21 RR 41, 4445, 47-60.)

129

Under questioning from both sides, Juror 126 maintained that
she had no preconceived opinions about the case based on what she
had heard in the news a year before, and the judge based his ruling
on his personal observation of her testimony and demeanor.
there is support in the record for the judge’s ruling.

Thus,

See Patton

v. Yount, 467 U.S. 1025, 1038-40 (1984) (upholding denial of challenge
for cause because judge is best situated to determine juror’s
impartiality when the testimony is ambiguous and contradictory).
Based

on

the

foregoing,

claim

9

alternatively, denied on the merits.

130

is

procedurally

barred

or,

XII.

DENIAL OF MOTION TO SUPPRESS (CLAIM 10)

In claim 10, Barbee cites the Sixth, Eighth, Thirteenth and
Fourteenth Amendments and contends that the trial court abused its
discretion under state law when it denied the motion to suppress his
unrecorded oral statements to the police. See Tex. Code Crim. Proc.
Ann. art. 38.22, § 3 (Texas statute on admission of oral statements).
(Doc. 61, p. 383-397.)
Respondent contends the claim is defaulted because, although
Barbee complained about the denial of the motion to suppress on direct
appeal, his appellate argument relied upon the Texas statute, not
federal law. And, when the federal claim was presented in state court
during abeyance, it was dismissed as abusive.

(Doc. 68, p. 160.)

Barbee argues in his reply that Respondent’s assertion is “massively
false” but to the extent the claim was not presented as a federal
constitutional claim on direct appeal, he contends it was due to
appellate counsel’s ineffectiveness.

(Doc. 77, p. 48.)

The Court agrees that the claim raised on appeal was based on
Texas law only. (Appellant’s Brief, p. 44, 62 (filed May 2, 2007).)
The federal-law-based claim is procedurally barred because it was
presented in the subsequent writ and dismissed as abusive.

(Doc.

66-1, p. 204.) Read Barbee, 2008 WL 5160202, at *10-13. See McGowen,
675 F.3d at 499. Furthermore, Barbee presents no argument or authority
for his suggestion that the ineffective assistance of appellate
counsel can excuse the procedural default.

131

(Doc. 77, p. 55.)

Assuming, however, that the claim is not defaulted, the Court would
deny it on the merits.
In his Reply, Barbee’s asserts that he “has very clearly spelled
out the constitutional dimensions of this claim in his petition.”
(Doc. 77, p. 55.)

But the petition contains no argument that the

trial court’s ruling violates clearly established federal law, or
any federal law. It asserts that the trial court erroneously relied
on the exception to the Texas statute prohibiting the admission of
unrecorded oral statements because, although Barbee led police to
the bodies, they would have found the bodies anyway based on what
Dodd had already told them. (Doc. 61, p. 390-97.) Barbee provides
no authority that a violation of this Texas statute is constitutional
error.

In fact, the case law he cites holds the opposite: Woods v.

State, 152 S.W.3d 105, 118-19 (Tex. Crim. App. 2004) (explaining that
violation of the procedural rule in article 38.22, § 3 is nonconstitutional error); Nonn v. State, 117 S.W.3d 874, 880-81 (Tex.
Crim. App. 2003) (same). (Appellant’s Brief, p. 60 (identifying error
as nonconstitutional).) Barbee has merely reworded the argument on
appeal without updating the research to include federal law. He fails
to present a cognizable constitutional violation. See § 2254(a);
Hughes v. Dretke, 412 F.3d 582, 590 (5th Cir. 2005)(holding that
petitioner seeking federal habeas review must assert a violation of
a federal constitutional right). The Court will not make his arguments
for him.
132

Based on the foregoing, claim 10 is procedurally barred or,
alternatively, denied on the merits.

XIII.

THE “12-10 RULE” (CLAIM 11)

In claim 11, Barbee asserts that Texas’s “12-10 Rule” violates
the Eighth and Fourteenth Amendments as well as the Texas constitution.15

(Doc. 61, p. 398-408.)

Respondent argues that this claim

is defaulted because it was not presented in state court until the
subsequent writ application, when it was dismissed as abusive.
Respondent also argues that the claim has been previously rejected
in this Circuit.

(Doc. 68, p. 162-64.)

Barbee makes no argument

to overcome the procedural bar.
Claim 11 is procedurally barred because it was raised in state
court during the subsequent writ proceedings and dismissed as abusive.
See McGowen, 675 F.3d at 499. Alternatively, claim 11 is denied on
the merits. See Druery v. Thaler, 647 F.3d 535, 543 (5th Cir. 2011)
(rejecting claim that the "12-10 Rule" violates due process and the
Eighth Amendment).

XIV.

LETHAL INJECTION PROTOCOL (CLAIM 12)

In claim 12, Barbee contends that Texas’ three-drug execution
protocol violates the Eighth Amendment because it creates a risk of
inflicting severe and unnecessary pain and suffering. (Doc. 61, p.

15

As stated in the previous claim, violations of state law do not provide
a ground for federal habeas relief. The allegation made under the Texas Constitution
will not be addressed.

133

410-424.) Respondent contends the claim is barred and, alternatively,
lacks merit under Baze v. Rees, 553 U.S. 35 (2008). (Doc. 68, p. 164.)
This claim was raised in Barbee’s subsequent state writ application and was dismissed as abusive. (Doc. 66-1, p. 231.) Read Barbee,
2013 WL 192068, at *1. Accordingly, claim 12 is barred from federal
review.

See McGowen, 675 F.3d at 499.

12 lacks merit.

In the alternative, claim

See Kerr v. Thaler, 384 Fed. Appx. 400, 405 (5th

Cir. 2010) (holding that challenge to Texas’ use of pancuronium
bromide in the lethal injection process is foreclosed by Baze v.
Rees).

XV.

FAILURE TO ASSIGN BURDEN OF PROOF
TO MITIGATION ISSUE (CLAIM 13)

In claim 13, Barbee asserts that Texas’s mitigation special issue
violates the Eighth Amendment because it fails to place a burden of
proof on the State and fails to provide an opportunity for meaningful
appellate review of the mitigation verdict. (Doc. 61, p. 425.)
Respondent argues that the state court correctly denied this claim
on appellate review.

(Doc. 68, p. 165.)

The Court agrees that this claim was not unreasonably rejected
by the state court.

See § 2254(d); Rowell v. Dretke, 398 F.3d 370,

378 (5th Cir. 2005) (holding that no Supreme Court or circuit
precedent requires that the mitigation issue be assigned a burden
of proof and that circuit precedent rejects the argument that it be
subject to appellate review by the state); Woods v. Cockrell, 307
134

F.3d 353, 359-60 (5th Cir. 2002) (explaining that Texas’s death
penalty statute is not constitutionally obligated to provide appellate
review of mitigation special issue because jury may be given unbridled
discretion to consider mitigating factors); see also Kansas v. Marsh,
548 U.S. 163, 173 (2006) (holding that a state death-penalty statute
may place on the defendant the burden of proving that mitigation
circumstances outweigh aggravating circumstances); Penry v. Johnson,
532 U.S. 782, 803 (2001) (referring to the Texas mitigating special
issue as a helpful frame of reference for a "clearly drafted catchall
instruction.").

Claim 13 is denied.

XVI. FAILURE TO INFORM JURY AS TO
THE EFFECT OF A DEADLOCK (CLAIM 14)
In claim 14, Barbee contends that the trial court violated the
Eighth Amendment by refusing to inform the jury that the failure to
answer a special issue would result in a life sentence.

(Doc. 61,

p. 440.) Respondent contends the claim is barred and, alternatively,
lacks merit. Barbee makes no argument to avoid a procedural default.
This claim was raised in state court in Barbee’s subsequent writ
application and was dismissed as abusive. (Doc. 66-1, p. 219.) Read
Barbee, 2013 WL 192068, at *1. Accordingly, claim 14 is barred from
federal habeas review. See McGowen, 675 F.3d at 499. In the alternative, claim 14 lacks merit.

See Jones v. United States, 527 U.S.

373, 379-82 (1999) (rejecting argument that Eighth Amendment requires
jurors to be instructed as to the effect of their inability to agree);
135

Sprouse v. Stephens, 748 F.3d 609, 623 (5th Cir. 2014) (noting that
clear Supreme Court and Fifth Circuit precedent foreclose grant of
COA on this issue).

XVII.

EVIDENCE OF FUTURE DANGEROUSNESS (CLAIM 15)

In claim 15, Barbee contends the evidence supporting the jury’s
answer

to

the

future-dangerousness

special

issue

is

legally

insufficient under Jackson v. Virginia, 443 U.S. 307 (1979). (Doc.
61, p. 443.) Respondent contends the state court reasonably denied
this claim on appeal.

(Doc. 68, p. 167.)

Barbee asserts that the

ruling was unreasonable because he had no prior convictions and the
assaults on his former wife were mutual arguments, were initiated
by Theresa, or were accidental.

Barbee argues that the threat to

run Theresa through the wood chipper was a joke that she did not take
seriously, and the verbal abuse of his former co-worker did not
indicate a propensity for violent acts. (Doc. 77, p. 55.)
The future-dangerousness issue asks the jury whether, beyond
a reasonable doubt, there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society. (2 CR 401.) The evidence is sufficient to support
the jury’s affirmative answer to this 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, 443 U.S. at 319; Martinez v. Johnson, 255 F.3d 229, 244 n.
21 (5th Cir. 2001) (noting that the Texas Court of Criminal Appeals
136

applies

the

Jackson

standard

to

future-dangerousness evidence).

evaluate

the

sufficiency

of

The 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 v. Johnson, 200
F.3d 274, 286 (5th Cir. 2000)(assessing evidence of future-dangerousness).

In Texas, factors that inform the future dangerousness

determination 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 acting under duress or the domination of
another at the time of the offense; psychiatric evidence; and
character evidence. Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim.
App. 1987). The state-court decision rejecting Barbee’s insufficiency
challenge may be overturned on habeas review only if the decision
was objectively unreasonable.

See Johnson, 132 S. Ct. at 2062.

Here, the state court unanimously concluded that the evidence
was sufficient for any rational trier of fact to have found beyond
a reasonable doubt that there is a probability Barbee would commit
criminal acts of violence that would constitute a continuing threat

137

to society.

Read Barbee, 2008 WL 5160202, at *6-7.

The CCA cited

the facts of the offense and Barbee’s escalating pattern of violence,
noting that the circumstances of the offense alone may be sufficient
to support an affirmative answer to the future-dangerousness issue.
In addition, Barbee verbally attacked a former co-worker, assaulted
his ex-wife, and threatened to put her through the wood chipper.
Unmentioned by the CCA, but certainly known to the jury, was a roadrage incident that occurred on Barbee and Theresa’s first wedding
anniversary, where Barbee followed a driver off the highway and threw
a punch at him through the car window.

(26 RR 49-51.)

Barbee’s

minimization of the details of his prior violence with Theresa and
his coworker does not demonstrate that the CCA’s interpretation of
those events was unreasonable. The evidence is viewed in the light
most favorable to the prosecution, and it is the jury’s role to decide
what conclusions should be drawn from the evidence at trial.

The

evidence is insufficient only if “no rational trier of fact” could
have agreed with the jury.

Johnson, 132 S. Ct. at 2062.

Barbee was thirty-six years old, not an immature young man who
might be prone to rash decisions. He made a deliberate and calculated
plan to kill Lisa in order to avoid the consequences of being named
father of her baby. He went to Lisa’s house with the intent to kill
her but could not do it. Upon further reflection and discussion with
Dodd, he did not abandon his plans, but steeled his resolve and
returned to her home to try again. The jury could reasonably conclude

138

that, at this point, Barbee knew Jayden was in the home and might
witness his mother’s murder. The jury could also reasonably conclude
that Barbee anticipated having to eliminate Jayden as a witness.
The murders were not instantaneous, as compared to shooting deaths.
See Martinez, 255 F.3d at 245 (noting that Martinez used knife, which
forces the user be in close proximity to victim such that he is often
touching him with each blow).

Barbee murdered both victims by

suffocating them with his bare hands, a process that took between
thirty seconds and seven minutes. (23 RR 184-85, 201.) He cleaned
the crime scene and then concealed the bodies and the Durango in
separate locations.
Barbee killed a pregnant woman and a child–-two especially
vulnerable types of victims.

Even given his lack of a criminal

record, any rational jury could conclude that a man who seeks to avoid
responsibility for a pregnancy by planning to kill the mother in front
of her seven year old son, and then fails to take an opportunity to
abandon that plan, has a propensity for violence with no internal
restraints. The state court’s ruling that the evidence was sufficient
under Jackson to support the jury’s answer to the future-dangerousness
special issue was not unreasonable. See Martinez, 255 F.3d at 244-45
(upholding state-court challenge to future dangerousness based on
facts of offense being a planned, violent murder).
denied. § 2254(d).

139

Claim 15 is

XVIII.

“DEATH QUALIFICATION” OF JURY (CLAIM 16)

In claim 16, Barbee argues for a change in the clearly
established federal law approving the “death qualification” of jurors
in death-penalty cases. In claim 16a, Barbee contends that the death
qualification of the potential jurors in this case violates due
process and equal protection because the jury’s duty at punishment
is a “moral and sympathetic” determination, such that the removal
of potential jurors for their moral views against the death penalty
is illogical and irrational on its face.

(Doc. 61, p. 447-50.)

Barbee argues that the removal of jurors who are morally opposed to
the death penalty violates the Eighth Amendment because such jurors
are the source of “objective information on the evolving standards”
of decency that control Eighth Amendment jurisprudence.

(Doc. 61,

p. 450-56.)
In claim 16b, Barbee argues that death qualification violates
the Fourteenth Amendment because it skews juries towards voting for
death, and because similarly situated defendants receive “vastly
different juries,” which violates the fundamental right to life. (Doc.
61, p. 457-60.)
In claim 16c, Barbee contends death qualification violates the
Eighth Amendment’s “heightened reliability” requirement because deathpenalty defendants face skewed, conviction-prone and death-penalty
prone juries that non-capital defendants do not. (Doc. 61, p. 46061.)

140

In 16d, Barbee contends the Supreme Court opinion in Lockhart
v. McCree, 476 U.S. 162 (1986), upholding the death qualification
of jurors, is based on “faulty analysis of scientific evidence, severe
misunderstandings of the claims, and baffling logic.” (Doc. 61, p.
461-63.)
Respondent contends the claim is procedurally defaulted, is
Teague-barred, and lacks merit. (Doc. 68, p. 169-72.) Barbee replies
that, “for the reasons discussed supra, procedural default is not
appropriate.”

He provides no page number to identify the reasons

to which he refers, however, and the Court finds no actual argument
to avoid procedural default on this claim. (Doc. 61, p. 463.)
This claim was raised in state court in Barbee’s subsequent
writ application and was dismissed as abusive. (Doc. 66-1, p. 261.)
Accordingly, claim 16 is barred from federal habeas review.

See

McGowen, 675 F.3d at 499.
Alternatively, the claim is Teague-barred and meritless. As the
parties observe, a death-qualified jury is one in which prospective
jurors are excluded for cause because their inability to set aside
their views about the death penalty would prevent or substantially
impair their ability to perform their duties in accordance with their
instructions and oath. See Buchanan v. Kentucky, 483 U.S. 402, 407
n.6 (1987); Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting
Adams v. Texas, 448 U.S. 38, 45 (1980)).

The Supreme Court held in

Lockhart that “the Constitution does not prohibit the States from
141

‘death qualifying’ juries in capital cases.” Lockhart, 476 U.S. at
173.
The cases relied upon by Barbee do not purport to overrule
Lockhart and the Supreme Court has never adopted the minority view
in Lockhart.

As such, Barbee is asking the Court to recognize and

retroactively apply a new constitutional rule of criminal procedure
that would violate Teague v. Lane, 489 U.S. 288, 310 (1989) (holding,
with two exceptions, that new constitutional rules of criminal
procedure are not applicable to cases which became final before the
new rule was announced). See Caspari v. Bohlen, 510 U.S. 383, 390
(establishing procedure for federal courts to apply Teague). Claim
16 is Teague-barred. To the extent Barbee contends current case law
supports his position, the claim also lacks merit.

XIX.

INTERNATIONAL LAW (CLAIM 17)

In claim 17, Barbee contends that the “improprieties of the
[Texas] capital sentencing process” argued in this petition violate
international law and the Eighth Amendment, to the extent that the
Amendment’s evolving standards of decency incorporate international
legal norms. (Doc. 61, p. 464-68.) Respondent argues that this claim
is barred because it was presented in state court in Barbee’s
subsequent writ application and dismissed as abusive. (Doc. 68, p.
173.) Barbee does not make an argument to avoid the procedural bar,
but simply asserts that a de-novo standard of review applies because
the state court did not address the claim on the merits.
142

(Doc. 61,

p. 468; Doc. 77, p. 55-56.)
barred.

Accordingly, federal habeas review is

See McGowen, 675 F.3d at 499.

Alternatively, the claim lacks merit. Barbee fails to identify
clearly established Supreme Court precedent to support his argument
that the International Covenant of Civil and Political Rights
(“ICCPR”) prohibits the death penalty as it is carried out in Texas.
Even assuming that the text of the ICCPR does prohibit the death
penalty, Barbee provides no authority that the treaty is selfexecuting and binding on the states. In apparent acknowledgment of
the absence of controlling authority, Barbee asks the Court to
reconsider the circuit authority that forecloses his claim.

(Doc.

61, p. 465-66.) Beazley v. Johnson, 242 F.3d 248, 263-64 (5th Cir.
2001)(recognizing that when the United States Senate ratified the
ICCPR, it reserved “the right, subject to its Constitutional
constraints, to impose capital punishment on any person (other than
a pregnant woman)” and declared that the ICCPR provisions were not
self-executing); United States v. Duarte-Acero, 208 F.3d 1282, 1284-87
(11th Cir. 2000) (rejecting claim on direct appeal that ICCPR creates
double jeopardy bar that is broader than Constitution’s).
The Court may not forge a new rule for a procedurally barred
claim, the recognition and retroactive application of which might
violate Teague, 489 U.S. at 310. The Court denies claim 17 as Teaguebarred, procedurally barred, and lacking merit.
XX.

ASSISTANCE OF APPELLATE COUNSEL (CLAIM 18)

143

In claim 18, Barbee makes a catch-all assertion that “any purelyrecord-based claims or sub-claims discussed herein could and should
have been raised on the direct appeal if the basis for them was
entirely present in the record itself,” and that appellate counsel’s
failure to raise such claims or sub-claims amounts to ineffective
assistance under Strickland. Barbee does not identify any particular
claim, sub-claim, or instance of ineffective representation on appeal.
(Doc. 61, p. 469-71.) Barbee concludes instead that “should this or
any subsequent court hold that any purely-record-based claims or subclaims were not properly brought on the direct appeal Petitioner
submits that although he had counsel on appeal, that counsel did not
provide the representation mandated by the Constitution.” (Doc. 61,
p. 470.)
As with previous claims, Barbee raised this claim in his
subsequent state habeas application, and it was dismissed as abusive.
He makes no argument to overcome the procedural bar. (Doc. 61, p.
471.) He simply asserts in his Reply, “As discussed supra, procedural
default is not appropriate for any of petitioner’s claims.”
77, p. 56.)

(Doc.

Barbee does not identify the page or part of his Reply

to which “supra” refers.
The claim is procedurally barred. See McGowen, 675 F.3d at 499.
Moreover, the claim fails to identify facts which, if true, would
entitle Barbee to relief.

Specifically, the claim is conclusory

because it fails to set forth the nature of counsel’s alleged errors

144

and fails to identify any resulting prejudice. See Miller, 200 F.3d
at 282 (holding that district court properly denied claims of
ineffective assistance as conclusory where Miller failed to set forth
nature of errors and did not assert any resulting prejudice). Claim
18 is denied because it is procedurally barred and conclusory.

XXI.

MEDICAL EXAMINERS’ QUALIFICATIONS (CLAIM 20)

In claim 20, Barbee asserts that one and perhaps both assistant
medical examiners who testified about the victims’ autopsy results
were “not operating properly as a medical examiner and should not
have been allowed to testify in this case.”

(Doc. 61, p. 481.)

Barbee appears to allege that Dr. Krause was not operating under the
color of Texas law because his employer, the chief medical examiner
of Tarrant County, is actually a corporation and a corporation cannot
hold public office. He claims this denied him due process and a fair
trial.

Respondent argues that the claim is barred because it was

raised in Barbee’s subsequent state habeas application and dismissed
as abusive.

(Doc. 68, p. 182.)

Barbee acknowledges this but does

not assert cause to excuse the procedural bar. The Court agrees that
the claim is barred.

See McGowen, 675 F.3d at 499.

Alternatively, the claim lacks merit. Barbee provides no
authority for his position that the experts could not occupy their
positions as assistant medical examiners under Texas law. The case
he relies upon, Garcia v. State, 868 S.W.2d 337, 339-42 (Tex. Crim.
App. 1993) holds only that the medical examiner’s office is a public
145

office and that autopsy reports prepared by the medical examiner are
not excluded by the Texas hearsay rule.
Furthermore, while “certain egregious evidentiary error may be
redressed by the due process clause,” Barbee’s allegation, even if
it were true, does not rise to this level of error.

Little v.

Johnson, 162 F.3d 855, 860 (5th Cir. 1998) (quoting Barefoot v.
Estelle, 697 F.2d 593, 597 (5th Cir. 1983).) Barbee challenges the
experts’ qualifications under state law to hold public office, not
their qualifications in their field of expertise. Nor did he challenge
their qualifications at the time of trial.

(23 RR 137 (counsel

stating that he had no problem with Dr. Krouse’s credentials or
education), 24 RR 167-68). Barbee’s complaint is a legal technicality
which he fails to show undermines the reliability of their testimony.
To the extent he complains that their testimony harmed him
because it was “speculative and conjectural,” this matter has already
been addressed in claim 4d. The indictment alleged two alternative
manner and means for each victims’ death.

(1 CR 2.) The testimony

that Barbee describes as “speculative and conjectural” was offered
to prove the various alternative manner and means that were alleged.
See Sanchez, 376 S.W.3d at 774 (holding that because indictment
permitted a conviction under four alternative manner and means, the
State could obtain a conviction if any of the alternatives were
proven).

146

Finally, Barbee claims he has not been able to fully develop
the prejudice component of this claim or show that the experts’
testimony was flawed because this Court denied funding for a
coroner/pathologist. (Doc. 61, p. 484; Doc. 23.) Despite being given
the opportunity to supplement his request for funds prior to abeyance,
Barbee’s request for a coroner/pathologist failed to identify a theory
under which the testimony was erroneous, let alone constitutionally
erroneous. He complained only that the testimony was “speculative”
and that he needed to retest or re-examine unidentified trial evidence
in relation to an ineffective-assistance claim against trial counsel.
(Doc. 19, p. 13; Doc. 22, p. 13.) This request does not even appear
to be relevant to this claim, which challenges the witnesses’
qualification to hold office under state law. At the time, moreover,
this claim was unexhausted. Barbee then raised it in his subsequent
state habeas application, where it was dismissed, and he filed no
further funding requests in this Court post-abeyance.

The Court

remains convinced that it properly denied funding.
This claim is procedurally barred and, alternatively, lacks
merit. The Court denies claim 20.

XXII.

CUMULATIVE ERROR (CLAIM 21)

In claim 21, Barbee alleges that he was denied due process by
the cumulative effect of all the alleged errors briefed in his
petition, even though each may be harmless or not found to be a
constitutional violation. He acknowledges that this claim was raised
147

in his subsequent state habeas application and dismissed as abusive.
(Doc. 61, p. 486-88.) Respondent argues that the claim is barred under
Coleman, and Barbee does not argue any cause to excuse the default.
The Court agrees the claim is barred. See McGowen, 675 F.3d at 499.
Alternatively, the claim lacks merit. “[F]ederal habeas corpus
relief may only be granted for cumulative errors in the conduct of
a state trial where (1) the individual errors involved matters of
constitutional dimension rather than mere violations of state law;
(2) the errors were not procedurally defaulted for habeas purposes;
and (3) the errors “so infected the entire trial that the resulting
conviction violates due process.” Derden v. McNeel, 978 F.2d 1453,
1454 (5th Cir. 1992) (quoting Cupp v. Naughten, 414 U.S. 141, 147
(1973)).

Although Barbee alleges cumulative error, he fails to

identify the errors upon which he relies and fails to explain how
the alleged errors work together to deny him a fair trial. The Court
has not found any error in this case.

His claims are procedurally

barred, conclusory, non-cognizable or lack merit.

The Court has

reviewed the record in its entirety and finds no cumulative error
that so infected the entire trial that the resulting conviction
violates due process.

Id.

Claim 21 is denied because it is

procedurally barred and lacks merit.

XXIII.

REQUEST FOR HEARING

The Court previously denied without prejudice Barbee’s motion
for an evidentiary hearing because the motion was unhelpful to the
148

Court.

In doing so, the Court stated that it would revisit the

hearing request when it addressed the petition in full.

Having

considered the full briefing on these issues, the Court now determines
that the request for a hearing should be denied.
The Court has discretion to grant a hearing if one is not barred
under § 2254(e)(2). Schriro v. Landrigan, 550 U.S. 465, 468 (2007).
In 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. Landrigan, 550 U.S. at
474. 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 § 2254(d), a district court is not required to hold an
evidentiary hearing. Id.
Barbee’s innocence claim (claim 1) is not a substantive claim
for relief.

The Court further found that it lacks new evidence of

innocence and is unsound.

The Court has concluded that the state

court did not unreasonably deny on the merits claims 2, 3a, 4b, 5d,
5f, 13, 15, and 19, thereby precluding relief under § 2254(d). The
Court assumed claims 5b and 5c were not defaulted, and denied relief
on the merits under § 2254(d) as well as on de-novo review. The Court
determined the following claims were procedurally barred and, in the
alternative, lacked merit:
20, and 21.

3b, 4a, 4c, 4d, 5a, 5e, 6, 7, 9-12, 14,

The Court found claims 16 and 17 to be procedurally

149

defaulted, lacking merit, and Teague-barred.

Finally, claim 18 is

procedurally barred and fails to allege facts that would entitle
Barbee to relief.
In short, habeas relief is precluded because the claims are
either barred, were not unreasonably adjudicated under § 2254(d),
or fail to allege a viable claim of federal constitutional merit.
A hearing is inappropriate, and the Court therefore denies Barbee’s
request for a hearing.

XXIV.

CONCLUSION

Based on the foregoing, the Court DENIES Barbee's petition for
a writ of habeas corpus.
In accordance with Federal Rule of Appellate Procedure 22(b)
and 28 U.S.C. § 2253(c), the Court DENIES Barbee a certificate of
appealability because he has (1) failed to make a substantial showing
of the denial of a constitutional right, and (2) failed to show that
jurists of reason would find it debatable (a) whether the petition
states a valid claim of the denial of a constitutional right and (b)
whether the Court was correct in its procedural rulings. See Miller-El
v. Cockrell, 537 U.S. 322, 338 (2003); Slack v. McDaniel, 529 U.S.
473, 483-84 (2000); 28 U.S.C. § 2253(c)(2). If Barbee files a notice
of appeal, he may proceed in forma pauperis on appeal.
§ 3006A(7).

150

18 U.S.C.

XXV. STATEMENT REGARDING BRIEFING AND
ORDER TO COMPLY WITH LOCAL PAGE LIMIT RULES
Barbee’s first federal petition exceeded 300 pages, excluding
exhibits. (Doc. 24.) The amended petition filed after abeyance was
492 pages long, also exclusive of exhibits. (Doc. 61.) His motion
for hearing was 46 pages.
pages. (Doc. 68.)

(Doc. 73.)

The State’s answer was 191

In a motion requesting additional time to file

his reply, Barbee cited the length of the petition and the answer
as one of the reasons why he needed more time. (Doc. 69.) The Court
granted the extension of time, but limited the reply to 25 pages.
(Doc. 70.)

Barbee filed a 102-page reply with a motion for leave

to exceed the page limit.

(Doc. 72.)

The Court granted leave to

file a reply not exceeding 50 pages and ordered that all future
filings comply with the page limits in the local rules. (Doc. 74.)
In that order, the Court noted that Barbee’s excessive and careless
briefing interfered with the adjudication of the case and the
functioning of the Court. The Court’s initial concern was that the
excessive length and heavy reliance on boilerplate and crossreferencing would obscure important points in inconspicuous places.
But the Court’s concerns go deeper.
While habeas proceedings are used to challenge presumptively
valid state-court convictions, many of Barbee’s arguments are not
designed to overcome this presumption.

Rather, they assume he is

innocent and from this premise conclude that what occurred in state
court is, therefore, error. In other places, the amended petition
151

simply reasserts the argument that was presented in state court,
citing only favorable facts. The arguments frequently fail to acknowledge contrary facts and contain misrepresentations.16 The multiple
claims against trial counsel are in large part duplicative. Many
claims are conclusory. Some claims rely upon multiple constitutional
provisions that are not briefed.17

The facts often are not joined

to the boilerplate law, leaving the reader to make the argument by
following ambiguous references to other sections.

The writing

contains hyperbole and denigrates trial counsel. (Doc. 61, p. 255-56.)
In short, the “kitchen sink” approach and lack of editing have
resulted in a pleading that is not merely vexing and unhelpful to
the Court, but untrustworthy.
The petition does not meet the requirement that filings be nonfrivolous, reasonably accurate, and not needlessly increase the cost
of litigation.

See Fed. R. Civ. P. 11(b).

Counsel is warned that

future filings of this caliber may result in the imposition of sanc-

16
E.g., false quote in confession expert's letter (p. 140-41); suggestion
that trial counsel fired the mitigation specialist from this case (p. 194);
suggestion that Mr. Ray did not tell Dr. Leo that Barbee admitted moving the bodies
and suggestion that Mr. Ray did not correct false information initially given about
cell phone records (p. 180-81); assertion that Maxwell’s mitigation report was
given to the prosecution and used against Barbee (p. 208, 318-19); assertion that
Barbee did not tell Trish he committed the murders, but only told her he moved
the bodies (p. 225).
17

For example, the ineffective-assistance allegations in claim three state
that Barbee’s “conviction, judgment, sentence and confinement are illegal and were
obtained in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights
to a fair and impartial jury, the presumption of innocence, a fair trial, freedom
from self-incrimination, effective assistance of counsel, due process of law, and
reliable guilt and penalty determinations, because trial counsel failed adequately
to prepare for trial.” The attending argument, however, cites only to the Sixth
Amendment. (Doc. 61, p. 216, 217).

152

tions.

Id.

Judges are “like other mortals” with a “finite supply

of time and trust.” See Miller v. Keeney, 882 F.2d 1428, 1434 (9th
Cir. 1989).
It is apparent that these problems are facilitated and exacerbated by the sheer length of the documents filed by counsel. As such,
the Court’s order to comply with the page limits imposed by local
rules remains in effect. Post-judgment filings that exceed the page
limits will be stricken.
SIGNED July 7, 2015.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/ks:bb

153