Hummel v. Stephens
Filing
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Memorandum Opinion and Order. Because Petitioner is not entitled to relief on any of his AEDPA claims, the Court DENIES his Petition for a Writ of Habeas Corpus (ECF No. 12). In accordance with Federal Rule of Appellate Procedure 22(b) and 28 U.S .C. § 2253(c), and after considering the record in this case, the Court DENIES Petitioner a certificate of appealability because he has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); see Mill er-El v. Cockrell, 537 U.S. 322, 33638 (2003); Slack v. McDaniel, 529 U.S. 473, 48384 (2000). If Petitioner files a notice of appeal, he may proceed in forma pauperis on appeal. 18 U.S.C. § 3006A(d)(7). It is ORDERED that this case is DISMISSED with prejudice. (Ordered by Judge Reed C. O'Connor on 1/3/2018) (trt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JOHN HUMMEL,
Petitioner,
v.
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
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Civil Action No. 4:16-cv-00133-O
Death Penalty Case
MEMORANDUM OPINION AND ORDER
Petitioner John Hummel (“Petitioner”) petitions the Court for a writ of habeas corpus,
contending that his conviction and death sentence are unconstitutional because (1) he was denied
effective assistance of counsel at trial; (2) he was denied effective assistance of counsel on direct
appeal; (3) the jury instruction is unconstitutional; and (4) the Texas death penalty statute is
unconstitutional. Having reviewed the record, briefs, exhibits, and oral argument of the parties, the
Court concludes that Petitioner is not entitled to relief under the standards prescribed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), DENIES the petition, and
DISMISSES this action with prejudice.
I.
BACKGROUND
On June 28, 2011, a jury in Texas state court convicted Petitioner of capital murder.
4 Clerk’s Record 1 (“CR”) 747–50. After receiving jury answers to special issues on future
dangerousness and mitigation, the trial court sentenced Petitioner to death. Id. The Texas Court of
1
The Clerk’s Record is the district court clerk’s record containing the papers filed during trial.
1
Criminal Appeals (“CCA”) affirmed the conviction on direct appeal. Hummel v. State, No.
AP-76,596, 2013 WL 6123283, *1–4 (Tex. Crim. App. 2013), cert. denied 135 S. Ct. 52 (2014).
While direct appeal was pending, Petitioner filed a state habeas petition in Texas state court. 1 Sate
Habeas Clerk’s Record2 (“SHCR”) 2–468. The trial judge in the habeas proceeding—who had also
presided over the trial—entered findings of fact and conclusions of law recommending denial of
relief. 4 SHCR 1398–1534. The CCA denied habeas relief. Ex parte Hummel, No. WR-81,578-01,
2016 WL 537608 (Tex. Crim. App. 2016), cert. denied 137 S. Ct. 63 (2016). Petitioner timely filed
a federal habeas petition in this Court on February 4, 2017. Petition, ECF No. 12. Respondent filed
its Response on July 6, 2017, Resp., ECF No. 26, and Petitioner filed a Reply on August 2, 2017.
Reply, ECF No. 29. On December 18, 2018, the Court held a hearing on this matter to allow the
parties to present anything in support of their respective positions. Electronic Minute Entry, ECF
No. 37.
A.
Facts of Petitioner’s Crime and Capture
The Court adopts the following recitation of facts from the CCA’s opinion on direct appeal:
In Fall 2009, [Petitioner] resided in a house on Little School Road in Kennedale
with his pregnant wife, Joy Hummel; their five-year-old daughter, Jodi
Hummel; and [Petitioner’s] father-in-law, Clyde Bedford. [Petitioner] worked
as an overnight security guard at Walls Hospital in Cleburne, and he often
stopped at an E–Z Mart convenience store in Joshua on his way to and from
work. He met Kristie Freeze, who worked as a clerk at the E–Z Mart, and he
called and texted her numerous times between October and December 2009.
Freeze testified that [Petitioner] told her that he was married, but he was not in
love with his wife. Freeze also informed [Petitioner] that she was divorcing her
husband and dating someone else. Although Freeze initially told [Petitioner]
that they could only be friends, they sent each other sexually explicit text
messages and eventually had sexual intercourse on December 10. [Petitioner]
informed Freeze that his wife was pregnant a few days later. Freeze instructed
[Petitioner] not to contact her anymore, but he continued to call and text her.
On December 16, Freeze told [Petitioner] that her divorce had become final.
The State Habeas Clerk’s Record is the district court clerk’s record containing the papers filed in the
convicting court during the state habeas proceedings.
2
2
Lorie Lewallen, a cook who worked the night shift at the Huddle House
restaurant near the E–Z Mart, testified that [Petitioner] regularly came into the
restaurant on his way to and from work in December 2009. He usually wore his
work uniform, sat in a booth that faced Lewallen, and talked to her while she
cooked. However, when [Petitioner] was there on the night of December 16, he
sat facing away from Lewallen, wore “street clothes,” and “reeked of cologne.”
Lewallen testified that [Petitioner] was unusually quiet and seemed “like
something was on his mind” that night.
Freeze testified that she permitted [Petitioner] to visit her and her young
daughter at their apartment in Joshua on the evening of December 17.
[Petitioner] arrived after dark wearing his security-guard uniform and stayed
for about thirty minutes.
In the early morning hours of December 18, emergency personnel responded to
a fire at [Petitioner’s] home. A passerby noticed that the house was on fire
shortly after 12:00 a.m. and called 9-1-1. When police officer Joshua Worthy
arrived at the scene approximately fifteen minutes later, he kicked open the
front door and was unable to see anything but smoke and flames inside the
house. He yelled to determine if anyone was inside, but no one responded. He
also noticed that the back door to the residence was open. Firefighters later
extinguished the blaze and discovered the burned bodies of Joy, Jodi, and
Bedford, each inside of his or her bedrooms. Jodi and Bedford were found in
their beds. Joy was located on the floor, with blood-soaked clothing nearby.
Agent Steven Steele of the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) investigated the scene and observed that Joy had injuries
to her hands and upper body that appeared to be caused by some means other
than the fire.
[Petitioner] approached Officer Worthy outside the house at around 4:30 a.m.
He asked Worthy what had happened and “if everyone had made it out[.]”
Worthy replied that he did not know, and he accompanied [Petitioner] to his
minivan that was parked in a church parking lot across the street. Worthy and
[Petitioner] conversed while [Petitioner] sat in his minivan and smoked a
cigarette. [Petitioner] told Worthy that he lived in the house with his pregnant
wife, daughter, and father-in-law. Worthy testified that [Petitioner] placed his
“head down in his hands” a few times during their conversation, but he “wasn’t
crying” and was just “basically sitting there.” When Captain Darrell Hull
walked over to them and asked [Petitioner] what he had been doing that
evening, he replied that he had gone to Walmart to check prices for Christmas
presents. [Petitioner] continued to ask “if everybody had made it out[,]” and the
officers again responded that they did not know.
Hull testified that [Petitioner] agreed to follow him to the Kennedale Police
Department in his own minivan, and they arrived around 5:15 or 5:30 a.m. Hull
took [Petitioner] to a room and asked [Petitioner] to write a statement
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explaining what happened. He left [Petitioner] alone in the room to write his
statement and began recording [Petitioner]. Hull testified that [Petitioner]
signed a witness statement that read,
So I left my home around 9:00 p.m. I drove down to Joshua to visit a
friend but [he] was not home. I drove around for a while to wait and see
if he would come home, but he didn’t. I stopped and got gas, drove
around some more. Then I began to visit Walmarts to price things for
Christmas. I came home a little after 5:00 a.m. and found it burned
down, and firemen and police were still there.
[Petitioner] also provided written consent for police to search his house and van.
During the interview with Detective Jason Charbonnet, Sergeant Eric Carlson,
and Agent Steele, Steele noticed what appeared to be blood on [Petitioner’s]
pants. Steele testified that [Petitioner] agreed to give him the clothes [Petitioner]
was wearing in exchange for clothes provided by another officer. When
[Petitioner] changed clothes, Steele observed blood on the bottom of his sock
and scratch marks on his back.
[Petitioner] thereafter left the police department and went to the office of his
employer, Champion Security, in Arlington. He arrived at 8:00 a.m. He
attended a meeting, then picked up his paycheck before leaving the office at
11:00 a.m. Co-workers who spoke to [Petitioner] that morning were unaware
that anything unusual had happened until people began calling and asking for
him later that day. [Petitioner’s] co-workers and his friends from church were
unable to reach him on his cell phone. Later, a concerned friend went to the
police department to file a missing-person report on [Petitioner].
Steele and other arson investigators ultimately determined that the fire at
[Petitioner’s] home was an “incendiary fire,” and they ruled out accidental
causes. Steele testified that there were three separate and distinct fires, or “areas
of origin,” within the house. Shiping Bao, the Deputy Medical Examiner who
performed Joy’s autopsy, testified that Joy was pregnant with a fourteen to
fifteen week old fetus when she died. Joy had a total of thirty-five stab wounds,
including ten to her chest, two to her abdomen, one to her right thigh, seven to
her neck, and fifteen to her back. She suffered damage to her internal organs,
including her heart, lungs, and liver. She had incised wounds on her hands that
appeared to be defensive in nature. She also had six lacerations on her skull,
which indicated that she had been struck multiple times with a hard object. Bao
concluded that the cause of Joy’s death was multiple stab wounds and the
manner of her death was homicide. The lack of soot in her airways and the lack
of carbon monoxide in her blood indicated that she was dead before the fire.
Deputy Medical Examiner Gary Sisler testified that both Bedford and Jodi
suffered extensive skull fractures. Sisler determined that the cause of their
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deaths was blunt-force injury, the lack of soot in their airways indicated that
they were dead before the fire, and the manner of their deaths was homicide.
On December 20, Customs and Border Protection Officer (“CBP”) Jorge Bernal
encountered [Petitioner] at the United States port of entry between Tijuana,
Mexico, and San Ysidro, California. Bernal testified that [Petitioner]
approached his booth on foot and presented himself for entry into the United
States at 5:48 a.m. When Bernal entered [Petitioner’s] name and date of birth
into the computer system, an “armed and dangerous” notification “popped up
on [the] screen.” [Petitioner] was handcuffed and taken to the Port Enforcement
Team for further investigation. He was later transported to the San Diego
County Jail.
That night, Kennedale officers Carlson and Charbonnet and Investigator James
Rizy of the Tarrant County District Attorney’s Office arrived at the San Diego
County Jail. They mirandized [Petitioner], conducted a videotaped interview
with him, and obtained consent to search his minivan in San Ysidro and his
hotel room in Oceanside, California. [Petitioner] confessed his involvement in
the instant offense both orally and in writing. Rizy testified that [Petitioner’s]
written statement read:
I left the house at 9:00 p.m. Thursday[,] December, 12/17/2009, in my
uniform. Stopped at a store to get some cigarettes off of Mansfield
Highway. Went to Joshua to visit Kristie. Sat in her living room to watch
TV. I left her house and went and got gas. I then went home, killed my
family, set the house on fire, drove around and looked around for a place
to dump the weapons.
Then I drove back to Burleson to go to that Walmart. Then just drove
around and stopped at various other [w]almarts to be seen on camera
until it was time for me to go home. I knew I could not tell y’all I was
working because y’all would check. I then went to the police station in
Kennedale and lied to detectives about knowing what happened.
On 12/18 of ‘09, after being released by detectives, I realized they had
enough evidence to prove I did [those] horrible . . . things. So I went to
my work office to pick up my check and cashed it. I then proceeded to
drive to California late Saturday night. I arrived in Oceanside,
California, and met a man. We drove down to Tijuana. Returning to
U.S., border patrol checked my ID and found out I had [a] warrant. I’m
glad that I got caught so I could tell the truth about what happened.
I remember standing there holding the kitchen knife contemplating on
whether or not to kill my wife for about 30 minutes. I stabbed her in the
neck. She screamed. The knife broke. She began to try and fight back. I
grabbed the baseball bat and hit her in the head repeatedly until she fell
5
on the ground. Then I grabbed some of my other knives and swords
[and] began stabbing her.
I then killed my father-in-law and daughter by striking them in the head
with a baseball bat. Then I set the fires.
Officers collected video that confirmed [Petitioner’s] presence at Huddle House
on December 16 and E–Z Mart on December 17. They also obtained video that
confirmed [Petitioner’s] presence at Walmart stores in Burleson, Grand Prairie,
and Arlington on December 18. Store receipts indicated that [Petitioner] was
present at the Burleson Walmart at 1:46 a.m. and the Grand Prairie Walmart at
4:33 a.m.
In the early morning hours of December 21, officers searched a dumpster at an
auto parts store in Arlington, Texas, and found a number of weapons including
an aluminum baseball bat, a large sword and sheath, a small sword and sheath,
a dagger, and a kitchen knife. The small sword, dagger, and kitchen knife were
contained in a white plastic trash bag, and the handle of the dagger appeared to
be broken. DNA testing was performed on these weapons and on [Petitioner’s]
clothing that he gave to officers at the Kennedale Police Department.
[Petitioner’s] socks and pants had areas that tested positive for blood. Joy’s
DNA profile matched DNA profiles from [Petitioner’s] socks and pants, as well
as the large sword, dagger, and kitchen knife. Bedford’s DNA profile was the
same as DNA profiles that were obtained from [Petitioner’s] pants and the white
plastic trash bag. Jodi’s DNA profile was the same as a DNA profile obtained
from an area on the aluminum baseball bat that tested presumptively positive
for blood. The DNA profile obtained from the dagger handle and the large
sword sheath was the same as [Petitioner’s] DNA profile. Neither [Petitioner]
nor Joy could be excluded as contributors to a DNA mixture that was obtained
from the small sword.
Hummel, 2013 WL 6123283, at *1–4.
B.
State’s Evidence of Petitioner’s Sexual Deviancy and Illegal Drug Use
At the punishment phase of trial, the State presented evidence of Petitioner’s sexual
deviancy and illegal drug use. Prior to the murder, on December 18, 2009, Petitioner’s employer
counseled him regarding infractions he had committed while on the job, including watching
television instead of working and using doctors’ equipment and computers without authorization.
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42 Reporter’s Record3 (“RR”) 9–11. Specifically, Petitioner accessed 2,338 pornographic images
during his unauthorized computer use. Id. at 98–99, 105–06, 144; 43 RR 33. Petitioner also used
the website horneymatches.com to solicit women to meet him for sexual encounters at the hospital
while he was on-duty. 43 RR 30–32. Petitioner admitted to these infractions. 42 RR 12.
Also prior to the murder, in the fall of 2009, Petitioner repeatedly contacted Gretchen Bow,
a dancer at the Showtime club, met her at the club, and each time payed her at least $100 to perform
for him individually. Id. at 112–13, 120. Petitioner frequently asked Bow to visit him at the hospital
while he was working so that they could “smoke weed and [do] other things.” Id. at 114–15.
After the murder, Petitioner fled from Texas, checked into the Coast Inn in Oceanside,
California, and went to the gentlemen’s club next door. 41 RR 17–18. Outside the hotel, he met
Scott Matejka. Id. at 19; 42 RR 27. Matejka was carrying crack-cocaine, and he and Petitioner
smoked it together. Id. at 29; 42 RR 29. Matejka and Petitioner then traveled together to Tijuana
in search of marijuana. Id. at 29; 42 RR 31–32. While in Mexico, Petitioner and Matejka visited
another gentlemen’s club. 42 RR 33. Petitioner later told investigators that he had drugs in his
pockets when he attempted to cross the border back into California, and that he had swallowed
some of it and discarded the rest in the bathroom. 41 RR 29–30.
C.
State’s Evidence of Petitioner’s Substandard Military Service
At the punishment phase of trial, the State also presented evidence of Petitioner’s
substandard military service. Lieutenant Colonel (“LTC”) Michael John Doughtery testified that
Petitioner was an intelligence clerk under his command. 45 RR 8, 18. LTC Doughtery described
Petitioner as a “pretty average, marginally effective” Marine. Id. at 11. LTC Doughtery said that
he periodically counseled Petitioner, warning him about the “inordinate amount” of off-duty hours
3
The Reporter’s Record is the state criminal court’s record of trial.
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he spent going to strip clubs, drinking, and spending time with unvirtuous people. Id. at 11–12, 23.
LTC Doughtery described Petitioner as a good-natured and happy-go-lucky type of person who
would become silent and tense the muscles in his face when he was frustrated or angry. Id. at 13.
LTC Doughtery testified that, according the Petitioner’s records, military officials caught
Petitioner smoking during an operation in violation of Marine Corps policy. Id. at 14–15. LTC
Doughtery explained that the Marine Corps awards good conduct medals to members who serve
three uninterrupted years without any non-judicial punishments. Id. at 15. Petitioner served in the
Marine Corps for more than three years, id. at 20, but never received this medal. Id. at 15. LTC
Doughtery said that, although Petitioner received a Coast Guard Meritorious Unit Commendation,
an Armed Forces Expeditionary medal, a Humanitarian Service medal, and a Sea Service
Deployment Ribbon, each award was for the unit and not for Petitioner specifically. Id. at 15–17,
27. LTC Doughtery also testified that Petitioner’s rifle marksman badge was the lowest
qualification for marksmanship necessary for a Marine to pass basic training. Id. at 17.
On cross-examination, LTC Doughtery testified that Petitioner was an intelligence
specialist with a Top Secret Sensitive Compartment and Information security clearance. Id. at 22,
29. Petitioner was a good mechanic and was able to use electronics, but if his superiors tasked him
with something he was not interested in, he required maximum guidance or supervision to ensure
completion. Id. at 22–23. LTC Doughtery also testified that Petitioner received several infractions
for failure to maintain his weight and failure to pass a physical fitness exam, but did not receive
any judicial or nonjudicial punishments while under his command. Id. at 26, 30.
Captain (“CPT”) Sergio Ricardo Santos, an intelligence officer who took over command
of Petitioner, testified that Petitioner was “not [a] very impressive Marine.” Id. at 34–35. CPT
Santos said that Petitioner did not appear to be within weight standards and did not pass the
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physical fitness exam. Id. at 34–35. While under CPT Santos’s command, Petitioner had an
unauthorized absence of under 20 hours. Id. at 35. Petitioner was unhappy and decided to drive his
car toward the Carolinas. Id. at 46. After his car broke down, one of his fellow Marines found him
and picked him up. Id. CPT Santos had to revoke Petitioner’s security clearance after his
unauthorized leave because his superiors no longer found him trustworthy. Id. at 36. Petitioner’s
superiors also docked his pay by $282 as a nonjudicial punishment for the infraction. Id. at 44–45.
CPT Santos also testified that Petitioner lied to his superiors about whether he was cleaning his
room, had pressed his uniform, or had conducted other duties, a pattern of dishonesty that called
his integrity into question. Id. at 38. CPT Santos said that Petitioner eventually began disobeying
“the simplest of orders.” Id. at 39.
On cross-examination, CPT Santos testified that, at some point, Petitioner’s superiors
promoted him to Lance Corporal, and he remained at that rank until he was honorably discharged.
Id. at 43–44.
D.
State’s Evidence Concerning Petitioner’s Victims
At the punishment phase of trial, the State also presented evidence about Petitioner’s
victims. Melody Anderson was a friend of Petitioner’s family. 44 RR 6–7. Anderson testified that
Joy and Petitioner had financial problems. Id. at 8–9. Joy was responsible for the finances in the
family, and after Petitioner hurt his back and contracted Crohn’s disease—causing him to become
unemployed—Joy obtained her certification as a massage therapist so that she could work to
provide for the family. Id. at 9–10. Anderson observed that Jodi, Petitioner’s daughter, loved her
father “a lot” and was affectionate with him. Id. at 14. Anderson testified that Petitioner and Joy
still struggled financially even after Petitioner began working as a security guard. Id. at 15.
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Philip W. King was a volunteer at the Kennendale Senior Center, where Joy would drop
off her father Eddie every weekday. Id. at 18–20. King testified that he would drop off Eddie at
home at the end of the day in time for Eddie to pick up his granddaughter Jodi from the bus. Id.
at 21–22. King said that Eddie had “a very high spirit” and that everybody at the senior center
loved him. Id. at 25.
Cindy Gail Lee was the Director of the Kennedale Senior Center. Id. at 28. Lee testified
that when she discovered that Eddie’s house had been burned she informed the members of the
senior center. Id. at 29–31. Several people cried and everyone was upset. Id. at 31. Lee described
Eddie as a “fantastic guy” who laughed all the time and talked to everyone he met. Id. at 32–33.
E.
State’s Evidence of Petitioner’s Attempted Murder
The State also presented evidence that Petitioner previously attempted to murder his
family. Two weeks prior to the murders, while working as a security guard at the hospital,
Petitioner accessed a doctor’s computer without permission and researched articles on the effects
and symptoms of rat poison on humans. 42 RR 149–50; 43 RR 36–39. He then attempted to poison
his family by putting d-CON rat poison into the spaghetti sauce for their dinner. 41 RR 11, 14.
This attempted murder failed when his family noticed that the food had turned green, concluded
that it had spoiled, and threw it away. Id. at 14–16.
F.
Defense Lay Witness Testimony
At the punishment phase of trial, Petitioner’s trial counsel called nine lay witnesses who
testified on his behalf.
1.
Haila Scoggins, Petitioner’s Special Education Teacher
Haila Scoggins was Petitioner’s special education teacher at Jonesville High School in
South Carolina. 43 RR 52–53. Scoggins testified that Petitioner remained in her special education
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classes for all four years of his high school education. Id. at 53–54. Scoggins said that Petitioner
had a learning disability in writing, had severe dyslexia, wrote phonetically, and was a horrible
speller. Id. at 56. She described Petitioner as quiet, pleasant, cooperative, and responsible. Id. at 60.
She never had to discipline him and never saw him get in a fight with other students. Id. at 61.
Scoggins said that Petitioner enjoyed playing Dungeons and Dragons. Id. at 65. She believed that
Petitioner could have attended college if he had received accommodations for his learning
disability. Id. at 66.
2.
Tommy Jeffrey Stribble, Director of Special Services
Tommy Jeffrey Stribble is the Director of Special Services for Union County Schools in
South Carolina. Id. at 75. Stribble testified that, according to Petitioner’s school records, Petitioner
failed the fourth grade and failed the writing portion of his exit exams three times, only passing on
his fourth attempt after the school changed the scoring rubric for him. Id. at 86, 88–89. The records
further indicated that Petitioner graduated high school with a 2.515 grade point average. Id. at 91.
Stribble also testified that Petitioner participated in ROTC, received a second-place award in an
art contest, was absent sixteen days during his second grade year, and was tardy ten times during
his fourth grade year—the same year he had to repeat. Id. at 92–94.
3.
Mark Pack, Friend of Petitioner’s Family
Mark Pack is a family friend of Petitioner’s. Id. at 103. He knew Petitioner since he was
nine or ten years old and frequently ate Sunday dinner with Petitioner’s family for fifteen or sixteen
years. Id. at 104–05. Mark described Petitioner as “an isolated person” who kept to himself and
played single-player video games. Id. at 109–10. He also described Petitioner as a slow learner.
Id. at 119–20. Mark never saw Petitioner become violent with anybody. Id. at 113–14. Mark said
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that when Petitioner became frustrated or mad, Petitioner would “ball up,” hold everything in, and
turn “beet red.” Id. at 114.
Mark testified that Petitioner’s mother would do anything for him and his siblings—
including pick him up from school and deliver food to him—but would not do the same for
Petitioner or her daughter. Id. at 110. One time Mark witnessed Petitioner’s dad physically punish
Petitioner when he was twelve or thirteen years old by pushing him off a six- or seven-foot tractor.
Id. at 111–12.
4.
Christy Gregory Pack, Friend of Petitioner’s Family
Christy Gregory Pack is Mark Pack’s wife. Id. at 122. She first met Petitioner at church.
Id. at 124. Christy testified that, whenever she and her husband would go over to Petitioner’s house
for Sunday dinners, Petitioner would be very quiet and stay in his bedroom playing video games.
Id. at 126. Christy said that Petitioner’s mother was “very generous” with the Pack family but
“very strict” with her own children. Id. at 127.
5.
Linda Jean Petty Pack, Friend of Petitioner’s Mother
Linda Jean Petty Pack is Mark Pack’s mother and was a good friend of Petitioner’s mother,
Jackie, for about ten years. Id. at 135, 137. Linda testified that Jackie was strict with her kids—
stricter than her husband was—and told Linda that she spanked her children. Id. at 138. Linda
never saw Petitioner talk back or disobey his parents, and she saw that both Petitioner and his sister
were quick to obey their parents. Id. at 139–40. Linda testified that Jackie treated the Pack children
better than she treated her own children, withholding money from her children but treating the
Pack children to expensive gifts. Id. at 140, 142, 145.
6.
Derrick Joe Parris, Petitioner’s Childhood Friend
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Derrick Joe Parris is Linda Pack’s nephew and was a good friend of Petitioner when they
were children. Id. at 150–51. Parris and Petitioner played Nintendo games together as kids. Id.
at 155. When Parris visited Petitioner’s house, Parris witnessed Petitioner’s father hit Petitioner
twice—one time with a belt and another time with a broomstick. Id. at 152–54. Parris also saw
Petitioner’s father “smack” Parris’s mother on her buttocks, which caused friction between their
families. Id. at 155. Parris said that Petitioner was nicknamed “Bacon” at school because he
smelled like bacon when he arrived at school. Id. at 156–57. Parris also said that Petitioner was
always behind in school. Id. at 159.
When Petitioner came back from the military, he took Parris to bars and strip clubs, even
though Parris was seventeen years old. Id. at 157–58. Parris said that Petitioner would get “a little
too attached” to the girls dancing in the strip club and become infatuated with any dancer that
showed him interest. Id. at 158–59. Parris also testified that he never knew of Petitioner being
violent with anybody. Id. at 160. Parris was surprised when Petitioner joined the Marines because
Petitioner was overweight and not athletic. Id. at 161. Parris and his friends laughed when
Petitioner told them that he was an intelligence analyst in the Marines because they “knew that
[Petitioner] was stupid.” Id. at 161. Parris never knew of Petitioner using drugs until after he left
the Marine Corps. Id. at 169.
7.
Stephanie Bennett, Petitioner’s Former High School Girlfriend
Stephanie Bennett was Petitioner’s former high school girlfriend. Id. at 172–73. Bennett
testified that they dated a little less than a year and that both she and Petitioner were a little shy.
Id. at 174–75. Bennett broke up with Petitioner when he began to speak to her about getting
married after high school. Id. at 176–77. Bennett never knew of Petitioner being violent towards
anybody, and she testified that Petitioner always treated her appropriately. Id. at 174, 178.
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8.
Letti Bandit Hubertz, Petitioner’s Former Girlfriend
Letti Bandit Hubertz, a homeless woman, was Petitioner’s girlfriend in San Diego. Id.
at 187–89. Hubertz and Petitioner started dating a month before Petitioner finished serving in the
Marine Corps. Id. at 189. At the time, Hubertz had one child and was pregnant with the child of
another man. Id. at 189–90. When Petitioner left the Marine Corps, he moved with Hubertz to
South Carolina to start a family there. Id. at 190–91. When they arrived in South Carolina they
lived with Petitioner’s parents, and Petitioner began working with his dad at Kohler. Id.
at 191–92. Hubertz testified that Petitioner always treated her with respect, showed great concern
and care for her while she was pregnant, and was never abusive towards her in any way. Id.
at 192–93. Petitioner and Hubertz eventually moved into their own two-bedroom trailer shortly
before Hubertz gave birth. Id. at 193–94. Hubertz gave her baby Petitioner’s last name. Id. at 194.
Hubertz testified that she thought her relationship with Petitioner was progressing well,
until one day, Petitioner’s sister Neata showed up at their trailer crying and gave Hubertz a letter
purportedly from Petitioner, in which he said that he was not ready to be a father and had left to
Texas. Id. at 195. Neata told Hubertz that she had purchased a bus ticket for her and her son to
return back to California, and that they had one hour to pack and leave. Id. at 196. When Hubertz
arrived at the bus station and inspected the tickets, she realized that Neata had purchased the ticket
two weeks earlier. Id. at 196. Hubertz testified that she never knew of Petitioner frequenting bars
or strip clubs or using drugs. Id. at 199. Hubertz attempted to contact Petitioner after she got to
California, but Petitioner repeatedly hung up on her. Id. at 199.
9.
Neata Woody, Petitioner’s Sister
Neata Woody is Petitioner’s sister. Id. at 208. Neata testified that she took care of Petitioner
instead of their mother, because their mother told her to, even though their mother did not work
14
outside the home. Id. at 211. Neata testified that their parents were never affectionate with them.
Id. at 211. While both parents disciplined them—mostly with a belt—their mother was the primary
disciplinarian in the family. Id. at 213–14, 218. Their parents frequently left Neata and Petitioner
alone in the house, even before elementary school. Id. at 215. Once when their parents left them
alone, Neata was so frightened that she called the telephone operator. Id. at 218. Neata also testified
that, when she was seventeen, she saw a woman who was not her mother performing oral sex on
her father. Id. at 252. Petitioner was in the same room with her, apparently sleeping, when she
witnessed the adultery. Id. at 252. Neata and Petitioner were allowed to have friends visit them
only if their parents approved. Id. at 219. Neata concluded that their parents were abusive towards
her and Petitioner. Id. at 221.
Neata testified that Petitioner’s peers called him “Bacon” at school because the smoke from
the wood-burning stove at home caused him to smell like bacon. Id. at 223. Neata also testified
that she spoke with Petitioner about his relationship with Hubertz, and that he agreed to allow her
to send Hubertz away. Id. at 227. Neata also testified that Petitioner joined the Marine Corps when
he was 22 years old. Id. at 225. Petitioner was in the Marine Corps for four years. Id. at 231. After
Petitioner left the Marine Corps, Petitioner’s doctor diagnosed him with colitis and conducted
surgery on him to remove some of his intestines. Id. at 230. Petitioner wore a colostomy bag for a
period after the surgery. Id. at 230. Neata also testified that Petitioner and his wife had financial
problems. Id. at 231. Neata said that, although she saw Petitioner get angry, she never saw him
become violent toward anybody. Id. at 232. Neata said that Petitioner was nice to Joy and
“wonderful” with his daughter Jodi. Id. at 253.
G.
Defense Expert Witness Testimony
15
At the punishment phase of trial, trial counsel also called two expert witnesses who testified
on Petitioner’s behalf.
1.
Frank G. Aubuchon, Prison Classification Expert
Frank G. Aubuchon is a prison consultant with previous experience working in prisons.
44 RR 34–38. Aubuchon testified that, based on his review of Petitioner’s military, medical,
criminal, and jail classification records, he believed that a prison would classify Petitioner as a
general population Level 3 inmate, which is the minimum level a life-sentenced-without-parole
inmate could receive. Id. at 64, 67, 69–70. Aubuchon relied on the following observations in
arriving at his conclusion: other than his crime, Petitioner was a “very unremarkable person”; he
lacked a criminal record; he received an honorable discharge from the Marine Corps; and he had
no disciplinary issues while in jail. Id. at 70, 113. Aubuchon believed that Petitioner would make
a good adjustment to life in prison because he had behaved well during the year he spent
incarcerated in Tarrant County Jail, and because he behaved well in the military, a similarly
structured environment. Id. at 73. Aubuchon did not know that Petitioner went absent without
leave while serving in the Marine Corps. Id. at 74.
2.
Dr. Antoinette Rose McGarrahan, Forensic Neuropsychologist
Dr. Antoinette Rose McGarrahan is a forensic psychologist with a specialty in
neuropsychology. Id. at 118. Dr. McGarrahan conducted a complete neuropsychological
evaluation and personality and emotional evaluation of Petitioner. Id. at 121. The combined
evaluations took eleven hours. Id. Dr. McGarrahan used twenty to thirty different tests and
instruments in her evaluation. Id. at 122. Dr. McGarrahan also reviewed numerous records,
including Petitioner’s military, medical, school, and Tarrant County Jail records, as well as his
video-recorded statements, and various cards, letters, and correspondence that Neata sent to
16
Petitioner. Id. at 122–23. Dr. McGarrahan also interviewed Neata for two and a half hours by
phone and spoke with Jackie, Petitioner’s mother, for one hour. Id. at 123. Dr. McGarrahan
reviewed Jackie’s medical records and subsequently reviewed psychological test data obtained by
the State’s expert, Dr. Randy Price. Id. at 123–24. Dr. McGarrahan also performed a clinical
interview of Petitioner, asking about his social history and the details of the offense. Id. at 124.
Dr. McGarrahan found that Petitioner suffered from a learning disability impairing his
ability to express himself in writing, but that his IQ was in the average to high-average range. Id.
at 125. Dr. McGarrahan said that Petitioner did not suffer from any severe mental disorders,
although Petitioner did show some signs of mild depression and anxiety. Id. at 126. Dr.
McGarrahan concluded that Petitioner may have suffered from a combination of personality
disorders, including narcissistic, antisocial, schizoid, and borderline disorders. Id. at 126–27.
Dr. McGarrahan testified that, while genetic and environmental factors affected
Petitioner’s personality, environmental factors played a major role in his personality development.
Id. at 133, 135. Dr. McGarrahan concluded that, based on her discussions with Petitioner’s mother
and sister, and a review of the records, Petitioner’s mother was inconsistent, not nurturing,
unaffectionate, and neglectful. Id. at 133, 135. Dr. McGarrahan testified that an individual’s ability
to learn relational reciprocity and to form human attachments is a direct result of the involvement
of the primary caregiver from an early age. Id. at 134. Dr. McGarrahan believed that Petitioner’s
mother, in neglecting her duties as Petitioner’s primary caregiver, was a major contributing factor
to his personality disorders. Id. at 135.
Dr. McGarrahan testified that, while Petitioner felt emotions, he was unable to express
them because of his mother’s control over him. Id. at 136–37. Dr. McGarrahan believed that thirty
years of repressed emotions caused Petitioner to experience a “flood of emotional rage” that caused
17
him to commit the murders. Id. at 138. Dr. McGarrahan explained that, even though Petitioner had
the ability to know that his decision to kill was wrong, the flood of emotions caused him to act on
pure emotion without thinking. Id. at 138–39, 156. Dr. McGarrahan believed that Petitioner acted
unemotional in his interviews because, once the flood of emotions ended, he returned to a state of
“expressionless difficulty [at] showing what he’s feeling and what he’s experiencing.” Id.
at 139–40. When Dr. McGarrahan asked Petitioner why he committed the crime, he explained to
her that he had been ruminating on all the wrongs done to him over his lifetime and that this
rumination built up into an explosive rage. Id. at 141. Petitioner told Dr. McGarrahan that his wife
and father-in-law were consistently critical of his state of unemployment, his inability to work
around the house, and his medical problems. Id. at 142.
Petitioner also spoke with Dr. McGarrahan about how he rapidly became infatuated with
Kristie Freeze, despite knowing that she did not reciprocate his feelings. Id. at 142–43. Dr.
McGarrahan explained that Petitioner had previously behaved this way whenever a woman would
appear to show any interest in him. Id. at 143–44. Although Petitioner sought out relationships, he
was unable to form and maintain close relationships with anyone, whether romantic or familial.
Id. at 144. Dr. McGarrahan believed that Petitioner’s personality disorders, rooted in his childhood
experiences, played a significant role in his commission of the offense. Id. at 145. Dr. McGarrahan
did testify, however, that Petitioner planned the murders. Id. at 152. She said that Petitioner is the
same person today that he was on December 17, 2009, with the same personality disorders. Id.
at 155.
Finally, Dr. McGarrahan testified that Petitioner has done fairly well in structured
environments and has received several commendations for his service in the military. Id.
at 159–60. Moreover, when Petitioner once left his military post without permission, he did not
18
receive a judicial punishment; instead, his superiors settled the case administratively by docking
his pay. Id. at 160. Petitioner also admitted to Dr. McGarrahan that he was wrong in committing
the murders. Id. at 162.
II.
LEGAL STANDARDS
A.
Antiterrorism and Effective Death Penalty Act
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254,
a federal court may not issue a writ of habeas corpus for a defendant convicted in state court,
unless it is shown that the earlier state court’s decision “was contrary to” federal
law then clearly established in the holdings of [the Supreme] Court, or that it
“involved an unreasonable application of” such law, or that it “was based on an
unreasonable determination of the facts” in light of the record before the state court.
Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. § 2254(d)). “This is a ‘difficult
to meet’ and ‘highly deferential standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181
(2011) (citations omitted).
A state court decision is “contrary” to clearly established federal law if the state court
“applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or
“confronts a set of facts that are materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor,
529 U.S. 362, 405–06 (2000).
“[A]n unreasonable application of federal law is different from an incorrect application
of federal law.” Williams, 529 U.S. at 410 (emphasis in original). To constitute an unreasonable
application, the state court decision must “appl[y] clearly established federal law erroneously or
incorrectly” in a way that is also “objectively unreasonable.” Id. at 409–10. A state court decision
is objectively unreasonable if no “fairminded jurist” could agree with its reasoning. Harrington,
19
562 U.S. at 102. “[E]valuating whether a rule application was unreasonable requires considering
the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“[T]he ‘unreasonable application’ test under Section 2254(d) should be on the ultimate
legal conclusion that the state court reached and not on whether the state court considered and
discussed every angle of the evidence.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en
banc). “Even though a thorough and well-reasoned state court opinion may be more likely to be
correct and to withstand judicial review, it simply does not follow that ‘the criterion of a reasonable
determination is whether it is well reasoned.’” Id.
“It bears repeating that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Harrington, 562 U.S. at 102. “If this standard is difficult to meet,
that is because it was meant to be . . . Section 2254(d) reflects the view that habeas corpus is a
‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Id. at 102–03 (citations omitted).
In determining whether a state court decision was contrary to, or involved an unreasonable
application of, clearly established Federal law, the reviewing court is “limited to the record that
was before the state court that adjudicated the claim on the merits.” Cullen, 563 U.S. at 181.
AEDPA also grants federal habeas relief for state court decisions that were “based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). “[A] determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “The presumption of
correctness not only applies to explicit findings of fact, but it also applies to those unarticulated
20
findings which are necessary to the state court’s conclusions of mixed law and fact.” Valdez v.
Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). “The presumption is especially strong when the
state habeas court and the trial court are one in the same.” Clark v. Johnson, 202 F.3d 760, 764
(5th Cir. 2000). “The standard is demanding but not insatiable . . . .” Miller-El v. Dretke,
545 U.S. 231, 240 (2005).
Finally, the Fifth Circuit has held that “a full and fair hearing [in state court] is not a
precondition to . . . applying § 2254(d)’s standards of review.” Valdez, 274 F.3d at 951. AEDPA
amended the previous version of 28 U.S.C. § 2254, and “[t]hese amendments jettisoned all
references to a ‘full and fair hearing’ . . . leav[ing] no room for judicial imposition of a full and
fair hearing prerequisite.” Id. at 949–50.
B.
Ineffective Assistance of Trial Counsel
If a convicted defendant claims in a habeas petition that trial counsel’s assistance was so
defective as to require reversal of a conviction or death sentence, this Court reviews their
ineffective-assistance-of-trial-counsel (IATC) claim under the two-part test in Strickland v.
Washington, 466 U.S. 668 (1984). See Cullen, 563 U.S. at 189 (“There is no dispute that the clearly
established federal law here is Strickland v. Washington.”).
First, “the defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Second, “the
defendant must show that the deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. “Unless a defendant makes both showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the adversary process that renders the result
21
unreliable.” Id. If one prong of Strickland is dispositive, the court need not address the other. See
id. at 697.
1.
Whether Trial Counsel’s Performance was Deficient
To prove deficient performance, the defendant has the burden of showing “that counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “[A] court must
indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. “A fair
assessment of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Id. Moreover, “‘American Bar
Association standards and the like’ are ‘only guides’ to what reasonableness means, not its
definition.” Bobby v. Van Hook, 558 U.S. 4, 8 (2009).
The Court “must be particularly wary of ‘argument[s] [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.” Dowthitt v.
Johnson, 230 F.3d 733, 743 (5th Cir. 2000) (alterations in original); see also Strickland, 466 U.S.
at 680 (“[T]he amount of pretrial investigation that is reasonable defies precise measurement.”
(quotation marks omitted)). “Counsel’s decision not to present cumulative testimony does not
constitute ineffective assistance.” Coble v. Quarterman, 496 F.3d 430, 436 (5th Cir. 2007); see
also Waters v. Thomas, 46 F.3d 1506, 1513–14, 1518 (11th Cir. 1995) (“It is common practice for
petitioners attacking their death sentences to submit affidavits from witnesses who say they could
22
have supplied additional mitigating circumstance evidence, had they been called, or, if they were
called, had they been asked the right questions. . . . [But t]he test for ineffectiveness is not whether
counsel could have done more; perfection is not required.”). Moreover, IATC “does not consist of
the hiring of an expert who, though qualified, was not qualified enough. 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 v. Alabama,
134 S. Ct. 1081, 1089 (2014) (quoting Strickland, 466 U.S. at 690).
2.
Whether Trial Counsel’s Deficient Performance Prejudiced Defendant
“[T]he defendant [must] affirmatively prove prejudice.” Strickland, 466 U.S. at 693. To
establish prejudice, it is not enough “to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. The defendant must demonstrate “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 694; see also Harrington, 562 U.S. at 112 (“The likelihood of a different result must be
substantial, not just conceivable.”). “When a defendant challenges a death sentence . . . the
question is whether there is a reasonable probability that, absent the errors, the sentencer—
including an appellate court, to the extent it independently reweighs the evidence—would have
concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
Strickland, 466 U.S. at 695. “[T]he court must decide whether the additional mitigating evidence
was so compelling that there was a reasonable probability that at least one juror could have
determined that because of the defendant's reduced moral culpability, death was not an appropriate
sentence.” Kunkle v. Dretke, 352 F.3d 980, 991 (5th Cir. 2003) (quotation marks omitted).
3.
Standard of Review for IATC Under AEDPA
23
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010). But when IATC claims are reviewed on habeas under the already deferential
standard of review in § 2254(d), “a state court has even more latitude to reasonably determine that
a defendant has not satisfied [Strickland’s already highly deferential] standard.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). “The standards created by Strickland and § 2254(d) are
both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Harrington,
562 U.S. at 105 (citations omitted); see also Knowles, 556 U.S. 111, 123 (noting that IATC claims
on habeas are subject to “doubly deferential judicial review”).
C.
Ineffective Assistance of Appellate Counsel
If a convicted defendant claims in a habeas petition that appellate counsel’s assistance on
direct appeal was so defective as to require reversal of a conviction or death sentence, this Court
reviews their ineffective-assistance-of-appellate-counsel (IAAC) claim under the two-part test in
Strickland. See Busby v. Dretke, 359 F.3d 708, 714 (5th Cir. 2004); see also Evitts v. Lucey,
469 U.S. 387, 395–96 (1985) (holding that Strickland applies to appellate counsel on direct
appeal).
1.
Whether Appellate Counsel’s Performance was Deficient
“Counsel is not deficient for not raising every non-frivolous issue on appeal.” United States
v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000). Counsel “rather may select from among them in
order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288
(2000). “It is not only reasonable but effective for counsel on appeal to winnow out weaker
arguments and focus on a few key issues.” Mayo v. Lynaugh, 882 F.2d 134, 139 (5th Cir. 1989).
“A brief that raises every colorable issue runs the risk of burying good arguments . . . .” Jones v.
Barnes, 463 U.S. 745, 753 (1983).
24
“Instead, to be deficient, the decision not to raise an issue must fall ‘below an objective
standard of reasonableness.’” Phillips, 210 F.3d at 348 (quoting Strickland, 466 U.S. at 688). “This
reasonableness standard requires counsel ‘to research relevant facts and law, or make an informed
decision that certain avenues will not prove fruitful. Solid, meritorious arguments based on directly
controlling precedent should be discovered and brought to the court’s attention.’” Id. (quoting
United States v. Williamson, 183 F.3d 458, 462–63 (5th Cir. 1999)).
Such directly controlling precedent is rare. Often, factual differences will make authority
easily distinguishable, whether persuasively or not. In such cases, it is not necessarily
providing ineffective assistance of counsel to fail to construct an argument that may or may
not succeed. But failure to raise a discrete, purely legal issue, where the precedent could
not be more pellucid or applicable, denies adequate representation.
Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir. 2003) (quotation marks omitted) (quoting
Williamson, 183 F.3d at 463 n.7). Moreover, a defendant can overcome the presumption of
effective assistance by showing that appellate counsel ignored “a particular nonfrivolous issue was
clearly stronger than issues that counsel did present.” Smith, 528 U.S. at 288 (quotation marks
omitted).
2.
Whether Appellate Counsel’s Deficient Performance Prejudiced Defendant
“[T]he defendant [must] affirmatively prove prejudice.” Strickland, 466 U.S. at 693. To
establish prejudice, it is not enough “to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. The defendant must demonstrate “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694; see also Harrington, 562 U.S. at 112 (“The likelihood of a different result must be substantial,
not just conceivable.”). In other words, a defendant “must show a reasonable probability that, but
25
for his counsel’s unreasonable [assistance] . . . he would have prevailed on his appeal.” Smith,
528 U.S. at 285–86.
3.
Standard of Review for IAAC Under AEDPA
“Judicial scrutiny of counsel’s performance [is] highly deferential.” Schaetzle, 343 F.3d
at 445 (quoting Strickland, 466 U.S. at 689). Moreover, because of the already deferential standard
of review in AEDPA, the Court’s review of IAAC claims on habeas are “doubly deferential.” Cf.
Harrington, 562 U.S. at 105 (“The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” (citations omitted)).
III.
ALLEGED DUE PROCESS LIMITS ON AEDPA DEFERENCE
Petitioner claims that AEDPA’s deferential standard of review under § 2254(d) does not
apply to his federal habeas claims for three reasons: (1) he did not receive a “full and fair” hearing
when he first litigated these claims in state habeas court; (2) § 2254(d) is a form of issue preclusion;
and (3) due process prohibits giving preclusive effect to a prior adjudication if it did not include a
full and fair hearing. See Reply 7–16, ECF No. 29. The Court disagrees with Petitioner’s
conclusion and finds that the re-litigation bar in § 2254(d) applies to each of Petitioner’s AEDPA
claims.
Petitioner argues that deference under § 2254(d) is not proper because he did not receive a
“full and fair” hearing on his habeas claims when he previously litigated them in state habeas court.
The Fifth Circuit has previously rejected this argument in similar cases. In Valdez, the Petitioner
claimed that § 2254(d) deference did not apply to his petition because his prior state habeas
proceeding was not an “adjudication on the merits” unless it included a “full and fair” hearing.
274 F.3d at 948. The Fifth Circuit disagreed, holding “that a full and fair hearing is not a
26
prerequisite to the application of AEDPA’s deferential framework.” Id. The Fifth Circuit
explained:
In 1996, Congress enacted AEDPA, amending § 2254. These amendments
jettisoned all references to a “full and fair hearing” . . . . To reintroduce a full
and fair hearing requirement . . . would have the untenable result of rendering
the amendments enacted by Congress a nullity.
Id. at 949–50 (emphasis added). Because the Fifth Circuit has conclusively decided that Congress
did not imply a “full and fair” hearing prerequisite to deference under AEDPA, this Court will not
interpret the language of § 2254(d) in any way that infers a “full and fair” hearing prerequisite.
Petitioner’s argument is also a constitutional one: he contends that without a “full and fair”
hearing prerequisite, deference under § 2254(d) would violate due process. Reply 9, ECF No. 29.
Petitioner characterizes § 2254(d) as “a form of issue preclusion,” Id. at 8, and observes that due
process prohibits applying issue preclusion “where the party against whom an earlier court
decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided
by the first court.” Allen v. McCurry, 449 U.S. 90, 101 (1980). But Petitioner cites no authority
holding that “§ 2254(d) is a form of issue preclusion,” and this Court is not aware of any. The
precedent that Petitioner does cite holds that § 2254(d) is substantially dissimilar from issue
preclusion. See Reply 6, ECF No. 29 (citing Harrington, 562 U.S. at 102 (“As amended by
AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims
already rejected in state proceedings.” (emphasis added))); see also Felker v. Turpin, 518 U.S.
651, 664 (1996) (describing AEDPA as “a modified res judicata rule”). This Court declines to
accept Petitioner’s novel theory of federal due process.
For these reasons, and because each of Petitioner’s claims here were previously litigated
in state habeas court, this Court will apply the deferential standard of review in § 2254(d) to each
of Petitioner’s claims.
27
IV.
FEDERAL HABEAS CLAIM 1 (STATE HABEAS CLAIMS 2, 3, 4, 5, 6, & 7):
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
In his first AEDPA claim, Petitioner asserts six instances of IATC. The Court will analyze
each allegation of IATC in turn.
A.
Federal Habeas Claim 1-A (State Habeas Claim 3) & Federal Habeas Claim
1-B (State Habeas Claim 7): Trial Counsel Failed to Present Evidence that
Petitioner Was Not a Future Danger and that Petitioner Suffered Complex
Post-Traumatic Stress Disorder (“CPTSD”)
Petitioner claims that the state habeas court rejected State Habeas Claims 3 and 7 based on
an unreasonable application of clearly established federal law and an unreasonable determination
of facts.
1.
State Habeas Court’s Application of Clearly Established Federal Law
Petitioner claims that he received IATC because his trial counsel4 did not present evidence
that Petitioner was not a future danger, and relatedly, did not present evidence that Petitioner
suffered from complex post-traumatic stress disorder resulting from attachment trauma. Pet. 26,
ECF No. 12. Specifically, Petitioner alleges that trial counsel should have presented “(1) the
testimony of the Tarrant County Sheriff deputies [Tony Rigmaiden, Rory Thomas, and Cody Bell,]
who interacted with Petitioner for 19 months; and (2) the expert testimony of Dr. Hardesty, which
would have shown that Petitioner would not pose a future danger if he were sentenced to life
Petitioner’s trial counsel is an experienced Texas criminal defense attorney. 2 SHCR 527–29. MartindaleHubbell rates him “AV Preeminent” for “legal expertise and professional reputation,” and the Texas
Monthly Magazine’s Law and Politics classifies him as a “Texas Super Lawyer.” Id. at 527–28. He served
for nine years as an Assistant Criminal District Attorney in Tarrant County, Texas. Id. at 528. Before
representing Petitioner, he worked in private practice for more than two decades, focusing exclusively on
criminal defense. Id. He has participated in approximately twelve death penalty cases. Id. Pursuant to Texas
Code of Criminal Procedure Article 26.052, he was appointed to the Committee for formulating and
implementing Standards for the Qualification of Attorneys for Appointment to Death Penalty Cases in the
8th Administrative Judicial Region of Texas, and he was primarily responsible for drafting and subsequently
revising these standards. Id. He also served on the State Bar of Texas Committee on Legal Services to the
Poor in Criminal Matters, and while doing so, he helped to draft and implement the State Bar of Texas
Standards for Representation in Death Penalty Cases, and the State Bar of Texas Standards for
Representation in Non-Capital Cases. Id. at 528–29.
4
28
without parole . . . .” Id. at 28. Dr. Hardesty would have testified in part that Petitioner was not a
future danger in prison because he suffered from CPTSD. See id. at 40.
The state habeas court considered these arguments and rejected them. See 4 SHCR 1413–
25. The state habeas court found that the unsubmitted testimony was “essentially cumulative” and
an “unreliable prediction of future dangerousness.” Id. at 1423–24. The state habeas court also
found that trial counsel “made a well-reasoned strategic decision” to not call Rigmaiden, Thomas,
and Bell, or present the type of violence-risk assessment contained in Dr. Hardesty’s affidavit. Id.
at 1423. Trial counsel made this decision “based on [trial counsels’] thorough investigation, their
professional judgment, and available witness testimony, and their reliance on a well-qualified
mental-health expert about how to best present [Petitioner’s] case at the punishment phase of his
trial.” Id. For State Habeas Claim 7 specifically, the state habeas court found that Petitioner’s trial
counsel made a “strategic decision . . . to rely on Dr. McGarrahan, a well-qualified forensic
psychologist and neuropsychologist”—who did not make a CPTSD diagnosis—“rather than [to
rely on] Dr. Hardesty . . . .” Id. at 1472–73.
Petitioner contends that the state habeas court’s decisions on these claims violated clearly
established federal law in Skipper v. South Carolina, 476 U.S. 1 (1986), wherein the U.S. Supreme
Court reversed a sentence of death after the trial court excluded evidence of defendant’s good
behavior while incarcerated. See Pet. 28, ECF No. 12.
In Skipper,
[P]etitioner presented as mitigating evidence his own testimony and that of his
former wife, his mother, his sister, and his grandmother. This testimony, for the
most part, concerned the difficult circumstances of his upbringing. Petitioner
and his former wife, however, both testified briefly that petitioner had
conducted himself well during the 7 ½ months he spent in jail between his arrest
and trial. Petitioner also testified that during a prior period of incarceration he
had earned the equivalent of a high school diploma and that, if sentenced to life
imprisonment rather than to death, he would behave himself in prison and
29
would attempt to work so that he could contribute money to the support of his
family.
Petitioner also sought to introduce testimony of two jailers and one “regular
visitor” to the jail to the effect that petitioner had “made a good adjustment”
during his time spent in jail. The trial court, however, ruled that . . . such
evidence would be irrelevant and hence inadmissible. . . .
After hearing closing arguments—during the course of which the prosecutor
contended that petitioner would pose disciplinary problems if sentenced to
prison and would likely rape other prisoners—the jury sentenced petitioner to
death.
476 U.S. at 2–3 (citation omitted).
The Supreme Court in Skipper held that the excluded testimony was “relevant evidence in
mitigation of punishment” that “might serve as a basis for a sentence less than death.” Id. at 4–5
(quotation marks omitted). Significantly, the Supreme Court held that the excluded testimony was
not cumulative. Id. at 8. The Supreme Court explained:
The evidence petitioner was allowed to present on the issue of his conduct in
jail was the sort of evidence that a jury naturally would tend to discount as selfserving. The testimony of more disinterested witnesses—and, in particular, of
jailers who would have had no particular reason to be favorably predisposed
toward one of their charges—would quite naturally be given much greater
weight by the jury.
Id. Because the testimony was not cumulative, the Supreme Court concluded that the
erroneous exclusion was not harmless:
[W]e [cannot] confidently conclude that credible evidence that petitioner was a
good prisoner would have had no effect upon the jury’s deliberations. The
prosecutor himself, in closing argument, made much of the dangers petitioner
would pose if sentenced to prison, and went so far as to assert that petitioner
could be expected to rape other inmates. Under these circumstances, it appears
reasonably likely that the exclusion of evidence bearing upon petitioner’s
behavior in jail (and hence, upon his likely future behavior in prison) may have
affected the jury’s decision to impose the death sentence.”
Id. The Supreme Court accordingly reversed and remanded for a new sentencing hearing. Id.
at 8–9.
30
In considering Petitioner’s IATC claim here, the Court observes at the outset that Skipper
was on direct appeal and was not an IATC case. Skipper considered whether the law permitted a
trial court to exclude a certain kind of mitigation evidence. It did not purport to address what kind
of mitigation evidence a trial counsel must offer to provide objectively reasonable assistance of
counsel—much less the level of representation that is so manifestly deficient and prejudicial that
any reasonable jurist, reviewing under the doubly deferential standard in AEDPA, would find
IATC under Strickland.
Regardless, Petitioner’s case is distinguishable from Skipper. In Skipper, defendant offered
“his own testimony and that of his former wife, his mother, his sister, and his grandmother”—as
well as testimony by jail personnel—that he behaved well in prison. 476 U.S. at 2–3. The Supreme
Court found that the testimony by defendant and his family was “self-serving,” and therefore
concluded that further testimony by jail personnel would not be cumulative. By contrast, here
Petitioner called two experts—Frank AuBuchon and Dr. McGarrahan—to testify that Petitioner
had no disciplinary issues in jail, lacked a violent or criminal history, and would likely adapt well
to prison life. See supra Part I.G. AuBuchon and Dr. McGarrahan are disinterested experts who
did not give the same kind of “self-serving” testimony as in Skipper. Because AuBuchon, Dr.
McGarrahan, and multiple lay witnesses, together presented comprehensive, unrebutted testimony
that Petitioner had no history of crime, violent behavior, or discipline in jail, see supra Part I.F–G,
any further testimony on these points would have been cumulative. Trial counsel therefore did not
provide ineffective assistance under Skipper by not calling Rigmaiden, Thomas, Bell, and Dr.
Hardesty.
It is true Skipper held “that the sentencer may not refuse to consider or be precluded from
considering ‘any relevant mitigating evidence.’” Id. at 4 (quoting Eddings v. Oklahoma, 455 U.S.
31
104, 114 (1982)). But here the sentencer did not refuse to consider, nor did the trial court preclude
the sentencer from considering, testimony by Rigmaiden, Thomas, Bell, or Dr. Hardesty. Instead,
trial counsel made a strategic decision not to present such testimony.
It is also true that trial counsel’s investigation did not identify Rigmaiden, Thomas, or
Cody—each of whom supervised Petitioner while he was in jail—as potential witnesses. But trial
counsel explained in an affidavit that in his professional experience, the testimony of jail personnel
is often not particularly favorable to the defense, unless there is “at least some personal relationship
with, or affinity for the defendant that has developed with the officers . . . .” 2 SHCR 934. Trial
counsel asked Petitioner if there were any jail guards, chaplains, or personnel, with whom he had
developed a good relationship, but Petitioner never identified such prospective witnesses and
discouraged trial counsel about the possibility of finding such witnesses. See id. at 532, 934. Trial
counsel therefore made a strategic determination not to investigate possible witnesses among jail
personnel. See id.
Petitioner contends that this strategic decision was ineffective under clearly established
federal law in Rompilla v. Beard, 545 U.S. 374 (2005). See Pet. 33, ECF No. 12. In Rompilla,
Rompilla’s evidence in mitigation consisted of relatively brief testimony: five
of his family members argued in effect for residual doubt, and beseeched the
jury for mercy, saying that they believed Rompilla was innocent and a good
man. Rompilla’s 14–year–old son testified that he loved his father and would
visit him in prison. The jury acknowledged this evidence to the point of finding,
as two factors in mitigation, that Rompilla’s son had testified on his behalf and
that rehabilitation was possible. But the jurors assigned the greater weight to
the aggravating factors, and sentenced Rompilla to death. . . .
Id. at 378. Before trial, Rompilla’s counsel interviewed Rompilla and his family, and examined
reports by three mental health experts, but none of these efforts yielded helpful mitigating
evidence. See id. at 381–82. Nevertheless, trial counsel neglected to investigate Rompilla’s school
records, juvenile and adult criminal records, and history of alcohol dependence. See id. at 382. The
32
Supreme Court held that “the failure to examine Rompilla’s prior conviction file fell below the
level of reasonable performance” because,
Counsel knew that the Commonwealth intended to seek the death penalty by
proving Rompilla had a significant history of felony convictions indicating the
use or threat of violence, an aggravator under state law. Counsel further knew
that the Commonwealth would attempt to establish this history by proving
Rompilla’s prior conviction for rape and assault, and would emphasize his
violent character by introducing a transcript of the rape victim’s testimony
given in that earlier trial. There is no question that defense counsel were on
notice, since they acknowledge that a “plea letter,” written by one of them four
days prior to trial, mentioned the prosecutor’s plans. It is also undisputed that
the prior conviction file was a public document, readily available for the asking
at the very courthouse where Rompilla was to be tried.
Id. at 383–84. Trial counsel’s oversights prejudiced Rompilla because they would have added up
to a significant mitigation case that would have been far more effective than “the few naked pleas
for mercy actually put before the jury . . . .” Id. at 391.
In sum, the Supreme Court held that even if “the defendant himself ha[s] suggested that no
mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and
review material that counsel knows the prosecution will probably rely on as evidence of
aggravation at the sentencing phase of trial.” Id. at 377. But in reaching this conclusion, the
Supreme Court noted that “the duty to investigate does not force defense lawyers to scour the globe
on the off chance something will turn up; reasonably diligent counsel may draw a line when they
have good reason to think further investigation would be a waste.” Id. at 383.
Trial counsel’s strategic decision not to investigate further for possible witnesses at the
Tarrant County jail is distinguishable from Rompilla. First, the rule in Rompilla requires counsel
to “obtain and review material that counsel knows the prosecution will probably rely on as
evidence of aggravation at the sentencing phase of trial,” id. at 377 (emphasis added), and the
prosecution here would not have relied on testimony by jail personnel that Petitioner had behaved
33
well in prison to make a case of aggravation. Second, whereas in Rompilla trial counsel did not
investigate the defendant’s criminal history, trial counsel here called multiple expert and lay
witnesses to show that Petitioner had no history of violence, criminal behavior, or misbehavior
while incarcerated. See supra Part I.F–G. Third, trial counsel’s mitigation case here is much
stronger than in Rompilla. Whereas trial counsel’s mitigation case in Rompilla amounted to “[a]
few naked pleas for mercy,” 545 U.S. at 391, Petitioner’s trial counsel called numerous witnesses
and presented a thorough mitigation case.
The state habeas court reasonably applied Strickland to State Habeas Claims 3 and 7. First,
the state habeas court reasonably concluded that trial counsel provided adequate representation.
Trial counsel called two expert witnesses and multiple lay witnesses to show that Petitioner had
no history of violence, criminal behavior, or misbehavior while incarcerated, and that he would
adapt well to prison life. See supra Part I.F–G. Any additional evidence on the absence of future
dangerousness, from either lay or expert witnesses, would have been cumulative. Cf. Coble, 496
F.3d at 436 (“Counsel’s decision not to present cumulative testimony does not constitute
ineffective assistance.”); Dowthitt, 230 F.3d at 743 (“We must be particularly wary of ‘argument[s]
[that] essentially come[ ] down to a matter of degrees.” (alterations in original)). When Petitioner
informed trial counsel that he did not have any personal relationships with jail personnel, trial
counsel made a strategic choice not to pursue the testimony of jail personnel who counsel feared
would be otherwise favorable to the State’s case. See 2 SHCR 532. Trial counsel also considered
the possibility of having Dr. McGarrahan present her opinion on Hummel’s risk of future
dangerousness based on a violence-risk assessment, but trial counsel declined to do so because
counsel feared it would open the door to powerful rebuttal testimony by the state’s expert, Dr.
Price. See id. at 532–34. These actions are “sound trial strategy” that “fall[ ] within the wide range
34
of reasonable professional assistance.” Strickland, 466 U.S. at 689; cf. Hinton v. Alabama, 134 S.
Ct. 1081, 1089 (2014) (“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.’” (quoting Strickland, 466 U.S. at 690)).
Finally, the state habeas court reasonably concluded that trial counsel, in failing to call
Rigmaiden, Thomas, Bell, and Dr. Hardesty as witnesses, did not prejudice the defense. Because
trial counsel had already made a “powerful case” that Petitioner would not be a future danger,
4 SHCR 1425, additional cumulative testimony proffered by trial counsel would not have likely
changed the jury’s verdict. Petitioner has not shown that he would have received a life sentence
but for the omitted testimony. Cf. Strickland, 466 U.S. 694 (“The defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”).
Supporting this conclusion is the fact that this crime was particularly heinous, even
compared to other capital crimes. Petitioner initially attempted to murder his family with rat
poison. Supra Part I.E. Two weeks later, while his family was sleeping in their beds, Petitioner
murdered each of them, one by one. See supra Part I.A. Using two swords, a dagger, and a kitchen
knife, he stabbed his pregnant wife a total of thirty-five times, including three times to her
abdomen. Id. He also beat her repeatedly with a baseball bat as she fought for her life and the life
of her unborn child. Id. After killing his wife and unborn child, he rested for about twenty minutes
to catch his breath. See State’s Exhibit (“SX”) 347B. Then, using the same baseball bat, he beat
his sleeping father-in-law in the head multiple times until he died. See supra Part I.A. He then took
another break to catch his breath, SX 347B, and finally beat his sleeping 5-year-old daughter in
the head multiple times until she died. See supra Part I.A. He burned his house down to destroy
35
the evidence and spent the night driving around to establish an alibi. See id. The next day, he
appeared emotionless to police investigators and coworkers. Id. He then immediately left to
California, and then Mexico, to consume drugs and hire prostitutes. See supra Part I.B.
The evidence shows that this crime was not a spontaneous or impulsive act. Petitioner
planned to murder his family to free himself to pursue a sexual relationship with Kristie Freeze
and become a father figure to her 6-year-old daughter. Petitioner told investigators that before the
murder he began to wish he were single so that he could “pursue [Freeze] better.” State Exhibit
347B. Indeed, immediately before executing his homicidal plan, Petitioner spent time with Freeze
and read to her daughter from her favorite children’s book. 39 RR 164.
Given the calculated brutality, personal cruelty, and cold-bloodedness of this particular
crime, as well as the number of victims, any unreasonably omitted mitigation evidence must be
more than run-of-the-mill. The omission of mitigating evidence would only prejudice Petitioner if
it reduced Petitioner’s moral culpability in a manner proportionate to the depravity of his crime.
See Strickland, 466 U.S. at 695 (“When a defendant challenges a death sentence . . . the question
is whether there is a reasonable probability that, absent the errors, the sentencer—including an
appellate court, to the extent it independently reweighs the evidence—would have concluded that
the balance of aggravating and mitigating circumstances did not warrant death.” (emphasis
added)). Here, trial counsel only overlooked cumulative testimony and otherwise made a
“powerful case” that Petitioner was not a future danger. 4 SHCR 1425. Even if this constituted
deficient performance, especially upon consideration of the heinousness of Petitioner’s crime, the
Court finds that the error would not have affected a single juror’s sentencing decision.
The state habeas court’s decisions on State Habeas Claims 3 and 7 did not unreasonably or
erroneously apply clearly established federal law under Strickland and its progeny. Petitioner has
36
not shown that the state habeas court’s decisions on State Habeas Claims 3 and 7 were either
“contrary to” or an “unreasonable application of” clearly established federal law.
2.
State Habeas Court’s Determination of Facts
Petitioner also contends that the state habeas court rejected State Habeas Claims 3 and 7
based on an unreasonable determination of the facts. See Pet. 32–41, ECF No. 12.
Relying on trial counsel’s affidavit, the state habeas court found as fact that, in trial
counsel’s experience, “testimony of jail personnel is often not particularly favorable to the defense
by the time of trial unless there is ‘at least some personal relationship with, or affinity for the
defendant that has developed with the officers.’” 2 SHCR 1414. Petitioner points to no evidence
in the record refuting trial counsel’s experience. See Pet. 32–33. And indeed, at oral argument
before this Court, Petitioner’s lawyer conceded that without a personal relationship with the
prisoner, jail personnel testimony is not useful for the defendant. The Court finds Petitioner has
not rebutted this factual finding with clear and convincing evidence. Cf. 28 U.S.C. § 2254(e)(1)
(“The applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.”); Clark, 202 F.3d at 764 (“The presumption is especially strong when the
state habeas court and the trial court are one in the same.”).
Relying on trial counsel’s affidavit, the state habeas court found as fact:
“Members of the defense team asked [Petitioner] about the possibility of finding
jail guards, chaplains, or other jail personnel with whom [Petitioner] had
developed a sufficiently good relationship that they might be willing to testify
on his behalf, but [Petitioner] never identified any such prospective witness and
was not very encouraging that any such witnesses might be found.”
2 SHCR 1414. Petitioner claims that this finding “is undermined” because “trial counsel could
have identified who spent a significant amount of time watching Petitioner over the 18-month
period from the jail logs . . . .” Pet. 33, ECF No. 12. However, simply because certain jail personnel
37
spent “a significant amount of time watching Petitioner” does not necessarily mean that they
“developed a sufficiently good relationship that they might be willing to testify on [Petitioner’s]
behalf.” The Court finds Petitioner has not rebutted this factual finding with clear and convincing
evidence.
The state habeas court found as fact that “[Petitioner’s] assertion that he did nothing to
dissuade trial counsel from pursuing an investigation into Tarrant County jail staff and that he
‘simply could not recall the names of any specific jail staff he could recommend that counsel speak
to’ is unsupported by the record.” 2 SHCR 1414. Petitioner asserts, without argument, that this
finding was unreasonable, see Pet. 32–33, ECF No. 12, but nothing in the record contradicts it.
The Court finds Petitioner has not rebutted this factual finding with clear and convincing evidence.
The state habeas court found as fact that “[A]lthough Rigmaiden’s, Bell’s, and Thomas’
names appear in jail logs contained in [Petitioner’s] Exhibit 44, nothing in those entries show that
any of them had developed at least some personal relationship with or affinity for [Petitioner].”
2 SHCR 1415. According to Petitioner, this finding is unreasonable because jail logs are not diaries
and do not ordinarily provide evidence of a personal relationship. See Pet. 33, ECF No. 12. But in
the next sentence, Petitioner contradicts this assertion by claiming that jail logs can, in fact, show
that prison personnel spent a significant amount of time watching and inmate, thereby indicating
the existence of a personal relationship. See id. Notwithstanding these contradictory assertions, the
state habeas court’s finding is reasonable: the jail logs did not reveal whether jail personnel, in
addition to overseeing Petitioner, had also developed a personal relationship with him. The Court
finds Petitioner has not rebutted this factual finding with clear and convincing evidence.
The state habeas court found as fact that the proposed testimony of Rigmaiden, Thomas,
and Bell “provides no meaningful new facts about [Petitioner’s] pretrial confinement that
38
[Petitioner’s] trial counsel did not develop through other witnesses.” 4 SHCR 1415. Petitioner
claims that this finding is unreasonable because these witnesses would have testified that: (1)
“Petitioner was quiet, respectful, pleasant, and never caused trouble with the [Tarrant County Jail]
staff or other inmates”; (2) “Petitioner complied with all rules and had no disciplinary infractions
while at Tarrant County Jail”; and (3) “Petitioner would not be a future danger in prison and would
have adjusted well to a general population setting in prison.” Pet. 33–34, ECF No. 12. But trial
counsel called other witnesses who testified to the facts of Petitioner’s good behavior in jail and
adaptability to prison life. See supra Part I.F–G. The Court finds Petitioner has not rebutted this
factual finding with clear and convincing evidence.
The state habeas court stated in its conclusions of law:
“Dr. Hardesty’s proffered opinions of [Petitioner’s] future dangerousness do
not satisfy the reliability requirements of Tex. R. Evid. 702 because her
determination that [Petitioner] would not be a future danger if he were
sentenced to life in prison is the same type of unreliable prediction of future
dangerousness rejected as unreliable in Coble v. State, 330 S.W.3d 253 (Tex.
Crim. App. 2010).”
2 SHCR 1424. Petitioner complains that because Dr. Hardesty’s testimony was not analogous to
the testimony in Coble this is an unreasonable determination of fact. See Pet. 34–41, ECF No. 12.
The Court disagrees. Even if the state habeas court’s application of Coble was erroneous, the state
habeas court made a legal determination based on state law. “It is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire,
502 U.S. 62, 67–68 (1991). Petitioner has not shown with clear and convincing evidence that this
is an unreasonably determined fact.
Finally, the state habeas court found as fact:
Dr. Hardesty’s opinion that [Petitioner] would not pose a future risk of violence,
even if it were determined to be admissible at trial, is not so compelling that it
would have changed the jury’s answer to the future dangerousness special issue,
39
especially in light of State’s powerful evidence that Applicant posed a future
danger.
4 SHCR 1418. Petitioner claims that this is an unreasonable determination of fact because Dr.
Hardesty’s testimony was both credible and weighty. See Pet. 34–41, ECF No. 12. But the question
whether Dr. Hardesty’s testimony “would have changed the jury’s answer to the future
dangerousness special issue,” is really the question whether prejudice exists under Strickland. As
such, this “finding of fact” is actually a legal determination. Petitioner has not shown with clear
and convincing evidence that this is an unreasonably determined fact.
Petitioner has not shown that the state habeas court’s decisions on State Habeas Claims 3
and 7 were “based on an unreasonable determination of the facts.” Accordingly, the Court
DENIES Federal Habeas Claims 1-A and 1-B.
B.
Federal Habeas Claim 1-C (State Habeas Claim 4): Trial Counsel Failed to
Present Expert Testimony Regarding Petitioner’s Life History
Petitioner claims that the state habeas court rejected State Habeas Claim 4 based on an
unreasonable application of clearly established federal law and an unreasonable determination of
facts. See Pet. 46–52, ECF No. 12.
1.
State Habeas Court’s Application of Clearly Established Federal Law
Petitioner claims that he received IATC because his trial counsel “failed to present expert
testimony regarding Petitioner’s life history (Ground 1-C).” Id. at 41. Specifically, Petitioner
alleges that trial counsel should have presented “the expert testimony of Laura Smith, who . . .
provide[d] an explanation of Petitioner’s life history and an opinion of the elements in the life
history that impacted Petitioner’s development and decision-making.” Id.
The state habeas court considered this argument and rejected it, finding that “prevailing
professional norms do not require trial counsel in a death-penalty case to retain a ‘social history
40
expert witness’ such as social worker Smith or to call such a witness to testify at the punishment
phase of a death-penalty trial.” 4 SHCR 1426. Nevertheless, the state habeas court found that trial
counsel “performed a complete mitigation investigation into every aspect of [Petitioner’s] life,
which included gathering records and evidence, interviewing [Petitioner], and identifying and
interviewing potential witnesses.” Id. The state habeas court also found that “contrary to
[Petitioner’s] assertions, [Petitioner’s] trial counsel did present expert testimony about
[Petitioner’s] life history through Dr. McGarrahan to develop the relevant social history as part of
[Petitioner’s] mitigation case.” Id. at 1429 (emphasis in original). The state habeas court found
that Dr. McGarrahan’s testimony “gave the jury a sufficiently complete understanding of
Applicant’s life history,” id. at 1430, and that Smith’s testimony would have been “largely
cumulative.” Id. at 1433.
Petitioner contends that the state habeas court’s decision on State Habeas Claim 4 violated
clearly established federal law in Williams v. Taylor, 529 U.S. 362 (2000). See Pet. 48, ECF No. 12.
In Williams,
The evidence offered by Williams’ trial counsel at the sentencing hearing
consisted of the testimony of Williams’ mother, two neighbors, and a taped
excerpt from a statement by a psychiatrist. One of the neighbors had not been
previously interviewed by defense counsel, but was noticed by counsel in the
audience during the proceedings and asked to testify on the spot. The three
witnesses briefly described Williams as a “nice boy” and not a violent person.
The recorded psychiatrist’s testimony did little more than relate Williams’
statement during an examination that in the course of one of his earlier
robberies, he had removed the bullets from a gun so as not to injure anyone.
In his cross-examination of the prosecution witnesses, Williams’ counsel
repeatedly emphasized the fact that Williams had initiated the contact with the
police that enabled them to solve the murder and to identify him as the
perpetrator of the recent assaults, as well as the car thefts. In closing argument,
Williams’ counsel characterized Williams’ confessional statements as “dumb,”
but asked the jury to give weight to the fact that he had “turned himself in, not
on one crime but on four . . . that the [police otherwise] would not have solved.”
41
The weight of defense counsel’s closing, however, was devoted to explaining
that it was difficult to find a reason why the jury should spare Williams’ life.
The jury found a probability of future dangerousness and unanimously fixed
Williams’ punishment at death. . . .
Id. at 369–70 (citations omitted). Trial counsel, however, failed to introduce certain relevant
evidence in mitigation:
Among the evidence reviewed that had not been presented at trial were
documents prepared in connection with Williams’ commitment when he was
11 years old that dramatically described mistreatment, abuse, and neglect
during his early childhood, as well as testimony that he was “borderline
mentally retarded,” had suffered repeated head injuries, and might have mental
impairments organic in origin.
Id. at 370. The Supreme Court in Williams held that this oversight constituted IATC. Id. at 371. It
explained:
[Trial counsel’s] representation during the sentencing phase fell short of
professional standards—a judgment barely disputed by the State in its brief to
this Court. The record establishes that counsel did not begin to prepare for that
phase of the proceeding until a week before the trial. They failed to conduct an
investigation that would have uncovered extensive records graphically
describing Williams’ nightmarish childhood, not because of any strategic
calculation but because they incorrectly thought that state law barred access to
such records. Had they done so, the jury would have learned that Williams’
parents had been imprisoned for the criminal neglect of Williams and his
siblings, that Williams had been severely and repeatedly beaten by his father,
that he had been committed to the custody of the social services bureau for two
years during his parents’ incarceration (including one stint in an abusive foster
home), and then, after his parents were released from prison, had been returned
to his parents’ custody.
Counsel failed to introduce available evidence that Williams was “borderline
mentally retarded” and did not advance beyond sixth grade in school. They
failed to seek prison records recording Williams’ commendations for helping
to crack a prison drug ring and for returning a guard’s missing wallet, or the
testimony of prison officials who described Williams as among the inmates
“least likely to act in a violent, dangerous or provocative way.” Counsel failed
even to return the phone call of a certified public accountant who had offered
to testify that he had visited Williams frequently when Williams was
incarcerated as part of a prison ministry program, that Williams “seemed to
42
thrive in a more regimented and structured environment,” and that Williams
was proud of the carpentry degree he earned while in prison. . . .
We are also persuaded . . . that counsel’s unprofessional service prejudiced
Williams within the meaning of Strickland. . . . [T]he sole argument in
mitigation that trial counsel did advance . . . [was that] Williams turned himself
in, alerting police to a crime they otherwise would never have discovered,
expressing remorse for his actions, and cooperating with the police after that.
While this, coupled with the prison records and guard testimony, may not have
overcome a finding of future dangerousness, the graphic description of
Williams’ childhood, filled with abuse and privation, or the reality that he was
“borderline mentally retarded,” might well have influenced the jury’s appraisal
of his moral culpability.
Id. at 395–98 (citations omitted) (emphasis added).
Petitioner’s case is distinguishable from Williams. Petitioner’s trial counsel presented
evidence of Petitioner’s life history through Dr. McGarrahan. See supra Part I.G.2. Trial counsel’s
preparation was not last minute or haphazard; it was diligent and meticulous.5 And trial counsel
presented a thorough mitigation case based on Petitioner’s character and background and the
circumstances of the offense, see supra Part I.F–G, whereas in Williams, “the sole argument in
mitigation” was that Williams turned himself in to the police. 529 U.S. at 398. Any additional
testimony by Smith would not have “influenced the jury’s appraisal of [Petitioner’s] moral
culpability” in the same way additional mitigation evidence would have influenced the jury in
Williams.
In preparing their mitigation case, trial counsel sought out lay witnesses from among Petitioner’s family
and friends. Despite these efforts, “[f]ew, if any, of the members of Mr. Hummel’s family wished to assist
[trial counsel] in his defense. Some refused to talk to [trial counsel]; some indicated they wished to tell the
jury to give [Petitioner] the death penalty; some had knowledge of [Petitioner’s] chronic marijuana use
(even when the family struggled financially); and some even sought to prevent [trial counsel] from talking
to other members of the family.” 2 SHCR 539. Multiple individuals threatened to call the police if trial
counsel initiated further contact with them. See id. at 540–41. Trial counsel’s “independent investigation
was hampered by an almost universal lack of cooperation from the vast majority of the people” they
contacted. Id. at 540. Notwithstanding these obstacles, trial counsel successfully collected an assortment of
lay witnesses. Trial counsel even used their own money to pay certain witnesses to travel to Texas to testify.
Id. at 539–40.
5
43
Petitioner next contends that the state habeas court violated clearly established federal law
in Rompilla by failing to adequately investigate Petitioner’s social history. See Pet. 50, ECF
No. 12; cf. supra Part IV.A (discussing Rompilla). But Rompilla held that trial counsel “is bound
to make reasonable efforts to obtain and review material that counsel knows the prosecution will
probably rely on as evidence of aggravation at the sentencing phase of trial.” 545 U.S. at 377. The
holding in Rompilla does not apply here, because the prosecution was not likely to rely on social
worker Smith’s testimony—testimony that would have been favorable to Petitioner. And to the
extent social worker Smith’s testimony would have mitigated the State’s proof of Hummel’s deathworthiness, it was cumulative of mitigating social history testimony that trial counsel had already
discovered and presented.
Petitioner finally contends that the state habeas court violated clearly established federal
law in Wiggins v. Smith, 539 U.S. 510 (2003). See Pet. 50, 52, ECF No. 12. In Wiggins, trial
counsel moved the court to bifurcate sentencing to enable them to present two arguments at
sentencing, one “retrying guilt” and one presenting mitigation evidence. 539 U.S. at 515. When
the court denied the motion, trial counsel decided to argue only that Wiggins did not commit the
offense, and trial counsel “introduced no evidence of Wiggins’ life history . . . or family
background.” 539 U.S. at 516–17. Wiggins claimed that his attorneys “had rendered
constitutionally defective assistance by failing to investigate and present mitigating evidence of
his dysfunctional background.” Id. at 516.
“To support his [IATC] claim, [Wiggins’ counsel] presented testimony by Hans Selvog, a
licensed social worker certified as an expert by the court.” Id. at 516. According to Selvog:
[Wiggins’] mother, a chronic alcoholic, frequently left Wiggins and his siblings
home alone for days, forcing them to beg for food and to eat paint chips and
garbage. Mrs. Wiggins’ abusive behavior included beating the children for
breaking into the kitchen, which she often kept locked. She had sex with men
44
while her children slept in the same bed and, on one occasion, forced
petitioner’s hand against a hot stove burner—an incident that led to petitioner’s
hospitalization. At the age of six, the State placed Wiggins in foster care.
Petitioner’s first and second foster mothers abused him physically, and, as
petitioner explained to Selvog, the father in his second foster home repeatedly
molested and raped him. At age 16, petitioner ran away from his foster home
and began living on the streets. He returned intermittently to additional foster
homes, including one in which the foster mother’s sons allegedly gang-raped
him on more than one occasion. After leaving the foster care system, Wiggins
entered a Job Corps program and was allegedly sexually abused by his
supervisor.
Id. at 516–17. Wiggins’ attorneys did not discover this evidence as they did not retain a forensic
social worker to prepare a social history. See id. at 517. Wiggins’ attorneys claimed that this was
not an oversight but a strategic choice to “retry guilt” at sentencing rather than present a mitigation
case focused on his troubled childhood. See id. at 518.
But the Supreme Court held that “[c]ounsel’s decision not to expand their investigation
[into Wiggins’ social history] . . . fell short of the professional standards that prevailed in Maryland
in 1989 . . . [because] standard practice in Maryland in capital cases at the time of Wiggins’ trial
included the preparation of a social history report.” Id. at 524. Moreover, trial counsel had already
discovered troubling facts about Wiggins’ background that called for further investigation. See id.
at 525. The Supreme Court also concluded that trial counsel’s “failure to investigate thoroughly
resulted from inattention, not reasoned strategic judgment,” because trial counsel had moved the
court to bifurcate the sentencing trial in order to enable them to present a mitigation defense. See
id. at 526. If trial counsel was planning to present a mitigation case, “they had every reason to
develop the most powerful mitigation case possible.” Id.
Petitioner’s case is distinguishable from Wiggins. In Wiggins, trial counsel did not
investigate defendant’s social history or offer any social history as mitigating evidence. By contrast
45
here, trial counsel not only investigated defendant’s social history, see 2 SHCR 536, but also
offered evidence of it at sentencing. See supra Part I.G.2.
The state habeas court reasonably applied Strickland to State Habeas Claim 4. First, the
state habeas court reasonably concluded that trial counsel provided adequate representation. Trial
counsel hired a social worker, Ms. Brendan Ross, for the mitigation investigation, 2 SHCR 536,
and called lay witnesses who knew Petitioner and an expert in neuropsychology to discuss
Petitioner’s social history and its effect on his behavior. See supra Part I.G.2. Additional evidence
in the form of third-party narrative from a social worker would have been cumulative. Cf. Coble,
496 F.3d at 436 (“Counsel’s decision not to present cumulative testimony does not constitute
ineffective assistance.”); Dowthitt, 230 F.3d at 743 (“We must be particularly wary of ‘argument[s]
[that] essentially come[ ] down to a matter of degrees.” (alterations in original)). Trial counsel also
acted based on experience and strategic judgment, declining to introduce a social history expert
witnesses because his “prior experience ha[d] been that jurors often ascribe relatively little
importance to opinion testimony of this type,” and because he believed her testimony would have
been cumulative. See 2 SHCR 536–37, 936. This is “sound trial strategy” that “falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; cf. Hinton v.
Alabama, 134 S. Ct. 1081, 1089 (2014) (“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.’” (quoting Strickland, 466 U.S. at 690)).
Finally, the state habeas court reasonably concluded that trial counsel, by not calling
additional witnesses, did not prejudice Petitioner. Petitioner has not shown that a juror would likely
have rejected the death penalty but for the omission of social worker Smith’s cumulative
testimony. Cf. Strickland, 466 U.S. 694 (“The defendant must show that there is a reasonable
46
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.”). The heinousness of Petitioner’s crime supports this finding even further. See
supra Part IV.A.1.
The state habeas court’s decision on State Habeas Claim 4 did not unreasonably or
erroneously apply clearly established federal law under Strickland and its progeny. Petitioner has
not shown that the state habeas court’s decision on State Habeas Claim 4 was either “contrary to”
or an “unreasonable application of” clearly established federal law.
2.
State Habeas Court’s Determination of Facts
Petitioner also contends that the state habeas court rejected State Habeas Claim 4 based on
an unreasonable determination of the facts. See Pet. 51–52, ECF No. 12.
The state habeas court found as fact that “[p]revailing professional norms do not require
trial counsel in a death penalty case to retain a ‘social history expert witness’ such as social worker
Smith or to call such a witness to testify at the punishment phase of a death-penalty trial.” 4 SHCR
1426. Petitioner claims that this is an unreasonable determination of facts, Pet. 46, ECF No. 12,
but cites no contrary evidence of prevailing professional norms. The Court finds Petitioner has not
rebutted this factual finding with clear and convincing evidence. Cf. 28 U.S.C. § 2254(e)(1) (“The
applicant shall have the burden of rebutting the presumption of correctness by clear and convincing
evidence.”); Clark, 202 F.3d at 764 (“The presumption is especially strong when the state habeas
court and the trial court are one in the same.”).
The state habeas court found as fact that trial counsel “performed a complete mitigation
investigation into every aspect of [Petitioner’s] life, which included gathering records and
evidence, interviewing [Petitioner], and identifying and interviewing potential witnesses.”
4 SHCR 1426. Petitioner claims that this is an unreasonable determination of fact because Smith
47
would have provided better and more detailed testimony than Dr. McGarrahan. See Pet. 46–47,
ECF No. 12. Even if true, this does not show that trial counsel failed to conduct a thorough factual
investigation. The Court finds Petitioner has not rebutted this factual finding with clear and
convincing evidence.
The state habeas court found as fact that, “contrary to [Petitioner’s] assertions,
[Petitioner’s] trial counsel did present expert testimony about [Petitioner’s] life history through
Dr. McGarrahan to develop the relevant social history as part of [Petitioner’s] mitigation case.”
4 SHCR 1429. The state habeas court also found as fact that the “substance of the testimony from
Dr. McGarrahan and other witnesses developed the important facts of [Petitioner’s] life and life
events and gave the jury a sufficiently complete understanding of [Petitioner’s] life history.” Id.
at 1430. Again, Petitioner claims that this is an unreasonable determination of fact because social
worker Smith would have provided better and more detailed testimony than Dr. McGarrahan. See
Pet. 46–47, ECF No. 12. Even if true, this does not show that Dr. McGarrahan’s expert testimony
failed to give the jury a “sufficiently complete understanding” of Petitioner’s life history. The
Court finds Petitioner has not rebutted these factual findings with clear and convincing evidence.
The state habeas court found as fact that “[S]mith’s affidavit contains no meaningful facts
or any necessary expert opinions that trial counsel did not cover in the mitigation presentation at
trial or that would have persuaded the jury to answer the mitigation special issue differently.”
2 SHCR 1431. Petitioner claims that social worker Smith’s affidavit indeed discusses facts not
raised in the mitigation presentation, including,
her conclusion that the abuse and neglect Petitioner suffered as a child [made]
him unable to form relationships with other people outside of fantasy games, is
unable to solve problems in real life versus escaping to fantasy, and runs away
or disappears when things get difficult without a clear understanding of what
the consequences might be for those actions . . . .
48
Pet. 51, ECF No. 12. In reality, trial counsel did present many of these facts as evidence in
mitigation. See supra Part I.F–G. Social worker Smith’s opinions are substantially similar to Dr.
McGarrahan’s testimony tying Petitioner’s behavior to personality disorders and an inability to
form healthy relationships that resulted from his upbringing, social development, and genetic
make-up. 44 RR 135–46. In any case, the state habeas court did not claim that social worker
Smith’s affidavit contained no additional facts—only that it did not contain other “meaningful
facts” or “necessary expert opinions.”6 2 SHCR 1431 (emphasis added). Petitioner has not shown
how the facts and expert opinions unique to Smith’s affidavit were “meaningful” and “necessary.”
The Court finds Petitioner has not rebutted this factual finding with clear and convincing evidence.
Petitioner has not shown that the state habeas court’s decision on State Habeas Claim 4
was “based on an unreasonable determination of the facts.” Accordingly, the Court DENIES
Federal Habeas Claim 1-C.
C.
Federal Habeas Claim 1-D (State Habeas Claim 5): Trial Counsel Failed to
Present Relevant Lay Witness Testimony
Petitioner claims that the state habeas court rejected State Habeas Claim 5 based on an
unreasonable application of clearly established federal law and an unreasonable determination of
facts. See Pet. 55–57, ECF No. 12.
1.
State Habeas Court’s Application of Clearly Established Federal Law
Petitioner claims that he received IATC because trial counsel “failed to present relevant
lay witnesses (Ground 1-D).” Id. at 53. Specifically, Petitioner alleges that trial counsel should
have called Thomas Hamilton, Brian Jeter, Joseph “JoJo” Patterson, Chad Brown, Lance Dupre,
Shana Fowler, George Goodson, Christopher Paris, and Tonya Paris, who were primarily
Petitioner’s friends and fellow churchgoers. As lay witnesses, Petitioner contends that they could
6
These adjectives may indicate that the state habeas court made a legal conclusion.
49
have testified about his good character, history of non-violence, and traumatic life circumstances.
See id. at 53–55. The state habeas court considered this argument and rejected it, finding that trial
counsel “identified and interviewed every potential witness it could locate,” 4 SHCR 1437, and
“fulfilled their duty to conduct a reasonable and thorough investigation . . . even in the face of
dealing with threats, uncooperative witnesses, and witnesses whose testimony would have
damaged [Petitioner’s] case.” Id. at 1456. The state habeas court concluded that the omitted
witnesses’ testimony would have been cumulative. See id.
Petitioner argues that the state habeas court’s decision on State Habeas Claim 5 violated
clearly established federal law in Wiggins v. Smith, 539 U.S. 510 (2003). Pet. 56, ECF No. 12; cf.
supra Part IV.B (discussing Wiggins). But Petitioner’s case is distinguishable from Wiggins. In
Wiggins, trial counsel did not investigate Wiggins’ social history or offer any social history as
mitigating evidence. By contrast here, trial counsel thoroughly investigated potentially relevant
lay witnesses, see 2 SHCR 537–43, and offered their testimony at sentencing. See supra Part I.F.
The state habeas court reasonably applied Strickland to State Habeas Claim 5. First, the
state habeas court reasonably concluded that trial counsel provided adequate representation. Trial
counsel called nine relevant lay witnesses, including close friends, relatives, and romantic partners,
who testified generally to Petitioner’s background and behavior. See supra Part I.F. Additional lay
witness testimony would have been largely cumulative of the existing evidence. Cf. Coble, 496
F.3d at 436 (“Counsel’s decision not to present cumulative testimony does not constitute
ineffective assistance.”); Dowthitt, 230 F.3d at 743 (“We must be particularly wary of ‘argument[s]
[that] essentially come[ ] down to a matter of degrees.” (alterations in original)). Trial counsel also
acted based on experience and strategic judgment, making a thorough investigation of relevant lay
witnesses and calling those witnesses trial counsel “felt were necessary in order to present as
50
complete of a picture as we possibly could of [Petitioner’s] life.” 2 SHCR 542. This is “sound trial
strategy” that “falls within the wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
Finally, the state habeas court reasonably concluded that trial counsel, in failing to call
additional witnesses, did not prejudice Petitioner. 4 SHCR 1458. Petitioner has not shown that a
juror would likely have reconsidered the death penalty but for the omission of additional,
cumulative lay witness testimony. Cf. Strickland, 466 U.S. 694 (“The defendant must show that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.”). The heinousness of Petitioner’s crime supports this
finding even further. See supra Part IV.A.1.
The state habeas court’s decision on State Habeas Claim 5 did not unreasonably or
erroneously apply clearly established federal law under Strickland and its progeny. Petitioner has
not shown that the state habeas court’s decision on State Habeas Claim 5 was either “contrary to”
or an “unreasonable application of” clearly established federal law.
2.
State Habeas Court’s Determination of Facts
Petitioner also contends that the state habeas court rejected State Habeas Claim 5 based on
an unreasonable determination of the facts. See Pet. 56, ECF No. 12.
Petitioner asserts in conclusory fashion that the entire set of factual findings with respect
to State Habeas Claim 5 were unreasonably determined. See Pet. 56, ECF No. 12. As evidence
supporting this contention, Petitioner claims that trial counsel “[did] not uncover[ ] . . . his struggles
with education, his inability to connect with people, his obsession with role-playing games, his
experience in the military . . . his difficulty living like other persons who deal with relationships
and financial issues, [and] his severe medical issues with Crohn’s disease and a back injury.” Id.
51
at 55–56. But trial counsel did uncover these facts through the testimony of many witnesses. See
supra Part I.F–G. The Court finds Petitioner has not rebutted with clear and convincing evidence
the presumption that the state habeas court reasonably determined these facts. Cf. 28 U.S.C. §
2254(e)(1) (“The applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.”); Clark, 202 F.3d at 764 (“The presumption is especially strong
when the state habeas court and the trial court are one in the same.”).
Petitioner has not shown that the state habeas court’s decision on State Habeas Claim 5
was “based on an unreasonable determination of the facts.” Accordingly, the Court DENIES
Federal Habeas Claim 1-D.
D.
Federal Habeas Claim 1-E (State Habeas Claim 6): Trial Counsel Failed to
Present Petitioner’s Military Service as Mitigation Evidence
Petitioner claims that the state habeas court rejected State Habeas Claim 6 based on an
unreasonable application of clearly established federal law and an unreasonable determination of
facts. See Pet. 57–64, ECF No. 12.
1.
State Habeas Court’s Application of Clearly Established Federal Law
Petitioner claims that he received IATC because his trial counsel “failed to present
Petitioner’s military service as mitigation evidence (Ground 1-E).” Id. at 57. Specifically,
Petitioner argues that trial counsel should have called Wayne “Buddy” Matthias, Efrain Chaidez,
and Fred Emmer, who had each encountered Petitioner in the military. The state habeas court
considered and rejected this argument, finding that “trial counsel made a strategic decision to
attempt to avoid or minimize negative evidence related to Petitioner’s military career.” 4 SHCR
1460. While trial counsel did not locate Matthias, Emmer, and Chaidez, see id. at 1465, the state
habeas court found that their testimony would have given both negative and positive information,
and therefore would not have necessarily portrayed Petitioner’s military service in a more positive
52
light. See id. at 1461–62, 1465. The state habeas court therefore concluded that trial counsel’s
failure to locate Matthias, Emmer, and Chaidez was not IATC. See id. at 1465.
Petitioner argues that the state habeas court violated clearly established federal law under
Porter v. McCollum, 558 U.S. 30 (2000). In Porter,
The defense put on only one witness, Porter’s ex-wife, and read an excerpt from
a deposition. The sum total of the mitigating evidence was inconsistent
testimony about Porter’s behavior when intoxicated and testimony that Porter
had a good relationship with his son. Although his lawyer told the jury that
Porter “has other handicaps that weren’t apparent during the trial” and Porter
was not “mentally healthy,” he did not put on any evidence related to Porter’s
mental health. . . .
In 1995, Porter filed a petition for postconviction relief in state court, claiming
his penalty-phase counsel failed to investigate and present mitigating evidence.
The court conducted a 2–day evidentiary hearing, during which Porter
presented extensive mitigating evidence, all of which was apparently unknown
to his penalty-phase counsel. Unlike the evidence presented during Porter’s
penalty hearing, which left the jury knowing hardly anything about him other
than the facts of his crimes, the new evidence described his abusive childhood,
his heroic military service and the trauma he suffered because of it, his longterm substance abuse, and his impaired mental health and mental capacity.
558 U.S. at 32–33.
Porter’s father physically abused him and on one occasion nearly shot him to death. See id.
at 34. To escape the abuse, Porter enlisted in the Army and was involved in extensive combat in
Korea. See id. at 34–35. Porter suffered a gunshot wound during an advance on Chinese forces in
the battle of Kunu-ri, which involved five days of combat, including hand to hand fighting. See id.
at 34. Porter was also wounded in the battle of Chip’yong-ni, wherein his regiment was cut off and
defended itself for two days and two nights from mortar, artillery, and machine gun fire, and
suffered more than 50% casualties. See id. at 34–35. The battles were “very trying, horrifying
experiences.” Id. at 35. For his heroic service, Porter received the Presidential Unit Citation, two
Purple Hearts, and the Combat Infantryman Badge, among other decorations. Id. After these
53
combat experiences, Porter repeatedly went AWOL, suffered “dreadful nightmares and would
attempt to climb his bedroom walls with knives at night.” Id. “Porter developed a serious drinking
problem and began drinking so heavily that he would get into fights and not remember them at
all.” Id. at 36. “In addition to this testimony regarding his life history, Porter presented an expert
in neuropsychology, Dr. Dee, who . . . concluded that Porter suffered from brain damage that could
manifest in impulsive, violent behavior.” Id. The Supreme Court held in a per curiam opinion that
trial counsel’s failure to investigate and present this evidence in mitigation constituted IATC. See
id. at 38–44.
Petitioner contends that, like in Porter, he received IATC because trial counsel neglected
to introduce testimony that would have reflected more positively on his military career. See Pet.
60–64, ECF No. 12. But Petitioner’s case is distinguishable from Porter. In Porter trial counsel
did not present any evidence of the defendant’s military service; here, multiple witnesses testified
to Petitioner’s experience in the Marine Corps. See supra Part I.C. Porter was a decorated combat
veteran with a record of heroic service; here, Petitioner was an unremarkable intelligence specialist
with no individual commendations. See supra id. Porter suffered gunshot wounds and mental and
emotional trauma from horrific combat experiences; here, Petitioner never faced combat and did
not maintain his assigned weight. See supra id. The reasons for finding IATC in Porter are not
applicable here. The state habeas court did not violate clearly established federal law in Porter.
The state habeas court reasonably applied Strickland to State Habeas Claim 6. First, the
state habeas court reasonably concluded that trial counsel provided adequate representation.
Petitioner’s military experience was unimpressive and in some ways reflected poorly on him,
which is why the State called witnesses to speak about his military background. See supra id. Trial
counsel therefore made a strategic decision to cross-examine those witnesses “to develop as much
54
positive information about his military service, his commendations, and his ‘honorable discharge’
from service, as was possible.” 2 SHCR 544 (emphasis in original). Trial counsels’ decision not
to focus additional attention on Petitioner’s military background was “sound trial strategy” that
“falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Finally, the state habeas court reasonably concluded that trial counsel, in failing to call
additional witnesses, did not prejudice Petitioner. Petitioner has not shown that a juror would likely
have reconsidered the death penalty but for the omission of testimony that in some ways reflected
poorly on Petitioner. Cf. Strickland, 466 U.S. 694 (“The defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.”). The heinousness of Petitioner’s crime supports this finding even
further. See supra Part IV.A.1.
The state habeas court’s decision on State Habeas Claim 6 did not unreasonably or
erroneously apply clearly established federal law under Strickland and its progeny. Petitioner has
not shown that the state habeas court’s decision on State Habeas Claim 6 was either “contrary to”
or an “unreasonable application of” clearly established federal law.
2.
State Habeas Court’s Determination of Facts
Petitioner also contends that the state habeas court rejected State Habeas Claim 6 based on
an unreasonable determination of the facts. See Pet. 61, ECF No. 12.
The state habeas court found as fact that “trial counsel did not overlook the potential value
of [Petitioner’s] military service to the mitigation presentation at trial.” 4 SHCR 1459 (emphasis
in original). The state habeas court also found as fact that “by [Petitioner’s] own accounts to
members of the defense team, his military service was ‘lackluster,’ was not a positive experience,
and was not something that would be particularly fruitful to his mitigation case, and [trial counsel]
55
knew about the problems [Petitioner] had in the military.” Id. at 1459–60. The state habeas court
also found as fact that “[t]rial counsel made a strategic decision to attempt to avoid or minimize
negative evidence related to [Petitioner’s] military career.” Id. 1460. Petitioner contends that these
were unreasonable determinations of fact because trial counsel could have put on testimony by
persons who had “real knowledge of what Petitioner did in the military.” Pet. 60, ECF No. 12.
This does not rebut the fact that trial counsel considered, investigated, and presented through crossexamination, Petitioner’s military service as mitigation evidence. 2 SHCR 543–44, 937–40. The
Court finds Petitioner has not rebutted this factual finding with clear and convincing evidence. Cf.
28 U.S.C. § 2254(e)(1) (“The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”); Clark, 202 F.3d at 764 (“The presumption is
especially strong when the state habeas court and the trial court are one in the same.”).
Petitioner has not shown that the state habeas court’s decision on State Habeas Claim 6
was “based on an unreasonable determination of the facts.” Accordingly, the Court DENIES
Federal Habeas Claim 1-E.
E.
Federal Habeas Claim 1-F (State Habeas Claim 2): Trial Counsel Failed to
Argue that the State’s Evidence was Insufficient to Show Future Danger
Petitioner claims that the state habeas court rejected State Habeas Claim 2 based on an
unreasonable application of clearly established federal law and an unreasonable determination of
facts. See Pet. 64–66, ECF No. 12.
1.
State Habeas Court’s Application of Clearly Established Federal Law
Petitioner claims that he “received IATC and IAAC because trial and appellate counsel
failed to argue that the State’s evidence was insufficient to show future danger (Ground 1-F).” Pet.
64, ECF No. 12. The Court will address the IATC claim here and the IAAC claim separately in
Part V.A.
56
Petitioner argues that the State’s case for future dangerousness focused almost entirely on
the facts of the crime, and that the State’s proof of future dangerousness was “marginal” since
Petitioner had no history of criminal activity, aggression, or discipline while incarcerated. Id. at
64–65. Petitioner argues that the State failed to meets its burden to prove future dangerousness,
and concomitantly, that trial counsel was ineffective because they failed to argue the issue. Id.
at 65. The state habeas court considered and rejected these arguments, finding that “[t]he facts of
[Petitioner’s] offense are, alone, sufficient to support a finding of future dangerousness.” 4 SHCR
1411. The state habeas court also found that, in addition to the facts of the offense, the State
admitted enough evidence “to prove beyond a reasonable doubt a probability that [Petitioner]
would commit criminal acts of violence that would constitute a continuing threat to society.” Id.
at 1412.
Petitioner asserts without explanation that the state habeas court violated clearly
established federal law under Wiggins. Pet. 65, ECF No. 12; cf. supra Part IV.B (discussing
Wiggins). But in Wiggins, the Supreme Court found IATC because trial counsel did not investigate
Wiggins’ social history or offer any social history as mitigating evidence. Trial counsel’s failure
to argue legal insufficiency here is not analogous to trial counsel’s failure to investigate social
history in Wiggins.
Finally, Petitioner argues that the state habeas court violated clearly established federal law
under Wong v. Belmontes, 558 U.S. 15 (2009). Pet. 65, ECF No. 12. In Wong, the Supreme Court
reversed a decision of the Ninth Circuit holding that trial counsel was ineffective by failing to
investigate and present sufficient mitigating evidence. See 558 U.S. at 16–19. The Supreme Court
assumed inadequate representation for the sake of argument but found no prejudice. See id.
at 19–20. Specifically, the Supreme Court found that trial counsel presented “substantial”
57
mitigating evidence: nine witnesses who testified on a range of topics over a span of two days. See
id. at 21. Petitioner appears to argue that he received IATC because his trial counsel did not put on
a mitigating case as strong as the one in Wong. See Pet. 65–66, ECF No. 12. But the Supreme
Court in Wong did not establish a negative inference that every trial counsel who presents a less
comprehensive mitigation case than the one in Wong is constitutionally ineffective. The state
habeas court did not violate clearly established federal law in Wong.
The state habeas court reasonably applied Strickland to State Habeas Claim 2. First, the
state habeas court reasonably concluded that trial counsel provided adequate representation. Trial
counsel made a strategic decision not to argue legal insufficiency because he believed that “such
an argument would have been [ ] futile.” 2 SHCR 530. Indeed, trial counsel “did not believe that
the Trial Judge would ever grant an instructed verdict against the State on that issue, based upon
all of the facts adduced at [Petitioner’s] trial.” Id. (emphasis in original). However, trial counsel
“did argue to the jury that the evidence in the case did not support an affirmative answer to [ ]
Special Issue [No. 1]7, and [ ] aggressively sought to demonstrate that fact through the evidence
which [was] introduced at punishment as part of [the] trial strategy.” See id. at 531 (emphasis in
original). This is “sound trial strategy” that “falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
Finally, the state habeas court reasonably concluded that trial counsel, in failing to call
additional witnesses, did not prejudice Petitioner. Petitioner has not shown that he would not have
received the death penalty but for trial counsel’s decision not to argue legal insufficiency. Cf.
Strickland, 466 U.S. 694 (“The defendant must show that there is a reasonable probability that, but
This question concerns future dangerousness. See Tex. Crim. Proc. Code § 37.071(b) (“On conclusion of
the presentation of the evidence, the court shall submit the following issues to the jury: (1) whether there is
a probability that the defendant would commit criminal acts of violence that would constitute a continuing
threat to society . . . .”).
7
58
for counsel's unprofessional errors, the result of the proceeding would have been different.”).
Indeed, on direct appeal the CCA concluded that the evidence was sufficient to support the death
penalty. Hummel, 2013 WL 6123283, at *4.
The state habeas court’s decision on State Habeas Claim 2 did not unreasonably or
erroneously apply clearly established federal law under Strickland and its progeny. Petitioner has
not shown that the state habeas court’s decision on State Habeas Claim 2 was either “contrary to”
or an “unreasonable application of” clearly established federal law.
2.
State Habeas Court’s Determination of Facts
Petitioner also contends that the state habeas court rejected State Habeas Claim 2 based on
an unreasonable determination of the facts. See Pet. 66, ECF No. 12. But Petitioner does not
identify what facts the state habeas court unreasonably determined. See id. The Court finds
Petitioner has not rebutted with clear and convincing evidence the presumption that the state
habeas court reasonably determined the facts supporting its decision. Cf. 28 U.S.C. § 2254(e)(1)
(“The applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.”); Clark, 202 F.3d at 764 (“The presumption is especially strong when the
state habeas court and the trial court are one in the same.”).
Petitioner has not shown that the state habeas court’s decision on State Habeas Claim 2
was “based on an unreasonable determination of the facts.”
V.
FEDERAL CLAIMS 1 & 2 (STATE HABEAS CLAIMS 2 & 9)—INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL
In his second § 2254 claim, Petitioner asserts two instances of ineffective assistance of
appellate counsel. The Court will analyze each allegation of IAAC in turn.
A.
Federal Habeas Claim 1-F (State Habeas Claim 2): Appellate Counsel Failed
to Argue that the State’s Evidence was Insufficient to Show Future Danger
59
In his subject heading for Claim 1-F, Petitioner claims that he received IAAC because
appellate counsel failed to argue that the State’s evidence was insufficient to show future danger.
Pet. 64, ECF No. 12. The state habeas court considered and rejected this claim, finding that the
State admitted enough evidence “to prove beyond a reasonable doubt a probability that [Petitioner]
would commit criminal acts of violence that would constitute a continuing threat to society.”
4 SHCR 1412.
In his § 2254 Petition, Petitioner does not explain what actions or inactions by his appellate
counsel constituted IAAC. See id. at 64–66. Nor does he cite any cases dealing with IAAC. See id.
The only law he cites concerns IATC. See id. at 65–66.
The Fifth Circuit “has made clear that conclusory allegations of ineffective assistance of
counsel do not raise a constitutional issue in a federal habeas proceeding.” Miller v. Johnson,
200 F.3d 274, 282 (5th Cir. 2000). “In the absence of a specific showing of how these alleged
errors and omissions were constitutionally deficient, and how they prejudiced [petitioner’s] right
to a fair trial,” there is “no merit” to conclusory ineffective assistance claims. Barnard v. Collins,
958 F.2d 634, 642 n.11 (5th Cir. 1992).
Furthermore, to the extent Petitioner derives his IAAC claim from similar arguments
lodged against trial counsel, it is also meritless for the reasons discussed in Part IV.E. Because
Claim 1-F is meritless, this Court concludes that the state habeas court did not unreasonably or
erroneously apply clearly established federal law under Strickland when it rejected the IAAC
portion of State Habeas Claim 2. Petitioner has not shown that the state habeas court’s decision on
State Habeas Claim 2 was either “contrary to” or an “unreasonable application of” clearly
established federal law. Accordingly, the Court DENIES Federal Habeas Claim 1-F.
B.
Federal Habeas Claim 2 (State Habeas Claim 9): Appellate Counsel Ignored
the Unlawful Detention by Border Patrol
60
Petitioner claims that the state habeas court rejected State Habeas Claim 9 based on an
unreasonable application of clearly established federal law and an unreasonable determination of
facts. See Pet. 74–84, ECF No. 12.
1.
State Habeas Court’s Application of Clearly Established Federal Law
a.
Background Facts
At trial, Petitioner moved to suppress his confession as the fruit of an illegal detention, and
the trial court denied the motion. 10 RR 61–64.8 Petitioner’s appellate counsel challenged this
ruling on direct appeal and argued in his brief before the CCA:
On December 20, 2009, [Petitioner] was detained at the Port of Entry at San
Ysidro California by officers of the U.S. Customs and Border Protection
Service while returning to the United States from Mexico. The sole reason for
the detention was a missing persons report initiated by the Kennedale Police
Department. When told by Officer E. Enriquez that [Petitioner] was going to be
released, Kennedale Police Officers lied and told Officer Enriquez that an arrest
warrant had been issued for [Petitioner] for the offense of arson. In truth, no
arrest warrant had been issued and [Petitioner] would have been released
except for the lies of the Kennedale Police Officers. . . .
When the Customs agents learned that they had been lied to and that no arrest
warrant had been issued, Agent Paul Kandal told the Kennedale Police
Department that [Petitioner] was going to be released. At this point in time, the
only legal authority used to detain [Petitioner] was the missing persons report
which specifically noted that [Petitioner] was not to be detained nor arrested.
Despite the lack of authority to detain [Petitioner], he was detained by the
Custom Agents until an arrest warrant was issued at 1248 P.M. (Central
Standard Time)—four hours after [Petitioner] was originally unlawfully
detained.
[Petitioner’s] detention and arrest at the San Ysidro Border Crossing was illegal
because it was based on lies and falsehoods of the Kennedale Police Department
to the U.S. Customs Officers intended to induce them into keeping [Petitioner]
in custody. . . .
In Motion No. 72, Petitioner moved to suppress physical evidence, as well as “any evidence of any other
kind and character which might be considered ‘fruits of the poisonous tree,’” such as a confession.
2 CR 333.
8
61
Appellant’s Brief at 10–11 (citations omitted) (emphasis added). Appellate counsel claimed that
his “illegal detention” violated the Fourth Amendment, “tainted the ensuing searches,
interrogations, and conviction,” and harmed Petitioner by causing the trial court to admit his
confession. Id. at 37–38, 40. Appellate counsel specifically argued that Petitioner’s confession was
“fruit of the poisonous tree.” Id. at 8, 51.
The CCA affirmed the trial court’s ruling, but did so without fully analyzing appellate
counsel’s Fourth Amendment argument:
To the extent that [Petitioner] is arguing that these particular statements were
the fruits of an illegal detention at the border, his claim is without merit.
[Petitioner] contends that, at the time he arrived at the border crossing, there
was a missing person report, but no warrant for his arrest. He asserts that
Kennedale police officers lied to border-protection agents “about the existence
of an arrest warrant with the intent of keeping [him] in custody,” and that he
“would have been release[d] except for the lies of the Kennedale police
department.” Based on the evidence presented at the suppression hearing, the
trial court found otherwise. . . .
The trial court’s ruling is supported by the record of the suppression hearing.
CBP agents Jorge Bernal, Ernesto Enriquez, and Paul Kandal testified that they
were following their policies and procedures when they detained [Petitioner]
for further identification and verification of his status. . . . Kandal confirmed
that he knew [Petitioner] did not initially have an arrest warrant and that
Kennedale police officers were working to obtain one. Because the trial court’s
findings are supported by the record, they will not be disturbed on appeal.
Hummel, 2013 WL 6123283, at *17–18 (emphasis added).
b.
State Habeas Court’s Application of Strickland Deficiency Prong
Petitioner then complained to the state habeas court that his appellate counsel was
ineffective because appellate counsel did not “sufficiently appeal the [trial] court’s failure to grant
the Defense motion to suppress” the confession. 1 SHCR 138. Specifically, Petitioner argued that
“appellate counsel focused his arguments on the affidavit used to secure [Petitioner’s] arrest
warrant,” and only briefly “allud[ed]” to the “false statements made by the Kennedale police to
62
the Border Patrol officers and the Border Patrol’s detention of Hummel.” Id. at 139. He argued
that instead of focusing on the affidavit, “[a]ppellate counsel should have more clearly argued that
[Petitioner’s] confession should have been suppressed based on the actions of the Kennedale Police
and Border Patrol Officers.” Id.
The state habeas court disagreed and found that, “[b]ased on his research and experience,
[Petitioner’s] appellate counsel presented appellate issues challenging the denial of [Petitioner’s]
motion to suppress in an appropriate manner that [he believed] w[ere] calculated to obtain relief
on appeal.” 4 SHCR 1491 (quotation marks omitted). The state habeas court concluded that
Petitioner’s allegations “amount[ed] to nothing more than an impermissible second-guessing of
appellate counsel’s strategic decisions made based on counsel’s experience and research,” and
accordingly rejected Petitioner’s IAAC claim. Id. at 1492–95.
In his federal habeas petition, Petitioner claims the state habeas court unreasonably applied
Strickland to his IAAC claim. See Pet. 74, ECF No. 12. Repeating his state habeas IAAC claim—
only now with more detail—Petitioner complains that appellate counsel failed to argue that Border
Patrol agents lost jurisdiction over him once they established that he was an admissible U.S.
citizen, that they had no active warrant for his arrest, and that he was no longer “missing” or “armed
and dangerous” (the “jurisdiction-dropping theory”). See id. at 74–80. Petitioner asserts that
appellate counsel, instead of arguing this jurisdiction-dropping theory, “focused only on the
affidavit used to secure Petitioner’s arrest warrant,” and “argued only that Petitioner’s confession
was ‘the culmination and result of all of the previous unconstitutional state actions.’” Pet. 67, 73,
ECF No. 12 (emphasis added). He claims that these errors prejudiced him by causing the CCA to
affirm the trial court’s denial of his motion to suppress his confession, which ultimately caused
him to receive the death penalty. See id. at 80–84.
63
The state habeas court reasonably rejected this claim and concluded that appellate counsel
provided adequate representation under Strickland. First, appellate counsel did not fail to raise a
“discrete, purely legal issue, where the precedent could not be more pellucid or applicable . . . .”
Schaetzle, 343 F.3d at 445. Petitioner has not cited a case, and the Court is not aware of any case,
where: (1) the original legal authority to hold the detainee disappeared; (2) police subsequently
obtained an arrest warrant for the detainee; and (3) the evidence gathered by police after they
obtained the warrant was fruit of the poisonous tree.
Second, appellate counsel did not fail to raise a “clearly stronger” issue on appeal. Cf.
Smith, 528 U.S. at 288. Appellate counsel did not “ignore[ ] the unlawful detention by the Border
Patrol,” as Petitioner claims. Pet. 67, ECF No. 12 (emphasis added). Appellate counsel argued that
“[w]hen the Customs agents learned that they had been lied to and that no arrest warrant had been
issued,” those agents no longer had authority to detain Petitioner. Appellant’s Brief at 10.
Appellate counsel also argued that “[Petitioner] would have been release[d] except for the lies of
the Kennedale Police Department.” Id. at 38. These arguments imply the jurisdiction-dropping
theory: If Border Patrol had no authority to detain Petitioner but for their reliance upon the
Kennedale Police Department’s misrepresentation about the existence of a warrant, the detention
became unlawful as soon as Border Patrol realized that no warrant existed, and Border Patrol at
that moment lost jurisdiction over Petitioner. While appellate counsel did not specifically identify
this theory, he argued it in substance.9
Petitioner is therefore also incorrect when he claims that appellate counsel “focused only on the affidavit
used to secure Petitioner’s arrest warrant,” Pet. 67, ECF No. 12 (emphasis added), and “argued only that
Petitioner’s confession was ‘the culmination and result of all the previous unconstitutional state actions.’”
Id. at 73 (emphasis added). Appellate counsel’s brief also focuses on the alleged illegality of Petitioner’s
detention. The record flatly contradicts these claims, and the state habeas court therefore reasonably applied
Strickland in rejecting them.
9
64
It follows that appellate counsel’s decision to focus on the “lies”10 of the Kennedale Police
Department, rather than the loss of authority to detain Petitioner, was not a failure to raise a “clearly
stronger” issue. Cf. Smith, 528 U.S. at 288. First, appellate counsel did raise the broader Fourth
Amendment issue: he claimed that Petitioner’s confession was fruit of the poisonous tree because
it flowed from an unlawful arrest and detention. See Appellant’s Brief at 8, 10–11, 37–38. Second,
in arguing the broader issue, he did—albeit obliquely—raise the jurisdiction-dropping theory. See
id. All that remains of Petitioner’s complaint is that appellate counsel did not argue the Fourth
Amendment issue in a more detailed way. But the Court “must be particularly wary of ‘argument[s]
[that] essentially come[ ] down to a matter of degrees. . . . Those questions are even less
susceptible to judicial second-guessing.” Cf. Dowthitt, 230 F.3d at 743 (alterations in original).
Nor has Petitioner demonstrated that the jurisdiction-dropping theory, if indeed a
“stronger” argument than the one emphasized by appellate counsel, was a “clearly” stronger one.
Cf. Smith, 528 U.S. at 288. The Court finds that it was not.11 The state habeas court reasonably
agreed with the state trial court that Border Patrol did have authority under federal law to hold
Petitioner for the duration of his confinement. If Border Patrol had legal authority to detain
Petitioner, emphasizing the jurisdiction-dropping theory would have been an equally unsuccessful
strategy on direct appeal.
The state habeas court found as fact, “Neither the transcript of the telephone calls nor the written report
submitted by [Petitioner] in this habeas proceeding supports [Petitioner’s] assertion of any improper motive
or wrongdoing on the part of the Kennedale Police Department or CBP in [Petitioner’s] detention.”
4 SHCR 1490.
11
The law does not even require this Court to decide whether appellate counsel neglected a clearly stronger
“argument.” Appellate counsel is only ineffective under Smith if he fails to raise a clearly stronger “issue,”
not if he fails to adopt a clearly stronger argument strategy on an issue already raised. See Smith, 528 U.S.
at 288 (2000) (holding that appellate counsel must show “that a particular nonfrivolous issue was clearly
stronger than issues that counsel did present” (emphasis added)).
10
65
The state habeas court reasonably agreed with the state trial court that Border Patrol agents
had authority to hold Petitioner under 8 C.F.R. § 235.1. See 4 SHCR 1490; 10 RR 61–64. The
regulation reads in pertinent part,
A person claiming U.S. citizenship must establish that fact to the examining
officer’s satisfaction and must present a U.S. passport or alternative
documentation as required by 22 CFR part 53. If such applicant for admission
fails to satisfy the examining immigration officer that he or she is a U.S. citizen,
he or she shall thereafter be inspected as an alien.
8 C.F.R. § 235.1(b) (emphasis added). This regulation clearly states that a person seeking entry at
the border, claiming to be a U.S. citizen, must (1) establish his citizenship to the Border Patrol
officer’s satisfaction and (2) present adequate documentation. A fair reading of the regulation is
that it requires U.S. citizens to establish their citizenship to Border Patrol by presenting adequate
documentation, in which case Border Patrol had authority to inspect Petitioner as an alien until he
presented adequate documentation under 8 C.F.R. § 235.1(b)—which he never did.
Moreover, federal law provides, “Any officer or employee of the Service authorized under
regulations prescribed by the Attorney General shall have power without warrant . . . to make
arrests . . . for any offense against the United States, if the offense is committed in the officer’s or
employee’s presence.” 8 U.S.C. § 1357 (emphasis added). Petitioner violated 8 C.F.R. § 235.1(b)
in the presence of Border Patrol when he failed to present proscribed identification at the Border.
The state habeas court also reasonably agreed with the state trial court that, under United
States v. Montoya de Hernandez, 473 U.S. 531 (1985), the Fourth Amendment was not an
impediment to Border Patrol’s authority to detain Petitioner. See 4 SHCR 1490; 10 RR 63. In
Montoya de Hernandez, the Supreme Court held:
Consistently, therefore, with Congress’ power to protect the Nation by stopping
and examining persons entering this country, the Fourth Amendment’s balance
of reasonableness is qualitatively different at the international border than in the
66
interior. Routine searches of the persons and effects of entrants are not subject
to any requirement of reasonable suspicion, probable cause, or warrant . . .
473 U.S. at 538–39 (citation omitted) (emphasis added); see also United States v. Flores-Montano,
541 U.S. 149, 152–53 (2004) (“The Government’s interest in preventing the entry of unwanted
persons and effects is at its zenith at the international border. Time and again, we have stated that
‘searches made at the border . . . are reasonable simply by virtue of the fact that they occur at the
border.’” (emphasis added)). On the one hand, Border Patrol has maximal constitutional authority
to search and seize persons and effects at the border. On the other hand, Petitioner has not cited
any case analogous to his own showing that the Fourth Amendment clearly prohibits his detention.
Petitioner claims that under federal law, “[O]nce [Border Patrol officers] determine that a
person is a U.S. Citizen and otherwise admissible, they cannot detain or hold the citizen.” Pet. 76,
ECF No. 12. In support of this proposition, Petitioner cites 8 U.S.C. § 1226 (2009); 8 C.F.R.
§§ 236.1–236.7 (2009); and I.N.S. v. Yueh-Shaio Yang, 519 U.S. 26 (1996)), but these authorities
only address the power of Border Patrol officers over persons already within the United States, not
over persons attempting to enter the United States.
The state habeas court reasonably agreed with the state trial court that the arrest was lawful,
and accordingly, Petitioner has not shown that appellate counsel ignored a “clearly stronger”
appellate argument strategy. Cf. Smith, 528 U.S. at 288. Under Strickland’s deferential standard
alone, Petitioner gave adequate representation. Under AEDPA’s “double deference,” Petitioner
has not shown that his appellate counsel’s representation was, from the perspective of any
“fairminded jurist,” objectively unreasonable under Strickland. Cf. Harrington, 562 U.S. at 102.
c.
State Habeas Court’s Application of Strickland Prejudice Prong
Finally, the state habeas court reasonably concluded that appellate counsel’s argument
strategy did not prejudice Petitioner under Strickland. 4 SHCR 1495. The state habeas court
67
reasonably agreed with the state trial court that, even if Border Patrol illegally held Petitioner,
Petitioner voluntarily confessed. See id. at 1489; 10 RR 63–64. 12 If Petitioner voluntarily
confessed, the CCA would have affirmed the trial court’s ruling admitting the confession even if
appellate counsel had successfully argued that the detention was illegal.
“[P]ersons arrested illegally frequently may decide to confess, as an act of free will
unaffected by the initial illegality . . .” Brown v. Illinois, 422 U.S. 590, 603 (1975). To determine
whether a confession after an illegal arrest is voluntary, the Supreme Court considers: (1) whether
police gave a Miranda warning; (2) the temporal proximity of the arrest and confession; (3) the
presence of intervening circumstances; and (4) the purpose and flagrancy of the official
misconduct. Id. at 603–04. If police unlawfully arrest a person, but subsequently obtain probable
cause to arrest that person, the discovery of probable cause is an intervening circumstance. See
Brummett v. Collins, 980 F.2d 1443 (5th Cir. 1992).
In this case, the Border Patrol agents discovered that Kennedale Police did not have a
warrant to arrest Petitioner, but they continued to hold Petitioner because they believed that federal
law and agency policies and procedures authorized them to do so. See 8 RR 61–63, 73–74, 77, 98–
99. Kennedale Police then obtained a warrant for his arrest, and after the warrant issued, Petitioner
remained in lawful custody for ten hours. See 6 RR 80–82; 8 RR 92, 98. Border Patrol transported
him from the San Ysidro border crossing to the San Diego County Jail, where he received his
Miranda warning and subsequently confessed. See 6 RR 80–82; 8 RR 78, 81. These facts
together—the acquisition of a warrant, the length of time between the warrant issuing and
Petitioner confessing, the change of environs from the border crossing to the jail, the Miranda
warning, the apparent good faith of the arresting officers, and the lack of any flagrant official
The state trial court and state habeas court refer to this as “attenuation of [the] taint” of the illegal arrest.
See 4 SHCR 1489; 10 RR 63–64.
12
68
misconduct—strongly weigh in favor of finding that Petitioner’s confession was voluntary. Cf.,
e.g., United States v. Cantu, 426 Fed. Appx. 253, 259 (2011) (finding attenuation where seven
hours passed between an unlawful search and a Mirandized confession); Brummett, 980 F.2d 1443
(finding attenuation where the illegal arrest was not flagrant and probable cause developed
between the illegal arrest and the confession).
Petitioner has not shown that the state habeas court unreasonably concluded that he
voluntarily confessed. Because Petitioner’s confession was voluntary, Petitioner has not shown
that the jurisdiction-dropping theory would have, if more strenuously emphasized, likely
convinced a majority of the Justices on the CCA to exclude his confession. Cf. Smith, 528 U.S. at
285–86 (“[The defendant] must show a reasonable probability that, but for his counsel’s
unreasonable [assistance] . . . he would have prevailed on his appeal.”). Nor has Petitioner shown,
under AEDPA’s “double deference,” that any “fairminded” jurist would conclude that appellate
counsel’s argument strategy prejudiced Petitioner under Strickland. Cf. Harrington, 562 U.S.
at 102.
The state habeas court did not unreasonably or erroneously apply clearly established
federal law under Strickland when it rejected the IAAC portion of State Habeas Claim 9. Petitioner
has not shown that the state habeas court’s decision on State Habeas Claim 9 was either “contrary
to” or an “unreasonable application of” clearly established federal law.
2.
State Habeas Court’s Determination of Facts
Petitioner also contends that the state habeas court rejected State Habeas Claim 9 based on
an unreasonable determination of the facts. See Pet. 74, ECF No. 12.
The state habeas court found as fact,
The appellate arguments advanced by [Petitioner’s] counsel focused on the
sufficiency of the arrest-warrant affidavits to establish probable cause and also
69
argued that [Petitioners] confession was “the culmination and result of all of the
previous unconstitutional state actions,” which “allud[ed] to an earlier
discussion of false statements” made by the Kennedale Police Department to
CPD.
4 SHCR 1492. Petitioner claims that this is an unreasonable determination of fact, Pet. 74, ECF
No. 12, but points to no evidence contradicting it. The Court finds Petitioner has not rebutted this
factual finding with clear and convincing evidence. Cf. 28 U.S.C. § 2254(e)(1) (“The applicant
shall have the burden of rebutting the presumption of correctness by clear and convincing
evidence.”); Clark, 202 F.3d at 764 (“The presumption is especially strong when the state habeas
court and the trial court are one in the same.”).
The state habeas court found as fact, “[Petitioner’s] complaint simply second-guesses in
hindsight his appellate counsel’s strategic decisions based on counsel’s experience and research
about how to best challenge on direct appeal the Court’s denial of [Petitioner’s] motions to
suppress his confession and the evidence seized as a result of his confession.” 4 SHCR 1492.
Petitioner claims that this is an unreasonable determination of fact, Pet. 74, ECF No. 12, but this
finding—though it appears in the findings of fact section—is a legal conclusion, not a factual
determination. Petitioner has not shown with clear and convincing evidence that this is an
unreasonably determined fact.
The state habeas court found as fact, “[Petitioner] has not shown that the appellate
contention he alleges counsel should have made had indisputable merit under settled case law.
Therefore, [Petitioner] has not demonstrated that he would have prevailed on appeal had his
appellate counsel raised different issues or argued the issues raised differently.” 4 SHCR 1492.
Petitioner claims that this is an unreasonable determination of fact, Pet. 74, ECF No. 12, but this
finding—though it appears in the findings of fact section—is a legal conclusion, not a factual
70
determination. Petitioner has not shown with clear and convincing evidence that this is an
unreasonably determined fact.
Petitioner has not shown that the state habeas court’s decision on State Habeas Claim 9
was “based on an unreasonable determination of the facts.” Accordingly, the Court DENIES
Federal Habeas Claim 2.
VI.
FEDERAL HABEAS CLAIM 3 (STATE HABEAS CLAIM 12)—MITIGATION
INSTRUCTION VIOLATED EIGHTH AND FOURTEENTH AMENDMENTS
Petitioner claims that the state habeas court rejected State Habeas Claim 12 based on an
unreasonable application of clearly established federal law and an unreasonable determination of
facts. See Pet. 91–102, ECF No. 12.
1.
State Habeas Court’s Application of Clearly Established Federal Law
In his third § 2254 claim, Petitioner asserts that his death sentence is unconstitutional
because the jury instruction on mitigation evidence in his case violated the Eighth and Fourteenth
Amendments. See id. at 91–92.
“[S]entencing juries must be able to give meaningful consideration and effect to all
mitigating evidence that might provide a basis for refusing to impose the death penalty on a
particular individual, notwithstanding the severity of his crime or his potential to commit similar
offenses in the future.” Abdul-Kabir v. Quarterman, 550 U.S. 233, 260 (2007); see also Eddings
v. Oklahoma, 455 U.S. 104, 112 (1982) (“[T]he sentencer in capital cases must be permitted to
consider any relevant mitigating factor . . . .”). In keeping with this clearly established federal law,
Texas law requires the trial court to give the capital sentencing jury the following issue to answer:
Whether, taking into consideration all of the evidence, including the
circumstances of the offense, the defendant's character and background, and the
personal moral culpability of the defendant, there is a sufficient mitigating
circumstance or circumstances to warrant that a sentence of life imprisonment
without parole rather than a death sentence be imposed.
71
Tex. Crim. Proc. Code § 37.071(2)(e)(1). The trial court instructed the jury on this issue quoting
from the statute verbatim. 45 RR 51. The court further admonished the jury, “You shall consider
mitigating evidence to be evidence that a juror might regard as reducing the defendant’s moral
blameworthiness.” Id.
Petitioner asserts that this instruction—and Article 37.071 upon which it is based—
unconstitutionally limited the jury’s consideration of mitigating evidence to Petitioner’s personal
moral culpability and prevented them from considering evidence of the circumstances of the
offense or Petitioner’s character and background. See Pet. 95–102, ECF No. 12. But contrary to
Petitioner’s assertion, the Fifth Circuit has held that “all mitigating evidence can be given effect
under the broad definition of mitigating evidence found in Texas Code of Criminal Procedure
article 37.071 § 2(e).” Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir. 2001) (emphasis in original).
Because the challenged jury instructions did not limit the jury’s consideration of relevant
mitigating evidence, the state trial court did not unreasonably or erroneously apply clearly
established federal law under the Eighth and Fourteenth Amendments. Petitioner has not shown
that the state habeas court’s decision on State Habeas Claim 12 was either “contrary to” or an
“unreasonable application of” clearly established federal law.
2.
State Habeas Court’s Determination of Facts
Petitioner also contends that the state habeas court rejected State Habeas Claim 12 based
on an unreasonable determination of the facts. See Pet. 91, ECF No. 12.
The state habeas court found as fact, “Special [I]ssue two in the Court’s charge on
punishment instructed the jury regarding the consideration of mitigating evidence.” 4 SHCR 1529.
Petitioner claims that this is an unreasonable determination of fact, Pet. 91, ECF No. 12, but points
to no evidence contradicting it. The Court finds Petitioner has not rebutted this factual finding with
72
clear and convincing evidence. Cf. 28 U.S.C. § 2254(e)(1) (“The applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing evidence.”); Clark, 202 F.3d
at 764 (“The presumption is especially strong when the state habeas court and the trial court are
one in the same.”).
The state habeas court found as fact, “The Court’s mitigation [S]pecial [I]ssue complied
with the requirements of TEX. CODE CRIM. PROC. art. 37.071, § 2(e)&(f).” 4 SHCR 1529. Again,
Petitioner claims that this is an unreasonable determination of fact, Pet. 91, ECF No. 12, but points
to no evidence contradicting it. The Court finds Petitioner has not rebutted this factual finding with
clear and convincing evidence.
The state habeas court concluded as a matter of law, “The complained-of language in the
mitigation special issue did not unconstitutionally narrow the definition of mitigating evidence to
that which reduced [Petitioner’s] moral blameworthiness.” 4 SHCR 1529. Petitioner claims that
this is an unreasonable determination of fact, Pet. 91, ECF No. 12, but this is a legal conclusion,
not a factual determination. Petitioner has not shown with clear and convincing evidence that this
is an unreasonably determined fact.
Petitioner has not shown that the state habeas court’s decision on State Habeas Claim 12
was “based on an unreasonable determination of the facts.” Accordingly, the Court DENIES
Federal Habeas Claim 3.
VII.
FEDERAL HABEAS CLAIM 4 (STATE HABEAS CLAIM 13)—DEATH
SENTENCE VIOLATED EQUAL PROTECTION
Petitioner claims that the state habeas court rejected State Habeas Claim 13 based on an
unreasonable application of clearly established federal law and an unreasonable determination of
facts. See Pet. 102–10, ECF No. 12.
1.
State Habeas Court’s Application of Clearly Established Federal Law
73
In his fourth § 2254 claim, Petitioner asserts that his death sentence violates the Equal
Protection Clause of the Fourteenth Amendment because Texas counties arbitrarily administer the
death penalty, resulting in geographic disparities in the number of capital convictions. See id. at
102–110. Petitioner explains:
The seven counties of Bexar (76), Dallas (107), Harris (294), Jefferson (24),
Nueces (24), Smith (24), and Tarrant (74) accounted for 623 persons either
executed or presently on death row, or 80% of the 781 persons executed or
presently on death row since 1976. The five counties of Cameron (19), El Paso
(20), Lubbock (20), Montgomery (18), and Travis (20) account for 97 persons
either executed or presently on death row, or 12% of the 781 persons executed
or presently on death row since 1976. Thus, twelve counties (out of 254)
account for 92% of the persons executed or presently on death row since 1976.
Id. at 103 (citations omitted). Moreover, in 2015, the murder rates per 100,000 persons in some of
the most populous Texas counties were: (1) Harris—8.8; (2) Dallas—6.6; (3) Tarrant—3.8; (4)
Bexar—5.9. Id. at 107. But since 1976, the number of persons sentenced to death in those counties
were: (1) Harris—294; (2) Dallas—107; (3) Tarrant—74; (4) Bexar—76. Id. at 107–08. Petitioner
argues that he was unjustifiably more likely to face a death sentence for no reason except that he
committed a crime in Tarrant County, as opposed to a neighboring county. See id. at 107 (“[T]here
is no justification is for the difference between life and death between Tarrant County and
neighboring Hood and Waxahachie counties.”).
Petitioner also claims that “race is a motivating factor behind the decision to seek the death
penalty and the resulting verdicts,” and cites law review articles purporting to show “significant
disparities . . . between the treatment of black and white defendants and victims” in the “charging
of capital cases.” Id. at 103. Petitioner explains, “Although black and white defendants were
charged with capital murder at similar rates, black defendants were more likely to have committed
a less-serious offense than white defendants. In contrast, black victims were significantly lesslikely to prompt a capital charge than white victims.” Id.
74
According to the Supreme Court, “[T]he conscious exercise of some selectivity in [criminal
law] enforcement is not in itself a federal constitutional violation” unless the selection was
“deliberately based upon an unjustifiable standard such as race, religion or other arbitrary
classification.” Oyler v. Boles, 368 U.S. 448, 456 (1962). The application of a death penalty statute
to a defendant only violates equal protection if the defendant shows that the prosecutor acted with
a discriminatory purpose in defendant’s case. McCleskey v. Kemp, 481 U.S. 279, 292–93 (1987).
Moreover, disparate impact statistics, without more, do not prove that a prosecutor had
discriminatory intent in seeking the death penalty. Id. at 293–97.
Petitioner has not carried his burden of showing that the State targeted Petitioner for the
death penalty based on an arbitrary classification, such as race. The mere existence of geographic
disparities in capital convictions is not evidence of the use of an arbitrary classification in
prosecutorial discretion—much less intentional discrimination against Petitioner. Moreover,
statistics showing a disparate racial impact in capital convictions in Texas, without more, do not
show that prosecutors discriminated against Petitioner based on his race by pursuing a death
sentence.13
Because Petitioner has not pointed to any evidence that the State discriminated against him
based upon an arbitrary classification, the state trial court did not unreasonably or erroneously
apply clearly established federal law under the Equal Protection Clause when it convicted and
sentenced Petitioner to death. Petitioner has not shown that the state habeas court’s decision on
State Habeas Claim 13 was either “contrary to” or an “unreasonable application of” clearly
established federal law.
2.
State Habeas Court’s Determination of Facts
13
Moreover, while Petitioner cites statistical disparities between black and white criminal defendants,
Petitioner is not black.
75
Petitioner also contends that the state habeas court rejected State Habeas Claim 13 based
on an unreasonable determination of the facts. See Pet. 103–04, ECF No. 12.
The state habeas court found as fact, “[Petitioner] has not shown that he was singled out
for selective prosecution or that the death-penalty statute was applied against him in any
unconstitutionally arbitrary or capricious manner.” 4 SHCR 1530. Petitioner claims that this was
an unreasonable determination of fact. Pet. 103–04, ECF No. 12. First, the state habeas court’s
conclusion that the statute’s application was not arbitrary or capricious is a legal determination,
not a determination of fact. Petitioner has not shown with clear and convincing evidence that this
is an unreasonably determined fact. Second, Petitioner points to no evidence that he was singled
out for selective prosecution. See id. at 104–10. The Court finds Petitioner has not rebutted this
factual finding with clear and convincing evidence. Cf. 28 U.S.C. § 2254(e)(1) (“The applicant
shall have the burden of rebutting the presumption of correctness by clear and convincing
evidence.”); Clark, 202 F.3d at 764 (“The presumption is especially strong when the state habeas
court and the trial court are one in the same.”).
Petitioner has not shown that the state habeas court’s decision on State Habeas Claim 13
was “based on an unreasonable determination of the facts.” Accordingly, the Court DENIES
Federal Habeas Claim 4.
VIII. FEDERAL HABEAS CLAIM 5 (STATE HABEAS CLAIM 14)—“10–12” JURY
INSTRUCTION VIOLATED SIXTH, EIGHTH, FOURTEENTH AMENDMENTS
Petitioner claims that the state habeas court rejected State Habeas Claim 14 based on an
unreasonable application of clearly established federal law and an unreasonable determination of
facts. See Pet. 111–18, ECF No. 12.
1.
State Habeas Court’s Application of Clearly Established Federal Law
76
In his fifth § 2254 claim, Petitioner asserts that his death sentence is unconstitutional
because the “10–12” jury instruction under Tex. Crim. Proc. Code § 37.071 violated the Sixth,
Eighth, and Fourteenth Amendments. Id. at 111–18.
The Fifth Circuit has held that “10–12” jury instructions do not violate clearly established
federal law under the Sixth, Eighth, or Fourteenth Amendments. See Druery v. Thaler, 647 F.3d
535, 542–44 (5th Cir. 2011). In Blue v. Thaler, the Fifth Circuit explained:
[Tex. Crim. Proc. Code § 37.071] requires capital jurors to be instructed that
they can answer “Yes” to the future-dangerousness special issue and “No” to
the mitigation special issue only if all twelve of them agree to do so and that
they can give the opposite answers only if ten or more of them agree to do so.
If the jurors answer “No” to the future-dangerousness issue or “Yes” to the
mitigation issue, the defendant is sentenced to life without parole. The same
result obtains if the jurors fail to agree on an answer, but the statute prohibits
the court and the parties from informing the jurors of the effect of their failure
to agree. This is commonly known as the ‘10–12 Rule.’ . . .
[T]he Supreme Court held in Jones v. United States that “a failure to instruct
the jury as to the consequences of deadlock” in no way affirmatively misleads
the jury about its role in the sentencing process. This Court has concluded that
Jones insulates the 10–12 Rule from constitutional attack. And it has also held
that the 10–12 Rule passes constitutional muster independently of the holding
announced in Jones. Because no clearly established federal law invalidates the
10–12 Rule or calls its constitutionality into doubt, [Petitioner] is not entitled
to a [certificate of appealability] on this issue.
665 F.3d 647, 669–70 (5th Cir. 2011) (footnotes omitted) (quotation marks omitted) (emphasis
added).
The Court therefore finds that the state trial court did not unreasonably or erroneously apply
clearly established federal law under the Sixth, Eighth, and Fourteenth Amendments, when it gave
a “10–12” jury instruction under Tex. Crim. Proc. Code § 37.071. Petitioner has not shown that
the state habeas court’s decision on State Habeas Claim 14 was either “contrary to” or an
“unreasonable application of” clearly established federal law.
2.
State Habeas Court’s Determination of Facts
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Petitioner also contends that the state habeas court rejected State Habeas Claim 14 based
on an unreasonable determination of the facts. See Pet. 111, ECF No. 12. But Petitioner does not
identify what facts the state habeas court unreasonably determined. See id. The Court finds
Petitioner has not rebutted with clear and convincing evidence the presumption that the state
habeas court reasonably determined the facts supporting its decision on State Habeas Claim 14.
Cf. 28 U.S.C. § 2254(e)(1) (“The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”); Clark, 202 F.3d at 764 (“The presumption is
especially strong when the state habeas court and the trial court are one in the same.”).
Petitioner has not shown that the state habeas court’s decision on State Habeas Claim 14
was “based on an unreasonable determination of the facts.” Accordingly, the Court DENIES
Federal Habeas Claim 5.
IX.
CONCLUSION
Because Petitioner is not entitled to relief on any of his AEDPA claims, the Court DENIES
his Petition for a Writ of Habeas Corpus (ECF No. 12). In accordance with Federal Rule of
Appellate Procedure 22(b) and 28 U.S.C. § 2253(c), and after considering the record in this case,
the Court DENIES Petitioner a certificate of appealability because he has not “made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell,
537 U.S. 322, 336–38 (2003); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). If Petitioner files
a notice of appeal, he may proceed in forma pauperis on appeal. 18 U.S.C. § 3006A(d)(7). It is
ORDERED that this case is DISMISSED with prejudice.
SO ORDERED on this 3rd day of January, 2018.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
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