Nelson v. Davis-Director TDCJ-CID
Memorandum Opinion and Order: Came on for consideration the amended petition of Steven Lawayne Nelson ("petitioner") for a writ of habeas corpus pursuant to the authority of 28 U.S.C. § 2254. Having considered the amended petition, the response of respondent, Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, the reply, the state court trial, appellate, and habeas records, and applicable authorities, the court finds that the relief sought by the petition should be denied. (Ordered by Judge John McBryde on 3/29/2017) (hth)
--u.s: DISTRICT COTJRT
IN THE UNITED STATES DISTRICT CO RT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MAR 2 9 2017
............................................................................................................................................................. ................................... 1 ........By _ _ _--c:D:--er-m.,..ly_____
STEVEN LAWAYNE NELSON,
LORIE DAVIS, Director,
Texas Department of Criminal
MEMORANDUM OPINION AND ORDER
Came on for consideration the amended petition' of Steven
Lawayne Nelson ("petitioner") for a writ of habeas corpus
pursuant to the authority of 28 U.S.C.
2254. Having considered
the amended petition, the response of respondent, Lorie Davis,
Director, Texas Department of Criminal Justice, Correctional
Institutions Division, the reply, the state court trial,
appellate, and habeas records, and applicable authorities, the
court finds that the relief sought by the petition should be
'The original petition for writ ofhaheas corpus was filed October 17,2016. Doc. 12. (The "Doc.
_"reference is to the number of the item on the docket in this action.) The com1 granted in pa11 a joint
motion for modification of the court's scheduling order to allow the filing of an amended petition. Doc.
18, as corrected by Doc. 19.
Background and Procedural History
with intentionally causing the death of Clinton Dobson by
suffocating him with a plastic bag during the course of
committing or attempting to commit the offense of robbery of, or
burglary of a building of, Dobson. 1 CR' 12. Bill Ray ("Ray") and
Steve Gordon ("Gordon") were appointed to represent petitioner at
trial. 1 CR 28-29. By order signed April 13, 2011, the trial
court granted petitioner's motion for appointment of mitigation
specialist and appointed Mary Burdette to assist counsel in their
preparation for trial. 1 CR 38. In addition, by order signed
April 13, 2011, the court granted petitioner's motion to appoint
an investigator and appointed Wells Investigation to assist
counsel. 1 CR 39. On several occasions, the trial court approved
payment of additional funds for the work of the mitigation
specialist and investigator. 1 CR 201-04, 217-20; 2 CR 236-38,
367-68. And, the court granted petitioner's motions for
appointment of an expert and additional funds to conduct DNA
testing. 2 CR 332-38. Counsel also retained a forensic
The "_ CR _"reference is to the volume and page of the clerk's record in the underlying state
psychologist to assist at trial. 43 RR 3 237-38; 2 CR 234
(approving interim payment) .
15. On October 8, 2012, the jury returned its verdict at the
guilt/innocence stage of his trial, finding petitioner guilty of
the offense of capital murder, as charged in the indictment. 2 CR
401; 37 RR 32-34. The punishment phase of the trial commenced
October 8, 2012. 38 RR 7. On October 16, 2012, the jury
in response to special issues in the form
prescribed by article 37.071 of the Texas Code of Criminal
(1) beyond a reasonable doubt that there was a
probability that petitioner would commit criminal acts of
violence that would constitute a continuing threat to society,
(2) petitioner actually caused the death of Dobson or did not
actually cause the death but intended to kill him or another or
anticipated that a human life would be taken, and (3) that it
could not find that, taking into consideration all of the
evidence, including the circumstances of the offense,
petitioner's character and background, and the personal moral
culpability of petitioner, there was a sufficient mitigating
circumstance or circumstances to warrant a sentence of life
imprisonment without parole rather than a death sentence be
The "_ RR _" reference is to the volume and page of the reporter's record in the underlying
state criminal case.
imposed. 2 CR 417-19; 44 RR 32-33. On October 16, 2012, the trial
judge signed a capital judgment imposing a death penalty on
The trial court appointed David Pearson to represent
petitioner on his direct appeal to the Texas Court of Criminal
Appeals. 2 CR 431. By its opinion delivered April 15, 2015, the
Texas Court of Criminal Appeals affirmed the trial court's
capital judgment imposing the death sentence on petitioner.
Nelson v. State, No. AP-76,924, 2015 WL 1757144
(Tex. Crim. App.
Apr. 15, 2015). Petitioner then unsuccessfully petitioned the
United States Supreme Court for a writ of certiorari. Nelson v.
Texas, 136 S. Ct. 357 (2015).
On October 16, 2012, the trial court appointed John Stickels
("Stickels") to represent petitioner in the filing of his state
petition for writ of habeas corpus. 1 CHR' 127. While his direct
appeal was pending, petitioner, acting through Stickels, filed
his state application for writ of habeas corpus, raising
seventeen grounds for relief. 1 CHR 2. Pertinent here, Stickels
raised a claim of ineffectiveness of trial counsel for having
failed to adequately investigate and present mitigation evidence,
citing Wiggins v. Smith, 539 U.S. 510 (2003), and Lewis v.
Dretke, 355 F. 3d 364
(5th Cir. 2003), among other authorities. 1
The "_ CHR _"reference is to the volume and page number of the clerk's habeas record in the
underlying criminal case.
CHR at 7, 49-59. The court ordered trial counsel to file
affidavits to address, among other things, the contention that
evidence and formulate a consistent and effective mitigation
strategy. 1 CHR at 139. Having considered those affidavits and
the State's response, the trial court adopted the State's
proposed findings of fact and conclusions of law, recommending
that the Texas Court of Criminal Appeals deny the relief sought.
2 CHR 352. Based on those findings and conclusions, as well as
its own review of the record, the Texas Court of Criminal Appeals
denied petitioner's requested relief. Ex parte Nelson, No. WR82,814-01, 2015 WL 6689512
(Tex. Crim. App. Oct. 14, 2015).
On appeal, the Texas Court of Criminal Appeals summarized
the evidence at the guilt/innocence phase of the trial as
Discovery of the Victims
Members of NorthPointe Baptist Church described the
events surrounding the discovery of Clint Dobson and
Judy Elliot. Church member Dale Harwell had plans to
meet Dobson for lunch. When Dobson did not arrive at
the appointed time, Harwell tried unsuccessfully to
contact him. Debra Jenkins went to NorthPointe at
around 12:40, where she saw Dobson's and Elliot's cars
in the parking lot. Jenkins rang the doorbell and
called the church office but received no answer, so she
left after about five minutes. She returned fifteen
minutes later, and Elliot's car, a Galant, was no
longer in the parking lot. At 1:00 p.m., another church
member, Suzanne Richards arrived for a meeting with
Dobson. His car was in the parking lot, but Elliot's
was not. Richards waited for half of an hour, ringing
· ······ · - - -----,:rre- doorffelJ.-;-calTing,ana-e ext:J:ng Do!Yson .
Meanwhile, Clint Dobson's wife, Laura, called Jake
Turner, the part-time music minister, because she had
been unable to reach her husband by phone. Turner
agreed to go to the church, and he called Judy Elliot's
husband, John, who promptly drove to the church. John
entered the church using his passcode and called out
Dobson's name. John saw Dobson's office in disarray and
saw a severely beaten woman lying on the ground. He did
not immediately notice Dobson lying on the other side
of the desk. John called the police.
Arlington police officer Jesse Parrish responded to the
call. He noticed signs of a struggle, including blood
and what appeared to be a grip plate of a pistol.
Elliot was lying on her back with her hands bound
behind her. John recognized his wife by her clothing.
Parrish found Dobson lying face-up with his hands bound
behind his back. A bloody plastic bag was covering his
head and sucked into his mouth. Upon lifting the
plastic bag off his head, Parrish knew that Dobson was
Elliot was taken to the hospital in critical condition.
She had a heart attack while there and neither the
physicians nor John believed she would survive. She had
traumatic injuries to her face, head, arms, legs, and
back and internal bleeding in her brain. She was in the
hospital for two weeks and underwent five months of
therapy and rehabilitation. A permanent fixture of
mesh, screws, and other metal holds her face together.
At the time of trial, Elliot still had physical and
mental impairments from the attack.
Doctor Nizam Peerwani, medical examiner for Tarrant
County, testified that the manner of Dobson's death was
homicide. Dobson's injuries indicated a violent
altercation during which he attempted to shield himself
from blows from an object such as the butt of a
firearm. Two wounds to his forehead appeared to be from
the computer monitor stand in the office. According to
Dr. Peerwani, the injuries indicated that Dobson was
standing when he was first struck in the head and that
he was struck in the back of his head as he fell. After
he had fallen to the ground and lost consciousness, his
hands were tied behind his back, and the bag was placed
-------suffocated and died.
[Petitioner's] Actions after the Murder
[Petitioner] texted Whitley Daniels at 1:24 p.m., and
Daniels told him to bring her a cigar. After stopping
at his apartment, [petitioner] drove Elliot's car to a
Tire King store, where a customer bought Dobson's
laptop and case out of the trunk of the Galant. At
around 2:00p.m., [petitioner] drove to a Tetco
convenience store, where he used Elliot's credit card
to buy gas, a drink, and a cigar. Anthony "AG" Springs'
girlfriend brought AG to the Tetco. When [petitioner]
tried to buy gas for her car, the card was declined.
[Petitioner] and AG drove in Elliot's car to the
apartment of Claude "Twist" Jefferson and Jefferson's
aunt Brittany Bursey.
Daniels testified that [petitioner] and AG arrived at
her house with the cigar some time after 3:00p.m.
[Petitioner] and AG soon left, but [petitioner]
returned alone fifteen or twenty minutes later.
[Petitioner] asked Daniels to go to the mall and use
her identification with the credit cards. She declined
to do so, and [petitioner] left.
[Petitioner] went to The Parks at Arlington mall. Using
Elliot's credit cards at Sheikh Shoes, he purchased a
t-shirt featuring the Sesame Street character Oscar the
Grouch, and Air Max shoes. He also used the cards to
buy costume jewelry at Jewelry Hut and Silver Gallery.
[Petitioner] later returned to Sheikh Shoes with two
companions, but a second attempt to use the credit card
was not approved.
[Petitioner] returned to Bursey's apartment that
evening with AG and Twist. [Petitioner] was wearing the
shirt, jewelry, and shoes that he had bought with
Elliot's cards. While taking pills and smoking, he told
Bursey that he had stolen the Galant from a pastor.
[Petitioner] left Bursey's apartment the next morning.
The next day, [petitioner] sent a series of text
messages. One asked to see the recipient because "[i]t
might be the last time." Another said, "Say, I might
need to come up there to stay. I did some shit the
Tracey Nixon, who had dated [petitioner] off and on,
picked him up the day after the murder at a gas station
on Brown Boulevard. [Petitioner] wore the t-shirt and
some of the jewelry that he had bought with Elliot's
cards. After going to a Dallas nightclub, [petitioner]
spent the night with Nixon, who returned [petitioner]
to Brown Boulevard the next morning.
Investigation and Arrest
Officers obtained an arrest warrant and arrested
[petitioner] at Nixon's apartment on March 5. At the
time of his arrest, [petitioner] was wearing the tennis
shoes and some of the jewelry he brought [sic] with
Elliot's stolen credit cards. He was also wearing a
black belt with metal studs. The shoes, belt, phone,
and jewelry were seized during [petitioner's] jail
Officers seized other items from [petitioner's]
apartment pursuant to a search warrant. They recovered
a pair of black and green Nike Air Jordan tennis shoes
that appeared to match a bloody shoe print at
NorthPointe, the New Orleans Saints jersey seen on the
mall surveillance videos, a gold chain necklace, a pair
of men's silver earrings with diamond-like stones, a
Nike Air Max shoe box, a Sheikh Shoes shopping bag, a
Sesame Street price tag, a Jimmy Jazz business card,
and receipts dated March 3 from several of the stores.
Officers found Dobson's identification cards, insurance
cards, and credit cards in Elliot's car.
DNA from Dobson and from Elliot was discovered in a
stain on [petitioner's] shoe. [Petitioner's]
fingerprints were lifted from the wrist rest on
Dobson's desk, from receipts, and from some of the
items from the mall.
A trace-evidence analyst detected similarities between
[petitioner's] shoe and a bloody shoe print on an
envelope in Dobson's office. [Petitioner's] belt
appeared to be missing studs, and similar studs were
recovered from the office. According to a firearms
expert, the plastic grip found in Dobson's office came
----------~f~r~o~m~a--TSXT Dalsy alr gun,
wnlcn is a C02~mrar·ge-·N----------------
semiautomatic BB gun modeled on a Colt firearm. The
jury saw a BB gun manufactured from the same master
mold and heard from a text message read into the record
that [petitioner] was seeking to buy a gun just days
before the killing.
[Petitioner] testified on his own behalf. According to
him, from about 11:30 p.m. on March 2, until 6:00 or
7:00 a.m. on March 3, he and three companions were
looking for people to rob. They had firearms.
[Petitioner] went home for a while in the morning but
later joined up with AG and Twist. [Petitioner] claimed
that he waited outside the church while AG and Twist
went in. Twentyfive minutes later, he went inside and
saw the victims on the ground. They were bleeding from
the backs of their heads, but they were still alive.
[Petitioner] then took the laptop and case. According
to [petitioner], AG gave him keys and credit cards.
[Petitioner] waited in Elliot's car for a while and
then returned to Dobson's office. By that time, the man
was dead. [Petitioner] could not stand the smell, so he
returned to Elliot's car. He drove the group to his
apartment, retrieved a CD and his New Orleans Saints
jersey, and continued to Bursey's apartment, where they
smoked marijuana. [Petitioner] then left Bursey's
apartment in Elliot's car.
[Petitioner] testified that he knew people were inside
the church and that he agreed to rob them. He claimed
that he did not intend to hurt anyone and had no part
in what happened inside of the church. He also
acknowledged making the purchases at Tetco and buying
items at the mall.
[Petitioner] testified to having several prior
Nelson, 2015 WL 1757144, at *1-3.
With regard to the punishment phase of the trial, the Court
of Criminal Appeals summarized the evidence as follows:
began getting :tnt-o-er()-ub~le wi t!r\Jklcrho=.--------juvenile authorities when he was six years old. His
juvenile career included property crimes, burglaries,
and thefts. Despite efforts by Oklahoma authorities to
place him in counseling and on probation, [petitioner]
was incarcerated in that state at a young age because
he continued to commit felonies. According to Ronnie
Meeks, an Oklahoma Juvenile Affairs employee who worked
with [petitioner], this was "quite alarming."
[Petitioner] was sent to a detention center in Oklahoma
for high-risk juveniles. On one occasion, while Meeks
was driving [petitioner] to the facility for diagnostic
services, [petitioner] fled from Meeks' pickup truck.
He was apprehended a few minutes later. At the
facility, [petitioner] was disruptive and tried to
escape. After a few weeks, [petitioner] was sent to a
group home in Norman, Oklahoma, for counseling. There,
[petitioner] did not fare well. He was disruptive and
did not try to make any improvements.
When Meeks needed cooperation from [petitioner's]
mother, she was available. [Petitioner] never appeared
to Meeks to be in need of anything; his mother appeared
to be providing enough.
Meeks testified that, in addition to being
uncooperative with the efforts in Oklahoma to provide
services and to rehabilitate [petitioner] , [petitioner]
never exhibited any remorse about any of his actions.
[Petitioner] was also involved in the Texas juvenile
justice system through the Tarrant County probation
office. Mary Kelleher, of that office, first had
contact with [petitioner] in April 2000, when he was
thirteen years old. The police referred [petitioner] to
her for having committed aggravated assault with a
deadly weapon. Kelleher worked with [petitioner] during
a time when he was pulling fire alarms, was truant, and
was declining in school performance. In December 2001,
the police department again referred [petitioner] to
Kelleher for multiple charges, including burglaries of
a habitation, criminal trespass of a habitation, and
unauthorized use of a motor vehicle. After the
department was notified that [petitioner] was a
the charges were disposed.
The Tarrant County juvenile court adjudicated
[petitioner] , then fourteen years old, for burglary of
a habitation and unauthorized use of a motor vehicle.
He was committed to the Texas Youth Commission ("TYC")
for an indeterminate period. According to Kelleher, it
is unusual for a juvenile to be committed to TYC for
property crimes at that age, but [petitioner's] history
made him a rare case.
Kelleher testified that [petitioner] had family support
from his mother but none from his father.
[Petitioner's] mother was neither abusive nor
neglectful. According to [petitioner's] mother, his two
siblings went to college and did not get into trouble.
[Petitioner] indicated to Kelleher that he knew his
actions were wrong, but he acted out of impulse and
boredom, without an exact reason.
[Petitioner] was a "chronic serious offender." While in
TYC, [petitioner] had four of the highest-level
disciplinary hearings and was repeatedly placed in the
behavior-management plan. [Petitioner] was originally
sent to TYC for nine months, but he spent over three
and a half years confined because of his infractions.
This sentence for a burglary adjudication was an
extraordinarily lengthy time to spend in TYC. He
eventually made parole, had his parole revoked, and
returned to TYC.
[Petitioner] was paroled from TYC a second time. On his
second parole, when [petitioner] was twenty years old,
he again did not comply with the terms, even after
counseling. His parole officer issued a directive to
apprehend [petitioner] for these violations, but he
"aged out" of the juvenile system before he could be
picked up, allowing him to remain unapprehended.
In 2005, [petitioner], then eighteen years old, was
stopped while driving a stolen car. The officer who
arrested him concluded that [petitioner] was "a
Video evidence and testimony from November 30, 2007,
showed [petitioner] in a Wal-Mart stock room posing as
an associate from a different store. [Petitioner] put a
laptop computer down his pants and then walked to the
exit. The following week, [petitioner] was apprehended
at a separate Arlington Wal-Mart for putting on new
boots off the shelf and leaving the store without
After being released from state jail in 2010,
[petitioner] assaulted his live-in girlfriend, Sarina
Daniels. When Sarina ran outside after an argument,
[petitioner] caught her and dragged her inside. When
she tried to call 9-1-1, he broke her telephone.
[Petitioner] bound Sarina with duct tape and tried to
have her stand on a trash bag so her blood would not
get on the carpet. He held a knife to her throat while
holding her by the hair and made her apologize for
talking to another man while [petitioner] was
incarcerated. [Petitioner] pulled the knife away and
told Sarina that he was not going to kill her. He then
grabbed her by the throat, pushed her onto a dresser,
and said, "But if you do it again, then I will."
[Petitioner] then choked Sarina. Sarina filed charges,
and [petitioner] was arrested.
For this aggravated assault with a deadly weapon,
[petitioner] was placed on probation and sent to a
ninety-day program at the Intermediate Sanctions
Facility ("ISF") in Burnet. Sherry Price, a Dallas
County probation officer, told [petitioner] to report
as soon as he was released from the program, which
[petitioner] failed to do. After [petitioner] failed to
report as directed, Price told him to report to her on
March 3. He did not report, and hours later, he killed
[Petitioner] was classified as an assaultive inmate in
the Tarrant County Jail while awaiting trial. For a
time, he was in restrictive housing, but he
[Petitioner] used a broom stick, which he had
previously used to poke another mentally challenged
inmate in the eye, as a guitar.
Following Holden's death, [petitioner] was assigned to
a single-man, self-contained cell for dangerous and
violent inmates. On April 22, 2012, officers found
contraband, such as a broom handle and extra rolls of
toilet tissue, in [petitioner's] cell. In May 2012, a
search of [petitioner's] cell yielded a bag of
On July 20, 2012, a few weeks before trial,
[petitioner] damaged jail property in a two-hourlong
incident, of which the jury saw security footage and
heard testimony. While in a segregation cell,
[petitioner] blocked the window with wet toilet paper.
He then flooded his cell. Ultimately, the officers had
to use pepper spray to subdue [petitioner] . Officers in
protective gear restrained [petitioner] and took him to
the decontamination shower. During this time,
[petitioner] rapped and sang. While his own cell was
decontaminated, [petitioner] flooded the toilet in the
holdover cell. He brandished a shank made from a
plastic spoon. When he was being returned to his cell,
[petitioner] fought and threatened the officers. They
ultimately placed him in a restraint chair, a process
that took eight officers. This disturbance took about
seventy percent of the jail's manpower. Sergeant Kevin
Chambliss, who testified about the incident, had to
request back-up personnel from another facility.
On August 23, 2012, on a day of voir dire proceedings,
[petitioner] cracked one of the jail's windows and
chipped off paint with his belly chain while in the
jail gym. He showed no remorse. [Petitioner's]
dangerous activity continued after the guilt phase of
trial. After the jury's verdict was read, while
[petitioner] was in a holdover cell, he ripped the stun
cuff off of his leg. Again, he showed no remorse.
During trial, while [petitioner] was being escorted
from the jail to the courtroom, he tried to move his
cuffs from behind his back multiple times. During the
punishment phase, officers found three razor blades
inside letters addressed to [petitioner] , along with
other contraband items.
[Petitioner's] prior convictions comprised failure to
identify, unauthorized use of a motor vehicle, burglary
of a building, and numerous thefts.
The defense put on a forensic psychologist, Doctor
Antoinette McGarrahan. She testified that, although
[petitioner] had no current learning disability or
cognitive impairment, he had a past history of learning
disabilities. Dr. McGarrahan explained that, when, as a
three-year old, [petitioner] set fire to his mother's
bed with intent to cause harm, it was essentially a cry
for attention and security. She believed that there was
•something significantly wrong with [petitioner's]
brain being wired in a different way, being predisposed
to this severe aggressive and violence from a very
early age.• She testified that, by the time
[petitioner] was six years old, he had had at least
three EEGs, meaning that people were already "looking
to the brain for an explanation• of his behavior. The
test results did not indicate a seizure disorder, but
Dr. McGarrahan said that they did not rule out
[petitioner] having one. Risk factors present in
[petitioner's] life included having ADHD, a mother who
worked two jobs, an absent father, verbal abuse, and
witnessing domestic violence.
[Petitioner] spoke about two alter egos, "Tank" and
•Rico.• Dr. McGarrahan did not believe that
[petitioner] had a dissociative-identity disorder;
rather, these alter egos were a way to avoid taking
responsibility for his actions.
Dr. McGarrahan acknowledged on cross-examination that
[petitioner] likes violence and has a thrill for
violence and that it is emotionally pleasing to him.
She said he is •criminally versatile,• and she agreed
that characteristics of antisocial personality disorder
describe him. According to her, people with antisocial
personality disorder have trouble following the rules
of society and repeatedly engage in behavior that is
grounds for arrest. They are consistently and
persistently irresponsible and impulsive; they tend to
lie, steal, and cheat. [Petitioner] has many
characteristics of a psychopath--including a grandiose
responsibility. Generally, such a person prefers to
lie, cheat, and steal to get by.
Nelson, 2015 WL 1757144, at *4-8.
Claims for Relief
Petitioner asserts five grounds for relief, each with
multiple sub-parts. The grounds are stated as follows:
MR. NELSON WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS
WHEN DEFENSE COUNSEL FAILED TO ADEQUATELY INVESTIGATE,
PREPARE, AND LITIGATE SENTENCING
DEFENSE COUNSEL'S FAILURE TO OBJECT TO VIOLATIONS OF
OF MR. NELSON'S FAIR TRIAL RIGHTS AND OTHERWISE SECURE
A FAIR TRIAL ENVIRONMENT CONSTITUTES INEFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH
III. MR. NELSON'S CONVICTION AND SENTENCE VIOLATE THE
FOURTEENTH AMENDMENT BECAUSE THE PROSECUTION USED RACE TO
SELECT THE JURY
DEFENSE COUNSEL'S FAILURE TO LITIGATE THE THIRD STEP
OF THE BATSON CLAIM CONSTITUTES INEFFECTIVE ASSISTANCE
OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS
MR. NELSON WAS DEPRIVED OF DUE PROCESS, IN VIOLATION
OF NAPUE V. ILLINOIS AND GIGLIO V. UNITED STATES, WHEN
THE STATE KNOWINGLY PRESENTED FALSE TESTIMONY DURING
THE SENTENCING PHASE
Doc. 25 at i-iii.
Applicable Legal Standards
In pertinent part, 28 U.S.C.
2254 provides that the only
ground for relief thereunder is that the petitioner "is in
custody in violation of the Constitution or laws or treaties of
the United States."
A petition brought
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings
unless the adjudication of the claim(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
A decision is contrary to clearly established federal law if
the state court arrives at a conclusion opposite to that reached
by the Supreme Court of the United States on a question of law or
if the state court decides a case differently than the Supreme
Court has on a set of materially indistinguishable facts.
Williams v. Taylor, 529 u.s. 362, 405-06 (2000); see also
Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
A state court
decision will be an unreasonable application of clearly
established federal law if it correctly identifies the applicable
rule but applies it unreasonably to the facts of the case.
illiams, 5Z9 o.s. at
2254 proceeding such as this,
"a determination of a
factual issue made by a State court shall be presumed to be
correct" and the petitioner "shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence."
2254 (e) (1).
federal court may assume the state
court applied correct standards of federal law to the facts,
unless there is evidence that an incorrect standard was applied.
Townsend v. Sain, 372 u.s. 293, 315 (1963)
315 F.3d 491, 493 n.3
Catalan v. Cockrell,
(5th Cir. 2002).
The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris v.
Oliver, 645 F.2d 327, 330 n.2 (5th Cir. Unit B May 1981).
Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim,
------•petiti=e :r: mast show tl'l:crt--(1.-)--cuurrse-J:->-s-perfurmance-£e-l-l-be±ew-a1'!-----objective standard of reasonableness, i.e., that his counsel made
errors so serious that counsel was not functioning as the
"counsel" guaranteed to petitioner by the Sixth Amendment, and
(2) there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have
Strickland v. Washington, 466 U.S. 668, 687
(1984). "[A] court need not determine whether counsel's
performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies."
at 697; see also United States v. Stewart, 207 F.3d 750, 751 (5th
"The likelihood of a different result must be
substantial, not just conceivable," Harrington v. Richter, 562
U.S. 86, 112
(2011), and petitioner must prove that counsel's
errors "so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
Cullen v. Pinholster, 563 U.S. 170, 189 (2011)
(quoting Strickland, 466 U.S. at 686).
Judicial scrutiny of this
type of claim must be highly deferential and the petitioner must
overcome a strong presumption that his counsel's conduct falls
within the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689. "A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances
_ _ _ ___,o_f_c_o:un.s_el.'_s_c.halJ..en..g.elL.c_on.ducJ;~__anct_t_o__e.Yalllat..e_tll_e_c_ond!.lc_t_ir_o"''-----
counsel's perspective at the time." Id. Simply making conclusory
allegations of deficient performance and prejudice is not
sufficient to meet the Strickland test. Miller v. Johnson, 200
F. 3d 274, 282 (5th cir. 2000). It is not enough to show that
some, or even most, defense lawyers would have handled the case
Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.
Where a petitioner's ineffective assistance claims have been
reviewed on their merits and denied by the state courts, federal
habeas relief will be granted only if the state courts' decision
was contrary to or involved an unreasonable application of the
standards set forth in Strickland.
See Bell v. Cone, 535 U.S.
685, 698-99 (2002); Santellan v. Cockrell, 271 F.3d 190, 198 (5th
Assistance of Counsel at Sentencing
In his first ground, petitioner contends that he did not
receive effective assistance of counsel because his counsel
failed to adequately investigate, prepare, and litigate
sentencing. Specifically, he says his counsel failed to present
evidence (1) of petitioner's diminished role in the crime,
that Holden's death was a suicide, and (3) of petitioner's
of "evidence" that was not presented and is not in the state
records, petitioner makes the conclusory allegation that this
ground is procedurally defaulted but excused under Martinez v.
Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012), and Trevino v. Thaler,
133 S. Ct. 1911 (2013), because his habeas counsel, Stickels,
"failed to raise this substantial IAC claim." Doc. 25 at 66. That
"Stickels failed to investigate anything; reprinted
irrelevant portions of appellate briefing from other clients'
cases, and generally failed to litigate with the standard of care
expected of state post-conviction counsel in capital cases." Id.
Martinez and Trevino hold that a procedural default will not
bar a federal habeas court from hearing a substantial claim of
ineffective assistance of counsel at trial if the petitioner had
no counsel in the state habeas proceeding or his state habeas
counsel was ineffective. Trevino, 133 S. Ct. at 1921. Thus, the
issue is whether Stickels provided ineffective assistance at the
habeas stage of the proceedings.
Where alleged prejudice arises from the deficiency of habeas
counsel in failing to point out the deficiency of trial counsel,
the petitioner must demonstrate the constitutional inadequacy of
both his habeas and trial counsel. Sells v. Stephens, 536 F.
App'x 483, 492
(5th Cir. 2013). That is, petitioner must show
that both his trial and habeas counsels' representation fell
------+re-low an objective standard of reasonabl-eness. Id. at--4-!8.---------(quoting Strickland, 466
at 688). And, petitioner must show
that there is a reasonable probability that, absent the errors,
the jury would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death. Id.
Strickland, 466 U.S. at 695).
In an attempt to meet his burden, as stated, petitioner
offers nothing but conclusory allegations that Stickels'
representation was deficient. That Stickels may have copied
portions of the state habeas petition from other work he had done
does not establish that his representation of petitioner in
regard to the first ground of the state habeas petition, urging
ineffective assistance of trial counsel, fell below an
objectively reasonable standard. See Sells, 536 F. App'x at 49495
(length of brief and number of claims asserted in no way
establish unreasonableness). That the facts alleged were not as
specific as they might have been did not prevent the trial court
from considering whether trial counsel's performance fell below
an objectively reasonable standard in investigating and
presenting mitigation evidence. The trial court did perform that
analysis and determined that Ray and Gordon provided effective
assistance to petitioner. 2 CHR 300-37, 352; Ex parte Nelson,
2015 WL 6689512.
etitioner now wishes to expand--npon--h-i-s--e"L-a-i-rr·r-erf-----------ineffective assistance of trial counsel to include numerous other
supposed lapses by them. But, having already asserted that claim,
he does not now get another bite at the apple. Clearly, Martinez,
as made applicable here through Trevino, applies only where the
issue of ineffective assistance of trial counsel was not raised
in the state court because the petitioner did not have counsel or
his habeas counsel failed to raise the issue. Martinez, 566 U.S.
at 5 ("petitioner's postconviction counsel did not raise the
ineffective-assistance claim in the first collateral proceeding,
and, indeed, filed a statement that, after reviewing the case,
she found no meritorious claims helpful to petitioner"), 16
(referring to the "limited circumstances" to which the case
applies) . The Fifth Circuit agrees. Escamilla v. Stephens, 749
F.3d 380, 394-95 (5th Cir. 2014) ("once a claim is considered and
denied on the merits by the state habeas court, Martinez is
inapplicable, and may not function as an exception to
Pinholster's rule that bars a federal habeas court from
considering evidence not presented to the state habeas court").
See Clark v. Davis, No. 14-70034, 2017 WL 955257, at
Cir. Mar. 10, 2017) (discussing new mitigation evidence and noting
that the court need not decide whether petitioner presented a new
claim because, to the extent he did,
time-barred under 28 U.S.C.
"any such claim would be
fundamentally alters the ineffective assistance claim such that
this court should consider matters that were not before the state
courts. The court does not agree. Clearly, the claim presented by
state habeas counsel was ineffective assistance of trial counsel
with regard to mitigation evidence. Petitioner wants the court to
consider additional evidence in support of that claim. Merely
putting a claim in a stronger evidentiary posture does not make
it a new claim. Escamilla, 749 F.3d at 395. Nor can petitioner
obtain de novo review of claim that has been exhausted by piling
on extraneous matters and alleging that he is presenting a new
claim under Martinez. Allowing such would completely undermine
the purpose of habeas review.
Even if petitioner's conclusory allegations were sufficient
to entitle him to review of the "new" ineffective assistance of
counsel claim he now purports to assert, he could not prevail.
Petitioner's own evidence regarding the work of his habeas
attorney belies the contention that Stickels failed to properly
investigate and raise the alleged ineffective assistance of trial
counsel. See, e.g., Doc. 26 at 32
(Stickels obtained appointment
of a mitigation investigator), 213-18 (mitigation investigator
notes that mitigation specialist at trial was experienced and
well-qualified, procurement of records and interviews of
witnesses were exhaustive, and defense strategy was to provide
reasonable doubc-t:IJ.-m:-pe tit i oneL--ki 11 e d Ho 1 den and-to--foeJ:;tS--Oilnc-------numerous developmental problems and circumstances of petitioner) ,
(mitigation investigator reviewed files and consulted with
(Stickels conferred with trial court mitigation
specialist, trial counsel, and mitigation investigator, as well
as reviewed files and visited petitioner four times). As stated,
petitioner's habeas counsel, Stickels, raised the issue of
ineffectiveness of trial counsel in failing to investigate and
present mitigating evidence. 1 CHR 3, 49-58. The trial court
ordered trial counsel to submit affidavits to address the alleged
deficiencies, 1 CHR 139-41, which they did. 1 CHR 142-66. The
trial court made extensive findings of fact and conclusions of
law with regard to the alleged ineffective assistance claim. 2
CHR 301-15. In particular, the trial court found that Ray and
Gordon complied with prevailing professional norms, including ABA
in conducting a thorough mitigation investigation and
presenting the best mitigation case they could in light of the
witnesses and evidence available to them. Id. Petitioner has not
shown that the state courts' analysis of this claim was contrary
to, or an unreasonable application of, the standards of
Strickland. Harrington v. Richter, 562 U.S. 86, 100-01 (2011).
Petitioner now attacks the manner in which trial counsel
chose to proceed. The record reflects that Ray and Gordon fully
witnesses. They cannot be faulted because petitioner himself,
family members, and others were not forthcoming or did not want
to cooperate or even misled them. Moreover, they were entitled to
rely on the reasonable evaluations and opinions of the expert
they hired.' Segundo v. Davis, 831 F. 3d 345, 352
Turner v. Epps, 412 F. App'x 696, 704
(5th Cir. 2016);
(5th Cir. 2011). It is not
the duty of federal courts to examine the relative qualifications
of experts hired and experts that might have been hired. Hinton
v. Alabama, 134 S. Ct. 1081, 1089 (2014).
Finally, there is no reason to believe, and petitioner has
not established, that even had trial counsel done all of the
things petitioner alleges should have been done, there is a
substantial likelihood that the result of the proceedings would
have been different. Petitioner ignores the fact that he was the
only perpetrator to be directly linked to the scene of the
murder. DNA from Dobson and Elliot was found on petitioner's
shoes'; petitioner's fingerprints were found on a wrist rest on
'Petitioner does not argue that the expert who testified at trial was not competent or qualified to
evaluate him. Rather, his complaint is that his trial counsel failed to direct the expert so that her
testimony was more favorable to him.
'Blood was found on the tops of the shoes, not merely the soles, undermining petitioner's
contention that he merely happened upon the scene after the horrific beatings had already taken place.
Dobson's desk; petitioner's shoe print was found in Dobson's
office; studs found in Dobson's office• matched a studded belt
petJ.tJ.oner was wearing wtre-n--rre was arrested-:--Shoitly aftei t - h e - - - - - - murder of Dobson, petitioner drove Elliot's car to a Tire King
where he sold Dobson's laptop and attempted to sell Dobson's
iPhone. 9 Petitioner used Elliot's credit cards to buy gas, a
drink and a cigar. He met Springs at the gas station. Springs and
Jefferson were at the Parks Mall with petitioner where petitioner
used Elliot's credit cards to buy jewelry, at-shirt, and shoes.
Nelson, 2015 WL 1757144, at *2-3.
Dobson was the pastor of NorthPointe Baptist Church, where
Elliot was his secretary. The murder took place in the pastor's
office and the scene was horrific. Dobson and Elliot had each
been beaten, their hands tied behind their backs, and were lying
face up on the floor. Elliot's husband did not recognize her, she
had been beaten so badly. The medical examiner said that Dobson
had first been struck in the head while he was standing and
struck again as he fell. After he had fallen to the ground and
lost consciousness, he was bound, and a plastic bag placed over
his head. With the bag over his head, Dobson suffocated and died.
Elliot was taken to the hospital in critical condition and
suffered a heart attack while there. She had traumatic injuries
'Actually, one of the studs was found on Dobson's left leg. 32 RR 186.
33 RR 94.
to her face, head, arms, legs, and back, and internal bleeding in
her brain. She was in the hospital for two weeks and underwent
mesh, screws, and other metal holds her face together. At the
time of trial, she still had physical and mental impairments from
the attack. Id. at *1-2.
In addition to the evidence recited by the Texas Court of
Criminal Appeals with regard to the sentencing phase of the
trial, supra, the court notes the following: During his time in
Oklahoma, petitioner never exhibited any remorse for what he had
done. 39 RR 14. Mid-career, when he was thirteen or fourteen,
petitioner admitted to a probation officer that he knew his
actions were wrong, but he acted out of impulse and boredom,
without an exact reason. 38 RR 14. While participating in a
cognitive treatment program as an adult, petitioner identified
his three main thinking errors as "power thrust, uniqueness, and
criminal addictive excitement." 41 RR 18. These terms were
defined as follows:
Q. So what is power thrust? When do we use that?
A. Power thrust is someone that wants to be in control,
someone that's a leader, someone that uses anger,
manipulation, threats to--to gain that power. If you
lose that power, you're going to do anything that you
can to regain that power regardless of the
consequences. It's kind of like, you know, if you do
something to me, I'm going to do something back.
Q. And you mentioned also the criminally addictive
A. Criminally addictive excitement is someone that
likes to have fun and excitement. It's--they get
respect for their irresponsible and reckless behavior.
It's someone that's like a sprinter, not a, you know, a
long distance runner. Someone that's easily led into
criminal activity unless you're the leader yourself, an
lnstant gratlflcatlon type.
Q. And you also mentioned uniqueness?
A. Uniqueness is you think you're better than everybody
else. You think you're special, you think you're
different. You think the rules don't apply to you. And
you always want to stay on the top, start at the top.
41 RR 18-19.
Petitioner alleges that his trial counsel were ineffective
in failing to investigate and establish his diminished role in
the murder. 10 However, petitioner's own testimony established his
guilt as a party to the crime. The matters that petitioner says
his counsel should have raised are but red herrings and the jury
would have seen them as such.
There was no DNA evidence or other evidence linking Springs
to the murder.'' The mother of Springs' child and one of her
friends each testified that Springs was with them in Venus,
Texas, the night before the murder until they met petitioner at
the gas station after the murder. Cell phone records showed that
Springs• phone had been used in Venus numerous times during that
period and that the phone began to travel at 1:23 p.m. on the day
of the murder. The phone was quiet for a number of hours, but
Petitioner overlooks the cross-examination by his attorneys that raised questions about Springs
knowledge of events at the church. See. e.g., 35 RR 136-38.
"Springs voluntarily gave a DNA sample to police. 34 RR 153. None of his fingerprints were
found inside the church. 34 RR 253-54.
that is consistent with testimony that Springs was sleeping. The
phone records did not confirm petitioner's allegation that
Sprlngs had been Wlth film the
used the phone at another location." A number of Springs'
fingerprints were found in and on Elliot's car and Springs had
her car keys and Dobson's iPhone. 34 RR 163-64, 166-67. After
police obtained his phone records, Springs was cleared of the
capital murder offense. 34 RR 181.
Petitioner says his counsel should have presented evidence
that Springs had bruising on his arms four days after the murder.
The evidence to which he refers is not part of the state court
record and is not properly authenticated, even assuming the court
could consider it. The court further notes that the same police
report upon which he relies contains a number of false statements
made during the course of the investigation, including
petitioner's own statements, which contradict his testimony at
trial. Doc. 26 at 297-325.
Petitioner next says that his counsel should have learned
from Tracey Nixon that she overheard telephone conversations
between petitioner and Springs implicating Springs in the murder.
Of course, petitioner was a party to the calls and could have
told his counsel about them. And, Nixon could have told
Given the number of calls made on Springs' phone, petitioner's suggestion that Springs was out
all night with petitioner and never used the phone is implausible.
petitioner's counsel about the calls when she spoke with him the
week before trial. 34 RR 64. Clearly, Nixon's testimony at trial
was desJ.gned to help
have worn the studded belt), so there would have been no reason
to withhold any favorable information.
Petitioner next says that his counsel failed to adequately
present evidence that Springs was in possession of valuable
property of the victims. That Springs ultimately wound up with
Dobson's iPhone and Elliot's keys is inconsequential. Video and
testimony at trial established that petitioner drove Elliot's car
to a Tire King almost immediately after the murder where he sold
Dobson's laptop and attempted to sell the iPhone. Even if the
evidence had any meaning, petitioner has not shown that he had
witnesses willing and able to testify competently to these facts.
Petitioner says that his counsel failed to investigate and
prepare to address the testimony of the alibi witnesses for
Springs or even interview Springs, who was not indicted "for
reasons still unknown." Doc. 25 at 24. Of course, the testimony
at trial was that Springs was cleared by his telephone records.
34 RR 181. But, in any event, petitioner does not have any
evidence to support these contentions. And, the court notes that
the witnesses petitioner says should have been called to testify,
Cotter and Cobb, are apparently the ones who first advised police
that petitioner was involved in the murder.
Further, with regard to petitioner's involvement in the
murder, petitioner says his counsel failed to adequately
Again, there is no evidence to support this contention. It
appears that petitioner may not have decided until he testified
at trial to implicate Jefferson. One of petitioner's own exhibits
reflects that petitioner only identified Springs and himself as
having been involved. Doc. 26 at 312-13.
Petitioner next addresses the testimony regarding Holden's
death, arguing that his counsel should have established that it
was a suicide. In particular, he says his attorneys should have
done a better job of cross-examining inmate Seely, who testified
that he saw petitioner kill Holden, and of establishing that
Holden was suicidal. Also, they should have moved to exclude
testimony of Dr. White, who performed the autopsy on Holden."
The record belies petitioner's allegations. The jury clearly
understood that everyone in the tank where Holden was killed was
considered dangerous. See, e.g., 40 RR 47-48, 84, 86. At the time
of trial, Seely was a convicted felon,
serving a two-year
sentence for family assault. 40 RR 7. Petitioner's counsel
established that to get a felony conviction for family assault,
Seely must have previously beaten someone. 40 RR 41-42. He also
ln a footnote, petitioner argues that his counsel did not adequately question how his DNA could
have been transferred to Holden's fingernails. The argument is wholly conclusory and speculative.
had other convictions and was up for parole, certainly giving him
reason to testify favorably to the State. 40 RR 42-44. The
evidence also established that an
when a call was made that he might want to hurt himself and
Holden denied any such intent." 40 RR 72-75. Petitioner's
counsel established that the officer who first discovered Holden
thought he had committed suicide. 40 RR 111. In examining Dr.
White, counsel emphasized for the jury that Holden's injuries
were very nonspecific and that the homicide conclusion was
reached based on the sheriff's report. 40 RR 144-45, 149.
Further, Holden could have leaned into the blanket to kill
himself. 40 RR 146. Petitioner's counsel presented the testimony
of John Plunkett, a board-certified pathologist, who testified
that there was nothing to support Seely's testimony that
petitioner had pulled Holden up against the bars of the cell to
choke him. 43 RR 30-32. And, Holden must have been an active
participant in his own death. 43 RR 35-36.
In sum, petitioner has no legitimate complaint about his
counsel's presentation in regard to Holden's death. He has not
shown that, in light of all the circumstances, his counsel's
omissions were outside the wide range of professionally competent
assistance. Strickland, 466 U.S. at 690.
Had Holden been suicidal, he would not have been in that facility. 40 RR I 03; 43 RR 23-25.
Finally, petitioner contends that his counsel failed to
reasonably investigate, develop, and present evidence about his
his counsel's failure to establish his minimal role in the
offense and the failure to show that Holden's death was a
suicide, this contention was the subject of the first ground of
the state habeas petition and, as stated previously, petitioner
cannot now rely on new evidence to plow this ground again.
Pinholster, 563 u.s. at 181-82.
The record makes abundantly clear that petitioner has no
redeeming qualities. His trial counsel searched exhaustively for
mitigating evidence and found very few people who were willing to
testify on petitioner's behalf. Those who did gave no indication
that petitioner suffered a traumatic childhood full of abuse.
Petitioner's sister testified that their mother spanked him, 43
RR 228-29, not that she abused him, as petitioner now contends.
And, the relatives petitioner now relies on to establish his
version of events say that, although his mother had a temper, it
was not with her children, to whom she acted more like a friend.
Doc. 29 at 1475. Petitioner complains that his counsel "dumped
thousands of pages of documents" on their expert,
but does not
cite to any evidence in those thousands of pages to support his
"One of petitioner's complaints is that counsel failed to provide "direction or assignment" and
gave the expert "nothing to generate a roadmap," Doc. 25 at 38, as though counsel should have told the
expert what conclusions to reach.
claim of horrific childhood abuse. Doc. 25 at 37. Instead, he
wants the court to believe his statements to Dr. McGarrahan that
shel i eve hj s statement
to her that he never harmed himself. Doc. 25 at 38. His real
complaint is that Dr. McGarrahan independently reviewed the
records and interviewed petitioner, disbelieving much of what he
told her." And, based on "the devastating extent of
[petitioner's] abandonment and deprivation," Doc. 25 at 43, which
is supported by the record, counsel decided that the best
mitigating evidence was that petitioner's brain was so changed by
events beyond his control that he did not deserve the death
penalty." That was a decision counsel were entitled to make.
Pinholster, 563 U.S. at 197
(experienced lawyers may conclude
that the jury simply won't buy a particular trial tactic);
Strickland, 466 U.S. at 689.
Even assuming petitioner could meet the first part of the
Strickland test, and he cannot, he cannot show that there is a
reasonable probability that, but for the ineffective assistance
of his counsel, the jury would have concluded that the balance of
Petitioner notes that his trial counsel hired a second expert in the field of forensic and clinical
psychology, but dismissed him after meeting with him twice. Doc. 25 at 35, n. 25. (This allegation is
made in support of the contention that trial counsel did not explore any alternative experts.) A logical
"explanation" for the dismissal would be that the second expert did not have as favorable an opinion
about petitioner as Dr. McGarrahan.
"Petitioner now wants to argue that his criminality is attributable to trauma, Doc. 25 at 41,
overlooking that Dr. McGarrahan testified that emotional unavailability and neglect were worse
psychologically than physical abuse. 43 RR 244.
aggravating and mitigating circumstances did not warrant death.
466 U.S. at 695. Petitioner's future dangerousness was
establ!sned beyona-a:-reaSb!lable doubt given the overwhel-ming-------evidence of his participation in the murder and conduct
thereafter. That petitioner's new expert would have attributed
his behavior to PTSD or any other cause does not establish that
petitioner is not a continuing danger to society. Likewise, there
is no question that petitioner intended to cause Dobson's death
or knew he would be killed. Petitioner's testimony to the
contrary was simply incredible and the evidence at trial
established that petitioner was present during the beatings of
Dobson and Elliot. As in Santellan, 271 F.3d at 198, there is not
a reasonable probability that the jury would have answered the
mitigation special issue differently. Petitioner's new expert
points out, just as Dr. McGarrahan did, that "traumatic and
adverse experiences and circumstances exert a deleterious impact
on the developing brain and negatively disrupt  psychosocial
development and functioning." Doc. 25 at 65. In other words,
petitioner's new expert agrees that petitioner's brain did not
develop as it should have and he is the way he is, whatever the
cause. As his trial counsel noted, "if that's not mitigating,
With regard to this pa1t of the test, the comt notes that petitioner's proffered juror declarations
are not appropriate for consideration. Young v. Davis, 835 F.3d 520, 528-29 (5th Cir. 2016); Summers v.
Dretke, 431 F.3d 861, 873 (5th Cir. 2005). But, they do not show a reasonable probability of a different
outcome in any event.
there is no mitigation in a death penalty case." 44 RR 23. The
jury was not persuaded and petitioner has not shown that a new
Failure to Secure a Fair Trial Environment
In his second ground, petitioner urges that his counsel's
failure to object to violations of his fair-trial rights and
otherwise secure a fair trial environment constituted ineffective
assistance of counsel. Specifically, he complains that counsel
failed to diligently seek a change of venue and failed to object
to his shackling and wearing of a stun cuff. Once again,
petitioner attempts to gain de novo review by pairing an
exhausted with an unexhausted claim and arguing in a conclusory
fashion that he was prejudiced.
The Sixth Amendment guarantees a criminal defendant to a
speedy and public trial by an impartial jury. The failure to
provide such a trial is a denial of due process. Irvin v. Dowd,
366 U.S. 717, 722
(1961). However, the Constitution does not
require that jurors be completely ignorant of the facts and
issues to be tried. Dobbert v. Florida, 432 U.S. 282, 302
As was the case in Dobbert, petitioner's argument that
extensive media coverage'' denied him a fair trial rests almost
entirely upon the quantum of publicity the events received. 432
"The articles to which petitioner refers were published after the trial began. Doc. 25 at 68, n. 39
& 40. He does not make any attempt to substantiate the claim that the publicity in his case in any manner
compares to that in Sheppard v Maxwell, 384 U.S. 333 (1966), upon which he relies.
U.S. at 303. Petitioner does not cite to specific portions of the
record, in particular the voir dire examination, that would
requlre a flnding of conscttm-J:<:Jrra:-1 unfairness as to the method
of jury selection or the character of the jurors actually
selected. Id. He makes no attempt to show that his case has
anything in common with those where the Supreme Court has
approved a presumption of juror prejudice. For instance, he
includes no discussion of size and characteristics of the
community in which the crime occurred or any detail about the
news stories, e.g., that they contained any confession by
petitioner or other blatantly prejudicial information of a type
that readers or viewers could not reasonably be expected to shut
from sight. Skilling v. United States, 561 U.S. 358, 382-83
(2010) . As the Fifth Circuit has noted, the rule of presumed
prejudice is applicable only in the most unusual cases. Busby v.
Dretke, 359 F. 3d 708, 725
(5th Cir. 2004). This is not one of
them and petitioner has made no attempt to show that it is.
The record reflects that petitioner's trial counsel filed a
motion for change of venue. 2 CR 305-10. The State filed a
response, 2 CR 320-23, and the court carried the motion. 6 RR 50.
The motion was re-urged as part of a motion for mistrial, 2 CR
369, but was apparently not pursued thereafter. Nothing in the
record would have supported the granting of the motion and
counsel cannot be faulted for having failed to pursue a losing
motion. See Clark v. Collins, 19 F.3d 959,
Koch v. Puckett, 907 F.2d 524, 527
(5th Cir. 1994);
(5th Cir. 1990).
he secorrct-pc;:rt of this clairrri:s that counscl-sttott'l.-d-fia'll·e------objected to petitioner's being shackled and wearing a stun cuff
during his trial. Petitioner falsely says that this claim is
unexhausted. Doc. 25 at 72. It was raised as claim for relief
number ten by habeas counsel. 1 CHR 90-91. The trial court made
extensive fact findings and conclusions of law as to the claim, 2
CHR 323-27, and the Court of Criminal Appeals denied relief. Ex
parte Nelson, 2015 WL 6689512. Yet, in his reply, petitioner
continues to maintain that the claim is unexhausted. Doc 54 at
19. And, he makes the conclusory allegation that even if
exhausted, the state court's decision would be contrary to
Supreme Court precedent, id., ignoring the fact findings that
support the use of additional security at trial. Petitioner in
effect argues that the trial judge was required to specifically
"I am 'exercising [my] discretion to take into account
security concerns,'" or words to that effect, relying on Deck v.
Missouri, 544 U.S. 622, 633-34
(2005). Doc. 54 at 20. However,
the defendant in Deck specifically and repeatedly objected to
being shackled. That was not the case here.
The court's attention has not been drawn to any case
requiring the trial court to make gratuitous fact findings as to
a matter about which no complaint has been made. Based on the
record, and in particular, the habeas findings and conclusions,
counsel were reasonable in their determination not to complain
that this ruling was unreasonable. And, even if counsel should
have complained more vigorously, this is the exceptional case
where the record itself makes clear that there were indisputably
good reasons for shackling. See Deck, 544 U.S. at 635.
In his third ground, petitioner alleges that he was
sentenced to death by an all-white jury from which the State
systematically struck nonwhite prospective jurors. He seeks
relief under Batson v. Kentucky, 476
79 (1986). In Batson,
the Court set forth a three-step process for determining when a
strike is discriminatory:
First, a defendant must make a prima facie showing that
a peremptory challenge has been exercised on the basis
of race; second, if that showing has been made, the
prosecution must offer a race-neutral basis for
striking the juror in question; and third, in light of
the parties' submissions, the trial court must
determine whether the defendant has shown purposeful
Fosterv. Chatman, 136 S. Ct. 1737,1747 (2016)(quoting Snyderv.
Louisiana, 552 U.S. 472, 476-77 (2008)). The trial court has a
pivotal role in evaluating Batson claims since the third step
involves an evaluation of the prosecutor's credibility. Batson,
476 U.S. at 98 n. 21. The best evidence of discriminatory intent
often will be the demeanor of the attorney who exercises the
challenge. Hernandez v. New York, 500 U.S. 352, 365 (1991). In
addition, the demeanor of jurors, for example their nervousness
striking a juror is mere pretext. Snyder, 552 U.S. at 477. Thus,
the trial court's rulings must be sustained unless clearly
erroneous. Id. And, on federal habeas review, state court
decisions are to be given the benefit of the doubt. Felkner v.
562 U.S. 594, 598 (2011). The ultimate burden of
persuasion regarding racial motivation rests with, and never
the opponent of the strike. Purkett v. Elem, 514
Petitioner raised his Batson challenge on direct appeal:
In appellant's fifth point of error, he claims that the
trial court violated the Equal Protection Clause by
overruling his Batson objections to the State's
peremptory strikes of two minority venire members.
A Batson challenge involves three steps: (1) there must
be a prima facie showing that a venire member was
peremptorily excluded on the basis of race; (2) the
striking party must then tender a race-neutral reason
for the strike; and (3) if a race-neutral reason is
tendered, the trial court must then determine whether
the objecting party has proved purposeful
discrimination. The trial court's ruling on a Batson
challenge is sustained on appeal unless it is clearly
erroneous. This highly deferential standard is employed
because the trial court is in the best position to
determine whether the State's justification is actually
race-neutral. A defendant's failure to offer rebuttal
to a prosecutor's race-neutral explanation can be fatal
to defendant's claim.
Appellant raised a Batson challenge regarding five
venire members. The trial court found that he had made
a prima facie case, so the burden shifted to the State
to tender race-neutral explanations. The State noted
which black and Hispanic minority members were struck
by the defense, then proffered explanations for the
five challenged venire members: Venire member Spivey
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