Prystash v. Dretke

Filing 62

MEMORANDUM AND ORDER granting 57 MOTION for Summary Judgment to Petitioner's Rebriefed Petition for Writ of Habeas Corpus. Petition for a Writ of Habeas Corpus is Denied with prejudice. No certificate of appealability will issue in this case. (Signed by Judge Nancy F. Atlas) Parties notified.(arrivera, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSEPH ANDREW PRYSTASH,
Petitioner,
v.
WILLIAM STEPHENS,
Director, Texas Department of
Criminal Justice, Correctional Institutions
Division,
Respondent.

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March 17, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-05-1546

MEMORANDUM OPINION AND ORDER
In 1996, a jury convicted Petitioner Joseph Andrew Prystash of capital murder and
answered Texas’s special issue questions in a manner requiring the imposition of a death
sentence. After unsuccessfully availing himself of Texas’s appellate and post-conviction
remedies, Prystash now seeks federal habeas relief from his conviction and sentence pursuant
to 28 U.S.C. § 2254 [Doc. #52].
Respondent William Stephens has moved for summary judgment [Doc. # 57]. The
Court has thoroughly examined the record in this case, including the state court pretrial, trial,
appellate, and habeas proceedings. Based on this review and the application of governing
legal authorities – giving due consideration to the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) – the Court grants the pending summary judgment motion,
denies federal habeas relief, and dismisses this case. This Court will not certify any issue for
appellate review.
FACTUAL AND PROCEDURAL SUMMARY
Robert Alan Fratta (“Fratta”), a public safety officer for Missouri City, married the
former Farah Baquer (“Farah”) in 1983. They had three children. After nearly a decade of
marriage, the couple separated and Farah filed for divorce in March 1992. The divorce
proceedings became contentious, and Fratta became angry at the prospect of Farah receiving

custody of their children or being awarded more child support. A trial on the issue of child
custody was set for November 28, 1994.
On the evening of November 9, 1994, Fratta took the children to church while Farah
got her hair cut. A man approached when Farah returned home and exited her car. The man
shot, hitting her one time in the head. After she fell to the ground, the man shot her a second
time. Neighbors saw the man wait near the bushes until a silver Nissan picked him up on the
street.
After police and emergency responders arrived, Farah was taken to a hospital. She
was pronounced dead in the emergency room.
A.

The Police Investigation

The police immediately focused their attention on Fratta as a possible suspect in his
estranged wife’s murder. Several individuals told the police that Fratta had been looking for
someone to kill his wife. Tr. Vol. 17 at 58-60, 68-69, 118-19, 163-65.1 Fratta had asked
numerous people if they knew of a hit man so that “the police . . . would have so many leads
they really wouldn’t know where to start and they would possibly think he wouldn’t be a
suspect, that just because he simply mentioned it that somebody might have took [sic] him
serious and took it on themselves to do it.” Tr. Vol. 17 at 116, 164-65.
The police, however, did not make an arrest for several months. Early on, the police
suspected Prystash’s involvement in the crime. On the night of Farah’s murder, Fratta
continually went to the church office to check his pager and make phone calls. Individuals
in the church’s office saw him repeatedly use the church phone between 7:30 and 8:00 p.m.
The police subpoenaed the phone records and found that Fratta had called the telephone
1

The state court records consist of a transcript that contains pretrial motions, trial court
orders, jury instructions, and other pleadings, cited as “Clerk’s Record , p. __”; a
Statement of Facts including hearings on pretrial motions, jury voir dire, the
guilt/innocence phase, and the penalty phase, cited as “Tr. Vol. __, at __”; and a
transcript of the state habeas proceedings, cited as “S.H.R. at __.” The Court will
refer to the papers from Prystash’s successive state habeas record as “S.S.H.R. at
___.”
2

number of Prystash’s girlfriend, Mary Gipp. Tr. Vol. 18 at 455.
Numerous police officers were involved in the investigation into Farah’s murder and
in the interrogation of suspects: notably, Sergeant Danny Ray Billingsley, Detective George
Ronald “Ronnie” Roberts, Detective William Valerio, Detective Larry Davis, and Detective
Jim Hoffman. The police interacted with Gipp and Prystash from November 1994 through
March 1995. In March 1995, Detective Roberts interviewed Gipp. When the police first
interviewed Gipp, she lied and said that she knew nothing about the murder. Tr. Vol. 17 at
212. By the time they returned with a grand jury subpoena, Gipp had hired an attorney.
After receiving a promise of immunity, Gipp gave the police crucial information that she had
received from Prystash regarding Farah’s murder. Id. at 213-14. Prystash had told Gipp that
Fratta had enlisted him to kill Farah, and that he in turn recruited their neighbor Howard Paul
Guidry to be the shooter. Id. at 177-82.
Guidry was already in police custody. The police had arrested him on March 1, 1995,
while he fled the scene of a bank robbery. Tr. Vol. 18 at 432-39. Police recovered three
guns from Guidry’s book bag, including a Charter Arms .38 revolver. Tr. Vol. 18 at 448-49;
State’s Exhibit 60. On March 8, 1995, Guidry provided a written statement in which he
claimed only reluctant participation in the murder as the getaway driver. Guidry later revised
his written statement and admitted to being the gunman. He also walked through the crime
scene with the police. Importantly, Guidry described the murder-for-hire scheme and how
the men carried it out. Guidry’s confession would serve as the impetus for the State of Texas
to bring three capital prosecutions. Constitutional infractions in the police’s interrogation
of Guidry ultimately resulted in two convictions being vacated, although each of these
individuals were retried and again convicted.
On the same day that Guidry was charged with capital murder in Farah’s death, the
police obtained a pocket warrant for Prystash’s arrest supported by an affidavit from Sergeant
Danny Billingsley. Tr. Vol. 18 at 463. Two crucial sources of incriminating information
lead to the arrest warrant: (1) “Mary Gipp’s . . . details of the offense that were

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communicated to Billingsley” and (2) “Guidry’s statements against penal interest.” S.S.H.R.
at 539-40. The police arrested Prystash on March 8, 1995. During his subsequent
interrogation with various police officers, Prystash denied knowing anything about the
murder. After about three hours, Prystash told officers “he would give [them] a statement
about what he knew” if “he be allowed to leave, go home.” Tr. Vol. 3 at 20-21. An Assistant
District Attorney informed the officers that giving a statement under that condition could be
considered coercion. Tr. Vol. 3 at 21. The police released Prystash from custody.
Sergeant Billingsley later testified in a suppression hearing that “he drove [Prystash]
. . . to pick up his car after his release from custody on March 8, 1995 . . . they stopped” and
Prystash “said they needed to talk . . . .” S.S.H.R. at 540. Prystash then confessed to
Sergeant Billingsley that he “contacted Guidry about the murder; that Fratta supplied the gun
and [Farah’s] schedule; and, that [Prystash] drove Guidry to the offense and picked him up
afterwards.” S.S.H.R. at 540. Sergeant Billingsley did not arrest Prystash again at that time.
Before leaving, Prystash said that he would come to the police station to give a statement the
next day.
When Prystash failed to show up at the station, the police obtained a new warrant on
March 10, 1995. S.S.H.R. at 541. “[T]he underlying affidavit contained the information
supplied by Sergeant Billingsley about the oral admissions against penal interest [Prystash]
made to Billingsley after he was released from custody, as well as Guidry’s statements
against penal interest.” S.S.H.R. at 541. The “major difference in the affidavits in the first
and second warrants was the inclusion in the second affidavit of the oral admissions
[Prystash] made to Billingsley . . . .” S.H.R. at 187. The affidavits, however, did “not refer
to Guidry’s confession as being voluntary; instead, the affidavits state that Guidry gave a
statement against penal interest after being given his Miranda warnings.” S.S.H.R. at 54950.
On March 13, 1995, Prystash was arrested and gave a written statement, State’s
Exhibit 73, in which he confessed his involvement in Farah’s murder. Tr. Vol. 18 at 614,

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632; Tr. Vol. 19 at 714-29. To summarize, Prystash’s statement provided the police a
detailed view into the murder-for-hire that ended in Farah’s death. Prystash had known
“Fratta for about six or seven years from the gym.” Prystash explained that “[a]bout a month
before Farah Fratta was killed,” Fratta asked “do you know anybody that would kill my wife
for me.” A short time later, Prystash met his neighbor Howard Guidry. “[Guidry] told
[Prystash] that he needed to make some money and he didn’t care what he did.” Prystash
asked him if he would kill Farah Fratta. Guidry “told [Prystash] that he was willing.
[Prystash] told him that [Fratta] was willing to pay $1,000 and more money later. [Guidry]
was interested right from the beginning because he wanted to go buy some cocaine and sell
it.”
The men “talked about several scenario[s]” for the murder. “About a week before the
killing, [Fratta] and [Prystash] met and he told [Prystash] that he was going to be at church
the following Wednesday night. [Fratta] said that the following Wednesday night would be
. . . perfect because he would have his kids until 9:00 p.m.” Fratta later “gave [Prystash] a
gun to give to [Guidry]. The gun was a . . . blue Police Bull Dog Special revolver which was
probably a four inch barrel.”
Prystash described the murder itself as follows:
I took [Guidry] over to the parking lot of the Food City at 1960 East at
Timber Forest. We got there about 7:30 p.m. At about 7:35, I got a page from
[Fratta]. I called him back with either the store’s pay phones or the mobile
phone. [Fratta] told me he was at church. I told him that [Guidry] was ready
to go. [Fratta] said all right. After I got off the phone with [Fratta], I drove
[Guidry] to Farah’s house. I dropped him off at a phone, I dropped him off a
few houses away from Farah’s house. I knew where to go because of the map
[Fratta] gave me. I believe I dropped him off shortly before 8:00 p.m.
After I left [Guidry], I went back to the Food City and waited by the
pay phones. [Guidry] called me about 7:55 p.m. He told me that she wasn’t
home yet. I paged [Fratta] and he called me back. [Fratta] told me, Wait,
she’ll be there. I told him okay and hung up the phone. Maybe five seconds
later I got another call on the mobile phone. [Guidry] told me come and get
me fast. He was kind of out of breath. I hung up the phone and drove to
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Farah’s house. [Guidry] was on the side of the garage. He came out and got
into the front passenger’s side door. I saw that the garage door was opened
and that the light was off. I couldn’t see inside of the garage. I could see a
white car backed into the garage. The car might have had a red emblem on the
front. . . . [Guidry] told me that he came up to her by her car on the driver’s
side of her car and . . . she stepped away from him. He said that she told him,
Please, don’t kill me. He said that he shot her in the head and she fell down.
He said that she was making noise, so he shot her again in the head. He didn’t
tell me where in the head he shot her.
After we left Farah’s house, I drove out of the subdivision and back
west on FM 1960 toward my apartment. Shortly after, before or after I got
back to my apartment, I got a call from [Fratta]. I told him that his wife had
been killed. He told me that he would meet me at the gym at 9:00 p.m. After
[Guidry] and I got out of the car, I took the gun from the car. [Guidry] had left
it in the car. I picked up the gun and took it into my apartment. I took it into
my bedroom and took all of the shells out of it. I put the shells in the kitchen
garbage. After that I took the gun over to [Guidry]’s apartment and gave him
the gun. I told him that he should get rid of it. [Guidry] told me that he was
going to throw it in a lake or something.
After that I went to the President and First Lady in Humble. [Fratta]
never showed up. The next night I saw the news and saw why [Fratta] did not
show up. I saw that he was going somewhere with the police. The next
evening after [Fratta] got out of jail [Fratta] called me. He told me that the
police had confiscated the money he was going to pay [Guidry] with. After I
talked with [Fratta] I had to tell [Guidry] that he wasn’t going to get his money
for awhile.
As time went on [Guidry] got real mad about not getting paid. I told
him I would tell him where [Fratta] lived and where he worked out but he
never asked for the information. I tried to help [Guidry] get his money a few
times. [Fratta] kept putting me off. I wanted to get [Guidry] off my back.
[Guidry] and I never got any money from [Fratta].
I’ve been depressed ever since this happened. I didn’t sleep a lot of
nights because I felt bad about it. [Fratta] called me several times after it
happened to find out if my girlfriend, Mary Gipp, knew anything[.] . . . I was
afraid that [Fratta] might hurt Mary by getting her involved. I didn’t want
Mary to have anything to do with the whole situation.

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Tr. Vol. 19 at 733-41.
On May 17, 1996, the State of Texas indicted Prystash.2 The indictment charged
Prystash with “unlawfully, for remuneration and the promise of remuneration from ROBERT
ALAN FRATTA, to wit: money, intentionally and knowingly caus[ing] the death of Farah
Fratta . . . by shooting [her] with a deadly weapon, namely, a FIREARM.” Clerk’s Record
at 21.
The parties extensively litigated issues relating to Prystash’s confession in state court.
Prystash filed a pre-trial motion to suppress his confession claiming that the police neglected
to inform him of his rights, refused to honor his invocation of the rights to silence and legal
assistance, and coerced his confession. On June 4, 1996, the trial court held a suppression
hearing to consider Prystash’s objections to his written and oral confessions. The police
officers involved in securing his statements testified that they read Prystash his rights, did
not coerce his confession, and honored the invocation of his right to counsel until he initiated
the discussion that resulted in his written statement. Prystash did not testify in the
suppression hearing.
The trial court orally denied Prystash’s challenge to both the oral and written
statements. Tr. Vol. 3 at 224-26. The trial court later issued explicit findings of fact and
conclusions of law relating to the voluntariness of Prystash’s confession and his oral
statements to Sergeant Billingsley. Clerk’s Record at 382-91. The trial court expressly
found that police officers sufficiently informed Prystash of his rights, that Prystash
voluntarily gave up those rights, that Prystash initiated the conversations leading to his oral
statement, and that “each of the statements were voluntarily made, not induced by force,
threats or coercion, nor were any promises made nor was anything done to induce the
defendant or cause the defendant to make anything but a knowing and intelligent waiver of
his rights and a free and voluntary decision to confess.” Clerk’s Record at 390-91.

2

Gerald Bourque and Robert Morrow represented Fratta at trial. This Court will
generally refer to Fratta’s trial attorneys collectively as “trial counsel.”
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B.

The Trial of Prystash’s Guilt

Trial began in July 1996.

Prystash’s own words were the lynchpin of the

prosecution’s case against him. The prosecution put Prystash’s written statement before
jurors, as well as his incriminating oral statements to Sergeant Billingsley. Still, Prystash’s
confession was only one part of a detailed case proving Prystash’s role in the murder-forhire.
The prosecution relied heavily on Gipp’s confirmation of the murder plot, both
through her testimony about what Prystash told her and her observations of him during that
time period. Gipp’s testimony verified much of Prystash’s confession. About six months
before the murder, Fratta gave Prystash a gun. Tr. Vol. 17 at 186. A couple of months
before the murder, Prystash told Gipp that Fratta “had asked him if he wanted to kill
[Farah].” Id. at 177. The two men met often, and Prystash told Gipp that they were planning
“[t]o have Farah killed.” Id. at 178. They spoke every day in the week before Farah’s
murder. Id. at 174.
A few days before the killing, Prystash told Gipp that the murder was to happen on
November 9 because Fratta “was going to church” with the children. Id. at 179. Prystash
said that their neighbor Guidry would be the shooter and that they would kill Farah at her
house. Id. at 179, 185. Prystash reported that “Guidry was going to get a thousand dollars,
and [he, Prystash] was going to get a Jeep.” Id. at 179-80.
After Gipp arrived at home on November 9, Prystash and Guidry left together, both
dressed in black clothing. Prystash took Gipp’s telephone with him when he left. Id. at 193.
Prystash and Guidry returned two hours later. Id. at 196. Prystash walked into the bedroom
and unloaded the shells from a gun. Id. at 197. When she asked, Prystash told Gipp that
Farah had been killed. Id. at 201.
Prystash said that he dropped Guidry off at the Fratta home. Guidry was waiting in
the garage when Farah arrived. Id. at 217. Prystash said that “Farah was shot twice; and that
the first time in the head and when she flew back, then [Guidry] shot her again.” Id. at 217.

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Prystash then picked Guidry up in his “Silver Nissan.” Id. at 218.3
A short while later, Prystash left to meet Fratta and pick up Guidry’s money. Id. at
203. When Prystash had left, Gipp “took the bullets out of the garbage and put them in a .
. . little sandwich baggie and then [she] went into the bedroom and [she] wrote down the
information from the gun . . . and the serial number.” Id. at 204.
Later that night, Gipp and Prystash saw a newscast describing how the police thought
the murderer drove “a silver compact car and that the headlight was out.” Id. at 209. Prystash
“went and purchased a headlight, replaced it.” Id. at 209. Later, Prystash took the car “and
he had it crushed.” Id. at 210.
Gipp hid the bullets. Id. at 206-07. She later threw them away. Id. at 208. Gipp told
Prystash to get the gun out of their apartment. Id. at 208. Prystash “said he had given it to
Guidry and that Guidry threw it in the water.” Id. at 208.
Police testimony about Guidry’s confession also came before the jury, but through the
defense not the prosecution. During the cross-examination of a police officer, trial counsel
introduced into evidence the pocket warrants for Prystash’s arrest, which included the
summary of Guidry’s confession used to establish probable cause. Tr. Vol. 18 at 469-70.
In the prosecution’s later questioning, Sergeant Billingsley testified that Guidry was
“cooperative” and gave “a written confession as to his involvement in the murder of Farah
Fratta.” Id. at 492. The prosecution asked him to read the information taken from Guidry’s
confession which provided a broad outline of the murder-for-hire. Id. at 506-09.
Aside from Prystash’s police statement, Gipp’s testimony, and the summary of
Guidry’s confession, other evidence also confirmed key elements of the plot to kill Farah.

3

Prystash argues in his petition that “[t]here is no evidence in the record that Prystash
ever owned, drove, or otherwise had access to a gray two-door Nissan matching the
description provided by witnesses to the murder” [Doc. # 52, pp. 13-14]. Gipp,
however, testified at trial that Prystash drove a “silver four door Nissan” with a
burned-out headlight. Tr. Vol. 17 at 190-91. Prystash “had [the car] crushed” after
the murder. Tr. Vol. 17 at 210.
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Phone records confirmed that Fratta had contacted Prystash around the time of the murder.
A firearms examiner testified that the bullets recovered from Farah’s body came from a
weapon of the same manufacturer as the revolver the police recovered from Guidry. A check
of federal firearms records showed that Robert Fratta had purchased that handgun in 1982.
Farah’s father described the gun as one owned by Fratta.
The defense rested in the guilt/innocence phase without calling any witnesses or
presenting any evidence. Trial counsel renewed the attack on the voluntariness of Prystash’s
confession before the jury. Trial counsel obtained an instruction pursuant to TEX. CODE
CRIM. Pro. art. 38.23, for the jury to disregard Prystash’s confession if it believed or had a
reasonable doubt that the police violated his constitutional rights in taking his statements.
Tr. Vol. 20 at 809-11.
The jury deliberated for only seventeen minutes before finding Prystash guilty of
capital murder.
C.

The Sentencing Hearing

After a Texas jury has convicted a capital defendant, state law mandates determination
of the sentence through answers to special issue questions. In this case, the trial court’s
instructions required the jury to decide (1) whether Prystash would be a future societal
danger and (2) whether sufficient circumstances mitigated against the imposition of a death
sentence. Clerk’s Record at 441-42.
Both of the parties presented extensive evidence in the sentencing phase. The State’s
numerous witnesses described Prystash’s lengthy and violent criminal record. In 1976,
Prystash was charged with three counts of burglary and three counts of grand theft after the
police recovered approximately twenty thousand dollars of stolen equipment and property
from Prystash’s home in Miami, Florida. Tr. Vol. 21 at 913-18. Prystash confessed to the
crimes and also admitted to committing other burglaries. A short time later, the police
arrested Prystash for a department store burglary. Prystash pleaded guilty to the crimes and
received two years’ probation. Tr. Vol. 21 at 953-60. Prystash subsequently requested that

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his probation be transferred to Ohio. A warrant was issued for his arrest when he did not
report his Ohio address or work location.
In 1984, Prystash received deferred adjudication for the offense of unauthorized use
of a motor vehicle. In 1988, he was adjudicated guilty for carrying a weapon. In 1988, the
police arrested Prystash for stealing a microwave from a hotel where he worked as a security
guard. Id. at 1071-77. In 1991, he was arrested for attempted murder after beating his
brother-in-law at a convenience store.
The prosecution also called Prystash’s former wives to testify concerning his
character. One ex-wife testified that in their marriage Prystash was angry, had mood swings,
showed little conscience, and never exhibited remorse. Id. at 994. After their divorce,
Prystash only saw his daughter a couple of times. Id. at 993. Another ex-wife testified that
Prystash was possessive, could not keep a job, was self-centered, has no conscience, and used
other people. Id. at 1022-24.
The prosecution’s punishment case also emphasized the crime for which the jury
convicted Prystash, including events surrounding the murder-for-hire that did not come
before the jury in the guilt/innocence phase. For instance, jurors heard that, some time prior
to the murder, Prystash entered Farah’s house wearing a ski mask, went to her bedroom, and
scared her while she was in bed with her children.
The defense called five witnesses in the punishment phase. Trial counsel’s strategy
employed three themes: (1) question some of the evidence against Prystash; (2) present jurors
with an understanding of his background; and (3) show his remorse, religiosity, and ability
to be free from violence while incarcerated.
The defense first called a police officer who testified that it was possible that it had
been Fratta, not Prystash, who had broken into Farah’s home and scared her. Tr. 22 at
1181-82. Next, counsel called two family members who provided insight into Prystash’s
upbringing. Joanne Hambrick, Prystash’s aunt whom his family lived near in Ohio until he
was about six years old, described Prystash’s family. Prystash’s father was a workaholic.

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His mother drank alcohol excessively and was impatient, abusive, and neglectful in her
parenting. Id. at 1183-92. Prystash’s mother died of cancer when he was eighteen. Id. at
1186-88. Another aunt, Irene Prystash, described how his mother was not a good parent.
She described Prystash’s mother as cruel, but she never saw his mother use physical
violence. Id. at 1194-97.
The defense tried to show that incarceration would keep Prystash from being a future
threat to society. The defense called Dr. Walter Quijano, a psychologist, who reviewed
Prystash’s jail records but never met with him. Dr. Quijano testified about the details of the
TDCJ prison classification system. Id. at 1249-51. Dr. Quijano opined that the prison
system had sufficient resources to control inmates’ dangerousness. Id. at 1255.
A volunteer chaplain in Harris County Jail testified that Prystash attended church
services in jail, seemed honest and sincere, and did not appear to be a threat. Id. at
1199-1203. Another volunteer who taught Bible study in the Harris County Jail testified that
Prystash attended his group faithfully for over a year. He described Prystash as quiet,
attentive, and interested in learning the Bible. Id. at 1212-18. He testified that Prystash
seemed sincere, was not a danger to others, and had helped others improve their lives. Id. at
1221-24.
The jury answered Texas’s special issue questions in a manner requiring the
imposition of a death sentence.
D.

Appellate and Post-Conviction Review

The Texas Court of Criminal Appeals (“TCCA”) issued a published opinion on
September 15, 1999, affirming Prystash’s conviction and sentence. Prystash v. State, 3
S.W.3d 522 (Tex. Crim. App. 1999). Prystash filed an application for state habeas relief in
1998. Based on the lower court’s findings and conclusions, TCCA denied Prystash’s petition
on April 28, 2004. Ex parte Prystash, No. 58,537-01.
In 2004, this Court appointed counsel to prepare and litigate a federal habeas petition
on Prystash’s behalf. Respondent filed an answer and moved for summary judgment on all

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the claims raised by Prystash’s petition. When Prystash first filed his petition, however, he
had not exhausted some claims in a state court.4 Because federal law generally limits habeas
relief to claims advanced in state court, 28 U.S.C. § 2254(b)(1), the Court stayed this action
to allow Prystash’s return to state court [Doc. # 28].
Prystash sought leave in the TCCA to file a successive state habeas application. The
TCCA only allowed successive proceedings on part of one claim. Ex parte Prystash, No.
WR-58,537-02, 2008 WL 5245551, at *1 (Tex. Crim. App. Dec. 17, 2008).5 The lower court
eventually issued findings of fact and conclusions of law recommending the denial of habeas
relief. The TCCA denied relief after adopting most of the lower court’s findings and
conclusions. Ex parte Prystash, No. WR-58,537-02, 2013 WL 1232893 (Tex. Crim. App.
Mar. 27, 2013)
Prystash filed an amended federal petition raising the following grounds for relief:
1.

The prosecution suppressed evidence under Brady v. Maryland, 373
U.S. 83 (1963), and presented false testimony under Giglio v. United
States, 405 U.S. 150 (1972), with respect to the voluntariness of a codefendant’s testimony and the existence of an FBI complaint relating
to Prystash’s confession.

2.

The prosecution improperly exerted peremptory challenges against
members of a cognizable racial group in violation of Batson v.

4

Specifically, Prystash had not given the state courts an opportunity to rule on his
arguments that: (1) the prosecution suppressed evidence and presented false testimony
with respect to the voluntariness of a co-defendant’s testimony and the existence of
a federal complaint relating to Prystash’s confession; (2) the prosecution improperly
exerted peremptory challenges against members of a cognizable racial group in
violation of Batson v. Kentucky, 391 U.S. 510 (1968); (3) Prystash’s trial, appellate,
and state habeas attorneys provided constitutionally ineffective assistance; (4) the trial
court improperly removed several prospective jurors for cause.

5

The TCCA specifically found that only “part of . . . [Prystash’s] claim that the State
suppressed evidence with respect to the voluntariness of his co-defendant’s confession
satisfies the requirements of Texas Code of Criminal Procedure Article 11.071, Sec.
5(a).”
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Kentucky, 391 U.S. 510 (1968).
3.

The trial court improperly limited the testimony of a defense witness in
the punishment phase.

4.

The trial court violated the Constitution by admitting in evidence
allegedly prejudicial and inflammatory crime scene photographs at trial.

5.

Prystash’s trial, appellate, and state habeas attorneys provided
constitutionally ineffective assistance.

6.

The State improperly removed several prospective jurors with
peremptory strikes because of their views on capital punishment.

7.

The trial court improperly limited the presentation of evidence relating
to the prosecution’s plea offer.

8.

The trial court failed to submit the “anti-parties” special issue in the
punishment phase.

9.

Texas’s “12-10” Rule violates the United States Constitution.

10.

Texas violates the Constitution by not placing a burden of proof on the
prosecution with regard to the mitigation special issue.

11.

The trial court unconstitutionally failed to limit the jury’s consideration
of unadjudicated prior offenses.

12.

The trial court improperly instructed the jury concerning the mitigation
special issue.

[Doc. # 52].6 Respondent William Stephens has moved for summary judgment [Doc. # 57].
Respondent argues that state procedural law bars federal consideration of the claims Prystash
first raised in his federal petition, with the exception of the claim on which the state court
authorized review. Respondent otherwise argues that Prystash’s claims fail to comply with
AEDPA requirements for relief or are meritless.
6

The Court has numbered the claims in Prystash’s federal petition consistent with the
manner laid out in Respondent’s motion for summary judgment.
14

STANDARD OF REVIEW
The writ of habeas corpus provides an important, but narrow, examination of an
inmate’s conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011);
Barefoot v. Estelle, 463 U.S. 880, 887 (1983). “Society’s resources have been concentrated
at [a criminal trial] in order to decide, within the limits of human fallibility, the question of
guilt or innocence of one of its citizens.” Wainwright v. Sykes, 433 U.S. 72, 90 (1977); see
also McFarland v. Scott, 512 U.S. 849, 859 (1994) (stating that a “criminal trial is the ‘main
event’ at which a defendant’s rights are to be determined”). The States, therefore, “possess
primary authority for defining and enforcing the criminal law. In criminal trials they also
hold the initial responsibility for vindicating constitutional rights.” Engle v. Isaac, 456 U.S.
107, 128 (1982). Federal habeas law does not merely acknowledge a State’s inherent
authority as a dual sovereign to adjudicate federal constitutional claims; federal law
“recognizes a foundational principle of our federal system: State courts are adequate forums
for the vindication of federal rights.” Burt v. Titlow, ___ U.S. ___, 134 S. Ct. 10, 15 (2013);
see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing AEDPA’s“presumption
that state courts know and follow the law”). Given this required deference to the state-court
system, several principles circumscribe both the nature of federal habeas review and the
availability of federal habeas relief.
As an initial matter, AEDPA “unambiguously provides that a federal court may issue
the writ to a state prisoner ‘only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 1, 16
(2010) (quoting 28 U.S.C. § 2254(a)). Accordingly, “federal habeas corpus relief does not
lie for errors of state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (quotation
omitted); see also Corcoran, 562 U.S. at 16; Estelle v. McGuire, 502 U.S. 62, 67 (1991).
“[O]nly noncompliance with federal law . . . renders a State’s criminal judgment susceptible
to collateral attack in the federal courts.” Corcoran, 562 U.S. at 5.
How an inmate has litigated his claims determines the course of federal habeas

15

adjudication.

Under the exhaustion doctrine, AEDPA precludes federal relief on

constitutional challenges that an inmate has not first raised in state court. See 28 U.S.C.
§ 2254(b)(1). As a corollary to exhaustion, the procedural-bar doctrine requires inmates to
litigate claims in compliance with state procedural law. See Dretke v. Haley, 541 U.S. 386,
392 (2004); Lambrix v. Singletary, 520 U.S. 518, 523 (1997); Coleman v. Thompson, 501
U.S. 722, 729 (1991). A federal court may only review an inmate’s unexhausted or
procedurally barred claims if he shows: (1) cause and actual prejudice or (2) that “a
constitutional violation has ‘probably resulted’ in the conviction of one who is ‘actually
innocent[.]’” Haley, 541 U.S. at 393 (quoting Murray v. Carrier, 477 U.S. 478, 496
(1986)).7
If the inmate has presented his federal constitutional claims to the state courts in a
procedurally proper manner, and the state courts have adjudicated their merits, AEDPA
provides for a deferential federal review. “[A] habeas petitioner has the burden under
AEDPA to prove that he is entitled to relief.” Montoya v. Johnson, 226 F.3d 399, 404 (5th
Cir. 2000); see also DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir. 2002). “[T]ime and again,”
the Supreme Court “has instructed that AEDPA, by setting forth necessary predicates before
state-court judgments may be set aside, ‘erects a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state court.’” White v. Wheeler, ___
U.S. ___, 136 S. Ct. 456, 460 (2015) (quoting Titlow, 134 S. Ct. at 16). Under AEDPA’s
rigorous showing, an inmate may only secure relief after showing that the state court’s
rejection of his claim was either “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States,”
or was “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)(1),(2).
Inmates arguing legal error in state court decisions must comply with § 2254(d)(1)’s
7

Respondent contends that a procedural bar forecloses federal consideration of claims
two, five, six, and nine. As the Court will discuss later, procedural defects also
hamper federal review of other claims raised by Prystash.
16

“contrary to” and “unreasonable application” clauses. See Bell v. Cone, 535 U.S. 685, 694
(2002). A petitioner does not merit relief by merely showing legal error in the state court’s
decision. See White v. Woodall, ___ U.S. ___, 134 S. Ct. 1697, 1702 (2014) (stating being
“merely wrong” or in “clear error” will not suffice federal relief under AEDPA). In contrast
to “ordinary error correction through appeal,” AEDPA review exist only to “guard against
extreme malfunctions in the state criminal justice systems . . . .” Woods v. Donald, ___ U.S.
___, 135 S. Ct. 1372, 1376 (2015) (quotation omitted). “[F]ocus[ing] on what a state court
knew and did,” Cullen v. Pinholster, 563 U.S. 170, 182 (2011), AEDPA requires inmates
to “‘show that the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’” Woodall, 134 S. Ct. at 1702
(quoting Richter, 562 U.S. at 103); Berghuis v. Thompkins, 560 U.S. 370, 380 (2010);
Williams v. Taylor, 529 U.S. 362, 413 (2000). “If this standard is difficult to meet, that is
because it was meant to be.” Richter, 562 U.S. at 102.
A petitioner challenging the factual basis for a state decision must show that it was
an “unreasonable determination of the facts in light of the evidence . . . .” 28 U.S.C.
§ 2254(d)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “[A] state-court
factual determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
(2010). A federal habeas court must also presume the underlying factual determinations of
the state court to be correct, unless the inmate “rebut[s] the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 341;
Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004) (“As a federal habeas court, we are
bound by the state habeas court’s factual findings, both implicit and explicit.”).
An inmate’s compliance with 28 U.S.C. § 2254(d) does not guarantee habeas relief.
See Horn v. Banks, 536 U.S. 266, 272 (2002) (observing that no Supreme Court case “ha[s]
suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the
AEDPA standard[.]”); Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003) (finding that 28
17

U.S.C. § 2254(d) “does not require federal habeas courts to grant relief reflexively”). A
habeas petitioner meeting his AEDPA burden must still comply with weighty jurisprudential
tenets, such as the harmless error doctrine and the non-retroactivity principle, that bridle
federal habeas relief. See Thacker v. Dretke, 396 F.3d 607, 612 n.2 (5th Cir. 2005). Thus,
any error cannot require habeas relief unless it “ha[d] a ‘substantial and injurious effect or
influence in determining the jury’s verdict,’” Robertson, 324 F.3d at 304 (quoting Brecht v.
Abrahamson, 507 U.S. 619, 629 (1993)), or would not require the creation of new
constitutional law, see Banks, 536 U.S. at 272 (relying on Teague v. Lane, 489 U.S. 288
(1989)).
With those standards in mind, the Court turns to the issues presented in Prystash’s
federal petition.
ANALYSIS
I.

SUPPRESSED EVIDENCE AND FALSE EVIDENCE/TESTIMONY (CLAIM
ONE)
In the two decades that have passed since Prystash’s conviction, federal courts have

vacated his co-conspirators’ convictions because the police violated Guidry’s rights when
taking his statement. Prystash argues that the same constitutional flaws in Guidry’s
confession require relief from his own conviction. Prystash’s first federal habeas claim
contains three subcomponents: (1) the prosecution suppressed evidence relating to Guidry’s
confession in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) the use of Guidry’s
confession at Prystash’s trial, and the references to it by the State and its witnesses, amounted
to false evidence and testimony under Giglio v. United States, 405 U.S. 150 (1972)8 ; and (3)
8

Prystash generally refers to these arguments as Brady/Giglio violations, see, e.g., Doc.
# 52, p. 36, and does not distinguish between the suppression and false evidence or
testimony components. The Supreme Court has not clarified the distinction between
a Brady and Giglio claim. See Weary v. Cain, ___ U.S. ___, ___ S. Ct. ___, 2016 WL
854158, at *3 (Mar. 7, 2016); Banks v. Dretke, 540 U.S. 668, 690 n.11 (2004). The
Fifth Circuit sometimes uses the two case names together, but also often refers to
suppression issues as Brady claims and issues alleging presentation of false
(continued...)
18

the prosecution violated both Brady and Giglio in relation to a complaint Prystash had filed
with the FBI.
A.

Procedural Posture of Brady/Giglio Claims and Appropriate Scope of
Federal Review

Before turning to the substance of Prystash’s first ground for relief, the Court must
make clear the procedural status of each subclaim and the relevant law that applies. Prystash
did not raise this, or any related claim, until he filed a federal petition. He then sought leave
to file a successive habeas application on that claim, among others. Respondent states that
during those proceedings “[o]nly the first claim, which Prystash terms the ‘voluntary
confession claim’ was litigated by the state courts” [Doc. # 57, p. 26 n.2]. The TCCA’s order
authorizing successive proceedings only allowed Prystash to proceed on “part of allegation
one.” Ex parte Prystash, No. WR-58,537-02, 2008 WL 5245551, at *1 (Tex. Crim. App.
Dec. 17, 2008). The parties’ federal briefing has not discussed which “part of allegation one”
proceeded to litigation. The TCCA narrowly limited the claims that Prystash could litigate.
He was permitted to address only “the claim that the State suppressed evidence with respect
to the voluntariness of his co-defendant’s confession.” Id. That litigation allowed by the
TCCA determines the course and nature of federal habeas review, including which issues
require AEDPA deference and which may be procedurally barred.
The parties agree that the TCCA authorized review on the Brady argument relating
to Guidry’s police statement. The Court will apply AEDPA deference to the relevant
findings of fact and conclusions of law entered by the lower court and subsequently adopted
by the TCCA.
8

(...continued)
evidence/testimony as Giglio claims. See Morrow v. Dretke, 367 F.3d 309, 315 (5th
Cir. 2004) (treating the two categories as separate claims). The Fifth Circuit also
refers to claims that the Government suppressed impeachment evidence as Giglio
claims. See United States v. Lopez-Perez, 514 F. App’x 463, 464 (5th Cir. 2013).
This Court will generally refer to Prystash’s false evidence/testimony argument as a
Giglio claim to be consistent with the language in the successive state court
proceedings.
19

The parties’ briefing assumes that the TCCA authorized review of the Giglio issue
relating to Guidry’s confession. The TCCA’s order only allowed Prystash to file a
successive state habeas application relating to his “claim that the State suppressed evidence,”
not the separate and distinct allegation that it presented false testimony under Giglio.
Prystash, nonetheless, briefed the Giglio arguments in his successive state habeas application.
S.S.H.R. at 24, 317. The State in turn responded to those arguments, including in its
proposed findings of fact and conclusions of law. S.S.H.R. at 185-89. The lower habeas
court made factual findings and entered conclusions of law relating to the Giglio issue.
S.S.H.R. at 543, 550-53.
The TCCA, however, refused to adopt most of the factual findings and any of the legal
conclusions relating to the Giglio issue, possibly signaling that it had not authorized review
of that portion of the claim. Ex parte Prystash, No. WR-58,537-02, 2013 WL 1232893 (Tex.
Crim. App. Mar. 27, 2013). Notwithstanding, the TCCA did not excise all references to
Giglio from the lower court’s opinion. The TCCA’s order adopted finding of fact number
117:
The Court finds that [Prystash] does not meet the [requirements] of Giglio; he
does not show that the State presented false testimony at [Prystash’s] trial that
was material in that there was a reasonable likelihood that it affected the jury’s
judgment in finding [Prystash] guilty.
S.H.H.R. at 551.9
9

In some findings and conclusions that the TCCA did not adopt, the lower court found
that Prystash had “not show[n] that the State used testimony knowing it was false . .
. .” S.S.H.R. at 551. In 2009, the TCCA held that the State’s unknowing use of false
testimony violates due process. Ex parte Chabot, 300 S.W.3d 768, 771 (Tex. Crim.
App. 2009); see also Ex parte De La Cruz, 466 S.W.3d 855, 865 (Tex. Crim. App.
2015). The Supreme Court, however, has never held that a Giglio violation occurs
from the unknowing use of false testimony. See Kinsel v. Cain, 647 F.3d 265, 271
(5th Cir. 2011) (recognizing that the Supreme Court has never clearly established
whether a due process violation occurs “when perjured testimony is provided by a
government witness even without the government’s knowledge”); see also Cash v.
Maxwell, ___ U.S. ___, 132 S. Ct. 611, 615 (2012) (Scalia, J., dissenting to refusal
(continued...)
20

Given the state court’s inconsistent treatment of the Giglio claim, some question exists
whether a procedural bar forecloses federal review of its merits. Respondent, however, has
neither invoked the procedural bar nor waived its application to the Giglio claim. For the
sake of judicial economy, the Court will analyze the merits of the Giglio claim under de novo
review. See Roberts v. Thaler, 681 F.3d 597, 605 (5th Cir. 2012) (“While our normal
procedure is to consider issues of procedural default first, we may nonetheless opt to examine
the merits first . . . .”). In doing so, the Court will not apply AEDPA deference to the
findings and conclusions of the state trial court specifically rejected by the TCCA on
successive habeas review. AEDPA deference does apply, however, to finding 117 that the
appellate court left intact, as well as to any findings relating to the Brady claim that share a
common factual relationship.
Notably, however, for the issues adjudicated in state court, Prystash must show that
the state adjudication was contrary to, or an unreasonable application of, federal law. 28
U.S.C. § 2254(d)(1). The relevant federal law is well-established. Under Brady, the State
may not suppress evidence favorable to the accused when that evidence is material either to
guilt or punishment. 373 U.S. at 87. In Giglio, the Supreme Court “made clear that
deliberate deception of a court and jurors by the presentation of known false evidence is
incompatible with ‘rudimentary demands of justice.’” Giglio, 405 U.S. at 153 (quoting
Mooney v. Holohan, 294 U.S. 103, 112 (1935)).
Further, the TCCA did not authorize successive habeas review of the Brady/Giglio
argument relating to the existence of the FBI complaint.
9

Ex parte Prystash, No.

(...continued)
to grant certiorari) (“[T]he Ninth Circuit also stretched the Constitution, holding that
the use of [ ] false testimony violated the Fourteenth Amendment’s Due Process
Clause, whether or not the prosecution knew of its falsity. We have never held that,
and are unlikely ever to do so. All we have held is that a conviction obtained through
use of false evidence, known to be such by representatives of the State, must fall
under the Fourteenth Amendment.”). The parties have not discussed how the
differences between federal and state law influenced the issues adjudicated by the
Court of Criminal Appeals.
21

WR-58,537-02, 2008 WL 5245551, at *1 (Tex. Crim. App. Dec. 17, 2008). Prystash,
nonetheless, extensively discussed the FBI complaint in his successive state habeas
application and in his proposed findings and conclusions. S.S.H.R. at 337. The State,
however, did not respond to that argument and the state court’s findings and conclusions did
not adjudicate its merits. The TCCA’s order refusing to authorize successive proceedings
on the FBI issue should procedurally bar federal review.
Respondent, however, does not argue that a state procedural bar precludes review of
the FBI-complaint sub-claim. This Court accordingly will consider the merits of Prystash’s
argument that the prosecution withheld information about, and presented false testimony
relating to, his FBI complaint. No state adjudication on the merits exists and thus AEDPA
deference cannot be applied to this sub-claim. Even under a de novo review, the argument
lacks merit.
B.

Factual Background Regarding Guidry’s Confession and Its Impact on
Prystash’s Case

A more-ample discussion of the circumstances surrounding Guidry’s confession and
its impact in each co-conspirators’ trial frames judicial review of Prystash’s first ground for
relief. Strong circumstantial evidence implicated Fratta, Prystash, and Guidry in Farah’s
murder. The three prosecutions for Farah’s murder relied on common themes. From the
beginning of Guidry’s case, however, questions arose about the voluntariness of his
confession. Guidry’s confession played some part in all three trials. During federal habeas
review of Guidry’s confession, it was shown that the State of Texas secured Guidry’s
confession by violating his constitutional rights. One judge succinctly described the police
deception resulting in Guidry’s confession:
On 1 March 1995, Guidry was arrested for bank robbery; in his possession was
the gun used to murder Farah Fratta on 9 November 1994. On 7 March 1995,
while Guidry was being held on the bank-robbery charge, Detectives Roberts
and Hoffman questioned him about Farah Fratta’s murder, resulting in his
confession. The testimony at the pre-trial hearing on Guidry’s motion to
suppress the confession provided sharply contrasting versions of the
interrogation leading to the confession. Guidry claimed: his robbery-charge
22

attorney had instructed him not to discuss anything with anyone; therefore,
when interrogated about Farah Fratta’s murder, Guidry requested his attorney;
after his second request, Detectives Roberts and Hoffman left the room; on
returning, they advised Guidry they had contacted his attorney, who had given
Guidry permission to answer their questions; and, in reliance on such alleged
permission, Guidry confessed.
Guidry v. Dretke, 429 F.3d 154, 155 (5th Cir. 2005) (Barksdale, J., comments regarding
denial of reh’g en banc). After an evidentiary hearing, the Honorable Vanessa Gilmore
confirmed that the police secured Guidry’s confession through deceit in violation of the Fifth
Amendment. While nothing undermined the correctness of Guidry’s account of the crime,
the Constitution could not tolerate the circumstances that induced the confession.
The Fifth Circuit noted that, in Fratta’s trial, other than Guidry’s confession, “[t]he
admissible evidence . . . suggested that Fratta, Prystash, and Guidry were, to varying degrees,
somehow involved in Farah’s death,” Fratta v. Quarterman, 536 F.3d 485, 508 (5th Cir.
2008), but did not prove murder for remuneration. The Fifth Circuit summarized the
admissible evidence common to the trials as follows:
Farah’s neighbors testified that they saw a black man near Farah’s garage
shortly after the shooting (Guidry is black), and that this man was picked up
by a car with a burned-out headlight that matched the description of Prystash’s
car. Gipp testified that: Fratta and Prystash’s relationship grew closer in the
time leading up to the murder; on the day of the murder Guidry was dressed
in black and waiting for Prystash on the steps leading to her apartment;
Prystash came home and left shortly thereafter; Prystash returned with Guidry
around 8:30 that night; and Prystash entered Gipp’s room and unloaded two
shells from a revolver. The serial number recorded from this revolver by Gipp
matched the serial number of the gun recovered from Guidry after the bank
robbery. Federal records established that Fratta had purchased the revolver,
and a firearms examiner determined that it had fired at least one of the bullets
recovered from the scene of the crime. Phone records tended to show that
Fratta and Prystash were in contact on the day of the murder, and numerous
witnesses described how Fratta talked openly about killing or having someone
kill Farah and asked several people if they or anybody they knew would kill
Farah. Law enforcement officials also found $1,050 in cash in Fratta’s car on
the night of the murder.
Id. at 508-09. However strong the evidence showing the three men’s complicity in the
23

murder, the State had to prove more than their mere involvement in a killing. “[T]he State’s
burden was to produce affirmative proof that a murder-for-hire had occurred . . . .” Id. at
509. Absent Guidry’s confession, little evidence in Guidry and Fratta’s cases supported the
specific charge in the indictment, that the men committed a murder-for-hire. More
particularly, in Fratta and Guidry’s cases, the only other information showing remuneration
was hearsay testimony about Prystash’s statements to others. On federal review of both
Fratta and Guidry’s trials,
[t]he evidence offered by the State in support of these allegations, however,
consisted entirely of hearsay statements attributed to Prystash and Guidry and
introduced to the jury through Sgt. Billingsley and Gipp. Although $1,050 was
found in Fratta’s car on the night of the murder, there was no admissible
evidence tying this money to Guidry. Nor was there evidence showing that
Fratta’s Jeep had been promised to Prystash. Rather, it was the custodial
confessions and Prystash’s statements to Gipp that the State relied on to meet
its “heavy burden” of showing that Farah’s murder was performed for
pecuniary gain.
Id. In both Fratta and Guidry’s federal habeas action, the federal courts found that testimony
about Prystash’s statements was inadmissible hearsay admitted in violation of the
Confrontation Clause.
Eventually, federal courts granted habeas petitions for both Guidry and Fratta
because, absent Guidry’s illegal confession operating in conjunction with impermissible
hearsay testimony, the evidence suggested their involvement in the murder, but did not show
that the men conspired to commit the murder for remuneration. The State of Texas has since
retried both men without the taint of the inadmissible evidence. Juries again have convicted
both men of capital murder. Both men are on death row.10 Currently, both men are seeking
federal habeas corpus relief from their capital convictions and death sentences.
1.

Differences Among the Co-Conspirators’ Trials

Prystash argues that “[f]oremost, the prosecution used Guidry’s fraudulently-obtained

10

Prystash is mistaken that “Guidry’s conviction was, of course, vacated; and the State
has not taken any steps to retry Guidry” [Doc. # 52, p. 2].
24

confession by prompting Sergeant Billingsley to read to the jury Detective Robert’s false
affidavit, which simply recited the substance of Guidry’s illegally obtained confession and
perjuriously stating the confession was voluntarily given” [Doc. # 52, p. 35]. Prystash
contends that “[t]he jury thus heard unimpeached – yet certainly impeachable – evidence and
testimony that Guidry had, supposedly, freely and voluntarily confessed, after Miranda
warnings were properly given, to his own, as well as Prystash's, involvement in the crime”
[Doc. # 52, p. 35]. Prystash’s claim is essentially that the prosecution violated the
Constitution by presenting the jury with the substance of Guidry’s involuntary confession
without disclosing the wrongful circumstances of how it was obtained.
Prystash’s case comes before this Court in a posture different from that the federal
courts faced in his co-conspirators’ challenges. In those cases, Guidry’s confession was the
primary source of information regarding the remuneration element of capital murder.11 In
both the co-conspirators’ cases, the prosecution bolstered Guidry’s confession to murder-forremuneration with hearsay statements. In Fratta’s case, the State relied on oral hearsay
statements Prystash made to Sergeant Billingsley and Mary Gipp’s recitation of hearsay
statements made by Prystash. In Guidry’s case, the prosecution relied on Gipp’s hearsay
testimony. But, Prystash’s jury heard Prystash’s own confession to involvement in the
murder-for-hire scheme. The entirety of Prystash’s lengthy written statement to the police
came before jurors. Tr. Vol. 19 at 731-42. Sergeant Billingsly also testified about the oral
statements Prystash made to him after Prystash’s March 8 arrest. Tr. Vol. 18 at 525-27, 53536. Prystash’s own words overwhelmingly provide a basis for the jury to find him guilty of
capital murder for remuneration beyond a reasonable doubt.
While Prystash has repeatedly cast aspersions on the police officers’ efforts to secure
statements from him, Prystash understandably now does not raise a constitutional challenge
to his own confession. The state trial court examined the voluntariness of Prystash’s written
11

In Guidry’s case, the prosecution presented his full confession. In Fratta’s trial,
Sergeant Billingsley related portions of Guidry’s confession, without the full
statement coming into evidence.
25

statement in a motion to suppress and allowed it to come before the jury. Prystash did not
ask the state appellate or habeas courts to reconsider the evidence concerning the
voluntariness of his confession. On successive habeas review, the state court emphasized
that his “written confession was given after he knowingly, intelligently, and freely waived
his Miranda rights: rights that were repeatedly given to him.” S.S.H.R. at 544.
2.

Use of Guidry’s Confession in Prystash’s Case

Given the fundamental differences among the three cases, Prystash brings a unique
constitutional challenge based on the illegality of how Guidry’s confession was obtained.
Prystash’s federal habeas action relies on the legal defects in Guidry’s confession to argue
that the prosecution suppressed evidence and presented false evidence or testimony.
This creative argument is unsupported by the record. At trial, highly incriminating
evidence showed Prystash’s involvement in the murder. The defense knew that the State
would put Prystash’s confession before the jury, along with independent evidence and
testimony corroborating that account from Gipp and other witnesses. Guidry’s confession
only became part of the case against Prystash, however, when trial counsel introduced it into
evidence. Prystash’s confession put trial counsel in “a very difficult situation that called for
certain trial tactics . . . in an effort to save a man from himself and in spite of him.” S.H.R.
at 202. Circumstances drove the defense to adopt two strategies: (1) convince the jury to
disregard Prystash’s statement by arguing that unconstitutional police action forced him to
confess and (2) minimize Prystash’s role in the case by emphasizing that Guidry was the
actual shooter.

S.H.R. at 202.

With those goals, during Detective Robert’s cross-

examination, trial counsel, not the State, introduced into evidence State’s Exhibits 96 and 97,
Prystash’s two arrest warrants, including the affidavits. Tr. Vol. 18 at 469-70; see S.S.H.R.
at 548-49.12 On habeas review, trial counsel explained that, for strategic reasons, namely,

12

During the first round of state habeas review, the courts concluded that “[t]rial
counsel are not ineffective for pursuing the reasonable trial strategy of attempting to
impeach the police officers’ testimony concerning the arrest of [Prystash] by
(continued...)
26

to undermine the officers’ credibility regarding the voluntariness of Prystash’s confessions,
counsel introduced the affidavits into evidence. Still, “Roberts did not testify about the
contents of the underlying affidavits.” S.S.H.R. at 549.
Later in trial, during Sergeant Billingsley’s testimony, the State also introduced the
warrants and associated affidavits (labeling them State’s Exhibits 96A and 97A). Tr. Vol.
18 at 534. During the prosecution’s direct examination, Sergeant Billingsley read to the jury
the basis for securing that warrant, including the information taken from Guidry’s confession.
Tr. Vol. 18 at 506-09; see S.S.H.R. at 549 (“[T]he State ha[d] Sergeant Billingsley read aloud
the contents of the affidavit for [Prystash’s] March 8, 1995 arrest, an affidavit that contained
Guidry’s statements against penal interest.”); cf. S.S.H.R. at 543.
Trial counsel attacked the validity of the arrest warrants in closing arguments as one
dimension of the improper police conduct during his questioning and arrest. Tr. Vol. 20 at
833-36. The prosecution, in turn, bolstered their case through the use of Guidry’s statements
in the arrest warrant:
And they go and see Guidry. And he’s cooperative. And he’s remorseful
frankly. And he tells them the truth. And you know that from that trick
warrant. You know exactly what Guidry says happened because it’s in that
warrant. Guidry links them to the gun. The gun matches the serial number
that Mary Gipp gave to the police the day she was in the presence of her
lawyer and handed it to the policeman.
Tr. Vol. 20 at 856 (emphasis added). The prosecutor argued that, in getting a warrant for
Prystash’s arrest, “[t]here is no deception of anybody involved.” Tr. Vol. 20 at 861.
Having reviewed the use of Guidry’s confession in the trials of Prystash and his coconspirators, the Court turns to Prystash’s claim that the State violated his constitutional

12

(...continued)
introducing State’s Exhibits 96 and 97, pocket warrants for [his] arrest, attacking the
circumstances of [his] arrest warrants, arrest, questioning, and confession.” S.H.R.
at 195. Additionally, the “information contained in the warrant affidavits . . . was also
properly admitted and corroborated in other portion[s] of [Prystash’s] trial, including
[his] own statements.” S.H.R. at 195.
27

rights by suppressing evidence or presenting false evidence/testimony.
C.

Brady Claim Relating to Guidry’s Confession in Prystash’s Trial

Prystash claims that the prosecution suppressed information about police misconduct
in obtaining Guidry’s confession. “To make a Brady claim, [a petitioner] must prove: (1)
that the ‘evidence at issue [is] favorable to the accused, either because it is exculpatory, or
because it is impeaching;’ (2) that the ‘evidence [has] been suppressed by the State, either
willfully or inadvertently;’ and (3) that ‘prejudice [has] ensued.’” Summers v. Dretke, 431
F.3d 861, 874 (5th Cir. 2005) (alterations in original) (quoting Strickler v. Greene, 527 U.S.
263, 281-82 (1999)).
The state habeas court provided three persuasive reasons to deny habeas relief on
Prystash’s Brady argument. First, Prystash “fail[ed] to show that information about any
flaws in the taking of Guidry’s confession – the federal district court’s future legal holding
– was material, i.e., that it would have created a reasonable probability that the results of the
proceeding in [Prystash’s] trial would have been different, in light of the overwhelming
evidence of [his] guilt.” S.S.H.R. at 552. Second, Prystash “fail[ed] to show that any flaw
in the taking of Guidry’s confession impacted the voluntariness of [Prystash’s] non-custodial,
oral admissions and his written statement.” S.S.H.R. at 552-53. Finally, Prystash did not
show “harm based on the sparse testimony about Guidry’s confession and testimony
concerning the information supplied by Guidry being cumulatively supplied by other
witnesses, including [Prystash] via his own confession.” S.S.H.R. at 553.13

13

The TCCA did not adopt another reason the lower habeas court gave to deny relief:
The applicant fails to show that the State suppressed a future legal
finding and holding, i.e., the federal district court’s de novo finding that
Guidry was credible in his assertion that he asked for an attorney and
that detectives told him that his attorney for the unrelated robbery case
said he could talk to them - with the resulting finding that his
confession was involuntary, in light of Guidry’s confession being found
voluntary prior to the applicant’s trial and in light of the State’s
(continued...)
28

The state court’s findings emphasized that information about Guidry’s confession
would not have made any difference in Prystash’s trial. Under Brady, “[e]vidence is material
‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’” Graves v. Dretke, 442 F.3d 334, 339
(5th Cir. 2006) (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). “[T]he materiality test
is not a test of the sufficiency of the evidence. . . . Rather, a Brady violation is established
by showing ‘that the favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.’” Graves, 442 F.3d at 340
(quoting Kyles, 514 U.S. at 435); see also United States v. Bagley, 473 U.S. 667, 682 (1985);
Duncan v. Cain, 278 F.3d 537, 539-40 (5th Cir. 2002).
Prystash’s case comes before this Court in a distinct posture from those the federal
courts faced in the challenges from his co-conspirators. The State ensured that Guidry’s
confession played a major role in Guidry and Fratta’s trials. In Guidry’s case, the
prosecution presented his full confession. In Fratta’s trial, Sergeant Billingsley related
portions of Guidry’s confession, without the full written statement coming into evidence.
In both cases, only hearsay otherwise showed that Farah’s killing was a murder-for-hire.
In contrast to the prosecutions of Prystash’s co-conspirators, this Court must presume
the state court finding correct that “Guidry’s confession did not play a vital role in
implicating” Prystash. S.S.H.R. at 550. The State did not rely on Guidry’s confession as the
primary factor proving remuneration. As previously discussed, Gipp provided detailed
testimony about Prystash’s involvement in the conspiracy, and particularly describing how
Prystash reported that “Guidry was going to get a thousand dollars, and [he] was going to get
a Jeep.” Id. at 179-80. The state court found that Prystash’s “actions in front of Mary Gipp,
13

(...continued)
inability to predict a credibility finding made six years after the
applicant’s trial after a de novo evidentiary hearing.
S.S.H.R. at 551. Despite Respondent’s invitation to adopt this reasoning, Doc. # 57,
pp. 43-44, the Court does not base its decision on the repudiated factual finding.
29

his statements to Mary Gipp, Mary Gipp’s admissions to the police, phone records, other
inculpatory evidence, and [Prystash’s] voluntary confessions played the ‘vital role’” in his
conviction. S.S.H.R. at 550.
Although federal courts found that Gipp’s hearsay recitation of Prystash’s comments
about remuneration violated the Confrontation Clause as to Guidry and Fratta, Prystash’s
case placed her testimony in a different light. Any error in the admission into evidence of
hearsay testimony in his co-conspirators’ cases because of the Confrontation Clause, i.e.,
concerns about Gipp’s and Sergeant Billingsley’s recitation of Prystash’s comments,
evaporate when used against Prystash himself.14
Crucially, Prystash’s jury also heard Prystash’s own confession to his involvement in
the murder-for-hire scheme. The entirety of Prystash’s lengthy March 13 written statement
to the police came before jurors. Tr. Vol. 19 at 731-42. Sergeant Billingsley also testified
about the oral statements Prystash made after his March 8 arrest. Tr. Vol. 18 at 525-27, 53536. The state courts observed in Prystash’s case that “the same information found in
Guidry’s statements” was “cumulatively presented through . . . [Prystash’s] own statements.”
S.H.H.R. at 550. Prystash’s own words overwhelmingly provided a basis for the jury to find
him guilty of capital murder for remuneration beyond a reasonable doubt.
While Prysatsh’s petition repeatedly faults the police officers’ method of securing
statements from him, Prystash did not ask the state appellate or habeas courts to reconsider
the evidence concerning the voluntariness of his confession. Prystash understandably does

14

The Confrontation Clause of the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” “[N]o clear authority exists for the proposition that the Sixth
Amendment guarantees a right to ‘confront oneself at trial.” Torres v. Roberts, 253
F. App’x 783, 787 (10th Cir. 2007); see also Crawford, 541 U.S. at 51 (stating that
the Confrontation Clause applies to “witnesses against the accused”); 4 Jack B.
Weinstein & Margaret A. Berger, WEINSTEIN’S FEDERAL EVIDENCE § 802.05(3)(d)
at 802–25 (2d ed. 2005) (explaining “a party cannot seriously claim that his or her
own statement should be excluded because it was not made under oath or subject to
cross-examination”).
30

not now raise a constitutional challenge to his own confession. The trial court examined the
voluntariness of Prystash’s confession in a motion to suppress, denied the motion, and
allowed the confession to come before the jury. On successive habeas review, the state court
found that his “written confession was given after he knowingly, intelligently, and freely
waived his Miranda rights: rights that were repeatedly given to him.” S.S.H.R. at 544.
Prystash has not convincingly shown any relationship between the error regarding Guidry’s
confession and the voluntariness of his own confession.
Given the highly incriminating evidence admitted in Prystash’s case distinct from the
co-conspirator’s confession evidence, the Court concludes that the state court’s denial of his
Brady claim was not contrary to, or an unreasonable application of, federal law. See 28
U.S.C. § 2254(d)(1).
D.

False Evidence/Testimony Claim Relating to Guidry’s Confession

Prystash also claims that the blemishes from Guidry’s confession resulted in the
prosecution’s presentation of false evidence and testimony. Prystash argues that “[f]oremost,
the prosecution used Guidry’s fraudulently-obtained confession by prompting Sergeant
Billingsley to read to the jury Detective Robert’s false affidavit, which simply recited the
substance of Guidry’s illegally obtained confession and perjuriously stating the confession
was voluntarily given” [Doc. # 52, p. 35]. Prystash contends that “[t]he jury thus heard
unimpeached – yet certainly impeachable – evidence and testimony that Guidry had,
supposedly, freely and voluntarily confessed, after Miranda warnings were properly given,
to his own, as well as Prystash's, involvement in the crime.” Id. Prystash’s claim here is
essentially that the prosecution violated the Constitution by presenting the jury with the
substance of, and false testimony about acquisition of, Guidry’s involuntary confession.
While the State may “prosecute with earnestness and vigor” it still must “refrain from
improper methods calculated to produce a wrongful conviction . . . .” United States v. Young,
470 U.S. 1, 7 (1985) (quotation omitted). “It is well settled that the State is not permitted to
present false evidence or allow the presentation of false evidence to go uncorrected.” Moody
v. Johnson, 139 F.3d 477, 484 (5th Cir. 1998). “To establish a due process violation based
31

on the government’s use of false or misleading testimony, a petitioner must show (1) that the
witness’s testimony was actually false, (2) that the testimony was material, and (3) that the
prosecution knew the witness’s testimony was false.” Fuller v. Johnson, 114 F.3d 491, 496
(5th Cir. 1997).
Respondent argues that “Prystash’s assertions of false testimony are incorrect”
because Guidry’s confession “was eventually found to be involuntary” but “it was never
deemed to be false” [Doc. # 57, p. 42]. Respondent argues, in essence, that this Court cannot
consider Guidry’s confession to be “false” because “the fact that the Court in Guidry’s case
made a particular credibility determination does not render the testimony of the officers
taking Guidry’s confession false in this case” [Doc. # 57, p. 43]. Respondent views the Fifth
Circuit’s rejection of Guidry’s confession as a “legal conclusion” that would not impact
Prystash’s case [Doc. # 57, p. 43].
The state courts found that Prystash did “not meet the first and second prongs of
Giglio” because “[Prystash did] not show that the State presented false testimony at [his] trial
that was material in that there was a reasonable likelihood that it affected the jury’s judgment
in finding the applicant guilty.” S.S.H.R. at 551. The false-evidence materiality standard “is
considered less demanding on a defendant than either the ‘reasonable probability’ or Brecht
harmless-error standards.” Barrientes v. Johnson, 221 F.3d 741, 756 (5th Cir. 2000).15 False

15

The Fifth Circuit has expressed the difference between the two materiality standards
as follows:
We observe that different standards of materiality apply to Brady
claims and claims that the prosecution has knowingly used perjured
testimony or false evidence. The materiality standard for Brady claims,
regardless of whether the defense made a specific or general request (or
no request at all) for the withheld evidence prior to trial, is as follows:
The evidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would be different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Conversely, if the
(continued...)
32

evidence is “material” if there is “‘any reasonable likelihood [that the false evidence could]
have affected the judgment of the jury.’” Giglio, 405 U.S. at 154 (quoting Napue v. Illinois,
360 U.S. 264, 269 (1959)). The Supreme Court has explained that this materiality standard
“is equivalent to the Chapman [v. California, 386 U.S. 18 (1967)] harmless-error standard.”
United States v. Bagley, 473 U.S. 667, 679 n.9 (1985); see also United States v. Barham, 595
F.2d 231, 242 (5th Cir. 1979) (“[The false-evidence materiality standard] is the brother, if
not a twin, of the standard (‘harmless beyond a reasonable doubt’) for determining whether
constitutional error can be held harmless.”). Error is not harmless unless it “did not
contribute to the verdict obtained.” Chapman, 386 U.S. at 24.
“To say that an error did not ‘contribute’ to the ensuing verdict is not, of course, to
say that the jury was totally unaware of that feature of the trial . . . .” Yates v. Evatt, 500 U.S.
391, 403 (1991). Rather, the reviewing court must “find that error unimportant in relation
to everything else the jury considered on the issue in question, as revealed in the record.”
Id. To determine if the false evidence contributed to the jury’s verdict, a court must weigh
the “probative force” of the false evidence against the other independent evidence considered
by the jury. Id. Only when the effect of the false evidence is “comparatively minimal” can
a court find that it did not contribute to the verdict. Id. at 405; see also Sullivan v. Louisiana,
508 U.S. 275, 279 (1993) (stating that under a Chapman review, the question is not whether
a similar verdict would have been returned without the error, but whether the verdict was
actually attributable to the error).
The Court need not reach the issue of whether Guidry’s confession should be deemed

15

(...continued)
prosecutor has knowingly used perjured testimony or false evidence,
the standard is considerably less onerous: the conviction must be set
aside if there is any reasonable likelihood that the false testimony could
have affected the jury’s verdict.
Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993) (footnotes and internal
quotations omitted).
33

“false” testimony.16 Even if admission at Prystash’s trial of Guidry’s confession per se, or
references to it, was error, the prosecution did not rely heavily on that evidence in its case
against Prystash. Independent of any information derived from Guidry’s confession, the state
courts found that the State presented “overwhelming evidence of [Prystash’s] guilt.”
S.S.H.R. at 550. Testimony about Guidry’s confession was “sparse” in relation to “the same
information found in Guidry’s statements against penal interest being cumulatively presented
through other witnesses, including [Prystash’s] own statements.” Id. at 550.
The jury in Prystash’s case faced a far different scenario than that considered by
Guidry’s jury. Even if Prystash is correct and the prosecution suppressed evidence and
presented false testimony, removing the gunman’s confession from Prystash’s trial does not
materially weaken the prosecution’s case. Prystash provides this Court with no reason to
discount his own confession and Gipp’s testimony that corroborated his role as the
middleman in the murder-for-hire of Farah. Gipp’s testimony described substantial material
actions by Prystash and corroborated his intent in carrying out Farah’s murder. Specifically,
Gipp testified concerning Prystash’s participation in the murder and his expectation of being
paid for his services. The prosecution also corroborated Gipps’ account with evidence
independent of the confessions. The prosecution traced the possession of the weapon
presumably used to kill Farah from Fratta to Prystash to Guidry. Witnesses saw a car
resembling the one owned by Prystash leaving the crime scene. Phone records showed
communication between Fratta and Prystash around the time of the murder. Another man
related incriminating statements that Prystash made about the murder. Even absent Guidry
confession, “in the face of such compelling testimony, it is unlikely that the jury’s ultimate
determination would have been different.” Moody, 139 F.3d at 484 (5th Cir. 1998).17
16

The only falsity alleged is related to the circumstances under which Guidry’s
confession was obtained, i.e., through trickery, not the substance of it. The testimony
relating to the voluntariness of Guidry’s confession was minimal.

17

Under the Brady standard for materiality, the state habeas court found on successive
(continued...)
34

Given “the overwhelming quantity and quality of the other evidence in the record
supporting the jury’s verdict,” United States v. Washington, 44 F.3d 1271, 1282 (5th Cir.
1995), the Court concludes that Prystash fails to meet the false-evidence materiality standard
regarding the prosecution’s use of evidence concerning Guidry’s confession. Whether under
AEDPA’s deferential standard or a de novo review, Prystash has not shown entitlement to
federal relief in this regard.
E.

The FBI Complaint

Prystash’s also argues in his first claim for relief that “[t]he State failed to disclose –
and affirmatively denied the existence of – the complaint Prystash filed with the FBI
concerning the physical abuse suffered at the hands of the officers which was in the State’s
possession. Rather than disclose this impeachment evidence, the State concealed the FBI
complaint, and the prosecutor suggested to the court and jury it never existed . . . .” [Doc.
# 52, p. 6]. Prystash consistently has asserted that the police physically abused him and
violated his rights, particularly when the police interrogated him just days after Farah’s
murder. On November 18, 1994, police officers brought Prystash to the homicide division
where Detectives Roberts and Valerio interrogated him for over thirteen hours. Prystash
gave the officers a written statement denying any knowledge of, or involvement in, the
murder. He also took a polygraph test. Unlike their interrogations of the other suspects, the
police officers did not record their interview of Prystash. Prystash has since maintained that
the police mistreated him throughout the November 18, 1994, interrogation.

17

(...continued)
habeas review that “Guidry’s confession did not play a vital role in implicating
[Prystash]; instead, [Prystash’s] actions in front of Mary Gipp, his statements to Mary
Gipp, Mary Gipp’s admissions to the police, phone records, other inculpatory
evidence, and [Prystash’s] voluntary confessions played the ‘vital role.’” S.S.H.R.
at 550. The state habeas court added, “in light of the overwhelming evidence of
[Prystash’s] guilt,” there was “no harm based on the sparse testimony during
[Prystash’s] trial concerning Guidry’s confession and based on the same information
found in Guidry’s statements against penal interest being cumulatively presented
through other witnesses, including [Prystash’s] own statements.” S.S.H.R. at 550.
35

On November 21, 1994, Prystash filed a civil rights complaint with the FBI alleging
police misconduct. S.S.H.R. at 476. The FBI’s report after its investigation provided a
synopsis of Prystash’s allegations:
Victim states he was abused by Harris County Sheriff’s Office Homicide
detectives after being detained for approximately 14 hours regarding a murder
in Houston. Victim was handcuffed during questioning (too tight) and was hit
in the chest and behind the ears. Victim sustained minor scratches which did
not need medical attention.
S.S.H.R. at 480. The report observed that the FBI contacted the Harris County Sheriff’s
Department Internal Affairs Division about the incident.
During the subsequent FBI inquiry, an agent interviewed Prystash and prepared a
report of Prystash’s account. Prystash is reported to have said that police pulled him over,
pointed a gun at him, treated him roughly, and took him to the homicide office in handcuffs.
There, detectives allegedly “started popping his ears with his hands” and otherwise
physically mistreating him. Prystash claimed that the police never read him the Miranda
warnings. Before leaving the homicide office, Prystash complained, he saw that the police
had taken several of his and Gipp’s personal items. When he returned home, Prystash found
that the police had rummaged through his apartment, including through unopened Christmas
presents. S.S.H.R. at 486-91. The report indicated that the agent observed some scratches
on Prystash that would be consistent with his account. Id. at 492.
In the end, nothing came of the FBI investigation. The U.S. Department of Justice
record that closed the case noted: “Federal criminal civil rights violation cannot be proven
because: No medical evidence to corroborate allegations.

[I]nsufficient independent

eyewitness corroboration of allegations.” Id. at 518.
An important aspect of trial counsel’s strategy was to demonstrate that the police
officers investigating the murder were abusive and overreaching in their investigation, arrest,
and interrogation of Prystash. By casting doubt on the integrity of the police work, trial
counsel hoped the jury would disregard Prystash’s confession. Gipp’s testimony at trial
confirmed some of Prystash’s allegations about police mistreatment. For instance, Gipp
36

testified that, although she was out of town when the interrogation happened, she observed
some things corroborating Prystash’s account. Gipp also saw a cut behind Prystash’s ear.
Tr. Vol. 17. at 223. She reported that Prystash had filed an FBI complaint about the
mistreatment. Id. at 224.
Gipp treated the event as part of a long period of police harassment. Gipp testified
that they “were harassed so much” Id. at 229. She testified that Prystash informed her about
filing a complaint with the FBI: “He said that he had gone down to file a complaint against
the officers . . .” Id. at 244. Gipp explained that “[t]he detectives followed us around, pulled
[Prystash] over several times, handcuffed him, and said he wasn’t under arrest and all kinds
of real crazy things.” Id. at 229. Gipp said that the police searched her house and car without
a warrant. Id. at 227. The police came to Gipp’s house “night after night . . . to ask more
questions” while Gipp “drank bottle after bottle of wine sitting there with them.” Id. at 228.
On cross-examination, the prosecutor asked Gipp questions suggesting that Prystash
did not actually file an FBI complaint. For example, the prosecutor asked: “So the FBI or
whatever agency this is going to have some record of this complaint; aren’t they.” Gipp
replied, “Yes.” The prosecutor then followed: “And [trial counsel] can bring it down here;
can’t they, Mary?” Id. at 244-45.
Police officers denied abusing Prystash during interrogations and denied having any
knowledge of the FBI complaint. Tr. Vol. 18 at 579. During closing argument, the defense
argued that there were “constitutional irregularities” in the case starting with “November 8,
1994, there is an FBI probe.” Tr. Vol. 20 at 845-46. The prosecutor, however, interrupted:
“I object. There is no FBI probe.” Id. at 846. The prosecutor later argued that there was no
evidence that the police treated Prystash roughly, calling his allegations “just blowing
smoke.” Id. at 884. The prosecutor, however, did not remember that during the pre-trial
suppression hearing officers, including Sergeant Billingsley, admitted that they knew about
the FBI complaint. Tr. Vol. 3 at 60, 62, 175-76.
Prystash complains that the prosecution suppressed the FBI complaint and presented
false testimony relating to it. Respondent makes two primary arguments for summary
37

judgment on this claim. First, Respondent contends that the State cannot have suppressed
the FBI complaint because it originated with Prystash himself. The Fifth Circuit has
explained that “evidence is not suppressed if the defendant knows or should know of the
essential facts that would enable him to take advantage of it.” United States v. Runyan, 290
F3d 223, 246 (5th Cir. 2002) (internal quotations omitted). “Brady does not obligate the
State to furnish a defendant with exculpatory evidence that is fully available to the defendant
through the exercise of reasonable diligence. When evidence is equally available to both the
defense and the prosecution, the defendant must bear the responsibility of failing to conduct
a diligent investigation.” Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (citations
omitted). While the principles are correct, the Court is unpersuaded Respondent’s argument
entitles him to summary judgment. Prystash obviously knew about his own FBI complaint,
but the State’s denial of the FBI investigation’s existence was the falsity; proof of the
police’s acknowledgment of the investigation was not “equally available” to him.
Contradictory, indeed, erroneous, testimony and argument about the FBI investigation
dampened its impact in Prystash’s favor.
More persuasively, Respondent argues that the FBI complaint was not material for
purposes of Brady and Giglio. Prystash’s argument that evidence about the FBI complaint
“would have enabled [trial counsel] to confirm [his] claim of coercion . . .,” [Doc. # 52, p.
47], misses the mark. The existence of the complaint and report does not necessarily address
the question of whether the police mistreated him. Rather, the FBI report would merely have
verified a relatively minor point – that he had complained to the FBI about police
mistreatment, a matter to which Gipp already had testified, and thus confirmed that
Prystash’s allegations of abuse were not of recent vintage.
Production of Prystash’s FBI complaint or the FBI report, in fact, easily could have
undermined the defense. Neither document contains any official condemnation of Harris
County police work; nor do they verify that misconduct tainted Prystash’s interaction with
the police. To the contrary, the FBI report takes the question of police misconduct out of
abstraction and concludes that no evidence supported Prystash’s allegations. The FBI report
38

likely would have added weight to the State’s argument that the police had not engaged in
misconduct. Because the report shows no more than that Prystash complained about
mistreatment, no reasonable probability exists that Prystash’s complaint to the FBI or the
agency’s report of its investigation would have changed the outcome of Prystash’s trial.
For those reasons, the Court finds that Prystash has not shown constitutional error
relating to the his complaint or the FBI report. The Court will deny habeas relief on
Prystash’s first ground for relief.
F.

Conclusion

The State has retried both Fratta and Guidry without Guidry’s illegal confession and
each of these men again was convicted of capital murder. Both are again on death row.
While it may seem unfair for those individuals’ convictions to have been overturned while
Prystash’s remains, the unique circumstances of Prystash’s trial cast his case in a materially
different legal light than from the records in his co-conspirators’ cases. This Court does not
condone the police’s overreaching regarding Guidry’s confession, but contamination from
that illegality did not impact Prystash’s case in a way that warrants federal habeas relief.
II.

CONSTITUTIONAL VIOLATIONS IN THE PROSECUTION’S USE OF
PEREMPTORY CHALLENGES (CLAIM TWO)
Prystash claims that the State improperly used peremptory strikes to remove all

African-American prospective jurors from the venire.15 Under Batson v. Kentucky, 476 U.S.
79 (1986), the prosecution violates the equal protection clause when it strikes potential jurors
solely on the basis of race. Batson jurisprudence has established a three-step burden shifting
scheme to ascertain the State’s intent when striking members of a protected category:
First, the trial court must determine whether the defendant has made a prima
facie showing that the prosecutor exercised a peremptory challenge on the

15

Although he objects to the dismissal of African-American prospective jurors, Prystash
is Caucasian. See Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (holding that under
the Equal Protection Clause, a criminal defendant may object to race-based exclusions
of jurors effected through peremptory challenges whether or not the defendant and the
excluded jurors share the same race).
39

basis of race. Second, if the showing is made, the burden shifts to the
prosecutor to present a race-neutral explanation for striking the juror in
question. Although the prosecutor must present a comprehensible reason, the
second step of this process does not demand an explanation that is persuasive,
or even plausible; so long as the reason is not inherently discriminatory, it
suffices. Third, the court must then determine whether the defendant has
carried his burden of proving purposeful discrimination. This final step
involves evaluating the persuasiveness of the justification proffered by the
prosecutor, but the ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.
Rice v. Collins, 546 U.S. 333, 338 (2006) (quotations and citations omitted); see also
Johnson v. California, 545 U.S. 162, 168 (2005); Miller-El v. Dretke, 545 U.S. 231, 251-52
(2005). Before turning to the substance of Prystash’s Batson claim, the Court must consider
whether he has presented it in a manner sufficient for federal review.
A.

Procedural Bar

Prystash first advanced a Batson claim in his federal habeas petition. When this Court
stayed the case for the exhaustion of state remedies, the TCCA applied the stringent abuseof-the-writ provisions of article 11.071, § 5(a), of the Texas Code of Criminal Procedure, and
did not authorize Prystash to include the Batson claim in his successive state habeas
application.
Prystash’s failure to present his Batson claim to the state court in a procedurally
actionable manner bars federal review unless he can overcome the resultant procedural bar.
Prystash makes two arguments to allow full federal review: (1) Batson claims are not subject
to waiver, and consequently not susceptible to a procedural bar and (2) state habeas counsel’s
failure to raise the Batson claim forgives the procedural bar under the Martinez/Trevino line
of cases. Neither argument allows the Court to reach the merits.
First, Prystash argues that “[a]lthough discrimination in jury selection may affect the
defendant’s right to trial by an impartial jury, the venire member’s rights under the Equal
Protection Clause are the primary rights at issue in the Batson line of cases” [Doc. # 52,
p. 72]. Therefore, he argues, a capital defendant cannot “waive the venire member’s rights”
and a defendant cannot “waive[] his Batson challenge” [Doc. # 52, p. 73]. Courts, however,
40

have routinely held that an inmate may waive his ability to raise a Batson claim by failing
to make a timely, and adequate, trial objection. See Williams v. Cain, 31 F. App’x 835 (5th
Cir. 2002) (recognizing a procedural bar when the habeas petitioner failed to raise a
contemporaneous objection under Batson); see also Brown v. Kinney Shoe Corp., 237 F.3d
556, 561-62 (5th Cir. 2001) (“A party that does not raise facts or make timely Batson claims
in the district court waives the right to raise them on appeal.”). Similarly, courts have
routinely found that Batson claims are subject to the exhaustion and procedural bar doctrines.
See Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007) (applying procedural bar).
Second, Prystash argues that he can show cause and prejudice to overcome the
procedural bar under Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012), and Trevino
v. Thaler, ___ U.S.___, 133 S. Ct. 1911 (2013). In Martinez, the Supreme Court concluded
that ineffective assistance by a state habeas attorney may amount to cause where state
procedural law requires that an ineffective assistance of trial counsel claim be raised in an
initial state habeas application. In Trevino, the Supreme Court extended Martinez to cases
handled by Texas courts. To meet Martinez’s “cause” exception, the applicant must show
that the representation provided by his state habeas counsel fell below the standards
established in Strickland and that his underlying ineffective assistance of trial counsel claim
“is a substantial one, which is to say . . . that the claim has some merit.” Martinez, 132 S. Ct.
at 1318. The applicant must also show actual prejudice. See Martinez, 132 S. Ct. at 1321
(remanding to the court of appeals to “address the question of prejudice”); see also Canales
v. Stephens, 765 F.3d 551, 568 (5th Cir. 2014).
Martinez, by its own terms, announced a “narrow exception” that applies only with
respect to “cause for a prisoner’s procedural default of a claim of ineffective assistance at
trial.” 132 S. Ct. at 1315 (emphasis added). Prystash argues that “there is no reason to think
that the standard employed in Martinez and Trevino is limited solely to claims involving
ineffective assistance of counsel” [Doc. # 52, p. 31]. On the contrary, the Fifth Circuit has
refused to apply Martinez to “claims [that] do not pertain to the effectiveness of counsel.”
Vasquez v. Stephens, 597 F. App’x 775, 778 (5th Cir. 2015); see also Wilkins v. Stephens,
41

560 F. App’x 299, 306 n.44 (5th Cir. 2014); Reed v. Stephens, 739 F.3d 753, 778 (5th Cir.
2014). Under current circuit authority, Martinez cannot allow review of Prystash’s defaulted
Batson claim.16
Accordingly, the Court finds that a procedural bar precludes federal review of
Prystash’s Batson claim. In the alternative, the Court briefly discusses the substance of this
claim.
B.

Alternative Review of the Merits

In this case, the parties used their peremptory strikes after questioning all potential
jurors. The State used five of its fourteen peremptory strikes to eliminate the AfricanAmerican venire members in the jury panel. Tr. Vol. 16 at 1677-78. Trial counsel objected
that “every black panelist was stricken” from the venire. Id. at 1678. Trial counsel, however,
did not elaborate on each strike of the African-American potential jurors. Instead, trial
counsel stated: “especially we are calling to the Court’s attention of the strike of juror Ms.
Merchant . . . .” Id. at 1678.17
The trial court called on the State to provide a race-neutral explanation for the use of
the peremptory strike against the juror specifically identified by Prystash. “Once a court has
taken that step, we no longer examine whether a prima facie case exists.” United States v.
Webster, 162 F.3d 308, 349 (5th Cir. 1998). Under the second part of the Batson

16

Even if Martinez and Trevino applied in this instance, Prystash’s briefing concerning
habeas counsel’s ineffective representation does not satisfy the Fifth Circuit’s
rigorous standard on his Batson claim. A “Martinez argument is not properly raised
or briefed by [an inmate’s] passing references to the case without explanation of how
the elements of Martinez are satisfied.” Young v. Stephens, 795 F.3d 484, 493 (5th
Cir. 2015). It is noted also that Prystash does not assert that trial counsel’s ineffective
representation should forgive the procedural bar regarding his Batson claim.

17

Prystash now argues that the State improperly used peremptory strikes against the
other four African-American prospective jurors. Because trial counsel did not make
a specific objection to their dismissal, the State did not have an opportunity to provide
race-neutral explanations for their removal. These strikes have not been presented
properly for any habeas review.
42

burden-shifting scheme, the State must provide a race-neutral justification for its strike.
Because of trial counsel’s emphasis, the State provided an explanation only for why it struck
Ms. Merchant:
Judge, the reasons that we struck her were that she was very wishy-washy on
two. She believed the middle man deserved the death penalty.
She kept saying depends on the circumstances and would never commit and
[she] even said that there were a set of circumstances out there where she
could see herself giving the death penalty to the point where I gave up on the
question because I couldn’t get her to say it.
Id. at 1679. The prosecutor added:
Yeah. She struck me as someone whose [sic] already got her mind made up
about almost everything you talked to her about. She’s only 20 years old and
has had a lot of different sort of life experiences than most 20-year-old had.
And she seemed to me she wanted to be on the jury.
It wasn’t so much why, but she definitely has her mind made up about
everything that you would ask her about.
Id. at 1680.
A “race-neutral explanation tendered by the proponent need not be persuasive, or even
plausible.” United States v. Huey, 76 F.3d 638, 641 (5th Cir. 1996). Indeed, the explanation
“simply must be race-neutral and honest.” United States v. Webster, 162 F.3d 308, 349 (5th
Cir. 1998). “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.” Purkett v. Elem, 514 U.S. 765, 768 (1995);
Hernandez v. New York, 500 U.S. 352, 359-60 (1991). “In that instance the issue comes
down to whether the trial court finds the prosecutor’s race-neutral explanations to be
credible.” Miller-El, 537 U.S. at 339.
In this case, the trial court agreed with the prosecution and stated that Ms. Merchant
seemed like the type of person who “already have their minds made up.” Tr. Vol. 16 at 1680.
The trial court, therefore, found the strike against her “to be not motivated by color and as
a result [the trial court] permit[ed] . . . the peremptory strike of Ms. Merchant to stand.” Tr.
Vol. 16 at 1680. The trial court asked trial counsel: “Anything else we need to get in the
43

record?” Trial counsel answered: “I don’t think so.” Tr. Vol. 16 at 1680-81.
The trial court thus did not merely accept the prosecution’s race-neutral explanation,
it affirmed that its own observations of the potential juror comported with the prosecution’s
justification. This federal court must defer to the trial judge’s implicit determination that the
prosecution’s explanation was credible. See Woodward v. Epps, 580 F.3d 318, 336 (5th Cir.
2009) (“Because of the importance of demeanor and credibility evidence in making such
determinations, we give strong deference to the determination of the trial judge, consistent
with AEDPA.”).
Under Batson’s final step, Prystash ultimately bears the burden of establishing that
the government engaged in “purposeful discrimination” based on race. Purkett, 514 U.S. at
767; United States v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993). Prystash attempts
to prove his case by demonstrating that the reasons offered by the State lacked meaningful
support. However, even if the reasons advanced by the State are only weakly supported by
the record, the thrust of this Court’s inquiry is whether the State had racially biased intent in
using the peremptory strike. See id. at 1373-74 (stating that as a general rule, “[t]here will
seldom be any evidence that the claimant can introduce–beyond arguing that the explanations
are not believable or pointing out that similar claims can be made about non-excluded jurors
who are not minorities”). Prystash has not identified evidence or argument persuasively
supporting his contention that there was purposeful race-based discrimination. The record
does not support a finding that the prosecution engaged in purposeful discrimination.
Accordingly, Prystash has not shown entitlement to relief on the merits even if he had
presented his Batson claim in a procedurally actionable manner.
III.

TRIAL COURT’S LIMITATIONS ON THE TESTIMONY OF A DEFENSE
EXPERT WITNESS (CLAIM THREE)
Prystash argues that the trial court denied him a fair trial by limiting the testimony of

an expert witness during the punishment phase. This claim has been exhausted in state court
and the AEDPA governs this Court’s review.
As one aspect of the defense’s efforts to convince jurors that Prystash would not be
44

a future threat to society, trial counsel called Dr. Walter Quijano as a witness. Dr. Quijano
is “a doctor of clinical psychology who had spent five of his twenty-one year professional
career as the Director of Psychiatric Services and Chief Psychologist at the Texas
Department of Corrections,” and who subsequently “maintained a full-time private practice
which included working with juvenile and adult probation departments and conducting
evaluations with the Texas Rehabilitation Commission” [Doc. # 52, p. 76]. The defense
anticipated that Dr. Quijano would testify that Prystash would not be a continuing threat
while incarcerated. Dr. Quijano based his opinion on several factors, including his
knowledge of the prison resources used to control violence and Prystash’s pre-trial
classification as nonviolent.
The parties have not identified in the record any objection to Dr. Quijano’s testimony
by the State. Nor have the parties explained why the trial court required Prystash to make
an offer of proof relating to Dr. Quijano’s testimony outside the jury’s presence. For
whatever reason, the parties questioned Dr. Quijano in the trial judge’s chambers as a
predicate to his testimony coming before jurors.
“[O]utside the presence of the jury, [Prystash] made a proffer of the testimony of
Walter Quijano, psychologist, concerning [Dr. Quijano’s] work in the Texas prison system,
his familiarity with the Texas prison system classification, his review of [Prystash’s] records
and facts of the offense, possible use of jail record[s] and other data to help determine an
inmate’s classification, and [Dr. Quijano’s] opinion that it was ‘less likely or not likely’ that
[Prystash] would be a continuing threat in prison.” S.H.R. at 189. Dr. Quijano said that
during Prystash’s pre-trial detention “the jail does not classify [Prystash] as violent and
dangerous in the jail. Classified his crime, of course, as assaultive violence.” Tr. Vol. 22 at
1236. Dr. Quijano clarified that “[i]n the jail, he’s classified as nonviolent.” Id.
Dr. Quijano testified in camera that, in his opinion, Prystash would not be a
continuing threat to society and that, even if he posed some threat, the prison system would
be able to manage him. Tr. Vol. 22 at 1235-36. On cross-examination, however, Dr.
Quijano clarified that he had not talked to Prystash personally. Tr. Vol. 22 at 1236-37. Also,
45

Dr. Quijano could not predict what classification Prystash would receive because “[t]hat
would be the job of the Classification Committee.” Tr. Vol. 22 at 1236-37.
The trial court permitted Dr. Quijano to testify before the jury because of his
experience with prison classification and about prison resources, but ruled that the witness
could not engage in speculation about what classification Prystash would receive in TDCJ.
Tr. Vol. 22 at 1238. Also, the trial court allowed Dr. Quijano to describe his review of
Prystash’s jail records, but not Prystash’s current jail classification. Tr. Vol. 22 at 1239.
The defense called Dr. Quijano as its last witness before the jury. The defense asked
Dr. Quijano questions resulting in generalized testimony about the prison system and its
ability to curtain violence. Tr. Vol. 22 at 1255. Dr. Quijano explained that the prison system
had “sufficient resources to control inmates’ dangerousness.” Tr. Vol. 22 at 1255. Trial
counsel did not particularize the testimony by asking Dr. Quijano if he considered Prystash
to be a future societal threat.
On direct appeal, Prystash argued that the trial court abused its discretion by limiting
Dr. Quijano’s testimony. The TCCA observed that “[t]he testimony of Dr. Quijano
concerning the prison classification system was not particularized to [Prystash], and Dr.
Quijano did not establish that the current jail classification would dictate his classification
in prison.” “The trial court prohibited Dr. Quijano from hypothesizing as to the application
of the prison classification system” because “Dr. Quijano stated that he was unable to predict
the classification that the prison system would assign . . . .” Thus, Prystash could not
“complain about the restriction of the trial court on the application of the prison classification
system to [Prystash] because Dr. Quijano had no opinion as to that application.” Prystash
v. State, 3 S.W.3d 522, 528 (Tex. Crim. App. 1999).
The TCCA also found that the proposed testimony about Prystash’s jail classification
“was inadmissable hearsay.”18 Prystash suggested that by precluding reference to certain
18

The TCCA stated:
(continued...)
46

factors, such as the current jail classification, the trial court’s ruling undercut Dr. Quijano’s
ability to testify about Prystash’s future dangerousness.

The TCCA, nevertheless,

emphasized that, despite the limitations, “[n]ever did the trial court prevent Dr. Quijano from
stating his opinion of the continuing threat posed by [Prystash].” The TCCA held:
[t]he notion that Dr. Quijano was unable to testify that he thought [Prystash]
did not pose a continuing threat without also stating the current jail
classification is without merit, because the trial court permitted Dr. Quijano to
state that he had reviewed the jail records. Dr. Quijano testified that the prison
system had sufficient resources to control the dangerousness of the inmates.
Dr. Quijano was free to elaborate as to the threat posed by [Prystash], but
[Prystash] never inquired beyond this general question. The trial court never
prevented defense counsel from asking Dr. Quijano if he thought that
[Prystash] posed a continuing threat.
Prystash v. State, 3 S.W.3d 522, 528-29 (Tex. Crim. App. 1999).19
On federal review, Prystash argues that under Barefoot v. Estelle, 463 U.S. 880
(1983), and Eddings v. Oklahoma, 455 U.S. 104 (1982), the trial court’s limitations on Dr.
Quijano’s testimony unconstitutionally impaired his ability to present mitigating evidence.
In Eddings, the Supreme Court held that a capital jury cannot “be precluded from
considering, as a mitigating factor, any aspect of a defendant’s character or record and any
of the circumstances of the offense that the defendant proffers as a basis for a sentence less

18

(...continued)
The jailer’s opinion of the dangerousness of [Prystash] was hearsay
because it was a statement not made by Dr. Quijano that would have
been offered to prove the truth of the matter asserted, that the defendant
was not dangerous.” However, because “the opinion of an expert
witness may be informed by the opinion of others” the trial court
properly limited Dr. Quijano’s testimony to describing his review of the
pretrial classification.
Prystash, 3 S.W.3d at 529.

19

Prystash raised a similar challenge on state habeas review. The state habeas court
relied on the disposition of the issue on direct appeal and denied relief for the same
reasons. S.H.R. at 196-97.
47

than death.” 455 U.S. at 110. The Supreme Court in Barefoot cautioned that testimony by
psychologist predicting dangerousness is not “generally so unreliable that it should be
ignored.” 463 U.S. at 899.
The state courts gave two reasons for limiting Dr. Quijano’s testimony. First, the state
courts ruled that Dr. Quijano could not testify about Prystash’s current classification because
that fact rested on hearsay. The Supreme Court has held that it is “clear” and “well
established” that the “sentencer may not refuse to consider or be precluded from considering
any relevant mitigating evidence.” Skipper v. South Carolina, 476 U.S. 1, 4 (1986)
(quotation omitted). However, the Supreme Court “certainly did not federalize the law of
evidence,” Barefoot v. Estelle, 697 F.2d 593, 597 (5th Cir. 1983), and questions about the
admissibility of evidence are generally left to the sound discretion of state courts. See
Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir. 1998). “In reviewing state evidentiary
rulings,” a federal court’s role “is limited to determining whether a trial judge’s error is so
extreme that it constituted denial of fundamental fairness.” Evans v. Thigpen, 809 F.2d 239,
242 (5th Cir. 1987). Only those state law violations that played a “crucial, critical, and
highly significant” role in the trial will offend the due process clause. Little v. Johnson, 162
F.3d 855, 862 (5th Cir. 1998). Absent an extreme due process violation, the improper
application of state law cannot serve as the basis for habeas relief.
The Fifth Circuit has specifically stated that the prohibition against hearsay “is not
abrogated in the context of capital sentencing . . . .” Watts v. Quarterman, 244 F. App’x 572,
576 (5th Cir. 2007). Prystash does not dispute that the state court’s finding that the testimony
would have been hearsay; instead, he contends that “Dr. Quijano’s testimony regarding
Prystash’s jail classification was unquestionably relevant and certainly did not constitute
speculation as it was based directly on the content of the jail records and Dr. Quijano’s
review of the records (a fact to which Dr. Quijano was allowed to testify)” [Doc. # 52, p. 83].
This Court does not decide whether the proposed testimony should have been admitted under
state evidentiary rules. “[A] state court’s interpretation of state law, including one announced
on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”
48

Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Also, there has not been a showing that the
questioned exclusion was so grossly unfair as to taint his entire trial or the punishment phase.
Second, the state courts found that Dr. Quijano engaged in speculation about how the
prison authorities would classify Prystash if he received a life sentence. Dr. Quijano himself
explained that he could not predict Prystash’s possible classification. Tr. Vol. 22 at 1236-37.
The trial court, nonetheless, allowed Dr. Quijano to testify in general terms about his opinion
of Prystash’s future dangerousness or this threat to others while incarcerated. Trial counsel
did not ask that question.
Prystash has not shown that the state court failed to follow its own law in limiting Dr.
Quijano’s testimony or that the limitation rendered the trial fundamentally unfair. The Court
concludes that Prystash has not shown that the state court’s denial of this claim was contrary
to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
IV.

PREJUDICIAL AND INFLAMMATORY CRIME SCENE PHOTOGRAPHS
(CLAIM FOUR)
Prystash contends that “the introduction of unfairly prejudicial, cumulative, and

irrelevant photographs into evidence” denied him a fair trial [Doc. # 52, p. 85]. Prystash
exhausted this claim in state court.
Under Texas law, “photographs are admissible regardless of their inflammatory nature
if they are competent, material, and relevant, and unless they are offered solely to inflame
the minds of the jury.” Woods v. Johnson, 75 F.3d 1017, 1038 (5th Cir. 1996). Prystash
complains about two groups of photographs that the State put before the jury. In the first
group, the State introduced into evidence photographs of the crime scene, some of which
included Farah’s body. Tr. Vol. 18 at 374-75. Prystash argued that the photographs were
not relevant to any issue in the case, their prejudicial effect outweighed their probative value,
and that one of them was gruesome. In the second group, the State introduced autopsy
photographs depicting the victim’s gunshot wounds that Assistant Medical Examiner
Vladimir Parungao described during his trial testimony. Tr. Vol. 19 at 764-66. Prystash
argued that the autopsy photographs were gruesome and that they were more harmful than
49

helpful. The trial court overruled Prystash’s objection to both sets of photographs and
received them into evidence. Tr. Vol. 18 at 375; Vol. 19 at 769-70.
The state habeas court found that the trial court did not abuse its discretion in the
admission of the challenged photographs. S.H.R. at 194. The state habeas court found that
the photographs “depicted . . . events about which witnesses testified,” were “probative to
the State’s theory of the offense,” and that the probative value that was not outweighed
“substantially by any prejudicial value.” S.H.R. at 194. Prystash must show that the state
court’s adjudication of this claim was contrary to, or an unreasonable application of, federal
law.
State law matters, such as the admission of evidence, generally do not serve as
grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t
is not the province of a federal habeas court to reexamine state-court determinations on
state-law questions.”); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus
relief does not lie for errors of state law.”). “The Fifth Circuit has specifically held that
graphic crime scene photographs do not offend due process principles” when they “serve[ ]
to illustrate and make more understandable the officers’ testimony which described the
[scene] and its condition, and the location and condition of the deceased’s body and the
nature and extent of the injuries to the deceased.” Woods, 75 F.3d at 1039. Although some
of the photographs in this case were quite gruesome, the United States Constitution does not
require the prosecution to use the least inflammatory photographs available. Indeed, truly
relevant photographs are admissible regardless of their inflammatory nature. See Woods, 75
F.3d at 1038-39.
The photographs in issue had a modicum of probative value and did not mislead the
jury or misrepresent facts. The trial was not rendered legally unfair by their introduction and
the state court’s determination was not unreasonable.
V.

INEFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND HABEAS
COUNSEL (CLAIM FIVE)
Prystash complains that he received constitutionally ineffective representation at the
50

trial, appellate, and state habeas levels of review. Prystash raised most his ineffectiveassistance-of-counsel arguments for the first time on federal review. Because the TCCA did
not authorize successive proceedings on any ineffective-assistance claim when this Court
stayed the case, Prystash’s arguments face a procedural bar. Prystash contends that he can
overcome the procedural bar under Martinez and Trevino because state habeas counsel did
not advance his claims previously. The Court finds, however, that Prystash does not provide
an actionable basis for federal review.
Whether his claim attacks efforts by his trial, appellate, or habeas counsel, Strickland
v. Washington, 466 U.S. 668, 686 (1984), provides the general conceptual framework for
judging an attorney’s representation. Under Strickland, a criminal defendant’s Sixth
Amendment rights are “denied when a defense attorney’s performance falls below an
objective standard of reasonableness and thereby prejudices the defense.” Yarborough v.
Gentry, 540 U.S. 1, 3 (2003) (emphasis added); see also Rompilla v. Beard, 545 U.S. 374,
387 (2005); Wiggins v. Smith, 539 U.S. 510, 520 (2003).
“[T]he perspective of hindsight” often leads to a “natural tendency to speculate as to
whether a different trial strategy might have been more successful.” Lockhart v. Fretwell,
506 U.S. 364, 372 (1993). Strickland jurisprudence affords a counsel’s efforts a significant
level of deference because “[e]ven the best criminal defense attorneys would not defend a
particular client in the same way.” Richter, 562 U.S. at 106 (quotation omitted). Thus,
“[j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”
Strickland, 466 U.S. 668, 689 (1984). The law honors an attorney’s “conscious and informed
decision on trial tactics and strategy,” allowing for federal relief only when “it is so ill chosen
that it permeates the entire trial with obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746,
752-53 (5th Cir. 2003).
With that deference, courts “must be particularly wary of arguments that essentially
51

come down to a matter of degrees. Did counsel investigate enough? Did counsel present
enough mitigating evidence? Those questions are even less susceptible to judicial
second-guessing.” Skinner v. Quarterman, 576 F.3d 214, 220 (5th Cir. 2009) (internal
quotation marks omitted). An inmate raising an ineffective-representation claim must rely
on more than complaints and conclusory statements. Conclusory allegations, unsupported
by the record or sufficient detail, provide an insufficient basis for a Strickland claim. See
Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (“[M]ere conclusory allegations on a
critical issue are insufficient to raise a constitutional issue.”). Instead, a “claim of ineffective
assistance of counsel must be stated with specificity; conclusory allegations are insufficient
to raise a constitutional issue.” United States v. Whitehead, 393 F. App’x 226, 227 (5th Cir.
2010); see also United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (“A defendant
who alleges a failure to investigate on the part of his counsel must allege with specificity
what the investigation would have revealed and how it would have altered the outcome of
the trial.”). “In the absence of a specific showing of how [an attorney’s] alleged errors and
omissions were constitutionally deficient, and how they prejudiced his right to a fair trial, [a
court can find] no merit to these [claims].” Barnard v. Collins, 958 F.2d 634, 642 (5th Cir.
1992).
A.

Trial Counsel

Prystash raises five challenges to trial counsel’s representation. Prystash exhausted
the first two arguments in his initial state habeas application; AEDPA review governs those
claims. The TCCA refused to authorize successive state review of the remaining three,
which results in a procedural bar to this federal court’s consideration of their merits.
Prystash provides only cursory briefing on each allegation against trial counsel. In this
posture, the ineffective-assistance-by-trial-counsel claims do not warrant federal habeas
relief.
The Court nevertheless addresses each argument.
1.

Introduction of Guidry’s Confession into Evidence

Prystash complains that trial counsel provided deficient representation by introducing
52

into evidence the arrest warrants that ultimately led to the jury hearing Guidry’s confession.20
Prystash argues that if “the confession itself had been offered by the State, it, presumably,
would not have been admissible, as its disclosure to the jury would have violated Prystash’s
constitutional right to confront the witnesses against him” [Doc. # 52, p. 89].
Prystash raised this claim on state habeas review. S.H.R. at 23-24. Trial counsel
provided an affidavit in response to Prystash’s disagreement with the introduction into
evidence of the arrest warrants and supporting affidavits. Trial counsel emphasized the
defense’s dual approach to the guilt/innocence phase: (1) trying to convince the jury to
disregard Prystash’s statement by arguing that unconstitutional police action forced him to
confess and (2) minimizing Prystash’s role in the case by emphasizing that Guidry was the
actual shooter. S.H.R. at 202. Trial counsel explained why the defense offered the warrants
into evidence:
I chose to admit State’s 96 and 97, two “pocket warrants” for the arrest of
Prystash dated March 8 and March 10, 1995, into evidence in an attempt to
impeach the police officers’ testimony concerning the circumstances of Joseph
Prystash’s arrest. My effort was to try to explain to the jury how the police
were playing games with Prystash, because the police had two warrants but
attempted to “make friends” with him and did not arrest him until March 13,
1995. The appellate record will reflect my repeated questions to Sgt. Roberts
and Sgt. Billingsly concerning the procedures the police used with the first and
second “pocket” warrants, including the police initially not placing him in jail
when the first warrant was executed, the length of time he was questioned after
the execution of the second warrant, the circumstances of the questioning, how
many times he was questioned, the police’s intent to arrest Prystash on March
8, 1995, and about the procedures of Prystash’s questioning. The majority of
the information contained in the arrest warrant affidavits was also in Prystash’s
statement which was admitted into evidence.
S.H.R. at 203.
The state habeas court found trial counsel’s explanation credible. S.H.R. at 188.

20

During Detective Robert’s cross-examination, “trial counsel, not the State, introduced
into evidence State’s Exhibits 96 and 97, [Prystash’s] two arrest warrants, including
the affidavits. . . .” S.S.H.R. at 548-49.
53

Also, the state habeas court found that the information contained in Guidry’s confession was
merely cumulative of that found elsewhere in the record. S.H.R. at 188. On that basis, the
state habeas court concluded that “[t]rial counsel are not ineffective for pursuing the
reasonable trial strategy of attempting to impeach the police officers’ testimony concerning
the arrest of [Prystash] by introducing State’s Exhibits 96 and 97. . . and attacking the
circumstances of [Prystash’s] arrest warrants, arrest, questioning, and confession.” S.H.R.
at 195. The state habeas court particularly noted that the information in the warrants was
“corroborated in other portion’s [sic], of [Prystash’s] trial, including [his] own statements.”
S.H.R. at 195.
Prystash makes no effort to show that the state habeas adjudication was contrary to,
or an unreasonable application of, federal law. Because a petitioner must satisfy both prongs
of the Strickland test, a failure to establish either deficient performance or actual prejudice
will ordinarily make it unnecessary to examine the other prong. See Strickland, 466 U.S. at
700; Ransom v. Johnson, 126 F.3d at 716, 721 (5th Cir. 1997). The state habeas court
concluded that Prystash had not shown Strickland prejudice because Guidry’s confession was
merely cumulative of other trial evidence. S.H.R. at 188. Specifically, the state habeas court
found,
based on the evidence elicited at trial, that the information contained in the
affidavits of State’s Exhibits 96 and 97, introduced into evidence by counsel,
was presented in the following other parts of [Prystash’s] trial: [Prystash’s]
statements; Mary Gipp’s testimony as to [Prystash’s] involvement in the
offense with co-defendants Robert Fratta and Howard Guidry; testimony
corroborating the phone calls made on the night of the offense; the State’s
investigation revealing that Guidry was a suspect; Guidry’s possession of
codefendant Fratta’s gun; and, Billingsley’s testimony about his March 8, 1995
conversation with [Prystash].
S.H.R. at 188. The more detailed account of the murder-for-hire from Prystash’s own
confession and Gipp’s testimony echoed, and made commutative, Guidry’s confession that
the police officers used to establish probable cause for the warrants. Thus, the addition of
the warrants and accompanying affidavit to the trial record did not have a meaningful

54

prejudicial effect. Given the law and facts of record, Prystash has not shown that the
admission of the warrants into evidence created a reasonable probability of a different result.
Prystash has failed to meet his AEDPA burden on this issue.
2.

Gipps’ Testimony

Prystash complained on state habeas review that trial counsel should have objected
when Detective Roberts “was permitted to testify that Mary Gipp – who could have been and
indeed was called as a State witness – told him that Howard Guidry was involved in the
Fratta shooting and that Guidry was in jail for bank robbery” [Doc. # 52, p. 90]. See Tr. Vol.
18 at 465-67 (Detective Roberts’ testimony). The state habeas court, however, found that
Detective Roberts’ testimony was not inadmissible hearsay under state law because it “was
not offered for the truth of the matter but was an explanation of how the police arrived at a
suspect in the offense.” S.H.R. at 194-95 (citing Dinkins v. State, 894 S.W.2d 330, 347 (Tex.
Crim. App. 1995). Accordingly, the state habeas court found that “[c]ounsel cannot be
considered ineffective for lack of objection to Roberts’ proper testimony.” S.H.R. at 195.
The Constitution does not require counsel to make futile motions or objections. See
Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002). Prystash does not show that the state
habeas court was wrong in its assessment of Texas evidentiary law. Nor does he establish
that state evidentiary rulings are subject to federal habeas review. See Jones v. Cain, 600
F.3d 527, 536 (5th Cir. 2010). More significantly, Prystash has not shown prejudice from
the questioned testimony by Detective Roberts. The information was merely cumulative of
Gipp’s own testimony presented later in the trial. Prystash has not demonstrated that the
state court was wrong, much less unreasonable, in finding no Strickland error. Prystash fails
to meet his AEDPA burden on this issue.
3.

Mental Health Evidence

Prystash raises a procedurally barred complaint about trial counsel’s investigation into
Prystash’s mental health. Prystash argues that “trial counsel failed to conduct a thorough
investigation into mitigating factors relevant to the jury’s consideration of punishment,”
particularly because “trial counsel failed to engage and properly consult with a mental health
55

professional” [Doc. # 52, pp. 90, 93]. Prystash specifically complains that “[t]he jury never
knew or even heard any evidence regarding Prystash’s poor mental health, including prior
diagnoses of schizophrenia, below average IQ, and potential fetal alcohol syndrome. (See
letter attached as Exhibit B)” [Doc. # 52]. Prystash did not attach any exhibit to his amended
petition. In an earlier version of his petition, however, Prystash did attach a letter that trial
counsel apparently received during trial preparation. From the letter’s contents, it appears
that trial counsel arranged for a licensed psychologist to interview Prystash for three hours
before trial, and thus engaged in some form of investigation into Prystash’s mental health.
The psychologist stated in the letter that, from the interview, he “became acquainted
with [Prystash’s] history of multiple accidents and possible head injuries, as well as his years
of use of various steroids and growth hormones” [Doc. # 15, Exhibit B]. The psychologist
added: “As all of these things may greatly impact one’s neurological status and functioning,”
the psychologist recommended “a neurological evaluation, including EEG and MRI” and
“neuropsychological testing to determine what functional limitations Mr. Prystash may have,
if any.” Id. The expert did not mention any earlier diagnosis of mental illness, low IQ, or
fetal alcohol syndrome.
Prystash’s allegations in the petition that his trial attorneys’ investigation failed to
uncover certain evidence of mental illness or disease is insufficient for a successful
Strickland challenge. A habeas petitioner “must allege with specificity what the investigation
would have revealed and how it would have changed the outcome of the trial.” Miller v.
Dretke, 420 F.3d 356, 361 (5th Cir. 2005); see also Greer v. Thaler, 380 F. App’x 373, 386
(5th Cir. 2010); Carty v. Quarterman, 345 F. App’x 897, 903 (5th Cir. 2009); St. Aubin v.
Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006); Duff-Smith. v. Collins, 973 F.2d 1175,
1183 (5th Cir. 1992); United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
In the case at bar, the record shows that trial counsel made some effort to pursue
mitigating evidence relating to mental illness. However, in connection with his habeas
application, Prystash has presented no evidence that in fact he suffered from mental illness
or neurological deficit in any respect, let alone a condition that would support exculpation
56

or mitigation.

The Court cannot speculate about unexplored areas of mental-health

mitigating evidence or how such matters likely would have influenced jurors. Prystash has
failed to show deficient performance or prejudice under Strickland and the claim is rejected.
4.

Ballistics Testing

Prystash raises a procedurally barred argument that trial counsel was ineffective
because the defense “failed to perform its own ballistics testing for the bullets that allegedly
killed Farah Fratta” [Doc. # 52, p. 94]. Prystash, however, provides no reason that a
reasonably effective attorney would have done so. Prystash neither provides any specific
reason for which ballistics testing was necessary nor briefs any error that flowed from its
absence. This claim fails under both the deficient performance and the prejudice prongs of
Strickland.
5.

Dr. Quijano

Finally, Prystash raises a procedurally barred claim faulting trial counsel because Dr.
Quijano, a psychologist, “was not permitted to testify to the future dangerousness of
Prystash” as a result of trial counsel’s failing “to schedule even one meeting between
Prystash and the expert” [Doc. # 52, p. 95]. As previously discussed, however, the trial court
did not limit Dr. Quijano’s ability to discuss Prystash’s future dangerousness; the court
prevented Dr. Quijano from speculating about Prystash’s possible future prison
classification.21 Prystash has not established that one or more meetings between Dr. Quijano
and Prystash would have changed the trial court’s ruling on Dr. Quijano’s testimony or, more
importantly, would have affected the jury’s assessment of Prystash’s future dangerousness
for sentencing purposes. The Court denies this claim.
B.

Appellate Counsel

In two paragraphs of argument, Prystash raises a procedurally barred claim alleging
that his appellate attorney was ineffective for not raising specific issues. The total of his
21

As the TCCA found: “Never did the trial court prevent Dr. Quijano from stating his
opinion of the continuing threat posed [Prystash]. . . . Dr. Quijano was free to
elaborate as to the threat posed by [Prystash].” Prystash, 3 S.W.3d at 522.
57

ineffective-assistance-of-appellate counsel argument in his petition is that:
Prystash’s direct appeal counsel failed to raise any ineffective assistance of
counsel claims; any claims related to Prystash’s unconstitutionally-obtained
confessions; any of the issues surrounding Guidry’s unconstitutionallyobtained confession which was presented at trial; issues involving the State’s
Batson violations; and the State’s Witherspoon violation.
Although trial counsel was aware of the arguments surrounding Prystash’s
alleged confession – and, indeed, raised some of the arguments in the Motion
to Suppress Confession – counsel nonetheless failed to raise any of them on
appeal. The failure of direct appeal counsel to raise the issues involving
Prystash’s alleged confessions and other aspects of the State’s case against him
constitutes ineffective assistance of counsel, because there is a reasonable
likelihood that the Texas Court of Criminal Appeals would have granted
Prystash a new trial.
Petition [Doc. # 52], p. 95.
“Mere conclusory allegations in support of a claim of ineffective assistance of counsel
are insufficient to raise a constitutional issue.” Green v. Johnson, 160 F.3d 1029, 1042 (5th
Cir. 1998). Cursory allegations of error fail to provide a sufficient basis on which to find that
appellate counsel provided deficient performance and that a reasonable probability exists that
the result would have been different had counsel performed otherwise.
On the merits of the raised claims, however, there were significant hurdles even if
asserted on direct appeal. At this federal habeas stage, despite meaningful procedural
impediments, the Court has addressed many of the issues upon which Prystash bases his
ineffective-assistance-of-appellate-counsel claim.

The rest will be addressed in the

discussions that follow. The Court has found no underlying claim with merit when reviewed
under applicable standards. Thus, the law requires the denial of Prystash’s ineffectiveassistance-of-appellate-counsel claim.
C.

State Habeas Counsel

Prystash also claims that ineffective representation by his state habeas attorney is
grounds for federal habeas relief. In general, “no constitutional right to habeas counsel in
state collateral proceedings exists, so [an inmate] cannot claim a constitutional violation.”
58

Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001); see also Fairman v. Anderson, 188
F.3d 635, 643 (5th Cir. 1999) (“[B]ecause appointment of counsel on state habeas is not
constitutionally required, any error committed by an attorney in such a proceeding cannot be
constitutionally ineffective.”); 28 U.S.C. § 2254(i) (providing that the ineffectiveness or
incompetence of counsel during state collateral post-conviction proceedings shall not be a
ground for relief). Simply, “there is no constitutional right to competent habeas counsel.”
Barraza v. Cockrell, 330 F.3d 349, 352 (5th Cir. 2003). However, to the extent Prystash’s
claims of ineffective habeas representation relate to a showing of cause and prejudice to
overcome a procedural bar, the claims will be considered. See Martinez, 132 S. Ct. at 1320
(observing that the Martinez Court’s decision only allows “the ineffectiveness of [a]
postconviction attorney to excuse his failure to comply with [a State’s] procedural rules, not
as an independent basis for overturning [an inmate’s] conviction”).
After careful consideration, the Court concludes that Prystash has not made a
probative showing that his habeas counsel provided ineffective representation. To overcome
a procedural bar, a petitioner must establish that “the claim should have been raised, [that
state habeas counsel] was ineffective under the standards of [Strickland]” and that “the
underlying ineffective-assistance-of-trial-counsel claim is a substantial one.” Martinez, 132
S. Ct. at 1318-19. Prystash’s arguments address solely the first Martinez prong, essentially
that habeas counsel failed to raise various claims. The record does not establish that
counsel’s omission constituted deficient performance as defined under Strickland, nor
persuasive explanation that the identified errors or omissions were substantial enough to
constitute cause under the procedural bar doctrine. See Hittson v. GDCP Warden, 759 F.3d
1210, 1265 (11th Cir. 2014) (finding that “generalized allegations are insufficient in habeas
cases” to meet the Martinez exception); see also Smith v. Murray, 477 U.S. 527, 535 (1986)
(“‘[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or
failed to raise the claim despite recognizing it, does not constitute cause for a procedural
default.’” (quoting Murray v. Carrier, 477 U.S. 478, 486-87 (1986)). In any event, as
explained elsewhere in this Memorandum, the Court has reviewed the ineffective-assistance
59

claims and the related arguments of prejudice, but has found no error of federal constitutional
dimension. Prystash has not shown actual prejudice to allow full review of his claims.
D.

Conclusion of Ineffective Assistance Claims

Prystash has raised several arguments of ineffective assistance by his prior attorneys.
Most of these claims were not presented to the state court in a procedurally proper manner,
thus impeding federal review of their merits. The Court, nevertheless, has reviewed the
briefing, the record, the relevant law, and the particulars of counsel’s alleged errors. Taken
individually or collectively, Prystash’s arguments of error do not establish a reasonable
probability of a different result under the Strickland standard. The Court denies Prystash’s
ineffective-assistance-of-counsel claims.
VI.

PRYSTASH’S SECONDARY CLAIMS
Prystash divides the claims in his federal petition into two groups: the “primary” and

“secondary” arguments. Prystash categorizes claims six through twelve as “secondary,”
which he candidly defines as “cogent arguments for the vacatur of Petitioner’s conviction,
yet may require an extension of the law” [Doc. # 52, p. 34]. As each secondary claim is
foreclosed by procedural rules or substantial adverse precedent, the Court only briefly
discusses these claims.
A.

Removal of Prospective Jurors for Cause (Claim Six)

Prystash argues that his Sixth Amendment right to an impartial jury was violated when
the State used peremptory strikes against jurors “who stated some opposition or equivocation
on the death penalty” [Doc. # 52, p. 102].22 Under the jurisprudence flowing from
Witherspoon v. Illinois, 391 U.S. 510 (1968), the Constitution does not allow the State to
exclude for cause potential jurors who express mere hesitancy in their ability to sentence a

22

Prystash did not raise his Witherspoon claim in his initial state appellate or habeas
proceedings. The unehxausted nature of this claim procedurally bars federal review
absent an adequate showing of cause and actual prejudice. The lack of constitutional
support for the claim precludes Prystash from showing actual prejudice to overcome
the procedural bar.
60

defendant to death. See Morgan v. Illinois, 504 U.S. 719, 732 (1992) (emphasis added); see
also Adams v. Texas, 448 U.S. 38, 45 (1980). The State did not ask for a for-cause dismissal
of potential jurors who expressed hesitancy to impose a death sentence; the State removed
them by peremptory challenge. Prystash asks this Court to broaden the Witherspoon rule to
disallow the peremptory strike of “jurors whom the State could not properly excuse for cause
under Witherspoon” [Doc. # 52, p. 102].23
Other than the limited exceptions under Batson jurisprudence in which a strike would
violate the Equal Protection clause, “[t]he essential nature of the peremptory challenge is that
it is exercised without a reason stated, without inquiry and without judicial control.” Swain
v. Alabama, 380 U.S. 202, 220 (1965); see also Adams, 448 U.S. at 48. Given the
discretionary nature of peremptory strikes, the Fifth Circuit has stated that the “[e]xercise of
peremptory challenges . . . does not implicate Witherspoon.” Sonnier v. Maggio, 720 F.2d
401, 406 (5th Cir. 1983). In fact, directly contrary to Prystash’s argument, the Fifth Circuit
has “‘consistently held that in capital cases peremptory challenges may be used to exclude
those [prospective jurors] who express hesitancy about imposing the death penalty but whose
exclusion for cause is forbidden by Witherspoon.’” Andrews v. Collins, 21 F.3d 612, 628
(5th Cir. 1994) (quoting Sonnier, 720 F.2d at 406); see also Holland v. Anderson, 230 F.
App’x 374, 381 (5th Cir. 2007).24
Even if this Court were to grant Prystash’s Witherspoon claim, the Court would be
23

To support this extension of the law, Prystash relies solely on a dissent from the
denial of certiorari written by Supreme Court Justice William J. Brennan Jr. in Brown
v. North Carolina, 479 U.S. 940 (1986). Justice Brennan argued that the prohibition
of race-based peremptory strikes from Batson v. Kentucky, 476 U.S. 79 (1986), should
extend to prospective jurors for whom the State could not otherwise strike for cause
under Witherspoon.

24

As Justice O’Connor stated in her opinion concurring to the denial of certiorari in
Brown v. North Carolina, “[p]ermitting prosecutors to take into account the concerns
expressed about capital punishment by prospective jurors, or any other factor, in
exercising peremptory challenges simply does not implicate the concerns expressed
in Witherspoon.” 479 U.S. 940, 941 (1986) (O’Connor J., concurring).
61

creating a new rule of constitutional law in violation of Teague v. Lane. Whether because
of its procedural deficiencies or its novel constitutional footing, Prystash has not shown
habeas relief is available to him on his Witherspoon claim.
B.

Mitigating Value of Evidence about the Prosecution’s Plea Offer (Claim
Seven)

Prystash claims that the trial court violated his constitutional rights by limiting the
presentation of mitigating evidence. Before trial the prosecution offered Prystash a plea deal
of “55 years on murder,” in exchange for cooperation and his testimony against his
co-defendants. Prystash refused the plea offer. Tr. Vol. 22 at 1172-77. During the
punishment phase, the defense tried to offer into evidence a letter from the District
Attorney’s Office detailing the plea offer. The trial court excluded the letter “because he was
concerned that if the plea agreement was made public, it might affect the trial of [Prystash’s]
co-defendant.” Prystash, 3 S.W.3d at 527. Prystash complains that the trial court’s ruling
violated the Eighth Amendment by prohibiting jurors from considering mitigating evidence
relevant to his sentence.
Prystash raised this claim on direct appeal. The TCCA did not approve of the reason
why the trial court excluded the letter. The appellate court remarked that “[c]oncern for the
impact on a subsequent trial should be dealt with in that case through the voir dire of
prospective jurors, a continuance, or a venue change. Prystash, 3 S.W.3d at 527 (citations
omitted). Assuming without deciding that this evidence is “minimally relevant to a State
District Attorney’s office belief that the defendant was not a future danger,” id. at 527-28,
the TCCA articulated several reasons for disallowing information about a rejected plea. The
TCCA stated “the probative value of such evidence is substantially outweighed by the danger
of both unfair prejudice and of misleading the jury”; “[t]he multitude of motivations that a
prosecutor may have in offering a life sentence in a capital case dilute the probative value of
that offer and may mislead the jury as to the true motivations of the prosecutor”; “[p]ublic
policy favors the conclusion of litigation by compromise and settlement . . . [and]
introduc[ing] evidence about a sentence offered by the State during plea negotiations clearly
62

militates against this policy.” Id. at 528 (citations omitted). The TCCA, accordingly, held
that “[t]he decision to admit or exclude this evidence was soundly within the discretion of
the trial judge.” Id.
This Court’s role on federal habeas review is not to ascertain whether the Texas courts
should have admitted evidence of the plea bargain under Texas law. See Schaetzle v.
Cockrell, 343 F.3d 440, 448-49 (5th Cir. 2003) (“It is not our function as a federal appellate
court in a habeas proceeding to review a state’s interpretation of its own law.”). This Court’s
role is only to decide whether the exclusion of the evidence was unreasonable in light of
clearly established federal constitutional law. See Simmons v. Epps, 654 F.3d 526, 544 (5th
Cir. 2011).
A capital defendant has a constitutional right to present mitigation evidence relating
to “any aspect of a defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio,
438 U.S. 586, 604 (1978). The Supreme Court, however, has never preempted or federalized
a State’s ability to exclude some evidence under its traditional evidentiary framework. See
Nevada v. Jackson, ___ U.S. ___, 133 S. Ct. 1990, 1992 (2013) (“[O]nly rarely have we held
that the right to present a complete defense was violated by the exclusion of defense evidence
under a state rule of evidence.”); Romano v. Oklahoma, 512 U.S. 1, 12 (1994) (“The Eighth
Amendment does not establish a federal code of evidence to supersede state evidentiary rules
in capital sentencing procedures.”). Trial courts retain “the traditional authority . . . to
exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the
circumstances of his offense.” Lockett, 438 U.S. at 604, n.12. In application, the Supreme
Court has allowed trial courts to exclude as irrelevant punishment-phase evidence such as
that involving alleged innocence or residual doubt. See Oregon v. Guzek, 546 U.S. 517, 52324 (2006); Franklin v. Lynaugh, 487 U.S. 164, 174 (1988) (plurality opinion).
The Supreme Court has not clearly established that evidence of unsuccessful plea
negotiations is relevant for mitigation purposes.

Indeed, some federal courts have

specifically questioned whether failed plea negotiations are even relevant evidence. See
63

Hitchcock v. Sec’y, Florida Dep’t of Corr., 745 F.3d 476, 484 (11th Cir. 2014) (Courts are
chary to “requir[e] the admission of rejected plea offers as mitigating evidence in capital
cases” as it “could have the pernicious effect of discouraging prosecutors from extending
plea offers in the first place, lest those offers come back to haunt them at sentencing.”);
Wright v. Bell, 619 F.3d 586, 598-601 (6th Cir. 2010) (“Allowing a defendant to use plea
negotiations in mitigation would clearly discourage plea negotiations in capital cases as
prosecutors would correctly fear that during the second stage proceedings, they would be
arguing against themselves.”); Owens v. Guida, 549 F.3d 399, 420-21 (6th Cir. 2008).
Prystash argues that plea negotiations were relevant to the future-dangerousness
special issue because it showed that “the prosecutors had evaluated Prystash’s personal,
particularized situation, and had offered him not life, but 55 years imprisonment” under the
assumption that “the State itself had determined that life may have been more appropriate
than death” [Doc. # 52, p. 105]. Prystash’s argument lacks merit. It relies on pure
speculation about the State’s motive in offering him a plea deal. A prosecutor may have
many reasons for making a plea offer, some of which are wholly unrelated to an inmate’s
future dangerousness. For example, prosecutors may engage in plea negotiations to
compensate for insufficient evidence unrelated to an inmate’s danger to others, to preserve
resources that are inadequate for prosecuting a capital crime, to save a victim’s family the
emotional trauma of trial, to reward an inmate for accepting responsibility, to avoid a
potential acquittal, and because of other factors.
Prystash’s argument that the prosecution made the 55-year imprisonment offer to him
because he was no future threat is therefore unavailing. No federal law holds that the
Constitution mandates the admission of rejected plea offers as relevant mitigating evidence
at sentencing, and the state court was not unreasonable in declining to extend existing law
in that manner. Prystash has not shown that the state court’s rejection of this claim was
contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).

64

C.

Absence of an Anti-Parties Special Issue (Claim Eight)

The jury instructions in the guilt/innocence phase allowed for Prystash’s conviction
under Texas’s law of parties. Consistent with Texas law, the trial court instructed the jury
that Prystash could be convicted as a party “if the offense is committed by his own conduct,
by the conduct of another for which he is criminally responsible, or both.” Clerk’s Record
at 403; see TEX. PENAL CODE ANN. §§ 7.01, 7.02. The trial court instructed that Prystash
could be responsible for any offense “committed by the conduct of another if, acting with
intent to promote or assist the commission of the offense, he solicits, encourages, directs,
aids, or attempts to aid the other person to commit the offense. Mere presence alone will not
constitute one a party to an offense.” Clerk’s Record at 403. Thus, the jury was informed
it could convict Prystash of capital murder even if he did not pull the trigger himself, if it
found he acted with intent to promote or assist the commission of the offense.
It is clear that allowing a conviction on party liability raises questions about individual
sentencing. The Supreme Court in Enmund v. Florida, 458 U.S. 782, 801 (1982), held that
the Eighth Amendment mandates that the punishment for participation in capital murder be
tailored for “personal responsibility and moral guilt.” In 1991, Texas accommodated
Enmund by using a separate special issue when the jury instructions allow for a defendant’s
conviction as a party to a capital offense. By statute, “in cases in which the jury charge at
the guilt or innocence stage permitted the jury to find the defendant guilty as a party under
Sections 7.01 and 7.02, Penal Code,” the trial court instructs jurors to decide a separate
special issue question that asks “whether the defendant actually caused the death of the
deceased or did not actually cause the death of the deceased but intended to kill the deceased
or another or anticipated that a human life would be taken.” TEX. CRIM. PROC. CODE, art.
37.071 § 2(b)(2). This instruction, often called an “anti-parties charge,” “protects the
defendant’s constitutional rights by ensuring that a jury’s punishment-phase deliberations are
based solely upon the conduct of that defendant and not that of another party.” Martinez v.
State, 899 S.W.2d 655, 657 (Tex. Crim. App. 1994) (1995); see also McFarland v. State, 928
S.W.2d 482, 516 (Tex. Crim. App. 1996). “[T]he point of the anti-parties charge is to direct
65

the jury’s focus to the conduct or mental state of the defendant as opposed to that of a
co-defendant or accomplice.” Solomon, 49 S.W.3d at 371.
Prystash argues that the trial court violated his constitutional rights by “accept[ing]
an illegal and incomplete verdict which did not contain an answer to the ‘anti-parties’ special
issue” [Doc. # 52, p. 105]. Before the punishment phase, Prystash filed a motion to
determine the constitutionality of the “anti-parties” special issue question. Clerk’s Record
at 225-27. Prystash acknowledged that the trial court should deliver the statutory “antiparties” charge, but argued that it failed to provide the jury with any guidance as to his
deathworthiness. Clerk’s Record at 225-27. After the trial court denied the motion, Tr. Vol.
4 at 243, Prystash requested that the trial court refrain from posing the anti-parties question.
Trial counsel argued, “Judge the defendant’s position is that we would waive [the anti-parties
special issue], if at all possible.

We consider [the anti-parties special issue] to be

unconstitutional and on those grounds as previously stated to the Court, we don’t want that
question.” Tr. Vol. 6 at 181. The trial court accordingly required the jury to decide two
special issues: (1) whether Prystash would be a future societal danger and (2) whether
sufficient circumstances mitigated against the imposition of a death sentence. Clerk’s Record
at 441-42. The trial court did not put the anti-parties special issue before the jury.
On direct appeal, Prystash argued that the trial court erred in failing to submit the antiparties special issue. The TCCA found that an inmate cannot waive the statutory anti-parties
special issue.25 Nevertheless, the TCCA held that Prystash invited any error by requesting
the omission of the anti-parties issue. See State v. Moreno, 294 S.W.3d 594, 601 (Tex. Crim.
App. 2009) (“The invited-error doctrine estops a party from complaining that a trial judge
erred when that party affirmatively sought the ruling.”). The TCCA concluded: “we will not
25

The appellate court, in fact, reaffirmed that it could not allow “trial courts and
criminal defendants to mutually consent to usurp the powers of the legislature. Thus,
we must affirm the principle of absolute requirements and prohibitions which are not
optional, waivable, or forfeitable, stating that neither a capital murder defendant nor
a trial court may ignore the statutory scheme mandated . . . Article 37.071.” Prystash,
3 S.W.3d at 530 (quotation omitted).
66

permit [Prystash] to complain of the trial court’s deleting a jury charge as he requested.”
Prystash, 3 S.W.3d at 531.
On federal habeas review, Prystash argues that Texas law “does not permit waiver”
of the anti-parties special issue and it “is, thus, a mandatory part of the jury charge” [Doc.
# 52, pp. 106-07]. The TCCA agreed with this argument. Prystash, however, does not
address the TCCA’s further holding that he invited the error, and does not brief that
doctrine’s impact, procedurally or substantively, on federal habeas review. The Court turns
to that question.
Federal law treats a Texas court’s invocation of the invited error doctrine as a species
of state procedural bar. See Druery v. Thaler, 647 F.3d 535, 545 (5th Cir. 2011); Tucker v.
Johnson, 115 F.3d 276, 280-81 (5th Cir. 1997). Prystash may overcome this bar only by
showing “cause for the default and actual prejudice as a result of the alleged violation of
federal law” or “that failure to consider the claims will result in a fundamental miscarriage
of justice.” Neville v. Dretke, 423 F.3d 474, 480 (5th Cir. 2005) (quoting Coleman v.
Thompson, 501 U.S. 722, 750 (1991)). Prystash has not shown that the state’s invited error
doctrine, which is a procedural rule, is not adequate to bar federal review. Nor has he shown
that there is sufficient cause or that he has suffered prejudice as a result of the absence of the
anti-parties special issue to excuse the procedural default. Finally, there is no showing that
imposition of this procedural bar would result in a fundamental miscarriage of justice.
In addition, the Fifth Circuit has previously rejected constitutional claims based on
the absence of an anti-parties special issue. The Fifth Circuit has held that “the [two
standard] punishment special issues adequately allowed the jury to give mitigating effect to
claimed ‘nontriggerman’ status, notwithstanding the absence of an ‘anti-parties’ instruction
at sentencing.” Nichols v. Scott, 69 F.3d 1255, 1267 (5th Cir. 1995).26 Prystash does not

26

See also Jacobs v. Scott, 31 F.3d 1319, 1326 & n. 13 (5th Cir. 1994); Harris v.
Collins, 990 F.2d 185, 189 (5th Cir. 1993); Bridge v. Collins, 963 F.2d 767, 770 (5th
Cir. 1992); Stewart v. Collins, 978 F.2d 199, 201 (5th Cir.1992); Drew v. Collins, 964
(continued...)
67

discuss the constitutional adequacy of the other special issues to comply with Enmund’s
requirement for individual sentencing. Importantly, the State’s punishment phase argument
drew the jury’s attention to Prystash’s own involvement in the crime, rather than that of his
co-conspirators. For instance, the prosecutor argued:
More importantly has there ever been a middle man more involved in the
commission of a murder for hire than Joe Prystash. He didn’t just find the
shooter, he did everything. He did everything. The only thing he did not do
was dream up the idea or pull the trigger.
Tr. Vol. 22 at 1317. The record does not suggest that the jury based its punishment-phase
decision regarding Prystash on the personal responsibility or moral guilt of another or failed
to consider his own conduct.27 As such, Prystash thus fails to meet his burden of showing
an entitlement to relief on this issue under traditional habeas law and AEDPA’s demanding
standards.
D.

Texas’s “12-10” Rule (Claim Nine)

Prystash argues that the trial court’s punishment-phase instructions violated Mills v.
Maryland, 486 U.S. 367 (1988), by failing to adequately inform the jury on the effect of
hold-out jurors. In Mills, the Supreme Court “held invalid capital sentencing schemes that
require juries to disregard mitigating factors not found unanimously.” Beard v. Banks, 542
U.S. 406, 408 (2004) (emphasis added); see also Smith v. Spisak, 558 U.S. 139, 148 (2010);
McKoy v. North Carolina, 494 U.S. 433, 439-40 (1990). Because the Constitution mandates
26

(...continued)
F.2d 411, 421 (5th Cir. 1992).

27

Because the trial court instructed the jury in the guilt phase that Prystash could be
responsible for any offense “committed by the conduct of another if, acting with
intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense. Mere presence
alone will not constitute one a party to an offense,” Clerk’s Record at 403, the jury
was informed that it had to focus on whether Prystash personally acted with intent to
solicit or aid in the offense before it could reach a guilty verdict. Thus, even in the
absence of the second question, Prystash has not shown his conviction was not based
on his own conduct.
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that jurors be able to consider mitigating evidence, see Lockett v. Ohio, 438 U.S. 586, 604
(1978), Mills prohibits sentencing instructions that preclude jurors “from considering any
mitigating evidence unless all 12 jurors agreed on the existence of a particular such
circumstance.” Mills, 486 U.S. at 384 (emphasis added).
Consistent with article 37.071, § 2, of the Texas Code of Criminal Procedure
(commonly called the “12-10” Rule), the trial court told jurors that their votes for a death
sentence must be unanimous, but that ten or more jurors could return an answer resulting in
a life sentence. Clerk’s Record at 437-38. Prystash contends that, by not informing the jury
of the effect of a single dissenting vote or of a single hold-out juror, the instructions
predisposed the jurors to impose a death sentence, thus violating the Fifth, Eighth, and
Fourteenth Amendments. Prystash argues that the 12-10 Rule instruction gave jurors the
mistaken impression that they did not have an individual ability to prevent a death sentence,
thus precluding them from considering mitigating evidence.
The TCCA denied this claim on direct appeal court as it has “consistently upheld as
constitutional” Texas’s use of the 12-10 Rule. Prystash, 3 S.W.3d at 536. The Fifth Circuit
has held that Texas’s 12-10 Rule instruction “is wholly dissimilar to that involved in Mills,”
Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir. 1996), because “all jurors can take into
account any mitigating circumstance.” Jacobs, 31 F.3d at 1329. Unlike in Mills, “the
instructions did not say that the jury must determine the existence of each individual
mitigating factor unanimously.” Spisak, 558 U.S. at 148. On that basis, the Fifth Circuit has
repeatedly denied 12-10 Rule claims. See Allen v. Stephens, 805 F.3d 617, 632 (5th Cir.
2015); Holiday v. Stephens, 587 F. App’x 767, 789 (5th Cir. 2014); Reed v. Stephens, 739
F.3d 753, 779 (5th Cir. 2014); Parr v. Thaler, 481 F. App’x 872, 878 (5th Cir. 2012); Druery
v. Thaler, 647 F.3d 535, 542–43 (5th Cir. 2011); Greer v. Thaler, 380 F. App’x 373, 389 (5th
Cir. 2010). Prystash’s challenge to the 12-10 Rule thus fails in light of the AEDPA standards
of review.
The Fifth Circuit also has held that any extension of Mills to Texas’s penalty-phase
instructions would violate Teague v. Lane’s prohibition on habeas courts from creating new
69

constitutional law. See Druery, 647 F.3d at 542–43 (5th Cir. 2011). For these various
procedural and precedential reasons, this Court concludes that Prystash has not shown
entitlement to habeas relief based on the trial court’s 12-10 Rule instruction to the jury.28
E.

Burden of Proof on Aggravating Factors (Claim Ten)

Prystash argues that the Eighth Amendment requires the State to prove beyond a
reasonable doubt any aggravating elements in the punishment-phase, including those that
may be related to the defense’s mitigating evidence. The trial court, following Texas law,
required jurors to answer the mitigation special issue29 after “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 . . . .” Clerk’s Record at
442.30 Prystash argues that Texas has interpreted this special issue to encompass an
“expansive review” that allows jurors to review all trial evidence, “not just evidence a juror
might consider to be mitigating.” Scheanette v. State, 144 S.W.3d 503, 508 (Tex. Crim. App.
2004). In other words, he posits that “aggravating circumstances can be considered in
connection with the mitigation special issue” because they “may be relevant to determine
whether a particular mitigating circumstance or set of circumstances is sufficient to warrant
a life sentence.” Jackson v. State, 992 S.W.2d 469, 478 (Tex. Crim. App. 1999). Given that

28

While relief on the 12-10 Rule instruction is foreclosed, this Court has qualms about
the phrasing of the instruction, and urges that the state courts clarify the law for the
jury in a more comprehensible manner.

29

In Texas, before a defendant receives the death penalty, the jury must answer the
following: (1) whether the defendant would be a future societal danger and (2)
whether sufficient circumstances mitigated against the imposition of a death sentence.

30

Prystash filed a pre-trial motion seeking to question the prospective jurors as to
whether they would require the prosecution to prove, beyond a reasonable doubt, that
no circumstances mitigated against a death sentence. Clerk’s Record at 150-52. The
defense also asked that the trial court instruct the jurors to place a burden of proof on
the prosecution with respect to the consideration of mitigating evidence. Clerk’s
Record at 418-20. The trial court denied both motions.
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“this special issue is a conduit for aggravating factors (victim impact evidence, for example)
as well as mitigating factors,” Prystash contends that Texas’s capital sentencing statute is
constitutionally defective because it “places no burden of proof on the State with respect to
those factors . . .” [Doc. # 52, pp. 119, 121 (emphasis in original)]. Prystash also complains
that the absence of allocation of the burden of proof places the jury’s review of mitigating
evidence beyond appellate review.
Prystash bases this claim on Walton v. Arizona, 497 U.S. 639, 650 (1990), which he
reads to hold that “the Eighth Amendment requires the State to prove the existence of
aggravating factors during the capital punishment phase” [Doc. # 52, p. 118]. A capital
sentencing process must contain two elements: “the eligibility decision and the selection
decision.” Tuilaepa v. California, 512 U.S. 967, 972 (1994). “To render a defendant eligible
for the death penalty in a homicide case, [the Supreme Court has] indicated that the trier of
fact must convict the defendant of murder and find one ‘aggravating circumstance’ (or its
equivalent) at either the guilt or penalty phase.” Id. at 971-72. In Texas, jurors make the
eligibility decision in the guilt/innocence phase by finding that the defendant killed under one
of several specifically defined circumstances. See TEX. PENAL CODE § 19.03; Lowenfield
v. Phelps, 484 U.S. 231, 246-47 (1988); Jurek v. Texas, 428 U.S. 262, 270-71 (1976); Adams
v. Thaler, 421 F. App’x 322, 337 (5th Cir. 2011). Texas is “required to prove beyond a
reasonable doubt every finding prerequisite to exposing [the defendant] to the maximum
penalty of death.” Granados v. Quarterman, 455 F.3d 529, 536 (5th Cir. 2006). The United
States Supreme Court has held that “[o]nce the jury finds that the defendant falls within the
legislatively defined category of persons eligible for the death penalty, . . . the jury then is
free to consider a myriad of factors to determine whether death is the appropriate
punishment.” Tuilaepa, 512 U.S. at 980 (internal quotation marks omitted). In fact, the jury
has “unbridled discretion in determining whether the death penalty should be imposed after
it has been found that the defendant is a member of the class made eligible for that penalty.”
Id. at 979.
The TCCA observed on direct appeal that “the concerns of Walton are not implicated”
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because “the jury does not decide the mitigation special issue until after the State has proven
the elements of capital murder and that the defendant is a future danger . . . .” Prystash v.
State, 3 S.W.3d 522, 535 (Tex. Crim. App. 1999). The Fifth Circuit has similarly
commented that, by the time a jury considers the mitigation special issue, “it ha[s] already
found the existence of such aggravating circumstances, and ha[s] already determined that [the
defendant is] eligible to receive a death sentence.” Allen v. Stephens, 805 F.3d 617, 628 (5th
Cir. 2015). The TCCA properly concluded that “[t]he lack of a burden of proof in the
mitigation special issue does not lessen the State’s burden to prove the elements of capital
murder, which include the statutory aggravators.” Prystash, 3 S.W.3d at 535. Once the State
has proven Prystash’s guilt and his future dangerousness, the law allows a jury to find that
he could be sentenced to death based on consideration of the entire record.
In context the mitigation question and in compliance with constitutional law, however,
Texas’s sentencing scheme gave Prystash another opportunity to show that death should not
be imposed, even though the State had already met its burden of proof. The mitigation
special issue is, in this sense, analogous to an affirmative defense. The mitigation special
issue does not address a factor necessary to increase the maximum sentence; rather, it
addresses factors that allow the jury to impose a sentence less than the statutory maximum.
The Fifth Circuit has held that “[n]o Supreme Court or Circuit precedent constitutionally
requires that Texas’s mitigation special issue be assigned a burden of proof.” Rowell v.
Dretke, 398 F.3d 370, 378 (5th Cir. 2005). Thus, the TCCA’s rejection of this claim was not
contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
F.

Jury Consideration of Unadjudicated Prior Offenses (Claim Eleven)

In summary fashion, Prystash argues that the trial court denied his due process rights
by refusing to limit the jury’s punishment-phase consideration of unadjudicated offenses,
prior bad acts, or his guilt for Farah Fratta’s murder.31 Texas law allows the parties in the
31

Before trial, the prosecution informed the defense that it wished to present evidence
in the punishment phase showing that Prystash committed prior crimes and several
(continued...)
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31

(...continued)
unadjudicated offenses. Clerk’s Record at 24-25. Specifically, the prosecution
provided the defense with the following non-exhaustive list of fourteen offenses and
bad acts Prystash had allegedly committed in the past:
1.

2.
3.
4.

5.
6.
7.
8.
9.
10.
11.
12.

13.
14.

Burglary of structure and Grand Larceny (6 Counts) as reflected
in cause no. 76-7623 and Burglary of structure reflected in cause
no 76-8389-B, 3/14/77, 11th Judicial Circuit of Fla., Dade
Country.
Aggravated Robbery, offense unadjudicated, Complainant, John
Bigelow, approximately October 1983, Montgomery Co., Tx.
Speeding and failure to Maintain Proof of Insurance, December
2, 1983, Lee Rd., Harris County, Tx. (DPS No. s 967721).
Unauthorized use of a motor vehicle, reflected in cause
no.404370, 339th District Court, May 31, 1984, 4 years
probation. Probation revoked July 21, 1988, reformed to 3 years
TDC.
Unlawful carrying of a weapon, May 17, 1988, cause no.
8818080.
Theft, May 17, 1988, cause no. 8818081
Burglary of a habitation, 19610 Forest Fern, Humble, June, 28,
1994, unadjudicated.
Attempted Murder/Aggravated Assault, unadjudicated, Conroe,
Texas, June 8, 1991 Mark Allen Cooper, Jr. complainant.
General Discharge for Disciplinary reasons, U.S. Marines,
approximately 1976.
Juvenile probation for burglary, Dade County, Fla. when the
defendant was 12 years of age.
Juvenile probtion for burglary, Date County, Fla. when the
defendant was 14 years of age.
Statement to Podhorsky that the defendant was hired to assault
an individual who gave Robert Fratta a bad check. Exact date
unknown, occurred in Harris County, Texas.
Selling steroids to John Ruiz at the Roman Health Spa in the
1980s.
Possession of Steroids in Harris County, Texas in the year
1985-86, along with steroid use repeatedly since 1983.

Clerk’s Record at 24-25. The State did not introduce in evidence all these extraneous
(continued...)
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punishment phase of a capital-murder trial to present any evidence “relevant to sentence,”
including proof of unadjudicated, extraneous offenses. See TEX. CODE CRIM. PRO. art.
37.071 § 2(a); Powell v. State, 898 S.W.2d 821, 830 (Tex. Crim. App. 1994). “The focus of
the Texas capital sentencing procedure is to have all the relevant evidence before the jury
when answering the special issues which determine whether the death penalty will be
imposed.” Williams v. Lynaugh, 814 F.2d 205, 207 (5th Cir. 1987).
The Fifth Circuit has consistently held that Texas’s use of unadjudicated, extraneous
offenses in the penalty phase does not offend the Constitution. See, e.g. Harris v. Johnson,
81 F.3d 535, 541 (5th Cir. 1996); Jackson v. Johnson, 194 F.3d 641, 655-56 (5th Cir. 1999).
In fact, the Fifth Circuit has held that “[e]vidence of . . . unadjudicated crimes is clearly
relevant to the jury’s task of determining whether there is a probability that [the defendant]
would continue to commit acts of violence as required by [the future dangerousness special
issue].” Williams, 814 F.2d at 208. The Fifth Circuit has held that the Constitution does not
require that unadjudicated extraneous offenses be proved beyond a reasonable doubt. See
Vega v. Johnson, 149 F.3d 354, 359 (5th Cir.1998).
The Fifth Circuit also has held that the Constitution does not require any limiting
instruction for the consideration of unadjudicated offenses. See Beazley v. Johnson, 242 F.3d
248, 262 (5th Cir. 2001); Barrientes, 221 F.3d at 781-82. Finally, because the Constitution
does not prohibit introduction of those offenses in the penalty phase, the Fifth Circuit has
held that relief could only be granted on similar claims by creating a new rule of
constitutional law in violation of Teague v. Lane, 489 U.S. 288 (1989). See Harris, 81 F.3d
31

(...continued)
offenses or bad acts. For instance, the jury did not learn about Prystash’s juvenile
record or his involvement with steroids. The jury learned that Prystash had beaten his
brother-in-law but that the subsequent charge had been dismissed. The defense filed
a motion to exclude any evidence of unadjudicated and extraneous offenses in the
punishment phase. Clerk’s Record at 111-13. The trial court denied that motion. The
defense also proposed jury instructions that would limit the jury’s consideration of the
unadjudicated and extraneous offenses, but this request was denied. Clerk’s Record
at 414-17.
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at 541. This claim is both lacks merit and is barred by Teague.
G.

Trial Court Instructions on the Mitigation Special Issue (Claim Twelve)

In his last federal claim, Prystash complains that the trial court denied his Eighth
Amendment rights by providing the jurors a definition of mitigating evidence that restricted
their consideration of his punishment-phase evidence. The trial court used the commonly
used Texas instruction: “[Y]ou shall consider mitigating evidence to be evidence that a juror
might regard as reducing the defendant’s moral blameworthiness, including evidence of the
defendant’s background, character, record, emotional instability, intelligence, or the
circumstances of the offense that mitigates against the imposition of the death penalty.”
Clerk’s Record at 438. Texas law requires the trial court to describe mitigating evidence as
“evidence that a juror might regard as reducing the defendant’s moral blameworthiness.”
TEX. CODE CRIM. PRO. art. 37.071 § 2(g). Even though the instruction given by the trial
court informs jurors to consider broad factors such as a defendant’s background and
character, Prystash argues that the instructions confined the jury to considering only that
relating to his “personal culpability” by emphasizing the term “moral blameworthiness.”
Clerk’s Record at 435.
Prystash raised this claim on direct appeal. The TCCA reviewed the instructions
given in this case, and those proposed by the defense, in relation to the evidence presented
at trial. The TCCA relied on its precedent to hold that the charge describing the mitigation
special issue provided a broad review that complied with constitutional requirements. Also,
the TCCA found that Prystash did “not complain of any evidence to which the jury could not
give effect; therefore, even if the statute is deficient in the way that he suggests, he did not
suffer the deficiency.” Prystash, 3 S.W.3d at 535 (quotation omitted). Prystash must show
that the state court’s decision was contrary to, or an unreasonable application of, federal law.
See 28 U.S.C. § 2254(d)(1).
The Supreme Court has clearly established the principle that “sentencing 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,
75

notwithstanding the severity of his crime or his potential to commit similar offenses in the
future.” Abdul–Kabir v. Quarterman, 550 U.S. 233, 246 (2007); see also Boyde v.
California, 494 U.S. 370, 377-78 (1990) (stating that the “Eighth Amendment requires that
the jury be able to consider and give effect to a capital defendant's mitigating evidence”).
The Fifth Circuit has considered similar arguments relating to the term “moral
blameworthiness” and found that Texas’s language “does not unconstitutionally preclude the
jury from considering, as a mitigating factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.” Beazley, 242 F.3d at 260; see also Blue v. Thaler, 665 F.3d 647,
665-66 (5th Cir. 2011). In fact, the Fifth Circuit has emphasized that “‘[v]irtually any
mitigating evidence is capable of being viewed as having some bearing on the defendant’s
‘moral culpability.’” Beazley, 242 F.3d at 260; see also Blue, 665 F.3d at 666; Jackson v.
Dretke, 181 F. App’x 400, 413 (5th Cir. 2006). On that basis, the Fifth Circuit has repeatedly
found that Texas’s statutory definition for mitigating evidence broadly passes constitutional
muster. See Blue, 665 F.3d at 666; Robles v. Thaler, 344 F. App’x 60, 63-64 (5th Cir. 2009);
Cantu v. Quarterman, 341 F. App’x 55, 60-61 (5th Cir. 2009); Roach v. Quarterman, 220
F. App’x 270, 277 (5th Cir. 2007); Jackson v. Dretke, 181 F. App’x 400, 413-14 (5th Cir.
2006); O’Brien v. Dretke, 156 F. App’x 724, 735-36 (5th Cir. 2005); Beazley, 242 F.3d at
260. Accordingly, Prystash has not shown that the state court’s decision regarding his
challenge to the trial court’s mitigation instruction was contrary to or an unreasonable
application of federal law. See 28 U.S.C. § 2254(d)(1). This claim is rejected.
VII.

CERTIFICATE OF APPEALABILITY
AEDPA bars appellate review of a habeas petition unless a district or circuit court

certifies specific issues for appeal. See 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b). Prystash
has not sought a Certificate of Appealability (“COA”), though this Court may consider the
issue sua sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). The Court
must address whether the circumstances justify an appeal before issuing a final judgment.
See Rule 11, Rules Governing Section 2254 Cases in the United States District Courts.
76

A certificate of appealability will not issue unless the petitioner makes “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a
petitioner to demonstrate “that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the controlling
standard, this requires a petitioner to show “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve encouragement to proceed further.’”
Miller-El, 537 U.S. at 336. Where denial of relief is based on procedural grounds, the
petitioner must show not only that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right,” but also that they “would
find it debatable whether the district court was correct in its procedural ruling.” Slack, 529
U.S. at 484.
After careful review of the pleadings and the applicable law, the Court concludes that
reasonable jurists would not find that this Court was incorrect in its procedural ruling or that
the Court’s assessment of the constitutional claims was debatable or wrong. Because
Prystash does not otherwise allege facts showing that his claims could be resolved in a
different manner, this Court will not certify for appeal any of his habeas claims for
consideration by the Court of Appeals for the Fifth Circuit.
VIII. CONCLUSION
For the reasons discussed above, Prystash has not shown an entitlement to federal
habeas relief. It is therefore
ORDERED that Respondent William Stephen’s Motion for Summary Judgment
[Doc. # 57] is GRANTED. It is further
ORDERED that Joseph Andrew Prystash’s Petition for a Writ of Habeas Corpus is
DENIED WITH PREJUDICE. It is further
ORDERED that no certificate of appealability will issue in this case.
77

SIGNED this 17th day of March, 2016, at Houston, Texas.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

78