Butler v. Stephens

Filing 78

MEMORANDUM OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus. No Certificate of Appealability shall issue. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

STEVEN ANTHONY BUTLER,
Petitioner/Defendant,

v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent/Plaintiff.

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February 28, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-07-2103

MEMORANDUM OPINION AND ORDER

Petitioner, Steven Anthony Butler, currently in the custody of
the Texas Department of Criminal Justice ( "TDCJ") , was convicted of
capital murder and sentenced to death for the murder of Velma
Clemons

during

a

Petition for Writ

robbery.
of

Habeas

The

court

Corpus

denied Butler's

(Docket

Entry No.

Amended
9) ,

and

subsequently denied Petitioner's Motion to Vacate Judgment (Docket
Entry No. 31).

Among the claims raised and rejected in Butler's

Amended Petition was a claim that Butler's trial counsel rendered
ineffective assistance by failing to investigate Butler's life and
mental health history.
information

about

his

Butler argues that counsel should have used
life

history

to

have

Butler

declared

incompetent to stand trial, and as mitigating evidence during the
penalty phase of Butler's trial.

This court declined to address

that claim because it was procedurally defaulted.

After the court issued its decision, the Supreme Court decided
Martinez v.

Ryan,

132 S.

Ct.

1309,

1318-19

(2012)

The Fifth

Circuit subsequently remanded this case for review of Butler's
ineffective assistance of
Having

carefully

counsel

considered

the

claim in light of Martinez.
claim

and

the

arguments

and

authorities submitted by counsel, the court concludes that Butler
cannot overcome his procedural default, and is not entitled to a
writ of habeas corpus.
I.

Background

On August 27, 1986, Butler, armed with a handgun, entered a
dry cleaning store and demanded that the cashier give him the
store • s money.

The cashier, Velma Clemons, resisted.

Butler threw

Clemons to the floor and shot her to death.
During the penalty phase of Butler's trial, the State proved
that Butler committed "ten different robberies[,]
clerks

in

robbery,
Ex

separate

Butler,

(Cochran, J.,

State,

shot

a

third

clerk

in

another

and sexually assaulted clerks in two other robberies."

parte

( "TCCA")

robberies,

. killed two

416

S.W.3d

concurring).

affirmed Butler's
790

S.W.2d

661

863,

864

(Tex.

Crim.

App.

2012)

The Texas Court of Criminal Appeals
conviction and

(Tex.

Crim.

App.

sentence,
1990)

Butler v.

(remanding

for

findings of fact and conclusions of law on the voluntariness of
Butler's confession)

and 872 S.W.2d 227

(Tex.

Crim.

App.

1994)

(opinion after remand), and denied Butler's first state application
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for habeas corpus, Ex parte Butler, No. 41,121-01 (Tex. Crim. App.
April 28, 1999).

This court denied Butler's Petition for Writ of

Habeas Corpus By an Incompetent Person in State Custody, Butler v.
Quarterman,

No.

4:07-cv-2103

(S.D.

Tex.

Sept.

4,

2008)

(Docket

Entry No. 29), and subsequently denied Butler's Motion to Vacate
Judgment (Docket Entry No. 38).
On April 1, 2013, Butler filed a Motion for Relief from the
Judgment seeking relief from that portion of the judgment denying
relief on his claim that he is intellectually disabled. 1

The court

denied

No.

that

motion

on March

25,

2014

(Docket

Entry

48).

The Fifth Circuit affirmed the court's denial of relief in
part, but remanded a single issue for reconsideration in light of
Martinez.

Butler v. Stephens, 625 F. App'x 641 (5th Cir. 2015).

The parties subsequently filed supplemental briefs on the remanded
issue.
II.

Analysis

The only claim now before this court is Butler's claim that
trial counsel rendered ineffective assistance by failing to conduct
a

thorough

dispute

investigation of Butler's background.

that,

as

this

procedurally defaulted.

court

previously

found,

There
this

is no

claim

is

Thus, the threshold issue this court must

1

"Intellectual disablity" is the diagnostic term now used for
what used to be called mental retardation.
See Hall v. Florida,
134 S. Ct. 1986, 1990 (2014).
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resolve is whether Butler can demonstrate cause for his default,
and prejudice flowing from the default.
In Martinez the Supreme Court carved out a narrow equitable
exception to the rule that a federal habeas court cannot consider a
procedurally defaulted claim of ineffective assistance of counsel.
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel
claim
in
a
collateral proceeding, a prisoner may establish cause for
a default of an ineffective-assistance claim . . . where
appointed counsel in the initial-review collateral
proceeding .
. was ineffective under the standards of
Strickland v. Washington, 466 U.S. 668 . . . (1984). To
overcome the default, a prisoner must also demonstrate
that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that
the prisoner must demonstrate that the claim has some
merit.
Id. at 1318.

Because the question of whether state habeas counsel

was ineffective for failing to raise this claim depends on the
strength of the underlying claim,

this analysis must necessarily

begin with an analysis of the merits of the underlying claim.
To prevail on a claim for ineffective assistance of counsel,
petitioner
must show that . . . counsel made errors so serious that
counsel was not functioning as the "counsel" guaranteed
the [petitioner] by the Sixth Amendment.
Second, the
[petitioner] must show that the deficient performance
prejudiced the defense.
This requires showing that
counsel, s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.
Strickland v. Washington, 466 U.S. 668,

687

(1984).

In order to

prevail on the first prong of the Strickland test, petitioner must
demonstrate that counsel,s representation fell below an objective
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standard of reasonableness.

Id.

at 687-88.

Reasonableness is

measured against prevailing professional norms, and must be viewed
under the totality of the circumstances.
counsel's performance is deferential.

Id. at 688.

Review of

Id. at 689.

Butler made statements to his trial counsel, Joe Cannon, which
prompted

Cannon

to

seek a

competency evaluation.

Butler now

contends that these statements should also have prompted Cannon to
conduct

his

own

investigation

into

Butler's

mental

including an investigation of Butler's life history,

health,
obtaining

Butler's jail, prison, and school records, and speaking to Butler's
counsel from another criminal case.

He contends that Cannon was

ineffective because he failed to do so,

and failed to provide

Butler's records to the experts who evaluated Butler for competency
to stand trial.

Butler contends that had counsel conducted this

investigation there is a reasonable probability that he would have
been found incompetent to stand trial, and that counsel would have
had useful mitigation evidence to present during the penalty phase
of Butler's trial.
A.

Competency to Stand Trial

Under Texas law Butler was competent to stand trial if he had:
(1)

sufficient present (at the time of trial) ability to consult

with his lawyer with a reasonable degree of rational understanding;
and

(2)

a

rational

as

proceedings against him.

well

as

factual

understanding

TEX . CODE CRIM . PROC .
-5-

art .

of

4 6 . 02

the
§

lA

(Vernon 1986).

The federal standard is the same.

Moran, 509 U.S. 389, 396

(1993)

362 U.S. 402, 402 (1960)

See Godinez v.

(quoting Dusky v. United States,

(per curiam)) .

Upon becoming aware

that

Butler might

have mental

health

issues, counsel moved for a competency evaluation.

Butler was then

evaluated

Jaime

by

psychiatrist,

two

court-appointed

and Dr.

Ramon A.

experts,

Laval,

a

Dr.

Ganc,

a

clinical psychologist.

Both of them concluded that Butler was competent to stand trial.
See Competency Evaluations by Drs. Ganc and Laval, Appendices 9 and
10

to

Petitioner's

Supplemental

Brief

on

Remand

from

the

United States Court of Appeals for the Fifth Circuit ("Petitioner's
Supplemental Brief"), Docket Entry Nos. 75-9 and 75-10.
While Butler now argues that evidence of his mental health
history might have changed this conclusion, the question was whether
Butler had the present ability to consult with his lawyers and
understand the proceedings.

His argument that evidence of prior or

current mental health problems might have changed the results of the
evaluation are thus not convincing.
mental

illness are

not

Competency and the presence of

co-extensive.

A defendant

mentally ill and competent to stand trial.

can be both

The experts' conclusion

that he was able to communicate with counsel and understand the
charges

and proceedings

i.e.,

that

he

was

competent

is

separate from the issue of whether he was mentally ill.
Moreover,

counsel

qualified experts.

is entitled to rely on the opinions of

See, e.g., McClain v. Hall, 552 F.3d 1245, 1253
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(11th Cir.

2008);

2016 WL 6543501

see also Matthews v. Davis,
(5th Cir.

2016).

F. App'x

Because the qualified experts

concluded that Butler was competent to stand trial, counsel was not
deficient by failing to conduct further investigation,
with regard to competency.

at least

"[S]trategic choices made after less

than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on
investigation."
(internal

Wiggins

quotation

Smith,

v.

marks

and

Strickland, 466 U.S. at 690-91).

539

u.s.

alteration

510,

521

omitted)

(2003)
(quoting

When assessing the reasonableness

of an attorney's investigation, a court must "consider not only the
quantum of evidence already known to counsel, but also whether the
known evidence would lead a
further."

reasonable attorney to investigate

Id. at 527.

The conclusions of two experts, based on their contemporaneous
evaluations,

that Butler was competent to stand trial made any

decision not to further investigate Butler's mental health history
a reasonable decision with regard to competency.

Because Butler

fails to demonstrate either deficient performance by counsel or a
reasonable probability that he would have been found incompetent
had

counsel

conducted

additional

investigation,

he

fails

to

demonstrate that his claim of ineffective assistance of counsel
regarding

competency

is

substantial.

Therefore,

state

habeas

counsel was not deficient for failing to raise this claim, and the
claim is both procedurally defaulted and without merit.
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B.

Mitigation Evidence

Butler

argues

that,

in

competency to stand trial,

addition

to

questions

about

his

indications of mental illness should

have led counsel to investigate his life and mental health history.
Butler argues that had counsel done so he would have discovered
evidence of both mental illness and low IQ,

which counsel could

have used in mitigation of Butler's moral culpability and to soften
the adverse evidence of Butler's future dangerousness.
Butler now presents evidence, which he contends should have
been presented at trial, that he suffers from bipolar disorder.

He

offers an expert opinion that his string of robberies may have been
an attempt to fund a drug addiction that was the result of his
efforts

to

self-medicate.

psychiatrist,

opines

George

Dr.

Butler's

that

W.

Jr.,

Woods,

limited

a

intellectual

functioning 2 would have exacerbated "the bewilderment of the early
phase"

of

his

bipolar

Declaration

condition.

of

George

W.

Woods, Jr., M.D., Appendix 2 to Petitioner's Supplemental Brief,
Docket Entry No. 75-2, p. 13
inmate

~

27.

Butler also notes that a fellow

in pretrial detention described him as

"crazy,"

id.

at

Appx. 11, and comments by Butler's counsel from another case noting
Butler's

paranoia,

id.

at

Appx.

2

12.

Subsequent

evaluations

In rejecting Butler's claim that he is intellectually
disabled, this court found that Butler suffers from sub-average
intellectual functioning although he did not meet all of the
requirements for a finding that he is intellectually disabled.
See, e.g. , Memorandum Opinion and Order, Docket Entry No. 2 9,
pp. 16-25.
-8-

conducted

by

the

Texas

Department

of

indications of depression and paranoia.

Criminal

Justice

Id. at Appx. 13.

found
Butler

now argues that the jury might have found the information of his
mental illness and the purported reasons for his robberies to be
mitigating.
Assuming that counsel was deficient by failing to investigate
and present evidence of Butler's mental health and life history,
Butler nonetheless fails to satisfy Strickland's prejudice prong.
In the context of a capital sentencing hearing,

"the question is

whether there is a reasonable probability that, absent the errors,
the

sentencer

would have concluded that

the balance of

aggravating and mitigating circumstances did not warrant death."
Strickland,

465

U.S.

at

695.

"A reasonable

probability is

a

probability sufficient to undermine confidence in the outcome."
Id. at 694.

As the Fifth Circuit succinctly framed this concept:

"Is this additional mitigating evidence so compelling that there is
a reasonable probability at least one juror could reasonably have
determined that

death was not an appropriate sentence?"

Neal

v. Puckett, 239 F.3d 683, 691-92 (5th Cir. 2001).

This requires a

"substantial,

of

result.

not

just

conceivable,

likelihood

a

Cullen v. Pinholster, 563 U.S. 170, 189 (2011)

different
(quotation

marks omitted) .
While this evidence might have been mitigating to some degree,
it is not enough to make it reasonably likely that Butler would not
have been sentenced to death.

Although Butler's argument might, in
-9-

isolation, offer some explanation for his commission of a string of
robberies,
violence,

it

does

including

not
two

explain
sexual

committing those robberies.

Butler's

assaults,

gratuitous
during

the

acts

of

course of

Because Butler's actions went far

beyond merely obtaining money to support a drug addiction,

his

explanations of his mental illness and alleged efforts to selfmedicate do not raise a

reasonable probability of a

different

outcome.
Because
satisfies

Butler

the

fails

Strickland

to

demonstrate

prejudice

that

his

requirement,

he

evidence
fails

to

demonstrate that his claim of ineffective assistance of counsel is
substantial.

Because the underlying claim is not substantial,

state habeas counsel was not ineffective for failing to raise it.
Therefore, Butler demonstrates neither cause for his default, nor
prejudice.
III.

Butler

has

not

Certificate of Appealability

requested

a

certificate

of

appealability

( "COA''), but this court may determine whether he is entitled to
this relief in light of the foregoing rulings.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000)

See Alexander v.

("It is perfectly lawful

for district court's [sic] to deny a COA sua sponte.

The statute

does not require that a petitioner move for a COA; it merely states
that

an

appeal

may

not

be

taken

appealability having been issued.").
-10-

without

a

certificate

of

A petitioner may obtain a COA

either from

the

district

court or an appellate

court,

but

an

appellate court will not consider a petitioner's request for a COA
until the district court has denied such a request.
v. Johnson,
Johnson,

157 F.3d 384,

114 F.3d 78,

82

388

See Whitehead

(5th Cir. 1998); see also Hill v.

(5th Cir.

1997)

("(T]he district court

should continue to review COA requests before the court of appeals
does.") .
A COA may issue only if the petitioner has made a "substantial
showing of
§

the

denial

of

a

constitutional

right."

28

u.s.c.

2253 (c) {2); see also United States v. Kimler, 150 F.3d 429, 431

(5th Cir. 1998).
demonstrates

A petitioner "makes a substantial showing when he

that

his

application

involves

issues

that

are

debatable among jurists of reason, that another court could resolve
the issues differently, or that the issues are suitable enough to
deserve encouragement to proceed further."
213 F.3d 243,

248

(5th Cir.), cert. denied,

Hernandez v. Johnson,
531 U.S. 966

(2000).

The Supreme Court has stated:
Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy
§
2253 (c) is straightforward:
The petitioner must
demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.
The issue becomes somewhat more
complicated where . . . the district court dismisses the
petition based on procedural grounds.
We hold as
follows:
When the district court denies a habeas
petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional
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right and that jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The

court

has

claim,

and

concludes that it is procedurally defaulted and without merit.

The

court concludes
showing of
§

carefully

that Butler has

the denial

2253(c) (2).

considered

of

a

failed

Butler's

to make a

constitutional

"substantial

right."

28

u.s.c.

Therefore, Butler is not entitled to a certificate

of appealability.
IV.

Conclusion and Order

For the foregoing reasons, it is ORDERED as follows:
1.

No writ of habeas corpus shall issue; and

2.

No Certificate of Appealability shall issue.

SIGNED at Houston, Texas, on this 28th day of February, 2017.

SIM LAKE
UNITED STATES DISTRICT JUDGE

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