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
-2-
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).
-3-
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
-6-
(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
-11-
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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