Allen v. Thaler
MEMORANDUM AND ORDER. The Court will not issue a certificate of appealability (Signed by Judge Vanessa D Gilmore). Parties notified. (rosaldana, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
KERRY DIMART ALLEN,
Director, Texas Department of
Criminal Justice, Correctional
CIVIL ACTION NO. H-11-1676
MEMORANDUM AND ORDER
Kerry Dimart Allen, an inmate incarcerated on Texas' death row, has filed a federal petition
for a writ of habeas corpus. The issue before the Court is whether Allen has shown an entitlement
to relief under federal law. Having considered the record, the pleadings, and the law, the Court
denies Allen's federal habeas petition. The Court will not certify any issue for appellate review.
The State of Texas charged Allen with capital murder for intentionally and knowingly
causing the death of two-year-old Kienna Lashay Baker. Clerk's Record at 2. The State's trial
evidence showed that forty-year-old Allen had lived with twenty-three-year-old Kimberly Renee
Jones and her four children, including the victim, for six months prior to the murder. Allen, who
told Ms. Jones that he was an evangelist preacher, was unemployed. Allen watched Ms. Jones'
children while she worked. Ms. Jones did not know that Allen had an extensive history of sexual
and violent offenses.
Allen harshly disciplined Ms. Jones' children. The victim did not like being around Allen
and would "shrivel up" whenever she saw him. Tr. Vol. 22 at 99. The children soon became
malnourished, sullen, and afraid.
On May 10,2000, Allen called Ms. Jones' workplace and told her to come home because of
an emergency. Allen met her in the parking lot of their apartment, saying: "I didn't do anything to
her." Allen said that the victim fell from the toilet after he spanked her for wetting herself. Ms.
Jones rushed to the apartment. The victim lay in a bedroom wearing only a pair ofboy's underwear.
Foam oozed from her mouth and nose. Her heart was not beating. An open jar of Vaseline nearby
the toddler made Ms. Jones suspect that Allen had committed a sexual assault.
Ms. Jones wanted to get medical assistance for her daughter. Allen repeatedly ordered her
not to call 9-1-1, insisting that he needed to "get away." Ms. Jones finally called for help. When
emergency personnel arrived, Allen was hiding behind a locked bedroom door. He fled through a
window before the police kicked down the door. The police found two Bibles lying on the couch,
both open to a passage about Jesus raising a girl from the dead.
Efforts to revive the victim were unsuccessful. An autopsy revealed that she had died from
blunt force trauma to her chest and abdomen. Multiple blows - the force of which was similar to
that seen in automobile accidents - had bruised her lungs, injured her kidneys, and fractured her
liver. The autopsy suggested that she had been anally raped after being beaten, a factor that
contributed to her death. The medical examiner concluded that the final injuries were only the last
in a long series of assaults. Fifty-six scars, in various degrees of healing, covered the victim's body.
Two days after the murder Allen turned himself into the police. Allen claimed that the
victim's death was an accident, but also said: "I should never have done it. My temper gets control."
Tr. Vol. 24 at 166.
Allen's trial attorneys (R.P. "Skip" Cornelius and Alvin Nunnery) did not call any witnesses
in the guilt/innocence phase of trial. In closing arguments, the defense disputed that Allen had
sexually assaulted the victim and argued that the evidence insufficiently pointed to him as the killer.
The jury found Allen guilty of capital murder.
The jury decided Allen's fate by answering two special issue questions in a separate
punishment hearing: (1) would Allen be a future danger and (2) did sufficient evidence mitigate
against a death sentence? Clerk's Record at 575. The State presented evidence and argument to
show that Allen deserved a death sentence. According to trial testimony, years earlier Allen pleaded
guilty to two counts of felony sexual assault in Harris County. A court revoked his probated
sentence for that crime when he failed to report to officers, did not participate in a sex offender
program, and failed to pay fines. Within three months of his release from that incarceration he
violated the terms of his parole. Allen then absconded to Louisiana. Nine years later, Allen was
again arrested and required to serve the remainder of his Texas sentence. Allen was subsequently
negligent in updating his sex-offender status. The terms of his release required him to avoid
children, a condition he violated.
Allen's first wife - who he had secretly dated while she was still a minor - testified that
Allen was a liar, did not work, and was abusive. Allen had been convicted for a misdemeanor
assault against her. Allen's first wife suspected that he had sexually abused the children of a family
with whom they had lived. While married, Allen had an intimate relationship with a pre-teen girl
at the church where he had served as a youth minister. Allen's second wife testified that he was
controlling, jealous, and angry. Allen violently abused her and was convicted of assaulting her.
Another woman testified that Allen had sexually abused her two children. Police officers also gave
detailed testimony about the neglected and abused condition of Ms. Jones' children. The State also
emphasized that the murder resulted from Allen's cruel assault on a defenseless child.
Trial counsel presented significant evidence to humanize Allen. Taken as a whole, the
evidence showed that Allen claimed to have been the victim of child sexual abuse at the hands of
several men, many of whom were relatives. As a result, Allen had poor coping mechanisms, low
self esteem, and poor life skills, which especially came to the surface when he found himself in a
stressful situation. He attempted suicide several times. Individuals who knew Allen testified that
he was likeable, bright, trustworthy, and interested in religion. A clinical psychologist testified that
Allen would present a low risk of committing future acts of violence.
The jury answered Texas' special issue questions in a manner requiring the imposition of a
death sentence on May 5, 200l.
Appellate counsel Allen C. Isbell raised thirteen claims on the direct appeal from Allen's
conviction and sentence. On June 11,2003, the Texas Court of Criminal Appeals affirmed. Allen
v. State, 108 S.W.3d281 (Tex. Crim. App. 2003). The United States Supreme Court denied Allen's
petition for a writ of certiorari. Allen v. Texas, 540 U.S. 1185 (2004).
During the pendency of direct review, Allen filed a state application for a writ of habeas
corpus through appointed counsel, Steve Morris. In 2003, state habeas counsel submitted a 356-page
long application raising thirty-seven grounds for relief. The state habeas court signed an initial set
of habeas conclusions and findings. State Habeas Record at 887. When Mr. Morris accepted a
position with the Harris County District Attorney's Office, Danny Easterling replaced him as counsel
of record. The state habeas court then rescinded its earlier findings and avoided a conflict of interest
by allowing the Texas Attorney General's Office to litigate against Allen pro tern.
On February 17, 2010, the state habeas court entered a new recommendation that the Court
of Criminal Appeals deny Allen's state habeas application. State Habeas Record at 894-929. On
April 28, 2010, the Court of Criminal Appeals adopted the recommendation and denied habeas relief.
Ex parte Allen, 2010 WL 1709947 (Tex. Crim. App. 2010) (unpublished).
Federal review followed. This Court appointed counsel to represent Allen throughout the
federal habeas process. Allen filed a federal petition for a writ of habeas corpus and later amended
his petition. (Docket Entry Nos. 1, 15). Allen's amended petition raises the following grounds for
The Texas capital sentencing statute's failure to assign the prosecution a
beyond-a-reasonable-doubt burden on the second special issue violates the
The disparate results of prosecutorial discretion across counties of differing
resources unconstitutionally inserts arbitrariness into the death-penalty
The Texas statute govemingjury voting during the punishment phase violates
the Eighth and Fourteenth Amendments.
The state trial court violated Allen's right to an impartial jury and to due
process by denying his challenge for cause against a prospective juror.
Trial counsel provided ineffective assistance by failing to subpoena additional
witnesses in the punishment phase.
Respondent has filed an answer arguing that procedural requirements and substantive law
preclude federal habeas relief. (Docket Entry No. 17). Allen has filed a reply. (Docket Entry No.
23). This case is ripe for adjudication.
Federal habeas corpus review provides an important, but limited, examination of state
criminal judgments. Because "state courts are the principal forum for asserting constitutional
challenges to state convictions," concerns for comity, federalism, and finality define the contours of
federal habeas review. Harrington v. Richter, _
U.S. _ , 131 S. Ct. 770, 787 (2011); see also
Calderon v. Thompson, 523 U.S. 538, 555-56 (1998); Barefootv. Estelle, 463 U.S. 880, 887 (1983);
Engle v. Isaac, 456 U.S. 107, 128 (1982). Through the Anti-Terrorism and Effective Death Penalty
Act ("AEDPA") and traditional post-conviction jurisprudence, federal law limits both the scope and
nature of federal habeas review.
Federal law sets procedural precursors to the adjudication of habeas claims. To avoid the
'''unseem[liness]' of a federal district court's overturning a state court conviction without the state
courts having had an opportunity to correct the constitutional violation in the first instance," the
AEDPA requires inmates to raise their claims in the highest state court before federal reliefbecomes
available. See 0 'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)(relying on 28 U.S.C. 2254(b)(1 )).
Even when an inmate exhausts state remedies, how he has exhausted them determines the availability
of federal review. The procedural-default doctrine, which functions as a "[ a] corollary to the habeas
statute's exhaustion requirement," Dretke v. Haley, 541 U.S. 386, 392-93 (2004), precludes federal
habeas review when "a state court declined to hear because the prisoner failed to abide by a state
procedural rule." Martinez v. Ryan, _
U.S. _ , 132 S. Ct. 1309, 1316 (2012); see also Lambrix
v. Singletary, 520 U.S. 518, 523 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991).
If an inmate has presented his claims in a manner allowing the state courts to resolve their
merits, the AEDPA affords great deference to the state court judgment. The AEDPA "bars
relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in
[28 U.S.C.] §§ 2254(d)(I) and (d)(2)." Richter, -
U.S. at -
, 131 S. Ct. at 784. Under those
provisions, "a federal court cannot grant a petition for a writ of habeas corpus unless the state court's
adjudication of the merits was 'contrary to, or involved an unreasonable application of, clearly
established Federal law.'" Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (quoting 28 U.S.C.
§ 2254(d)(1)); see also Thaler v. Haynes, 559 U.S. 43, 47 (2010); Bell v. Cone, 535 U.S. 685,698
(2002); Early v. Packer, 537 U.S. 3, 7-8 (2002); Williams v. Taylor, 529 U.S. 362,413 (2000). "The
question under AEDPA is not whether a federal court believes the state court's determination was
incorrect but whether that determination was unreasonable-a substantially higher threshold."
Schriro v. Landrigan, 550 U.S. 465,473 (2007); see also Morrow v. Dretke, 367 F.3d 309, 313 (5th
Cir. 2004); Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002). Similarly, federal courts afford
significant deference to a state court's factual determinations, presuming all factual findings to be
correct. See 28 U.S.C. § 2254(e)(1),(2).
Traditional habeas law complements the AEDP A standards. Under Teague v. Lane, 489 U. S.
288 (1989), federal habeas courts cannot create new constitutional law. See Horn v. Banks, 536 U.S.
266,272 (2002). Also, any trial error cannot require habeas relief unless it "ha[d] a 'substantial and
injurious effect or influence in determining the jury's verdict.'" Robertson v. Cain, 324 F.3d 297,
304 (5th Cir. 2003) (quoting Brecht v. Abrahamson, 507 U.S. 619, 629 (1993)).
With those standards in mind, the Court turns to Allen's federal claims.
Constitutionality of Texas' Capital Sentencing Statute (claim one)
Allen's first federal claim argues that Texas' capital sentencing statute violates the Sixth,
Eighth, and Fourteenth Amendments as understood by Apprendi v. New Jersey, 530 U.S. 466 (2000).
In Apprendi, the Supreme Court held that "any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
Id. at 490; see also Ringv. Arizona, 536 U.S. 584 (2002) (extending the Apprendi holding to capital
cases). Capital inmates have relied on Apprendi to make repeated challenges to Texas' capital
sentencing statute (TEX. CODE CRIM. PRO. art. 37.071). To date, the federal courts have rejected
Allen raises a novel attack on Texas law. Before turning to Allen's specific complaints,
however, the Court will briefly review the structure of Texas' capital sentencing procedure. Under
Supreme Court jurisprudence, 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 TEXAS PENAL CODE § 19.03; Lowenjield v.
Phelps, 484 U.S. 231,246-47 (1988); Jurekv. Texas, 428 U.S. 262, 270-71 (1976);Adamsv. Thaler,
421 F. App'x 322, 337 (5th Cir. 2011). Here, the jury instructions required the prosecution to prove
Allen's guilt of a capital offense beyond a reasonable doubt. Clerk's Record at 553. Once the jury
found Allen guilty, he was eligible for a death sentence.
The jury's consideration of special issue questions in the punishment phase fulfilled the
constitutionally required selection decision. See Turner v. Quarterman, 481 F.3d 292, 299-300 (5th
Cir. 2007). In this case, the special issues required the jury to find (1) "beyond a reasonable doubt"
whether Allen "would commit criminal acts of violence that would constitute a continuing threat to
society" and (2) whether "a sufficient mitigating circumstance or circumstances ... warrant that a
sentence of life imprisonment without parole rather than a death sentence be imposed." Clerk's
Record at 575; see TEX. CODE CRIM. PRO. art. 37.071, § 2(b)(1).
Inmates have repeatedly challenged both special issues under Apprendi, arguing that the State
should prove any factor authorizing a death sentence beyond a reasonable doubt. However, Apprendi
only imposed a reasonable-doubt requirement on the eligibility decision, which in Texas is the
guilt/innocence phase. See Turner, 481 F. 3d at 330 (finding Apprendi jurisprudence "inapposite to
any discussion of the constitutional requirements of the selection phase"). Thus, the Fifth Circuit
has held that the Constitution does not impose a beyond-a-reasonable-doubt standard on Texas'
selection phase use of the special issue questions. See id.
In particular, the Fifth Circuit has repeatedly rejected the argument that the prosecution bears
a burden to disprove the existence of mitigating factors beyond a reasonable doubt. See Blue v.
Thaler, 665 F.3d 647, 668 (5th Cir. 2011); Druery v. Thaler, 647 F.3d 535,546-47 (5th Cir. 2011);
Adams, 421 F. App'x at 334; Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir. 2006);
Rowell v. Dretke, 398 F.3d 370,376-78 (5th Cir. 2005). Because "[n]o Supreme Court or Circuit
precedent constitutionally requires that Texas's mitigation special issue be assigned a burden of
proof," Rowell, 398 F.3d at 378, granting relief on a capital petitioner's Apprendi claim would
require the creation of new constitutional law in violation of Teague v. Lane, 489 U.S. 288 (1989).
Allen's first habeas claim, however, presents a novel approach to the Apprendi challenges
to Texas' mitigation special issue. Rather than seeking to impose a burden on the prosecution to
disprove mitigating circumstances, Allen focuses on the fact that the mitigation special issue's
expansive review 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); see also
Jackson v. State, 992 S.W.2d 469, 478 (Tex. Crim. App. 1989) (recognizing that "aggravating
circumstances can be considered in connection with the mitigation special issue"). According to
Allen, Texas should "requir[e] the state to prove aggravating factors relevant to the mitigation
special issue beyond a reasonable doubt before the jury may sentence the defendant to death."
(Docket Entry No. 15 at 21).
Allen's Apprendi claim suffers from the same fundamental defects as those previously denied
by the Fifth Circuit. Regardless of whether the second special issue allows consideration of
aggravating factors along with the mitigating ones, the jury only reviews that question as part of its
selection decision. The jury's answer to the mitigation special issue does not increase an inmate's
authorized punishment, it only actualizes or prevents the imposition of that punishment. See
Granados, 455 F.3d at 537. By the time the jurors considered the mitigation special issue, the State
already "was required to prove beyond a reasonable doubt every finding prerequisite to exposing [the
defendant] to the maximum penalty of death." Granados, 455 F.3d at 536; see also Adams, 421 F.
App'x at 334-35; Rowell, 398 F.3d at 378. Thus, the Court of Criminal Appeals correctly concluded
that "the 'prescribed statutory maximum' for capital murder is fixed at death. Nothing the jury or
judge decided during the punishment phase could have enhanced [Allen's] sentence beyond the
prescribed range." Allen, 108 S.W.3d at 285.
AlIens first claim fails because "Apprendi has no application to Texas's scheme ofleaving
open who has the burden of proof for the mitigation special issue." Oliver v. Quarterman, 254 F.
App'x 381,386 (5th Cir. 2007). The state court's rejection of this claim was not contrary to, or an
unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(I).
Equal Protection in Capital Prosecutions in Texas (claim two)
Allen's second claim argues that a lack of uniformity in prosecutorial discretion violates the
Equal Protection Clause. Under Texas law, each county pays the court costs, attorney fees, and
investigative fees for indigent defendants facing a capital-murder charge. See TEx. CODE CRIM. PRO.
art. 26.052. A county district attorney's office also commits itself to significant expenses when
charging a capital crime. Allen cites studies estimating that, all told, each capital-murder case costs
taxpayers around $2.3 million. (Docket Entry No. 15 at 29). Given this heavy expense, Allen
postulates that an individual county factors its available resources into the calculus of prosecutorial
According to Allen, in capital prosecutions "[g]eography means everything. In smaller
counties death penalty cases can ruin the county budget and exhaust personnel. Therefore, they are
not prosecuted as death cases." (Docket Entry No. 15 at 29). "Unfortunately for [Allen], he was
indicted for the offense of capital murder in Harris County, Texas." (Docket Entry No. 15 at 30).
With its larger budget, Allen argues that Harris County will charge crimes as capital offenses when
smaller counties would not. Allen reasons that "[fJinancial constraints mean that similar capital
murders committed by similarly situated defendants will be treated differently, solely because they
were committed in different counties." (Docket Entry No. 15 at 29). Allen argues that Texas'
administration of the death penalty is arbitrary and capricious under the Eighth and Fourteenth
Amendment because financial considerations inform prosecutorial discretion.
Allen first raised this claim on direct appeal. Before then, the Court of Criminal Appeals had
denied similar claims because inmates generally had not bolstered their arguments with "empirical
data, case law, or other factual basis" to show inequity in prosecutorial discretion between counties.
Bell v. State, 938 S.W.2d 35,55 (Tex. Crim. App. 1996); see also King v. State, 953 S.W.2d 266,
274 (Tex. Crim. App. 1997). To comply with the Court of Criminal Appeals' expectations, Allen
relied on: (1) statistics from the Texas Department of Criminal Justice's website showing the number
of offenders sentenced to death and executed from each county; (2) a press release from a Texas state
senator stating that capital prosecutions cost taxpayers an average of$2.3 million and that "[r]ural
counties cannot always afford to try a death penalty case"; and (3) two newspaper articles describing
the financial constraints a capital murder case causes smaller counties. Allen, 108 S.W.3d at 286
The Court of Criminal Appeals found that Allen had still provided insufficient information
to prove selective prosecution, notably because he did not provide "budgetary data for each" Texas
Financial concerns aside, the Court of Criminal Appeals rejected Allen's equal
protection claim because "[t]he fact that Harris County, a large county with a large budget, sentences
more offenders to death than any other county in Texas, does not in and of itself establish disparate
treatment among similarly situated defendants." Id In fact, one of the newspaper articles that Allen
relied on noted that "the 'history of ample budgets' is only one of several factors that contribute to
the higher number of death penalty convictions in Harris County." Id. (citations omitted). With "no
threshold showing of disparate treatment between himself and other similarly situated defendants,"
the Court of Criminal Appeals denied Allen's claim. Id. at 287. Allen must show that the state
court's rejection was contrary to, or an unreasonable application of, Supreme Court precedent. See
28 U.S.C. § 2254(d)(1).
Constitutional law, particularly in the jurisprudence flowing from Greggv. Georgia, 428 U.S.
153 (1976) and Furman v. Georgia, 408 U.S. 238 (1972), emphasizes "eliminating total arbitrariness
and capriciousness in" imposing the death penalty. Proffitt v. Florida, 428 U.S. 242,258 (1976).
The Constitution, however, does not mandate complete uniformity throughout the entire death
penalty process. Discretion permeates capital punishment at various stages: "the prosecutor's
decision whether to charge a capital offense in the first place, his decision whether to accept a plea
to a lesser offense, the jury's consideration of lesser included offenses, and, after conviction and
unsuccessful appeal, the Executive's decision whether to commute a death sentence." Id. at 254.
With regard to the prosecutor's initiation of the capital process, the existence of discretion alone does
not "render the capital sentences imposed arbitrary and capricious." McCleskey v. Kemp, 481 U.S.
279,307 (1987) (quoting Gregg, 428 u.s. at 199);see alsoSpinkellinkv. Wainwright, 578 F.2d 582,
608 (5th Cir. 1978); Proffitt, 428 U.S. at 254. The Constitution only limits prosecutorial discretion
in charging capital crimes when "deliberately based upon an unjustifiable standard such as race,
religion, or other arbitrary classification[.]" Wayte v. United States, 470 U.S. 598, 608 (1985)
(quotations omitted); see also United States v. Armstrong, 517 U.S. 456, 465 (1996).
The Supreme Court has not held that financial considerations made by state entities with
limited resources trigger equal-protection concerns. Other courts have traditionally included "the
amount of resources required to convict a defendant" and "the extent of prosecutorial resources" as
"legitimate prosecutorial factors that would justify" the use of discretion. United States v. Lightly,
616 F.3d 321,370 (4th Cir. 2010); see also Jennings v. City o/Stillwater, 383 F.3d 1199, 1214 (10th
Cir. 2004) (noting "the optimal deployment of prosecutorial resources" among the permissible "host
of variables" in deciding to prosecute). Constitutionally prohibited arbitrariness does not occur
merely because "[t]he capability of the responsible law enforcement agency can vary widely."
McCleskey, 481 U.S. at 307 n.28. As the Fifth Circuit has observed in another context, the
Constitution does not prohibit
"simply failing to prosecute all known lawbreakers, whether because of ineptitude
or (more commonly) because oflack of adequate resources. The resulting pattern of
nonenforcement may be random, or an effort may be made to get the most bang for
the prosecutorial buck by concentrating on the most newsworthy lawbreakers, but in
either case the result is that people who are equally guilty of crimes or other
violations receive unequal treatment, with some being punished and others getting
off scot-free. That form of selective prosecution, although it involves dramatically
unequal legal treatment, has no standing in equal protection law."
Parude v. City o/Natchez, 72 F. App'x 102, 105 (5th Cir. 2003) (quoting Esmail v. Macrane, 53
F.3d 176, 178-79 (7th Cir. 1995)). Allen has not pointed to any case in which prosecutorial
discretion exercised across jurisdictions, and specifically across different counties, violates the Equal
Moreover, Allen has not shown that financial concerns factored into the State's choice to
prosecute his as a capital crime. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.
471, 489 (1999) (requiring "a criminal defendant to introduce 'clear evidence' displacing the
presumption that a prosecutor has acted lawfully."). Allen's crime facially fit the statutory
requirements for capital murder. Nothing suggests that the prosecutor in this case considered
anything other than the severity of the crime in deciding the severity of the punishment to seek.
Allen can only speculate that the availability of resources in Harris County made his a capital
prosecution, and that another county would have sought a lesser penalty.
Allen has not shown that the calculus of prosecutorial discretion in counties facing smaller
budgets renders his own death sentence unconstitutional. The state court's rejection of this claim
was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Texas' "12-10" Rule (claim three)
Allen argues that the trial court's punishment-phase instructions confused the jury and made
a death sentence more likely. The trial court's instructions said that any answer to Texas's special
issues which could result in Allen receiving a death sentence must be unanimous, but that ten or
more jurors would have to agree to any answer supporting a life sentence. Clerk's Record at 568.
The trial court fashioned those instructions after TEX. CODE CRIM. PRO. art. 37.071, commonly
called either the "12-10" or "10-12" Rule. See Resendiz v. State, 112 S.W.3d 541,548 (Tex. Crim.
App. 2003); Prystash v. State, 3 S.W.3d 522,536 (Tex. Crim. App. 1999).
Here, when jurors expressed some confusion over the 12-10 Rule, the trial judge directed
them to the trial court's charge. Tr. Vol. 28 at 77. Allen argues that the trial court should have
instead instructed the jury that, should any juror refuse to answer the special issues in unanimity with
the others, he would receive a life sentence. At the time of trial, TEX. CODE CRIM. PRO. art.
37.071(g) prohibited the parties and the trial court from providing the jury with that information.
Allen claims this confusing sentencing process violates Mills v. Maryland, 486 U.S. 367 (1988) by
not explaining the effect of a single juror's "no" answer to the mitigation special issue.
In Mills, the Supreme Court "held invalid capital sentencing schemes that require juries to
disregard mitigatingfactors 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, 439-440 (1990); Drueryv. Thaler, 647 F.3d 535, 542-43 (5th Cir. 2011). Becausethe
Constitution mandates that jurors be able to consider mitigating evidence, see Lockett v. Ohio, 438
U.S. 586, 604 (1978), Mills prohibits sentencing instructions which preclude jurors "from
considering any mitigating evidence unless all 12 jurors agreed on the existence ofa particular such
circumstance." Mills, 486 U.S. at 384 (emphasis added).
Allen reasons that the 12-10 rule in practice "affirmatively mislead[ s] jurors into believing
that their independent belief that a life sentence is proper is irrelevant unless nine other jurors agree
with them." (Docket Entry No. 15 at 41). In other words, an individual juror may not feel that they
can act on "mitigating evidence they believe calls for a life sentence unless they can get nine other
jurors to agree with them." (Docket Entry No. 15 at 41). "Thus, there is a substantial possibility that
one or more ofthe petitioner's jurors might have been precluded from granting mercy because of
their mistaken belief that sufficient mitigating factors had to be found by ten or more jurors."
(Docket Entry No. 15 at 43).
The Fifth Circuit has repeatedly held that Texas' 12-10 Rule does not run afoul of Mills. See
Reedv. Stephens, 739 F.3d 753,779 (5th Cir. 2014); Parrv. Thaler, 481 F. App'x 872, 878(5th Cir.
2012); Drueryv. Thaler, 647 F.3d 535, 542-43 (5th Cir. 2011); Greer v. Thaler, 380 F. App'x 373,
389 (5th Cir. 2010). The Fifth Circuit holds that "the instruction at issue 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 v. Scott, 31 F.3d 1319, 1329 (5th Cir. 1994);
see also Spisak, 558 U.S. at 147-48 (distinguishing between instructions requiring unanimity in an
ultimate finding of mitigating circumstances from unanimity in finding the existence of a particular
circumstance). 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. In fact, the
instructions explicitly told jurors that they "need not agree on what particular evidence supports an
affirmative finding on Special Issue No.2." Clerk's Record at 568. Given that Mills does not
condemn sentencing instructions such as those given in this case, granting habeas relief would
require the creation of new constitutional law in violation of the non-retroactivity principle from
Teague v. Lane. See Druery, 647 F.3d at 542-45 (citing numerous Fifth Circuit cases).
Allen tries to distinguish the Fifth Circuit law by arguing that prior cases only considered the
effect of the 12-10 rule on capital sentences arising before the Texas legislature adopted a new,
more-comprehensive mitigation special issue in 1991. (Docket Entry No. 23 at 11-16). The Fifth
Circuit, however, has rejected challenges to the 12-10 rule in cases arising well after the 1991
statutory revision. See Reed, 739 F.3d at 779; Parr, 481 F. App'x at 878; Blue, 665 F.3d at 662-63.
Accordingly, Allen's 12-10 rule claim is both Teague-barred and without merit. The state court's
rejection ofthis claim, therefore, was not contrary to, or an unreasonable application of, federal law.
See 28 U.S.C. § 2254(d)(1).
Denial of Challenge for Cause to One Prospective Juror (claim four)
Allen claims that the trial court violated his Sixth and Fourteenth Amendment rights by
denying his motion to strike prospective juror Gordon Arthur Berg for cause. Allen argues that,
because he had to use a peremptory strike to remove Mr. Berg, he later ran out of challenges. Allen
says that ifhe had additional strikes he would have removed ajuror who he considers to have been
biased. Allen must show that he did not receive "a fair trial by a panel of impartial, 'indifferent'
jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961).
Jury selection in this case proceeded in two stages. Questioning by the parties first qualified
a pool of prospective jurors. At that time, the parties could challenge any allegedly biased potential
juror for cause. Allen asked the trial court to remove Mr. Berg, the fourth potential juror questioned,
because "[h]e could not fairly consider the evidence in the case" and "his feelings toward mitigation
[evidence] substantially impair[ed] his ability to carry out his performance as a juror[.]" Tr. Vol. 5
at 82-83. The trial court denied Allen's motion. Tr. Vol. 5 at 82-83.
After the parties had questioned all potential jurors and made for-cause challenges, the trial
court held a separate hearing for the parties to use their peremptory strikes. Each side started with
fifteen peremptory challenges. Before the parties began exercising their strikes, the defense
requested four additional challenges. Trial counsel argued that the defense lacked sufficient strikes
because the trial court should have removed three prospective jurors (including Mr. Berg) for cause.
Tr. Vol. 21 at 4-5. Because Texas case law authorizes additional peremptory challenges only after
the defense expends their original allotment, see Cooks v. State, 844 S.W.2d 697, 717 (Tex. Crim.
App. 1992), the trial court deferred ruling on that request until they "g[ o]t to that point." Tr. Vol.
21 at 6.
As the trial court presented the name of each potential juror to the parties, the State first
elected to accept the prospective juror or use a peremptory challenge. If the State accepted, the
defense could then use their challenges. When the State accepted Mr. Berg, the defense exercised
a peremptory strike "because the court [had] overruled [their] challenge for cause." Tr. Vol. 21 at
27. Allen then immediately requested an extra strike, though the defense still had not exhausted all
its peremptory challenges. Tr. Vol. 21 at 27. The trial court stated: "That was denied." Tr. Vol. 21
After the defense had expended all its strikes, the State accepted Linda Smith Schultz (also
referred to in the record as Linda Smith) as the final juror. Tr. Vol. 21 at 31. Without any additional
comment, trial counsel stated: "Defense accepts but we don't have any more strikes." Tr. Vol. 21
at 32. Trial counsel, however, did not request any additional strikes at that point.
Waiver of Claims on State Review
On direct appeal, Allen argued that the trial court violated his right to an impartial jury by
not removing Mr. Berg for cause. The State, however, countered that Allen had not preserved the
issue for appellate review. The Court of Criminal Appeals found that Allen had waived any claim
relating to jury selection:
To preserve error with respect to a trial court's denial of a challenge for cause, an
appellant must: (1) assert a clear and specific challenge for cause; (2) use a
peremptory strike on the complained-ofveniremember; (3) exhaust his peremptory
strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror;
and (6) claim that he would have struck the objectionable juror with a peremptory
strike ifhe had one to use. Nelson v. State, 848 S.W.2d 126, 134 (Tex. Crim. App.
1992), cert. denied, 510 U.S. 830, 114 S. Ct. 100, 126 L. Ed.2d 66 (1993). The
record in this case shows that [Allen] asserted a clear and specific challenge for cause
against Berg, that he exercised a peremptory strike against Berg, and that he
exhausted his peremptory strikes.
[Allen] failed to meet the fifth and sixth requirements to preserve error. In his
appellate brief, appellant identifies Linda Smith Schultz as the objectionable juror
that sat on the jury. However, because he failed to identify [Schultz] as objectionable
in the trial court, he waived his right to complain on appeal that the trial judge
erroneously overruled his challenge for cause. Ibid.
Allen, 108 S. W.3d at 282-83 (footnote omitted). The state courts reached a similar result when Allen
raised this claim on state habeas review. State Habeas Record at 919. The state courts alternatively
found that the trial judge did not abuse his discretion in denying the challenge for cause against Mr.
Berg. State Habeas Record at 920.
On federal review, Allen renews his argument that the trial court should have removed Mr.
Berg for cause. No constitutional violation results from a defendant having to use a peremptory
strike to remove objectionable jurors. The Supreme Court in Ross v. Oklahoma, 487 U.S. 81, 86
(1988), held that because "peremptory challenges are not of constitutional dimension ... the fact that
the defendant had to use a peremptory challenge to achieve [an impartial jury] does not mean the
Sixth Amendment was violated." Id.; see also United States v. Martinez-Salazar, 528 U.S. 304,317
(2000). Allen removed Mr. Berg "from the jury as effectively as if the trial court had excused him
for cause." Ross, 487 U.S. at 86. Under Ross, this Court's focus "begins and ends" with a
determination of whether those jurors who served possessed "views [that] would prevent or
substantially impair the performance of his duties as a juror in accordance with his instructions and
his oath.'" Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quotation omitted); see also Ross, 487
U.S. at 88; Martinez-Salazar, 528 U.S. at 317; UnitedStatesv. Snarr, 704 F.3d368,386-87 (5thCir.
2013); Jones v. Dretke, 375 F.3d 352,356 (5th Cir. 2004). This Court's review, therefore, focuses
on whether any "member of the jury as finally composed was removable for cause[.]" Rivera v.
Illinois, 556 U.S. 148, 158 (2009).
Allen's federal petition identifies only one allegedly objectionable juror, Ms. Schultz, whose
"answers during voir dire raised several grave concerns." (Docket Entry No. 15 at 67). On direct
appeal, however, Allen conceded that trial counsel "did not articulate why he would have used a
peremptory on [Ms. Schultz] and why she was not an acceptable juror." Appellant's Brief on Direct
Appeal at 13. Because trial counsel never articulated why Ms. Schultz posed concern for the
defense, the Court of Criminal Appeals could not evaluate why Allen considered her to be an
objectionable juror. As Respondent observes, because "Allen did not even attempt to strike Schultz
for cause or object to her inclusion in the jury pool after the completion of her voir dire," (Docket
Entry No. 17 at 62), trial counsel did not develop a record regarding any problematic portions of her
Respondent now argues that Allen's default of that issue on state review prevents federal
relief. The Court of Criminal Appeals observed that Allen "waived his right to complain on appeal
that the trial judge erroneously overruled his challenge for cause" because he did not lodge a specific
objection to Ms. Schultz's impartiality in the trial court. Allen, 108 S.W.3d at 283. On federal
review, Allen has not addressed the question of whether he preserved error with regard to the voir
dire of Ms. Schultz. Allen's failure to make a contemporaneous objection to Ms. Schultz's ability
to be impartial prevents federal habeas review.
Even if a procedural bar did not prevent federal review, the same failure to develop an
adequate record precludes a determination that Ms. Schultz could not be impartial. Even though
Allen says that Ms. Schultz as "an objectionable juror," (Docket Entry No. 23 at 19), an inmate must
prove that the juror was "partial," that is, "properly subject to strikes for cause." Nethery v. Collins,
993 F.2d 1154, 1161 n.20 (5th Cir. 1993); see also Rivera, 556 U.S. at 158; Martinez-Salazar, 528
U.S. at 317. Texas law allows for the removal of a potential juror after a showing that "the juror has
a bias or prejudice in favor of or against the defendant" or "has a bias or prejudice against any of the
law applicable to the case upon which the defense is entitled to rely[.]" TEx. CRIM.
35 .16(a)(9), (c)(2). Allen never moved to strike Ms. Schultz for cause during her initial questioning.
Tr. Vol. 19 at 228. Allen never alerted the trial court to any disqualifYing bias or prejudice,
hampering subsequent review of the issue.
For the first time on direct appeal, Allen identified two areas in which he considered Ms.
Schultz to be objectionable. First, Allen alleged that Ms. Schultz favored the death penalty. When
questioned about her support of the death penalty, and asked to rank it on a scale from one to ten,
Ms. Schultz responded that she would fall "between about a five and a seven." Tr. Vol. 19 at 217.
Ms. Schultz indicated that she "believe[d] in the death penalty and thought it should be available for
serial murders," for "school murders," and for "where somebody has killed someone else in a
horrible type way." Tr. Vol. 19 at 187-88. The examination of Ms. Schultz did not reveal any bias
in favor of the death penalty that would open her to a valid challenge for cause. Ms. Schultz's
answers did not show that she would "automatically vote for the death penalty in every case" or "fail
in good faith to consider the evidence of aggravating and mitigating circumstances [.]" Morgan, 504
U.S. at 729. Ms. Schultz said she could consider the full range of punishment, would not decide
Allen's sentence until she heard all the facts, would hold the State to its burden of proof, and could
consider whether any mitigating evidence warranted a life sentence. Tr. Vol. 18 at 189-94, 200-02,
204,223-24. Thus, Ms. Schultz was not ajuror who had "already formed an opinion on the merits"
and to whom "the presence or absence of either aggravating or mitigating circumstances is entirely
irrelevant[.]" Morgan, 504 U.S. at 729.
Second, and more troubling, Allen argued that Ms. Schultz held racial views that would
subject her to dismissal for cause. The jury questionnaire asked, "Do you feel that one group of
people is more dangerous than other groups, i.e., age group, ethnic group, racial group, sexual
orientation groups, or other specific groups?" Tr. Vol. 19 at 211. Apparently, Ms. Schultz answered
"yes" and wrote in "racial." When trial counsel asked her during her questioning to clarify what she
meant, Ms. Schultz replied: "Blacks." Ms. Schultz explained: "[p]robably from the news ... the
group of people that seem to commit the most violent crimes from my point of view and what I hear
are blacks." Tr. Vol. 19 at 211-12. Trial counsel, however, did not ask any more questions on that
subject or clarify whether she could set aside her views.
Under Texas law, "[blias exists as a matter of law when a prospective juror ... admits or
demonstrates prejudice toward a racial or ethnic class of which the defendant is a member."
Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim. App. 1982). The Supreme Court has
recognized that "[t]he risk of racial prejudice infecting a capital sentencing proceeding is especially
serious in light of the complete finality of the death sentence." Turner v. Murray, 476 U.S. 28, 35
(1986). A "juror who believes that blacks are violence prone or morally inferior might well be
influenced by that belief in deciding whether petitioner's crime involved the aggravating factors"
The trial questioning of Ms. Schultz, however, was not adequate to determine whether her
views would prevent her from being an impartial juror. Trial counsel did not contemporaneously
argue that Ms. Schultz should be removed because of her racial views. Had trial counsel challenged
Ms. Schultz for cause, the State mayor may not have rehabilitated her through additional
questioning. Ms. Schultz's answers to other questions, however, indicated that she could have an
impartial mind and could consider the full range of punishment. In particular, she indicated that she
would hold the State to a beyond-a-reasonable-doubt burden on the future-dangerousness issue,
possibly suggesting a predisposition to set aside any racial preconceptions. Tr. Vol. 19 at 200-02.
Notwithstanding any disconcerting answers Ms. Schultz gave, the trial record leaves only speculation
about whether she was biased against Allen.
Trial counsel's failure to preserve an objection prevents judicial consideration of Ms.
Schultz's ability to be impartial.
Moreover, Allen never alleged that failure amounts to
constitutionally deficient performance. Accordingly, Allen has not shown any constitutional error
in the trial court's refusal to dismiss Mr. Berg. This claim is denied.
Trial Counsel's Investigation and Presentation of Mitigating Evidence (claim
In his fifth claim, Allen argues that "trial counsel were ineffective for failing to subpoena
witnesses who were key to the mitigation special issue." (Docket Entry No. 15 at 69). According
to Allen, trial counsel's investigation uncovered evidence of "the severe abuse suffered by [him] as
a child," but "witnesses essential to the presentation of [that] mitigating evidence ... were not
subpoenaed to the trial." (Docket Entry No. 15 at 69). Because Allen concedes that "[t]his claim
was not raised in the state courts," Respondent argues that this Court cannot reach the merits.
(Docket Entry No. 15 at 69). The Court will examine the background of Allen's ineffectiveassistance-of-counsel claim, address the procedural impediments to federal review, and then review
the merits in the alternative.
Constitutional Obligations and the Defense's Case at Punishment
A capital defense attorney carries a heavy burden in preparing to defend against a death
sentence. See Florida v. Nixon, 543 U.S. 175, 191 (2004). Constitutional and professional standards
guide trial counsel's search for circumstances that may militate for a life sentence. Although the
Constitution does not "require counsel to investigate every conceivable line of mitigating evidence
no matter how unlikely the effort would be," an attorney must still employ "reasonable professional
judgment" in defending against a death sentence. Wiggins v. Smith, 539 U.S. 510, 533-34 (2003).
Defense attorneys must deeply probe a defendant's background, extensively exhaust various avenues
of investigation, and seriously consider potential mitigating themes. See Neal v. Puckett, 286 F.3d
236, 236-37 (5th Cir. 2002). In reviewing a trial attorney's efforts, courts use the framework
established in Strickland v. Washington, 466 U.S. 668 (1984), that asks whether "a defense
attorney's performance f[ell] below an objective standard of reasonableness and thereby
prejudice[d} the defense." Yarborough v. Gentry, 540 U.S. 1,4 (2003) (emphasis added); see also
Lafler v. Cooper, _
U.S. _ , 132 S. Ct. 1376, 1384 (2012); Wiggins, 539 U.S. at 520.
Allen's attorneys put a significant amount of mitigating evidence before the jury through
expert and lay witnesses. As the defense's first witness, trial counsel called Dr. Gilda Kessner, a
clinical psychologist, who opined that death-sentenced inmates have low rates of violence in prison.
Tr. Vol. 27 at 47. Dr. Kessner also explained that, according to her actuarial review of the discrete
circumstances in this case, Allen only posed a two to seven percent chance of committing criminally
violent offenses in prison, a number smaller than that for most capital inmates. Tr. Vol. 27 at 52,
136-37. On cross-examination, however, the prosecution accentuated that Dr. Kessner based her
opinion on statistical analysis, "not what Kerry Allen has done[.]" Tr. vol. 27 at 154.
The defense called lay witnesses to humanize Allen in the jury's eyes. Two of Allen's former
pastors testified that Allen was bright, affable, and spiritual when younger. Tr. Vol. 27 at 86, 103.
Two friends testified that Allen was a loving, helpful, and religious person. Tr. Vol. 27 at 115, 11819, 134; Tr. Vol. 28 at 67-69. Cross-examination, however, emphasized that the witnesses'
recollection was inconsistent with the brutal crime that Allen had committed.
Trial counsel called Bettina Wright, a social worker, to tell the jury about the abuse Allen had
suffered as a child. The defense prepared Ms. Wright for trial by providing her with background
material. Ms. Wright interviewed Allen and some of his family members. She also reviewed
transcripts of interviews that the defense investigators had conducted with family members. Tr. Vol.
28 at 23-24. Based on her investigation, Ms. Wright testified that Allen "was a survivor of chronic
sexual abuse during his childhood." Tr. Vol. 28 at 6.
Ms. Wright's testimony provided the jury with disturbing insight to the abuse Allen suffered.
She explained that "the abuse started at an early age and continued into adulthood." Tr. Vol. 28 at
7. "[T]here were numerous abusers. There was his brother, his uncle, a boyfriend, the brother of
a boyfriend of his mother's, and strangers as well." Tr. Vol. 28 at 9. Ms. Wright provided specific
details about the sexual assaults: "He was forced to masturbate his uncle. He was forced to perform
oral sex on his uncle. His brother fondled him and masturbated on him, entered him anally. He was
raped by a stranger in the park when he was a teenager. The list was pretty graphic and ongoing."
Tr. Vol. 28 at 13. Ms. Wright explained that Allen told other people about the sexual abuse, though
not all of them believed him. Tr. Vol. 28 at 55-56. Allen tried to tell his mother "that his brother
was molesting him, [but] she didn't believe him and dismissed it and got angry at him and punished
him for saying that about his brother." Tr. Vol. 28 at 15. Ms. Wright explained that Allen had also
suffered other kinds of abuse: "he was rejected and emotionally neglected by his mother" because
he was the product of a rape, "more so even than his twin sister was rejected." Tr. Vol. 28 at 14.
Ms. Wright described how Allen's troubled childhood contributed to his criminal adulthood.
The pervasive abuse sent Allen "a message that he was unwanted very eady in life[.] ... That he was
not safe. That he was not of value in the family." Tr. Vol. 28 at 12. Ms. Wright testified that
childhood abuse left Allen with "very poor coping mechanisms, very low self esteem, very poor life
skills in general" which made him "more likely to act out when things are very stressful in [his]
life[.]" Tr. Vol. 28 at 16. The circumstances in which Allen found himself at the time of the offense
- poor, caring for several children, and a victim of sexual abuse himself - created a stressful situation
precipitating the murder. Tr. Vol. 28 at 17. Ms. Wright explained that victims of sexual assault are
more likely to sexually assault children themselves. Tr. Vol. 28 at 17-18.
On cross-examination, the State put forth that Allen "never told anyone [in prison facilities]
that he was sexually abused as a child" until "it became important to him so that he would get out
of a death penalty." Tr. Vol. 28 at 55. Ms. Wright conceded that the allegations of abuse all came
from Allen himself, which was unsurprising because sexual assaults are "very rarely witnessed."
Tr. Vol. 28 at 56. Still, Ms. Wright testified that "[t]here were people who mentioned that he had
told them about the abuse." Tr. Vol. 28 at 55. During closing argument, the prosecutor emphasized
that the testimony about sexual assault only came from Allen, who had shown himself to be a liar.
Tr. Vol. 29 at 49-50.
Allen's Federal Habeas Claim
For the first time on federal review, Allen claims that trial counsel did not do enough to put
information about childhood abuse before the jury. Allen bases this claim on an affidavit that federal
habeas counsel secured from one of his trial investigators, Gerald Bierbaum. According to Mr.
Bierbaum, trial counsel employed two investigators, himself and Lisa Milstein. Ms. Milstein
"performed field interviews ofwitnesses while [he] reviewed records, interviewed the client, assisted
in local interviews and drafted miscellaneous documents supporting the mitigation presentation."
Mr. Bierbaum stated that Allen told him that he had suffered "seriatim sexual abuse as a child at the
hands of older male members of the family." Also, "[t]hrough interviews of family members,
neighbors and paramours, Ms. Milstein and [Mr. Bierbaum] discovered some testimony that
supported the physical and sexual abuse Mr. Allen suffered during prior [sic] to his leaving home
as a teenager." (Docket Entry No. 15, Appendix B, Declaration of Gerald Bierbaum.). Trial counsel
provided Ms. Wright the information accumulated by the investigators.
Trial counsel did not subpoena any family members to verify that Allen had been abused.
Mr. Bierbaum explained:
As the trial approached, we selected witnesses to testify. I recall that some of the
selected witnesses refused to come to the trial in Houston after learning about the
mitigating evidence to be presented. I recall this troubled the defense team greatly
because their testimony would have verified the abuse that Mr. Allen revealed. I
believe the team assumed these witnesses would cooperate because of their
interviews. I believe that we did not have enough time to pursue out of state
subpoenas when we found out the witnesses would not willingly appear.
(Docket Entry No. 15, Appendix B, Declaration of Gerald Bierbaum.). Allen claims that trial
counsel provided deficient performance by not subpoenaing the reluctant family members to testify
about the chronic abuse.
Procedural Impediments to Federal Review
Allen never presented his Strickland claim to the state courts. The AEDPA precludes federal
review over unexhausted claims for any purpose other than to deny their merits. See 28 U.S.C.
§ 2254(b)(1), (2). Notwithstanding the unexhaustion of remedies, Allen outlines two paths to
adjudication of his Strickland claim. First, Allen asks the Court to stay his case pursuant to Rhines
v. Webber, 544 U.S. 269 (2005) and allow him to file a new state habeas application. Second, Allen
argues that recent developments in habeas law will allow him to overcome the procedural
impediments to federal review. For the reasons outlined below, the Court finds that full federal
review is unavailable on this claim.
Unavailability of successive state review
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court adopted a stay-and-abeyance
safety valve for the consideration of unexhausted claims, allowing for the development of
meritorious claims while preserving the AEDPA's concern for finality and expediency. In his
petition, Allen asked this Court to stay his case under Rhines to allow the filing of a successive state
habeas application. (Docket Entry No. 15 at 77). The Texas courts, however, strictly enforce an
abuse-of-the-writ doctrine (codified at TEX. CODE CRIM. PRO. art. 11.071 § 5(a» and generally
prohibit the filing of successive habeas actions. Allen now concedes that "sending the case back to
the state court could prove futile." (Docket Entry No. 32 at 8). Because the Court of Criminal
Appeals would not allow Allen to file a successive habeas application, staying this case under Rhines
would only cause pointless delay of these proceedings.
Exceptions to the procedural bar doctrine
The absence of a state habeas avenue of relief technically satisfies the exhaustion requirement
for federal review. See Woodford v. Ngo, 548 U.S. 81,92-93 (2006). Nevertheless, federal courts
honor the independence of state procedural law. The state procedural rule that forecloses state
successive habeas actions also bars federal review under these circumstances.
See Gray v.
Netherland, 518 U.S. 152, 161-62 (1991); Coleman, 501 U.S. at 734 n.l; Teague, 489 U.S. at
297-98; see also Steele v. Young, 11 F.3d 1518, 1524 (lOth Cir. 1993) (stating that when "it is
obvious that the unexhausted claim would be procedurally barred in state court, we will forego the
needless 'judicial ping-pong' and hold the claim procedurally barred from habeas review" ).
An inmate may overcome a procedural bar ifhe can "demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in afundamental miscarriage ofjustice." Coleman, 501 U.S. at 750
(emphasis added). Allen argues that he can show cause and prejudice because his state habeas
counsel failed to advance his Strickland claim. In Martinez v. Ryan, _
U.S. _ , 132 S. Ct. 1309,
1320 (2012), the Supreme Court recently found that ineffective assistance by a state habeas attorney
may amount to cause under some circumstances. See also Trevino v. Thaler,
U.S._, 133 S.
Ct. 1911 (2013) (applying Martinez to cases arising from Texas courts). To meet the cause
exception under Martinez, an inmate must: (1) prove that his habeas attorney's representation fell
below the standards established in Strickland and (2) show that his underlying ineffective-assistance
claim "has some merit[.]" Martinez, _
U.S. _ , 132 S. Ct. at 1318; see also Crutsinger v.
Stephens, 540 F. App'x 310, 317 (5th Cir. 2013); In re Sepulvado, 707 F.3d 550, 556 n.12 (5th Cir.
Allen alleges that state habeas counsel was ineffective because he "spent no time
investigating claims outside of the record." (Docket Entry No. 32 at 6). Allen points to records he
has obtained showing that habeas counsel billed Harris County for only 228 hours in preparing and
litigating Allen's state habeas application. Allen says that habeas counsel never met with him
personally, did not review the trial attorneys' files, and never spoke with the trial investigators.
Allen alleges that the lengthy state habeas application contained "little substance" and mostly
"appears to have been copied and pasted from the state direct appeal[.]" (Docket Entry No. 32 at 6).
Notwithstanding his allegations against habeas counsel, federal review only becomes
available after Allen makes a threshold showing that his underlying claim "has some merit [.]"
U.S. _ , 132 S. Ct. at 1318. Allen has only made a passing effort to show that trial
counsel erred in not subpoenaing out-of-state witnesses. Allen states that "[s]imply put, the
mitigation investigation in this case was next to non-existent. This is incredibly alarming because
... the trial counsels ... had information showing that Mr. Allen was severely mentally and sexually
abused by family members and strangers alike while growing up." (Docket Entry No. 32 at 3).
Allen obviously understates trial counsel's investigation into mitigating evidence. Trial counsel not
only had information about the abuse, but put information before the jury through Ms. Wright.
Allen's true complaint is that trial counsel did not paint a more fulsome or detailed picture of that
Yet Allen has not provided any specifics about what information trial counsel should have,
but did not, put before jurors. Allen solely relies on Mr. Bierbaum's explanation that trial counsel
should have subpoenaed uncooperative out-of-state witnesses. Allen does not provide any affidavit
from uncalled witnesses. He does not give the names of any family members that trial counsel
should have called or provide insight as to what their putative testimony would have been. Federal
law requires specificity in complaints of uncalled witnesses. Recognizing that "the presentation of
witnesses is generally a matter oftrial strategy," the Fifth Circuit has often commented that "[c ]laims
that counsel failed to call witnesses are not favored on federal habeas review [.]" Woodfox v. Cain,
609 F.3d 774, 808 (5th Cir. 2010). Because "allegations of what a witness would have stated are
largely speculative," the Fifth Circuit requires an inmate to "name the witness, demonstrate that the
witness was available to testify and would have done so, set out the content of the witness's
proposed testimony, and show that the testimony would have been favorable to a particular defense."
Day v. Quarterman, 566 F.3d 527,538 (5th Cir. 2009); see also Turner v. Epps, 412 F. App'x 696,
706 (5th Cir. 2011); Hooks v. Thaler, 394 F. App'x 79,82-83 (5th Cir. 2010); Woodfox, 609 F.3d
at 808. Allen provides nothing but speculation about testimony that unspecified family members
could have provided.
Importantly, Allen's federal claim alleges that "had the jury heard about this abuse from
someone with firsthand knowledge the jury would likely have found that this strong mitigation
evidence called for a sentence oflife in prison." (Docket Entry No. 15 at 76-77) (emphasis added).
Ms. Wright's trial testimony indicated that firsthand accounts of abuse are exceptionally rare. Allen
makes no allegation that any family member witnessed the sexual abuse or that the perpetrators were
willing to confess on the stand.
Allen argues that he "cannot properly present this claim to this Court without the ability to
further investigate the factual basis of the claim and the opportunity to further present evidence to
this Court." (Docket Entry No. 32 at 9). Allen asks the Court to authorize funds for an investigator
to interview family members and others who could provide information about abuse in his
background. Nevertheless, Martinez does not require the authorization for funds absent a concrete
showing that an investigation would uncover admissible testimony that a reasonable attorney could
and would have presented at trial. See Crutsinger, 540 F. App'x at 317 (observing that, even after
Martinez, an inmate must "show a substantial need for funds when his claim is procedurally barred
from review"). Allen has not provided the Court with any information that exceeds the evidence
presented by trial counsel. In fact, Mr. Bierbaum's affidavit contains far less detail than Ms.
Allen did not give the state courts an opportunity to consider his Strickland claim. Because
Allen has not supported his allegations with affidavits or other admissible evidence that a reasonably
effective attorney would have put before the jury, he has not made a strong case of deficient
representation by trial counsel, much less that habeas counsel should have raised the defaulted
ineffective-assistance claim in his habeas application. Allen has not shown under Martinez that he
can overcome the procedural bar.
Alternative Review of Merits
For the same reasons that Allen has not shown cause and prejudice to overcome the
procedural bar of his claims, he has not shown an entitlement to habeas relief. In particular, Allen's
pleadings fall short of proving Strickland prejudice. To show "actual prejudice," a petitioner "must
establish not merely that the errors at his trial created a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions." Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008). Allen committed a brutal
crime against an innocent, defenseless victim. Allen's assault of the victim was only the last event
in an escalating pattern of neglecting, abusing, and sexually assaulting the little girl and her siblings.
The heart-wrenching abuse Allen inflicted on his young victim would weigh heavily against any
defense. The murder, however, was only the culminating event in a life full of sexual crime and
violence. Allen had repeatedly committed sexual assaults against minors. He had eschewed
opportunities to reform and had taken advantage of those who trusted him.
Despite the strong - almost overwhelming - evidence against his client, trial counsel
presented a sympathetic case against a death sentence. Trial counsel called lay witnesses and expert
witnesses to chronicle Allen's difficult background, including the abuse he suffered as a child. Allen
only now speculates that additional witnesses would have provided "firsthand knowledge" about the
abuse (Docket Entry No. 15 at 18), and thus prevented the prosecution from saying that Allen had
lied about being abused. Allen complains that trial counsel did not corroborate the allegations of
physical and sexual abuse; Allen has not done so either. As such, this Court can only speculate as
to whether the jury could respond to any additional information about abuse differently than that they
heard at trial. Even if the Court could reach the merits of the procedurally barred Strickland claim,
Allen has not made a substantial showing that would entitle him to habeas relief.
CERTIFICATE OF APPELABILITY
The AEDP A 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.MP.P. Rule 22(b). Allen has
not sought a Certificate of Appealability ("COA"), though this Court can consider the issue sua
sponte. See Alexander, 211 F .3d at 898. 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.
A COA may issue when "[ a petitioner] has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2); see also Slackv. McDaniel, 529 U.S. 473, 484 (2000).
Settled precedent forecloses relief on Allen's claims. Because Allen has not shown under the
appropriate standard that any issue deserves appellate review, this Court will not certify any of his
habeas claims for consideration by the Fifth Circuit.
For the reasons described above, the Court finds that Allen has not shown an entitlement to
federal habeas relief. This Court DENIES Allen's petition and DISMISSES all Allen's claims
WITH PREJUDICE. The Court will not issue a Certificate of Appealability.
The Clerk will provide copies of this Order to the parties.
Signed at Houston, Texas,
VAN SSA D. GILMORE
UNITED STATES DISTRICT JUDGE
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