Russell vs Stephens
Filing
58
MEMORANDUM AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS. The Court GRANTS Respondents motion for summary judgment 47 and DENIES Petitioner Pete Russell, Jr.s Petition for Writ of Habeas Corpus WITH PREJUDICE. All outstanding motions are otherwise DENIED. A Certificate of Appealability is DENIED with respect to all claims. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PETE RUSSELL,
Petitioner,
VS.
LORIE DAVIS,
Respondent.
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July 23, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. 4:13-CV-3636
MEMORANDUM AND ORDER DENYING
PETITION FOR A WRIT OF HABEAS CORPUS
Pete Russell, Jr., has been on Texas’ death row since 2003 for the capital murder of
Tanjala Brewer. After unsuccessfully challenging his conviction and sentence on state appellate
and habeas review, Russell petitions for federal habeas corpus relief. (Docket Entry No. 37).
Respondent Lorie Davis has filed an answer and moved for summary judgment. (Docket Entry
No. 47). Traditional limitations on federal review of state court judgments guide adjudication of
Russell’s petition.
In particular, the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) defines both the scope and nature of this Court’s review. Having reviewed the
record, the pleadings, and the applicable law, the Court will deny Russell’s federal petition. The
Court will not certify any issue for appellate review.
FACTUAL BACKGROUND
On August 13, 2001, family members found the body of forty-year-old Tanjala Brewer
lying on the floor of her kitchen. Her throat had been slit and blood pooled by her neck. Her
body had been posed in a spread-eagle position with her skirt raised. A crack pipe had been
placed in her hand.
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When first responders entered they discovered the gas on and lit candles throughout the
house. Bloody drag marks from the bedroom to the kitchen suggested that her body had been
moved. Blood pooled in Ms. Brewer’s bed and was spattered across the headboard. A machete
was lying nearby. Someone had apparently written on the bedroom mirror with blood. The
words: “She is a devil. I am God” had also been scrawled across the closet doors in blood.
An autopsy counted twenty-three sharp-force injuries on Ms. Brewer’s hands, neck, and
torso. One stab wound had penetrated at least seven inches into her left breast. Hemorrhaging in
her eye suggested that she had suffered asphyxiation. Footprints indicated that the assailant had
stomped on her legs and stomach.
I.
The Prosecution
The police quickly identified Russell as a suspect. A witness, in fact, had seen Russell
watching first responders from across the street as they investigated the grizzly scene. The
police located Russell a few days later at a motel.
When the police entered his room, a
pornographic movie was playing on the television and the bathroom door was closed. The police
opened the door to find Russell in the bathtub, foaming at the mouth and holding a bottle of rat
poison.
The police subsequently recorded two oral statements, both of which served as the basis
for charging Russell with capital murder. Under Texas law, “the gravamen of capital murder is
intentionally (or knowingly) causing a death, plus any one of various different types of
aggravating elements.” Gardner v. State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009). In the
subsequent trial, the defense did not dispute that Russell had murdered Ms. Brewer.1 In fact, trial
counsel told jurors in closing: “From day one, we have never tried to hide the ball from you. The
1
Under Texas state law, “[a] person commits murder . . . if he intentionally or knowingly causes the death of
an individual.” Tex. Penal Code § 19.02(b)(1).
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issue in this case is not who did it. It has never been who did it. It has always been why.” Tr.
Vol. 18 at 17. The defense focused its efforts on disproving the aggravator that made the killing
a capital crime.
The State of Texas charged Russell with capital murder “in the course of committing or
attempting to commit . . . obstruction or retaliation” under Tex. Penal Code § 19.03(a)(2). To
secure a conviction, the State had to prove that Russell murdered the victim in retaliation, that is,
he “intentionally or knowingly harm[ed] or threaten[ed] to harm another . . . : (1) in retaliation
for or on account of the service or status of another as a . . . person who has reported or who the
actor knows intends to report the occurrence of a crime; or . . . to prevent or delay the service of
another as a . . . person who has reported or who the actor knows intends to report the occurrence
of a crime.” Tex. Penal Code § 36.06(a); Clerk’s Record at 350. The State of Texas argued that
Russell killed Ms. Brewer because she had informed the police of his drug dealing; the defense
argued that he slashed and stabbed her in a jealous rage. Both versions of the murder sprang
from statements Russell made to the police in the hospital.
II.
Russell’s Statements
Houston Police Department Sergeant Hal Kennedy arrested Russell after finding him in
the motel. Tr. Vol. 17 at 11-14. Sergeant Kennedy obtained an audiotaped statement in the
hospital emergency room. Russell waived his rights and agreed to speak with the police officers.
Tr. Vol. 17 at 13-14. Sergeant Kennedy asked Russell to tell “[i]n [his] own words . . . what
happened and why [he] did what [he] did.” Russell answered:
Russell:
She . . . she set-she set me up -- she set me up with the police.
Sgt. Kennedy: Who is she?
Russell:
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Her name is [Tanjala] Bull.
Sgt. Kennedy: Okay and how did she set you up with the police?
Russell:
She brought an undercover to my house saying it was her nephew,
that her nephew wanted to buy some drugs, so she got out the
truck, and I took her home, and about fifteen or thirty minutes later
her nephew, which is the undercover, call me and I met him up
there at Family Dollar -- McDonald’s and that’s when I got busted.
Sgt. Kennedy: Okay, but wasn’t she doing some other things to you too? Wasn’t
she like . . .? Were y’all going together. Were y’all hanging out
together?
Russell:
Right. Right we use to go together.
...
Russell:
We used to go together off of . . . I met her on the streets. I tried
to take her off drugs. She was stealing from her. She had a lot of
debts. I was paying them off and we were together about a year year and a half. And then you know what I’m saying we broke up
and that’s when she set me up with the laws.
Sgt. Kennedy: But why did she set you up just to be mean? Or was there a
purpose for it? Or . . .?
Russell:
All I know cause I basically knows I left her alone and she
basically had anywhere to go basically. You know.
Sgt. Kennedy: Okay ah now tell me how it is - how it is that she got killed
whatever.
Russell:
Basically ah I went over her house and you know since she let me
in and she was smoking some drugs whatever and you know we
were just talking whatever you know about the things we used to
do and I was basically asking her “Why did you set me up?” “Why
did you set me up?” and she kept on denying it talking bout I ain’t
set you up. I ain’t set you up. Saying if you would have stayed
with me, none of this would have happened whatever. And
basically you know what I’m saying I just . . . I just went off. I just
snapped.
Sgt. Kennedy: Had you been doing any drugs Pete?
Russell:
No sir.
Sgt. Kennedy: Did you thing [sic] it would ever happen? Or you just . . . you just.
. . why don’t you tell me what happened.
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Russell:
It just . . . I just happened all the while she was smokin you know
what I’m saying and the last thing she said “If you would have
stayed with me it would have never happened. And the next thing
I know I just snapped like that you know there was a knife on the
lit dresser right there and I just grabbed it and jumped on her right
there.
Sgt. Kennedy: What kind of knife was it Was it . . .?
Russell:
A lil . . . A lil kitchen knife.
Sgt. Kennedy: What color . . . what color was the handle?
Russell:
Black.
Sgt. Kennedy: Was that (inaudible) machete (inaudible) . . . Anybody use the
machete?
Or was that your her machete or your machete
(inaudible)?
Russell:
That was her machete I remember it being in her house..
Sgt. Kennedy: But did it have anything to do with all this?
Russell:
Naw.
Sgt. Kennedy: What happened after - after she got killed? What did you do?
Russell:
I basically (ah) inaudible we tussled you know what I’m saying to
the ah to the kitchen or whatever.
Sgt. Kennedy: Okay.
Russell:
And Ah you know ah you know I was talking to her while she was
still you know living or come dead whatever I don’t know.
Sgt. Kennedy: What you say to her?
Russell:
Know what I’m saying you know nobody didn’t you know what
I’m saying make me do it. Nobody to set me up and ah (inaudible)
and ah I had ah turned on ah in the bedroom you know what I’m
saying was lighting a cigarette . . .
Tr. Vol. 21, SX 1A at 2-4. The next morning Russell gave another brief statement to Sgt.
Kennedy after he had been transferred to jail:
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Sgt. Kennedy: Okay. Now what else would you like to tell us about this thing?
Russell:
I really like to say though that I’m sorry and that I really loved [the
victim] and if ah I could do it all over again, It wouldn’t have
happened.
Sgt. Kennedy: You didn’t mean to kill her?
Russell:
No sir.
Sgt. Kennedy: You lost your temper didn’t you?
Russell:
Yes sir I just snapped and like a say I loved her, I loved the family
you know what I’m saying the son and everything and If I had the
chance to do it over again, I wouldn’t have done it. I want her
family to know that I’m sorry and her friends you know that I’m
sorry and that ah I would always love her and everything.
Tr. Vol. 22, SX 175A. Russell’s statements provided the basis for the case presented by both the
prosecution and the defense.
III.
The Prosecution’s Case
The State placed Russell’s statement into a broader story involving Ms. Brewer’s role in
his conviction for selling narcotics to a police officer. Ms. Brewer was a paid confidential
informant for the Houston Police Department. Ms. Brewer and Russell dated for about a year
but had ended their relationship in early 2001 when he met another woman, Karen Foster.
Russell and Ms. Brewer, however, continued to see each other after their romantic relationship
ended.
On May 2, 2001, Ms. Brewer introduced Russell to undercover narcotics officer D. K.
Bush. She told Russell that Officer Bush was her nephew and that he wanted to buy crack
cocaine. A few hours later, Officer Bush called Russell and arranged to buy drugs. When
Russell and Ms. Foster made the delivery, the police arrested both for delivery of a controlled
substance.
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Russell faced serious prison time because he had prior felony convictions. The parties
dispute at what point Russell became aware that Ms. Brewer set him up. The State argued that
Russell knew that Ms. Brewer was a confidential informant well before he killed her. While out
on bond, Russell accompanied her to pick up payment for her services in an unrelated case.
Officer Bush was surprised to see Ms. Brewer with Russell; he had warned her to keep secret her
status as a confidential informant. Russell told a friend that “a lot of people in the neighborhood
told him” that Ms. Brewer had turned him in. Tr. Vol. 16 at 86.
As Russell’s sentencing approached, he displayed animosity toward his former girlfriend.
On August 3, 2001, Ms. Brewer received a handwritten letter from Russell which stated, in part,
“I cannot trust you no more. You are evil and out to hurt me. . . . I don’t need you no more. So
go back to your X X X X X [sic].” Tr. Vol. 16 at 48. Ms. Brewer told a friend that Russell
scared her.
Russell pleaded guilty on August 9, 2001, to delivery of a controlled substance. He
received a ten-year sentence. The judge gave him until September 7, 2001, to report to serve his
sentence. Ms. Foster, though, remained in custody. Tr. Vol. 16 at 174.
Around this same time, Ms. Brewer began dating Wilbert Reed. Shortly before midnight
on August 12, 2001, Mr. Reed stopped by Ms. Brewer’s house on his way to work a night shift.
They had sexual intercourse. Mr. Reed called Ms. Brewer repeatedly during his shift, but her
phone was busy. Mr. Reed was angry and assumed that she had taken her phone off the hook.
Sometime after midnight, Russell came to Ms. Brewer’s house. According to the State’s
version of events, Russell was not a jealous lover because of the victim’s relationship with other
men, but an angry criminal convict because of the victim’s relationship with the police. The
State relied on Russell’s statement to argue that, in a rage of anger for his narcotics conviction,
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Russell repeatedly stabbed the victim. The prosecution premised its argument on how Russell
had described the killing. Russell said that he confronted the victim with having “set him up,”
and then he “just snapped” when she told him: “if you would have stayed with me, none of this
would have happened . . . .”
Russell then dragged her body to the kitchen and placed it close to the stove. After
posing the corpse, Russell turned on the gas and lit candles. The State argued that Russell hoped
the house would catch on fire. The State argued that the evidence proved retaliation, not
jealousy, drove Russell to kill.
IV.
The Defense’s Case
Trial counsel2 elected to proceed with a defense also based on Russell’s statement to the
police. In doing so, trial counsel did not dispute Russell’s identity as the killer. Instead, counsel
relied on ambiguity in Russell’s statement to argue that, because he did not attack Mr. Brewer in
retaliation for turning him in, this was not a capital crime. Trial counsel summarized this theory
in his state habeas affidavit:
In order to rebut the element of retaliation, the defense theory of the case was that
the defendant and [Tanjala] Brewer had been in a relationship but that Brewer,
who used cocaine, was also involved with other men. The night of the murder,
the defendant and Brewer argued with each other and the defendant snapped when
Brewer pulled a knife. As the defense said in our opening statement, this was not
a case of retaliation, it was a case of jilted and unfaithful love. The defendant
testified to this at guilt-innocence – that he snapped when Brewer told him she
had sex with another man.
State Habeas Record at 510. As trial counsel told jurors in closing arguments: “The issue of this
case is not who did it. It has never been who did it. It has always been why. . .. And I think
when you bring it all down, it comes down to the issues of jealousy.” Tr. Vol. 18 at 17-18.
2
The trial court appointed Floyd W. Freed, III, and Ronald N. Hayes to represent Russell at trial. The Court
will refer to the attorneys collectively as “trial counsel” unless necessary to identify one of the attorneys
individually.
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The defense, however, faced a difficult challenge in convincing jurors that the murder
was the impassioned act of a rejected lover. The strongest support for the defense’s case came
from Russell himself. In addition to relying on his statement to the police, the defense called
Russell as a witness to describe why he killed Ms. Brewer.
Consistent with the defense’s chosen strategy, Russell testified that he killed Ms. Brewer
in a jealous rage for flaunting another relationship in his face as she attacked him with a knife.
Russell explained that he and Ms. Brewer had been dating for a “a year, a year and a half” during
which time he came to trust her “very much.” Tr. Vol. 17 at 89. The relationship “broke down”
after Russell “got busted” for narcotics. Tr. Vol. 17 at 90. Russell claimed that, before that
night, he did not know that Ms. Brewer had set him up. Tr. Vol. 17 at 117.
Russell testified that he was jealous because he thought Ms. Brewer had a relationship
with Donald Ray Hawkins, a man from whom she bought drugs. Tr. Vol. 17 at 93-94. Russell
felt angry about their relationship, especially after he found her alone in a motel room with Mr.
Hawkins. Tr. Vol. 17 at 95. Russell did not know that Ms. Brewer was also dating Wilbert
Reed, but he was suspicious about their relationship. Tr. Vol. 17 at 100.
Russell said he went to Ms. Brewer’s house because she wanted him to buy her some
drugs. Russell took with him a diamond ring which he had purchased with the intent of
proposing marriage to her. Tr. Vol. 17 at 96-98. Soon after Russell arrived, however, they
began arguing when Ms. Brewer said she was going to purchase drugs from Mr. Hawkins. As
the argument intensified, Russell said that Ms. Brewer picked up a knife and confessed to
relations with Mr. Hawkins. Tr. Vol 17 at 104-06, 118-119. As she came toward him, Russell
became enraged, picked up a knife, and began stabbing Ms. Brewer. Tr. Vol. 17 at 106.
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Russell also explained some of the bizarre elements of the crime. Russell said that, after
killing Ms. Brewer he fainted and, when he came to, heard a voice saying “Tell them who I am,
tell whom I am.” Tr. Vol. 17 at 108, 110. He then wrote with the victim’s blood on the wall.
Tr. Vol. 17 at 108, 110-111. He testified that he left symbols in the crime scene: he positioned
the victim’s body and lit candles with the natural gas running to represent the elements of the
universe. Tr. Vol. 17 at 111-13. Russell admitted that he stepped on Ms. Brewer after she was
dead and placed a crack pipe in her hand., “representing the hurt . . . and her habit. This was her
hell.” Tr. Vol. 17 at 112-13.
Trial counsel also adduced evidence and testimony to support the chosen defense. Trial
counsel elicited testimony from witnesses that Russell felt jealous toward Ms. Brewer. Tr. Vol.
16 at 37-38, 41, 86. Another witness testified that Russell showed her a ring and she told him
that Ms. Brewer “wasn’t going to accept it.” Tr. Vol. 16 at 90-91, 94.
The State, however, disputed Russell’s “long, drawn-out story about love and jealousy
like this is some Shakespearean tragedy.” Tr. Vol. 18 at 28. The State argued that “Karen Foster
was his girlfriend at the time of this offense and there was no reason for him to be in love with or
jealous about Tanjala Brewer.” Tr. Vol. 18 at 30. The State rebutted testimony about the
wedding ring with testimony from the officer who rode with Russell in the ambulance after his
arrest. The officer testified that Russell told him: “the ring was an engagement ring and that he
had bought it for [Karen Foster] and when she made bond, they were going to get married.” Tr.
Vol. 17 at 171. The State also adduced evidence that Russell had a picture of Ms. Foster in his
wallet, but not one of the victim. The State characterized the defense’s theory as twisting
Russell’s statements into a jealousy defense that did not reflect their relationship or the reason
for which Russell committed such a brutal murder.
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The jury found Russell guilty of capital murder. Clerk’s Record at 364.
V.
The Penalty Phase
Texas law determined Russell’s sentence based on the jury’s answers to two special-issue
questions:
SPECIAL ISSUE NO. 1
Do you find from the evidence beyond a reasonable doubt that there is a
probability that the defendant, Pete Russell, Jr., would commit criminal acts of
violence that would constitute a continuing threat to society?
SPECIAL ISSUE NO. 2
Do you find from the evidence, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant’s character and
background, and the personal moral culpability of the defendant, Pete Russell, Jr.,
that there is a sufficient mitigating circumstance or circumstances to warrant that
a sentence of life imprisonment rather than a death sentence be imposed?
Clerk’s Record at 375-76; see also Tex. Code Crim. Pro. 37.071 § 2(b).
The State presented testimony and evidence showing Russell’s long history of
lawlessness. In 1991, Russell was sentenced to nine years in prison for aggravated assault after
shooting a man who had been in an altercation with Russell’s brother. That same year, Russell
was convicted of aggravated robbery. The jury also heard testimony about the conviction that
resulted from Ms. Brewer informing on Russell. Russell was arrested for delivering drugs to a
police officer. A subsequent search of his room revealed 17.2 grams of cocaine. Witnesses also
described other unadjudicated offenses and bad acts committed by Russell.
During punishment the defense called ten witnesses, including both friends and family
members. The defense’s case for mitigation focused on the Russell being raised in a poor
neighborhood in which drugs and violence were common.
Russell came from a difficult
background. His father abandoned the family and his mother had to work two jobs. Russell was
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raised in a culture of lawlessness where various family members were incarcerated. Witnesses
described him as a good person who never had much of a chance.
The jury answered Texas’ special issues in a manner requiring the imposition of a death
sentence.
APPELLATE, POST-CONVICTION, AND FEDERAL REVIEW
Through appointed counsel, Russell appealed his conviction and sentence to the Texas
Court of Criminal Appeals. Russell’s appeal raised four issues, none of which he renews on
federal habeas review.3 On February 2, 2005, the Court of Criminal Appeals affirmed Russell’s
conviction and sentence in a published opinion. Russell v. State, 155 S.W.3d 176 (Tex. Crim.
App. 2005).
During the pendency of his direct appeal, Russell filed a forty-nine page state application
for a writ of habeas corpus raising three grounds for relief based on the constitutional guarantee
of effective legal representation.4 Specifically, Russell argued that defense counsel: (1) provided
deficient performance in the investigation and presentation of punishment-phase evidence; (2)
ineffectively selected a guilt/innocence defense, primarily by not presenting evidence that he
3
Specifically, Russell’s direct appeal argued:
1.
2.
The trial court abused its discretion by allowing a witness for the State
to remain in the courtroom throughout the guilt stage of trial.
3.
The trial court erred in permitting the State to cross-examine him
during the guilt stage of trial regarding an extraneous drug offense.
4.
4
The trial court erred in allowing the jury to use transcripts of his
recorded oral statements to assist them during deliberations.
The Texas death-penalty scheme is unconstitutional because it allows
the application of the death penalty without providing meaningful
appellate review of any of the special issues.
Russell also submitted a “Pro Se Motion for Amended Petition for State Writ of Habeas Corpus.” State
Habeas Record at 494. The claims in Russell’s pro se application focused on arguing that trial counsel should have
done more to counter the State’s case for retaliation.
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killed out of a sentence of rejection, and that he had previously acted violently when a
relationship ended, and (3) failing to object to the State’s jury argument that allegedly lessened
his burden of proof. The trial court ordered trial counsel to provide an affidavit in response to
Russell’s claims. Trial counsel Hayes provided an affidavit responding to Russell’s allegations
of ineffective representation. State Habeas Record at 509-12.
The parties provided proposed findings of fact and conclusions of law addressing the
issues raised by Russell’s habeas application. The state court signed the State’s proposed
findings and conclusions without alteration and recommended that the Court of Criminal
Appeals deny relief. State Habeas Record at 620-40. On November 27, 2013, the Court of
Criminal Appeals “adopt[ed] the trial court’s findings and conclusions,” and “based upon the
trial court's findings and conclusions and [its] own review, . . . den[ied] relief.” Ex parte
Russell, 2013 WL 6212211, at *1 (Tex. Crim. App. 2013).
Russell then moved for the appointment of counsel to represent him on federal habeas
review. (Docket Entry No. 1). The Court appointed attorneys to represent Russell throughout
the course of federal habeas review. (Docket Entry Nos. 3, 7). In 2014, Russell filed a federal
petition for a writ of habeas corpus. Russell seeks habeas corpus relief based on nine claims:
(1)
(2)
Trial counsel provided ineffective representation by failing to argue that
the State did not prove retaliation.
(3)
Appellate counsel provided ineffective assistance by failing to challenge
the sufficiency of the evidence.
(4)
Trial counsel provided deficient performance by failing to investigate and
present evidence that Russell did not kill the victim out of retaliation.
(5)
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Insufficient evidence supports Russell’s conviction for capital murder.
The State violated Brady v. Maryland, by failing to produce to the defense
a ring seized by the police.
(6)
The prosecutor’s arguments about mitigating evidence violated Russell’s
constitutional rights.
(7)
Trial counsel provided deficient representation in the investigation and
presentation of mitigating evidence.
(8)
Trial counsel ineffectively investigated and presented evidence that
Russell would not be a future danger to society.
(9)
The state habeas court violated Russell’s rights by not holding a hearing.
(Docket Entry Nos. 17, 37).5 Russell sought leave to amend his federal petition, but before filing
his amendment moved for a stay of the proceedings under Rhines v. Weber, 544 U.S. 269 (2005)
to exhaust several claims. The Court stayed and administratively closed this action. (Docket
Entry No. 29).
Russell subsequently filed a motion in the Texas Court of Criminal Appeals seeking
permission to litigate a successive state habeas corpus action.6 Under Tex. Code Crim. Pro.
11.071 § 5, Texas strictly enforces an abuse-of-the-writ doctrine that generally prohibits the
filing of successive habeas applications. While article 11.071 sanctions the filing of a successive
5
Russell’s initial federal petition contained eleven grounds for relief. Russell waived two claims in his
amended petition. (Docket Entry No. 37 at 4). The list of claims provided above only contains those claims from
his amended petition.
6
The Court of Criminal Appeals described the claims Russell sought to litigate on successive review as
follows:
[Russell] presents nine allegations in the instant application. He challenges the
sufficiency of the evidence in Claims 1 and 2. He asserts in Claim 3 that the
prosecutor improperly argued that “personal moral culpability was equivalent to
responsibility for the crime.” In Claims 4 and 5, he contends that trial counsel
were ineffective for failing to argue, investigate, and prove that he did not kill
the victim in the course of committing or attempting to commit retaliation. In
Claim 6, [Russell] alleges that the State “might not” have disclosed an
engagement ring that was seized from him at the time of his arrest. [Russell]
asserts in Claim 7 that trial counsel were ineffective for failing “to investigate
and present potential evidence” that he “did not pose a future threat of danger to
society.” In Claims 8 and 9, he contends that appellate counsel was ineffective
for failing to challenge the sufficiency of the evidence and the prosecutor's
improper jury argument on direct appeal.
Ex parte Russell, 2017 WL 912158, at *1 (Tex. Crim. App. 2017).
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state habeas application in limited circumstances, the Court of Criminal Appeals found that
Russell “failed to satisfy the requirements of Article 11.071, § 5(a)” and, thus, the state court
“dismiss[ed] the application as an abuse of the writ without considering the merits of the claims.”
Ex parte Russell, 2017 WL 912158, at *1 (Tex. Crim. App. 2017).
Russell then returned to federal court.
After the Court reopened this case, Russell
amended his federal petition. (Docket Entry No. 37). Respondent has moved for summary
judgment.
(Docket Entry No. 47).
Respondent argues that traditional habeas corpus
jurisprudence and federal statutory law requires deference to the state court judgments in both
substance and procedure. According to Respondent, Russell’s failure to litigate several claims in
a procedurally proper manner bars them from federal review. Respondent argues that the heavy
deference afforded state court judgments precludes federal relief on the remainder of Russell’s
claims. Russell has filed a reply (Docket Entry No. 54) to which Respondent has filed a surreply (Docket Entry No. 57).
This matter is now ripe for adjudication. The Court will first discuss the procedural
viability of Russell’s claims before discussing whether he has met the AEDPA standards for
federal habeas relief.
PROCEDURAL REQUIREMENTS AND FEDERAL DEFERENCE
Respondent argues that federal procedural law precludes consideration of several claims.
Russell raised claims one, two, three, five, six, and nine for the first time in his federal petition.
This Court stayed adjudication of Russell’s action to allow the exhaustion of state court remedies
on those claims. The Texas Court of Criminal Appeals, however, found that Texas’ abuse-ofthe-writ doctrine, codified in Article 11.071 § 5(a) of the Texas Code of Criminal Appeals,
barred Russell from litigating those issues in a successive state habeas application. Respondent
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argues that the state-imposed procedural bar precludes federal consideration of any claim first
raised in Russell’s federal petition.
The procedural-bar doctrine requires inmates to litigate claims in compliance with state
procedural law. See Dretke v. Haley, 541 U.S. 386, 392 (2004); Lambrix v. Singletary, 520 U.S.
518, 523 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991). “A federal habeas court has
no power to review a state court’s decision not to address a prisoner’s federal claims if the state
court made that decision on the basis of independent and adequate state procedural grounds.”
Moses v. Davis, 673 F. App’x 364, 367 (5th Cir. 2016) (citing Coleman, 501 U.S. at 729-30); see
also Davila v. Davis, ___ U.S. ___, 137 S. Ct. 2058, 2062 (2017) (“Federal habeas courts
reviewing convictions from state courts will not consider claims that a state court refused to hear
based on an adequate and independent state procedural ground.”). “A dismissal pursuant to
Article 11.071 ‘is an independent and adequate state ground for the purpose of imposing a
procedural bar’ in a subsequent federal habeas proceeding.” Gutierrez v. Stephens, 590 F. App’x
371, 384 (5th Cir. 2014) (quoting Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008)): see
also Sorto v. Davis, 672 F. App’x 342, 348 (5th Cir. 2016). Because Russell did not present
those claims to the state court in a procedurally adequate manner, this Court likewise cannot
reach the merits unless he can overcome the procedural bar.
A petitioner has the burden to overcome a procedural bar. McCleskey v. Zant, 499 U.S.
467, 494 (1991). A petitioner meets this burden by showing: (1) cause and actual prejudice or
(2) that “a constitutional violation has ‘probably resulted’ in the conviction of one who is
‘actually innocent[.]’” Haley, 541 U.S. at 393 (quoting Murray v. Carrier, 477 U.S. 478, 496
(1986)). Russell provides various arguments why this Court should reach the merits of his
procedurally barred claims. The Court will discuss each argument in the relevant sections but
16 / 45
observes that Russell has not shown that federal review is available for any of his procedurally
barred claims.
Russell exhausted claims four, seven, and eight on initial state habeas review. If an
inmate has presented his federal constitutional claims to the state courts in a procedurally proper
manner, and the state courts have adjudicated their merits, AEDPA provides for a deferential
federal review. “[A] habeas petitioner has the burden under AEDPA to prove that he is entitled
to relief.” Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000); see also DiLosa v. Cain, 279
F.3d 259, 262 (5th Cir. 2002). “[T]ime and again,” the Supreme Court “has instructed that
AEDPA, by setting forth necessary predicates before state-court judgments may be set aside,
erects a formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court.”
White v. Wheeler, ___ U.S. ___, 136 S. Ct. 456, 460 (2015)
(quotation omitted). Under AEDPA’s rigorous requirements, an inmate may only secure relief
after showing that the state court’s rejection of his claim was either “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” or was “based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),(2).
To merit relief under AEDPA, a petitioner may not merely show legal error in the state
court’s decision. See White v. Woodall, 572 U.S. 415, 420 (2014) (stating being “merely wrong”
or in “clear error” will not suffice federal relief under AEDPA). AEDPA review exist only to
“guard against extreme malfunctions in the state criminal justice systems . . . .” Woods v.
Donald, ___ U.S. ___, 135 S. Ct. 1372, 1376 (2015) (quotation omitted). “[F]ocus[ing] on what
a state court knew and did,” Cullen v. Pinholster, 563 U.S. 170, 182 (2011), AEDPA requires
inmates to “‘show that the state court’s ruling on the claim being presented in federal court was
17 / 45
so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’” Woodall, 572 U.S. at 420 (quoting
Richter, 562 U.S. at 103); Berghuis v. Thompkins, 560 U.S. 370, 380 (2010); Williams v. Taylor,
529 U.S. 362, 413 (2000). “If this standard is difficult to meet, that is because it was meant to
be.” Richter, 562 U.S. at 102.
A petitioner challenging the factual basis for a state decision must show that it was an
“unreasonable determination of the facts in light of the evidence . . . .” 28 U.S.C. § 2254(d)(2);
see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “[A] state-court factual determination
is not unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). A federal habeas
court must also presume the underlying factual determinations of the state court to be correct,
unless the inmate “rebut[s] the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 341; Young v. Dretke, 356 F.3d 616, 629
(5th Cir. 2004) (“As a federal habeas court, we are bound by the state habeas court’s factual
findings, both implicit and explicit.”).
With those standards in mind, the Court turns to the issues presented in Russell’s federal
petition.
RUSSELL’S FEDERAL HABEAS CLAIMS
I.
Sufficiency of the Evidence
Russell’s first claim argues that the trial evidence was insufficient to support his
conviction for capital murder in the course of committing retaliation. Under Jackson v. Virginia,
443 U.S. 307 (1979), a reviewing court affirms a jury’s conviction if, considering all the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
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returned a verdict unfavorable to the defendant. Russell does not dispute that the jury correctly
found him guilty of murder. He instead argues that the State did not present sufficient evidence
proving that he killed in retaliation, the predicate crime that made his a capital offense.
According to Russell, a correct understanding of Texas law outlining the crime of retaliation
required the State “to show that [he] intentionally or knowingly harmed [the victim] as ‘payback’
for her action of identifying [him] to [an] undercover officer . . . as a potential seller of drugs.”
(Docket Entry No. 37 at 26). Russell argues that “[t]here was no evidence that, at the time of the
killing, Russell was acting with the intent to commit the underlying offense or knowledge that he
was committing that offense.” (Docket Entry No. 37 at 26-27).
Russell did not litigate this claim during his initial round of appellate or habeas review in
state court. Russell first raised this issue in his federal habeas petition. When he exhausted his
claim during his successive state proceedings, the Court of Criminal Appeals refused to consider
its merits under Texas’ abuse-of-the-writ doctrine. The state court ruling results in a procedural
bar that forecloses federal review. See Gutierrez v. Stephens, 590 F. App’x 371, 384 (5th Cir.
2014) (“A dismissal pursuant to Article 11.071 is an independent and adequate state ground for
the purpose of imposing a procedural bar in a subsequent federal habeas proceeding.”) (quotation
omitted). As discussed below, the Court finds that Russell cannot overcome the procedural bar.
Alternatively, Russell’s first claim does not merit federal habeas relief.
A.
Russell’s Arguments to Overcome the Procedural Bar
Russell makes three arguments to allow federal review: (1) Texas law generally does not
bar an otherwise-procedurally-inadequate claim when a sentence is illegal; (2) he is actually
innocent of capital murder; and (3) his prior state-court attorneys provided deficient performance
in failing to advance an insufficiency claim.
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1.
Illegal Sentence
In a somewhat convoluted argument, Russell asserts that the Court of Criminal Appeals
held in Ex parte McCuin, 492 S.W.3d 33 (Tex. Crim. App. 2016) that “an illegal sentence may
be challenged at any time,” and thus not subject to constraints such as the abuse-of-the-writ
doctrine. (Docket Entry No. 37 at 30; Docket Entry No. 54 at 12). Russell argues that he
received an illegal sentence because he did not commit the murder in retaliation, and thus the
jury should not have convicted him for capital murder. In essence, Russell asks this Court not to
honor the procedural bar because the Texas courts should not have imposed it in the first place.
Russell’s argument, however, suffers from two fundamental deficiencies. First, a “‘basic tenet of
federal habeas review is that a federal court does not have license to question a state court’s
finding of procedural default, if based upon an adequate and independent state ground.’” Smith
v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000) (quoting Barnes v. Thompson, 58 F.3d 971 (4th
Cir. 1995)); see also Rowell v. Dretke, 398 F.3d 370, 375 (5th Cir. 2005) (“It is not the role of
the federal habeas court to reexamine state-court determinations of state-law questions.”). A
“federal court may only inquire into whether cause and prejudice exist to excuse that default” but
it may not ask “whether the state court properly applied its own law.” Barnes, 58 F.3d at 974.
This Court cannot forgive the procedural bar by finding that the Texas courts should not have
imposed it.
Second, Russell has not shown that the judgment in his case involves an illegal sentence.
Russell is correct that “[t]here has never been anything in Texas law that prevented any court
with jurisdiction over a criminal case from noticing and correcting an illegal sentence.” Mizell v.
State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).7 But the heart of Russell’s argument, no
7
Despite that language, Texas has applied its abuse-of-the-writ jurisprudence to claims that involve an
illegal sentence. See Ex parte Lee, 2011 WL 1135914, at *1 (Tex. Crim. App. 2011).
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matter how he characterizes it, does not implicate an illegal sentence. “A ‘void’ or ‘illegal’
sentence is one that is not authorized by law.” Ex parte Pena, 71 S.W.3d 336, 336 n.2 (Tex.
Crim. App. 2002); see also Ex parte Seidel, 39 S.W.3d 221, 225 n. 4 (Tex. Crim. App. 2001)
(“[T]his Court has long held that a sentence is void when the punishment is unauthorized.”).
Texas generally considers a sentence illegal when it “is outside the maximum or minimum range
of punishment . . ..” Mizell, 119 S.W.3d at 806. In contrast, the heart of Russell’s illegalsentence arguments are merely re-characteriztions of his claim that the evidence did not satisfy
the statutory requirements for his conviction. Russell has not shown that he is incarcerated under
an illegal sentence.
2.
Actual Innocence
Russell also argues that a “fundamental miscarriage of justice” requires this Court to
overlook the state procedural bar.
The fundamental-miscarriage-of-justice exception to the
procedural bar doctrine requires an inmate to prove his actual innocence. See Schlup v. Delo,
513 U.S. 298, 329 (1995). Russell makes his actual-innocence argument by rehashing the
evidentiary picture that was before the jury and again arguing that the State did not prove
retaliation. Russell, however, does not identify any new evidence that should have come before
jurors. (Docket Entry No. 37 at 30). Simply, Russell merely recasts his insufficiency arguments
as actual innocence.
Actual-innocence claims are distinct from claims of insufficient evidence. See House v.
Bell, 547 U.S. 518, 538 (2006). An inmate claiming to be actually innocent must show that “new
reliable evidence” exists which would have prevented a reasonable jury from finding him guilty.
See Schlup, 513 U.S. at 329. This “gateway” to review of a procedurally barred claim “should
open only when a petition presents ‘evidence of innocence so strong that a court cannot have
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confidence in the outcome of the trial . . . .’” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)
(quoting Schlup, 513 U.S. at 316). Russell has not shown a miscarriage of justice because he has
not provided any evidence that would support a “colorable showing of factual innocence.”
Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986). Russell cannot overcome the procedural bar by
rearguing his insufficiency-of-the-evidence claim as a fundamental miscarriage of justice.
3.
Ineffective State Habeas Representation
Finally, Russell argues that, “to the extent state habeas counsel should have raised this
point, the failure of state habeas counsel to raise an issue . . . can constitute cause and prejudice.”
(Docket Entry No. 37 at 32). In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court created
a narrow exception to the procedural bar doctrine which “treats ineffective assistance by a
prisoner’s state postconviction counsel as cause to overcome the default of a single claim.”
Davila v. Davis, ___ U.S. ___, 137 S. Ct. 2058, 2062 (2017). This exception, however, only
applies to defaulted ineffective-assistance-of-trial-counsel claims. See id. at 2064-75. The
Court, therefore, finds that Russell’s arguments cannot overcome the state-imposed procedural
bar of this claim. The Court cannot reach the merits of Russell’s first ground for relief.
B.
Alternative Review of the Merits
Alternatively, the Court finds that Russell’s insufficiency-of-the-evidence claim lacks
merit. In assessing the sufficiency of the evidence, “federal habeas courts should independently
analyze the governing statute, the indictment, and the jury charge to measure the constitutional
sufficiency of the evidence and determine what are the essential elements required by the
Jackson sufficiency inquiry.” Bledsue v. Johnson, 188 F.3d 250, 260 (5th Cir. 1999). The
federal constitutional issue in this case is “whether the evidence was constitutionally sufficient to
convict [petitioner] of the crime charged.” Id. at 262 (quoting Brown v. Collins, 937 F.2d 175,
22 / 45
181 (5th Cir. 1991)).
This demanding inquiry is highly deferential to, and resolves any
conflicting evidence in favor of, the jury’s verdict. See United States v. Harris, 293 F.3d 863,
869 (5th Cir. 2002); United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990).
Here, the jury instructions provided for Russell’s conviction if he killed in the course of
retaliation.
The jury instructions tracked Texas statutory law and defined the offense of
retaliation: “if he intentionally or knowingly harms or threatens to harm another by an unlawful
act in retaliation for or on account of the service or status of another as a witness prospective
witness or informant or a person who has reported or who the actor knows intends to report the
occurrence of a crime.” Clerk’s Record at 350; see also Tex. Penal Code § 36.06(a)(1).8 The
trial court cautioned jurors to only find Russell guilty if the State proved retaliation beyond a
reasonable doubt:
Before you would be warranted in finding the defendant guilty of capital murder
you must find from the evidence beyond a reasonable doubt not only that on the
occasion in question the defendant was in the course of committing or attempting
to commit the felony offense of retaliation against Tanjala Brewer as alleged in
this charge but also that the defendant specifically intended to cause the death of
Tanjala Brewer by stabbing Tanjala Brewer with a deadly weapon namely a knife
and unless you so find then you cannot convict the defendant of the offense of
capital murder.
Clerk’s Record at 352.
Russell frames his insufficiency-of-the-evidence claim as “an issue of statutory
construction.” (Docket Entry No. 54 at 6). Specifically, Russell argues that his conviction rests
on a flawed understanding of what it means to be “in the course of” committing a crime, for the
purposes of the capital murder statute. According to Russell, a conviction for capital murder in
the course of retaliation requires the State to prove that he “set out to retaliate against [the
8
Under the Jackson standard, a court must refer to “the substantive elements of the criminal offense as
defined by state law.” Jackson, 443 U.S. at 324 n. 16.
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victim].” (Docket Entry No. 54 at 10) (emphasis in original). Russell states that the murder
“was a crime of passion, not a retaliatory killing.” (Docket Entry No. 54 at 8). Russell seems to
argue that, without some evidence that he “set out that night to commit Retaliation,” the jury
could not find him guilty of capital murder. (Docket Entry No. 37 at 27).
Russell has not pointed to any Texas law requiring that the actor form an intent to commit
the underlying crime well before the murder, in this case requiring that the State prove that he
intended to kill the victim when he went to her house. Texas statutory law does not define the
phrase “in the course of committing or attempting to commit” as used in Section 19.03(a)(2).
The Court of Criminal Appeals has defined the phrase to mean “conduct occurring in an attempt
to commit, during the commission, or in the immediate flight after the attempt or commission of
the offense.” Garrett v. State, 851 S.W.2d 853, 856 (Tex. Crim. App. 1993); see also Riles v.
State, 595 S.W.2d 858, 862 (Tex. Crim. App. 1980).
The Texas courts have held that
“[e]vidence is sufficient to support a capital murder conviction if it shows an intent” to commit
the underlying offense “which was formed before or contemporaneously with the murder.”
Shuffield v. State, 189 S.W.3d 782, 791 (Tex. Crim. App. 2006) (emphasis added); see also Reed
v. Quarterman, 504 F.3d 465, 489 (5th Cir. 2007) (explaining Texas law); Riles v. State, 595
S.W.2d 858, 862 (Tex. Crim. App. 1982) (construing § 19.03(a)(2) “to mean conduct occurring
in an attempt to commit, during the commission, or in immediate flight after the attempt or
commission”).
Viewing the evidence “in the light most favorable to the jury’s verdict.” Jackson, 443
U.S. at 319, the State argued that Russell, who faced a lengthy prison sentence, killed the victim
for turning him into the police. The State based its case on Russell’s statement in which he, as
set out by the state habeas court, stated: “that he went to the [victim’s] house the night of the
24 / 45
murder where they talked and smoked some drugs that the [victim] denied setting up” Russell.
State Habeas Record at 516-17. Russell explained to the police: “And I was basically asking her
saying you know Why did you set me up? Why did you set me up and she kept on denying it
talking about I ain’t set you up. I ain’t set you up. Saying if you would have stayed with me none
of this would have happened whatever. And basically what I’m saying I . . . just went off. I just
snapped . . . .” Tr. Vol. 21, SX 1A at 2-4.9
True, the evidence did not unequivocally show that Russell went to the victim’s house
with the intention of killing her for having informed on him.10 But Texas law only required the
State to prove that Russell retaliated against the victim and that the intent to do so “was formed
before or contemporaneously with the murder.” Shuffield v. State, 189 S.W.3d 782, 791 (Tex.
Crim. App. 2006); see also Tucker v. State, 771 S.W.2d 523, 528 (Tex. Crim. App. 1988).
Ms. Brewer had been an informant against Russell. The State had to show that “he killed
her because of her status as such.” Angelo v. State, 977 S.W.2d 169, 174 (Tex. App. Austin,
1998). “[A] plain reading of the statute requires the crime to have a retributory nature.” Id.
Russell may have been jealous as the jilted lover. “[T]here may have been several reasons why
[he] wanted to kill [the victim],” but this Court’s only concern is whether “the evidence viewed
9
Russell disputes that he intended to retaliate against Ms. Brewer by arguing that he “had nothing to gain by
punishing Brewer for ‘setting up’ Russell.” (Docket Entry No. 37 at 27).
10
The State separated the question of Russell’s motive from his commission of retaliation:
Now, Mr. Freed has gone into a lot about motive and what we have to prove in
regard to motive. In this particular case, retaliation is what we have to prove that
it was committed in the course of. So, there is kind of a connection as to why
the offense was committed, but we never have to actually prove a motive and in
the charge of murder, you would not see any element that requires us to prove an
element of motive. Okay? You are going to see that in the Charge.
So, if you find that a retaliation was being committed at the time that this
complainant was murdered then you have found that a capital murder was
committed by this defendant.
Tr. Vol. 18 at 26.
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in the light most favorable to the verdict was sufficient for the jury to rationally conclude that
[he] intentionally murdered [her] in the course of committing or attempting to commit . . .
retaliation.” Brown v. State, 2015 WL 5453765, at *8 (Tex. Crim. App. 2015). Russell’s own
words in his two police statements may provide context for deciding whether he killed in the
course of retaliation. See Stewart v. State, 137 S.W.3d 184, 188 (Tex. App. Houston [1 Dist.],
2004) (“Retaliatory intent may be inferred from an accused's acts, words, or conduct.”).
By the fact that both parties based their defense on differing interpretations of Russell’s
statement to the police, jurors could have come to different conclusions about his intent. That
does not mean, however, that a rational jury could not interpret Russell’s statements about how
the victim informed on him as an indication of why he stabbed her seconds later. The Court
cannot substitute any interpretation of the evidence witnesses in place of the fact finder. See
Weeks v. Scott, 55 F.3d 1059, 1062 (5th Cir. 1995); Alexander v. McCotter, 775 F.2d 595, 598
(5th Cir. 1985). Because “[a]ll credibility choices and conflicting inferences are to be resolved
in favor of the verdict,” Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 2005), jurors could find
beyond a reasonable doubt that Russell intentionally killed the victim while harming her on
account of her informing against him, even if he formed the intent to retaliate against her
contemporaneous to killing her. With the “highly deferential” review required by Jackson,
United States v. Hager, 879 F.3d 550, 553 (5th Cir. 2018), the Court finds that, if fully available
for federal review, Russell’s insufficiency-of-the-evidence claim lacks merit.
II.
Ineffective Assistance in Arguing that Russell Did Not Kill Out of Retaliation
Russell has raised various ineffective-assistance-of-counsel arguments in both state
habeas court and in these proceedings. In his second ground for relief, Russell argues that
counsel should have argued that “the State had categorically failed to prove that any killing
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occurred ‘while in the course of committing or attempting to commit Retaliation.’” (Docket
Entry No. 37 at 34). Russell essentially argues that trial counsel should have advanced the same
argument as in his first ground for relief: that the State did not legally prove he killed the victim
in the course of retaliation.
A.
Strickland Standard
Courts evaluate an attorney’s efforts under the standard from Strickland v. Washington,
466 U.S. 668 (1984). Under Strickland, a criminal defendant’s Sixth Amendment rights are
“denied when a defense attorney’s performance falls below an objective standard of
reasonableness and thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 3 (2003)
(emphasis added); see also Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539
U.S. 510, 520 (2003).
A court’s review “of counsel’s performance must be highly deferential,” and made
without “the distorting effects of hindsight.” Id. at 689. Courts assess counsel’s “challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct[,]” because
otherwise “[i]t is all too tempting for a defendant to second-guess counsel’s assistance . . . .” Id.
The law honors an attorney’s “conscious and informed decision on trial tactics and strategy,”
allowing for federal relief only when “it is so ill chosen that it permeates the entire trial with
obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). The prejudice
element requires the movant to show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
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B.
Procedural Bar
Russell advanced his second claim for the first time in federal court, resulting in a
procedural bar when he renewed it in his successive state habeas action. Russell argues that his
initial habeas counsel’s failure to advance the claim forgives the procedural bar under Martinez
v. Ryan, 566 U.S. 1 (2012). The Fifth Circuit has summarized the rule announced in Martinez as
follows:
To succeed in establishing cause to excuse the procedural default of his
ineffective assistance of trial counsel claims, [petitioner] must show that (1) his
underlying claims of ineffective assistance of trial counsel are “substantial,”
meaning that he “must demonstrate that the claim[s] ha[ve] some merit,”; and (2)
his initial state habeas counsel was ineffective in failing to present those claims in
his first state habeas application.
Preyor v. Stephens, 537 F. App’x 412, 421 (5th Cir. 2013) (quoting Martinez, 566 U.S. at 14).
Russell must show that habeas counsel should have advanced a Strickland claim based on
counsel’s failure to craft a defense challenging the retaliation element of capital murder on legal
grounds.
But trial counsel formulated a defense based on proving that Russell did not kill in
retaliation. Trial counsel explained the defense theory: “this was not a case of retaliation, it was
a case of jilted and unfaithful love.” State Habeas Record at 510. The defense made this theory
a major and oft-repeated theme of trial. The defense supported this theory with Russell’s own
testimony that “he snapped when [the victim] told him that she had sex with another man.” State
Habeas Record at 510. Russell’s proposed focus on the statutory language in an effort to show
that the killing was not in the course of retaliation differs little in substance or effect from the
defense his attorneys put before jurors. While Russell now wishes trial counsel had emphasized
28 / 45
other nuances, the basic argument he proposes is the same trial counsel presented at trial: there
had been no retaliation.11
Counsel’s choice in how to present a defense theory before jurors is strategy for which
reviewing courts afford great deference. See Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)
(“[C]ounsel has wide latitude in deciding how best to represent a client, and deference to
counsel’s tactical decisions in his closing presentation is particularly important because of the
broad range of legitimate defense strategy at that stage . . . . Judicial review of a defense
attorney’s summation is therefore highly deferential . . . .”) “[I]ndulg[ing] a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance,”
Strickland, 466 U.S. at 689, the Court cannot say that trial counsel’s strategy was so ill-chosen to
merit habeas relief, much less serious examination on post-judgment review. Accordingly, the
Court finds that Russell has not shown that he can overcome any procedural bar because his
claim has some merit or that failure to raise it prejudiced the defense. The Court cannot reach
the merits of Russell’s second ground for relief.12
III.
Ineffective Assistance of Appellate Counsel
In his third ground for relief, Russell claims that appellate counsel provided ineffective
representation by failing to raise a claim challenging the sufficiency of the evidence proving
retaliation. Specifically, Russell argues that appellate counsel should have raised an argument
similar to the first ground for relief he raises in his federal petition. Russell, however, raised this
claim for the first time in his initial federal petition, resulting in a procedural bar.
11
Trial counsel told jurors: “But the burden of proof is beyond a reasonable doubt for them to prove to you
retaliation. They have to prove it to you at that level.” Tr. Vol.18 at 24.
12
For the same reasons that he cannot show that his claim warrants review under Martinez, the Court finds
that, if the merits were fully available for federal review, he has not shown Strickland error.
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Russell argues that he can overcome the procedural bar by showing that the structure of
Texas state habeas proceedings discourages inmates from advancing ineffective-assistance-ofappellate-counsel claims on state habeas review. According to Russell, because state appellate
and habeas review proceed concurrently, attorneys appointed for each proceeding “[i]n theory . .
. work together, each taking the issues properly assigned either to direct appeal or habeas review,
although that is often not the case in practice.” (Docket Entry No. 37 at 41). Russell argues that
state habeas counsel’s responsibility to advance Strickland claims against appellate counsel may
damage that relationship and, effectively, discourage habeas counsel from advancing such
claims.
Russell, however, has not provided any law or evidence supporting his argument that
appellate and habeas attorneys must carry on a working relationship comparable to a defense
team, that the structure of Texas review impedes Strickland claims because attorneys do not want
to jeopardize that relationship, or that any concern about challenging another attorney’s actions
chilled the habeas representation in his case. Russell’s arguments for cause only recognize the
discomfort cause by Strickland claims in general, when one attorney may have to question the
performance of a peer. Russell has not shown that he has cause to forgive raising his third
ground for relief.
Nor can he show actual prejudice. The Court has considered the alternative merits of his
first two grounds for relief, both of which traveled similar paths as this one. The Court found
them to be without merit. Russell cannot show actual prejudice for counsel’s failure to raise
similar issues on direct appeal. The Court, therefore, finds that his third claim is procedurally
barred.13
13
30 / 45
Alternatively, for the reasons discussed in his first two grounds for relief, claim three is without merit.
IV.
Ineffective Assistance of Assistance in Failing to Investigate and Present Evidence
Russell’s trial attorneys’ strategy relied on his statement to the police as the centerpiece
for the jealous-rage defense. Trial counsel placed it into context with Russell’s own testimony.
Russell explained that the victim had a relationship with Donald Ray Hawkins. Tr. Vol. 17 at
94. Russell testified that he had previously discovered the victim in a motel room with Hawkins.
Tr. Vol. 17 at 94-95. Russell said that, on the night of the murder, he began arguing with the
victim because she was using drugs she had obtained from Hawkins. Tr. Vol. 17 at 97-98. With
that testimony, the defense tried to convince jurors that, when Russell arrived with a wedding
ring at the victim’s house, her relationship with Hawkins caused him to erupt in jealous fury. As
trial counsel argued in closing, “at that moment, that absolute storm, she’s killed. And it is tragic.
It is terribly tragic. But the murder does not happen because she is a snitch. It happens out of
jealously and rage and anger and emotions that are common.” Tr. Vol. 18 at 21. Russell claims
that trial counsel provided ineffective assistance because they did not bolster this argument by
interviewing Hawkins before trial.
The defense knew about Hawkins, who was then incarcerated, well before trial. The trial
investigator’s notes indicate that Russell “admits that [the victim] was having an affair with
Donald Ray Hawkins and that she was prostituting herself for drugs. . .. He frequently found [the
victim] at Donald Ray’s motel room and people used to tell him they saw the two hanging out on
the street.” State Habeas Record at 368. Russell told the investigator that “the testimony of
Donald Ray Hawkins,” among others, “was crucial.” State Habeas Record at 368. Trial counsel
ran a criminal history to learn information about Hawkins. State Habeas Record at 211, 378.
Trial counsel’s note included an entry “Donald Ray Hawkins – may need to bench warrant.”
State Habeas Record at 31. The defense, however, did not call Hawkins as a witness.
31 / 45
Russell raised a claim on state habeas review faulting trial counsel’s efforts to support the
jealousy defense. In doing so, Russell provided affidavits from people who could have described
his jealous nature and otherwise supported his defense. The state habeas application, however,
did not include an affidavit from Hawkins, or even specifically argue that trial counsel should
have called him as a witness. State habeas counsel’s proposed findings of fact and conclusions
of law did not mention Hawkins specifically.
After the State responded to the habeas application, Russell filed a “Pro Se Motion for
Amended Petition for State Writ of Habeas Corpus.” State Habeas Record at 488. For the first
time, Russell specifically argued that counsel provide ineffective assistance “for failing to call
Donald Ray Hawkins as a witness at the time of trial” because “[h]is testimony was mandatory . .
. to show [Russell’s] relationship with [the victim] was the catalyst that resulted in this Crime of
Passion.” State Habeas Record at 488. Russell supported this putative claim with an affidavit
from Hawkins. Hawkins described his “ongoing sexual relationship” with the victim “while
[she] was still having sexual relations with” Russell. Hawkins would have expressed that he
“would not have been having sexual relations with [the victim]” had he known that they were
“still in a romantic relationship” because Russell “was a jealous person.” Hawkins said: “Had I
known that his jealously would have led to her death, I would have stopped our own sexual
relations with each other.” State Habeas Record at 492.
The state habeas court made explicit findings regarding the claim in the state habeas
application filed by counsel:
61. The Court finds based on the credible affidavit of trial counsel Hayes that the
defense theory of the case was to rebut the element of retaliation by showing that
[Russell] and [Brewer] were involved in a relationship, but [Brewer] saw other
men; that [Brewer] and [Russell] argued on the night of the offense, and [Russell]
snapped when [Brewer] pulled a knife.
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62. The Court finds that counsels’ defensive theory was reasonable and was
apparent at guilt-innocence, beginning with the opening statement, where trial
counsel informed the jury that the evidence at trial would show that [Brewer]
abused cocaine, and was involved with different men, including [Russell]; that the
evidence would show that [Brewer] and [Russell] argued on the night of the
offense; that [Brewer] pulled a knife and cut [Russell]; that [Russell] stabbed
[Brewer] in return; and that [Russell] attempted suicide afterwards.
63. The Court finds that trial counsel continued the defense’s consistent
reasonable defensive theory by informing the jury during opening statement that
“the evidence will show you that this is not a case of retaliation, that it is a case of
jilted and unfaithful love.”
64. The Court finds that the consistent reasonable defensive theory was present
during the cross-examination of witnesses during guilt-innocence to elicit
information concerning [Russell] and [Brewer’s] relationship, [Russell’s] alleged
lack of knowledge that [Brewer] was a police informant, and the alleged
circumstances of his statements to the police.
65. The Court finds that during the defense case-in-chief at guilt-innocence, trial
counsel enlarged upon the consistent defensive theory by presenting the lengthy
testimony of [Russell] avowing that he killed [Brewer] when he “snapped” after
she told him that she had sex with another man.
66. The Court finds that the consistent defensive theory of counsel was apparent
when trial counsel specifically informed the trial court during a bench discussion
that counsel wanted to elicit evidence that [Brewer] evoked the same emotions
and anger in other men as she did in [Russell].
State Habeas Record at 632-34 (citations omitted). The state court, however, did not rule on, or
even discuss, the pro se application.
Russell’s federal petition argues that trial counsel provided deficient representation by
not interviewing Hawkins before trial. Russell faults counsel for not developing Hawkins’
testimony, particularly that the killing was the result of “jealousy rage.” State Habeas Record at
492. Respondent urges the Court not to consider the information in Hawkins’ affidavit because
Russell did not properly put it before the state courts. Further, Respondent argues that the Court
should find this claim procedurally barred because Russell did not properly exhaust the
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underlying basis for the claim. (Docket Entry No. 47 at 52).14 The Court, however, does not
reach those issues because Russell has not shown Strickland prejudice.
Trial counsel championed the jealousy defense on which Russell bases his fourth ground
for relief. The state habeas court considered whether trial counsel had adequately supported that
defense, although it did not consider Hawkins’ affidavit in doing so.
Hawkins’ affidavit,
however, does not contain any allegation that differs fundamentally from the trial defense.
Hawkins’ affidavit confirms that he was having a relationship with the victim and that Russell
had a propensity toward jealousy. The trial testimony, however, did not seriously dispute the
fact that Hawkins and the victim had a relationship. In his affidavit, Hawkins opines that Russell
killed out of jealousy, but Hawkins was not there when Russell attacked the victim. Hawkins’
opinion of what motivated Russell in the moment he killed would likely not be admissible.
The jury, however, already had Russell’s own explanation about why he killed. While
other witnesses could describe Russell’s character and why he might have killed, only he could
describe whether he did it out of retaliation or jealousy.
Trial counsel considered calling
Hawkins as a witness and, for some reason not apparent from the record, decided not to do so.
Still, Hawkins’ testimony would not alter the information before the jury in any way that could
create a reasonable probability of a different result. Simply, Russell has not shown that trial
counsel’s failure to call Hawkins as a witness prejudiced the defense. The Court, therefore, will
deny this claim.
14
Russell argues that “[t]he one missing piece of this puzzle” about why Hawkins did not testify at trial “is
information from defense counsel as to why no investigation action was taken with respect to Hawkins.” (Docket
Entry No. 37 at 45). It is not correct to say that counsel did not make any investigation into Hawkins, but the record
is unclear as to the extent of that investigation. The record does not divulge why counsel did not call him as a
witness. Likely, the state habeas proceedings did not develop an answer to that question because Russell only raised
it in an improper pro se pleading filed well after the State had answered his proper application.
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V.
Brady
Russell’s fifth claim raises a procedurally barred argument that the prosecution violated
Brady v. Maryland, 373 U.S. 83 (1963), by “fail[ing] to produce to defense counsel a ring,
previously seized by the police, which might have reinforced both actual evidence and potential
evidence indicating that [he] went to Brewer’s house to make a romantic proposal, not for any
retaliatory purpose . . . .” (Docket Entry No. 37 at 47). Russell’s argument proceeds as if the
defense was completely unaware of the ring at trial and that “the ring issue arose only after the
state habeas review was complete . . . .” (Docket Entry No. 37 at 51). Russell’s allegations have
no merit.
Russell asks the Court to assume that the defense was unaware of the ring at trial, but the
police seized that item from Russell himself. The ring was an important trial issue mentioned by
both the prosecution and the defense. Trial counsel did not express any surprise at the ring but
discussed it repeatedly before the jury.
Respondent’s summary judgment motion amply
identifies that “Russell inexplicably argues that the State suppressed favorable evidence that was
actually admitted as a State’s exhibit at trial.” (Docket Entry No. 47 at 61).
In response to the summary judgment motion, Russell transforms his argument into
“fundamentally a discovery issue” because the ring was not turned over to the defense before
trial. (Docket Entry No. 54 at 25). Russell does not identify any constitutional law requiring the
prosecutor to turn over the possession of physical evidence, such as the ring, before trial. Russell
does not show how physical access to the ring would have made any difference to the defense’s
case or the jury’s consideration of trial evidence. Russell does not show that a Brady issue
somehow exists because the ring before jurors as a State’s exhibit.
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Russell has not overcome the procedural bar of his Brady claim. Alternatively, his Brady
claim is without merit.
VI.
Prosecutorial Argument About Mitigating Evidence
Russell’s sixth claim argues that the prosecutor violated Russell’s constitutional rights
during punishment-phase closing arguments by misguiding jurors on what evidence may be
mitigating. Texas’s special issues required jurors to answer whether “a sufficient mitigating
circumstance or circumstances . . . warrant that a sentence of life imprisonment rather than a
death sentence be imposed.”
Clerk’s Record at 376.
The trial court instructed jurors to
“consider mitigating evidence to be evidence that a juror might regard as reducing the
defendant’s moral blameworthiness including evidence of the defendants background character
or the circumstances of the offense that mitigates against the imposition of the death penalty.”
Clerk’s Record at 370-71. Russell complains because the trial prosecutor told the jury that
mitigating evidence is “something that might reduce or lessen his responsibility,” but also said
that “there is nothing wrong here that honestly and truly lessens this man’s responsibility, his
blameworthiness, his fault.” Tr. Vol. 20 at 45. Russell objects that the prosecutor’s language
caused jurors only to consider mitigating evidence that reduced his culpability for the offense.
Russell did not raise this issue on appeal or during the first round of habeas review.
Russell argues that he can overcome the resultant procedural bar of this claim because he bases
his claim on law that developed after the conclusion of state post-conviction review. For
decades, however, defendants have challenged the extent to which Texas juries could consider
mitigating evidence. Russell’s challenge to the State’s argument is not so novel that any of his
earlier attorneys could not have raised the same claim. Russell has not shown cause to overcome
the procedural bar.
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He has also not shown actual prejudice. While Russell claims that the prosecution
limited the jury’s consideration only to mitigating evidence that bore a relationship with the
crime, a broader look at the prosecutor’s argument reveals no such limitation. The State argued:
I can’t tell you what’s mitigating. It’s up to you. I suggest to you there is nothing
mitigating in this case. Our Charge tells you that mitigating evidence is something
that you believe may reduce the defendant’s moral blameworthiness. In other
words, something that might reduce or lessen his responsibility. Name one thing
that you have heard during this trial that lessens his responsibility for brutally
murdering that woman. One thing. There is none.
Tr. Vol. 20 at 45.
The prosecutors told jurors that they could decide what amounted to
mitigating evidence. The jury instructions likewise broadly allowed for the jury to exercise full
discretion in applying any mitigating evidence. The Court finds that Russell has not shown
cause or prejudice to overcome the procedural bar of his sixth ground for relief.15
VII.
Ineffective Assistance in the Investigation and Presentation of Mitigating Evidence
Russell claims that his trial attorneys provided deficient performance in developing and
presenting evidence for the jury to answer Texas’ mitigation special issue. Russell exhausted
this claim in state habeas court. The state habeas court’s adjudication of this claim began by
acknowledging that “the defense prepared and filed pre-trial motions interviewed witnesses,
obtained discovery from the State, reviewed the State’s file, talked to [Russell] numerous times
about the offense and pending trial, retained a mitigation specialist, talked to [Russell’s] family
and talked [to Russell] about his background and life” State Habeas Record at 519. With that
background, the defense formed a “reasonable, coherent theory of mitigation: [Russell] was
essentially a good person who was adversely affected by his environment and influences on him
and the instant offense was an aberration of [his] character.” State Habeas Record at 524. This
mitigation strategy “centered on the effects of [Russell] being raised among drug dealing and
15
Alternatively, the Court has reviewed the merits of his claim and, for similar reasons as discussed above,
finds that it is without merit.
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violence in the Fifth Ward, being abandoned by his father, having a family history of crime with
relatives in prison, having a mother who had to work at two jobs and get food stamps, and
[Russell] being a good person who did not have much of a chance.” State Habeas Record at 51920. Trial counsel put that defense before jurors through the testimony of ten friends and family
members including his mother, two siblings, two aunts, two uncles, and his friends. State
Habeas Record at 520. The state habeas court extensively discussed the detailed testimony that
filled in the outline drawn by the defense’s strategy. State Habeas Record at 520-24.
Russell, however, claimed in his state habeas application that counsel was deficient in
preparing a punishment-phase case. State habeas counsel interviewed individuals who knew
Russell, many of whom had testified at his trial, and obtained affidavits from them describing
Russell’s background. State habeas counsel gave the affidavits to Dr. Mark Cunningham, a
psychologist who often appears as an expert witness in capital cases. Dr. Cunningham reviewed
the trial, the new affidavits, and record evidence. Dr. Cunningham prepared a report with the
conclusions he derived from his review.
With that background, Russell claimed that trial counsel did not present an adequate
punishment defense. Russell based his Strickland claim on a list of “adverse developmental
factors” he experienced, as listed by Dr. Cunningham: generational family dysfunction, mother’s
teenage status at outset of childbearing, father abandonment, learning disabilities attention and
concentration problems and school failure, bullied by peers, child neglect, inadequate parental
supervision and guidance with mother’s acceptance of drug trafficking proceeds, corruptive
influence of extended family, chronic poverty, alcoholism of stepfather, chronic emotional
estrangement and hostility in relationship of mother and stepfather, corruptive community
influences, teen onset drug trafficking, community violence exposure with gunshot victimization
38 / 45
and victimization of family, evidence of severe psychological disorder, pathological relationship
with Tanjala Brewer. State Habeas Record at 65-66.
Contrasting Russell’s habeas evidence against that presented at trial, the state habeas
court found that “trial counsel presented essentially the same evidence at punishment that
[Russell] now contends should have been presented: generational family dysfunction, economic
deprivation, [Russell’s] mother’s age of seventeen at the time of [his] birth, [his] father’s
abandonment, [his] teenage drug dealing, and community violence.” State Habeas Record at
525. The state habeas court recognized that Dr. Cunningham’s affidavit exceeded the scope of
the trial evidence by alleging marital discord among Russell’s parents, a home plagued by
neglect, childhood hyperactivity, and a possible psychological disorder. The state habeas court,
however, found Dr. Cunningham’s affidavit “unpersuasive” and his conclusions “far-reaching”
because the trial evidence directly contradicted many of his opinions. State Habeas Record at
525-26.16 Also, the state habeas court endorsed trial counsel’s belief that “specific evidence of
[Russell’s] life and background, such as the evidence the defense presented to the jury, would be
more effective that studies of convicted murderers.” State Habeas Record at 526.
With that understanding, the state habeas court found that “counsel cannot be
ineffective”: (1) for “choosing to present mitigation evidence in a different manner than others”;
(2) when “the presented evidence [is] essentially the same as the evidence [Russell] now
complains should have been presented”; (3) for not presenting “a reasonable coherent theory of
mitigation” when it actually presented a “apparent, predominate, and coherent” theme similar to
that alleged on habeas review; (4) not presenting the “less-than authoritative and far-reaching”
testimony of Dr. Cunningham; and (5) not “presenting evidence that undermines and is at odd
16
A federal court has reached similar conclusions about similar testimony by Dr. Cunningham, finding that
“his testimony would seem hollow-and even unbelievable . . . .” United States v. Bourgeois, 2011 WL 1930684, at
*60 (S.D. Tex. 2011).
39 / 45
with the presented mitigation strategy.” State Habeas Record at 532-33. In sum, the state habeas
court found that counsel was not deficient in the preparation or presentation of evidence.
In his federal petition, Russell relies on the same evidence he presented in state court to
allege ineffectiveness in defending against a death sentence. Russell acknowledges that this
Court must defer to the state court’s findings and conclusions.
Federal consideration of
ineffective-assistance claims that the state courts have resolved on the merits marries two
forgiving standards: AEDPA deference to the integrity of state court judgments and Strickland’s
deference to counsel’s decisions. While “[s]urmounting Strickland’s high bar is never an easy
task,” a habeas petitioner’s duty to “[e]stablish[] that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult.” Padilla v. Kentucky, 559 U.S. 356, 371
(2010). “The standards created by Strickland and § 2254(d) are both highly deferential, . . . and
when the two apply in tandem, review is doubly so.” Harrington v. Richter, 562 U.S. 86, 105
(2011) (citation omitted); see also Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Together,
these standards create a “doubly” deferential review that allows a state decision to stand if there
is “any reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter,
562 U.S. at 105.
Russell’s federal petition does not dispute the state habeas court’s findings and
conclusions, other than to argue that counsel should have presented additional mitigating
evidence because the prosecutor had urged jurors to find a nexus between the evidence and the
charged offense. The essence of Russell’s argument is that trial counsel should have “beefed up”
the mitigation defense. (Docket Entry No. 37 at 61). Courts, however, are disinclined to find
Strickland error because counsel could have done more. Arguments such as that made by
Russell “come down to a matter of degrees” which is particularly susceptible “to judicial second-
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guessing.” Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000). The Fifth Circuit has
refused to find Strickland error when trial counsel presented the jurors with similar mitigating
evidence, even if another attorney would have done so differently or more fully. See Coble v.
Quarterman, 496 F.3d 430, 437 (5th Cir. 2007); Rodriguez v. Quarterman, 204 F. App’x 489,
501 (5th Cir. 2006); Alexander v. Quarterman, 198 F. App’x 354, 359-60 (5th Cir. 2006); Parr
v. Quarterman, 472 F.3d 245, 257–58 (5th Cir. 2006).
The state habeas court issued specific factual findings relating to Dr. Cunningham’s
affidavit, stating that his opinions were not credible or believable. Russell has not overcome the
presumption of correctness afforded those findings. 28 U.S.C. §2254(e)(1).
Importantly,
basing a claim on Dr. Cunningham’s affidavit and arguing that counsel should have presented
“more accurate and stronger arguments” against a death sentence “is simply an argument for a
different strategy . . ..” King v. Davis, 703 F. App’x 320, 330 (5th Cir. 2017). Counsel
developed a strategy to present a mitigating case that largely only differed in detail from that on
which Russell bases his Strickland claim. Perhaps counsel could have presented a more-robust
case, but “the test for ineffectiveness is not whether counsel could have done more; perfection is
not required.” Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995). With the doubly
deferential standard afforded the state court adjudication of Strickland claims, Russell has not
shown that the state court’s rejection of his sixth claim was contrary to, or an unreasonable
application of, federal law. 28 U.S.C. § 2254(d)(1). This claim is denied.
VIII. Ineffective Assistance Regarding Evidence of Russell’s Future Threat to Society
Russell’s eighth claim argues that trial counsel deficiently prepared a case for a favorable
answer to Texas’ future-dangerousness special issue. On state habeas review, Russell claimed
that trial counsel failed to present any evidence that would rebut the State’s argument that he
41 / 45
would be a future societal danger. Russell argued that counsel should have presented the jury
with information similar to that contained in a report from Dr. Cunningham. Dr. Cunningham
would have testified concerning factors that predict violence in prison and his research in capital
sentencing.
State Habeas Record at 52-117.
Dr. Cunningham also would have provided
testimony about the threat posed by capital inmates generally, and that posed by Russell given
his background and discrete characteristics.
Russell raised this claim in conjunction with his claim involving mitigating evidence.
Russell did not provide extensive briefing on this claim when he raised it in state court. On state
habeas review, Russell primarily used Dr. Cunningham’s report to support his claim that trial
counsel ineffectually presented mitigating evidence. In a single paragraph under his general
ineffectiveness-at-the-penalty-phase claim with the subheading entitled “The Case Against
Future Danger,” however, Russell stated that “the defense failed to rebut or describe how
inaccurate past violence in the free world serves as a predictor of violence while incarcerated.
Cunningham notes countless studies of little predictive value past conduct can serve. Finally, the
defense failed to individualize Mr. Russell’s violence risk from rates of violence among
convicted murderers in Texas prisons.” State Habeas Record at 22.
Russell now states that his state habeas application “raised, based on Cunningham’s work
regarding future dangerousness” a claim for which “[n]othing . . . appeared in the findings of daft
and conclusions of law . . . .” (Docket Entry No. 37 at 66). To the contrary, the state habeas
court’s recommendation discusses the use of Dr. Cunningham’s report, but follows the format of
Russell’s habeas application and does so in the context of his general Strickland claim. The state
habeas court made specific findings about Dr. Cunningham’s report:
The Court finds that studies of future dangerousness of convicted Texas
murderers are not relevant to the question of [Russell’s] future dangerousness as
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they do not address [his] characteristics, circumstances, or individual propensity
for committing future acts of violence as evaluated by the applicant’s jury based
on the evidence.
The Court finds based on the credible affidavit of trial counsel Hayes that counsel
believes that specific evidence of [Russell’s] life and background such as the
evidence the defense presented to the jury would be more effective than studies of
convicted murderers.
State Habeas Record at 631.17
Russell does not acknowledge the state court findings to which this Court must defer,
much less show by clear and convincing evidence that they are incorrect. At its heart, Russell’s
argument is simply that counsel should have adopted a different strategy at the penalty phase. A
reasonably attorney could come to the conclusion that academic discussion about crime statistics
could be less effective than lay testimony, and in fact could weaken that testimony. The Court
finds that Russell has not shown that the state habeas court’s rejection of this claim was contrary
to, or an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1). This claim is denied.
IX.
Denial of a Hearing on State Habeas Review
In his ninth ground for relief, Russell argues that the state habeas court violated his
constitutional rights by not holding a hearing in which his expert Dr. Cunningham could testify.
Russell did not raise this claim in state court and has not overcome the resultant procedural bar.
Even if the Court could reach the merits of his claim, however, “errors in state postconviction
proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief.” Morris v.
Cain, 186 F.3d 581, 585 n.6 (5th Cir. 1999); see also Nichols v. Scott, 69 F.3d 1255, 1275 (5th
Cir. 1995). The Court summarily denies claim nine.
17
Counsel opined that “specific evidence of the defendant’s life and background, such as [was] presented to
the jury, would have had more effect than studies of violence among convicted murderers.” State Habeas Record at
510-11.
43 / 45
CERTIFICATE OF APPEALABILITY
Under AEDPA, a prisoner cannot seek appellate review from a lower court’s judgment
without receiving a Certificate of Appealability (“COA”). See 28 U.S.C. § 2253(c). Russell has
not yet requested that this Court grant him a COA, though this Court can consider the issue sua
sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). A court may only issue a
COA when “the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 482 (2000).
The Fifth Circuit
anticipates that a court will resolve any questions about a COA in the death-row inmate’s favor.
See Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
The Supreme Court has explained the standard for evaluating the propriety of granting a
COA on claims rejected on their merits as follows: “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.” Slack, 529 U.S. at 484; Miller-El I, 537 U.S. at
336-38. On the other hand, a district court that has denied habeas relief on procedural grounds
should issue a COA “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 right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling. Slack, 529 U.S. at 484; Miller-El I, 537 U.S. at 336-38. Unless the prisoner meets the
COA standard, “no appeal would be warranted.” Slack, 529 U.S. at 484.
Having considered the merits of Russell’s petition, and in light of AEDPA’s standards
and controlling precedent, this Court determines that a COA should not issue on any claim.
44 / 45
CONCLUSION
For the foregoing reasons, the Court GRANTS Respondent’s motion for summary
judgment (Docket. No. 47) and DENIES Petitioner Pete Russell, Jr.’s Petition for Writ of
Habeas Corpus WITH PREJUDICE. All outstanding motions are otherwise DENIED. A
Certificate of Appealability is DENIED with respect to all claims.
It is so ORDERED.
SIGNED on this 23rd day of July, 2019.
___________________________________
Kenneth M. Hoyt
United States District Judge
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