Freeney v. Stephens

Filing 16

MEMORANDUM AND ORDER granting 12 MOTION for Summary Judgment, denying Freeney's petition, and dismissing this case with prejudice. The Court denies all remaining requests for relief. No Certificate of Appealability will issue in this case. The Clerk will deliver a copy of this Order to the parties. (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RAY MCARTHUR FREENEY,

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Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

January 27, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 4:14-CV-373

MEMORANDUM AND ORDER
A jury convicted Ray McArthur Freeney of capital murder in August 2003. Pursuant to
the jury’s answers to Texas’ special issue questions, the trial court sentenced Freeney to death.
Freeney unsuccessfully availed himself of Texas appellate and habeas remedies, raising several
challenges to his conviction and sentence.
On January 26, 2014, Freeney filed a federal petition for a writ of habeas corpus.
[Instrument No. 8]. Freeney raises four claims in his federal petition. Respondent William
Stephens has moved for summary judgment. [Instrument No. 12]. Having reviewed the record,
pleadings, and the law, and giving special consideration to the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”), the Court finds that Freeney has not shown an entitlement to
federal habeas relief.

The Court, therefore, will grant Respondent’s motion for summary

judgment, deny Freeney’s petition, and dismiss this case. The Court will not certify any issue
for consideration by the Court of Appeals for the Fifth Circuit.
BACKGROUND
The State of Texas indicted Freeney for the murders of two victims, Kirshalynne Jones
and Vicky Dean, during different criminal transactions but pursuant to the same scheme or
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course of conduct. TEX. PENAL CODE ANN. 19.03(a)(7)(B). Freeney provided the police with
statements confessing to those murders, along with other crimes. On direct appeal, the Texas
Court of Criminal Appeals relied on Freeney’s confession to describe the murders:
[On April 18, 2002,] Freeney picked up Jones, who was working
as a prostitute on Bissonnet [Avenue in Houston, Texas], and went
to her motel room intending to have sex with her without paying
her any money. He subdued her and caused her to lose
consciousness by placing her in a “choke hold,” attempted to have
vaginal intercourse with her, stabbed her in the chest and neck
when she regained consciousness, and then forced her to perform
oral sex on him. Four days later, he picked up Dean on Forum
West, which was located almost directly behind the motel where
he killed Jones. He brought Dean back to his apartment, believing
that she was a prostitute and intending to have sex with her without
paying her any money. He attempted to subdue Dean by giving
her a “sleeping aid,” stabbed her in the neck, torso, face, and upper
extremities, attempted to have vaginal intercourse with her, and
had her perform oral sex on him. Freeney was arrested three days
later on Bissonnet, the same street where he had picked up Jones.
Freeney v. State, No. AP-74,776, 2005 WL 1009560, at *5 (Tex. Crim. App. Apr. 27, 2005).
The trial court appointed Robert Loper and Layton Duer to represent Freeney. 1 With his
detailed confessions to the two murders, the defense faced a difficult task in preparing for trial.
The defense retained an investigator and a separate mitigation specialist. In the course of
preparing for trial, the defense also retained a number of experts, including psychologists Dr.
Daneen Milan and Dr. Cecil Reynolds.
At trial, the prosecution relied heavily on Freeney’s confession to the two murders. In
addition, the prosecution presented forensic evidence and witness testimony to establish

1

Unless necessary to identify one of the attorneys, the Court will collectively refer to the attorneys who
represented Freeney at trial as “trial counsel.”

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Freeney’s culpability for the crimes. The defense argued that Freeney could not be convicted of
capital murder as set out in the indictment because the murders did not occur within the same
course of conduct. As an ancillary issue, the defense argued that Freeney did not voluntarily and
knowingly confess. The jury convicted Freeney of capital murder.
A Texas jury decides a capital defendant’s sentence by answering 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, Ray McArthur
Freeney, 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, Ray McArthur Freeney, 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 651-52.2
The prosecution presented an imposing case for a death sentence. The prosecution called
witness after witness to show that Freeney’s violent behavior escalated over the years. In
addition to the brutality of the two murders for which the jury had already convicted Freeney,
jurors learned that Freeney admitted to raping two other prostitutes around the same time.
Freeney also confessed that he had broken into a woman’s apartment, choked her into
2

The state court proceedings in this case resulted in a voluminous record. The Court will cite the transcript
containing trial court motions and docket entries as Clerk’s Record at ___. The reporter’s record containing the trial
court proceedings will be cited as Tr. Vol. ___ at ___. The Court will refer to the record from Freeney’s state
habeas proceedings as State Habeas Record at ___ and from the supplemental record created on state habeas review
as Supp. State Habeas Record at ___.

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unconsciousness, threatened her with rape, and then stabbed her several times.

The State

presented testimony showing Freeney’s violent behavior while incarcerated pending trial.
Freeney was a “constant discipline problem” in jail. Tr. Vol. 21 at 59-60. Freeney hit a guard,
threatened to fight and sexually assault guards, masturbated in front of a guard that he threatened
to sexually assault, fought another inmate, possessed a weapon, threw urine on a jail worker, and
damaged jail property.
The defense responded by calling eight witnesses, including two mental-health experts.
Trial counsel later described the defense’s strategy in calling punishment witnesses: “These
witnesses were called to show that [Freeney] never exhibited violent or criminal behavior; that
[Freeney] was abused as a child; that he was a good normal kid; that they could not believe he
would have committed the offense; that he was a loving father; and that he had a mental illness.”
State Habeas Record at 241. The jury, nonetheless, answered Texas’ special issue questions in a
manner requiring the imposition of a death sentence.
Freeney raised sixteen points of error in the Texas Court of Criminal Appeals. In an
unpublished opinion issued in 2005, the Court of Criminal Appeals denied relief. Freeney v.
State, No. AP-74,776, 2005 WL 1009560, at *5 (Tex. Crim. App. Apr. 27, 2005).
Freeney filed a state application for habeas relief during the pendency of his direct
appeal. As the Court will describe at greater length below, the lower state habeas court entered
an initial recommendation, but the Court of Criminal Appeals subsequently remanded the case
for additional review. The lower court supplemented its findings and conclusions, leading to the
Court of Criminal Appeals’ denial of habeas relief in 2014. Federal review followed.

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FREENEY’S FEDERAL CLAIMS AND THE APPLICABLE STANDARDS OF REVIEW
Freeney raises four claims in his federal petition for a writ of habeas corpus:
1.

Trial counsel provided ineffective representation under Strickland v.
Washington, 466 U.S. 668, 686 (1984), in the investigation and
presentation of mitigating evidence.

2.

The state court’s adjudication of Freeney’s Strickland claim was
unreasonable in its application of the law and facts.

3.

Texas’ prohibition on informing jurors about the effect of jury deadlock
prevents full consideration of mitigating evidence.

4.

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

Respondent moves for summary judgment.

Insofar as they are consistent with

established habeas practice and procedure, the Federal Rules of Civil Procedure apply to habeas
cases. See Rule 11 of the Rules Governing Section 2254 Cases. “As a general principle, Rule 56
of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force
in the context of habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000).
However, if the inmate has presented his federal constitutional claims to the state courts in a
procedurally proper manner, and the state courts have adjudicated their merits, AEDPA provides
the predicate standards for reviewing habeas claims.
“[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). A petitioner cannot meet this burden by merely alleging constitutional error.
Instead, “focus[ing] on what a state court knew and did,” Cullen v. Pinholster, ___ U.S. ___, 131
S. Ct. 1388, 1399 (2011), an inmate must show that the state court’s adjudication of the alleged
constitutional error “was ‘contrary to, or involved an unreasonable application of, clearly
established Federal law.’” Berghuis v. Thompkins, 560 U.S. 370, 380 (2010) (quoting 28 U.S.C.
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§ 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). AEDPA also affords significant deference to a state court’s resolution of factual issues.
Under 28 U.S.C. § 2254(d)(2) “a decision adjudicated on the merits in a state court and based on
a factual determination will not be overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court proceeding[.]” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003).

A federal habeas court must presume the underlying factual

determinations of the state court to be correct, unless the petitioner “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.”).
ANALYSIS
I.

Failure to Investigate and Present Mitigating Evidence (claims one and two)
In his first claim, Freeney asserts that trial counsel’s representation fell below the

constitutional requirements set out in Strickland v. Washington, 466 U.S. 668, 686 (1984).
Freeney’s second claim argues that the state court’s adjudication of his Strickland claim merits
habeas relief under AEDPA’s demanding standards. The Court will consider Freeney’s first two
claims together.
Under Strickland’s two-pronged test, 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
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U.S. 510, 520 (2003). 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, 539
U.S. at 533-34. 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).
Before turning to Freeney’s federal Strickland claims, the Court will review the evidence
he submitted at trial and on state habeas review.
A.

The Evidence Presented in the Punishment Phase of Trial

Counsel called eight witnesses on Freeney’s behalf at the punishment stage of trial: Dr.
Dennis Longmire, Dr. G.K. Ravichandran, Leon Dwight Bey, Kobina Bryant, Cassandra Rouse,
Lisa Angelle, Helen Young, and Dr. Daneen Milam. The defense first called Dr. Longmire, a
professor from Sam Houston State University with expertise in the procedures used in Texas
prisons.

Dr. Longmire testified that, because of the prison classification system and the

statistical fact that inmates convicted of capital murder are less likely to commit violent acts,
someone with Freeney’s background would have a low possibility of posing a threat of future
danger while incarcerated.
Freeney’s long-time psychiatrist Dr. G.K. Ravichandran testified that Freeney had been
his patient since suffering a psychotic break while in the National Guard. Dr. Ravichandran
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testified that Freeney was schizophrenic and required extensive medication. Freeney also
suffered from depression and had symptoms of bipolar disorder. Dr. Ravichandran opined that
Freeney was not malingering. On cross-examination, Dr. Ravichandran testified that he did not
believe that Freeney posed a danger to anyone.
Leon Bey, a Harris County Sheriff’s deputy who had known Freeney for several years,
testified that Freeney told him that he had been abused as a child. Mr. Bey described Freeney as
an unstable loner and introvert. Mr. Bey did not know Freeney to have been involved in criminal
acts or to have been violent.
Kobina Bryant had known Freeney since childhood. Freeney’s violent behavior was
inconsistent with the person she knew before he entered the military. When Freeney returned
from National Guard duty, he did not care about his appearance and had become a paranoid loner
who at times would not act rationally.
Casandra Rouse had known Freeney for two decades. Ms. Rouse described Freeney as
being quiet, shy, and polite until he entered the National Guard.

Subsequently, Freeney’s

behavior and demeanor changed and he became aggressive, especially when not on his
medication. Still, Ms. Rouse testified that Freeney was a loving father to his young son.
Lisa Angelle, who also had known Freeney since he was nine or ten years old, testified
that he had been a friendly, caring, quiet child. She explained that Freeney became withdrawn,
had poor grooming, and exhibited changed behavior after his National Guard duty.
Freeney’s mother Helen Kelly Young testified that he had been a quiet, normal child.
While she was a strict parent, Freeney was never outspoken, was not aggressive, and never posed
a serious discipline problem. As with the other witnesses, Mrs. Young opined that Freeney’s
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behavior changed dramatically after entering National Guard service. Mrs. Young described
how Freeney was hospitalized for schizophrenia during his National Guard duty after he ran onto
a shooting range. Mrs. Young explained that Freeney received a medical discharge following the
shooting range incident. After leaving the hospital Freeney heard voices telling him to kill
himself. Freeney said he could see the devil and he believed that he was Jesus. His readmission
to the hospital resulted in prescription of medication for his mental illness. Mrs. Young testified
that Freeney did well while on his medication.
Dr. Daneen Milam, a neuropsychologist, performed a number of evaluations, reviewed
records, and interviewed people who knew Freeney.

Dr. Milam believed that Freeney’s

childhood “was pretty okay.” Freeney and essentially agreed with Dr. Ravichandran’s diagnosis
of schizophrenia and major depression following his psychotic break in the National Guard. Dr.
Milam testified that Freeney could control his schizophrenia and auditory hallucinations with
medication.

Freeney, however, had been off his medication for some time before the capital

murders. Dr. Milam also testified that the effects of schizophrenia could render a person’s
actions involuntary.
The State then called rebuttal witnesses. A National Guard officer testified that she
thought Freeney was only joking during the psychotic break and, in fact, Freeney told her that he
was “only playing.” Another officer testified that Freeney had carved the word “death” into his
chest. Finally, the State called a witness to describe the violence that inmates could commit even
when in a highly structured environment.

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B.

Freeney’s State Habeas Claim

In his state habeas application, Feeney faulted trial counsel for not “interview[ing] or
order[ing] the interview of Mr. Freeney’s family members, friends, or paramours. Trial counsel
conducted an investigation limited to interviews with persons that Mr. Freeney’s mother
supplied. Trial counsel did not explore all avenues leading to relevant facts to the punishment of
Mr. Freeney.”

State Habeas Record at 6-7.

Freeney specifically faulted counsel for not

interviewing and calling the following witnesses: his brothers, Patrick Reese and Jesse Kelly Jr.;
close family friend Toshie Cherie Lockridge; the mother of his first child, Shavonnie McIntyre;
his aunt, Trinan Miller; and his stepfather, Johnny Ray Reese, and his stepfather’s wife, Anita
Reese. Freeney provided affidavits to substantiate what testimony each of the uncalled witnesses
could have provided. Taken cumulatively, Freeney describes the information in the habeas
affidavits as follows:
Freeney and his brothers were exposed to incredible emotional and
physical abuse by their mother; that Freeney was told at age five
that the man he thought was his father was not; that Freeney’s
mother assaulted Freeney by hitting him in the head with a can of
food, an offense for which she was criminally charged and
convicted; that Freeney was often exposed to domestic violence
between Freeney’s mother and her husbands; that Freeney was
exposed to numerous short term and unstable relationships his
mother had with men; that Freeney may have tried to commit
suicide as a child; that Freeney was abandoned by his mother and
left for periods of time with his maternal grandmother; that
Freeney’s maternal grandmother was physically and emotionally
abusive to Freeney and his siblings; and that Freeney’s
abandonment by his mother exposed him to being sexually
assaulted by his uncle while living with his maternal grandmother;
and that Freeney became increasingly sexually aggressive after his
psychotic break.

[Instrument No. 8 at 14-15].
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With the information in the habeas affidavits, Freeney argued on state habeas review that
“the experts that testified at Mr. Freeney’s trial would have been able to explain and mitigate the
offenses Mr. Freeney committed.”

State Habeas Record at 7. Dr. Milam and Dr. Reynolds

provided affidavits specifying that, if they had the information contained in the habeas affidavits
before trial, they would have been able “to explain the impact of Mr. Freeney’s dysfunctional
and abusive childhood, his mental illness, and his neurological deficits in the promoting the
offense.” State Habeas Record at 7.
Trial counsel Mr. Duer provided an affidavit affirming that counsel had “interviewed all
possible defense witnesses on numerous occasions to discuss trial strategy and review possible
testimony of these witnesses. All family witnesses who were available and willing to testify and
whose testimony we determined would be helpful in Mr. Freeney’s defense were interviewed
and presented at trial.” State Habeas Record at 236-37. Trial counsel Mr. Loper subsequently
provided a detailed affidavit. In addition to providing more information about the investigation,
trial counsel clarified that he prepared his affidavit “for the most part from memory” because he
did not have a copy of the trial file. State Habeas Record at 243.
The parties submitted proposed findings of fact and conclusions of law. The lower
habeas court entered detailed factual findings regarding trial counsel’s performance with regard
to each habeas affiant. Taken together, the lower court’s findings recognized that the habeas
affiants could have provided some beneficial information for the defense. The state habeas
court, however, found that “[a] reasonable attorney could have avoided presenting the testimony”
of each affiant. State Habeas Record at 275-82. The state habeas court found that some
common factors detracted from the usefulness of the testimony in their affidavits. All but one of
the habeas affiants included information in their affidavit that were “personal to” the affiant. The
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lower court observed that “incidents and feelings not directly related to [Freeney] are of minimal
probative force to the issue of [Freeney’s] moral blameworthiness.” State Habeas Record at 274,
275, 277, 278, 279, and 280.3 While providing more specificity, some of the information was
merely cumulative of trial testimony, including with regard to physical and sexual abuse Freeney
suffered as a child. State Habeas Record 275, 276, 277, 280, 281-82. The state habeas court
found that testimony painting Freeney’s mother in a negative light conflicted with, and would
have undermined, the testimony adduced at trial. State Habeas Record at 275, 276, 278, 279,
282.
The state habeas court also found specific reasons to find that a reasonable attorney
would not have called some of the affiants as punishment witnesses. Jesse Kelley Jr.’s testimony
would have exposed the fact that he himself had been sexually abused by Freeney. State Habeas
Record at 276. Patrick Reese included much hearsay and speculation in his affidavit. For
example, he did not possess first-hand knowledge that Freeney had been abused by his uncle and
he only speculated that Freeney had attempted suicide. State Habeas Record at 274. The state
habeas court viewed Johnny Ray Reese’s affidavit “with considerable skepticism given that he is
clearly angry with [Freeney’s] mother over possible infidelity within their relationship and a
custody battle over their son, Patrick Reese.” State Habeas Record at 280. The same bias
extended to the affidavit provided by Mr. Reese’s wife. State Habeas record at 281.
Most importantly, the habeas affidavits included much information that would have been
detrimental to the defense. This information included that, as a teenager, Freeney physically
fought with his mother “like someone on the street”; he was not a good role model to his
brothers; he was shiftless and unhelpful; he had much “anger and hatred” in him; he beat his
3

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Only Shavonnie McIntyre did not include information directly unrelated to Freeney.

brothers; he had been sexually aggressive toward women for some time; he had viewed
pornography for many years; he was always in trouble as a child; he had been suspended from
school for fighting; his “response to everything was to hit”; he expressed a desire to kill his
mother; he had been inappropriately sexually suggestive to a long-time family friend; he ran
around with “street corner girls”; he threatened a man with a knife; and that he wrote negative,
disturbing, and offensive letters while incarcerated before trial. State Habeas Record at 274, 276,
277, 281. The affiants’ testimony would have contradicted the defense’s efforts to show that
Freeney had been a quiet, non-violent person before his psychotic break by demonstrating his
long-standing violent character. State Habeas Record at 274, 276, 277.
The lower habeas court concluded that counsel did not perform deficiently because
Freeney had not told the defense team about the information contained in the habeas affidavits;
the double-edged nature of the information could have prompted a reasonable attorney not to call
the witnesses; some of the affiants lacked credibility; and, even if trial counsel had interviewed
the witnesses, a reasonable attorney still could have chosen to present the same defense. State
Habeas Record at 292-93. Additionally, given the overwhelming aggravating evidence, and in
light of the double-edged, cumulative, or specious nature of the affidavit testimony, any
deficiency by trial counsel did not prejudice the defense. State Habeas Record at 294. The
lower habeas court recommended that the Court of Criminal Appeals deny habeas relief.
The Court of Criminal Appeals, however, ordered additional inquiry. On March 20,
2013, the Court of Criminal Appeals remanded the case with precise instructions:
We are not able to determine from this record (1) whether
[Freeney’s] family members and friends who now have provided
affidavits were available and willing to testify at the time of trial;
(2) whether anyone from the defense team attempted to contact any
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of these witnesses; (3) the nature and extent of any efforts to
contact them; (4) if no one from the defense team contacted them
the reasons why they were not contacted; and (5) if anyone
contacted them the results of that contact.
Supp. State Habeas Record at 5.

The appellate court specified that “the trial court shall

determine whether [Freeney’s] family members and friends who now have provided affidavits
were available and willing to testify at the time of trial, and if so, whether anyone from the
defense team attempted to contact any of them before trial.” Supp. State Habeas Record at 5.
The Court of Criminal Appeals instructed the lower court “to resolve the factual issues in any
manner the court deems appropriate, including requiring affidavits, depositions, interrogatories,
and evidentiary hearings.” Supp. State Habeas Record at 5-6.
The Court of Criminal Appeals required that “[t]he issues shall be resolved within 90
days,” thus requiring all factual development and lower-court adjudication to finish by June 18,
2013. Supp. State Habeas Record at 6. The lower court, however, would seek two extensions
from the Court of Criminal Appeals, resulting in a final date of December 16, 2013.
On July 12, 2013, the trial court ordered Freeney’s attorneys to provide trial counsel with
a copy of his trial file in this case. The trial court also ordered trial counsel to provide an
affidavit consistent with the Court of Criminal Appeals’ remand order within twenty-one days of
receiving the trial file. Supp. State Habeas Record at 24. The trial court ordered the parties to
provide proposed findings and conclusions within twenty-one days of the affidavits. Supp. State
Habeas Record at 24.
On September 1, 2013 the final trial file was provided to trial counsel. The lower court
ordered trial counsel to provide an affidavit by October 14, 2013. Supp. State Habeas Record at

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29-31. The lower court also requested that the state habeas affiants provide affidavits answering
two questions:
1.

Were you available and willing to testify at the trial on July
28, 2003 through August 29, 2003 in the case of The State
of Texas vs. Ray McArthur Freeney?

2.

If so, did any member of the defense team attempt to
contact you before trial?

Supp. State Habeas Record at 30.
Freeney filed an ex parte motion for investigative assistance in the lower court on April
29, 2013. Supp. State Habeas Record at 16-18. Freeney filed a second motion on October 3,
2013. Supp. State Habeas Record at 40. The trial court did not authorize funds for investigative
assistance.
On November 29, 2013, Freeney filed affidavits from Patrick Reese, Shavonne McIntyre,
Johnny Ray Reese, and Anita Reese. Supp. State Habeas Record at 46-68. Freeney did not
include a new affidavit from Jesse Kelly Jr. because he had affirmed that he was “never
interviewed or contacted by defense counsel in his original affidavit . . . .” Supp. State Habeas
Record at 46. Freeney did not include affidavits from Toshie Lockridge and Trinan Miller,
claiming that the denial of investigative funds prevented him from establishing contact with
them. State Habeas Record at 46. Otherwise, the new affidavits claimed that trial counsel had
not contacted the affiants. Supp. State Habeas Record at 48, 55, 58, 62. Johnny Ray Reese and
Anita Reese both said that they would have been able to testify at trial. Patrick Reese said that
he was serving in the military and was stationed out of the country at the time of trial, but “would
have been available to testify telephonically . . . .” Supp. State Habeas Record at 48. Ms.
McIntyre also said that she would have been available to testify by telephone. Supp. State
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Habeas Record at 55. The affidavits did not include any new information or introduce new
mitigating circumstances.
Trial counsel Mr. Loper signed a new affidavit on December 2, 2013. Supp. State
Habeas Record at 70-74.

Freeney was served with the affidavit on December 4, 2013.

[Instrument No. 12, Ex. B]. Mr. Loper explained that possessing the trial file allowed him to
discern what information he, the mitigating specialist, and the trial investigators developed
before trial. In doing so, trial counsel provided specific reasons for not calling each habeas
affiant at trial. Trial counsel disputed the credibility of some affiants because they claimed that
the defense had not spoken with them when, in fact, they had been interviewed before trial.
Also, some of the information the affiants provided conflicted with the trial record, was
inconsistent with what Freeney or others had told them, or was proven false by official records.
Trial counsel repeatedly expressed concern that any testimony from the habeas affiants would
have shown that Freeney had a life-long, and escalating, tendency toward violence and sexual
aggression. In sum, trial counsel provided a basis to the lower court to find no Strickland
deficient performance or actual prejudice with regard to each habeas affiant.
Respondent submitted proposed findings and conclusions on December 9, 2013. Supp.
State Habeas Record at 111. Freeney did not submit anything before the lower court signed the
supplemental findings and conclusions on December 10, 2013. Supp. State Habeas Record at
110. The renewed findings recognized that most of the habeas affiants indicated that they would
have been able to testify, in person or telephonically, at trial. Supp. State Habeas Record at 10102.

The renewed state habeas findings reiterated all the findings of fact relating to the

mitigating-evidence claim, except where a finding was contracted by the new affidavits showing
that witnesses could have testified at trial. Supp. State Habeas Record at 102, 103, 105. Given
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the narrow issue remanded by the Court of Criminal Appeals, the lower court focused on trial
counsel’s performance, adopting the earlier findings and conclusions on Strickland prejudice.
The state habeas court found Mr. Loper’s affidavit credible. Supp. State Habeas Record
at 106. The state habeas reiterated, and placed emphasis on, the fact that Freeney “told the trial
team his mother did not abuse him . . . and that [his mother] denied abusing [him].” Also, trial
counsel interviewed “several individuals close to [Freeney’s] family . . . [who] said [she] was a
good mother and did not mistreat her children.” Supp. State Habeas Record at 107. In addition,
and based on trial counsel’s affidavit, the lower habeas court also entered supplemental findings
that provided new reasons for which counsel did not provide ineffective representation in failing
to call each habeas affiant, to wit:
Patrick Reese had been serving abroad in the military and thus
counsel was not ineffective for not interviewing him or calling
him as a witness. In addition, none of the witnesses trial
counsel interviewed gave any reason to believe that Mr. Reese
could provide information about physical abuse such as he had
provided in his affidavit. Supp. State Habeas Record at 102.
Trial counsel had applied for and received a subpoena for Jesse
Kelley Jr. The subpoena was served on Mr. Kelley. The state
habeas court found it “improbable that the trial team would
have subpoenaed Kelley Jr. . . . and told him that he might be a
character witness without having spoken to him about what he
could testify to . . . .” Because trial counsel’s records showed
that they had interviewed Mr. Kelley twice, the state habeas
court found it “incredible . . . that the trial team did not contact
Kelley Jr., as he asserts.” Finally, because of Freeney’s sexual
abuse of Mr. Kelley and the lack of pretrial evidence about
physical abuse by their mother, trial counsel was not deficient
for not putting Mr. Kelley on the stand. Supp. State Habeas
Record at 102-03.

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The defense explored potential testimony from Trinan Miller.
The defense obtained information before trial that contradicted
her habeas affidavit. Information showed that Freeney’s
mother did not assault him. CPS records verified that the
children were not removed from the home of Freeney’s mother.
Also, Casandra Rouse told the defense that Mrs. Miller was
jealous of Freeney’s mother and “was a liar.” Supp. State
Habeas Record at 104.
The defense had obtained testimony that contradicted Toshie
Lockridge’s description of Freeney’s mother’s problems with
anger and abuse. One witness, in fact, told the defense that
Freeney’s mother treated her children “like gold.” Also, trial
counsel’s failure to call Ms. Lockridge as a witness was
“reasonable given that Lockridge was the daughter of [his
mother’s] friend, i.e. a rather distant connection to [him], and
none of the witnesses . . . indicated that there was any physical
abuse growing up in [the] household [of Freeney’s mother].”
Supp. State Habeas Record at 104-05.
Both Johnny Ray and Anita Reese had no contact with Freeney
since he was a baby. Their paucity of personal knowledge, and
the fact that what they did say contradicted other information
obtained by counsel, foreclosed a finding of Strickland
deficient performance. Supp. State Habeas Record at 105.
Shavonnie McIntyre’s testimony was “incredible” because,
despite her testimony that the defense never contacted her, trial
records showed that the trial investigator interviewed her. In
addition, Ms. McIntyre provided information that was
inconsistent with, or damaging to, the defense’s chosen
strategy. Supp. State Habeas Record at 106.
In addition, the state habeas court emphasized that Freeney had denied that his mother
had abused him, those close to the family did not describe any abuse, and official records
undercut the allegations about abuse. Supp. State Habeas Record at 107. With the exception of
those relating to the available of witnesses to testify, the state habeas court also adopted its prior

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legal conclusions. Supp. State Habeas Record at 107.

The lower court recommended that the

Court of Criminal Appeals deny habeas relief.
Freeney did not file any objections in the Court of Criminal Appeals. The Court of
Criminal Appeals agreed with the lower court’s recommendation.

The Court of Criminal

Appeals adopted the lower court’s supplemental findings and denied relief. Ex parte Freeney,
No. WR-78,109-01 (Tex. Crim. App. Aug. 20, 2014).
C.

Freeney’s Federal Claim and AEDPA

Freeney’s federal petition renews his challenge to trial counsel’s punishment-phase
preparation and presentation of evidence. Freeney separates this claim into two grounds for
relief. In his first claim, Freeney argues that this Court should not base its review of the statecourt decision on AEDPA’s highly deferential standards. Freeney contends that the trial court
“deprived him of a full and fair opportunity to adjudicate his Strickland claim in state court” and
“violated the tenets of due process” by not authorizing “any opportunity to respond to the
evidence the court relied on” or “receive evidence” from certain witnesses. [Instrument No. 8 at
27]. Freeney’s second ground for relief argues that he has nonetheless met AEDPA standards
for habeas relief.
Contrary to Freeney’s claim, AEDPA governs this Court adjudication of the state court’s
legal decision and factual findings.

While Freeney complains that he did not have the

opportunity to submit his own proposed findings on state habeas, section 2254(d)(1) places no

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qualifier on its application to any claim “adjudicated on the merits.” The statute contains no
requirement that the state adjudication proceed under any certain set of circumstances.4
Freeney likewise alleges that insufficient opportunities for factual development or
procedure deprived him of a full or fair state hearing, disentitling any state factual findings to
deference under section 2254(e)(1). The Fifth Circuit has repeatedly held that “a full and fair
hearing is not a precondition to according § 2254(e)(1)’s presumption of correctness to state
habeas court findings of fact.” Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001); see also
Wiley v. Epps, 625 F.3d 199, 207 (5th Cir. 2010); Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir.
2004); Bass v. Dretke, 82 F. App’x 351, 354 (5th Cir. 2003). Accordingly, the Court rejects
Freeney’s proposal in his first claim to review his arguments independent of AEDPA standards.
The state court considered the merits of Freeney’s Strickland claim. Despite Freeney’s
protestations to the contrary, the state court applied the correct legal standards to his claims.
Accordingly, “[t]he pivotal question” under AEDPA review “is whether the state court’s
application of the Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S. 86,
101 (2011). This requires an inmate show “more than incorrect or erroneous.” Wiggins v. Smith,
539 U.S. 510, 520 (2003). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could disagree on the correctness of the state
court's decision.” Richter, 562 U.S. at 101 (citation and internal quotation marks omitted).
4

In a limited range of cases in which there is “a significant substantive liberty interest [at stake]”—primarily
when the petitioner invokes claim that he is constitutionally “ineligible for the death penalty”—a “set of core
procedural due process protections” exist, the absence of which deprive the state court’s decision “the deference
normally due.” Tercero v. Stephens, 738 F.3d 141, 148 (5th Cir. 2013) (quotations omitted); see also Panetti v.
Quarterman, 551 U.S. 930, 953 (2007); Blue v. Thaler, 665 F.3d 647, 656–57 (5th Cir. 2011); Wiley v. Epps, 625
F.3d 199, 207 (5th Cir. 2010); Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2007). The Fifth Circuit,
however, has never extended this unique exception to a run-of-the-mill Strickland claim. At any rate, even if
Freeney’s arguments carried some weight, the state habeas court decided Freeney’s claim on both Strickland prongs.
Freeney had adequate opportunities before, and the record did not materially change after, remand to make his
arguments involving Strickland prejudice. Nevertheless, this Court’s discussion of Strickland prejudice would not
change under a de novo review.

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This is not a case where the state court made an “error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” White v.
Woodall, __ U.S. ___, ___, 134 S. Ct. 1697, 1699 (2014). The record showed that trial counsel
engaged in a thorough investigation and was well-acquainted with various mitigation theories.
Trial counsel sought the aid of investigators to defend against a highly aggravating case. Both
the investigator and trial counsel spoke with many people and developed a significant amount of
evidence. Trial counsel secured the assistance of mental-health experts. The record verifies that
trial counsel investigated several leads and pursued different avenues of mitigating information.
Drawing on various sources, trial counsel put on a robust case for jurors to answer the mitigating
special issue in a manner favorable to their client.
Trial counsel’s interaction with Freeney himself, defense interviews with various
witnesses, and other investigation did not turn up anything that would lead to some of the
information contained in the habeas affidavits. Supp. State Habeas Record at 107. Even so, trial
counsel provided specific and defensible reasons for not adducing the mitigating evidence
provided by the habeas affiants. With that record, the state courts endorsed trial counsel’s
decisions, particularly because the chosen strategy averted much negative information from
coming before jurors. A reasonable attorney could avoid putting before a jury information that
his client’s aggressive tendencies extended into his childhood, including evidence that he was
physically abusive to his mother and brothers, frequently fought with others, wanted to kill his
mother, and was sexually aggressive towards women. State Habeas Record at 292.
In addition to inserting much negative information about Freeney into the record, the
habeas affidavits do not necessarily undercut the reasonableness of the chosen punishment case.
As the state habeas court observed, the habeas affidavits may have allowed the defense to choose
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a different avenue, but that does not necessarily mean trial counsel chose the wrong one. The
state habeas court observed that “[c]hoosing one plausible defensive path is not deficient
conduct,” especially where “[t]he defensive theme that [Freeney] was a law-abiding, wellmannered child who eventually had a psychotic break in the National Guard where he was
diagnosed with schizophrenia” was “equally valid and, arguably, better” that contained in the
habeas affidavits: Freeney “was beaten by his mother, violent as a child, and sexually aggressive
which explains his later behavior as seen through his schizophrenia.” State Habeas Record at
292.
In finding no constitutional deficiency in counsel’s representation, the state courts
honored Strickland’s strong presumption that counsel performed competently. Strickland, 466
U.S. at 689. Indeed, the state habeas court “required not simply to give [Freeney’s trial]
attorneys the benefit of the doubt, . . . but to affirmatively entertain the range of possible reasons
[Freeney’s trial] counsel may have had for proceeding as they did.” Pinholster, 563 U.S. at 196
(internal quotation marks and citation omitted). With the contradictions in the record, the
sharply aggravating nature of the accompanying evidence, the specious nature of some new
information, and the other concerns, this is not a case in which “fairminded jurists could disagree
on the correctness of the state court’s decision” relating to trial counsel’s performance.
Harrington, 562 U.S. at 88
Crucially, Freeney has not established Strickland prejudice.

Freeney has adduced

evidence that could provide jurors a sympathetic context in which to consider some facets of his
life. “The fact that the new evidence would have given [the petitioner] a stronger defense or that
the case would have been argued differently does not necessarily mean that the outcome would
have been different.” Williams v. Thaler, 684 F.3d 597, 604-05 (5th Cir. 2012). Outstripping the
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effect of his new evidence, however, would be the danger of showing that Freeney’s violence
was not of recent vintage, emerging only after a psychotic episode during military service. See
Wong v. Belmontes, ___ U.S. ___, 130 S. Ct. 383, 386 (2009) (instructing that “it is necessary to
consider all the relevant evidence that the jury would have had before it” if trial counsel “had
pursued the different path” suggested in state habeas court). Freeney’s new evidence extends his
violence and sexually aggressive tendencies deep into his childhood. The possibility that a
relative sexually abused Freeney was not confirmed, but his own sexual abuse of a family
member would be. The contradictory evidence about his mother’s physical abuse would be
offset by testimony that he physically fought with her as a teenager. Testimony about his anger
and turbulence would negate testimony about Freeney’s good nature as a child.
Aside from the contradictions and additional aggravation, the extremely aggravating case
against Freeney would dampen any mitigating effect of the new evidence. See Vasquez v.
Thaler, 389 F. App’x 419, 428 (5th Cir. 2010) (“Naturally, the power of the newly amplified
case to mitigate a jury’s selected punishment will be contingent on other factors in the case, such
as the circumstances of the crime.”). Here, the brutality of Freeney’s actions in the weeks before
his arrest—including the two murders for which the jury convicted Freeney—conclusively
foreclose a finding of Strickland prejudice on the facts of this case.
Freeney admitted to killing fifteen-year-old prostitute Kirshalynne Jones and voluntarily
provided details of his unspeakable acts. While pretending to give Ms. Jones money in a motel
room, Freeney placed her in a chokehold until she passed out. Freeney tried to have sex with her
for about fifteen minutes while she was unconscious, but he could not become aroused. After
she had regained consciousness, Freeney repeatedly stabbed Ms. Jones with his keychain knife.
Freeney forced Ms. Jones to perform oral sex on him until she had a “bleak look in her eyes.”
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Ms. Jones slowly again lost consciousness and died.

Freeney cleaned the room of any

fingerprints or other evidence. He then put Ms. Jones’ body in the full bathtub to get rid of all
evidence before leaving. Freeney then “went back home and chilled out . . . .” State Habeas
Record at 139.
Freeney nearly killed again two days after killing Ms. Jones. Freeney forced Kimberly
Bolden, who was talking to her mother on her cell phone, into her apartment with a choke hold.
Freeney began “beating [her] savagely.” Tr. Vol. 20 at 15. After Freeney pushed Ms. Bolden to
the floor, she offered to give him anything. He told her “that he wanted to fuck” and asked if she
“was going to give him some pussy.” Tr. Vol. 20 at 17. As the two fought, Freeney choked her
until he cut off her air supply. Ms. Bolden’s mother listened to the attack until her phone went
dead. Freeney wrestled around with Ms. Bolden until he stabbed her in the chest while saying
“die bitch.” State Habeas Record at 145. Freeney told the police that he stabbed her “to get
some type of control on the situation.” State Habeas Record at 150. Freeney’s knife was
knocked from his hand before Ms. Bolden lost consciousness. Freeney went to the kitchen and
picked up another knife. When Ms. Boden regained consciousness, Freeney attacked again, this
time biting and stabbing her until the knife snapped in two. Freeney then demanded sex while
hitting her. Hearing noises outside, Freeney fled. Ms. Bolden survived.
Around this time period, Freeney also raped two other young prostitutes before
committing his final murder. Freeney met prostitute Vicky Dean on the street four days after he
had killed Ms. Jones. They both went to his apartment, entering though a window. Ms. Dean
wanted payment immediately, but Freeney had no money. When she wanted something to drink,
Freeney went to the kitchen and brought Ms. Dean “some juice with . . . a sleeping aid” in it.
State Habeas Record at 155-56. He also brought a “cake knife” with a “flimsy blade.” State
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Habeas Record at 156. After she drank the juice and smoked cigarettes, Freeney asked Ms. Dean
to lie on the bed so he could give her a massage. When she took off her dress and lay down,
Freeney stabbed her with a knife. As she tried to wrestle, Freeney repeatedly stabbed her and
said that she had to die. When Ms. Dean asked, “why me,” Freeney “told her cause [he] like
her.” State Habeas Record at 157. While she was bleeding, Freeney had sex with Ms. Dean.
Freeney complained that was not as good as he thought it would be. Freeney then knew that he
could not let Ms. Dean go. They wrestled again and, as she broke free, Freeney buried his knife
in her left eye. Ms. Dean begged Freeney, “Pull this knife out of me so I can die.” State Habeas
Record at 162. Freeney left the apartment while she was still living. The police found Ms.
Dean’s body in the grass outside Freeney’s apartment building, with blood stains on the window
sill through which she had presumably exited. She was hospitalized for a month before she died.
Three days later the police arrested Freeney as he sat at a nearby bus stop negotiating
prices with another prostitute.
Incarceration may have ended Freeney’s ability to rape and kill prostitutes, but it did not
end his aggression. While jailed before trial, Freeney threatened guards both with physical and
sexual violence. He fought another inmate and possessed weapons. He was a constant discipline
problem. The highly structured environment of prison could not repress his extremely violent
tendencies.
With that background steeped in violence, the state habeas court was not unreasonable in
its assessment of Strickland prejudice:
[T]he State’s case on punishment was overwhelming. [Freeney],
essentially, tortured, raped and killed two women; attempted to do
the same to a third; raped two more women; and was aggressive,
violent and sexually abusive while incarcerated awaiting trial.
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Even if all of [Freeney’s] postconviction evidence is credited there
is not a reasonable probability of a different result.

State Habeas Record at 294. The Court, therefore, finds that the state court’s denial of his
Strickland claim was not contrary to, or an unreasonable application of, federal law. 28 U.S.C. §
2254(d)(1). The Court will deny Freeney’s first two grounds for relief.
II.

Texas’ Mitigation Special Issue (claim three)
Freeney’s third claim argues that the trial court should have instructed jurors on what

would happen if they failed to reach a unanimous agreement on either special issue.5

Under

Texas law, “[i]f the jury . . . is unable to answer any [special issue] issue . . . the court shall
sentence the defendant to confinement in the institutional division of the Texas Department of
Criminal Justice for life.” TEX. CODE CRIM. PRO. art. 37.071 § 2(g). Texas law, however, also
mandates that “[t]he court, the attorney representing the state, the defendant, or the defendant’s
counsel may not inform a juror or a prospective juror of the effect of a failure of a jury to agree
on [the special] issues[.]” TEX. CODE CRIM. PRO. art. 37.071 § 2(a)(1). Freeney argues that
“[t]he Texas prohibition against revealing the fact that a single holdout juror could cause the
prosecution to result in a life sentence, rather than a mistrial followed by a new sentencing
hearing, is clearly intended to prevent a minority of life giving jurors, or even a single juror, from

5

Notwithstanding the fact that he apparently exhausted the claims on direct appeal, Freeney makes the
cursory argument that “all prior counsel provided the ineffective assistance of counsel for failure to raise the bases
for relief in” claims three and four. [Instrument No. 8 at 48, 54]. Freeney’s perfunctory briefing on that issue does
not provide an actionable basis for federal habeas corpus relief. Nonetheless, Respondent contends that Freeney has
not presented any ineffective-assistance-of-counsel component of his third and fourth claims to the state courts,
rendering them unexhausted and procedurally barred. For the reasons described in the text that follows above,
federal precedent has conclusively rejected Freeney’s underlying challenges to Texas’ statutory capital sentencing
procedure. Respondent also argues that Freeney insufficiently exhausted the substance of his third claim.
Regardless of procedural deficiencies, the specious constitutional underpinnings of Freeney’s last two claims cannot
command federal habeas relief.

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actually exercising a veto of the majority’s decision for death.” [Instrument No. 8 at 47]. On
that basis, Freeney argues that Texas law violates several constitutional provisions.
The Fifth Circuit has found that nothing in Supreme Court precedent requires Texas to
inform a capital jury about the effect of any non-unanimous or holdout jurors. See Turner v.
Quarterman, 481 F3d 292, 300 (5th Cir. 2007); Alexander v. Johnson, 211 F.3d 895, 897 (5th
Cir. 2000); Webb v. Collins, 2 F.3d 93, 95-96 (5th Cir. 1993). Accordingly, the Fifth Circuit has
repeatedly held that indistinguishable claims require the creation of new constitutional law in
violation of Teague v. Lane, 489 U.S. 288 (1989). See Roach v. Quarterman, 220 F. App’x 270,
276-77 (5th Cir. 2007); Alexander, 211 F.3d at 897; Davis v. Scott, 51 F.3d 457, 466 (5th Cir.
1995). Freeney does not show the applicability of any exception to the Teague doctrine or
otherwise distinguish the Fifth Circuit’s binding precedent.
In addition, the Fifth Circuit has also expressly found similar claims to be without merit.
See Alexander, 211 F.3d at 897 n.5; Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir. 2000);
Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir. 1994). Finding support in the Supreme Court
case of Jones v. United States, 527 U.S. 373 (1999), the Fifth Circuit has found no constitutional
right to instruct a jury on potential deadlock. See Alexander, 211 F.3d at 897 n.5. The Court,
therefore, denies Freeney’s third ground for relief.
III.

12-10 Rule (claim four)
Freeney’s fourth claim argues that the trial court erred by instructing the jury on what is

commonly known as the “10-12” or “12-10” 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). Once the
jury found Freeney guilty of capital murder, only two sentences were possible: life imprisonment
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or death. If the jury answered the future-dangerousness issue “yes” and found no mitigating
circumstances, then Freeney would receive a death sentence. If the jury answered the special
issues otherwise, or they could not arrive at an answer, Freeney would receive a life sentence. In
compliance with the 12-10 rule, the trial court informed the jury that any answer to Texas’s
special issues which could result a death sentence must be unanimous, but that ten or more jurors
would have to agree on any answer supporting a life sentence. Clerk’s Record at 645. Texas law,
however, prevented the jury from being informed that failing to reach the required consensus on
either special issue would still result in a life sentence. TEX. CODE CRIM. PRO. art. 37.071(g).
Freeney claims that failing to explain the effect of a single juror’s “no” answer to the
mitigation special issue violates Mills v. Maryland, 486 U.S. 367 (1988). In Mills, the Supreme
Court “held invalid capital sentencing schemes that require juries to disregard mitigating factors
not found unanimously.” Beard v. Banks, 542 U.S. 406, 408 (2004) (emphasis added); see also
Smith v. Spisak, 558 U.S. 139, 148 (2010); McKoy v. North Carolina, 494 U.S. 433, 439–440
(1990); Druery v. Thaler, 647 F.3d 535, 542–43 (5th Cir. 2011). Because the 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 of a particular such
circumstance.” Mills, 486 U.S. at 384 (emphasis added).
The Fifth Circuit has repeatedly held that Texas’ 12–10 Rule does not run afoul of Mills.
See Allen v. Stephens, 805 F.3d 617, 632 (5th Cir. 2015); Holiday v. Stephens, 587 F. App’x 767,
789 (5th Cir. 2014); Reed v. Stephens, 739 F.3d 753, 779 (5th Cir. 2014); Parr v. Thaler, 481 F.
App’x 872, 878 (5th Cir 2012); Druery v. Thaler, 647 F.3d 535, 542–43 (5th Cir. 2011); Greer v.
Thaler, 380 F. App’x 373, 389 (5th Cir. 2010). The Fifth Circuit holds that “the instruction at
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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, 31
F.3d at 1329; 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 trial court’s 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 645. 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). Binding federal precedent rejects the merits of Freeney’s 12-10
claim.
CERTIFICATE OF APPEALABILITY
AEDPA bars appellate review of a habeas petition unless a district or circuit court
certifies specific issues for appeal. See 28 U.S.C. § 2253(c); FED.R.APP.P. Rule 22(b). Even
though Freeney has not sought a Certificate of Appealability (“COA”), 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 Slack v. McDaniel, 529 U.S. 473, 484
29 / 30

(2000). Settled precedent forecloses relief on Freeney’s claims. Because Freeney 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 Court of Appeals for the Fifth Circuit.
CONCLUSION
For the reasons described above, the Court finds that Freeney has not shown an
entitlement to federal habeas relief. This Court grants Respondent’s motion for summary
judgment, denies Freeney’s petition, and dismisses this case with prejudice. The Court denies
all remaining requests for relief. No Certificate of Appealability will issue in this case.
The Clerk will deliver a copy of this Order to the parties.
SIGNED at Houston, Texas, this 27th day of January, 2016.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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