Sheppard v. Livingston, Executive Director of the Texas Department of Criminal Justice

Filing 55

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

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

ERICA YVONNE SHEPPARD,
Petitioner,
v.
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

§
§
§
§
§
§
§
§
§

March 29, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:14-0655

MEMORANDUM AND ORDER DENYING
PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Erica Yvonne Sheppard is a Texas death row inmate. This case is before
the Court on Sheppard’s Amended Petition for Writ of Habeas Corpus [Doc. # 28], and
Respondent Lorie Davis’ Motion for Summary Judgment [Doc. # 46] (“Motion”). Having
carefully considered the Amended Petition, the Summary Judgment Motion, Sheppard’s
Reply to the Motion, all the arguments and authorities submitted by counsel, and the entire
record, the Court is of the opinion that Davis’ Motion must be granted, and Sheppard’s
Amended Petition for Writ of Habeas Corpus should be denied. The Court grants a
certificate of appealability on certain aspects of Sheppard’s ineffective assistance of counsel
claim regarding the punishment phase of her trial.
I.

BACKGROUND
Sheppard was convicted of capital murder and sentenced to death on March 3, 1995,

for murdering Marilyn Sage Meagher during the course of robbing Meagher. On June 30,
1993, Meagher’s daughter discovered her mother’s body in a spare bedroom of an apartment
she shared with her mother in Houston, Texas. 20 Tr. at 18-19, 39-42.1 When law
enforcement arrived at the scene, they found Meagher’s body under a pile of bed linens, with

1

“Tr.” refers to the transcript of Sheppard’s trial.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

a plastic dry cleaning bag wrapped around her head. There were three knives and a broken
statue nearby. Id. at 95-102. Police recovered a finger and palm print, subsequently matched
to Sheppard’s left hand, from the door leading to the spare bedroom. Id. at 197-206.
An autopsy revealed a number of stab wounds on Meagher’s body, several of them
very deep. 21 Tr. at 177-78, 185-87. Injuries to Meagher’s head were consistent with a
statue being slammed into her head with “a great deal of force.” Id. at 187.
The day after the murder, Korey Jordan contacted the police. 20 Tr. at 114. Jordan
was friends with Sheppard’s brother, Jonathan. He was at Jonathan’s apartment in the same
complex as Meagher’s the day before the murder. There, he heard Sheppard and James
Dickerson talk about robbing or carjacking someone. 21 Tr. at 90-98.
Jordan testified that, when Dickerson complained that he needed money, Sheppard
replied “let’s go back to the old theme.” Id. at 96. Dickerson stated: “If taking a life is what
I have to do to get some money, then that’s what I have to do.” Sheppard responded that
she’d “rather catch a . . . skinny white woman walking between her car and her apartment
with no children.” Id. at 98-99. Dickerson got two knives from Jonathan’s kitchen, one of
which looked like a knife recovered from the crime scene, and talked to Sheppard about the
best clothes to wear for committing the crime. Id. at 99-101. They left Jonathan’s apartment
wearing dark clothes. Id. at 101-02.
The day after the murder, police found Meagher’s vehicle in Bay City, Texas. 20 Tr.
at 117. A witness testified that he saw both Sheppard and Dickerson use the vehicle on the
same evening that Meagher’s body was found.

21 Tr. at 12-17.

Police recovered

Dickerson’s fingerprint from the vehicle. 20 Tr. at 177-78.
The following day, police arrested Sheppard and Dickerson in a motel room in Bay
City. 21 Tr. at 39-42. They recovered a knife similar to one found near Meagher’s body
from a drawer containing women’s clothing in the motel room. Id. at 46-47. Sheppard
subsequently confessed to the murder. Id. at 142-43.
During the penalty phase of Sheppard’s trial, the State introduced evidence that
Sheppard unsuccessfully attempted to “jack” another female victim the night before the
Meagher murder, 25 Tr. at 7, 10, 19, 40-42, and that Sheppard also admitted to a friend that
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

2

she would “jack” cars and sell the parts, id. at 64-65. The state also presented evidence that
Sheppard participated in a drive-by shooting with Jerry Bryant, Jr. (“Bryant”), the father of
Sheppard’s youngest child, on November 17, 1991. Id. at 75-114. Sheppard drove the car.
Id. at 78-79.
The State further presented evidence that Sheppard had a poor reputation for being
peaceful and law abiding in her hometown. Id. at 124, 131. Two witnesses who were housed
with Sheppard during her pretrial detention testified that Sheppard drew attention to news
coverage of the Meagher murder “like she was bragging.” Id. at 137-38, 161. The State
presented evidence that Sheppard spoke callously about the murder, id. at 138-39, threatened
to harm a fellow inmate, and asked how she could fake her way into a section of the jail
reserved for inmates with mental disorders, id. at 141-44.
Meagher’s family testified about the impact her death had on them. Her son testified
that he felt like he was robbed of 20 or 30 years with his mother. He sought help from a
psychologist to cope with his mother’s murder. Id. at 169-72. Meagher’s sister also testified
about the impact of the murder on her and her children. Id. at 176-79.
In the defense case during the punishment phase, Sheppard presented documents and
testimony from the Director of the Matagorda County Women’s Crisis Center, an
organization that provides shelter for abused women and children, that she stayed at the
Center. 26 Tr. at 31-33. The documents show that she went to the Center due to domestic
abuse, and that Center staff referred her to a legal aid attorney for assistance in obtaining a
protective order and a divorce. Id. at DX2 2-B. She presented similar evidence from
Covenant House, an emergency shelter for runaway and homeless youth, that she spent time
there. Id. at 35-37.
Sheppard first stayed at Covenant House when she was 16 years old. She had a young
child at that time. The Houston Police Department referred her to Covenant House due to
conflict between Sheppard and her mother. She stayed at Covenant House a second time
when she was 17 years old. Id. at DX 3-B.

2

“DX” refers to the Defendant’s trial exhibits.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

3

Sheppard also called psychiatrist Priscilla Ray, M.D. Dr. Ray presented a clinical
evaluation based on a two-hour interview of Sheppard. DX4-B, at 1. Defense counsel asked
Dr. Ray to evaluate Sheppard for competency to stand trial, sanity, and her susceptibility to
influence by men who were in a position to abuse her. Am. Pet., App. 24, at 2. Dr. Ray’s
clinical conclusions focused on Sheppard’s competency to stand trial rather than
development of mitigation evidence. DX 4-B. at 5. Dr. Ray testified that Sheppard suffered
from depression, which was only partially treated. She opined that there was a genetic
component to Sheppard’s depression based on her family history. 26 Tr. at 41-42. Dr. Ray
also testified that Sheppard seemed remorseful for the murder. Id. at 45. Based on
Sheppard’s mental status, her history, the nature of her crime, and general relevant statistics,
Dr. Ray opined that Sheppard was unlikely to engage in future acts of violence, either in
prison or in society. Id. at 43-46. Dr. Ray testified that Sheppard was more of a follower
than a leader, and would be less likely to commit acts of violence if not in “a situation in
which a man is likely to be abusive or possibly may be abusive and has some sway over her.”
Id. at 60-61.
Dr. Ray’s expert report was also admitted into evidence. The report stated that
Sheppard was raised by her maternal grandmother, that both her mother and her grandmother
had significant health problems, that her parents divorced when she was young and her father
was not a frequent presence in her life, and that she has a brother, a half brother, and a step
brother. DX 4-B. Dr. Ray did not testify to these facts or elaborate. Dr. Ray’s report
revealed that Sheppard dropped out of school in tenth grade because she was pregnant. She
eventually obtained a GED and attended school to become a medical assistant. She dropped
out because Bryant, her boyfriend at the time, wanted her at home. Id. Sheppard reported
being sexually abused as a child by a friend of her mother’s. Sheppard reported the abuse
to her mother, but her mother did not believe her. She also reported being raped by a
stranger when she was a teenager, and being abused by Bryant, the father of her third child.
Id. The abuse by Bryant included striking Sheppard and threatening to kill her. Id.
Sheppard also told Dr. Ray her version of the events regarding Meagher’s murder. She
denied agreeing to harm anyone the day before the murder, and claimed that she told
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

4

Dickerson, who was Sheppard’s brother’s romantic partner, see 22 Tr. at 15, to get a job if
he needed money. She further claimed that Dickerson threatened to kill her and her baby if
she didn’t help him with the robbery-murder, that she acted under duress, and that Dickerson
planted the knife in her clothing drawer at the motel. DX 4-B.
Sheppard also called as a witness Patrice Green, a lifelong friend. Green testified that
Sheppard attended church regularly, had three children, and worked for Green’s husband, a
Justice of the Peace. 26 Tr. at 70-73.
Sheppard’s grandmother, Annie Smith, testified that she was Sheppard’s primary
caregiver during Sheppard’s youth, and that Sheppard lived with Smith more than with her
own mother. Smith testified that Sheppard lived with her for most of the first 20 years of
her life. Id. at 75-77. She also testified briefly that Bryant abused Sheppard. Sheppard
moved away from her grandmother to try to evade Bryant. Id.
The jury found that there was a probability that Sheppard would commit future acts
of criminal violence posing a danger to society, that she caused, intended to cause, or
intended for another to cause Meagher’s death, and that the mitigating evidence was
insufficient to warrant a life sentence. 28 Tr. at 5-7. Accordingly, the trial court sentenced
Sheppard to death.
The Texas Court of Criminal Appeals (“TCCA”) affirmed Sheppard’s conviction and
sentence. Sheppard v. State, No. AP-72,127 (Tex. Crim. App. June 18, 1997). Sheppard did
not seek certiorari from the Supreme Court of the United States.
Sheppard filed a state application for a writ of habeas corpus raising 40 claims for
relief, including numerous claims of ineffective assistance of counsel. See 1 SHCR at 3-10.3
The state habeas court held an evidentiary hearing on Sheppard’s ineffective assistance of
counsel claims, which included testimony and an affidavit by Hazel Bolden, Sheppard’s
second chair trial counsel, opining that lead counsel Charles A. Brown did a poor job

3

“SHCR” refers to the Clerk’s Record from Sheppard’s state habeas corpus
proceeding.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

5

representing Sheppard. 2 WH at 220-26.4 The trial court entered extensive written findings
of fact and conclusions of law, see 5 SHCR at 1310-71, and recommended granting relief on
Sheppard’s claim that trial counsel rendered ineffective assistance
at the punishment phase of applicant’s trial in failing to present or fully
develop evidence regarding the applicant’s background and failure to present
testimony expert or otherwise that would allow the jury to understand the
implications of the applicant’s background including physical abuse sexual
abuse or domestic violence for consideration in determining the answer to the
special issues.
Id. at 1338.
The TCCA denied Sheppard’s application for a writ of habeas corpus, rejecting the
trial court’s recommendation to grant relief on the ineffective assistance of counsel claim.
Ex Parte Sheppard, No. WR-78132-01, 2013 WL 5568434 (Tex. Crim. App. Oct. 9, 2013)
(per curiam). On May 19, 2014, the Supreme Court denied Sheppard’s petition for a writ
of certiorari. Sheppard v. Texas, 134 S. Ct. 2288 (2014).
Sheppard filed her initial federal petition for a writ of habeas corpus on March 18,
2014. She amended her petition on April 17, 2015. Before the Court is Respondent’s
Motion for Summary Judgment filed June 24, 2016, along with her Amended Answer to the
Amended Petition.

Sheppard responded to the Motion on September 7, 2016, and

Respondent replied on November 7, 2016.
II.

APPLICABLE LEGAL STANDARDS
A.

The Anti-Terrorism and Effective Death Penalty Act

This federal petition for habeas corpus relief is governed by the applicable provisions
of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See Woodford v.
Garceau, 538 U.S. 202, 205-08 (2003); Lindh v. Murphy, 521 U.S. 320, 335-36 (1997).
Under the AEDPA, federal habeas relief based upon claims that were adjudicated on the
merits by the state courts cannot be granted unless the state court’s decision (1) “was contrary
to, or involved an unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States” or (2) “was based on an unreasonable
4

“WH” refers to the transcript of Sheppard’s state writ hearing.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

6

determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002); Cobb v. Thaler, 682 F.3d 364,
372-73 (5th Cir. 2012).
For questions of law or mixed questions of law and fact adjudicated on the merits in
state court, this Court may grant habeas relief under 28 U.S.C. § 2254(d)(1) only if the state
court decision “was contrary to, or involved an unreasonable application of, clearly
established [Supreme Court precedent].” See Kittelson v. Dretke, 426 F.3d 306, 318 (5th Cir.
2005). Under the “contrary to” clause, this Court may afford habeas relief only if “‘the state
court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on a
question of law or if the state court decides a case differently than . . . [the Supreme Court]
has on a set of materially indistinguishable facts.’” Dowthitt v. Johnson, 230 F.3d 733, 74041 (5th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000).
The “unreasonable application” standard permits federal habeas relief only if a state
court decision “identifies the correct governing legal rule from [the Supreme Court] cases but
unreasonably applies it to the facts of the particular state prisoner’s case.” Williams, 529
U.S. at 406. “In applying this standard, we must decide (1) what was the decision of the state
courts with regard to the questions before us and (2) whether there is any established federal
law, as explicated by the Supreme Court, with which the state court decision conflicts.”
Hoover v. Johnson, 193 F.3d 366, 368 (5th Cir. 1999). A federal court’s “focus on the
‘unreasonable application’ test under Section 2254(d) should be on the ultimate legal
conclusion that the state court reached and not on whether the state court considered and
discussed every angle of the evidence.” Neal v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001),
aff’d, 286 F.3d 230 (5th Cir. 2002) (en banc); see also Pape v. Thaler, 645 F.3d 281, 292-93
(5th Cir. 2011). The focus for a federal court under the “unreasonable application” prong is
“whether the state court’s determination is ‘at least minimally consistent with the facts and
circumstances of the case.’” Id. (quoting Neal, 239 F.3d at 696, and Hennon v. Cooper, 109
F.3d 330, 335 (7th Cir. 1997)); see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir.
2001) (“Even though we cannot reverse a decision merely because we would reach a
different outcome, we must reverse when we conclude that the state court decision applies
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

7

the correct legal rule to a given set of facts in a manner that is so patently incorrect as to be
‘unreasonable.’”)
The AEDPA precludes federal habeas relief on factual issues unless the state court’s
adjudication of the merits was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2);
Martinez v. Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011). The state court’s factual
determinations are presumed correct unless rebutted by “clear and convincing evidence.”
28 U.S.C. § 2254(e)(1); see also Jackson v. Anderson, 112 F.3d 823, 824-25 (5th Cir. 1997).
This Court may only consider the factual record that was before the state court in
determining the reasonableness of that court’s findings and conclusions.

Cullen v.

Pinholster, 563 U.S. 170 (2011). Review is “highly deferential,” Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam), and the unreasonableness standard is “difficult [for a
petitioner] to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
B.

Summary Judgment Standard in Habeas Corpus Proceedings

In ordinary civil cases, a district court considering a motion for summary judgment
is required to construe the facts of the case in the light most favorable to the non-moving
party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (The “evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor”). “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). This principle is limited, however; Rule 56 applies
insofar as it is consistent with established habeas practice and procedure. See Smith v.
Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (citing Rule 11 of the Rules Governing Section
2254 Cases). Therefore, § 2254(e)(1) – which mandates that findings of fact made by a state
court are “presumed to be correct” – overrides the ordinary summary judgment rule that all
disputed facts must be construed in the light most favorable to the nonmoving party. See id.
Unless the petitioner can “rebut[ ] the presumption of correctness by clear and convincing
evidence” regarding the state court’s findings of fact, those findings must be accepted as
correct. See id. Thus, the Court may not construe the facts in the state petitioner’s favor
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

8

where the prisoner’s factual allegations have been adversely resolved by express or implicit
findings of the state courts, and the prisoner fails to demonstrate by clear and convincing
evidence that the presumption of correctness in 28 U.S.C. § 2254(e)(1) should not apply. See
Marshall v. Lonberger, 459 U.S. 422, 432 (1983); Sumner v. Mata, 449 U.S. 539, 547
(1981); Emery v. Johnson, 940 F.Supp. 1046, 1051 (S.D. Tex. 1996), aff’d, 139 F.3d 191 (5th
Cir. 1997).
III.

ANALYSIS
Sheppard’s petition raises seven broad claims for relief with numerous subparts.

Respondent groups the claims and identifies 19, including subclaims in the pending
Amended Petition. This includes five broad claims of ineffective assistance of counsel.
Sheppard responds that she intends to raise only one overriding claim of ineffective
assistance of counsel at the punishment phase of her trial consisting of several instances in
which counsel’s conduct fell below prevailing professional norms, see Reply to Mot. for
Sum. Jmt. [Doc. # 49], at 28, as well as several claims of ineffective assistance of counsel
during the guilt-innocence phase and on appeal. The Court examines each specific instance
raised by Sheppard, and considers whether counsel’s acts and omissions, singly or in
combination, amounted to constitutionally ineffective assistance of counsel. They are
addressed in turn.
A.

Ineffective Assistance of Counsel

Sheppard contends that she received ineffective assistance of counsel at both the guiltinnocence and punishment phases of her trial.

To prevail on a claim for ineffective

assistance of counsel, Petitioner “must show that . . . counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment,” and “the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). To prove “prejudice”under the Strickland test, there must be a showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable. Id. at 687.
In order to prevail on the first prong of the Strickland test, the “deficient performance”
prong, Petitioner must demonstrate that counsel’s representation fell below an objective
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

9

standard of reasonableness. Id. at 687-88. Reasonableness is measured against prevailing
professional norms, and must be viewed under the totality of the circumstances, avoiding the
distorting effects of hindsight. In the context of a capital sentencing proceeding, “the
question is whether there is a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and mitigating circumstances did
not warrant death.” Strickland, 465 U.S. at 695. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. As the Fifth Circuit
succinctly framed this concept: “Is this additional mitigating evidence so compelling that
there is a reasonable probability at least one juror could reasonably have determined that
. . . death was not an appropriate sentence?” Neal v. Puckett, 239 F.3d 683, 692 (5th Cir.
2001). This requires a “substantial, not just conceivable, likelihood of a different result.”
Cullen v. Pinholster, 563 U.S. 170, 189 (2011)(quotation marks omitted).
Review of counsel’s performance is deferential, and counsel enjoy a strong
presumption that their conduct is within the “wide range” of the bounds of professional
norms. Strickland, 466 U.S. at 689; Id. at 688-90. A petitioner’s burden is to show “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. To make this
determination, a reviewing court must “consider all the relevant evidence that the jury would
have had before it if [Sheppard] had pursued [a] different path—not just the mitigation
evidence [Sheppard] could have presented, but also the . . . evidence that almost certainly
would have come in with it.” Wong v. Belmontes, 558 U.S. 15, 20 (2009).
The Supreme Court has explained, in any event, that when a state court has
adjudicated a claim of ineffective assistance of counsel on the merits, the petitioner bears an
especially heavy burden.
Establishing that a state court's application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both “highly deferential,” [Strickland, 466 U.S.] at 689, 104
S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S. Ct. 2059, 138 L.
Ed. 2d 481 (1997), and when the two apply in tandem, review is “doubly” so,
Knowles [v. Mirzayance], 556 U.S., at 123, 129 S. Ct. [1411], at 1420. The
Strickland standard is a general one, so the range of reasonable applications is
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

10

substantial. 556 U.S., at 123, 129 S. Ct., at 1420. Federal habeas courts must
guard against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential
standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011). As the Fifth Circuit has explained:
That a federal habeas court would reach a different conclusion is not enough,
standing alone, to merit relief under AEDPA's high standard. See [Williams v.
Taylor, 529 U.S. 362,] 411, 120 S. Ct. 1495 [(2000)]. As the Supreme Court
recently reiterated, “even a strong case for relief does not mean the state court's
contrary conclusion was unreasonable.” Richter, [562 U.S. at 102].
Trottie v. Stephens, 720 F.3d 231, 240–41 (5th Cir. 2013). If the Court finds that counsel
rendered deficient performance, the cumulative effect of any deficiencies may be sufficient
to satisfy Strickland’s prejudice prong, even if no particular instance of deficient performance
is enough, by itself, to constitute Strickland prejudice. See, e.g., Moore v. Johnson, 194 F3d
586, 619 (5th Cir. 1999).
1.

Punishment Phase

Sheppard argues that trial counsel failed to investigate and to present adequate
evidence on both the future dangerousness and the mitigation special issues.5 The Court has
considered all Sheppard’s contentions in connection with whether counsel’s performance was
deficient and whether any deficiencies caused prejudice in connection with each special
issue. Sheppard’s arguments on each special issue overlap substantially. The Court therefore
focuses on arguments regarding mitigation first and addresses future dangerousness
thereafter.
a.

5

Mitigation Special Issue

The Texas capital sentencing scheme at the time of Sheppard’s trial first required a
jury to first answer two special issues: (1) whether the defendant posed a future
danger to society; and (2) whether she actually caused, or intended to cause, or
intended for another to cause, the death of the victim. SHCR at 1432-33. Only after
answering these two questions in the affirmative did the jury proceed to the mitigation
special issue. That special issue asks whether there is sufficient mitigating evidence
to warrant a life sentence rather than a death sentence.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

11

I.

Performance Prong

Sheppard first argues that counsel rendered ineffective assistance under Strickland by
failing to investigate and develop meaningful mitigation evidence and, accordingly, failing
to make an adequate mitigation presentation to the jury. The Court concludes that it is a
close question whether the TCCA was unreasonable in finding that counsel was not deficient
and that there was no prejudice to Sheppard, but concludes that Sheppard has not met her
heavy burden under the AEDPA.
Overview. Sheppard acknowledges that counsel retained an investigator, but contends
that neither lead nor the other counsel followed up on useful information the investigator
discovered. E.g., Am. Pet. at 50. Sheppard asserts, with virtually uncontested evidentiary
support, that her trial counsel was aware before trial that: she was physically and verbally
threatened by Dickerson on the day of the murder; she had been sexually abused as a child,
and that her mother did not believe her allegations of sexual abuse; she was physically
abused by Bryant, the father of her third child; and she had a family history of depression,
among other difficulties she faced. She complains that counsel was grossly ineffective
because they failed to develop available evidence concerning the implications of her
substantial childhood difficulties. Had counsel followed up with interviews of many family
members, people with knowledge of her stays at the women’s shelters, and experts to
evaluate her to assess the impact of these experiences, these witnesses could have educated
the jury about the effect of these numerous negative experiences on her, and thus enabled the
jury to evaluate them for mitigation.
As Sheppard acknowledges, some information about these issues was presented
through the expert report and testimony of Dr. Priscilla Ray, a psychiatrist. She argues,
however, that the testimony was far too limited, in part because Dr. Ray’s assignment from
trial counsel Brown was merely to focus on competency and sanity, and to determine whether
she was likely to be influenced by men who were in a position to abuse her, see Pet. Resp.,
at 76 et seq., an unreasonably narrow assignment under the circumstances of this case.
Sheppard contends that she and Dr. Ray talked for only two hours, and Dr. Ray’s report was
a mere five pages. Further, the report presented matters in “skeletal fashion.”
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

12

Sheppard argues that counsel should have called as witnesses Sheppard herself, her
mother, and/or her brother to present more detailed testimony on these matters. Lead trial
counsel Brown also admitted at the state habeas hearing that he did not ask Dr. Ray or
Sheppard’s grandmother, Annie Smith, about Sheppard’s history of abuse, pregnancies and
abortions, or any personal or family history of mental illness. 2 WH at 160-62.
Sheppard further contends that counsel should have, but did not, retain a mitigation
expert, a social worker, a neurologist, a neuropsychologist, and experts on child abuse,
spousal abuse, trauma, and post-traumatic stress disorder (“PTSD”). She complains, as
noted, that Brown failed to give the one expert he had retained, psychiatrist Dr. Ray,
sufficiently broad instructions to enable her to address subjects pertinent to mitigation (and
future dangerousness). See Pet. Resp., at 76-82. Sheppard now presents expert opinion
evidence that, had Dr. Ray or other experts been retained prior to trial, they would have been
able to testify to the jury that she has below average intelligence, which results in faulty
social judgment and a compromised ability to exercise judgment in demanding, novel, or
unclear situations. Sheppard also exhibits symptoms of organic brain dysfunction. Am. Pet.,
App. 25. She also presents expert opinion evidence that she suffers from PTSD, major
depression, and dissociative disorder as a result of repeated instances of physical, emotional,
and sexual abuse, Am. Pet., App. 26, and poses a low risk of committing future acts of
violence, Am. Pet., App. 6.
Sheppard’s arguments amount to a weighty failure to investigate claim. “[S]trategic
choices made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.” Wiggins v.
Smith, 539 U.S. 510, 521 (2003) (internal quotation marks and alteration omitted) (quoting
Strickland, 466 U.S. at 690-91). When assessing the reasonableness of an attorney’s
investigation, a court must “consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a reasonable attorney to investigate
further.” Id. at 527. To establish that an attorney was ineffective for failure to investigate,
a petitioner must allege with specificity what the investigation would have revealed and how
it would have changed the outcome of the trial. See United States v. Green, 882 F.2d 999,
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

13

1003 (5th Cir. 1989).
State Habeas Ruling on Ineffective Assistance of Counsel on Mitigation Issue. The
state habeas trial court recommended granting relief on Sheppard’s claim that counsel failed
to investigate and develop mitigating evidence to present at the penalty phase, Id. at 1338.
That court, while concluding that Brown provided effective counsel during the guiltinnocence phase, found that
trial counsel provided ineffective assistance at the punishment phase of
[Sheppard]’s trial in failing to present or fully develop evidence regarding
[Sheppard]’s background and failing to present testimony expert or otherwise
that would allow the jury to understand the implications of [Sheppard]’s
background including physical abuse, sexual abuse or domestic violence for
consideration in determining the answer to the special issues. The Court finds
that this failure resulted in a violation of [Sheppard]’s constitutional rights.
5 SHCR at 1337-38.
The TCCA disagreed and denied relief. Ex Parte Sheppard, 2013 WL 5568434 at *1.
The TCCA held that counsel presented several witnesses who testified about Sheppard’s
background and presented records from the Matagorda Women’s Crisis Center and Covenant
House. The Court noted that defense counsel also presented Dr. Ray’s testimony and expert
report. Therefore, the TCCA held, the evidence Sheppard faults counsel for not presenting
was cumulative of the evidence that was presented. Id. at **1-2. As explained hereafter, this
Court disagrees with the TCCA’s conclusion. However, under applicable Fifth Circuit
authority, the Court concludes the Fifth Circuit would not find the TCCA was unreasonable.
Bar Association Guidelines. Sheppard cites numerous authorities and materials to
argue that counsel had a well-established duty to investigate her life and mental health
history, and develop and present mitigation evidence. See Am. Pet. at 28-49 (citing ABA and
Texas State Guidelines, as well as CLE materials issued before Sheppard’s trial, and other
authorities discussing relevant standards). She contends that counsel’s investigation did not
comply with the relevant American Bar Association Guidelines, or the 1994 State Bar of
Texas Guidelines for capital case representation. This is true. However, the Fifth Circuit has
taken the position in an unpublished ruling that the ABA Guidelines are not controlling.
The ABA Guidelines do not control our assessment. The Supreme Court has
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

14

explained that “the Federal Constitution imposes one general requirement:
that counsel make objectively reasonable choices.” Bobby v. Van Hook, 130
S. Ct. 13, 17 (2009) (quotation marks and citation omitted). “The question is
whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or
most common custom.” Premo v. Moore, 131 S. Ct. 733, 740 (2011) (quoting
Strickland, 466 U.S. at 690). We look for guidance about the norms in the
relevant state as they existed at the time of the trial. See Wiggins v. Smith, 539
U.S. 510, 524 (2003). . . . The Guidelines are helpful only if they “reflect
prevailing norms of practice.” Van Hook, 130 S. Ct. at 17 n.1 (quotation marks
and citation omitted). The Guidelines also “must not be so detailed that they
would interfere with the constitutionally protected independence of counsel
and restrict the wide latitude counsel must have in making tactical decisions.”
Id. (quotation marks and citation omitted). Whether a counsel’s decisions are
legitimate will depend on the circumstances. Id. at 16.
Ayestas v. Thaler, 462 F. App’x 474, 479 (5th Cir. 2012), vacated on other grds., 133 S. Ct.
2764 (2013). It is assumed that the same conclusion would apply to the 1994 State Bar of
Texas Guidelines. This is an issue for further appellate consideration.
During postconviction proceedings, Sheppard presented important evidence from
witnesses who observed her suffer abuse at the hands of her mother and her boyfriend,
people who knew Sheppard as a youth and could testify to her character, background, and
difficult life circumstances. Sheppard identifies numerous such witnesses who could have
testified on her behalf during the punishment phase, but who were never called. See, e.g.,
Pet. Resp. at 32-33.
Analysis of Trial Counsel’s Performance. Based on the habeas and trial records, it
appears that Brown engaged in not insubstantial preparation for Sheppard’s trial, but failed
to do all that was appropriate. The TCCA rejected the state habeas court’s recommendation
to grant Sheppard’s ineffective assistance of counsel claim in investigating and presenting
evidence in mitigation at the punishment phase. Ex Parte Sheppard, 2013 WL 5568434 at
**1-2. The TCCA’s conclusions are highly questionable in light of the trial and habeas
records presented.
The state habeas record established that the state trial court held a live hearing at
which Brown testified. He explained that, at the time of Sheppard’s trial, he had about 13
years experience as a criminal lawyer after graduation from Texas Southern University Law
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

15

School. Charles Brown Affidavit, Am. Pet., App. 1, ¶ 2. He perceived the case to be a “high
profile one in which the prosecution and court were under an extraordinarily [sic] level of
pressure to obtain a conviction and death sentence.” Id., ¶ 11.6 While he had tried one
capital murder case before Sheppard’s, he did so as second chair. Id., ¶ 8. He testified at
the state habeas hearing that he had tried between 10 and 20 murder cases, and “a lot” of first
degree felony cases. 2 WH at 94-96.
At Brown’s request, the trial court appointed two other attorneys to assist him with
Sheppard’s defense. Id. at 29-30. Brown, however, states he was dissatisfied with the
second-chair attorney, Hazel Bolden, an eight year attorney, as too inexperienced to be of
value and gave her little to do. See Brown Aff., ¶¶ 14-15, 17, 40-42; see Hazel Bolden
Affidavit, Am. Pet., App. 2; 2 WH at 199-205. The third attorney appointed by the trial court
was appointed 17 months after Brown, days after jury selection had begun and “did not begin
participating in the defense until the day that trial began.” Brown Aff., ¶¶ 5, 15. Thus, there
was uncontradicted evidence before the state habeas court that all the attorneys were
inexperienced in capital defense and largely if not totally unprepared on many matters.
Neither Bolden nor Woldy met with the investigator appointed by the court or any witnesses
for Sheppard. Id., ¶ 17; Bolden Aff., ¶¶ 7-40.7 Bolden states she was not aware of the
Dickerson trial and did not attend it, did not interview any witnesses or potential witnesses,
and was not aware of Brown doing so. Bolden Aff., ¶¶ 38. There is no evidence Brown
gave these attorneys assignments to assist or work with the investigator. Brown essentially
functioned as solo counsel for Sheppard in her capital trial.
Regarding Brown’s investigation and preparation for trial, Brown met with Sheppard
15 or 20 times before the trial began. 2 WH at 48. He spoke to Sheppard’s mother and

6

Brown attested that he understood that “the victim of the crime ... was very involved
in local politics and that four members of the Harris County District Court bench
attended her funeral.” Brown Aff., Am. Pet., App. 1, ¶ 11.

7

Bolden stated that she had been “advised by a veteran criminal defense attorney not
to take any action or do anything in the case without the lead attorney’s direction
because of the risk that doing so could compromise the case.” Bolden Aff., ¶ 6.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

16

grandmother, to Bryant, and to a counselor at Covenant House. He also reviewed the 15page report of interviews conducted by his investigator. Brown Aff., ¶ 16; 2 SHCR at 51213. However, Brown did not interview any of the potential witnesses identified by his client
or the investigator before the trial. Brown Aff., ¶¶ 19-39. He states he reviewed the state’s
file and attended Dickerson’s capital murder trial, which was held before Sheppard’s. 2 WH
at 101-104. He also spoke to Dickerson’s attorneys. 2 WH at 104.
During the state habeas proceedings, Brown gave some explanation for various trial
decisions. He testified that he was aware of Sheppard’s claim that Dickerson coerced her
into participating in the robbery-murder, but also explained that he was aware of facts
undermining this assertion. He noted that Sheppard did not mention duress to the police, that
she went swimming with Dickerson at the motel after the murder, and that she spoke to
Bryant outside of Dickerson’s presence at the motel. Id. at 136-39. He also testified that he
was aware of other issues mentioned in Dr. Ray’s report. Id. at 44-45, 56-59.
Brown testified that, based on his personal observation, he did not believe that
Sheppard’s brother Jonathan wanted to help her at the time of the trial. Id. at 101-02. He did
not mention why he reached this conclusion. See Affidavit of Jonathan Sheppard, Am. Pet.,
App. 16.
Brown noted that Sheppard’s mother spoke to the media frequently and he was
concerned that he would not be able to control her if she testified. Id. at 121. Brown
subpoenaed Bryant, but Bryant did not want to testify after being told he could face criminal
liability and should seek advice of counsel.8 He stated that other potential witnesses refused
to talk to the defense team. Id. at 116-25.9

8

Sheppard also alleges that the prosecutor engaged in misconduct by threatening
Bryant (although not in front of the jury) to prevent him from testifying. This claim
is addressed infra. Brown did not report this to the trial court. Brown Aff., ¶ 52.

9

These potential witnesses included Paula Allen, a witness to the extraneous drive-by
shooting, Waylon Griggs, the target of the drive-by shooting, Korey Jordan, who was
in the apartment when Dickerson and Sheppard hatched their plan to commit a
robbery, and Lawrence P. Gwin, an attorney who was counsel for Dickerson in his
(continued...)

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

17

Brown, in his affidavit executed in 1998, acknowledged errors in his trial strategy,
such as not calling Sheppard to testify (in the guilt and punishment phases of the trial) to
establish her state of mind concerning Dickerson’s threats, and not calling other witnesses
including her grandmother, Annie Smith, Sherry Brown, and Maybeline Fisher, if not Jerry
Bryant, Jr., counselors of Covenant House and the Matagorda Women’s Crisis Center, and
experts witnesses to elaborate on the impact of child and spousal abuse. Brown Aff., ¶¶ 53,
54.
The state habeas court found that Brown consulted with Sheppard, reviewed the
prosecution file, reviewed Sheppard’s extraneous offenses, consulted with Dr. Ray to
develop mitigation evidence, investigated potential defensive theories including duress,
interviewed potential witnesses, obtained relevant records, observed Dickerson’s trial, and
consulted with Dickerson’s counsel. SHCR at 1336-37. The state habeas trial court found
that Brown’s strategy was to portray Dickerson as the main actor and to seek mercy for
Sheppard based on her gender and background. Id. at 1337. While the state court found that
Brown had a coherent strategy, it did not address why Brown did not go further to find
witnesses to support the defense and why he did not utilize his co-counsel, Bolden, to work
with their investigator to meet with and obtain some potential additional witnesses for
mitigation at trial.
As noted, Sheppard relies on criticisms lodged by second chair counsel Hazel
Bolden’s affidavit and testimony that she thought Brown did a poor job representing
Sheppard. 2 WH at 220-26; Am. Pet., App. 2. The state habeas court acknowledged this
affidavit, but found co-counsel Bolden’s criticisms unpersuasive because they were based
on “a hindsight evaluation of trial counsel’s representation . . . ,” and because Bolden never
informed the trial court of any concerns over Brown’s representation. SHCR at 1335-36.10

9

(...continued)
capital murder trial.

10

The state court did not credit Brown’s affidavit, which acknowledged deficiencies in
investigation of potential evidence and presentation of mitigation witnesses. The state
(continued...)

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

18

During the punishment phase, Brown presented evidence to the jury through Dr. Ray
and four lay witnesses: Patricia Birdwell, who authenticated records from the Matagorda
County Women’s Center, explained the Center’s services, and testified that Sheppard was
admitted to the Center, 26 Tr. at 31-34; Ronda Robinson of Covenant House, who
authenticated documents, explained Covenant House’s services, and testified that Sheppard
was admitted to Covenant House, id. at 35-37; Patrice Green, who testified that she knew
Sheppard since Sheppard was a baby, and that Sheppard worked for Green’s husband, id. at
70-7411; and Annie L. Smith, Sheppard’s grandmother, who testified that Sheppard lived with
her for much of Sheppard’s life, and that Sheppard was abused by Jerry Bryant, Jr., id. at 7578. These witnesses presented the basic mitigating facts concerning Sheppard’s life, namely,
that Sheppard was the product of a broken marriage, had little contact with her father, and
was largely raised by her grandmother. These witnesses mentioned also that Sheppard’s
mother was not supportive and did not believe her allegations of childhood sexual abuse, and
that Sheppard ran away from home as a teenager and sought shelter at Covenant House. The
jury learned that Sheppard later was in an abusive relationship with Bryant, the father of one
of her children, and that she sought assistance from a Crisis Center for abused women. The
jury knew that she had three children with three different men. They knew that she dropped
out of school but eventually earned a GED, and held several jobs.
Brown presented some evidence through Dr. Ray that Sheppard suffered from
depression, and had a family history of depression. Id. at 42. The defense presented her
theory that Dickerson committed the murder, and that Dickerson threatened to harm
Sheppard and her baby if she did not participate. There was no evidence that Sheppard was
violent while in pretrial detention, and Dr. Ray stated that Sheppard was statistically unlikely
to be violent if sentenced to life imprisonment. See id. at 43-46.

10

(...continued)
habeas court instead stated it relied on Brown’s live testimony, which that court found
credible and more probative.

11

Counsel attempted to introduce evidence of Sheppard’s reputation through Green, but
was unable to formulate unobjectionable questions.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

19

Sheppard contends that counsel could have presented much more first-hand available,
detailed, descriptive evidence of her life history, see, e.g., Am. Pet., at 29-32, which
cumulatively was severely deficient performance (and also, especially considered
cumulatively, establish Strickland prejudice, see pgs. 25-26, infra). Sheppard argues, for
example, that Brown failed to interview her or her grandmother about her social history, see
id. at 30, 32. She points out there was first-hand testimony of her childhood sexual and other
physical abuse, her strained relationship with her mother and her largely absent father, her
mother’s abusive partners, her unstable childhood living arrangements, her pregnancies and
abusive relationships, and other relevant facets of her life. Id. at 30-32, and Appendices,
passim. Sheppard urges that counsel should have called as witnesses, at a minimum,
Sheppard herself, her mother, her grandmother, and her brother, Jonathan. She relies
primarily on her own affidavit, and affidavits by her mother and grandmother, for these
points. See Am. Pet., Apps. 8, 9, 14.12
Respondent identifies strategic reasons for defense counsel’s decision not to call these
family witnesses. Defense counsel was concerned about his ability to control Sheppard’s
mother while testifying, in light of her comments to the media. The trial judge also had
admonished Sheppard’s mother to stop harassing witnesses. 22 Tr. at 5-7.
Defense counsel testified at the hearing that he made a strategic decision not to call
Sheppard’s brother, Jonathan, based on his observation of Jonathan during Dickerson’s trial.
There was no explanation, however, whether Brown considered whether Jonathan’s
testimony at the Dickerson trial were entirely different from those to be covered at the
punishment phase of Sheppard’s trial, such as matters regarding Sheppard’s childhood.

12

Sheppard’s grandmother, Annie Smith, testified, but was asked only briefly about the
fact that she largely raised Sheppard. She testified that Sheppard lived with her
because Sheppard’s parents separated and her mother had to work, but made no
mention of the tension and abuse between Sheppard and her mother. See 22 Tr. at 7578. However, as discussed elsewhere in this memorandum, counsel had valid reasons
not to call Sheppard’s mother, the perpetrator of much of the childhood abuse and
rejection, as a witness. Further, the state habeas court found that Sheppard made her
own decision not to testify.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

20

Respondent contends that defense counsel’s choice not to call Sheppard at the
punishment phase was understandable because she personally faced potentially damaging
cross-examination if she testified. The state court found this persuasive, although it is
entirely unclear what testimony or evidence Brown or the state habeas court or TCCA
thought would be elicited that the prosecution did not already intend to use against her.
Furthermore, there is no explanation why Brown did not interview Sheppard’s
grandmother, Annie Smith, in great detail. She was called to testify at trial but gave
superficial testimony on Sheppard’s childhood and other experiences.
In sum, because defense counsel articulated strategic, albeit superficial, reasons for
not calling the family witnesses now identified by Sheppard, the TCCA’s ruling that these
decisions did not amount to deficient performance under Strickland has some foundation.
Thus, under Fifth Circuit precedent, the conclusion is not sufficiently incorrect to be deemed
legally unreasonable.
Sheppard argues also that counsel should have called as witnesses Aaron Green, a
Justice of the Peace for Matagorda County, who was Sheppard’s former employer and knew
Sheppard’s grandmother and Bryant. Sheppard contends that he could have testified to
Sheppard’s temperament and work ethic, to her susceptibility to being manipulated, and to
Bryant’s abusive personality and evidence that he abused Sheppard. Aaron Green Affidavit,
Am. Pet., App. 18. Sheppard also argues that Kelly Garcia, a fellow inmate at the Harris
County jail, could have testified that Sheppard participated in Bible study and was religious,
and that she was concerned for her family. Garcia asserts that Sheppard claimed she was
coerced into participating in the murder, and was remorseful. Am. Pet., App. 13. Emma
Brooks, a family friend, could also have testified to Sheppard’s faith and peaceful nature,
Am. Pet, App. 19, as could have Tangela Price-Sells, a cousin of Sheppard’s half-brother,
Am. Pet., App. 20, and Lloyd Jackson, a deacon at Mother Zion Missionary Baptist Church
in Bay City, Am. Pet., App. 21. Other potential witnesses include a Harris County jail
chaplain, Am. Pet, App. 10, representatives of from Covenant House and the Matagorda
County Women’s Crisis Center, Am. Pet, App. 12, Bryant’s ex-mother-in-law, Am. Pet,
App. 17, and the Director of a Women’s Crisis Center (who could have testified concerning
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

21

Sheppard’s history of abuse), Am. Pet, App. 11. Sheppard contends that her brother,
Jonathan, would have aided presentation of the mitigation evidence because he could have
testified to physical and sexual abuse that he and Sheppard suffered as children, that their
mother did not believe their claims of abuse by a babysitter, and to the emotional deprivation
and turmoil they experienced due to their unstable family life. See Am. Pet, App. 16. Finally,
Sheppard urges that Brown should have called Tommi Eanes, a longtime romantic partner
of Sheppard’s mother, who could have testified to Sheppard’s difficult relationship with her
mother, including verbal abuse, corporal punishment, and verbal threats of harm. She also
could have testified to Sheppard’s non-violent nature. Am. Pet, App. 23. Brown testified
at the state writ hearing that he did not know who Aaron Green, Emma Brooks, Tangela
Price-Sells, Lloyd Jackson, or Isabel Rodriguez (Jerry Bryant, Jr.’s ex-mother in law) were,
nor did he attempt to interview any of them. 2 WH at 62-63; see Brown Aff., ¶¶ 19-39 . The
state habeas trial court found that Brown’s failure to develop and present mitigating evidence
was deficient. SHCR at 1348.
Sheppard also complains that counsel was ineffective for failing to call additional
experts. While implicitly acknowledging that Dr. Ray’s report contained information
concerning her life history, Sheppard contends that Dr. Ray’s evaluation was cursory. There
is no dispute that Brown asked Dr. Ray only to evaluate Sheppard for sanity, competency to
stand trial, and susceptibility to being influenced by men who were in a position to abuse her.
Dr. Ray was not asked to offer a psychiatric diagnosis, particularly whether Sheppard suffers
from PTSD. Sheppard contends that the limited scope of Dr. Ray’s evaluation was
unjustified. Sheppard also argues that additional expert testimony likely would have
bolstered her case that she was susceptible to coercion or duress, and therefore less culpable.
She elaborates that, even if there was a strategic reason not to rely on a duress defense in the
guilt-innocence phase,13 there was no reason at the punishment phase not to emphasize her
emotional weaknesses and the effects of her especially difficult childhood in the mitigation
13

Brown explained that there was significant evidence to counter Sheppard’s assertions,
and he was concerned that this defense would alienate the jury at the guilt-innocence
phase.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

22

context. She also contends that the experts would have supported other aspects of her
mitigation arguments.
Specifically, Sheppard submits an extensive analysis by Dr. Mark Cunningham. Dr.
Cunningham concludes that various factors in Sheppard’s life “could have been of significant
mitigating impact to the jury” and support a conclusion that Sheppard would not be a future
danger. Cunningham Report, Am. Pet., App. 6, passim. These include her early life
instability, observed domestic violence, sexual and physical abuse suffered as a child,
learning disability, her attention deficit disorder, her sexual victimization by older males, her
teenage pregnancies, PTSD, and the impact of her execution on her own children. Id. He
further opines that the time spent by Dr. Ray interviewing and evaluating Sheppard was
grossly inadequate for the purpose of assessing mitigation factors (or future dangerousness
factors), and her testimony and report did not contain actuarial or group statistical evidence
tending to show that Sheppard presents a low risk for future violence. Id.
Sheppard also submits a robust declaration by Dr. Myla Young, a clinical psychologist
specializing in neuropsychology. Dr. Young states that Sheppard’s intellectual functioning
is in the low average range, which makes her vulnerable to emotional dependency. People
in this range “often assume a passive role in interpersonal relationships . . .” and are easily
swayed. Dr. Young also concluded that Sheppard suffers from brain dysfunction which
impairs her judgment and decision-making ability, and makes her vulnerable to influence by
others. Am. Pet., App. 25.
Sheppard submits an affidavit by Dr. Rebekah Bradley, an Assistant Professor of
Psychiatry and Behavior Science at Emory University and the director of a Veteran's
Administration, multi-disciplinary, outpatient, PTSD team for veterans. She evaluated
Sheppard and concluded that Sheppard suffers from major depression, PTSD, and
dissociative order. These are effects of childhood and adolescent trauma suffered by
Sheppard, including her own sexual abuse, and witnessing violence between her parents.
Sheppard’s psychological conditions make it difficult for her to form relationships, and make
her likely to acquiesce or cooperate rather than fighting back. Am. Pet., App. 26.
The state habeas trial court found that Brown’s failure to present this expert testimony
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

23

constituted deficient performance, SHCR at 1348, but the TCCA rejected this finding and
conclusion. Sheppard’s assertion that Dickerson had threatened her and her baby was before
the jury. The TCCA found that introducing additional expert psychological evidence was
cumulative. Ex Parte Sheppard, No. WR-78.132-01 (Tex. Crim. App. Oct. 9, 2013), slip op.
at 5. The TCCA’s analysis suffers from two weaknesses. First, as raised by Dr. Ray in
passing, once guilt was determined, Sheppard would be imprisoned for 35 years and away
from male dominating influences. More importantly, as Sheppard argues, the jury must
decide the mitigation question independent of the future dangerousness (as well as the second
special issue). While the mitigating evidence might have some relevance to the first two
special issues, the mitigation special issue stands independent of the other two, and the jury
could find that the mitigating evidence justifies a life sentence, notwithstanding the answers
to the other two special issues.14

This Court finds that trial counsel Brown rendered deficient performance in
investigating and presenting evidence on mitigation on behalf of Sheppard because
of, collectively, gross inadequacies of his own factual mitigation investigation, such
as his failure to interview key witnesses (including Sheppard, her grandmother, and
brother), his failure to follow up with other potential witnesses uncovered by his
investigator and to more assertively pursue potential mitigation witnesses, his failure
to utilize appointed co-counsel for these purposes, and his failure to adequately frame

14

Sheppard also argues that better development of her background and psychological
evidence would have provided her with a better response to the extraneous offense
evidence by strengthening her claim that she was pressured or manipulated into
participating.
It is noted that many Fifth Circuit cases deem evidence of this nature to be “doubleedged” because it permits the argument that Sheppard’s susceptibility to manipulation
or coercion suggests that she could be manipulated or coerced into committing
violence in the future. However, Dr. Ray’s testimony, which was crucial to the
limited defense at the punishment phase, already opened this avenue of argument.
Defense counsel, having raised the issue, had a duty to present convincing evidence
in support of the theory, not merely superficial proof.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

24

the scope of work for psychiatrist Dr. Ray or retain other necessary experts to assess
Sheppard. This Court recognizes it is not permitted to second-guess trial counsel’s reasoned
strategic trial decisions. The Court questions, however, whether Brown’s decisions were
based on informed reasoning, given his flagrant lack of investigation and personal
involvement in or follow up on his investigator’s work. Indeed, to his credit, Brown
acknowledges these matters in his affidavit submitted to the state habeas court. See Am. Pet.,
App. 2. Nevertheless, given the extreme deference due to the state court findings and
conclusions, this Court is not permitted to find unreasonable the TCCA’s conclusion that this
evidence was cumulative, see, e.g., Coble v. Quarterman, 496 F.3d 430, 437 (5th Cir. 2007);
Parr v. Quarterman, 472 F.3d 245, 257-58 (5th Cir. 2006); Neal v. Puckett, 286 F.3d 230,
243 (5th Cir. 2002); Rodriguez v. Quarterman, 204 F. App'x 489, 501 (5th Cir. 2006), and
there was therefore a valid reason for trial counsel not to emphasize this evidence.
ii.

Prejudice Prong

Sheppard submits numerous affidavits expanding upon the facts noted above. In
assessing prejudice in a sentencing hearing, “the question is whether there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the balance
of aggravating and mitigating circumstances did not warrant death.” Strickland, 465 U.S.
at 695. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. To satisfy the Strickland prejudice prong, Sheppard must show that
the “mitigating evidence, taken as a whole, ‘might well have influenced the jury's appraisal’
of [Sheppard's] culpability,” Wiggins v. Smith, 539 U.S., at 538 (quoting Williams v. Taylor,
529 U.S. 362, 398 (2000)). The jury’s appraisal is so influenced if it is reasonably probable
that the new mitigating evidence “would have affected the sentencing decision of at least one
juror.” Lewis v. Dretke, 355 F.3d 364, 369 (5th Cir. 2003).
It is clear that presentation of such fact and expert evidence at trial through live
witnesses—those with personal knowledge and one or more experts with educated,
professional explanations—would have provided more detail, nuance, and understanding for
the jury about, not only the hardships Sheppard suffered as a child and young adult, but their
effect on her. This testimony could have provided important mitigating information.
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

25

However, the jury would have had to consider the entire factual picture, which included
evidence presented by the State that Sheppard participated in a brutal robbery-murder. There
was evidence that Sheppard had assisted in planning aspects of the crime. There also was
evidence that Sheppard had engaged in prior crimes of violence, including possibly a driveby shooting and carjackings. While this Court finds that it may well be that the additional
evidence would have affected the sentencing decision of at least one juror, the TCCA’s
contrary conclusion must be considered under the stringent and deferential standards allowed
in federal review. Sheppard does not meet her heavy burden to show the TCCA was
unreasonable in finding that there was not a reasonable probability that such presentations
would have changed the outcome” of the punishment phase. See, e.g., Carson v. Collins, 993
F.2d 461, 466 (5th Cir. 1993).
b.

Future Dangerousness Special Issue

Sheppard also contends that counsel failed to present “any coherent theory to support
a negative answer” on the question whether there was a probability that she would commit
future acts of criminal violence constituting a threat to society. Am. Pet. at 55. The Court
considers Sheppard’s arguments on the mitigation issue here as well. Sheppard focuses on
the absence of fact witnesses and expert testimony pertaining to the future dangerousness
issue.
Sheppard argues specifically that counsel failed to present evidence of duress, and
failed to call Bryant to testify about Sheppard’s social history and the unadjudicated drive-by
shooting. Sheppard submits no affidavits of Bryant or other witnesses who could have
testified to facts supporting a duress defense. She further contends that counsel should have
moved for a mistrial based on the prosecutor’s statement to Bryant’s counsel that Bryant
faced possible criminal charges if he testified, and that counsel failed to adequately crossexamine the State’s witnesses or present evidence to counter evidence of the extraneous
drive-by shooting. Sheppard also points to counsel’s failure to call numerous witnesses
(described above) who, she contends, could have testified about her background, including
her church attendance and good temperament and nature, failure to elicit such testimony from
those he did call, failure to present evidence from the Matagorda County Women’s Shelter
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

26

and Covenant House, and failure to present an adequate life history during the penalty phase.
Sheppard urges also that counsel failed to present any evidence on future
dangerousness other than superficial, limited points in Dr. Ray’s report and brief live
testimony.15 Sheppard also contends that counsel failed to provide expert proof to emphasize
the low statistical likelihood that Sheppard would be violent if sentenced to life
imprisonment.
In response to these contentions and evidence, the state habeas court found that
defense counsel cross-examined the State’s witnesses to discredit the State’s contention that
Sheppard participated in other carjackings. 5 SHCR at 1342. The state habeas court also
found that Dr. Ray testified to Sheppard’s remorse over the murder, and testified that the
chance of Sheppard committing future acts of violence posing a continuing threat to society
was less than fifty percent. Dr. Ray further testified that Sheppard was even less likely to be
a threat when in a situation, such as prison, in which a man would be unable to abuse or
manipulate her. Id. Dr. Ray’s report also noted that Sheppard acted under threats from
Dickerson. Id.
Regarding Sheppard’s contention that counsel failed to rebut the evidence of her
participation in the drive-by shooting, the state habeas court found that her attorney from the
drive-by shooting case was, contrary to her current assertion, unavailable to testify and
refused to speak to Sheppard’s counsel on several occasions. 2 WH at 119; 5 SHCR at 128889. The court further found that Sheppard’s trial counsel cross-examined Paula Allen, the
State’s witness on this issue, and impeached her with her prior inconsistent statements and
bias against Sheppard. 5 SHCR at 1353-54. The state habeas court also found unavailing
Sheppard’s claim that counsel should have called Bryant and Vincent Perry (the man Paula
Allen claimed to have been with on the night of the shooting) to testify about the drive-by
15

As discussed in more detail, supra, Dr. Ray reported that Sheppard suffered from
depression, which was only partially treated, and that she seemed remorseful for the
murder. Dr. Ray opined that Sheppard was unlikely to engage in future acts of
violence. Dr. Ray noted Sheppard’s unstable family history, her history or
pregnancies and sexual abuse, and her claim that she participated in the Meagher
robbery-murder under duress. See 26 Tr. at 41-46, 60-61; DX 4-B.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

27

shooting, because her assertions about their possible testimony were speculative, presumably
because she presented no affidavits from these witnesses. Id. at 1355, 1369.
The Fifth Circuit has held that “complaints based upon uncalled witnesses [are] not
favored because the presentation of witness testimony is essentially strategy and thus within
the trial counsel's domain, and . . . speculations as to what these witnesses would have
testified is too uncertain.” Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (citing
United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251
(1984)). “In order for the appellant to demonstrate the requisite Strickland prejudice, the
appellant must show not only that this testimony would have been favorable, but also that the
witness would have testified at trial.” Id.
The state habeas court in this respect was not unreasonable, as defined by the Fifth
Circuit, in concluding that the evidence cited by Sheppard was cumulative of evidence
presented. See. e.g., Coble, 496 F.3d at 436 (“[T]hese witnesses would have presented
testimony already provided by other witnesses. Counsel's decision not to present cumulative
testimony does not constitute ineffective assistance.”). In addition to the evidence cited by
the state habeas court, the record reflects that Sheppard presented some evidence of her
history of abuse, including testimony by her grandmother that Bryant abused her. In fact,
this testimony was conclusory, but the basic facts and Sheppard’s personal history were
presented to the jury. Further, also as noted by the state habeas court, Dr. Ray presented her
conclusion that Sheppard had an abusive past and a history of abusive relationships with
men, was easily manipulated, and was remorseful.
And, trial counsel articulated some valid reasons not to call certain specific witnesses now
identified by Sheppard, such as Sheppard’s mother and Bryant, as discussed above. Last,
there is an argument that the evidence Sheppard argues should have been presented is
somewhat cumulative of the evidence presented through Dr. Ray.16

16

Brown called four lay witnesses who testified concerning Sheppard’s stays at the
Crisis Center and Covenant House, 26 Tr. at 31-38, and about her church attendance,
employment history, children, her parents’ divorce, and her abuse at the hands of
(continued...)

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

28

The state court’s finding that trial counsel was aware of the information now cited by
Sheppard may be questionable, see, e.g., 2 WH at 62-65, but that court’s finding that counsel
made strategic choices regarding presentation of evidence, see 5 SHCR at 1269-72, is a
credibility determination with some support in the record and thus is not unreasonable, as
defined by binding appellate authority. See, e.g., Turner v. Epps, 412 F. Appx. 696 (5th Cir.
2011) (counsel is not deficient for failing to introduce cumulative mitigating evidence). This
Court is not at liberty to second-guess that reasonableness conclusion. See Renico v. Lett,
559 U.S. 766, 779 (2010) (“AEDPA prevents defendants—and federal courts—from using
federal habeas corpus review as a vehicle to second-guess the decisions of state courts”).
Accordingly, Sheppard does not meet her heavy burden to show the TCCA was unreasonable
in finding that there was not a reasonable probability that the evidence Sheppard contends
should have been presented on future dangerousness and duress “would have changed the
outcome” of the punishment phase.
c.

Failure to Object to Instruction on Law of Parties

In discussing the case with prospective jurors, the trial judge gave an example of a
bank robbery, stating that both the actual robber and the driver of the getaway car would be
guilty of robbery. See, e.g., 4 Tr. at 11-13. This statement is a correct statement of Texas’
law of parties. See TEX. PENAL CODE § 7.01. The trial judge, however, also stated that not
only would the robber and driver both be guilty of robbery, but that each should receive the
same punishment. See Sheppard, slip op. at 2, n.2. This is an incorrect statement of the law.
See, e.g., Enmund v. Florida, 458 U.S. 782, 797 (1982) (holding that the Eighth Amendment
does not “permit[] imposition of the death penalty on one. . . who aids and abets a felony in
the course of which a murder is committed by others but who does not himself kill, attempt
to kill, or intend that a killing take place or that lethal force will be employed”). Trial
counsel did not object.
Sheppard challenged the trial court’s statement on appeal. The TCCA agreed that the

16

(...continued)
Bryant, id. at 70-77.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

29

judge’s illustration was an incorrect statement of the law, but held that the claim was waived
by trial counsel’s failure to object. Sheppard, slip op. at 2. Sheppard argues that this waiver
constituted ineffective assistance of counsel.
There can be no question that counsel rendered deficient performance by failing to
object. The statement of law was incorrect, and there is no apparent strategic reason for
counsel’s failure to object. Sheppard, however, cannot demonstrate Strickland prejudice.
The evidence presented at trial does not support Sheppard’s implicit contention that
she was only a minor or peripheral participant in the Meagher murder. Rather, the evidence
showed that she participated in the beating and stabbing that led to Meagher’s death. Thus,
the trial judge’s incorrect statement of the law was not relevant because Sheppard had no
plausible argument to make that she did not actually and actively participate in the murder.
Indeed, in assessing punishment, the jury specifically found that Sheppard intended that
Meagher be killed. 5 SHCR at 1433. Therefore, this claim is without merit.
d.

Failure to Object to Prosecutor’s Statements

During jury voir dire, the prosecutor stated, correctly, that Sheppard would be eligible
for parole after serving 35 years if she was sentenced to life imprisonment. He added,
however, that the Legislature has changed the amount of time a life sentenced inmate is
required to serve before becoming eligible for parole, and implied that another such change
could reduce the time Sheppard would have to serve to as little as 15 years. See, e.g., 6 Tr.
at 125; 9 Tr. at 24-25. Counsel did not object.
Sheppard points to various Texas state cases holding that parole eligibility is not a
proper issue for jury consideration in a death penalty case. See, e.g., Rhoades v. State, 934
S.W.2d 113, 119 (Tex. Crim. App. 1997). She acknowledges, however, that it was her
counsel who filed a motion requesting permission to discuss parole eligibility during jury
voir dire. See Am. Pet. at 155. The state habeas court found that this was reasonable trial
strategy based on counsel’s stated intent to show that people become less dangerous as they
age. See 1 SHCR at 72. Sheppard makes no showing that this conclusion was unreasonable.
She argues, however, that it was ineffective assistance for counsel to allow the prosecutor to
mislead the venire members as to how long she would have to serve.
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

30

Assuming that the prosecutor acted improperly, and that defense counsel should have
objected, Sheppard cannot demonstrate Strickland prejudice on this point. During the
sentencing phase of trial, the jury was specifically instructed that they were not to consider
parole eligibility in passing sentence, and that, in any event, Sheppard would have to serve
35 years before being considered for parole. 1A CR at 220.17 Jurors are presumed to follow
their instructions, Weeks v. Angelone, 528 U.S. 225, 234 (2000); see Galvan v. Cockrell, 293
F.3d 760, 765-66 (5th Cir. 2002), and Sheppard makes no showing that her jury failed to do
so. Because the jury was properly instructed on this issue before deliberating Sheppard’s
sentence, Sheppard cannot demonstrate prejudice.
e.

Failure to Move for a Mistrial

Sheppard contends that the prosecutor threatened to indict Bryant if he testified at
Sheppard’s trial. She argues that this constituted prosecutorial misconduct, and that counsel
should have moved for a mistrial.
Sheppard subpoenaed Bryant to testify on her behalf, but he did not testify. Prior to
the beginning of the punishment phase, the prosecutor told the trial court that Bryant would
need a lawyer if he testified, as he might wish to invoke his Fifth Amendment privilege. 25
Tr. at 5. Sheppard raised several claims concerning this exchange in her state habeas
application.
Defense counsel submitted an affidavit in which he stated that he wanted to call
Bryant to testify concerning the extraneous drive-by shooting, but that the prosecutor told
defense counsel that he would indict Bryant for child endangerment if he testified. The
prosecutor submitted an affidavit in which he denied having any recollection of such a
conversation. Instead, the prosecutor stated, it was his practice to advise an attorney
considering calling a witness who might incriminate himself that he (the prosecutor) would
present any matter raised by the testimony to a grand jury. He explained that it was not his
intent to threaten, but to alert counsel to the risks to the potential witness. SHCR at 522. At
the evidentiary hearing conducted in connection with Sheppard’s state habeas application,

17

“CR” refers to the Clerk’s Record on appeal.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

31

trial counsel similarly characterized the prosecutor’s statement as informing counsel to advise
the witness that he might need an attorney if he testified. 2 SH Tr. at 123-24.
The state habeas court found that Bryant did not want to testify, and that counsel
decided not to call him because he believed he would not be a good witness. SHCR at 21.
The habeas court also found that there was no prosecutorial misconduct. Id. at 1330, 1363.
The state habeas court’s findings and conclusion are not contrary to Fifth Circuit law. Even
if defense counsel’s plainly strategic decision were deemed deficient, a conclusion the state
habeas court did not reach, that court’s secondary conclusion that there was no prosecutorial
misconduct was not an unreasonable conclusion.
Threats of retaliation against witnesses by the government violate a criminal
defendant’s right to due process. Washington v. Texas, 388 U.S. 14, 19 (1967). To
demonstrate a due process violation, a defendant must show substantial government
interference. A defendant accomplishes this by showing “a causal connection between the
governmental action and the witness’ decision not to testify.” United States v. Anderson, 755
F.3d 782, 792 (5th Cir. 2014).
The Fifth Circuit, however, has held that it is not prosecutorial misconduct for a
prosecutor to inform a witness that his testimony might expose him to criminal charges.
United States v. Viera, 839 F.2d 1113, 1115 (5th Cir. 1988). Indeed, in Viera, the Fifth
Circuit specifically stated that “[b]y adding that he would move promptly to present any
violation to the Grand Jury, the prosecutor cannot be charged with harassment, particularly
when the statement was made to defense counsel rather than to a prospective lay witness.”
Id.
The facts of the case at bar are substantially similar to those in Viera, where the Fifth
Circuit found no prosecutorial misconduct. As in Viera, the prosecutor communicated with
counsel, not the witness. As in Viera, the prosecutor merely advised counsel that the witness
could face charges if he made incriminating statements. This does not amount to misconduct.
There was therefore no basis for counsel to move for a mistrial or otherwise object, and thus
no ineffective assistance with regard to Bryant.
2.
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

Guilt-Innocence Phase
170329.0847

32

Sheppard raises several claims of ineffective assistance of counsel during the guiltinnocence phase of trial.
a.

Lesser Included Offense Instructions

Sheppard complains that counsel erred by failing to request a lesser included offense
instruction on the non-capital charges of robbery or murder, failed to object to the absence
of such instruction, and failed to complain on appeal about the absence of such instruction.
Due process requires a jury charge “on a lesser included offense if the evidence would permit
a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the
greater,” i.e.,“when the evidence unquestionably establishes that the defendant is guilty of
a serious, violent offense – but leaves some doubt with respect to an element that would
justify conviction of a capital offense . . . .” Beck v. Alabama, 447 U.S. 625, 635, 637 (1980)
(citing Keeble v. United States, 412 U.S. 205, 208 (1973)). Under these circumstances, “the
failure to give the jury the . . . option of convicting on a lesser included offense would seem
inevitably to enhance the risk of an unwarranted conviction. Such a risk cannot be tolerated
in a case in which the defendant’s life is at stake.” Beck, 447 U.S. at 637. A lesser included
offense charge is required under these circumstances to avoid presenting the jury with a false
dichotomy: Either convict a defendant who is guilty of a serious non-capital crime (but not
a capital crime) on the capital charge, or acquit her so as to avoid convicting her of the more
serious offense. See, e.g., Hopper v. Evans, 456 U.S. 605, 611 (1982). “[I]f the unavailability
of a lesser included offense instruction enhances the risk of an unwarranted conviction,
[Texas] is constitutionally prohibited from withdrawing that option from the jury in a capital
case.” Beck, 447 U.S. at 638.
Sheppard argues that the evidence left some doubt as to whether she had a sufficiently
culpable mental state to be guilty of capital murder. However, the evidence of record at trial
supported the finding that she was a full participant in the violent acts of robbery and murder,
resulting in the victim’s death. The record makes clear that Sheppard intended to participate
in a robbery. Regarding proof on the murder, Sheppard confessed to knocking Meagher to
the ground, handing Dickerson a knife, retrieving a larger knife for Dickerson to use to slash
Meagher’s throat, and holding Meagher down while Dickerson placed a plastic bag over
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

33

Meagher’s head and smashed a statue into her head. See Sheppard’s confession, 21 Tr. at
168-70, State’s Exh. 38-B. Murder committed during the course of a robbery is capital
murder. See TEX. PENAL CODE § 19.03 (a)(2); see also SHCR at 1431 (indictment). In light
of the evidence that Sheppard was a willing participant in the robbery and murder, there was
no reasonable basis for a finding that Sheppard was guilty of robbery or murder, but not
capital murder. Because there was no evidence to support a finding of guilt on a lesser
included offense, Sheppard was not entitled to a lesser included offense instruction. See
Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir. 1988) (“The federal standard is that a lesser
included offense instruction should be given if the evidence would permit a jury rationally
to find [a defendant] guilty of the lesser offense and acquit him of the greater”) (internal
quotation marks and citation omitted), overruling on other grounds recognized by Vanderbilt
v. Collins, 994 F.2d 189, 195 (5th Cir. 1993). Therefore, counsel was not deficient for failing
to seek such an instruction, failing to object to the absence of the instruction, or failing to
raise the issue on appeal.
b.

Refusal to Allow Sheppard to Testify

Sheppard states that she wished to testify at trial, but that her counsel prevented her
from doing so. A criminal defendant has a Fifth Amendment right to testify. Rock v.
Arkansas, 483 U.S. 44, 49-52 (1987). The state habeas court, however, found that the only
evidence supporting Sheppard’s claim that she was prevented from testifying was her own
self-serving statement to that effect. Her trial counsel testified during Sheppard’s state
habeas hearing that he advised Sheppard of her right to testify and advised her against
testifying, but that the decision was hers. 2 WH at 128-29, 188. The state habeas court
found counsel’s statement more credible than Sheppard’s. 5 SHCR at 1343. Sheppard
makes no showing that this finding was unreasonable.
c.

Failure to Present a Defense of Duress

Sheppard next contends that counsel was ineffective by failing to present evidence and
obtain a jury instruction on the defense of duress. She contends that she told her trial counsel
that she participated in the robbery and murder only because Dickerson threatened to harm
Sheppard and her baby if she did not. See Brown Affidavit, Am. Pet., App. 1; Bolden
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

34

Affidavit, Am. Pet., App. 2. Her statement to the police, however, does not state that she was
coerced or indicate duress. See SX 38A.18
I.

Allegedly Available Evidence on Duress

Sheppard argues that counsel failed to elicit any testimony from Sheppard, Dickerson,
or any of several other people with information that would have supported a duress defense.
She further contends that counsel failed to elicit any testimony that Sheppard was particularly
susceptible to duress, from either lay witnesses with knowledge of her social history, or
expert witnesses. Sheppard argues that the following people could have testified.
Sheppard. As noted above, counsel did not call Sheppard to testify, despite her claim
that she acted under duress. She notes that she and Dickerson were the only witnesses to
Dickerson’s alleged threats.
Bryant. Sheppard contends that Bryant could have testified to Sheppard’s demeanor
and fear of Dickerson.
Sherry Brown. Sherry Brown was called as a witness by the State, and was recalled
by defense counsel. She saw Sheppard and Dickerson between the time of the crime and
their arrest. Sheppard contends that Brown could have testified that Dickerson kept close
watch over Sheppard, and that Sheppard appeared nervous and upset, but was unwilling to
explain why. These assertions are based on statements in the mitigation investigator’s report.
See Brown Aff., Exh. A. Defense counsel did not elicit testimony from Brown regarding her
observations of Sheppard and Dickerson.
Annie Smith. Annie Smith is Sheppard’s grandmother. Sheppard asserts, again based
on statements in her investigator’s report, that Smith saw Sheppard and Dickerson between
the time of the crime and the time of arrest. Sheppard contends that Smith could also have
testified that Dickerson maintained close watch over Sheppard and that Sheppard appeared
nervous and upset, but was unwilling to explain why.
Other Evidence of Sheppard’s Social History. Sheppard also cites to the same
evidence of her social history discussed above in connection with the punishment phase. She

18

“SX” refers to the State’s trial exhibits.

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

35

argues that this evidence would have shown her susceptibility to manipulation and coercion.
She also claims counsel was ineffective for failing to call an expert witness to testify as to
her susceptibility to manipulation and coercion.
Failure to Obtain a Duress Jury Instruction. Finally, Sheppard contends that
counsel was ineffective by failing to obtain a jury instruction on duress.
ii.

Analysis of Trial Counsel’s Performance
Regarding Duress Defense

Respondent notes that counsel did, in fact, request an instruction on duress. See 1A
CR at 198. The trial court refused the instruction because the evidence did not support a
duress instruction. 22 Tr. at 50-51. Respondent also notes that parts of Sheppard’s statement
to the police, Dickerson’s statement, and the trial testimony of Korey Jordan contradict
Sheppard’s claim that she acted under duress.
Respondent argues that there is evidence that counsel was aware of Sheppard’s claim
of duress, and made a strategic decision not to emphasize this defense. During Sheppard’s
state writ hearing, trial counsel noted evidence that Sheppard tried to rob someone else the
day before the murder. 2 WH at 132. And there was evidence that Sheppard prepared for
the robbery of Meagher by putting on dark clothes and bringing a knife from Jonathan’s
apartment, id. at 132-35. Counsel also noted that there was evidence that Sheppard was not
afraid of Dickerson. Moreover, she did not mention being threatened by Dickerson in her
statement to the police. Id. at 139.
The state habeas court specifically noted that Sheppard told the police that she and
Dickerson attempted to rob someone the day before the murder, and that they entered
Meagher’s apartment because they decided to rob whoever was there and steal that person’s
car. That court found that Sheppard fully participated in the robbery-murder, bringing a
knife to the crime scene, handing Dickerson a knife while he held Meagher on the ground,
demanding that Meagher give Sheppard the keys to her car, retrieving and handing Dickerson
a butcher knife from Meagher’s kitchen, and holding Meagher down while Dickerson put a
plastic bag over Meagher’s face. 5 SHCR at 1349.
Korey Jordan testified at trial that he heard a conversation between Dickerson and

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

36

Sheppard the day before the murder where they discussed committing a robbery and,
possibly, murder. Jordan testified that, when Dickerson said that they needed money,
Sheppard suggested that they “go back to the old theme.” 21 Tr. at 95. Dickerson responded
that “[i]f taking a life is what I have to do to get some money, then that’s what I have to do,”
to which Sheppard responded that she would rather catch “a skinny white woman walking
between her car and her apartment with no children.” 21 Tr. at 95-99. Jordan further
testified that Sheppard told Dickerson that some knives Dickerson brought in from the
kitchen were too small to kill anyone and that she did not want Dickerson to stab anyone in
the car, because they would get blood on themselves and the car. Id. at 99-101. Respondent
further points to evidence that, contrary to Sheppard’s description of events after the murder,
her counsel was aware that Sheppard was left alone for extended periods of time, that
Sheppard and Bryant went swimming together without Dickerson, and that Sheppard never
told Bryant that Dickerson was threatening her. 2 WH at 135-39. The state habeas court
noted the substantial evidence cutting against a defense of duress. See SHCR at 1349-51.
The state habeas court found that counsel’s decision not to pursue a duress defense
was sound trial strategy. Id. at 1351. In light of the significant evidence undermining this
defense, this Court cannot say that the state habeas court’s conclusion is unreasonable.
Unsuccessfully arguing duress would have harmed Sheppard’s, and defense counsel’s,
credibility before the jury. Defense counsel could have had understandable concerns that
pursuing a weak duress defense at the guilt-innocence stage would have been harmful to their
penalty phase case.

Sheppard fails to demonstrate that counsel rendered deficient

performance by not presenting a duress defense.
In addition, Sheppard and Dickerson were the only two witnesses with first-hand
knowledge of what occurred prior to and during the crime. While Sheppard now argues that
she wanted to testify, the state habeas court found that it was her decision not to do so.
Sheppard fails to show that the state habeas court’s finding is an unreasonable application
of the facts. As discussed above, counsel made a reasoned decision not to call Dickerson
after observing him at his own trial and performing other due diligence.
Without testimony from participants in the crime, the other potential evidence on
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

37

duress that Sheppard cites is of little value. Evidence that she might have been susceptible
to coercion is not particularly helpful in the absence of evidence that she was coerced.
Evidence that she was upset after committing a murder does not necessarily indicate that she
acted under coercion; she might have been upset because she had committed a serious crime.
Sheppard thus fails to demonstrate deficient performance by trial counsel Brown in this
regard.
B.

Trial Court Errors
1.

Trial Court’s Erroneous Comments on Law of Parties

Sheppard contends that she was denied due process by the trial court’s erroneous
comments on punishment under the law of parties, an issue discussed above. See Section
III.A.1.c, supra. As noted, the claim was dismissed by the TCCA on Sheppard’s direct
appeal as waived by trial counsel’s failure to object. Respondent also argues that the claim
lacks merit.
a.

Procedural Default

The procedural default doctrine may bar federal review of a claim. “When a state
court declines to hear a prisoner’s federal claims because the prisoner failed to fulfill a state
procedural requirement, federal habeas is generally barred if the state procedural rule is
independent and adequate to support the judgment.” Sayre v. Anderson, 238 F.3d 631, 634
(5th Cir. 2001). The Supreme Court has ruled that:
In all cases in which a state prisoner had defaulted his federal claims in state
court pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). “This doctrine ensures that federal courts
give proper respect to state procedural rules.” Glover v. Cain, 128 F.3d 900, 902 (5th Cir.
1997) (citing Coleman, 501 U.S. at 750-51); see also Edwards v. Carpenter, 529 U.S. 446,
451 (2000) (finding the cause and prejudice standard to be “grounded in concerns of comity
and federalism”).

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

38

To be “adequate” to support the judgment, the state law ground must be both “firmly
established and regularly followed.” Ford v. Georgia, 498 U.S. 411, 424 (1991). If the state
law ground is not firmly established and regularly followed, there is no bar to federal review
and a federal habeas court may consider the merits of the claim. Barr v. Columbia, 378 U.S.
146, 149 (1964). An important consideration in determining whether an “adequate” state law
ground exists is the application of the state law ground to identical or similar claims. Amos
v. Scott, 61 F.3d 333, 340-41 (5th Cir. 1995).
The adequacy of a state law ground to preclude federal court review of federal
constitutional claims is a federal question. Howlett v. Rose, 496 U.S. 356, 366 (1990). If the
state court decision rests on federal law, then there is no bar to federal habeas corpus review.
Sheppard raised the claim of erroneous comment on the law of parties on direct
appeal. The TCCA rejected the claim as waived under Texas law because Sheppard did not
contemporaneously object to the statements.
To preserve a claim for federal review, a defendant must make a specific and timely
objection at the time of the allegedly objectionable conduct. Hughes v. Johnson, 191 F.3d
607, 614 (5th Cir. 1999). “Texas applies its contemporaneous objection rule ‘strictly and
regularly’ and . . . it is an ‘independent and adequate state-law procedural ground sufficient
to bar federal court habeas review of federal claims.’” Id. (quoting Amos v. Scott, 61 F.3d
333, 345 (5th Cir. 1995)), cert. denied, 528 U.S. 1145 (2000)). Failure to object constitutes
a procedural default under Texas law, which bars federal habeas review unless the petitioner
shows cause for the default and actual prejudice flowing from the alleged constitutional
violation, or a miscarriage of justice. Wainwright v. Sykes, 433 U.S. 72, 80 (1977).
“Cause” for a procedural default requires a showing that some objective factor
external to the defense impeded counsel’s efforts to comply with the state procedural rule.
McCleskey v. Zant, 499 U.S. 467, 493 (1991). Prejudice to overcome a procedural default
is shown where there is a reasonable probability that the defaulted claim, if properly raised,
would have changed the outcome of the proceeding. See, e.g. Sawyer v. Whitley, 505 U.S.
333, 345 (1992) (citing United States v. Bagley, 473 U.S. 667, 682 (1985), and Strickland,
466 U.S. at 694).
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

39

The fundamental-miscarriage-of-justice exception is limited to the following
circumstances: (1) where the petitioner can show that “a constitutional violation has
‘probably resulted’ in the conviction of one who is ‘actually innocent’ of the substantive
offense,” Dretke v. Haley, 541 U.S. 386, 393 (2004) (quotation omitted); or (2) in the capital
sentencing context, where the petitioner can show “‘by clear and convincing evidence that,
but for a constitutional error, no reasonable juror would have found the petitioner eligible for
the death penalty under the applicable state law.’” Id. (quoting Sawyer, 505 U.S. at 336).
Importantly, the fundamental-miscarriage-of-justice exception applies only where a petitioner
supplements a constitutional claim with a colorable showing of factual, as opposed to legal,
innocence. See McCleskey v. Zant, 499 U.S. at 495 (quoting Kuhlman v. Wilson, 477 U.S.
436, 454 (1986)); accord Schlup v. Delo, 513 U.S. 298, 327 (1995).
Sheppard does not contend that she is factually innocent of capital murder, or that she
is legally ineligible for the death penalty. She accordingly fails to demonstrate a miscarriage
of justice. Nor does Sheppard assert any “cause” for her default. Further, she does not show
sufficient prejudice to demonstrate a reasonable probability that the outcome of her trial
would have been different had a timely objection been raised. As discussed above, the
evidence establishes that Sheppard was an active, not merely peripheral, participant in the
robbery and murder. Therefore, the trial court’s erroneous statement as to punishment on the
law of parties was not relevant to Sheppard. Because Sheppard fails to demonstrate cause
or prejudice, or a fundamental miscarriage of justice, this claim is procedurally defaulted and
this Court cannot grant relief.
b.

Due Process – Merits

Procedural default notwithstanding, this claim lacks merit. Errors in jury instructions
do not state a claim for relief unless the error resulted in “prejudice of constitutional
magnitude.” Sullivan v. Blackburn, 804 F.2d 885, 887 (5th Cir. 1986). The habeas petitioner
must demonstrate that the error “had a substantial and injurious effect or influence on the
determination of the jury’s verdict.” Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999).
In a habeas proceeding, the burden of demonstrating that an erroneous jury instruction
violates the petitioner’s Due Process rights is “greater than the showing required to establish
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

40

plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
As discussed above, the trial court’s comments to the jurors during voir dire was
incorrect as a matter of law. The jury instructions given immediately prior to sentencing
deliberations, however, were correct. Moreover, the evidence does not support a finding that
Sheppard was merely a minor participant who did not have reason to believe that deadly
force would be used. Rather, the evidence supports a finding that Sheppard was an active
participant in the events leading to Meagher’s death. For these reasons, Sheppard cannot
demonstrate that the erroneous comments, later corrected by the jury instructions, had a
substantial and injurious effect on the jury’s verdict. She is not entitled to relief on this
claim.
2.

Batson Claim Regarding Ronnie Simpson

Sheppard is African-American.

The prosecutor used three of his peremptory

challenges to strike African-Americans from the jury.19 Sheppard challenged one of these
strikes, arguing that they were based on the prospective jurors’ race. The prosecutor offered
race-neutral explanations for the strikes, and the trial court overruled Sheppard’s challenges.
In Batson v. Kentucky, 476 U.S. 79, (1986), the Supreme Court held that the use of
peremptory strikes to remove jurors on the basis of race violates the equal protection clause.
When a defendant makes a prima facie showing that a peremptory challenge was based on
race the prosecutor must offer a race-neutral explanation for the strike. If the prosecutor does
so, it then falls to the defendant to demonstrate that the offered explanation is pretextual.
See, e.g., Purkett v. Elem, 514 U.S. 765, 767-68 (1995). Sheppard fails to demonstrate that
the offered race-neutral explanation was pretextual.
Ronnie Simpson was the first African-American juror struck by the State. In response
to a Batson challenge, the prosecutor stated that he had concerns, based on Simpson’s
answers to voir dire questions, that Simpson was predisposed to answering “yes” on the
mitigation special issue because Sheppard has children. The State also noted that Simpson
said that he had been wrongly arrested and spent some time in jail based on a
misidentification, causing concerns about bias against law enforcement. Simpson also

19

Two people who served on the jury are African-American. Am. Pet. at 166.
41
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd 170329.0847

expressed reservations about his ability to answer “yes” on future dangerousness based on
the facts of the crime, though he eventually stated that he could do so. The prosecutor said
that this caused concern that Simpson would be predisposed to answer the special issues in
Sheppard’s favor. Finally, the prosecutor noted that Simpson said hello to Sheppard at the
beginning of his voir dire, causing the prosecution to worry about an affinity between
Simpson and Sheppard. 5 Tr. at 84-86. While defense counsel argued that Simpson could
be fair and impartial, he did not rebut the State’s race neutral explanations. Id. at 87-88.
Sheppard later renewed the challenge, claiming that two white jurors who were
accepted by the State gave substantially similar answers. 6 Tr. at 109. The trial court again
overruled the objection. Id.
Sheppard raised the objection again at the conclusion of voir dire. At this point, the
prosecutor pointed out that two of the jurors selected were African-American, and that only
three of nine peremptory challenges used by the State were used to strike African-Americans.
Defense counsel acknowledged that these assertions were true. 19 Tr. at 186-87. The trial
court again denied the challenge.
Sheppard raised this claim in her direct appeal. The TCCA identified the correct legal
standard of review, and concluded that there was no basis for overturning the trial court’s
conclusion that the challenged peremptory strikes were not racially motivated. Sheppard v.
State, slip op. at 4.
Respondent points out that the white jurors who Sheppard asserts gave substantially
similar answer were not, in fact, similarly situated. She notes that the white jurors in
question, Paul Herd and Larry Raymond Chambers, answered questions in ways materially
different from Simpson. For example, Herd stated that his son was prosecuted for an incident
with his girlfriend. 6 Tr. at 67. Herd stated that he did not think his son’s conduct warranted
a felony charge but, unlike Simpson, did not say that his son was the victim of a false arrest
or prosecution. 6 Tr. at 76.
Respondent acknowledges that Chambers, like Simpson, stated that he would consider
the fact that Sheppard had children to be mitigating and could not vote to impose a death
sentence solely on the facts of the crime. 5 Tr. at 117, 126. Respondent points out, however,
that these are the only similarities. Chambers expressed no hostility toward law enforcement
42
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd 170329.0847

or any affinity with Sheppard. While the State’s acceptance of juror Chambers raises some
questions, it does not so clearly demonstrate that the State’s answers were pretextual as to
support a finding that the trial court’s ruling, based not only on the explanations, but also on
the court’s observation of the proceedings and determinations of the participants’ credibility,
was wrong. Nor can this Court conclude that the TCCA’s rejection of the claim on appeal
was unreasonable under the facts presented. Accordingly, Sheppard is not entitled to relief
on this claim.
3.

Sheppard’s Challenge for Cause to Edith Greer Smith

On a juror questionnaire, Edith Greer Smith expressed her agreement with the
statement that “any man, woman, child or any person young or old, man or woman, if found
guilty of capital murder should pay for it with their own life.” 13 Tr. at 91. Defense counsel
questioned her about this answer, and Smith affirmed that she felt that anyone convicted of
capital murder should be sentenced to death. Sheppard challenged her for cause, and the trial
court denied the challenge. Id. at 91-93.
Following questioning by the prosecution, defense counsel again asked Smith if she
could “envision a set of circumstances” where she still could answer “yes” to the mitigation
special issue. Smith replied that she could. Id. at 100-101. Sheppard then used a peremptory
challenge to remove Smith from the jury panel. Id. at 103. Sheppard eventually used all of
her peremptory challenges.
Sheppard raised the denial of her challenge for cause on direct appeal. The TCCA,
in denying the claim, noted that the law was not explained to Smith, and when defense
counsel asked her if she would consider the full range of punishment, she replied that she
would.
In Wainwright v. Witt, 469 U.S. 412, 424 (1985), the Supreme Court held that the
standard for removing a juror based on his or her views on the death penalty “is whether the
juror’s views would prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.” Smith stated that she could follow the law
and consider the full range of punishment. The trial court was in the best position to
determine the credibility of her statements. Based on the record and controlling law, the
TCCA’s conclusion that the trial court did not abuse its discretion in denying Sheppard’s
43
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd 170329.0847

challenge for cause was reasonable, and is entitled to deference.
4.

Removal of Juror David Paul Herd

David Paul Herd was accepted as a juror by both parties on February 8, 1995. Prior
to his selection, Herd told the trial court that he was receiving treatment for a prostate
condition, but that medication had his condition under control. Two days later, Herd said he
had a flare up and was concerned that he would need frequent bathroom breaks. Sheppard
notes that Herd originally stated that he could follow the law but, upon his reappearance in
court, stated that he could not vote to impose a death sentence. She contends that it was an
attack of nerves, not a prostate flare up, that caused Herd’s withdrawal. Sheppard, citing no
evidence, offers the medical conclusion that “[t]he medical issue, by itself, did not reach the
level of requiring the removal of Mr. Herd.” Am. Pet. at 177.
Sheppard raised this issue on appeal, and the TCCA found no abuse of discretion “in
dismissing a venireman whose medical condition might necessitate frequent interruptions of
trial . . . .” 5 SHCR at 1382. The claim was also rejected on state habeas. Id. at 1314, 1359.
The trial court’s removal of Herd for medical reasons does not raise a viable
constitutional issue. While Sheppard attempts to dismiss the medical reason and turn this
into an effort by the State to remove a juror who was favorable to Sheppard, she presents no
evidence that demonstrates that Herd was lying about his medical condition. Crediting
Herd’s expressed concerns was a sufficient basis for his removal. The state court’s denial
of relief was reasonable.
5.

Refusal of Lesser Included Offense Instruction

Sheppard contends that she was denied due process when the trial court failed to
instruct the jury that it could convict Sheppard of the lesser included offenses of robbery and
murder. As discussed in connection with Sheppard’s claim that counsel was ineffective for
failing to request such a lesser included offense instruction, the evidence did not support a
finding that she was guilty of either of these lesser included offenses but not of capital
murder. Therefore, for the same reasons discussed above, she was not entitled to a lesser
included offense instruction under Beck v. Alabama, 447 U.S. 625, 635 (1980). The trial
court’s failure to give such an instruction did not deny her due process.
6.
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

Exclusion of Mitigating Evidence During Punishment Phase
44
170329.0847

Sheppard argues that the trial court erred in excluding mitigating evidence during the
punishment phase.
a.

Lay Opinion Testimony

The court excluded testimony by Sheppard’s grandmother, Annie Smith, offering an
opinion that Sheppard would not pose a future threat to society if sentenced to life
imprisonment. 26 Tr. at 77. When Smith was asked her opinion, the State objected based
on Fuller v. State, 829 S.W.2d 412 (Tex. Crim. App. 1993). The state took the position that
Fuller bars lay opinion testimony. Sheppard disagrees.
Sheppard raised this issue on direct appeal. The TCCA noted that, under Texas law,
“a properly qualified lay witness can testify to an opinion concerning the probable continuing
threat to society posed by a capital murder defendant.” Sheppard, slip op. at 15. The TCCA
concluded, however, that Sheppard defaulted the claim by failing to make a proffer on the
record at trial. Id.
Sheppard raised the claim in her state habeas application. The state habeas court also
found that the claim was defaulted because Sheppard failed to preserve it at trial. In the
alternative, the state habeas court found that Sheppard failed to demonstrate that she was
harmed by the ruling because Smith was biased toward Sheppard, Dr. Ray testified that
Sheppard would not be a future danger, and the State presented strong evidence that
Sheppard would be a danger in the future. 5 SHCR at 1318-19, 1360.
I.

Procedural Default

The Texas Rules of Evidence require that, to preserve error, a defendant must make
a proffer on the record to allow a reviewing court to assess the harm caused by an erroneous
refusal to allow evidence. See TEX. R. EVID. 103(a)(2).20 As discussed above, failure to
comply with a state procedural requirement constitutes a procedural default that bars federal
review unless the petitioner can demonstrate either cause for the default and prejudice caused
by the default, or can demonstrate that the federal court’s failure to review the claim will
result in a fundamental miscarriage of justice. Sheppard identifies no cause, i.e., a factor
20

At the time of Sheppard’s trial, this rule was codified as Rule 103(a)(2) of the Texas
Rules of Criminal Evidence.
45
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd 170329.0847

external to the defense that prevented her compliance with the state procedural rule. Neither
does she show that this Court’s refusal to address the merits of the claim will result in a
fundamental miscarriage of justice.
To show a fundamental miscarriage of justice relevant to this claim, Sheppard must
show that she is “actually innocent” of the death penalty. Sawyer v. Whitley, 505 U.S. 333,
335 (1992); see text generally at pgs. 40-42, supra. The Supreme Court has explained that
“[t]he phrase ‘innocent of [the] death [penalty],’” however, “is not a natural usage of those
words[.]” Id. at 340. “A prototypical example of ‘actual innocence’ in a colloquial sense is
the case where the State has convicted the wrong person of a crime.” Id. It is not easy to
apply this doctrine in the capital sentencing scheme. “Sensible meaning is given to the term
‘innocent of the death penalty’ by allowing a showing in addition to the innocence of the
capital crime itself a showing that there was no aggravating circumstance or that some other
condition of eligibility had not been met.” Id. at 345.
Thus, as the Supreme Court has emphasized, a determination on whether a petitioner
is actually innocent of the death penalty “must focus on those elements which render a
defendant eligible for the death penalty, and not on additional mitigating evidence that was
prevented from being introduced as a result of a claimed constitutional error.” Id. at 347;
accord Schlup v. Delo, 513 U.S. 298, 323 (1992). In this context, the Fifth Circuit has held
that evidence of a purported mitigating circumstance that does not show that the petitioner
was actually innocent “of a death-eligible offense” is insufficient to establish actual
innocence of the death penalty and does not overcome the procedural bar. See Haynes v.
Quarterman, 526 F.3d 189, 195-96 (5th Cir. 2008) (involving a case where it was undisputed
that the petitioner murdered a police officer); see also Carty v. Quarterman, 345 F. App’x
897, 911 (5th Cir. 2009) (repeating in a death penalty case that “[m]itigation evidence cannot
be the basis of a claim of a fundamental miscarriage of justice.”) (citing Sawyer, 505 U.S.
at 347). Because Sheppard’s claim relates only to excluded mitigation evidence, she cannot
prevail under the fundamental miscarriage of justice exception to the procedural default rule.
ii.

Merits of the Constitutional Claim

Sheppard cites Texas state law to argue that the trial court’s ruling was incorrect.
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

46

Violations of state law are not generally cognizable on habeas review unless the error renders
the trial as a whole fundamentally unfair. See Fuller v. Johnson, 158 F.3d 903, 908 (5th Cir.
1998) (citing Engle v. Isaac, 456 U.S. 107, 135 (1982)). “[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding whether the conviction violated the
Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991).
The state habeas court’s alternative merits ruling, concluding that Sheppard suffered
no harm as a result of the evidentiary ruling excluding Sheppard’s grandmother Annie
Smith’s testimony regarding future dangerousness, may be subject to dispute but does not
meet the unreasonableness standard in this Circuit. All of the matters cited by the habeas
court are accurate: Smith is Sheppard’s grandmother and she had a close relationship with
Sheppard, creating a natural bias in Sheppard’s favor. Dr. Ray, Sheppard’s expert, who has
the credentials to offer a substantiated opinion on future dangerousness, opined (albeit
superficially) that Sheppard would likely not pose a future threat. The State presented
substantial evidence that Sheppard had a violent history, lacked remorse, and therefore posed
a future danger to society. Because these findings and the related conclusion are not
unreasonable, they are entitled to deference under the AEDPA. Sheppard thus fails to
demonstrate that the trial court’s ruling denied her a fair trial, and thus fails to demonstrate
a constitutional violation.
b.

Crisis Center Records

Sheppard attempted to introduce records from the Matagorda County Women’s Crisis
Center and Covenant House. The State objected “essentially to everything presented that had
come directly from Ms. Sheppard . . . .” Am. Pet. at 190. Among the information excluded
were Sheppard’s statements about why she was seeking assistance from these organizations.
Sheppard argues that these documents were admissible as business records under Rule 803(6)
of the Texas Rules of Evidence. The State objected that they were hearsay within hearsay.
On appeal, the TCCA agreed that Sheppard’s statements contained within the
documents were inadmissible hearsay, even though the documents themselves might be
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

47

admissible business records. Sheppard tries to avoid this ruling by arguing that she was not
offering the records for the truth of her statements contained therein. This contention rings
hollow as there is little other reason for her to have sought their admission. The fact and
broad outlines of the reasons Sheppard went to the Matagorda County Women’s Crisis
Center and Covenant House were established through other evidence. The only new
information in the excluded portions was contained in Sheppard’s statements. It thus appears
that the evidentiary ruling was not incorrect under Texas law.
In any event, as noted above, if there was a violation of state law, it is not cognizable
on habeas review unless the error renders the trial as a whole fundamentally unfair. Fuller,
158 F.3d at 908. Because, as discussed above, Sheppard fails to demonstrate that the
exclusion of this evidence deprived her of a fair trial, she fails to raise a viable constitutional
issue, and is not entitled to relief.
c.

Patrice Green

Sheppard called Patrice Green, a lifelong friend, to testify. The trial court did not
allow Green to answer questions about her knowledge of whether Sheppard had any prior
arrests, her opinion of Sheppard’s reputation and character, and Sheppard’s reputation in her
hometown of Bay City. The state appellate and habeas courts rejected the claim because
Sheppard failed to make a bill of exception, thereby preventing the reviewing courts from
determining whether Green’s testimony would have been mitigating.
While Sheppard correctly notes that the Eighth Amendment requires that a capital
sentencing jury be able to consider relevant mitigating evidence, see, e.g., Woodson v. North
Carolina, 428 U.S. 280, 303-04 (1976), Sheppard presents no affidavit and provides no proof
that Green’s testimony would have been mitigating. She therefore fails to demonstrate that
her Eighth Amendment rights were violated by the trial court’s evidentiary rulings.
d.

Texas Rules of Criminal Evidence

Citing Green v. Georgia, 442 U.S. 95 (1979), Sheppard argues that “the application
of state rules of evidence to exclude testimony relevant to an issue in the punishment phase
of a capital trial violates due process . . . .” Am. Pet. at 194. Sheppard reads Green far too
broadly.
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

48

Green held that the Eighth Amendment might require admission of otherwise
inadmissible evidence if that evidence is necessary to the defense and carries with it
sufficient indicia of reliability. In that case, Green’s co-defendant, Moore, admitted to a
friend that he, and not Green, killed the victim.21 The trial court excluded testimony about
Moore’s confession. The Supreme Court held:
Moore made his statement spontaneously to a close friend. The evidence
corroborating the confession was ample, and indeed sufficient to procure a
conviction of Moore and a capital sentence. The statement was against interest,
and there was no reason to believe that Moore had any ulterior motive in
making it. Perhaps most important, the State considered the testimony
sufficiently reliable to use it against Moore, and to base a sentence of death
upon it.
Green, 442 U.S. at 97.
In Chambers v. Mississippi, 410 U.S. 284 (1973), the Court stated:
Few rights are more fundamental than that of an accused to present witnesses
in his own defense. E.g., Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed.
2d 330 (1972); Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L.
Ed. 2d 1019 (1967); In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682
(1948). In the exercise of this right, the accused, as is required of the State,
must comply with established rules of procedure and evidence designed to
assure both fairness and reliability in the ascertainment of guilt and innocence.
Although perhaps no rule of evidence has been more respected or more
frequently applied in jury trials than that applicable to the exclusion of
hearsay, exceptions tailored to allow the introduction of evidence which in fact
is likely to be trustworthy have long existed. The testimony rejected by the
trial court here bore persuasive assurances of trustworthiness and thus was
well within the basic rationale of the exception for declarations against
interest. That testimony also was critical to Chambers' defense. In these
circumstances, where constitutional rights directly affecting the ascertainment
of guilt are implicated, the hearsay rule may not be applied mechanistically to
defeat the ends of justice.
Chambers, 442 U.S. at 302.
Thus, the Supreme Court in Green and Chambers made clear that rules of evidence
are applicable, and do not necessarily require the admission of otherwise inadmissible
21

At the time, Georgia did not recognize a hearsay exception for statements against
penal interest. See Green, 442 U.S. at 97 n.3.
49
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd 170329.0847

evidence unless that evidence is both necessary to the defense and carries sufficient
independent indicia of reliability. In this case, the record establishes that the evidence
excluded by the trial court had material mitigating value. However, the Fifth Circuit
typically deems such evidence cumulative and/or “double-edged.” See Johnson v. Cockrell,
306 F.3d 249, 253 (5th Cir. 2002) (failure to present double-edged evidence did not prejudice
the defendant). Moreover, Sheppard points to no independent indicia of reliability as to any
of the excluded evidence that would bring it within the ambit of Green. She therefore fails
to demonstrate any constitutional violation in the exclusion of the evidence.
e.

Bryant

Again citing Green for the proposition that she was entitled to present any information
that might have mitigating value, Sheppard argues that it was error for the trial court not to
compel Bryant to appear and invoke his Fifth Amendment rights. Again, Sheppard reads too
much into Green, and fails to demonstrate how Bryant’s repeated invocation of his Fifth
Amendment rights would have been in any way mitigating.
7.

Prosecutorial Misconduct

Sheppard raises several claims of prosecutorial misconduct during the punishment
phase. “To constitute a due process violation, the prosecutorial misconduct must be “‘of
sufficient significance to result in the denial of the defendant’s right to a fair trial.’” Greer
v. Miller, 483 U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S. 667, 676
(1985) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)). “‘A trial is fundamentally
unfair if there is a reasonable probability that the verdict might have been different had the
trial been properly conducted.’” Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000)
(quoting Foy v. Donnelly, 959 F.2d 1307, 1317 (5th Cir. 1992)), cert. dism’d, 531 U.S. 1134
(2001). The Fifth Circuit has observed that a “prosecutor’s improper [conduct] will, in itself,
exceed constitutional limitations in only the most egregious cases.” Menzies v. Procunier,
743 F.2d 281, 288-89 (5th Cir. 1984).
a.

Closing Argument on Mitigation Evidence

During his closing argument in the punishment phase, the prosecutor stated that
“[m]itigation should be something that is out of the ordinary . . . and I submit to you, it
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

50

should be something that bears some relationship to the crime, that explains the crime in
some way.” 27 Tr. at 6. Sheppard raised a contemporaneous objection, which was
overruled. She now argues that this was a misstatement of the law, and violated her rights
under the Eighth and Fourteenth Amendments.
In Lockett v. Ohio, 438 U.S. 586, 608 (1978), a plurality of the Supreme Court held
“that the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded
from considering, as a mitigating factor, any aspect of a defendant’s character or record . .
. as a basis for a sentence less than death.” 438 U.S. at 604 (emphasis in original). This
holding is based on the plurality’s conclusion that death “is so profoundly different from all
other penalties” as to render “an individualized decision . . . essential in capital cases.” Id.
at 605. In Penry v. Johnson, 532 U.S. 782 (2001), the Supreme Court clarified that a capital
sentencing jury must “be able to consider and give effect to a defendant’s mitigating evidence
in imposing sentence.” Id. at 797 (internal quotation marks, citation and brackets omitted).
On direct appeal, the TCCA held that the prosecutor was “not suggesting to the jurors
that they were precluded from considering certain types of evidence . . . [but] was making
an argument urging jurors to conduct their deliberation in a manner favorable to the State’s
position rather than giving the jurors a definition of mitigating evidence.” Sheppard v. State,
slip op. at 19. The TCCA further noted that the prosecutor told the jury to look at the
definition of mitigating evidence in the jury charge, and that the charge accurately stated the
law. Id.
Under Fifth Circuit law, this court must apply a two-step analysis in reviewing claims
of prosecutorial misconduct. See United States v. Wise, 221 F.3d 140, 152 (5th Cir. 2000),
cert. denied, 532 U.S. 959 (2001); United States v. Lankford, 196 F.3d 563, 574 (5th Cir.
1999), cert. denied, 529 U.S. 1119 (2000). First, the Court must determine whether the
prosecutor made an improper remark. Wise, 221 F.3d at 152. “If an improper remark was
made, the second step is to evaluate whether the remark affected the substantial rights of the
defendant.” Id.
Regardless of whether the prosecutor’s statement was incorrect, there is no dispute
that the jury charge correctly defined mitigating evidence. As discussed above, jurors are
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

51

presumed to follow the court’s instructions, Weeks v. Angelone, 528 U.S. 225, 234 (2000),
and Sheppard makes no showing to overcome that presumption. She therefore fails to
demonstrate that the prosecutor’s comments affected her substantial rights, and is not entitled
to relief.
b.

Argument About Evidence of Physical Abuse

The prosecutor argued that Sheppard presented “hints,” but no proof, that she had a
history of being physically abused by men. 27 Tr. at 9. Sheppard tried to introduce
documents from the Matagorda County Women’s Crisis Center and Covenant House
reflecting her claims of abuse. The State objected to these documents, and portions of them
were excluded as hearsay. Sheppard now argues that it was improper for the prosecutor to
“take actions . . . to deny the admission of evidence and then argue . . . that conclusions
should be drawn because of the absence of that same evidence.” Am. Pet. at 199.
Sheppard’s argument relies entirely on state law. She therefore fails to identify a
federal Constitutional claim on which relief can be granted.
Moreover, Sheppard’s argument relies on state cases that are inapposite. Sheppard
cites Sifford v. State, 505 S.W.2d 866 (Tex. Crim. App. 1974), and Lopez v. State, 810
S.W.2d 401 (Tex. Crim. App. 1991), for the proposition that a prosecutor cannot argue that
a defendant failed to prove a point after the prosecutor sought to exclude evidence relevant
to that point. In Sifford, the TCCA held that a prosecutor did not act improperly when
arguing that a defendant failed to prove the results of a breathalyzer test when it was the
defendant who moved to exclude the evidence. This case is not on point. In Lopez, the
prosecutor commented on the defendant’s decision not to testify at his own trial. The TCCA
found that this comment violated both the Texas Constitution and the Fifth Amendment to
the United States Constitution. Lopez thus does not assist Sheppard.
As discussed above, Sheppard’s statements contained in the records from the Crisis
Center and Covenant House were inadmissible hearsay. Sheppard points to no admissible
evidence that was excluded on this point, and to no state or federal case that is on point. She
therefore fails to demonstrate any prosecutorial misconduct with regard to the comments on
her failure to prove abuse.
c.
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

Burden of Proof
52

The prosecutor argued that “[y]ou can’t allow Erica Sheppard to escape the death
penalty because she may have been abused at some point in her life.” 27 Tr. at 10. Sheppard
objected, arguing that this comment shifted the burden to Sheppard to prove that she should
not be sentenced to death. The trial court and the TCCA rejected this claim.
The Texas courts’ rejection of the claim is reasonable. The Texas capital sentencing
scheme at the time of Sheppard’s trial first required a jury to answer the first two special
issues: (1) whether the defendant posed a future danger to society; and (2) whether she
actually caused, or intended to cause, or intended for another to cause, the death of the
victim. SHCR at 1432-33. Only after answering these two questions in the affirmative did
the jury proceed to the mitigation special issue. That special issue asks whether there is
sufficient mitigating evidence to warrant a life sentence rather than a death sentence. It is,
in effect, asking whether the defendant, who the jury already decided meets the requirements
for a death sentence, should “escape the death penalty” based on the mitigating evidence.
The state courts’ decision that the prosecutor did not suggest that Sheppard bore any burden
to present mitigating evidence was not unreasonable. Sheppard is not entitled to relief on this
basis.
d.

Argument that Sheppard Hit the Victim with a Statue

Sheppard next contends that the prosecutor argued that Sheppard hit the victim in the
head with a statue, despite the absence of any evidence of this fact. Under Texas law, a
prosecutor may present argument to the jury on four types of issues: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) responses to opposing counsel’s
argument; and (4) pleas for law enforcement. Moody v. State, 827 S.W.2d 875, 894 (Tex.
Crim. App.), cert. denied sub nom. Moody v Texas, 506 U.S. 839 (1992). The TCCA held
that this argument was a reasonable deduction from the evidence. This conclusion is not
unreasonable. It is therefore entitled to deference.
Even if the prosecutor’s argument was improper, it did not render the trial unfair.
Sheppard, in her statement to the police, said that she held the victim – who, by this time had
her throat slashed and a plastic bag placed over her head – down while Dickerson hit her with
the statue. SX 38A. Thus, even if the prosecutor’s statement was incorrect, Sheppard’s own
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

53

statement showed her active role in the beating. There is no reasonable probability that the
sentence would have been different had the prosecutor not made this statement.
e.

Bryant

Sheppard once again contends that the prosecutor threatened Bryant with prosecution
if he testified, and argues that this was prosecutorial misconduct. As discussed above, the
record shows that the prosecutor warned Bryant’s counsel that Bryant could face possible
prosecution if he made incriminating statements while testifying.
While threats of retaliation against witnesses by the government violate a criminal
defendant’s right to due process, Washington v. Texas, 388 U.S. 14, 19 (1967), it is not
prosecutorial misconduct for a prosecutor to inform a witness that his testimony might
expose him to criminal charges. United States v. Viera, 839 F.2d 1113, 1115 (5th Cir. 1988).
Indeed, in Viera, the Fifth Circuit specifically stated that “[b]y adding that he would move
promptly to present any violation to the Grand Jury, the prosecutor cannot be charged with
harassment, particularly when the statement was made to defense counsel rather than to a
prospective lay witness.” Id. Thus, this claim does not demonstrate any prosecutorial
misconduct.
8.

Extraneous Offense Evidence

The State introduced evidence of an unadjudicated extraneous offense by Sheppard
in this capital case. Sheppard notes that, under Texas law, the use of an unadjudicated
offense would not be permitted if she was charged with a noncapital crime. She argues that
this dichotomy violates her Fourteenth Amendment right to equal protection of the law.
The Fifth Circuit has held that “there is no constitutional prohibition on the
introduction at a trial’s punishment phase of evidence showing that the defendant has
engaged in extraneous, unadjudicated, criminal conduct.” Brown v. Dretke, 419 F.3d 365,
376 (5th Cir. 2005); see also Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987) (“the
admission of unadjudicated offenses in the sentencing phase of a capital trial does not violate
the eight and fourteenth amendments”). Sheppard’s argument, however, is not that the
admission of the offense itself violates her rights, but that the difference in the admissibility
of such offenses between a capital trial and a non-capital trial violates the equal protection
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

54

clause. She cites no case holding that this disparity violates equal protection.
In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court held that, except in very
limited circumstances, a federal habeas court cannot retroactively apply a new rule of
criminal procedure. The Court explained that:
a case announces a new rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government. To put it differently, a
case announces a new rule if the result was not dictated by precedent existing
at the time the defendant’s conviction became final.
Id. at 301 (emphasis in original). The AEDPA effectively codified the Teague nonretroactivity rule “such that federal habeas courts must deny relief that is contingent upon a
rule of law not clearly established at the time the conviction becomes final.” Peterson v.
Cain, 302 F.3d 508, 511 (5th Cir. 2002) (citing Terry Williams v. Taylor, 529 U.S. 362, 38081 (2000)), cert. denied, 537 U.S. 1118 (2003).
Because no court has announced the rule that Sheppard now urges, such rule was not
clearly established at the time her conviction became final. Therefore, this Court cannot
grant relief on this claim. It is noted that this issue may well be one that deserves attention
in the proper case.
IV.

CERTIFICATE OF APPEALABILITY
Petitioner has not requested a certificate of appealability (“COA”), but this court may

determine whether she is entitled to this relief in light of the foregoing rulings. See
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (“It is perfectly lawful for district
court’s [sic] to deny a COA sua sponte. The statute does not require that a petitioner move
for a COA; it merely states that an appeal may not be taken without a certificate of
appealability having been issued.”). A petitioner may obtain a COA either from the district
court or an appellate court, but an appellate court will not consider a petitioner’s request for
a COA until the district court has denied such a request. See Whitehead v. Johnson, 157 F.3d
384, 388 (5th Cir. 1988); see also Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“[T]he
district court should continue to review COA requests before the court of appeals does.”).
“A plain reading of the AEDPA compels the conclusion that COAs are granted on an issueby-issue basis, thereby limiting appellate review to those issues alone.” Lackey v. Johnson,
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

55

116 F.3d 149, 151 (5th Cir. 1997).
A COA may issue only if the petitioner has made a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United States v. Kimler, 150 F.3d
429, 431 (5th Cir. 1998). A petitioner “makes a substantial showing when he demonstrates
that his application involves issues that are debatable among jurists of reason, that another
court could resolve the issues differently, or that the issues are suitable enough to deserve
encouragement to proceed further.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.
2000). The Supreme Court has stated:
Where a district court has rejected the constitutional claims on the merits, the
showing required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong. The issue becomes somewhat
more complicated where . . . the district court dismisses the petition based on
procedural grounds. We hold as follows: When the district court denies a
habeas petition on procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). “[T]he determination of whether a COA
should issue must be made by viewing the petitioner’s arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741,
772 (5th Cir. 2000).
This Court has carefully and exhaustively considered each of Petitioner’s claims.
While the issues Petitioner raises are clearly important and deserving of the closest scrutiny,
this Court finds that all but one of Sheppard’s claims is foreclosed by clear, binding
precedent.
The exception is Sheppard’s claim that she received ineffective assistance of counsel
regarding the development and presentation of mitigation evidence in the punishment phase
of her trial. The Court concludes that jurists of reason could disagree with the Court’s
ultimate rejection of Sheppard’s claim of ineffective assistance in the development and
presentation of mitigating evidence. The Court concludes this claim raises issues that
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

56

deserve encouragement to proceed further. In particular, there is serious question whether
the TCCA was reasonable in concluding that counsel’s performance on the mitigation issue
was not deficient under Strickland even though it is clear that counsel failed to use available
resources, such as his second-chair attorney and additional investigator services, and failed
to personally undertake detailed interviews of key sources of information, such as school,
crisis center, friends, family, and third-party witnesses. Counsel could be said to have failed
fully to investigate significant background facts, to adequately prepare lay and expert
witnesses for trial, and to present live, fulsome testimony about Sheppard’s personal history,
numerous instances of childhood abuse and other travails, and her persisting emotional and
mental issues. These witnesses, properly interviewed and prepared, could have explained
the true scope of Sheppard’s traumatic childhood events and their impact on her decisionmaking abilities. They could have given sympathetic testimony about the emotional effect
of the repeated abuse, the potential for maturation and insights she would gain during a long
incarceration, and other mitigating information. See, e.g., potential witnesses referenced in
Cunningham Report, Am. Pet., App. 6; Bradley Aff., Am. Pet., App. 26; Young Decl., Am.
Pet., App. 25; Jonathan Sheppard, Am. Pet., App. 16. The superficial, limited testimony of
the punishment phase live witnesses, the limited scope of Dr. Ray’s testimony, the heavy
reliance for Sheppard’s personal history on Dr. Ray’s brief written report and redacted crisis
center records left the jury with only a truncated and sparse sense of Sheppard as a person.
This dry record was substantially less persuasive and comprehensible to a jury than testimony
from numerous people, properly prepared to testify, who knew Sheppard and experts who
could have meaningfully evaluated and studied her background. In this Court’s view,
counsel’s preparation on the mitigation issue fell materially short of longstanding ABA and
State Bar of Texas recommended standards for capital cases. The Respondent’s contention
that the unpresented evidence was merely cumulative or double-edged is not realistic in light
of the volume and type of evidence that the jury did not hear.
With regard to the other claims, this Court concludes that, under controlling precedent,
Petitioner has failed to make a “substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Regarding those claims that have been dismissed on procedural
P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

57

grounds, this Court concludes that jurists of reason would not find it debatable whether the
petition states valid grounds for relief and would not find it debatable whether this court is
correct in its procedural determinations. This Court concludes that, with the exception of the
punishment phase ineffective assistance of counsel claim, Petitioner is not entitled to a
certificate of appealability.
V.

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

Respondent Lorie Davis’ Motion for Summary Judgment [Doc. # 46] is
GRANTED;

2.

Petitioner Erica Yvonne Sheppard’s Amended Petition for Writ of Habeas
Corpus [Doc. # 28] is DENIED in all respects and is DISMISSED WITH
PREJUDICE; and

3.

A certificate of appealability shall issue only on Sheppard’s claim that
counsel rendered ineffective assistance in the investigation, development and
presentation of mitigating evidence during the punishment phase at trial.

The Clerk shall notify all parties and provide them with a true copy of this
Memorandum and Order.
A separate final judgment shall be entered.
SIGNED at Houston, Texas, this 29th day of March, 2017.

_______________________________________
NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

P:\ORDERS.Prsnr\2014\140655.MSJ.wpd

170329.0847

58