Sells v. Dretke

Filing 139

MEMORANDUM OPINION AND ORDER. Signed by Judge Orlando L. Garcia. (Attachments: # 1 continuation of Order pages 67-128, # 2 continuation of Order pages 129-193, # 3 continuation of Order pages 194-260, # 4 continuation of Order pages 261-290)(kh, ) Modified on 6/29/2012 to edit filing date (kh, ).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO. DIVISION
TOMMY LYNN SELLS,
TDCJ No. 999367,

JUN 2 8 2O1
CLERK, U.S DST RC COURT
T F TEXAS
WESTERN

§
§

§

Petitioner,

§
§

V.

§

CIVIL NO. SA-08-CA-465-OG

§

RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,

§
§
§

§

§

Respondent.

§

MEMORANDUM OPINION AND ORDER DENYING RELIEF
Petitioner Tommy Lynn Sells originally filed this federal
habeas corpus action in the Del Rio Division of this Court,

collaterally attacking his September, 2000 Val Verde County
conviction for the capital murder of Kaylene Harris on December
31,

1999.

Following a change of venue and multiple stays of this

cause to permit petitioner to return to state court and exhaust

state court remedies on various claims, including an Atkins
claim,
2011,

petitioner filed his amended petition on February 23,
asserting several claims of ineffective assistance by his

trial counsel, complaints regarding the trial court's rulings on

evidentiary and procedural matters, and a number of challenges to
the constitutionality of the Texas capital sentencing scheme.

For the reasons set forth hereinafter, petitioner is entitled to

neither federal habeas corpus relief nor a Certificate of

Appealability from this Court.

I.

Background

The Offense

A.

There is no genuine doubt as to the events of December 31,
1999 which resulted in the death of Kaylene Harris.
of his arrest on January 2,

Within hours

2000, petitioner gave a voluntary,

videotaped statement in which he described

(1)

entering the

Harris family residence during the early morning hours of

December 31, 1999 through a bedroom window with a butcher knife
he had brought with him,

(2)

entering the bedroom where 13-year-

old Kaylene was sleeping with her 11-year-old family friend
Krystal Surles,
Kaylene,

(4)

(3)

turning on the bedroom light and waking

slashing Kaylene's throat with his knife,

(5)

telling a frightened Krystal Surles to remove her hands from her

own throat and then slashing her throat as well, and

(6)

thereafter exiting the Harris residence through the door.'
Later on the day of his arrest, petitioner voluntarily

accompanied law enforcement officers to the Harris residence

An edited copy of the petitioner's videotaped confession
was admitted into evidence at petitioner's trial as State Exhibit
1-A and played for the jury. Statement of Facts from petitioner's
trial, (henceforth "S.F. Trial"), Volume 21, testimony of Larry
Pope, at p. 51. A pair of DVD's containing both the petitioner's
complete videotaped confession, as well as the edited version
actually admitted into evidence during trial, appear among the
state court records in this cause.
1

2

where he walked them through a videotaped tour of the crime scene
and again described his actions on the night of the murder.2
In what her physician described as a "remarkable" and

"amazing" turn of events,3 once petitioner fled the scene,

Krystal Surles survived her injuries and managed to walk to a

neighboring residence, where she indicated nonverbally her need
for help and the need for help to be summoned to the Harris

residence

2

The videotape recording of petitioner's "walk-through" at
the crime scene was admitted into evidence at petitioner's trial
as State Exhibit no. 3 and played for the jury. S.F. Trial,
Volume 19, testimony of John W. Allen, at p. 165. A copy of the
videotape of the petitioner's crime scene "walk-through" appears
on a DVD among the state court records herein.

One of the physicians who treated Krystal Surles at the
University of Texas Health Science Center in San Antonio
testified (1) Krystal's injuries were normally lethal, (2) it was
"remarkable" emergency medical personnel in Del Rio were able to
intubate Krystal due to the extent of her injuries and the
accompanying swelling and distortion resulting therefrom, (3) "it
is by the grace of God that she is alive today," (4) Krystal
suffered a five-inch wound across her neck which nearly severed
her carotid artery and did penetrate through her thyroid
cartilage and sever a portion of her vocal cords, (5) Krystal's
injuries rendered her unable to speak, and (6) Krystal also had
defensive wounds to both her hands. S.F. Trial, Volume 21,
testimony of Dr. Cynthia Beamer, at pp. 32-37.
S.F. Trial, Volume 19, testimony of Krystal Surles, at pp.
100-10; testimony of Herbert H. Betz, at pp. 116-24.
The neighbor to whose residence Krystal walked after she and
Kaylene were attacked by petitioner testified at petitioner's
trial (1) he was awakened just before five a.m. on December 31,
1999 by his door bell ringing, (2) he asked who was there but
heard no response, (3) when he flipped on the porch light, he saw
a little girl covered in blood, (4) the girl pointed to her
throat, which he could see had been slashed, (5) the girl could
not talk, (6) his wife cared for the girl while he called 9-11,
3

At petitioner's trial, Krystal Surles testified without

contradiction

(1)

she was awakened by the sound of Kaylene's

voice saying "help,"

(2)

when she awoke, the light was on in the

bedroom and she could see petitioner's hands covering Kaylene's
mouth,

(3)

petitioner had a knife in his right hand,

petitioner slit Kaylene's throat,

(5)

(4)

she saw

Kaylene turned, grabbed a

poster off the wall, fell, and began making "bad noises," gasping
for air and gurgling,
(7)

(6)

petitioner then moved toward Krystal,

she promised to be quiet and begged to be spared,

petitioner told her to "move your hands,"

(9)

(8)

petitioner then

reached into the upper bunk where Krystal was lying and cut her
throat,

(10)

Krystal lay still and pretended to be dead,

(11)

petitioner walked to the bedroom door, looked around, turned off
the light, and exited the bedroom,

(12)

Krystal remained still

for another few minutes, then climbed down off the bunk and

unsuccessfully tried to leave the house through a bedroom window,
(13)

she was unable to talk but tried to comfort Kaylene by

laying down next to her,

(14)

she heard a vehicle start up and

(7)
(6) the girl gestured that she wanted to write something,
when they handed her paper and pencil, she wrote "Harrises are
hurt," "tell them to hurry,' and "will I live," (7) emergency
medical personnel arrived and furnished care to Krystal while he
directed law enforcement officers to the Harris residence. S.F.
Trial, Volume 19, testimony of Herbert H. Eetz, at pp. 116-24.

felt her way to the door,

unlocked, and (16)

On January

7,

(15)

the front door of the house was

she walked to the Betz's home to seek help.5
2000, petitioner executed two voluntary

written statements detailing his actions on the night of the
murder and stating, for the first time, he had cut off Kaylene's
underwear and molested her before he slashed her throat.6

S.F. Trial, Volume 19,
87-107.

testimony of Krystal Surles, at pp.

Petitioner's written statements were admitted into
evidence at petitioner's trial as State Exhibit nos. 4 and 5 and
read in open court to the jury. S.F. Trial, Volume 20, testimony
of Larry Pope, at p. 170. copies of petitioner's two written
statements appear in S.F. Trial, Volume 28.
In his first, and longer, of those two statements, i.e.,
State Exhibit no. 4, petitioner recounted a meeting with Terry
Harris, Kaylene's father, on December 30, 1999 at a convenience
store, during which Harris informed petitioner he was going to
Kansas and would re-pay petitioner money which Harris owed
petitioner for cocaine once Harris returned from Kansas.
Petitioner also stated he later became angry with Harris for not
timely repaying petitioner and "decided to do something about
Petitioner explained he went home, obtained a knife and
it."
Petitioner then
beer, and drove to the Harris residence.
some
the Harris residence and fatal assault
recounted his burglary of
upon Kaylene.
More specifically, petitioner stated in State Exhibit no. 4,
in pertinent part, as follows:
I, got out of the car and walked around the
I tried to get in the back door of the
[Harris] house.
house.
The back door was locked I tried to trip the
door lock where it goes into the frame of the door by
using the knife blade but I couldn't. The dog started
barking so I walked around to the front of the house
I let the dog smell my
where the dog was penned up.
hand and I petted him.
I went to the back of the
He quit barking.
the air conditioner. I took a screen off
trailer by
the window there and tried to get in. [Tihe window was
I went back around to
locked and I couldn't get in.
the front of the trailer by the dog pen and noticed the
6

5

I took the
window on that end of the trailer was open.
When I got in I
screen off and crawled in the window.
He spoke to
saw a little boy in the bed in that room.
me and said "I wish you all would quit coming in my
I knew this was the little blind boy, I had met
room."
him before.
I have been out to Terry's house several
times before and I had been inside his house before.
I
walked out of the bedroom into a bedroom beside it.
struck my lighter and looked in this room. There was a
I think I looked
small girl sleeping in this room.
into the room where the murder took place but I'm not
sure.
I know I walked down to the other end of the
Terry's wife
trailer.
I looked in Terry's bedroom.
I think
sleeping in that room.
and a little girl were
I still didn't know
I touched Terry's wife on the leg.
what I was going to do.
I left that room and went all
I walked
the way back to the other end of the trailer.
This is
into the bedroom on that end of the trailer.
I don't
the bedroom where the murder took place.
remember how she woke up but I do know I layed [sic]
down beside the girl on the bottom bunk and I cut her
I
I think I cut her bra.
panties off with the knife.
touch [sic] her between the legs and I touched her
The she jumped out of
breast.
She wasn't fighting me.
bed, she jumped out on the side away from the door.
She told the girl on the top bunk to go get moma [sic]
The
I stood in front of the bedroom door to block it.
door was already closed. She came toward the door like
I stabbed
she was going to try to get out the door.
her with the knife. She said something like, look you
I turned on the bedroom light and she showed
cut me.
I walked toward her, I reached out and
me her arm.
sliced her throat.
She fell down at the foot of the
I reached down and I cut her throat a couple more
bed.
I started to walk out of the room and I
times.
I
remember [sic] the little girl on the top bunk.
walked over to the side of the bed and laid the knife
I walked out of
across her throat and cut her throat.
the room toward the back door When I got about to the
It was
kitchen I heard an alarm clock got [sic] off.
I walked back toward the other
making a beeping sound.
end of the trailer where the sound was coming from.
I
The alarm clock was in the little blind boy's room.
went in this room, I picked up the clock and turned the
alarm off. I don't remember seeing the little boy in
the room when I did this.

B.

Indictments
On February

8,

2000, a Val Verde County grand jury indicted

petitioner on two counts of capital murder, to wit, intentionally
murdering Kaylene by cutting her throat while in the course of
committing the offenses of

(1)

burglary of a habitation with

intent to commit aggravated sexual assault and
sexual assault.7

(2)

aggravated

Petitioner was indicted separately for the

attempted murder of Krystal Surles.

The state trial court

consolidated both cases for trial.

I walked to the back door and left by the door.
I
closed the door and wiped my fingerprints off the
doorknob with the sleeve of my jacket.
I picked up the
screen from the back window. I walked around front and
picked up the other screen I had taken off.
I took the
screens because they would have my fingerprints on

them.

*

*

*

In the shorter of his two written statements, i.e., State
Exhibit no. 5, petitioner supplemented his earlier account of his
offense, in pertinent part, as follows:
When I went into the bedroom where the murder
happened I got in the bottom bunk with the Harris girl.
I don't know her first name but I knew she was kin
I don't know what I said but I
[sic] Terry Harris.
threatened her with the knife to keep her quite [sic]
I cut her panties off and I cut or pulled her bra off.
I touched her breast and I put my hand between her legs
and I put my finger in her vagina.
Shortly after that
she jumped out of bed and I have already told the rest.

Transcript of pleadings, motions, and other documents
filed in petitioner's state trial court proceeding (henceforth
"Trial Transcript"), at pp. 9-10.
Petitioner was indicted under a separate cause number on a
charge of attempted murder in connection with his assault upon
Krystal Surles.
The state trial court consolidated the two
charges for trial. Trial Transcript, at p. 131.
':4

Guilt-Innocence Phase of Trial

C.

The guilt-innocence phase of petitioner's trial commenced on

September 12, 2000.

At the outset of trial, petitioner pleaded

guilty to the attempted murder of Krystal Surles.8
1.

The Evidence

In addition to the evidence summarized above,

the

prosecution presented testimony from a Del Rio waitress
establishing that, on the night of December 30, 1999, petitioner
(1)

repeatedly solicited sex from her, even offering to pay for

same,

(2)

she relected all his offers,

(3)

petitioner eventually

left the bar where she worked around 2:15 a.m., and

(4)

petitioner commented at one point that he had a knife.9
Terry Harris, Kaylene's father, testified

(1)

he knew

petitioner through church and had counseled petitioner on marital

problems and offered career advice,

(2)

petitioner had been

inside the Harris home at least once and had met all the Harris
children,

(3)

he purchased his truck at the motor vehicle

dealership where petitioner worked,

(4)

petitioner helped him

repair a leaky water line in the backyard and he showed

petitioner where the family's phone line was located to avoid
accidentally cutting the line,

(5)

the Harris family dog was

90-92.

28-37.

S.F.

Trial, Volume 19,

at pp.

S.F.

8

Trial, Volume 19,

testimony of Noell Houchin, at pp.

13-14,

familiar with petitioner,

(6)

the evening before Kaylene's

murder, he had a conversation with petitioner at a convenience

store and informed petitioner he was leaving town on a trip to
Kansas,

(7)

he reached Kansas around six thirty the following

morning and unsuccessfully attempted to phone home, and
he returned home,

when

(8)

he found his telephone line had been cut near

the area where he and petitioner had repaired the leaky pipe.'°

Kaylene's mother Crystal Harris testified, in pertinent
part,

(1)

she was awakened on the morning of December 31,

1999 by

the sound of the Sheriff's department personnel inside her home,
(2)

law enforcement officers would not allow her to move toward

the rear of the house where Kaylene's bedroom was located,

(3)

she and her surviving children were removed from their home,
she unsuccessfully attempted to telephone her husband,
she retired the night before,

(5)

(4)

when

all of the doors were shut and

locked and all but one window (in her son Justin's bedroom) was
locked,

(6)

petitioner had been to the Harris residence at least

three times to talk with her husband, had met her children, and
was friendly with the family dog,

dog bark that night, and

(8)

(7)

she did not hear the family

the family's phone had worked

properly the day before Kaylene's murder.'1

'°

S.F.

Trial, Volume 19,

testimony of Terry Harris, at pp.

67-81.

pp.

S.F. Trial,
39-53.

Volume 19, testimony of Crystal Harris, at

Kaylene's 14-year-old brother Justin testified
been blind since birth,

December 30, 1999,

(3)

(2)

he has

he went to bed around 9:30 p.m. on

his alarm clock went off around 4:30 a.m.

while he was in the bath room,
(5)

(1)

(4)

someone turned the clock off,

he later went back to bed and fell asleep,

anyone in his room that night,

(7)

(6)

he never heard

when he awoke again, police

were asking him if he was okay and taking him outside to a car,

and

(8)

he never heard the family dog bark that night.12

Law enforcement officers testified they recovered

petitioner's blue jeans, blue-green shirt, and black jacket from
the laundry basket at the Sells residence.'3

Law enforcement

personnel also testified they recovered a butcher knife with a
bent blade from the field across the road from petitioner's
residence,

i.e.,

the location where petitioner indicated he had

thrown the murder weapon.'4

Forensic experts testified

(1)

blood stains found on

petitioner's blue jeans matched those of petitioner and

12

S.F.

Trial, Volume 19,

testimony of Justin Harris, at pp.

56-64.
'

Trial, Volume 19, testimony of John W. Allen, at pp.
165-69; Volume 20, testimony of John W. Allen, at pp. 10-11;
Volume 20, testimony of Larry Pope, at pp. 51-52, 59-61; Volume
21, testimony of Larry Dean Stamps, at pp. 19-22.
S.F.

'

S.F. Trial, Volume 19, testimony of John W. Allen, at p.
169; Volume 20, testimony of John W. Allen, at p. 11; Volume 21,
testimony of Larry Dean Stamps, at pp. 22-24, 26-27.

1

Kaylene,'5

(2)

a blood stain on Kaylene's tee shirt was

consistent with a mixture of her blood and petitioner's blood,'6
(3)

a pair of pajama shorts found at the base of the bed in

Kaylene's bedroom bore stains consistent with a mixture of
Kaylene's blood and the blood of another female,'7

(4)

blood

stains found on Kaylene's panties also contained blood stains

consistent with a mixture of Kaylene's blood and the blood of

another female,'8

(5)

the knife recovered near petitioner's

residence contained traces of a female's blood but not
Kaylene's,'9

(6)

microscopic examination of Kaylene's panties and

pajama shorts revealed both had been cut by a knife consistent

with the butcher knife recovered near petitioner's residence,2°
(7)

pink polyester fibers consistent with Kaylene's pink pajama

shorts were found on petitioner's shirt, jacket,
jeans,2'

(8)

and blue

pink cotton and pink acrylic fibers consistent with

'

S.F.

Trial, Volume 21,

16

Id.,

at pp.

74-75.

'

Id.,

at pp.

75-76.

18

Id.,

at pp.

76-77.

19

Id.,

at pp.

80-81.

testimony of Cassie Cardine, at p.

73.

20

pp.

S.F. Trial,
104-07.
21

Id.,

Volume 21, testimony of Bradley Mullins, at

at p. 112.
11

Kaylene's pajama shirt were found on petitioner's clothing,22

(9)

black acrylic fibers consistent with petitioner's jacket, bluegreen fibers consistent with petitioner's shirt, and black
polyester and black rayon fibers consistent with petitioner's
jacket were all found on Kaylene's clothing,23 and (10) three
different types of black fibers, all consistent with petitioner's
jacket, were found on Kaylene's clothing.24

The medical examiner who performed the autopsy on Kaylene's

body testified, in pertinent part

(1)

Kaylene suffered a gaping,

five-inch wound across the neck which appeared to have been the
product of three separate cuts and which caused rapid blood loss
and was fatal within several minutes25;

(2)

Kaylene's neck wound

included cuts to the right carotid artery and right jugular vein
and the complete cleaving of the top portion of her voice box26;
(3)

Kaylene sustained a total of sixteen stab wounds, three of

which went completely through her body27;

(4)

four of these stab

wounds were to the left side of Kaylene's chest, three of which

22

Id.

23

Id.,

at pp.

24

Id.,

at p.

25

92,

S.F. Trial,
95-96, 117.

112-13.
114.

Volume 20, testimony of Jan Garavaglia, at p.

26

Id., at pp.

92-93.

27

Id.,

at pp.

97-99.
12

penetrated into her left lung and the fourth of which penetrated
into her right lung, which collectively caused both of Kaylene's
lungs to collapse and blood to enter the chest cavity28;

(5)

an

abdominal stab wound penetrated six inches into Kaylene's

abdominal cavity, through her liver and duodenum29;
sustained multiple stab wounds to the left hip30;

(6)

(7)

Kaylene

a stab

wound to Kaylene's right lower back cut through her renal artery
and inferior vena cava and would have been fatal by itself31;
Kaylene also sustained superficial wounds to her left arm32;
of the multiple stab wounds to Kaylene's right arm,

(8)
(9)

one

penetrated four inches and another which extended completely
through her arm33;
forearm34;

(11)

(10)

Kaylene sustained contusions on the right

a superficial linear abrasion and linear

contusion in Kaylene's left inguinal crease was consistent with
force having been applied to Kaylene's panties and the edges
thereof cutting into her flesh35;

28

Id.,

at pp.

98-99, 114-16.

29

Id.,

at pp.

100-01.

30

Id.,

at pp.

102-03.

31

Id.,

at p.

32

Id.,

at pp.

Id.,

at p.

Id.,

at pp.

107-08.

Id.,

at pp.

108-09.

104.

104-06..
105.

13

(12)

an oval contusion on

Kaylene's inner right thigh was likely caused by a finger or
thumb grabbing her there36;

(13)

Kaylene also sustained

contusions on the outer right knee and fresh bruises to the front
and back of both legs37;

(14)

Kaylene sustained an abrasion to

her left inner leg near the knee and multiple bruises to her left
calf and knee38;

(15)

Kaylene's body displayed a pattern of

bruises to her legs suggesting someone had grabbed both her legs
and attempted to pull them apart39; and (16)

examination of

Kaylene's genitals reveals a small, relatively fresh, bruise on
the internal aspect of the labia minora with some reddening of
the hymenal ring.40

In addition to her fatal neck wound, the

medical examiner testified the stab wounds to Kaylene's chest,
liver, and renal artery,

respectively, would each independently

have been sufficient to have caused her death.4'

Petitioner offered no evidence at the guilt-innocence phase
of his capital murder trial.

36

Id.,

at p.

Id.,

at pp.

Id.,

at p.

Id.,

at pp.

113,

40

Id.,

at pp.

113-14.

'

Id.,

at pp.

115-17.

38

110.

110-11.
112.
122.

14

The Verdict

2.

The petitioner's jury heard oral arguments,

retired, and

began its deliberations at approximately 1:35 p.m. on September
18,

2000.42

At approximately 2:45 p.m. that same date, the jury

advised the bailiff they had reached their verdict.43
afternoon, the jury returned its verdict,

Later that

finding petitioner

guilty of the capital murder of Kaylene Harris.44

The trial

court ordered the jury sequestered.45
D.

Punishment Phase of Trial
The punishment phase of petitioner's capital murder trial

commenced on September 19, 2000.
The Prosecution's Evidence

1.

The prosecution called a former Val Verde County Detention

Center inmate who had been housed in a cell adjacent to

petitioner's for a little more than two months who testified

(1)

when he complained of depression, the petitioner told him to hang
himself,

(2)

in April,

2000,

the petitioner became angry and

threatened to blind and kill him, and

42

S.F.

Trial, Volume 23, at p.

Id.

Id.,

at pp.

Id.,

at p.

91-92.
93.
15

(3)

90.

when he reported

petitioner's threats, jail officials moved him to a different
part of the facility.46
The prosecution next called a psychologist
Mears) who testified

(1)

(Dr.

Frederick

based primarily upon a review of

petitioner's records and the details of petitioner's capital
offense (including photographs of the victim's injuries),

the

petitioner was "off the scale" in terms of the likelihood of
future violence by petitioner,
of future violent behavior,

(2)

(3)

the past is the best indicator

Kaylene's autopsy revealed a

number of post-mortem wounds which he described as analogous to
body desecration and mutilation,

(4)

the nature of many of

Kaylene's non-fatal wounds suggested the petitioner had derived

pleasure from the brutality of his capital offense,

(5)

anti-

social personalities such as the petitioner are highly

manipulative,

(6)

petitioner displayed a cavalier attitude on his

videotaped confession and crime scene walk-through indicative of
a lack of emotion and absolute indifference to death typical of

an anti-social personality,

(7)

he detected an increase or

escalation over time in the level of violence involved in
petitioner's criminal history, and

46

(8)

petitioner displayed no

S.F. Trial, Volume 24, testimony of Danny Calderon, at
42-51.
pp.
16

remorse for his criminal conduct on either of the videotapes made

January

2,

20O0.

A Texas Department of Public Safety fingerprint analyst
testified petitioner's fingerprints matched those on a pair of
pen packets, one from Wyoming reflecting petitioner's conviction
for auto theft, and another from West Virginia, reflecting

petitioner's conviction for "malicious wounding."48
The Defense's Evidence

2.

The defense called the Val Verde County jail administrator

who testified petitioner had only two disciplinary referrals

during petitioner's stay of more than eight months at that
facility, one of which was a verbal threat against an inmate in
an adjoining cell.49

The defense called its own psychologist (Dr. Windel Lee
Dickerson)

who testified, in pertinent part,

interviewed petitioner for

two,

(1)

he had

days in April, 2000,

listened to a

recorded interview of petitioner's mother, reviewed petitioner's

prison records, and spoken with persons who had known petitioner

S.F. Trial, Volume 24,
at pp. 55-85.
48

S.F. Trial, Volume 24,
86-91.

testimony of Dr. Frederick Mears,
testimony of Charles Joe Parker,

at pp.
The two pen packets were admitted into evidence as State
Exhibit Nos. 104 and 105 and appear in S.F. Trial, Volume 28.
S.F. Trial, Volume 24,
101-03.
pp.
'

testimony of Patricia Hobrecht, at

17

all his life,

(2)

he suspected petitioner had been sexually

abused while quite young by a pedophile who lived in petitioner's

neighborhood but petitioner would not discuss the subject,

(3)

petitioner had a profound history of substance abuse that began
possibly as early as age seven and was a serious problem by the
time petitioner reached age fifteen,

(4)

an EEG revealed a

widespread pattern of diffuse abnormality in petitioner's brain
function, including coherence problems, phase and symmetry

problems, and problems with the front and rear portions of

petitioner's brain communicating well with each other,

(5)

he

administered various psychological tests to petitioner which
revealed petitioner is a very seriously disordered individual,
and

(6)

in contrast to the prosecution expert's diagnosis of

anti-social personality, his diagnosis of petitioner was that of
borderline personality disorder with schizoid, avoidant,

and

anti-social features and possible brain damage but not true antisocial personality. 50
Dr. Dickerson also testified as follows:

What my examination has revealed to this point is,
there is a history of life experience which could be
which could be considered instigators to violence,
There are conditions that are
things that prompt him.
present in his mind and body which I think dramatically
affect his ability to guide and direct his own behavior
Those
and resist those instigations [sic] to violence.
self-restraint
same things that reduce his capacity for

50

S.F.

Dickerson,

Trial, Volume 24, testimony of Dr. Windel Lee
at pp. 128-58.
18

have also altered his ability
I think his ability to
get a wrap around a lot of bad things that has [sic]
happened in his life and reconstruct them, reposition
them in his life in such a way that they do not cause
him the problems that they have caused, so I think when
I talk about Tommy Lynn Sells, I'm talking about
somebody who has got a lot of problems that give us
cause to be very seriously concerned.51
Dr. Dickerson testified further that medications had helped

petitioner control his propensity

f or

violence during previous

incarcerations and that, if removed from the rest of the prison

population and properly medicated, it was possible to reduce the
risk factors for future violence and improve petitioner's

capacity
(1)

f or

self-management.52

Dr. Dickerson also opined that

with the exception of those convicted of sexually motivated

crimes and serial killers, mental health professionals were no
more accurate than other in terms of predicting future violence

by prisoners,53 and

(2)

based upon his experience with the Texas

prison system, he believed petitioner could be housed under
conditions that greatly reduced the risk of future violence from
petitioner.54

On cross-examination, Dr. Dickerson testified

(1)

petitioner

scored near the top of the MMPI scale measuring lack of empathy,

51

Id.,

at p.

52

Id.,

at pp.

161-63,

Id.,

at pp.

165-68.

Id.,

at pp.

168-73.

160.

168

1r

(2)

persons who score high on that measure are often angry and

unable to express their feelings, have a low frustration

and are often irritable,

tolerance,

(3)

petitioner also had an

elevated paranoia scale, which is not uncommon in prison, and

(4)

petitioner's EEG and other medical tests show no brain tumors or
seizure disorders

On re-direct examination, Dr. Dickerson testified

(1)

petitioner will not be free if sentenced to life in prison,
the availability of street drugs in prison is limited,

(3)

(2)

life

in prison reduces or eliminates many of the risk factors for

violence,

including concerns over financial stress, unemployment,

and housing stability,

(4)

inmates assigned to administrative

segregation are held outside the general prison population and
guarded heavily,
grow older,

(6)

(5)

people tend to grow less violent as they

petitioner was then 36 years old and would have

to serve at least forty years in prison before becoming eligible
f or

release on parole,

treated in prison,

(8)

(7)

petitioner's medical problems can be

the pool of petitioner's potential victims
the availability of

is narrowed while he is in prison,

(9)

weapons in prison is reduced,

it is easier to monitor and

(10)

manage petitioner's mental illness while he is in prison,

(11)

the risk of future violence from petitioner in prison is greatly

S.F. Trial, Volume 25,
Dickerson, at pp. 8-16.

testimony of Dr. Windel

20

L.

reduced,

(12)

alcohol consumption contributed prominently in

every one of petitioner's criminal offenses for which he had been

convicted and the availability of alcohol in prison is reduced,
(13)

but,

in the free world, petitioner is "dangerous as he can be"

under proper medication and supervision in a prison setting,

petitioner's danger level can be reduced "very appreciably,"

(14)

"you have got an individual here who is a very alarming person,"

and

(15)

probably seventy five percent of prison inmates could be

classified as anti-social, meaning there was nothing

extraordinary about Dr. Nears' diagnosis of petitioner.56
On re-cross examination, Dr. Dickerson admitted
inmates can refuse to take prescribed medications,

(1)

(2)

TDCJ

he could

not recall petitioner's comments during his videotaped confession
in which petitioner confessed to being glad he had been caught

because he feared hurting others,

(3)

petitioner must serve at

least forty years before becoming eligible for parole,

(4)

petitioner has trouble being emotionally involved with others,
(5)

petitioner's crime was very opportunistic,

to obtain a weapon inside Texas prisons, and

(6)

(7)

it is possible

prisoners have

escaped from Texas prisons, including from death row.57

Id.,

at pp.

Id.,

at pp. 38-51.

16-38.

21

Prosecution's Rebuttal Evidence

3.

The prosecution called the chief investigator for the Texas
Special Prison Prosecution Unit, who testified

(1)

prison rules

and regulations will not prevent an inmate intent on violence
from being violent,

(2)

male and female guards and prison

personnel are present at all TDCJ facilities and have daily
contact with the inmate population,
have contact with guards,

(4)

forced to take medications,

(3)

even dangerous inmates

prisoners cannot ordinarily be

and

(5)

homemade weapons are

available in prison.58
On cross-examination,

Mr. Smithey testified (1)

only a small

fraction of the more than one hundred fifty thousand T]JCJ inmates
are responsible for violence in Texas prisons,

(2)

violence

occurs throughout the prison system, even on death row,

(3)

the

only way to assure a prisoner will not be violent is to execute
him,

(4)

not all administrative segregation inmates are handled

one-on-one by guards,

(5)

while there is more security in

administrative segregation generally, administrative segregation
is not identical at all TDCJ facilities,

and

(6)

administrative

segregation is a type of prisoner classification, not a
description of a type of TDCJ unit.59

58

S.F. Trial,

Volume 25, testimony of Royce Smithey, at pp.

Id., at pp.

71-82.

58-71.

22

4.

The Verdict

On September 20, 2000, the petitioner's jury heard closing
arguments at the punishment phase of trial and retired to

deliberate at approximately 2:28 p.m.6°

At approximately 4:40

p.m. that same date, the jury sent out a note indicating it had

reached its verdict.61

Shortly thereafter, the jury returned its

verdict in open court, finding

(1)

beyond a reasonable doubt

there was a probability petitioner would commit criminal acts of

violence that would constitute a continuing threat to society62
and

(2)

taking into consideration all of the evidence,

including

the circumstances of the offense, and the petitioner's character,

background, and personal moral culpability, there were

insufficient mitigating circumstances to warrant a sentence of
life imprisonment
E.

63

Direct Appeal
Petitioner appealed his conviction and sentence in an

appellant's brief filed March 19, 2001,

in which petitioner

60

S.F.

Trial, Volume 25, at pp.

61

Id.,

at p.

62

S.F.

Trial, Volume 25, at p. 123; Trial Transcript, at p.

63

S.F.

Trial, Volume 25, at p. 123; Trial Transcript, at p.

85-121.

122.

272.

273.
23

asserted thirty-six points of error.64

The Texas Court of

Criminal Appeals subsequently affirmed petitioner's conviction
and sentence and the United States Supreme Court denied

petitioner's petition for writ of certiorari. Sells
S.W.3d 748

(Tex.

Crim. App. March 12,

2003),

v.

State,

cert. denied,

121

540

U.S. 986 November 3, 2003)
F.

First State Habeas Corpus Proceeding

Petitioner filed his first application for state habeas
corpus relief, i.e., App. no. 62,552-01, on January 30, 2003,

asserting therein six complaints of ineffective assistance by his
trial counsel.65

64

Petitioner's state appellate counsel, attorney Mark
Stevens, asserted points of error on petitioner's behalf (1)
attacking the trial court's admission of petitioner's videotaped
statements, (2) challenging the trial court's exclusion during
the punishment phase of trial of a videotape showing the
administrative segregation facilities at a TDCJ unit, (3)
challenging the trial court's refusal to permit petitioner's
trial counsel to voir dire the jury venire on their views
regarding Texas parole law, (4) challenging the trial court's
denial of petitioner's challenges for cause against two venire
members, (5) challenging the trial court's refusal to permit
petitioner's trial counsel to voir dire a female venire members
regarding whether she could ever answer the future dangerousness
special issue negatively in the case of a murdered young girl,
(6) challenging the sufficiency of the evidence showing
petitioner sexually assaulted Kaylene Harris, and (7) challenging
the constitutionality of various provisions of the Texas capital
sentencing statute and Texas capital sentencing special issues.
65

More specifically, although styled as only four claims in
petitioner's initial state habeas corpus application, the
petitioner's first state habeas counsel, attorney Terry McDonald,
argued petitioner's trial counsel rendered ineffective assistance
under the Sixth Amendment (1) by failing to adequately
investigate petitioner's background and present available
24

The state responded to petitioner's first state habeas

corpus application,

in part, by presenting the state trial court

with an affidavit from petitioner's former trial counsel in which
said counsel

(1)

stated the defense team's court-appointed

investigator Vince Gonzalez "spoke with various family members of
Tommy Lynn Sells and did not find any helpful mitigation evidence
that was not already known,"

(2)

at the request of the defense

team, petitioner underwent a PET exam which showed no organic

brain damage or signs of schizophrenia,
of trial,

(3)

during the pendency

there were no discussions among the defense team

regarding any fees other than those earned and paid for by Val

mitigating evidence, (2) due to a conflict of interest which
arose from a book deal petitioner's trial counsel negotiated
concerning said counsel's representation of petitioner, (3) by
presenting only one witness during the punishment phase of trial,
i.e., Dr. Dickerson, and (4) in contravention of the Texas
Constitution by (a) committing each of the foregoing acts, (b)
failing to voir dire the jury venire on the subject of parole,
and (c) failing to request the assistance of a co-counsel.
Transcript of pleadings, motions, and other documents filed in
petitioner's first state habeas corpus proceeding (henceforth
"First State Habeas Transcript"), at pp. 30-55.
Attached to petitioner's first state habeas application were
a pair of affidavits
(1) from Ann Matthews in which she (a)
expressed her opinion petitioner's trial defense team was more
interested in soliciting payments in exchange for petitioner's
confession to other offenses than in vigorously defending
petitioner, (b) averred that unidentified persons wired money to
the defense team from Missouri, (c) averred petitioner's defense
team permitted an author to interview petitioner at some point
and used the author to gather information for use at trial, and
(d) petitioner's defense team contacted multiple television news
magazines about selling petitioner's story, and (2) an affidavit
from Bob Schanz in which he recounts information he heard from
others about petitioner's defense team.
:

25

Verde County,

(4)

there were never any discussions of book

royalties being given or assigned to anyone on the defense team,
(5)

no one on the defense team ever accepted any remuneration

other than that provided as payment by Val Verde County,

(6)

the

defense team chose as a matter of trial strategy not to call any

mitigation witnesses other than Dr. Dickerson because of concerns
other witnesses might have knowledge of extraneous offenses

committed by petitioner which could have been raised and used by
the prosecution, including an attempted sexual assault,

petitioner approved this defense strategy, and

(8)

(7)

while the

trial court originally appointed a second attorney to assist

petitioner, and the trial court indicated a willingness to
appoint co-counsel to assist petitioner, the petitioner did not
want the attorney originally court-appointed as co-counsel to

assist at trial and petitioner's trial counsel did not feel he

needed a co-counsel for petitioner's trial.66
On June 29, 2005, the state habeas trial court issued an

Order containing its findings of fact, conclusions of law, and
recommendation that petitioner's first state habeas corpus
application be denied.67

Affidavit of Victor Robert Garcia, First State Habeas
Transcript, at pp. 73-75.
67

First State Habeas Transcript, at pp. 97-107.
26

The Texas Court of Criminal Appeals denied petitioner's

first state habeas corpus application in an unpublished per

curiam Order based upon the trial court's findings and
conclusions. Ex parte Tommy Lynn Sells, WR-62,552-Ol (Tex. Crim.
App. August 31,

2005).

Second State Habeas Corpus Proceeding

G.

On August 17, 2006, petitioner filed his second state habeas
corpus application,

in which he argued he was mentally retarded

therefore, exempt from execution pursuant to the Supreme

and,

Court's holding in Atkins
2242,

153 L.Ed.2d 335

v.

Virginia, 536 U.S. 304, 122 S.Ct.

(2002) 68

On May 23, 2007, the Texas Court

of Criminal Appeals dismissed petitioner's second state habeas

corpus application in an unpublished,

per curiam, Order based

upon petitioner's failure to make a "threshold showing of
evidence that would be at least sufficient to support an ultimate

conclusion by clear and convincing evidence that he is mentally

Transcript of pleadings, motions, and other documents
filed in petitioner's second state habeas corpus proceeding
(henceforth "Second State Habeas Transcript"), WR-62,552-02, at
pp.

4-33.

Attorney Alan Futrell filed petitioner's second state habeas
corpus application and attached thereto affidavits and sworn
statements from an educator experienced in assessing mental
retardation in students named James Patton, petitioner's mother
(Nina Lovins), petitioner's brother Timmy Sells, and petitioner's
trial expert Dr. Windel Lee Dickerson, along with properly
authenticated copies of records from several schools petitioner
attended. Second State Habeas Transcript, at pp. 36-88.
27

retarded." Ex parte Tommy Lynn Sells, WR-62,552-02, 2007 WL

1493151 (Tex. Crim. App. May 23, 2007)
H.

Third State Habeas Corpus Proceeding
On September 15, 2010, petitioner filed his third state

habeas corpus application,

in which he asserted ten new claims of

ineffective assistance by his trial counsel, along with a new

Brady claim premised upon the prosecution's alleged failure to
disclose to petitioner's trial counsel a booking sheet that was
introduced into evidence by petitioner's trial counsel during a
pretrial hearing.69

Transcript of pleadings, motions, and other documents
filed in petitioner's third state habeas corpus proceeding
(henceforth "Third State Habeas Transcript"), WR-62-552-03, at
Petitioner's ineffective assistance claims consisted
pp. 5-72.
of arguments that petitioner's trial counsel rendered ineffective
assistance virtue of (1) the state trial court's denial of
petitioner's motions for appointment of an investigator and
mental health expert, (2) said trial counsel's failure to request
a continuance to complete the investigation into potentially
mitigating evidence available in Missouri, (3) said counsel's
failure to subpoena out-of-state witnesses, including
petitioner's family members, and others who could have testified
regarding petitioner's background and abused and neglected
childhood, (4) said counsel's failure to ask Dr. Dickerson
unspecified questions that would have "personalized" petitioner,
said counsel's failure to investigate, develop, and present
(5)
available, potentially mitigating, evidence showing petitioner
suffers from fetal alcohol syndrome, (6) restrictions the state
trial court placed on the ability of the defense team to
interview petitioner's family and friends located in other
jurisdictions, (7) said counsel's failure to obtain petitioner's
mental health records and to seek a mental health evaluation of
petitioner, including neuropsychological testing of petitioner,
(8) said counsel's failure to object to the prosecutor's argument
that ten votes were needed for petitioner to receive a life
sentence, (9) said counsel's failure to inform petitioner's
appellate and state habeas counsel that the scope of trial

The Texas Court of Criminal Appeals dismissed petitioner's

third state habeas corpus application pursuant to state writabuse principles. Ex parte Tommy Lynn Sells, WR-62,552-03, 2010
WL 5168591

(Tex.

Crim. App. December 15,

2010)

counsel's investigation into petitioner's background has been
restricted financially and geographically, and (10) petitioner's
original state habeas counsel failed to investigate, develop, and
present all the claims contained in petitioner's third state
habeas corpus application.
Petitioner's new Brady claim was
premised upon the prosecution's alleged failure to disclose to
petitioner's trial counsel petitioner's booking sheet from the
Val Verde County Detention Center dated January 2, 2000 on which
a jail employee had typed an "X" next to "mental deficiency."
This same document was admitted into evidence as D-X-1 by
petitioner's trial counsel during a pretrial hearing held June
25, 2000. S.F. Trial, Volume 3, testimony of Larry Pope, at pp.
73-75.
The booking sheet in question appears at S.F. Trial,
Volume 26, among the exhibits from petitioner's pretrial Jackson
v. Denno hearing.
Attorneys Alan Futrell and John E. Wright, who filed
petitioner's third state habeas application, attached thereto a
plethora of affidavits, sworn statements, and authenticated
documents, including (1) a pair of affidavits from petitioner's
mother (Nina Lovins) (one of which was a copy of an affidavit
petitioner attached to his second state habeas corpus application
and the other of which was dated September 5, 2010), (2) another
copy of the same August 12, 2006 affidavit from Dr. Dickerson
petitioner attached to his second state habeas corpus
application, (2) a pair of affidavits from petitioner's brother
Timmy Sells (one of which was a copy of the same affidavit that
had been attached to petitioner's second state habeas corpus
application and the other of which was dated September 5, 2010),
(3) affidavits of Vince Gonzales (dated September 14, 2010), Mary
Howell (dated September 5, 2010), and Paul Hunt (dated August 30,
2010), (4) a fetal alcohol syndrome disorder screening
questionnaire, (5) the affidavit of Dr. Richard Adler dated
September 14, 2010 and several medical journal articles on fetal
alcohol syndrome, (6) the affidavit of Dr. Antoinette McGarrahan
dated July 10, 2009, (7) the affidavit of Dr. Brian Skop dated
September 14, 2009, (8) petitioner's January 2, 2000 booking
sheet from the Val Verde County Detention Center, and (9) various
documents from petitioner's trial court proceedings, including
his judgment.
29

H.

Proceedings in Federal Court
Petitioner filed his original petition in the Del Rio

Division of this Court on August 16, 2006. Docket entry no. 12.
The first stay of proceedings in this cause to permit

petitioner to return to state court to present then-unexhausted
claims took place on August 23, 2006. Docket entry no. 14.
stay was lifted August

4,

2008. Docket entry no.

That

25.

Thereafter, petitioner "supplemented" his claims herein on
no less than four separate occasions. Docket entry nos.
82,

70,

71,

86.

A second stay was issued August

16,

2010 to permit

petitioner to return to state court once more and exhaust
available state habeas corpus remedies on a wide range of new
claims petitioner had presented in his various supplemental
pleadings. Docket entry no.

That second stay was lifted

106.

December 17, 2010. Docket entry no.

115.

On February 23, 2011, petitioner filed his amended federal
habeas corpus petition, asserting therein numerous claims of

ineffective assistance by his trial counsel, complaints about the
trial court's limitations on pretrial investigative funding,

complaints about the trial court's restrictions on petitioner's
trial counsel's voir dire examination of the jury venire, the
trial court's denial of petitioner's challenges for cause to two

members of the jury venire, the trial court's exclusion of a

IiJ

proffered videotape showing the administrative segregation
facilities at a TDCJ unit, and multiple challenges to the

constitutionality of the Texas capital sentencing scheme and
capital sentencing special issues. Docket entry no. 122.

Petitioner attached to his amended petition voluminous
documents, many of which petitioner has never presented to any
state court.7°

Among the many documents petitioner presented to this
Court for the first time as attachments and exhibits to his
amended petition which petitioner has never presented to any
state court, despite years of stays and delays for the very
purpose of allowing petitioner to exhaust available state
remedies on his new claims and new evidence, are (1) an undated,
unsworn declaration by petitioner's mother Nina Lovins
(Petitioner's Exhibit 122-4), (2) an unsworn declaration by
petitioner's brother Timmy Sells dated October 28, 2009
(Petitioner's Exhibit 122-6), (3) an unsworn declaration by Mary
Howell dated March 11, 2010 (Petitioner's exhibit 122-7), (4) an
unsworn declaration by Lance E. Page dated December 12, 2009
(Petitioner's Exhibit 122-8), (5) an unsworn declaration by Sandi
Wicoff dated October 29, 2009 together with an unauthenticated
transcription of a unverified interview (Petitioner's Exhibit
122-9), (6) an unsworn declaration by Paul Hunt dated December
11, 2009 (Petitioner's Exhibit 122-10), (7) an affidavit of Danny
D. Hunter dated October 5, 2007 (Petitioner's Exhibit 122-11),
(8) an unsworn, undated, declaration of Jessica Y. Levrie Blanco
Sells (Petitioner's exhibit 122-13), (9) an affidavit of John
Pippen dated October 5, 2009 (Petitioner's Exhibit 122-14), (10)
an unsworn declaration by Guadalupe D. Guzman dated October 27,
2009 (Petitioner's exhibit 122-15), (11) a report dated September
23, 2008 from CLS Mitigation and Consulting Services accompanied
by copies of petitioner's medical records from a 1981
hospitalization reflecting petitioner has significant anger
issues and feels the need to strike out at others (Petitioner's
exhibit 122-22), (12) a business records affidavit dated January
20, 2009 and 236 pages of records from the Missouri Department of
Corrections reporting numerous instances of disciplinary
infractions committed by petitioner during petitioner's
incarceration for "felonious stealing" at age nineteen and
following the revocation of petitioner's parole for DWI
°

31

On May 16, 2011,

respondent filed his answer to petitioner's

amended petition, arguing therein, in part,

(1)

many of

petitioner's claims herein are procedurally defaulted by virtue
of the dismissal of petitioner's third state habeas corpus

application and

(2)

petitioner's reliance on voluminous new

documents which fundamentally alter the nature of many of

petitioner's otherwise exhausted ineffective assistance claims
and render same unexhausted.

On August

8,

Docket

entry no. 125.

2011, petitioner filed his reply to

respondent's answer, arguing therein that ineffective assistance
by petitioner's initial state habeas counsel mandated rejection
of respondent's procedural default defense and compel this Court

to address the merits of all of petitioner's claims herein.

Docket

entry no. 134.

Petitioner attached thereto more

voluminous exhibits, once again many of which have never been

presented by petitioner to any state court.71

(Petitioner's Exhibit 122-23), and (13) a mental health
evaluation dated March 13, 1990 performed by personnel with the
Wyoming State Hospital indicating petitioner displayed lowaverage IQ and an anti-social personality and a February 29, 1990
report by a Dr. Paul C. Jennings indicating petitioner was then
functioning in the low average range intellectually (Petitioner's
Exhibit 122-24)
71

Among the many new documents which apparently have never
been presented to any state court in support of his claims herein
are (1) an affidavit by petitioner's first state habeas counsel,
attorney Terry McDonald, dated August 4, 2011 (Petitioner's
exhibit 134-2), (2) a trio of state habeas corpus applications
filed by attorney McDonald on behalf of Ramiro Gonzales, Geronimo
Gutierrez, and Taichin Preyor (Petitioner's exhibits 134-3, 13432

Standard of Review

II.

Because petitioner filed his federal habeas corpus action
after the effective date of the AEDPA, this Court's review of

petitioner's claims for federal habeas corpus relief is governed
by the AEDPA. Penry
1910,

1918,

review,

Johnson, 532 U.S.

v.

150 L.Ed.2d

9

(2001).

782,

792,

121 S.Ct.

Under the AEDPA standard of

this Court cannot grant petitioner federal habeas corpus

relief in this cause in connection with any claim that was

adjudicated on the merits in state court proceedings, unless the
adjudication of that claim either:

(1)

resulted in a decision

that 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)

resulted in a decision that

was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding.

Payton,

544 U.S. 133,

(2005); Williams v.

141,

125 S.Ct. 1432,

Taylor, 529 U.S.

1519, 146 L.Ed.2d 389

(2000)

;

362,

28 U.S.C.

§

Brown

v.

1438, 161 l.Ed.2d 334

404-05, 120 S.Ct.

1495,

2254(d)

The Supreme Court has concluded the "contrary to" and

"unreasonable application" clauses of Title 28 U.S.C. Section
2254(d)

(1)

have independent meanings. Bell

v.

Cone,

535 U.S. 685,

and 134-5, respectively), and (3) a state habeas corpus
application and numerous exhibits attached thereto apparently
filed on behalf of Lejames Norman in September, 2010
(Petitioner's exhibits 134-5 and 134-6)
4,

33

694,

122 S.Ct.

1843,

1850,

152 L.Ed.2d 914

(2002)

.

Under the

"contrary to" clause, a federal habeas court may grant relief if
(1)

the state court arrives at a conclusion opposite to that

reached by the Supreme Court on a question of law or

(2)

the

state court decides a case differently than the Supreme Court on
a set of materially indistinguishable facts. Brown v.

U.S. at 141,
15-16,

125 S.Ct. at 1438; Mitchell v.

124 S.Ct.

7,

10,

157 L.Ed.2d 263

Payton, 544

Esparza, 540 U.S. 12,

(2003) ("A state court's

decision is 'contrary to' our clearly established law if it
'applies a rule that contradicts the governing law set forth in

our cases' or it 'confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent.'").

A state

court's failure to cite governing Supreme Court authority does
not, per Se,

establish the state court's decision is "contrary

to" clearly established

federal law:

"the state court need not

'so long as neither the

even be aware of our precedents,

reasoning nor the result of the state-court decisions contradicts
them.'" Mitchell

v.

Esparza,

540 U.S. at 16,

124 S.Ct. at 10.

Under the "unreasonable application" clause, a federal
habeas court may grant relief if the state court identifies the
correct governing legal principle from the Supreme Court's

decisions but unreasonably applies that principle to the facts of
the petitioner's case.

Brown

v.

Payton,

34

544 U.S.

at 141,

125

S.Ct. at 1439;
2527,

2534-35,

Wiggins

v.

Smith, 539 U.S. 510,

156 L.Ed.2d 471

(2003)

520,

123 S.Ct.

A federal court making

.

the "unreasonable application" inquiry should ask whether the

state court's application of clearly established federal law was

"objectively unreasonable." McDaniel
130 S.Ct.

665,

673,

175 L.Ed.2d 582

U.S.

Brown,

v.

(2010) ("A federal habeas

court can only set aside a state-court decision as 'an

unreasonable application of. ..clearly established Federal law,'
2254(d) (1),

if the state court's application of that law is

'objectively unreasonable.'"); Wiggins
21,

§

123 S.Ct.

at 2535.

v.

539 U.S. at 520-

Smith,

The focus of this inquiry is on whether

the state court's application of clearly established federal law

was objectively unreasonable; an "unreasonable"

application is

different from a merely "incorrect" one. Schriro
550 U.S. 465,

473, 127 S.Ct.

1933,

1939,

v.

Landrigan,

167 L.Ed.2d 836

(2007) ("The question under the AEDPA is not whether a federal

court believes the state court's determination was incorrect but

whether that determination was unreasonable
higher threshold."); Wiggins
at 2535;
1853,

Price

v.

Vincent,

155 L.Ed.2d 877

v.

Smith,

538 U.S.

a substantially

539 U.S. at 520,

634,

641,

123 S.Ct.

123 S.Ct.

1848,

(2003) ("it is the habeas applicant's burden

to show that the state court applied that case to the facts of

his case in an objectively unreasonable manner")

As the Supreme Court has recently explained:

35

Under the Antiterrorism and Effective Death Penalty
a state prisoner seeking a writ of habeas corpus
from a federal court "must show that the state court's
ruling on the claim being presented in federal court
was so lacking in justification that there was an error
well understood and comprehended in existing law beyond
any possibility for fairminded disagreement."
132 S.Ct. 26, 27, 181 L.Ed.2d
Bobby v. Dixon,
U.S.
131
328 (2011) (quoting Harrington v. Richter, 562 U.S.
S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011))
Act,

,

,

,

Legal principles are "clearly established"

AEDPA review when the holdings,

,

for purposes of

as opposed to the dicta,

of

Supreme Court decisions as of the time of the relevant statecourt decision establish those principles.
Alvarado,
938

541 U.S. 652,

(2004) ("We look for

660-61,

124 S.Ct.

Yarborough
2140, 2147,

v.

158 L.Ed.2d

'the governing legal principle or

principles set forth by the Supreme Court at the time the state
court renders its decision.'"); Lockyer
71-72,

123 S.Ct.

1166,

1172,

v.

Andrade,

155 L.Ed.2d 144

538 U.S.

63,

(2003)

The AEDPA also significantly restricts the scope of federal

habeas review of state court fact findings.
of Title 28, United States Code,

Section 2254(d)

(2)

provides federal habeas relief

may not be granted on any claim that was adjudicated on the
merits in the state courts unless the state court's adjudication
of the claim resulted in a decision based on an unreasonable

determination of the facts in light of the evidence presented in
the state court proceeding.
S.Ct. 841,

849,

Wood

175 L.Ed.2d 738

v.

Allen,

(2010) ("[A]

U.S.

,

,

130

state-court factual

determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the

Williams

first instance.");

v.

Taylor,

529 U.S. at 410,

120 S.Ct.

("[A]n unreasonable application of federal law is

at 1522

different from an incorrect application of federal law.")

Even

.

if reasonable minds reviewing the record might disagree about the

factual finding in question (or the implicit credibility

determination underlying the factual finding), on habeas review,
this does not suffice to supersede the trial court's factual

determination. Wood
Rice

v.

Collins,

L.Ed.2d 824

v.

Allen,

546 U.S. 333,

U.S.

341-42,

at

,

130 S.Ct. at 849;

126 S.Ct.

969,

976,

163

(2006)

In addition,

Section 2254

(e) (1)

provides a petitioner

challenging state court factual findings must establish by clear
and convincing evidence that the state court's findings were
erroneous. Schriro

v.

Landrigan, 550 U.S. at 473-74,

127 S.Ct. at

1939-40 ("AEDPA also requires federal habeas courts to presume
the correctness of state courts'

factual findings unless

applicants rebut this presumption with 'clear and convincing
evidence.'"); Rice
969,

974,

moreover,

v.

Collins,

163 L.Ed.2d 824

546 U.S.

333,

338-39,

126 S.Ct.

(2006) ("State-court factual findings,

are presumed correct; the petitioner has the burden of

rebutting the presumption by 'clear and convincing evidence.'");
Miller-El

v.

Dretke,

545 U.S. 231,
37

240,

125 S.Ct.

2317,

2325,

162

L.Ed.2d 196 (2005) ("[WIe presume the Texas court's factual
findings to be sound unless Miller-El rebuts the 'presumption of
correctness by clear and convincing evidence.'"); 28 U.S.C.
§2254
2254

(e) (1)

.

It remains unclear at this juncture whether Section

applies in every case presenting a challenge to a

(e) (1)

state court's factual findings under Section 2254(d) (2). See Wood
v.

Allen,

U.S.

at

,

130 S.Ct. at 849

resolve the issue of Section 2254

(e) (1) 's

(choosing not to

possible application to

all challenges to a state court's factual findings); Rice
Collins,

546 U.S. at 339,

126 S.Ct. at 974

v.

(likewise refusing to

resolve the Circuit split regarding the application of Section
2254

(e) (1))

However, the deference to which state-court factual findings
are entitled under the AEDPA does not imply an abandonment or

abdication of federal judicial review. See Miller-El
545 U.S. at 240,

125 S.Ct. at 2325

but not insatiable"); Miller-El
123 S.Ct.

1029, 1041,

v.

(the standard is

Cockrell,

154 L.Ed.2d 931

v.

Dretke,

"demanding

537 U.S. 322,

340,

(2003) ("Even in the context

of federal habeas, deference does not imply abandonment or

abdication of judicial review.

Deference does not by definition

preclude relief.")
Finally, in this Circuit, a federal habeas court reviewing a
state court's rejection on the merits of a claim for relief

pursuant to the AEDPA must focus exclusively on the propriety of
38

the ultimate decision reached by the state court and not evaluate
the quality, or lack thereof, of the state court's written

opinion supporting its decision. See Maldonado

v.

Thaler,

625

F.3d 229, 239 (5th Cir. 2010) (federal habeas review of a state
court's adjudication involves review only of a state court's
decision, not the written opinion explaining the decision), cert.
denied,

Aubin

v.

U.S.

,

132 S.Ct.

124,

Quarter-man, 470 F.3d 1096,

181 L.Ed.2d 46

1100

(5th

dr.

(2011)

;

St.

2006) (holding

Section 2254(d) permits a federal habeas court to review only a
state court's decision and not the written opinion explaining
that decision),

cert.

denied, 550 U.S.

921

(2007); Arnador v.

Quarterman, 458 F.3d 397, 410 (5th Cir. 2006) (holding the same),
cert. denied,
142,

148

550 U.S. 920

(5th Cir.

(2007); Pondexter v.

Dretke, 346 F.3d

2003) (holding the precise question before a

federal habeas court in reviewing a state court's rejection on
the merits of an ineffective assistance claim is whether the

state court's ultimate conclusion was objectively reasonable),
cert. denied,
382,

390

541 U.S. 1045

(2004); Anderson v.

Johnson, 338 F.3d

(5th Cir. 2003) (holding a federal habeas court reviews

only a state court's decision and not the opinion explaining that
decision)

;

Neal

v.

Puckett,

286 F.3d 230,

246 (5th

dr.

banc) (holding a federal court is authorized by §2254

(d)

2002) (en

to review

only a state court's decision and not the written opinion

explaining that decision),

cert.

denied, 537 U.S. 1104

(2003)

III. Exclusion of Petitioner's Videotape of Administrative

Segregation Facilities at a TDCJ Unit
The Claim

A.

In his seventh and eighth claims in his amended petition,

petitioner argues the state trial court's exclusion of
defendant's exhibit no.

2,

a videotape recording showing the

administrative segregation facilities of the Texas Department of
Criminal Justice's Mark Michaels Unit, violated petitioner's

Eighth and Fourteenth Amendment right to present "mitigating
evidence" at the punishment phase of petitioner's capital murder
72

trial

State Court Disposition

B.

During the punishment phase testimony of defense expert Dr.
Dickerson, petitioner's trial counsel offered defense exhibit no.
2,

a fifty-seven minute videotape showing the administrative

segregation facilities at the TDCJ's Mark Michael's Unit.73

The

trial court deferred ruling on the admissibility of same until
the prosecution had an opportunity during the evening to examine
the tape.

The following day, the prosecution objected to the

Petitioner's Amended Petition, filed February 23, 2011,
docket entry no. 122 (henceforth "Amended Petition"), at pp. 17272

201.
S.F.

Dickerson,

Trial, Volume 24,
at pp. 169-70.

testimony of Dr. Windel Lee

videotape on the grounds it was not relevant and, even if
relevant,

it was cumulative of Dr.

Dickerson's testimony and did

not add anything to assist the jury in answering the special
issues.74

The trial court sustained the prosecution's objection,

concluding the tape was of questionable relevance, did not
purport to be a comprehensive description of the TDCJ's methods
of operation,

but,

rather only showed an excerpt of same, posed

the danger of misleading the jury,

and amounted to cumulative

evidence
During his cross-examination of prosecution expert Royce
Smithey, petitioner's trial counsel re-urged admission of the

videotape, arguing the videotape refuted Mr. Smithey's contention
the TDCJ "cannot control inmates."76

petitioner'

s

The trial court denied

request .'

In his motion f or new trial, petitioner argued the trial

court had erred in excluding the videotape of the Michaels Unit's

S.F. Trial,

Volume 25, at p.

S.F. Trial,

Volume 25, at pp. 5-6.

S.F. Trial,

Volume 25, testimony of Royce Smithey, at p.

81.
77

Id.
41

4.

administrative segregation facilities.78

The trial court denied

same
In his third, fourth, and fifth points of error on direct
appeal, petitioner argued the trial court's exclusion of the

videotape in question violated Texas Rules of Evidence and the
Eighth and Fourteenth Amendments.8°

The Texas Court of Criminal

Appeals rejected all of these arguments on the merits.
StaLe,
C.

Sells

v.

121 S.W.3d at 765-66.

Clearly Established Federal Law
Federal habeas corpus relief will not issue to correct

errors of state constitutional,

statutory, or procedural law,

unless a federal issue is also presented. See Estelle
502 U.S.

62,

67-68,

112 S.Ct. 475,

480,

McGuire,

v.

116 L.Ed.2d 385

(1991) (holding complaints regarding the admission of evidence

under California law did not present grounds for federal habeas
relief absent a showing that admission of the evidence in

question violated due process); Lewis
780, 110 S.Ct.

3092,

3102,

v.

Jeffers, 497 U.S. 764,

111 L.Ed.2d 606

(1990) (recognizing

that federal habeas relief will not issue for errors of state

Pulley

law);

78

v.

Harris, 465 U.S. 37,

41,

Trial Transcript, at pp. 281-84.
Trial Transcript, at p. 286.

80

Appellant's Brief, at pp. 23-37.
42

104 S.Ct.

871,

874,

79

L.Ed.2d 29 (1984) (holding a federal court may not issue the writ
on the basis of a perceived error of state law)
Quarterman,

547 F.3d 249,

261 (5th Cir.

;

Goodrurn v.

2008) ("'it is not the

province of a federal habeas court to reexamine state court

determinations on state-law questions' such as the admissibility
of evidence under state procedural rules"),

U.S.

,

128 S.Ct. 1612,

173 L.Ed.2d 1000

cert.

denied,

(2009)

In the course of reviewing state criminal convictions in

federal habeas corpus proceedings, a federal court does not sit
as a super-state appellate court. Estelle v. McGuire,

67-68,

112 S.Ct.

S.Ct. at 3102;

at 480; Lewis

Pulley

v.

v.

502 U.S.

Jeffers, 497 U.S. at 780,

Harris, 465 U.S. at 41,

at

110

104 S.Ct. at

874.

When a federal district court reviews a state
prisoner's habeas petition pursuant to 28 U.S.C. § 2254
it must decide whether the petitioner is "in custody in
violation of the constitution or laws or treaties of
the United States."
The court does not review a
judgment, but the lawfulness of the petitioner's
custody simpliciter.
Coleman v. Thompson, 501 U.S. 722, 730, 111 5.Ct. 2546, 2554, 115
L.Ed.2d 640 (1991)

A federal court may grant habeas relief based on an
erroneous state court evidentiary ruling only if the ruling

violates a specific federal constitutional right or is so
egregious it renders the petitioner's trial fundamentally unfair.
Payne

v.

Tennessee, 501 U.S. 808, 825,

111 S.Ct.

2597, 2608,

115

L.Ed.2d 720 (1991); Darden
106 S.Ct.

2464, 2470-72,

Quarterman,
414

(5th

v.

91 L.Ed.2d 144

547 F.3d at 261;

dr.

2007)

,

Wainwright,

cert.

Wood

v.

477 U.S.

(1986);

179-83,

168,

Goodrum

Quarterrnan,

denied, 552 U.S. 1314

v.

503 F.3d 408,
(2008)

;

Brown

v.

Dretk, 419 F.3d 365, 376 (5th Cir. 2005), cert. denied, 546 U.S.
1217

(2006)

The question before this Court is not whether the state
trial court properly applied state evidentiary rules but,

rather,

whether petitioner's federal constitutional rights were violated
by the state trial court's rulings on evidentiary matters. See

Bigby

v.

Dretke,

402 F.3d. 551, 563

(5th Cir. 2005) (holding

federal habeas review of a state court's evidentiary ruling

focuses exclusively on whether the ruling violated the federal

Constitution), cert. denied,

546 U.S.

900

(2005).

Due process is implicated only for rulings "of
such a magnitude" or "so egregious" that they "render
the trial fundamentally unfair."
It offers no
authority to federal habeas courts to review the mine
run of evidentiary rulings of, state trial courts.
Relief will be warranted only when the challenged
evidence "played a crucial, critical, and highly
significant role in the trial."
The due process inquiry must consider the
significance of the challenged evidence "in the context
of the entire trial."
We have held that the Due
Process Clause does not afford relief where the
challenged evidence was not the principal focus at
trial and the errors were not "'so pronounced and
persistent that it permeates the entire atmosphere of
the trial.'"
This is a high hurdle, even without
AEDPA's added level of deference.

Gonzales

v.

Thaler,

643 F.3d 425,
44

430-31 (5th Cir. 2011)

(Footnotes omitted).
D.

AEDPA Analysis
Contrary to the contentions underlying petitioner's seventh

and eighth claims herein, neither the Eighth nor the Fourteenth

Amendments renders superfluous state rules of evidence during the
punishment phase of a capital murder trial.

Petitioner's

reliance upon the Supreme Court's holdings in Chambers
Mississippi, 410 U.S. 284, 93 S.Ct.
and Green
(1979),

v.

Georgia, 442 U.S. 95,

is misplaced.

v.

1038, 35 L.Ed.2d 297
99 S.Ct.

(1973),

2150, 60 L.Ed.2d 738

Both of those opinions addressed

situations in which a state trial court excluded on hearsay
grounds evidence showing that a person other than the defendant

had confessed to committing the same capital murder for which the
defendant was being prosecuted.

In stark contrast, the

petitioner's proffered videotape showing the operations and
security procedures within the Michael Unit's administrative
segregation housing facilities do not share any similarity with
such evidence to the special issues properly before petitioner's

capital sentencing jury.
1.

No Eighth Amendment Violation

The Supreme Court has made it clear States are permitted

under the Eighth Amendment to guide the discretion exercised by
capital sentencing juries so long as the jury is not precluded
from giving mitigating effect to evidence that does lessen the
45

defendant's moral culpability or blameworthiness for his crime.
See Johnson

v.

Texas, 509 U.S. 350,

L.Ed.2d 290 (1993) (holding

(1)

62,

113 S.Ct.

2658, 2666, 125

there is no constitutional

requirement of unfettered sentencing discretion in the jury and
(2)

States are free to "structure and shape consideration of

mitigating evidence in an effort to achieve a more rational and
equitable administration of the death penalty."); Boyde
California, 494 U.S. 370, 377, 110 S.Ct.
316

(1990) (holding the same)

.

1190,

1196,

v.

108 L.Ed.2d

Evidence detailing the conditions

under which Texas prison inmates assigned to administrative

segregation are housed does not address the defendant's moral
culpability or blameworthiness for his crime.

Thus, insofar as

the state trial court concluded the videotape was not relevant to
the special issues before the jury at the punishment phase of

petitioner's capital murder trial, that conclusion was neither
objectively unreasonable under the Supreme Court's Eighth
Amendment jurisprudence nor otherwise inconsistent with clearly
established federal law.
Likewise, a capital murder defendant is not entitled to

present any and all evidence the defendant subjectively believes
to have "mitigating value" without regard for concerns of trial

management,

jury confusion, or unfair prejudice.

For instance,

the fact a capital murder defendant's co-defendant received a

life sentence for participating in the same capital offense as

the defendant does not render evidence of the co-defendant's life

sentence admissible during the punishment phase of the

defendant's capital murder trial, even when the co-defendant

actually delivered the fatal blow. See Cordova
F.3d 380, 383

(5th Cir.

v.

1998) (a capital defendant

Johnson,

157

is not entitled

to introduce evidence of a co-defendant's sentence because such

sentence is irrelevant to a defendant's "character, prior record,
or the circumstances of the offense."),
1131

cert.

denied,

525 U.s.

(1999)

Exclusion of the petitioner's proffered videotape did not
preclude petitioner from presenting any relevant, material,
mitigating evidence to petitioner's capital sentencing jury.

Dr.

Dickerson testified extensively concerning his view that the
tools available to TDCJ personnel (including medication,

close

supervision, and potential placement in administrative

segregation facilities) would be sufficient to reduce the risk of
future dangerousness or violence from petitioner while

incarcerated to a manageable level.8'
2.

No Due Process Violation

The state trial court and Texas Court of Criminal Appeals

both concluded admission of the nearly hour-long videotape
showing administrative segregation facilities at the TDCJ's Mark

81

S.F. Trial, Volume 24, testimony of Dr. Windel Lee
Dickerson, at pp. 161-73; Volume 25 testimony of Dr. Windel Lee
Dickerson, at pp. 20-37.
47

Michaels Unit posed the potential to confuse the jury because,
part,

in

there was no evidence showing that, had petitioner received

a life sentence,

he would ever have been housed in administrative

segregation at the Michaels Unit. Sells
765-66.

v.

Siate,

121 S.W.3d at

The prosecution's expert, Royce Smithey, testified

without contradiction

(1)

not all TDCJ Units possessed

administrative segregation facilities,

(2)

there were

differences, because of differences in design and operation,

between TDCJ Units in the manner in which inmates were housed
when placed in administrative segregation at those Units,

(3)

there are no "administrative segregation units" within the TDCJ,

only administrative segregation facilities within some, but not
all, Units,

(4)

even when in administrative segregation, inmates

have daily contact with guards and other prison personnel, and
(5)

classification of an inmate into administrative segregation

is not automatic.82

As the Texas Court of Criminal Appeals

pointed out, petitioner did not accompany the proffered videotape
with any evidence showing the information contained thereon

addressed the petitioner's individual circumstances or how the
petitioner might be handled if incarcerated for "life." Sells
State,

82

58-82.

v.

121 S.W.3d at 766.

S.F. Trial,

Volume 25, testimony of Royce Smithey, at pp.

Having benefitted from reviewing hundreds, if not thousands
of federal civil rights lawsuits and habeas corpus actions filed
in this Court over the past two decades, with the attendant

review of untold reams of TDCJ disciplinary and classification
records, this Court has more than a passing familiarity with the

manner in which TDCJ personnel administratively classify inmates.
Contrary to the implications underlying the testimony of Dr.
Dickerson and the arguments of petitioner's trial counsel, there
is no rational basis to believe that,

sentence of life imprisonment,

had petitioner received a

petitioner would have spent the

following forty years (or any substantial portion thereof)
away in administrative segregation.

locked

As Mr. Smithey testified,

the only locations within TDCJ where inmates are housed in

conditions analogous to administrative segregation on a permanent
basis is death row.83

This Court takes judicial notice of the

reality that, while a TDCJ inmate's offense of conviction is a

consideration in the classification process, conviction for
murder, even capital murder, does not per se mandate permanent

classification of that inmate in administrative segregation.
This Court notes that all TDCJ inmates are routinely and

periodically reviewed for adjustment of their classification
status.

Even when placed in administrative segregation, usually

for misbehavior during incarceration,

83

Id.,

at pp.

74-75.

an inmate does not remain

in administrative segregation permanently for the duration of his

sentence without any possibility of review of that determination.
It has been this Court's experience that even those TDCJ inmates

assigned to administrative segregation for serious breaches of

discipline rarely remain there for significant periods of time,
Most inmates assigned to administrative

much less permanently.

segregation remain there only until either

(1)

they have served a

period deemed sufficient by prison officials to punish them for
breaking prison rules or

(2)

the inmate indicates to prison

officials a willingness to obey prison rules and to refrain from
further breaches of those rules.

Thus,

the suggestions implicit

in Dr. Dickerson's testimony and the arguments of petitioner's

trial counsel

(that petitioner faced the realistic prospect of

permanent placement in administrative segregation for the

duration of his forty-year "life sentence")
the admission of defense exhibit no.

2

urged in support of

were, at best,

disingenuous and, at worst, misleading.
Under such circumstances, exclusion of the petitioner's

proffered videotape of the TDCJ's Mark Michaels Unit's
administrative segregation housing facilities did not constitute
an egregious evidentiary error or render petitioner's capital

murder trial fundamentally unfair. See Simmons
526,

542-44

(5th Cir.

v.

Epps,

654 F.3d

2011) (holding exclusion during the

punishment phase of a capital murder trial of a videotape in

50

which a capital murder defendant expressed remorse without

directly admitting the murder did not render the trial
fundamentally unfair), cert. filed December 27, 2011
8085).

On the contrary,

(no.

11-

the petitioner's trial counsel's and

expert's arguments implicitly suggesting the videotape accurately

reflected the conditions under which petitioner would likely
spend the bulk of a "life sentence" were, at best, highly

speculative and, at worst, factually erroneous.
The exclusion of petitioner's proffered videotape did not

render petitioner's capital sentencing hearing fundamentally
unfair.

Given Mr. Smithey's unchallenged testimony that not all

TDCJ facilities possessed administrative segregation facilities

and there were significant differences between TDCJ Units in the

manner of operation for those administrative segregation
facilities which did exist, the videotape was of dubious
relevance, at best.

Insofar as it was relevant, the videotape

was cumulative of Dr. Dickerson's testimony regarding the tools

available to TDCJ officials to reduce the risk of future violence
from petitioner.

play a "crucial,

Therefore, exclusion of the videotape did not
critical,

and highly significant role" in the

punishment phase of petitioner's capital murder trial.
E.

Conclusions
The Texas Court of Criminal Appeals'

rejections on the

merits during the course of petitioner's direct appeal of

51

petitioner's Eighth and Fourteenth Amendment challenges to the
state trial court's exclusion of petitioner's proffered videotape
of the TDCJ's Mark Michael Unit's administrative

segregation

facilities were neither contrary to, nor involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States, nor based upon an

unreasonable determination of the facts in light of the evidence
presented in the petitioner's trial, motion for new trial, and
direct appeal proceedings.

Petitioner's seventh and eighth

claims herein do not warrant relief under the AEDPA.
IV.
A.

Prohibition on Voir Dire Regarding Parole

The Claim
In his second claim herein, petitioner argues the state

trial court erred in refusing to permit petitioner's trial

counsel to voir the jury venire individually regarding each

venire member's view on Texas parole law via-a-vis a capital
sentence

84

Amended Petition, at pp. 106-51.
Petitioner's Amended
Petition consists substantially of a verbatim recitation of six
through nineteen, many of which raised purely state
constitutional claims.
Insofar as petitioner's second claim
herein can be construed as asserting grounds for relief based on
alleged violations of the Texas Constitution, those grounds are
non sequitur.
Federal habeas corpus relief will not issue to
correct errors of state constitutional, statutory, or procedural
law, unless a federal issue is also presented. See Estelle v.
McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480 (holding complaints
regarding the admission of evidence under California law did not
present grounds for federal habeas relief absent a showing that
admission of the evidence in question violated due process)
52

B.

State Court Disposition
At the time of petitioner's trial, Texas law provided that,

upon written request by defense counsel, a capital sentencing
jury be charged as follows:

Under the law applicable to this case, if the
defendant is sentenced to life imprisonment, the
defendant will become eligible for release on parole,
but not until the actual time served by the defendant
equals 40 years, without consideration of any good
conduct time.
It cannot be accurately predicted how
the parole laws might be applied to this defendant if
the defendant is sentenced to a term of imprisonment
for life because the application of those laws will
depend on the decisions made by the prison and parole
authorities, but eligibility for parole does not
guarantee that parole will be granted.85
At the conclusion of the evidence at the punishment phase of

petitioner's capital murder trial, the state trial court
instructed petitioner's jury in this manner, in language almost
identical to that set forth above.86

Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102 (recognizing
that federal habeas relief will not issue for errors of state
law); Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874 (holding
a federal court may not issue the writ on the basis of a
perceived error of state law)
85

Article 37.071, §2(e)(2) (B), Texas Code of Criminal
Procedure Annotated, (Vernon Supp. 1999).
The petitioner's actual
Trial Transcript, at pp. 274-75.
punishment phase jury instruction included a reference to the
"Institutional Division of the Texas Department of Criminal
Justice" but otherwise tracked the statutory language.
86

53

In a pretrial motion,87 petitioner's trial counsel sought

leave to ask members of the jury venire the following four

questions:

Would the minimum length of time a defendant could
serve in prison before he could be paroled be something
you would want to know in answering the special issues?
1.

On which special issue would this be important? How
would this 40 year minimum sentence be important to you
in answering the special issues?
2.

Would you be more likely, or less likely, generally,
to view a defendant as a continuing threat to society
if you knew he could not be paroled for a minimum of 40
years?
3.

What kind of evidence would you expect, as a juror,
to help you in considering the 40-year parole
ineligibility factor when answering the special issue?

4.

Sells

v.

State, 121 S.W.3d at 755.

At several points during individual voir dire, petitioner's

counsel was permitted to ask individual members of the jury

venire whether they could obey the law and disregard any impact
parole might play on the duration of a life sentence for

petitioner when answering the Texas capital sentencing special
issues

87

88

Trial Transcript, at pp. 53-54.

See, e.g., S.F. Trial, Volume 6, voir dire examination of
Hilda C. Lopez, at p. 100; voir dire examination of Rita A.
Cardenas, at p. 168; voir dire examination of James C. Jones, at
p. 208; voir dire examination of Kimberly R. Middleton, at p.
240; Volume XVII, voir dire examination of Ayde Rodarte, at p.
88

16.
54

At several other points during individual voir dire,
state trial court refused to permit petitioner's

the

trial counsel to

ask the four questions set forth above.89
In his motion for new trial, petitioner argued the trial

court had erred in refusing to permit petitioner's trial counsel
to voir dire the jury venire using the four questions listed
above.90

The state trial court denied petitioner's motion for

new trial in an Order issued November

2,

2000.91

In his seventh, ninth, eleventh, thirteenth,

seventeenth,

fifteenth,

and nineteenth points of error on direct appeal,

petitioner argued the state trial court's refusal to permit
petitioner's trial counsel to voir dire seven identified members
of the jury venire utilizing the four questions regarding parole

violated due process principles.92

See, e.g., S.F. Trial, Volume 6, voir dire examination of
Miriam Carrizales, at pp. 67-69; voir dire examination of Patty
C. Harrison, at p. 129; voir dire examination of Rita A.
Cardenas, at p. 171; voir dire examination of Craig G. Alexander,
at pp. 268-69; Volume 7, voir dire examination of Lucrecia
Almond, at p. 27; Volume 8, voir dire examination of Hijinio H.
Cuellar, at p. 40; voir dire examination of William C. Cooper, at
p. 136; Volume 11, voir dire examination of John H. Reavis, at p.
89

82.
°

Trial Transcript, at pp. 281-84.

91

92

65,

Trial Transcript, at p. 286.

Appellant's Brief, at pp. 48-49, 52-53, 56-57, 60-61, 64-

68-69,

73-74.

The Texas Court of Criminal Appeals rejected all of these

points of error on the merits:
The trial court has broad discretion over the
process of selecting a jury.
Without the trial court's
ability to impose reasonable limits, voir dire could go
on indefinitely.
Thus, we leave to the trial court's
discretion the propriety of a particular question and
will not disturb the trial court's decision absent an
abuse of discretion.
A trial court abuses its
discretion when it prohibits a proper question about a
proper area of inquiry. A question is proper if it
seeks to discover a juror's views on an issue
applicable to the case. However, an otherwise proper
question is impermissible if the question attempts to
commit the juror to a particular verdict based on
particular facts.
In addition, a trial judge may
prohibit as improper a voir dire question that is so
vague or broad in nature as to constitute a global
fishing expedition.
With the change in the law effective September 1,
1999, a jury may now be instructed on a capital
defendant's eligibility for parole. Assuming, without
deciding, that the statutory change renders questioning
about parole permissible in some situations, appellant
has failed to show error here.
To preserve error, appellant must show that he was
prevented from asking particular questions that were
proper.
That the trial court generally disapproved of
an area of inquiry from which proper questions could
have been formulated is not enough because the trial
court might have allowed the proper question had it
been submitted for the court's consideration.
Here,
none of appellant's proposed questions were proper.
All of appellant's questions relate to how a
particular fact (in this case, the minimum amount of
time a capital life defendant must be incarcerated
before becoming eligible for parole) might influence
jury deliberations. These types of questions implicate
the strictures imposed by Standefer against commitment
questions and by Barajas against ambiguous questions.
Appellant's questions all appear to be attempts, either
directly or through ambiguously worded questions, to
commit the veniremembers to giving mitigating or
aggravating effect to the minimum parole eligibility
requirement. Appellant's first proposed questionabout
whether a veniremember would want to know the minimum

time a defendant could serve in prison before he could
be paroledis not strictly relevant to a juror's duties
or any issue in the case.
What the jurors wants to
know is immaterial; the trial court will give jurors
the proper information about the application of the
law.
The perceived relevance of the question stems
from why a juror wants to know about parole law.
This
implied "why" question is ambiguous.
Does the
prospective juror want to know minimum parole
eligibility because that knowledge will foreclose
honest consideration of the special issues or because
that knowledge will have an impact on how evidence is
evaluated with regard to the special issues? If the
latter, the question is really designed to determine
whether the veniremember' would give, or to commit the
veniremember to giving, mitigating or aggravating
impact to the minimum parole eligibility requirement.
Appellant's second and fourth questions invite the
prospective jurors to set the parameters for their
decision-making by determining to which special issues
the parole eligibility instruction would be considered
relevant, the mitigating or aggravating impact the
instruction would have on the juror's consideration of
the special issues, and what evidence would tend to
accentuate or minimize the parole instruction's
mitigating or aggravating effect. Appellant's third
question directly seeks to determine whether a
prospective juror will give the parole instruction
mitigating or aggravating effect in the context of the
future dangerousness special issue. Although a capital
life inmate's minimum parole eligibility is in some
sense a fact, it is also codified by statute and now
provided for by statute as an instruction.
Because of
this incorporation into the statutory framework, a
prospective juror must be able to keep an open mind on
the punishment special issues even after acquiring
knowledge of this fact. But the law neither requires
nor precludes the factoring of the parole instruction
into the jurors' analysis of the special issues; so,
any attempt to commit prospective jurors to giving
mitigating, aggravating, or even no effect to the
parole instruction is impermissible. Thus, the trial
judge did not err when he refused to allow appellant to
ask the entire venire or various individual
veniremembers the proposed questions on the law of
parole. Points of error six through nineteen are
overruled.
Sells v. State, 121 S.W.3d at 755-57 (Footnotes omitted)
57

C.

Clearly Established Federal Law
To be constitutionally compelled,

it is not enough that

requested voir dire questions might be helpful.

Rather,

trial court's failure to ask (or permit counsel to ask)

the
the

questions must render the defendant's trial fundamentally unfair.

Morgan
n.5,

v.

Illinois, 504 U.S. 719,

119 L.Ed.2d 492

425-26, 111 S.Ct.
D.

730 n.5,

(1992); Mu'Min v.

1899,

1905,

112 S.Ct.

Virginia,

114 L.Ed.2d 493

2222, 2230

500 U.S. 415,

(1991)

AEDPA Analysis
The authorities cited by petitioner in support of his second

claim herein do not establish that petitioner was entitled to
voir dire venire members on their personal views on a subject
(the impact of petitioner's potential parole eligibility)

which

petitioner's petit jurors were specifically instructed in
accordance with state law they could not consider when answering
the Texas capital sentencing special issues.

The first Supreme Court opinion on which petitioner relies,

Morgan

v.

Illinois, supra, held that a state trial court was

required to permit the voir dire of potential jurors on whether
they would automatically vote to impose the death penalty if the
defendant were convicted of capital murder regardless of the

mitigating evidence introduced at the punishment phase of trial.
Morgan

v.

Illinois, 504 U.S. at 729-34,

113 S.Ct.

at 2230-32.

The petitioner's potential eligibility for release on parole did

58

not constitute "mitigating evidence" within the meaning of the

Eighth Amendment because it did not lessen the defendant's moral

culpability or blameworthiness for his crime. Johnson
509 U.S. at 62,

113 S.Ct.

v.

Texas,

Even if it did, petitioner's

at 2666.

capital sentencing jury was properly instructed in accordance

with Texas law at that time regarding the availability of release
on parole for a capital murder defendant sentenced to serve a

term of "life imprisonment."
The peculiarities of Texas parole statutes and good time

credit rules at the time of petitioner's offense and trial have

no relevance, legally or logically, to any of the Texas capital

sentencing special issues. Gomez

v.

Quarterman, 529 F.3d 322, 335

(5th Cir.) (holding a defendant can receive a jury instruction

regarding parole ineligibility only if there exists a

hf e-

without-possibility-of-parole alternative to the death penalty
an option not available at the time of petitioner's capital

murder trial), cert. denied,
Dretke,

396 F.3d 607,

617-19

555 U.S.

1050

(5th Cir.)

(2008);

Thacker

v.

(rejecting a wide variety

of constitutional claims urging adoption of a rule mandating jury

instructions on the effect of Texas parole laws on a life
sentence), Cert. denied,
426 F.Supp.2d 403,

Appx. 277,

512

546 U.S.

(W.D.

Tex.

840

(2005); Martinez

2006),

v.

Dretke,

CoA denied, 270 Fed.

2008 WL 698946 (5th Cir. March 17,

2008)

Likewise, petitioner's reliance on the Supreme Court's

opinion in Simmons

South Carolina, 512 U.S. 154,

v.

2187, 129 L.Ed.2d 133

(1994)

,

is misplaced.

114 S.Ct.

In Simmons,

the

Supreme Court addressed capital sentencing in South Carolina and

other jurisdictions which authorized capital sentencing juries to
impose sentences of either death or life without the possibility
of parole.
n.8,

See Simmons

114 S.Ct. 2187,

v.

South Carolina, 512 U.S. 154, 168-69 &

2196 & n.8, 129 L.Ed.2d 133

(1994),

(plurality opinion specifically explaining that, as of that date,

Texas courts traditionally kept capital sentencing juries unaware
of the availability of parole for those sentenced to serve terms
of life imprisonment)
of the Supreme Court,

Representing the views of three members

.

Justice O'Connor's concurring opinion in

Simmons is significant because it emphasized South Carolina law

provided a capital defendant faced the possibility of life
without parole. Id., 512 U.S. at 176-78,

114 S.Ct. at 2200-01

(concurring opinion)
The Supreme Court's subsequent opinion in Ramdass
Angelone,

530 U.S.

156,

120 S.Ct. 2113,

147 L.Ed.2d 125

v.

(2000),

continued the vitality of this distinction, as the plurality
opinion for the Supreme Court therein specifically limited the
holding in Simmons to "only those instances where, as a legal
matter,

there is no possibility of parole if the jury decides the

appropriate sentence is life in prison." Id., 530 U.S. at 169,

120 S.Ct.

at 2121.

In her separate, pivotal,

concurring, opinion

in Ramdass, Justice O'Connor once again emphasized her view of
the continued vitality of the rule in Simmons, as enunciated by

the plurality in Ramdass,

and also pointed out Ramdass came

before the Supreme Court in the context of a federal habeas
corpus proceeding, in which the Supreme Court's review, like this
Court's review in the present cause,
terms of the AE]JPA.

Id.,

is circumscribed by the

530 U.S. at 179,

120 S.Ct.

at 2126

(concurring opinion)

More recently, the Supreme Court's opinion in Shafer

v.

South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178
(2001),

at least implicitly acknowledged the continued vitality

of the distinction first noted in Simmons by holding South

Carolina's new capital sentencing scheme was guilty of the same
constitutional defect identified in Simmons because, at least
under some circumstances, the sentencing jury would be faced with
a choice between a sentence of death and a sentence of life

without the possibility of parole. See Shafer
532 U.S.

at 51,

121 S.Ct. at 1273

v.

South Carolina,

("We therefore hold that

whenever future dangerousness is at issue in a capital sentencing
proceeding under South Carolina's new scheme, due process
requires that the jury. be informed that a life sentence carries
no possibility of parole.").

61

In Kelly v. South Carolina, 534 U.S.

246,

122 S.Ct.

726,

151

L.Ed.2d 670 (2002), the Supreme Court reiterated its holding in
Shafer, emphasizing once again South Carolina capital sentencing

juries which unanimously found the presence of an aggravating

circumstances were left to select between one of only two
possible sentences: death or life imprisonment without the

possibility of parole. Kelly
n.2,

122 S.Ct.

v.

South Carolina, 534 U.S. at 252 &

at 730 & n.2.

While Texas has recently joined South Carolina and other

jurisdictions which provide capital sentencing juries the option
of sentencing a convicted capital murderer to a term of life

without parole, at the time of petitioner's offense and trial,
Texas law did not provide for a sentence of life imprisonment

without the possibility of parole.

The Supreme Court's

Fourteenth Amendment jurisprudence, including Simmons, Ramdass,
Shafer, and Kelly, makes an express distinction between the rule

applied in Simmons and Shafer and the due process requirements in
jurisdictions such as Texas at the time of petitioner's crime and
capital murder trial, where sentences of either death or life
without parole are not the only choices facing a capital

sentencing jury.

The legal premise underlying

petitioner's

second claim herein ignores this critical distinction.

There is

simply no "clearly established" federal law, as enunciated by the

United States Supreme Court, holding the Fourteenth Amendment's

62

Due Process Clause requires potential jurors be subjected to voir

dire regarding their personal views on the impact of parole

eligibility in a capital sentencing context when those same
jurors will necessarily be instructed in accordance with state
law to disregard the defendant's potential parole eligibility at
the punishment phase of trial. Druery

v.

Gomez

Thacker

v.

Quarterman, 529 F.3d at 335;

Thaler,
v.

647 F.3d at 544;

Dretke, 396 F.3d

at 617-19.

Two of the Supreme Court opinions relied upon by petitioner

held that potential jurors in a capital case involving an
interracial crime must be interrogated on the issue of racial
bias.

See Turner

1687,

90 L.Ed.2d 27

v.

Murray,

476 U.S. 28,

36-37,

106 S.Ct. 1683,

(1986) ("We hold that a capital defendant

accused of an interracial crime is entitled to have prospective
jurors informed of the race of the victim and questioned on the
issue of race bias.")
93 S.Ct.

848,

850,

;

Ham

v.

South Carolina, 409 U.S. 524,

35 L.Ed.2d 46

527,

(1973) (holding the Due Process

Clause required the state trial judge to conduct voir dire

examination of potential jurors on the subject of racial
prejudice).

Petitioner does not allege any facts showing he and

Kaylene Harris were of different races or different ethnic
backgrounds.

Nor does petitioner identify any potential racial

animus or ethnic prejudice which petitioner claims interfered

with the essential demands of fairness during his capital murder

trial.

As such, petitioner's reliance on Turner, Ham, and their

progeny is misplaced.
Finally,
S.Ct.

1197,

in Gardner v. Florida,

1205-07,

51 L.Ed.2d 393

420 U.S. 349,

360-62,

97

(1977), the Supreme Court

struck down a capital sentence where the sentencing court imposed
sentence,

in part, based upon a confidential pre-sentence report

which was not disclosed to petitioner or his trial counsel.
Petitioner does not allege any facts showing his capital
sentencing jury was furnished with any information other than the
evidence actually presented during petitioner's trial.

Petitioner's capital sentencing jury was properly instructed

regarding the impact of Texas parole laws on any potential life
sentence petitioner might receive.

The holding in Gardner is

inapplicable to petitioner's case.
The four voir dire questions proffered by petitioner's trial

counsel invited and encouraged petitioner's jury venire to do

precisely what Texas precluded them from doing,

i.e.,

speculate

on how petitioner's potential parole eligibility (if sentenced to
serve a term of life imprisonment)

might impact the duration of

petitioner's life sentence, when answering the Texas capital
sentencing special issues.

Petitioner's trial counsel was

permitted to ask potential jurors (and said counsel did ask
several venire members)

whether they could follow applicable

state law and disregard the impact of parole on a potential life

sentence when answering the capital sentencing special issues.93

Petitioner has not identified any voir dire answers or

questionnaire answers given by any of the seven venire members
identified in petitioner's appellant's brief suggesting any of
those venire members were confused regarding the legal

inapplicabilily of Texas parole law to a capital sentencing
jury's consideration of the Texas capital sentencing special
issues.

Under such circumstances, the refusal of the state trial

court to permit petitioner's trial counsel to examine the entire
jury venire in the manner requested,

i.e., by asking the four

parole-related questions listed above, did not render
petitioner's trial fundamentally unfair.
E.

Teaque Foreclosure

Respondent correctly points out the legal rule underlying
petitioner's second claims herein,

i.e., that a capital defendant

has a constitutional right to inquire as to precisely how

potential jurors would view the impact of Texas parole laws
during their deliberations on the Texas capital sentencing
special issues

(at a time

when Texas capital murder defendants

were ineligible to receive a term of life imprisonment without
the possibility of parole), would be a "new rule" of federal

constitutional criminal procedure and is, therefore, barred from
adoption in this federal habeas corpus proceeding by the non-

See note 88,

supra.

retroactivity principle announced in Teague
288,

310,

109 S.Ct.

1060, 1075,

647 F.3d at 544-45;

Thaler,

v.

103 L.Ed.2d 334

Gomez

v.

Lane, 489 U.s.
(1989)

Druery

.

V.

Quarterman, 529 F.3d at 335.

Under the Supreme Court's holding in Teague, federal courts
are generally barred from applying new constitutional rules of

criminal procedure retroactively on collateral review.
510 U.S.

.Bohlen,

(1994)

389-90, 114 S.Ct.

383,

948,

953,

Caspari

v.

127 L.Ed.2d 236

A "rule"for Teague purposes is one which was not

.

dictated by precedent existing at the time the defendant's

conviction became final. See O'Dell
156, 117 S.Ct.

1969,

1973,

v.

Netherland, 521 U.S. 151,

138 L.Ed.2d 351

(1997) (holding a "new

rule" either "breaks new ground," "imposes a new obligation on
the States or the Federal Government," or was not "dictated by

precedent existing at the time the defendant's conviction became
final")

.

Under this doctrine, unless reasonable jurists hearing

the defendant's claim at the time his conviction became final

would have felt compelled by existing precedent to rule in his
favor, a federal habeas court is barred from doing so on

collateral review. Id.
The holding in Teague is applied in three steps: first, the

court must determine when the petitioner's conviction became
final; second,

the court must survey the legal landscape as it

then existed and determine whether a state court considering the

petitioner's claim at the time his conviction became final would