GRAY H. MILLER, District Judge.
Teddrick Batiste, an inmate on Texas' death row, has filed a federal petition for a writ of habeas corpus challenging his capital conviction and death sentence. Dkt. 9. Respondent Lorie Davis moves for summary judgment. Dkt. 22. After considering the record, the pleadings, and the applicable law, the Court finds that Batiste has not shown an entitlement to habeas relief. Accordingly, the Court will GRANT Respondent's motion for summary judgment and DENY Batiste's habeas petition. The Court will not certify any issue for appellate review.
On direct appeal, the Texas Court of Criminal Appeals described the facts underlying the murder of Horace Holiday as follows:
Batiste v. State, No. AP-76,600, 2013 WL 2424134, at *1 (Tex. Crim. App. June 5, 2013) (footnotes added) (hereinafter "Opinion on Direct Appeal at ___").
In 2011, Batiste stood trial in the 174th District Court of Harris County, Texas.
A Texas jury decides a capital defendant's fate by answering special issue questions at the conclusion of a separate punishment hearing. Here, the instructions asked jurors to decide (1) whether Batiste would be a future societal danger and (2) whether sufficient circumstances militated against the imposition of a death sentence. C.R. at 1712-13. The Court of Criminal Appeals summarized the punishment portion of Batiste's trial as follows:
Opinion on Direct Appeal at 2-4. The jury answered Texas' special issue questions in a manner requiring the imposition of a death sentence.
Batiste challenged his conviction and sentence on appeal.
Batiste filed a state habeas application during the pendency of his direct appeal.
Federal review followed. Batiste filed a timely federal petition raising the following grounds for relief:
1. Trial counsel provided ineffective representation by:
Stating that his petition was "fact based" without "discuss[ing] all of the applicable law," Batiste indicated that he would file a supplement to his federal petition. Dkt. 9 at 2. The Court entered a scheduling order giving Batiste an opportunity to supplement the arguments in his petition. Dkt. 18. Batiste did not file any supplemental pleading.
Respondent has moved for summary judgment. Dkt. 22.
The writ of habeas corpus provides an important, but narrow, examination of an inmate's conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011); Barefoot v. Estelle, 463 U.S. 880, 887 (1983). "Society's resources have been concentrated at [a criminal trial] in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens." Wainwright v. Sykes, 433 U.S. 72, 90 (1977); see also McFarland v. Scott, 512 U.S. 849, 859 (1994) (stating that a "criminal trial is the `main event' at which a defendant's rights are to be determined"). The States, therefore, "possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights." Engle v. Isaac, 456 U.S. 107, 128 (1982).
If the inmate has presented his federal constitutional claims to the state courts in a procedurally proper manner, and the state courts have adjudicated their merits, AEDPA provides for a deferential federal review. "[T]ime and again," the Supreme Court "has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, `erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.'" White v. Wheeler, ___ U.S. ___, 136 S.Ct. 456, 460 (2015) (quoting Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 16 (2013)). Under AEDPA's rigorous requirements, an inmate may only secure relief after showing that the state court's rejection of his claim was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1),(2).
Inmates arguing legal error in state court decisions must comply with § 2254(d)(1)'s "contrary to" and "unreasonable application" clauses. See Bell v. Cone, 535 U.S. 685, 694 (2002). A petitioner does not merit relief by merely showing legal error in the state court's decision. See White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1702 (2014) (stating being "merely wrong" or in "clear error" will not suffice for federal relief under AEDPA). In contrast to "ordinary error correction through appeal," AEDPA review exist only to "guard against extreme malfunctions in the state criminal justice systems. . . ." Woods v. Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376 (2015) (quotation omitted). "[F]ocus[ing] on what a state court knew and did," Cullen v. Pinholster, 563 U.S. 170, 182 (2011), AEDPA requires inmates to "`show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Woodall, 134 S. Ct. at 1702 (quoting Richter, 562 U.S. at 103); Berghuis v. Thompkins, 560 U.S. 370, 380 (2010); Williams v. Taylor, 529 U.S. 362, 413 (2000). "If this standard is difficult to meet, that is because it was meant to be." Richter, 562 U.S. at 102.
A petitioner challenging the factual basis for a state decision must show that it was an "unreasonable determination of the facts in light of the evidence. . . ." 28 U.S.C. § 2254(d)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). A federal habeas court must also presume the underlying factual determinations of the state court to be correct, unless the inmate "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). As the same judge presided over the trial proceedings and the state habeas action in this case, the presumption of correctness for state habeas factual findings is especially strong. See Mays v. Stephens, 757 F.3d 211, 214 (5th Cir. 2014); Woods v. Thaler, 399 F. App'x. 884, 891 (5th Cir. 2010); Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000).
An inmate's compliance with 28 U.S.C. § 2254(d) does not guarantee habeas relief. See Horn v. Banks, 536 U.S. 266, 272 (2002) (observing that no Supreme Court case "ha[s] suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]"); Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003) (finding that 28 U.S.C. § 2254(d) "does not require federal habeas courts to grant relief reflexively"). A habeas petitioner meeting his AEDPA burden must still comply with weighty jurisprudential tenets, such as the harmless-error doctrine and the non-retroactivity principle, that bridle federal habeas relief. See Thacker v. Dretke, 396 F.3d 607, 612 n.2 (5th Cir. 2005). Thus, any error cannot require habeas relief unless it "ha[d] a `substantial and injurious effect or influence in determining the jury's verdict,'" Robertson, 324 F.3d at 304 (quoting Brecht v. Abrahamson, 507 U.S. 619, 629 (1993)), or would not require the creation of new constitutional law, see Banks, 536 U.S. at 272 (relying on Teague v. Lane, 489 U.S. 288 (1989)).
Batiste raises several complaints about his trial representation. A court reviews an attorney's representation under the general conceptual framework established in Strickland v. Washington, 466 U.S. 668, 686 (1984). Under Strickland, a criminal defendant's Sixth Amendment rights are "denied when a defense attorney's performance falls below an objective standard of reasonableness and thereby prejudices the defense." Yarborough v. Gentry, 540 U.S. 1, 3 (2003) (emphasis added); see also Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 520 (2003). To establish deficient performance, the petitioner must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. A petitioner must also show actual prejudice, meaning "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694; see also Wiggins, 539 U.S. at 534.
"Surmounting Strickland's high bar is never an easy task. . . ." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). When the state courts have already adjudicated the merits of a Strickland claim, "[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Richter, 562 U.S. at 101. Federal courts employ a "doubly deferential judicial review" of already adjudicated Strickland claims that gives wide latitude to state decisions. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Cullen v. Pinholster, 563 U.S. 170, 201 (2011). "The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 104; see also Premo v. Moore, 562 U.S. 115, 123 (2011). With those standards in mind, the Court turns to Batiste's individual allegations of error by defense counsel.
Batiste claims that he was denied effective trial representation because counsel did not retain a neuropsychologist, investigate sufficiently whether he suffered from frontal lobe damage, and advance a mitigation defense based on his general cognitive functioning. Mental-health issues did not play a prominent role in Batiste's trial. The State presented testimony in the penalty phase from Dr. Scott Krieger, a clinical psychologist who had examined Batiste at age sixteen. Dr. Krieger had performed several psychological tests, including the Minnesota Multiphasic Inventory Adolescent Form (MMPI-A). As a result of his interview and testing, Dr. Krieger diagnosed Batiste with "disruptive behavior disorder non-specified," a condition characterized by disruptive or oppositional behaviors. Dr. Kieger also testified that Batiste's results on the MMPI-A were common to people with hyperactive, impulsive behavior patterns. The State adduced testimony from Dr. Kieger showing that Batiste felt no empathy for his victims. Dr. Kieger, however, did not attribute any psychological condition to brain dysfunction or disorder. The defense did not call any mental-health experts at trial.
On state habeas review, Batiste argued that his trial attorneys did not perform an adequate investigation because they did not secure a neurological examination. Specifically, Batiste faulted trial counsel for not retaining a neuropsychologist who could diagnose him with brain dysfunction.
The record indicates that trial counsel made some effort to investigate issues relating to Batiste's mental health. The state habeas court found that the defense's "pre-trial investigation included an investigation of [Batiste's] mental health; that trial counsel sought funding for and retained three mental health experts." S.H.R. at 950. Specifically, trial counsel retained two clinical psychologists and a medical doctor as a substance-abuse expert. The record indicates that these experts conducted forensic interviews, reviewed records, and consulted with the defense team. The record does not contain any psychological report obtained from those three experts. Nothing in the record, however, suggests that the three experts uncovered any information that would have indicated the need for neuropsychological testing.
Trial counsel provided an affidavit on state habeas review explaining the defense investigation into possible mental-health issues. Trial counsel expressed concern about the doubleedged nature of using mental-health evidence in general:
S.H.R. at 817. With that context, trial counsel provided specific reasons for which the defense did not investigate the possibility of brain dysfunction:
S.H.R. at 817.
With that background, the state habeas court entered findings of fact and conclusions of law denying this claim. Despite the use of three mental-health experts, as well as the other investigations into Batiste's background, the state habeas court found that trial counsel "had no information from any expert, investigator, record, family member, or friend indicating that [Batiste] had any indicia of frontal lobe disorder." S.H.R. at 951. The state habeas court also questioned Dr. Underhill's diagnosis of frontal lobe damage. The state habeas court found "unpersuasive Dr. Underhill's conclusions regarding [Batiste's] alleged frontal lobe damage and impaired perception/control of risky behavior." S.H.R. at 950. The state habeas court found that Dr. Underhill's conclusion about the source of Batiste's risk taking was "vague" because he "does not disclose [Batiste's] specific score" or provide specific facts which could be corroborated. S.H.R. at 951. Additionally, the state habeas court found "Dr. Underhill's conclusions unpersuasive" about his impulsivity because state jail records "reflect[ed] that [Batiste] had no disciplinaries while incarcerated at the Lynchner Unit [before trial] which indicated that [Batiste] could control his behavior, including risk taking behavior, when he so chose without medication." S.H.R. at 952. Also, Dr. Underhill's "conclusion regarding [Batiste's] alleged inability to calculate risk and weigh the consequences of his actions is cumulative of Scott Krieger's punishment testimony concerning the results of [his] MMPI-A score which indicated that [Batiste] was impulsive and preferred action over thought and reaction." S.H.R. at 952. In sum, the state habeas court found no deficient performance by counsel or actual prejudice.
Batiste has not shown that trial counsel's performance was deficient. Batiste is correct that trial counsel "did not retain an expert to perform a neuropsychological evaluation and/or conduct any testing of Batiste." Dkt. 9 at19. Applying applicable Supreme Court precedent, the Fifth Circuit has explained that, "[I]n investigating potential mitigating evidence, counsel must either (1) undertake a reasonable investigation or (2) make an informed strategic decision that investigation is unnecessary." Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013). Trial counsel "must not ignore pertinent avenues of investigation, or even a single, particularly promising investigation lead." Id. at 390 (internal citations and quotation marks omitted); see also Higgins v. Cain, 720 F.3d 255, 265 (5th Cir. 2013) (explaining that counsel must "research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful"). Batiste's claim depends on identifying some set of circumstances that would have led a reasonable attorney to engage in an investigation that included specific neuropsychological testing.
Trial counsel inquired into Batiste's background and retained the services of three mentalhealth experts. Batiste's attorneys explored facets of his mental health and background with the assistance of various psychologists.
Yet even if trial counsel had uncovered evidence suggesting that Batiste possibly suffered from brain dysfunction, and secured results similar to those reached by Dr. Underhill, Batiste has not necessarily shown that a reasonable attorney would have presented that information to the jury. Trial counsel was apprehensive about presenting similar testimony because it would allow the State to characterize Batiste's mental state as unpredictably dangerous and intractable. Testimony about a brain injury may be a "`double-edged' sword," Martinez v. Dretke, 404 F.3d 878, 889 (5th Cir. 2005), because jurors could fear that the defendant would never be able to control his violent behavior. See Nelson v. Quarterman, 472 F.3d 287, 307-08 (5th Cir. 2006). "Presenting evidence of `organic (i.e., permanent) brain damage,' which is associated with poor impulse control and a violent propensity, would have substantiated the state's evidence and increased the likelihood of a future dangerousness finding." Martinez, 404 F.3d at 890. And, as the Seventh Circuit has noted, sentencers "may not be impressed with the idea that to know the cause of viciousness is to excuse it; they may conclude instead that when violent behavior appears to be outside the defendant's power of control, capital punishment is appropriate to incapacitate." Foster v. Schomig, 223 F.3d 626, 637 (7th Cir. 2000) (quotation omitted).
Dr. Underhill recognized the double-edged potential of brain trauma evidence but predicated the mitigating thrust of his conclusions on (1) the ability of medication to reduce Batiste's tendency toward risk taking and (2) the structures of prison preventing dangerous actions. Trial counsel, however, feared that those two factors would not withstand cross-examination. Trial counsel anticipated that the State would argue that Batiste would only be capable of improvement if he chose to take his medication. More important, the State had already presented evidence of Batiste's threats and violence while in jail awaiting trial. Testimony that incarceration would squelch Batiste's freeworld violent impulsivity would ring hollow against his inability to control himself in a structured environment. Weighing the benefit of Dr. Underhill's testimony against the potential that the State would undercut it, and possibly turn it against the defense, a reasonable trial attorney could choose not to present such evidence.
Batiste has also not shown that the state habeas court was unreasonable in deciding that he did not meet Strickland's prejudice prong. The state habeas court concluded that (1) the jury already had before it evidence that Batiste "was `impulsive' and `preferred action over thought and reflection'" and (2) evidence of his "two capital murders, an aggravated robbery, and multiple bad acts" which was "particularly strong" would eclipse any brain-injury evidence. S.H.R. at 978. Without the veneer of neuropsychological testimony, the jury already heard a psychologist's opinion that Batiste acted on impulse. Insofar as that information has only mitigating value, the jury could already consider the effects of evidence similar to that identified on state habeas review.
Importantly, strong evidence supported the jury's answers to the special issue questions. The question of Strickland prejudice does not exist in a vacuum; "[I]n making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695. On habeas review "the reviewing court must consider all the evidence — the good and the bad — when evaluating prejudice." Wong v. Belmontes, 558 U.S. 15, 26 (2009). The Fifth Circuit has indicated that a court looks to see if the petitioner's new evidence will "lessen the impact of the other evidence against him[,]" Conner v. Quarterman, 477 F.3d 287, 294 (5th Cir. 2007), because "overwhelming aggravating factors" can outweigh unpresented mitigating evidence. Sonnier v. Quarterman, 476 F.3d 349, 360 (5th Cir. 2007). For instance, the "horrific facts of the crime," Martinez, 481 F.3d at 259, the "brutal and senseless nature of the crime," Smith v. Quarterman, 471 F.3d 565, 576 (5th Cir. 2006), or the "cruel manner in which he killed," Miniel v. Quarterman, 339 F.3d 331, 347 (5th Cir. 2003), may weigh heavily against a finding of Strickland prejudice. See also Strickland, 466 U.S. at 700; Knight v. Quarterman, 186 F. App'x 518, 535 (5th Cir. 2006); Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002); Andrews v. Collins, 21 F.3d 612, 624 n.23 (5th Cir. 1994); Russell v. Lynaugh, 892 F.2d 1205, 1213 (5th Cir. 1989). Additionally, if the "evidence of . . . future dangerousness was overwhelming . . . it is virtually impossible to establish prejudice." Ladd, 311 F.3d at 360 (citing Strickland, 466 U.S. at 698).
Batiste committed murders for personal gain. The killing in the instant case was particularly brutal and senseless. Batiste repeatedly shot into the victim's car on the freeway to steal the rims from his car. Once they both stopped, Batiste could have stolen the victim's car and left the injured man lying on his stomach bleeding and pleading for his life. Instead, Batiste repeatedly shot him. Batiste's police statement indicates that he did not act on impulse. Batiste paused, mustering "all [his] empathy towards" the victim, but after "weighing" out what to do, decided that he had "to get these wheels." In addition, Batiste participated in, and led, aggravated robberies. He stole cars. He used drugs. He sold stolen property for others. Batiste did not reform his character after previous periods of incarceration and, in fact, he became more violent. Even knowing that the State would use his actions against him in an impending capital murder trial, pre-trial incarceration did not squelch Batiste's violence. Batiste engaged in fights, threatened inmates, disrespected jail personnel, and possessed weapons. Batiste exhibited little remorse in jailhouse correspondence, but continued glorifying the gang lifestyle and praising violence. Against that background, the state habeas court was not unreasonable in finding no reasonable probability of a different result from trial counsel's failure to present neuropsychological evidence.
Batiste argues that trial counsel failed to provide the jury with an accurate picture of his gang membership. While Batiste's gang membership was mentioned only briefly in the guilt/innocence phase,
Lay testimony provided mixed information about Batiste's ties to the Crips. Robert Dean, a fellow jail inmate, testified that Batiste was the leader of a group of Crips inmates that would pick fights. Dean said that Batiste acknowledged his gang membership and bragged about being incarcerated for capital murder. Tr. Vol. 19 at 125-26. Some family members and friends did not know that Batiste belonged to the Crips. Tr. Vol. 24 at 25, 71. Batiste himself, however, took the stand and acknowledged being a member of the Crips. Batiste told the jury that he recruited fellow Crips gang members to participate in the Phat Kats aggravated robbery. Tr. Vol. 24 at 192-93. Batiste, however, explained that he wanted to distance himself from the gang upon incarceration and "do what I have to do to renounce them." Tr. Vol. 24 at 138.
The State argued in closing that Batiste "wanted to portray himself as . . . a tatted-up street thug who deserves street cred." Tr. Vol. 25 at 63. The State told jurors: "He told you yesterday he wanted out of the gang, but you know as recent as May 15th, after all of you had been selected for this jury, he's still writing his gang symbols in his mail. . . . He wants to stay in. He's telling you that because he thinks you will feel sorry for him and say: Oh, he's going to change." Tr. Vol. 25 at 74.
Batiste claims that "he was not a hard-core gang member, and only ever marginally affiliated at best." Dkt. 9 at 5. Instead of being a leader in the Five Deuce Hoover Crips, Batiste was "a young man struggling with the `gangster' label that had been thrust upon him." Dkt. 9 at 6. Batiste argues that trial counsel should have called an expert to place his gang affiliation into the proper context.
On state habeas review, Batiste presented an affidavit from Charles Rotramel, the executive director of an organization that works with at-risk and gang-influenced youth. Rotramel conducted a three-hour interview with Batiste while on death row in 2013. Rotramel also reviewed trial testimony, read affidavits from Batiste's family members, and examined various records. Rotramel opined that Batiste was "never a `hard-core' gang member" because he was never "formally inducted into gang membership." S.H.R. at 238. According to Rotramel, Batiste "never broadcast his gang membership to the world around him" and, in fact, "never actively defined himself according to his gang affiliation." S.H.R. at 238-39. Rotramel explained that Batiste "did not have any actual involvement or membership" in the Crips before being in Texas Youth Commission custody. S.H.R. at 240. While in TYC, Batiste joined the Crips, but only "as a matter of his own protection and survival in an unfamiliar and dangerous institution far removed from everything and everyone he knew." S.H.R. at 238. When released, Batiste "profess[ed] a Five Deuce Hoover Crip affiliation outwardly" but "actually never had a strong gang-affiliation because he lacked a set or a common group of gang members with whom he associated on a regular basis." S.H.R. at 231. Rotramel also said that Batiste's subsequent employment history and interaction with family members was not indicative of gang membership.
Rotramel reviewed Batiste's pre-trial letters and opined that they showed "an emotionally complex young man trying to come to terms with the consequences of his actions and preparing himself for a life of incarceration." S.H.R. at 235. "Using the common tropes and argot of hip hop music," Batiste "vacillat[ed] between typical empty rap braggadocio and genuine emotional expression" when creating rap lyrics that "commonly use hyperbolic and grandiose language" but do not truly "glorify[], much less encourage violence." S.H.R. at 935. Rotramel saw within Batiste's letters "emotional vulnerability behind the thin veneer of typical rap braggadocio and toughness." S.H.R. at 328. Also, Rotramel explained that "[r]emorse is a common theme in [Batiste's] letters." S.H.R. at 239. Rotramel contends that "[c]onspicuously absent from Teddrick's raps and letters are any explicit gang references, slang, or symbolism." S.H.R. at 330.
Trial counsel provided an affidavit responding to Rotramel's opinion that Batiste only had limited gang involvement:
S.H.R. at 818.
With that background, the state habeas court found that trial counsel "made a reasonable strategic decision to not present a gang expert at punishment because counsel believed that such tactic would harm the defense." S.H.R. at 954. The state habeas court expressed deep skepticism regarding Rotramel's opinion about Batiste's "limited involvement with the Crips," particularly in light of the trial record. S.H.R. at 878. With the extensive, detailed trial testimony about Batiste's gang membership, the state habeas court found that Rotramel's testimony was "unpersuasive." S.H.R. at 954. The state habeas court reasonably found that "the State's trial evidence and [Batiste's] testimony directly contradict [his] habeas characterization of his gang membership as `limited.'" S.H.R. at 953.
Batiste has not shown that the state court was unreasonable in finding no deficiency because trial counsel did not present evidence similar to Rotramel's habeas affidavit. Trial counsel could reasonably decide that Batiste did not have only limited interaction with the Crips. Rotramel apparently drew a distinction between a "hard-core gang" member and someone only "affiliated" with a gang. S.H.R. at 317. Even accepting Rotramel's opinion that Batiste was not a hard-core gang member, a reasonable trial attorney could shy away from presenting that expert testimony when the violent conventions of gang life permeated Batiste's words, actions, and lifestyle. Batiste had not just adopted common customs of gang membership, he bore evidence of gang affiliation over his entire body. Jurors would have difficulty believing Rotramel's opinion that Batiste "never broadcast his gang membership to the world around him" when he had a gang tattoo on his face. The tattoos covering Batiste's body testified of his devotion to the Crips. More to the point, his actions bore indicia of gang membership as he recruited and directed other Crips in the commission of violent crimes. Batiste told police officers that, "because he was . . . [a member of the] CRIPS," he did not want to show fear as he shot into the victim's moving car. His self-identification as a gang member continued into the prison setting, where bad acts directly related to gang affiliation continued despite expert predictions that the rigors of prison would cause him to act otherwise. The state habeas court was not unreasonable in finding "unpersuasive" any attempt to minimize Batiste's gang membership.
A reasonable attorney could instead decide to avoid unnecessary reference to gang affiliation or identification. With the extensive evidence of Batiste's involvement in not only the Crips gang, but in the lawlessness associated with gang membership, the state habeas court was not unreasonable in finding no Strickland deficient performance or resultant prejudice. Batiste has not met his AEDPA burden with regard to his claim that counsel should have minimized his gang membership.
Batiste's federal petition raises three specific challenges to trial counsel's efforts to investigate, prepare, and present mitigating evidence. With Batiste's extremely violent past, and aggressive behavior that extended into the prison setting, trial counsel knew that "[m]itigation was [the] best, and really only, opportunity to save his life at trial." S.H.R. at 916. The defense team included an investigator, a specific mitigation investigator, three mental-health experts, and an expert on the criminal justice system. Trial counsel met with family members before trial. From the defense investigation, trial counsel called various witnesses to provide mitigating evidence. The state habeas court provided a comprehensive review of the defense's trial evidence, as recited below:
CLASSIFICATION AND FUTURE RISK
[BATISTE'S] SCHOOL AND WORK HISTORY
[BATISTE'S] SOCIAL/FAMILY HISTORY
[BATISTE'S] TESTIMONY AT PUNISHMENT
EXHIBITS
S.H.R. at 943-48.
Despite the evidence presented at trial, Batiste contends that trial counsel: (1) should have called a social historian to put his mitigating evidence into a coherent narrative; (2) inadequately interviewed and prepared the lay witnesses who testified at trial; and (3) should have called additional witnesses to provide mitigating evidence. On state habeas review, Batiste adduced numerous affidavits to support these arguments. The affidavits fall into three categories, each relating to Batiste's individual allegations of trial counsel errors.
First, Batiste presented affidavits from several witnesses from trial, to wit: Darlene Beard, Micaela Lara, Kristopher McSherry, Kevin Noel, Rowena Scott, Stephanie Scott, and Beverly West. Batiste relied on those affidavits to argue that trial counsel did not make sufficient efforts to prepare witnesses, leaving them vulnerable to cross-examination and prone to provide detrimental testimony. Batiste contends that with additional preparation those witnesses would have given jurors a morefulsome view into his life.
Second, Batiste relies on affidavits from ten family members and friends that trial counsel did not put before the jury, four of whom had been interviewed by trial counsel. Batiste argues that these witnesses would have provided deeper insight into Batiste's personal background, and also have given jurors a longitudinal view into the intergenerational problems experienced by Batiste's family members.
Finally, Batiste criticizes counsel for not retaining a social historian to weave the details provided by the various witnesses into a coherent narrative. Through an affidavit provided by Dr. Scott Bowman, Batiste contends that trial counsel should have used expert testimony to fill in the outlines drawn by witness testimony, and rearrange the evidentiary picture into a more-powerful story. In sum, Batiste argues that the defense should have presented evidence that he "was the product of three generations of poverty, teenage pregnancy, residential instability, and a lack of positive role models. He was also searching desperately for a way out of the path he was on, [he was also] a person who helped other people and provided for his family when he could." S.H.R. at 149.
The state court based its resolution of these three arguments on an overarching theme: trial court presented a "clear and detailed mitigation case" differed from the habeas allegations in detail but not in mitigating thrust. S.H.R. at 955. The habeas affidavits from trial witnesses and those not called to testify did not travel a different mitigating path from the themes considered by jurors in answering the special issue questions.
In reviewing the choices underlying a trial defense, the Court "must be particularly wary of arguments that essentially come down to a matter of degrees. Did counsel investigate enough? Did counsel present enough mitigating evidence? Those questions are even less susceptible to judicial second-guessing." Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000) (internal quotation marks and citation omitted); see also Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999). This is a case where the additional mitigation evidence presented by Batiste "was largely cumulative and differed from the evidence presented at trial only in detail, not in mitigation thrust." Villegas v. Quarterman, 274 F. App'x 378, 384 (5th Cir. 2008). The new affidavits provide background information that "is essentially cumulative of [Batiste's] social history evidence presented at trial." S.H.R. at 959. In sum, trial counsel presented "a clear and detailed mitigation case" and Batiste was "unpersuasive in demonstrating that [his] mitigation case would have been strengthened by [the new affiant's] respective testimonies." S.H.R. at 957, 959.
The only habeas evidence that arguably exceeded the contours of the trial evidence relates to the background of extended family members. The habeas affidavits discuss generations of poverty and difficult life circumstance which, in general, do not contain information substantially different from Batiste's own background. The new information only shows that other family members shared somewhat similar experiences. Batiste has not shown that the law requires reasonable attorneys to present that evidence or that it would have mattered had trial counsel presented it.
Batiste's claim faults not only the content of counsel's chosen defense, but also how it was presented to jurors. Batiste's federal petition identifies ways in which an attorney may have brought mitigating evidence before jurors differently. Trial counsel relied on a mitigation specialist to develop evidence for the punishment phase. The mitigation specialist interviewed family members and obtained various medical, school, and criminal history records. Batiste wishes trial counsel had not relied on other lay and expert witnesses to present the mitigating evidence, but instead had called a social historian
Batiste's briefing suggests that not relying on a social historian is per se ineffective assistance. Dkt. 9 at 57-58. Constitutional law does not require that mitigating evidence come through one specific vehicle. Because "counsel has wide latitude in deciding how best to represent a client," an attorney may decide the best manner in which to put information before jurors. Ward v. Stephens, 777 F.3d 250, 264 (5th Cir. 2015). The state habeas court found the affidavit proffered by a social historian to be "similar" to the trial evidence. S.H.R. at 956.
Batiste has also not shown that the state habeas court unreasonably decided that he had not shown actual prejudice. Batiste has not adduced any mitigating evidence that would cause jurors to respond differently than they did at trial. "When compared to the strong aggravating evidence, any incremental increase in mitigation evidence would not create `a reasonable probability that . . . the result of the proceeding would have been different.'" Davila v. Davis, 650 F. App'x 860, 870 (5th Cir. 2016) (quoting Wiggins, 539 U.S. at 534). The Court, therefore, finds that the state habeas court was not unreasonable in denying Batiste's claim that trial counsel should have better prepared mitigating witnesses, called more mitigating witnesses, or presented his cumulative evidence through a social historian.
Batiste complains that trial counsel "failed to present any evidence that Batiste was not likely to commit criminal acts of violence in the future." Dkt. 9 at 136. A brief review of the punishment phase contradicts Batiste's strident claim that trial counsel made no effort to secure a favorable answer to the future-dangerousness special issue. For instance, the defense called an officer from the Harris County Sheriff's Office Classification Unit, who explained that "there was no record of [Batiste] having physical contact with the jail staff in [his] Harris County jail disciplinary records." S.H.R. at 960. Also, the defense relied on records from Batiste's earlier incarcerations to argue that, once confined in the structured environment of prison, he would no longer pose a future danger. Setting his hyperbole aside, Batiste's federal habeas claim argues that trial counsel should have put on a better future-dangerousness defense, primarily through expert witness Dr. Mary Elizabeth Pelz.
Trial counsel called Dr. Pelz, Dean of the College of Public Service at the University of Houston-Downtown, as a punishment witness. The defense primarily posed general questions to Dr. Pelz about the strictures of prison life and the ability of life-sentenced inmates to conform their behavior to institutional norms. The defense only asked brief questions that elicited testimony that Batiste had not committed disciplinary infractions while in state jail or juvenile custody. Tr. Vol. 23 at 59.
The State's cross-examination challenged some of Dr. Pelz's general opinions about the threat posed by life-sentenced inmates housed in general population. Most problematic for the defense, however, the State challenged the insinuation that Batiste had not previously been violent when in custody. The State questioned Dr. Pelz about Batiste engaging in various fights, assaults, aggressive actions, and belligerent behaviors while previously incarcerated, including in the time awaiting trial. Tr. Vol. 23 at 94-97. When the State asked why there is any "reason to believe that [Batiste is] going to change his behavior" when he entered the prison system, Dr. Pelz expressed a hope that his behavior "will be tempered because it is the first time he will be in prison. I don't know how else to reply to that." Tr. Vol. 23 at 98. Trial counsel's redirect tried to refocus Dr. Pelz's testimony on the general behavior of inmates, but also tried to minimize the specific violent actions Batiste had previously committed in jail.
Batiste claims that trial counsel should have done a better job of using Dr. Pelz's testimony to show that he would not be violent in prison. Dr. Pelz provided a habeas affidavit saying that, had her testimony been utilized more effectively, the jury would have heard that Batiste was not likely to be a future danger because of his age, education, employment history, desire to maintain prison privileges, and prior behavior while incarcerated. Dr. Pelz opined that trial counsel failed to show that Batiste would adapt to a secure prison environment in a positive non-violent way. To summarize, Dr. Pelz faulted counsel for not emphasizing that his past behavior, when considered in conjunction with future factors, would show a decrease in projected violence.
Trial counsel's state habeas affidavit explained why the defense limited the focus of Dr. Pelz's testimony:
S.H.R. at 918.
In light of the state habeas affidavits and the record, the state habeas court found that "Dr. Pelz's habeas affidavit is unpersuasive to demonstrate that trial counsel failed to present `any' evidence that [Batiste] was not a future danger and that Dr. Pelz `was not utilized in an appropriate manner.'" Specifically, the state habeas court found that trial counsel made "a strategic decision not to ask Dr. Pelz her opinion as to [Batiste's] future dangerousness." S.H.R. at 961. The state habeas court also found that "[t]rial counsel exercised a reasonable trial strategy decision regarding the presentation of future danger evidence, and [Batiste] does not establish trial counsels' deficient performance, much less harm." S.H.R. at 961.
The state habeas court's rejection of this claim was not unreasonable. Trial counsel made a strategic decision to focus Dr. Pelz's testimony on general prison procedures and classification without extensively particularizing the discussion to Batiste's own potential future conduct. In making that decision, trial counsel knew that testimony about Batiste's actions while incarcerated could harm the defense. The jury already knew that Batiste had not been subject to any prison disciplinary action while incarcerated in state jail in 2007 and during his time in juvenile facilities. But focusing on Batiste's threat of future violence while incarcerated would ultimately draw the jury's attention to his more recent violent actions while incarcerated before trial.
Specifically, a reasonable attorney could avoid presenting testimony similar to Dr. Pelz's opinion that "the disciplinary infractions [Batiste] received while at county jail during the pendency of his trial are of limited significance to the overall determination of the probability of future violence." S.H.R. at 481. During his pre-trial custody in Harris County, Batiste had led a group of inmates who assaulted, threatened, and stole from other inmates. Tr. Vol. 19 at 110-32. Batiste committed disciplinary infractions such as fighting, threatening inmates, possessing or manufacturing a weapon, and refusing to obey orders. Tr. Vol. 18 at 130-49. Batiste's actions caused the atmosphere of the jail to turn from "somewhat relaxed" to "unpredictable." Tr. Vol. 19 at 129. Batiste bragged in letters that he had broken another inmate's jaw. Tr. Vol. 24 at 69, 145-46. In closing argument the State chronicled his behavior while "awaiting trial, a trial where it will be determined whether or not he gets the death penalty. And he knows, he knows that [the State] gets records of what he does." Tr. Vol. 25 at 72. Even when in that structured setting, and with fateful incentives, Batiste could not "control himself." He engaged in a list of bad behavior: "disrespect of staff," "[p]ossessing intoxicants in the jail," "[d]amaging county property," "[r]iot, group demonstration," "[l]ots of fights," "[t]errorizing the other inmates, extorting, robbing, threatening." Tr. Vol. 25 at 72-73. Even when facing a capital murder charge, Batiste "was the big man there. And he was running things and he was hurting people. And he didn't care." Tr. Vol. 25 at 73.
In light of his violence while awaiting trial, Dr. Pelz's opinion that Batiste's institutional history was "unremarkable" would be unpersuasive and could be damaging to the defense. Thus, trial counsel made a reasonable strategic decision to focus Dr. Pelz's testimony on policies and procedures, rather than Batiste's own behavior. Because Dr. Pelz's unpersuasive habeas affidavit could allow the State to highlight further Batiste's pre-trial violent conduct, Batiste has not shown that trial counsel's strategic decision prejudiced the defense. The state habeas court, therefore, was not unreasonable in finding no deficient performance or prejudice in counsel's use of Dr. Pelz's testimony.
Batiste claims that "[w]ith little preparation, trial counsel thrust Batiste into the witness box to testify, ill-prepared for what questions to expect from his own defense team much less what the prosecution might bring up on cross-examination." Dkt. 9 at 153. While the defense was able to provide a mitigating view into Batiste's background through his testimony, a blistering crossexamination by the State examined in fine detail the violence replete throughout his life. In particular, Batiste's testimony allowed the State to introduce into evidence letters he wrote while awaiting trial showing his dedication to gang life, his lack of remorse, and his continued violence. Batiste now argues that "[h]ad trial counsel properly prepared [him] to testify and adequately advised him of the potential dangers and pitfalls inherent in testifying, the jury would have never heard such damaging and prejudicial testimony . . ., either because Batiste would have been more equipped to respond to the inevitable challenges of cross-examination, or because he would have chosen not to testify at all." Dkt. 9 at 159.
Trial counsel averred that they "did prepare [Batiste] to testify." S.H.R. at 819. Trial counsel's affidavit reconfirmed Batiste's trial testimony that trial counsel discussed "at length" whether he should testify. Tr. Vol. 24 at 226. The state habeas court found that Batiste then "provided a detailed account of his life and circumstances on direct examination, as well as an explanation for certain rap lyrics he composed while in the Harris County Jail, and [Batiste's] answers to trial counsel's comprehensive direct examination questions indicated prior preparation by counsel." S.H.R. at 962. The trial testimony contradicted Batiste's "vague and conclusory" claim that counsel should have prepared him better. S.H.R. at 962.
Batiste has not shown that the state habeas court's rejection of this claim was unreasonable. Batiste provides nothing but conclusory allegations about how better preparation would have aided the defense. He does not explain how additional coaching would have changed what he said or how he said it, such that the results of the proceedings would have been different. Batiste chose to testify, and once he made his decision, he risked cross-examination that would hurt the defense. Even with additional coaching by trial counsel, cross-examination could still have covered Batiste's jailhouse correspondence, his former violent acts, and the dissonance between his mitigating evidence and his lawlessness. The Court finds that the state habeas court was not unreasonable for not finding deficient performance or actual prejudice.
The State filed a pre-trial a notice of its intent to introduce Batiste's extraneous offenses and jail correspondence at the punishment phase. C.R. at 1426-30. The notice said that the letters "reflect[] a lack of respect for authority and a high regard for street crime, gun use, theft and gang membership. In addition, [Batiste] has little regard or respect for women." C.R. at R 1427. The defense did not object to the admission of that evidence.
Batiste's letters proved his dedication to the Crips. Batiste's letters first came before the jurors during cross-examination of his brother Kevin Noel, Jr. Batiste wrote to Noel about someone called "OG Rome," resulting in testimony that the letters "OG" stand for "original gangster." Tr. Vol. 24 at 40, 43. The State also adduced testimony that Batiste had advised his brother on what kind of tattoos to get, including ones signifying gang membership. Tr. Vol. 24 at 46-47. In other letters, Batiste was disrespectful to women when asking his brother to send contraband nude photographs and when describing sexual interaction with a jail nurse. Tr. Vol. 24 at 47-49, 53-54.
Some letters confirmed Batiste's bad behavior during pretrial detention. The State's crossexamination of Micaela Lara discussed correspondence in which Batiste claimed to have "beat[en] up a white guy from the military" because "[h]e hung up [his] phone call. . . ." Tr. Vol. 24 at 69. Batiste also wrote about making alcohol in prison. Tr. Vol. 24 at 70. In that same letter, he used spelling characteristic of a Crips gang member. Tr. Vol. 70-71.
Batiste's own testimony allowed extensive discussion of his jailhouse letters. The State repeatedly cross-examined Batiste about his own words, and particularly rap lyrics portraying himself as a remorseless, heartless, violent, sexist gang member. The letters described Batiste's fights while incarcerated pending trial. Batiste described wanting to shoot someone. Tr. Vol. 24 at 184. Batiste admitted that he glorified violence in some lyrics. Tr. Vol. 24 at 185. The State's questioning emphasized that Batiste's writings showed no remorse. Tr. Vol. 24 at 187-89.
Batiste explained away his lyrics as "just hypermusic sometimes." Tr. Vol. 24 at 186. Batiste said that the rap lyrics were "just hype." Tr. Vol. 24 at 182.
At the close of testimony, the prosecution moved without objection to place letters into evidence. Tr. Vol. 23 at 174. Trial counsel later submitted 225 pages of letters into evidence. Tr. Vol. 25 at 10-11; Vol. 33 at 43-281. The defense's closing arguments told jurors that, while they would find "foul language and disgusting street stuff" in the letters, Batiste also talked "about what he did to himself." Trial counsel urged that the letters would help a person "motivated by love, compassion, and understanding." Tr. Vol. 25 at 20-21.
On state habeas review, Batiste argued that trial counsel should have had expert witness Rotramel deaden the impact of his violent and lawless language by explaining that he only engaged in hyperbole. Also, Batiste argued that trial counsel should have prepared witnesses to discuss the letters better. Trial counsel's affidavit explained the defense's approach to the letters:
S.H.R. at 819.
The state habeas court found that "trial counsel made a strategic decision to enter over 200 pages of [Batiste's] letters into evidence at the close of punishment; that the letters contained `flags' placed by the State and defense to highlight certain portions, including passages positive" to Batiste. S.H.R. at 964. The state habeas court found that the rap lyrics "constituted a small portion of the trial proceedings." S.H.R. at 965. Also, Rotramel's affidavit was "unpersuasive to demonstrate that an expert was necessary to assist the trier of fact to understand [Batiste's] rap lyrics when [Batiste] explained that the lyrics were largely `hype.' Further, the fact that music lyrics are often expressive, grandiose, and a vehicle to express emotions is not a concept alien to the typical lay person on a jury." S.H.R. at 965. In sum, "counsel made reasonable trial strategy decisions in countering the State's presentation of [Batiste's] letters and rap lyrics, and [Batiste] does not establish trial counsels' deficient performance, much less harm, on the basis urged in the instant ground for relief." S.H.R. at 965.
Batiste has not shown that the state habeas court's decision was unreasonable. Batiste has not indicated how the defense could prevent his jailhouse correspondence from being admitted into evidence. Batiste did not heed counsel's directive not to discuss his case, and he created writings the prosecution would later use against him. Trial counsel chose to let Batiste explain his own words. The Court has already found that trial counsel did not otherwise provide ineffective representation in not calling Rotramel as a witness. Batiste has also not shown that trial counsel needed expert testimony to show effectively why Batiste wrote what he did. With the prejudicial language Batiste put to paper, trial counsel had to decide the least prejudicial manner in which it could come before jurors. Batiste has not shown that the concept that Batiste's writings exhibited hyperbole was beyond the jury's lay understanding.
Batiste has not shown that additional preparation of the recipients of his letters would have dampened the effect of his words. Perhaps other attorneys may have used a different approach to the letters, but Batiste has not overcome the state habeas court's finding that trial counsel made a reasonable strategic decision in how best to do so in this case. Further, Batiste has not shown that, had the defense acted as he argues on state habeas review, that there would have been a reasonable probability of a different result, particularly in light of the other aggravating evidence at trial. Batiste has not shown that the state habeas decision was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Batiste argues that the Court should consider the cumulative effect of all trial counsel's alleged deficiencies. Batiste asserts that the jury would have responded to the special issues differently had trial counsel presented evidence of organic brain damage, refuted testimony about his gang membership, amplified the mitigating evidence and cast it into a different form, asked his future-dangerousness expert different questions, prepared Batiste for what would assuredly be a blistering cross-examination, and otherwise performed differently. For the reasons discussed with regard to each allegation of Strickland error, it is not reasonably probable that the cumulative effect of different representation would have brought about a different result. Many of the differences between the case put on by counsel and that developed on habeas are differences in detail, not mitigating thrust. Some information may have refined and possibly broadened the mitigation evidence, but it would not have changed how jurors approached the special issues. Some habeas evidence, such as greater emphasis on gang affiliation and his pre-trial incarceration, was double edged and could have made jurors more disposed toward a death sentence. Even considering the full effect of Batiste's Strickland claim, the evidence of guilt was overwhelming. The State presented a solid case for a death sentence. Batiste lived a violent, lawless life. Despite his recent claims to minor gang affiliation, Batiste demonstrated his gang devotion though numerous Crips tattoos, including on his face. Even while holding down jobs, Batiste lived in a lawless world of stealing cars and selling stolen property. He used drugs. He committed aggravated robberies. Incarceration did not reform Batiste's character; he left each period of custody more violent than before. Batiste committed the instant murder in a brutal manner, possibly endangering the lives of many as he fired into the victim's car on the freeway, all for his own profit. Batiste did not need to shoot the victim as he pleaded for his life on the ground, but after weighing out his options, Batiste decided to kill anyway. The victim's body bore fifteen gunshot wounds. Crucially, the State presented the "the most powerful imaginable aggravating evidence": Batiste "had committed another murder." Wong v. Belmontes, 558 U.S. 15, 28 (2009). Whether considering each Strickland argument individually or collectively, Batiste has not shown a reasonable probability that the jury would have responded to the special issues differently had counsel performed differently. The Court will deny Batiste's effective-assistance-of-counsel claims.
In his second ground for relief, Batiste claims that the State failed to turn over important impeachment evidence relating to trial witness Anthony Moore. Moore was asleep inside the Black Widow tattoo parlor when Batiste and his friends entered to rob the shop. The State called Moore in the penalty phase to describe the subsequent crime, particularly emphasizing Batiste's role in directing the robbery and in shooting the shop owner. Batiste claims that the State violated his constitutional rights under Brady v. Maryland, 373 U.S. 83, 87 (1963) by failing to disclose that Moore had previous felony convictions and had absconded from a probated sentence in Michigan.
"There are three components to a Brady violation. First, the evidence must be favorable to the accused, a standard that includes impeachment evidence. Second, the State must have suppressed the evidence. Third, the defendant must have been prejudiced." United States v. Hughes, 230 F.3d 815, 819 (5th Cir. 2000). Cases often add a fourth requirement: "nondiscovery of the allegedly favorable evidence was not the result of a lack of due diligence." United States v. Walters, 351 F.3d 159, 169 (5th Cir. 2003); see also Graves v. Cockrell, 351 F.3d 143, 153-54 (5th Cir. 2003). "When evidence is equally available to both the defense and the prosecution, the defendant must bear the responsibility for failing to conduct a diligent investigation." Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002).
Batiste has not shown that the State possessed undisclosed information that was unavailable to his attorneys. In rejecting this claim, the state habeas court found that the prosecutor did not know about Moore's criminal history at the time of trial. The prosecutor provided an affidavit on state habeas review stating that "Moore's Michigan criminal history was not reflected on NCIC/TCIC when she generated his criminal history report on June 1, 2011. Had [the prosecutor] known of Moore's criminal history, she would have disclosed this information to trial counsel." S.H.R. at 966. According to an affidavit provided by an investigator for the State, the "the discrepancy in Moore's NCIC/TCIC criminal history report was the result of Moore's FBI number not being electronically linked to his State of Texas Identification number in the NCIC/TCIC system." S.H.R. at 966. On that basis, the state habeas court found that "the State did not possess knowledge of Moore's out-ofstate criminal history at the time of [Batiste's] capital murder trial; therefore, knowledge of Moore's Michigan criminal history cannot be imputed to the prosecutors who tried [his] case." S.H.R. at 966.
Batiste has not refuted the state habeas findings that the State did not know about Moore's criminal history. Batiste has not shown that the government has a constitutional obligation to divulge information it does not possess. See United States v. Cutno, 431 F. App'x 275, 278-79 (5th Cir. 2011) (finding no Brady violation when a witness' criminal history did not appear in a NCIC report). Additionally, Batiste has not shown that a Brady violation occurs when allegedly suppressed evidence is equally available to the defense. Batiste concedes that "[m]odern technology has made access to information easy and inexpensive. Moore's criminal record was public and discoverable through a simple computer search." Dkt. 9 at 89 n. 56. "When information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim." United States v. Brown, 628 F.2d 471, 473 (5th Cir. 1980); see also Woodford v. Cain, 609 F.3d 774, 803 (5th Cir. 2010) ("[T]his court has previously recognized that there can be no viable Brady claim when allegedly suppressed evidence was available to the defendant through his own efforts.").
Even if the State had withheld otherwise-unavailable evidence, Batiste has not shown that he has met Brady's materiality prong. "The materiality of Brady material depends almost entirely on the value of the evidence relative to the other evidence mustered by the state." Edmond v. Collins, 8 F.3d 290 (5th Cir. 1993). The state habeas court observed that "[I]n addition to Anthony Moore, two other witnesses, Christie Moore and Joshua Norsworthy, positively identified the [Batiste] as the shooter in the capital murder of Steve Robbins and provided in-court identifications of [him]." S.H.R. at 866. In fact, "[a]t punishment, [Batiste] acknowledged that he led and planned the Black Widow capital murder and admitted that he shot [the victim]." S.H.R. at 866. With that context, the state habeas court found that Batiste "does not establish materiality — by a reasonable probability that the result of the punishment proceeding would have been different had [he] been able to impeach Moore with his Michigan criminal history." S.H.R. at 867.
"[W]hen the testimony of a witness who might have been impeached by undisclosed evidence is strongly corroborated by additional evidence, the undisclosed evidence generally is not found to be material." Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994). With the other evidence showing Batiste's leadership role in the Black Widow tattoo parlor robbery and murder, including Batiste's own confession to the crime, the state habeas court reasonably found that Batiste did not meet Brady's materiality prong.
Batiste has not shown that the State withheld evidence of Moore's criminal history or that any Brady violation was material. Accordingly, the state habeas court's adjudication of this claim was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Batiste claims that external factors influenced jurors' deliberations. Batiste's jurormisconduct claim arises out of one juror's concern after an incident occurred in the courthouse contemporaneous to trial. During the second day of the penalty phase, jurors Cathy Upshaw and Robert Coleman both rode in an elevator on their way to the courtroom. As the crowded elevator emptied, a man remained uncomfortably close to juror Upshaw. Juror Upshaw described him as having "two big, fat braids," "a gun tattoo like behind both ears and some initials." The man turned around, "looked at [her] juror badge and said: You okay?" Tr. Vol. 19 at 3. When the jurors exited the elevator, juror Coleman asked juror Upshaw if she was alright, to which she responded: "Yeah. Now I can breathe. I couldn't breathe." Tr. Vol. 19 at 4. The two jurors told the others about the incident. The jurors discussed possible ways to maintain their safety, such as using a separate elevator and moving about in groups. Tr. Vol. 19 at 5. The jury foreman told the bailiff what had happened.
Even though the trial court "discovered that those people [on the elevator] are not a part of this case at all," Tr. Vol. 19 at 5, the trial court questioned jurors Upshaw and Coleman about the elevator episode. Juror Upshaw described how she "went into shock," but that she "was just being paranoid." Tr. Vol. 19 at 4. Even though she found the incident "a little bit intimidating," juror Upshaw affirmed that the experience would not prejudice her against Batiste. Tr. Vol. 19 at 4. Juror Upshaw also avowed that she could decide the case based on the evidence alone. Tr. Vol. 19 at 4-5.
Juror Coleman explained that juror Upshaw "seemed uncomfortable" in the elevator. Tr. Vol. 19 at 7. Juror Coleman also said that "[t]here's some concern in the jury room over — especially among the women, but I think everyone felt pretty — I think the — I think the people are trying to calm each other down, not that they're overly excited or anything like that." Tr. Vol. 19 at 7. Juror Coleman stated that it would not change how he would rule in this case. Tr. Vol. 19 at 7.
The parties and the trial court discussed how to handle the situation. Trial counsel did not request a mistrial, but only requested that the trial court ask each juror if the incident would affect their verdict. Tr. Vol. 19 at 9-10. Rather than "leave it up to the writ lawyer" to find out if the incident made a difference, trial counsel asked the trial court to interview jurors one by one. Tr. Vol. 19 at 11, 13. Each juror affirmed that they could be impartial and that they would decide the case based on the evidence alone. Tr. Vol. 19 at 14-27
Batiste argues that "[j]urors in [his] trial committed misconduct when they impermissibly discussed issues fundamental to the case prior to the full presentation of evidence and the court's instructions." Dkt. 9 at 198. The defense's concern in the trial court, however, was not that jurors discussed the case, but that the incident "would affect their verdict." Tr. Vol. 19 at 10. Batiste contends that "juror Upshaw violated the court's orders" not to discuss the case with anyone "when she told the rest of the jury about the confrontation in the elevator." Dkt. 9 at 193.
The state habeas court found that "Upshaw's elevator incident and subsequent discussion with fellow jurors does not establish the existence of an outside influence under Texas caselaw." S.H.R. at 968. The state habeas court's resolution of his issue was not unreasonable. The Sixth Amendment guarantees a "trial by an impartial jury." Exposure to outside influences during jury deliberations may violate a defendant's rights. See Parker v. Gladden, 385 U.S. 363, 364-65 (1966); Oliver v. Quaterman, 541 F.3d 329, 334-36 (5th Cir. 2008). A reviewing court, however, will only grant relief if the outside influence affected the jury's verdict. See United States v. Olano, 507 U.S. 725, 739 (1993). Here, the record does not suggest that the incident caused jurors to "impermissibl[y] discuss[] issues fundamental case prior to the full presentation of evidence. . . ." Dkt. 9 at 198. Respondent persuasively argues that "Batiste presents no evidence that the jury discussed his case at all prior to deliberations, much less that the jury discussed the incident involving the juror as it might have related to Batiste's case." Dkt. 22, p. 169.
The trial court reassured jurors that the elevator incident was unrelated to the trial. Jurors said that they discussed the incident but did not say that they specifically related it to the evidence in Batiste's case. Even if the incident made some jurors wary, subjective fears or concerns, rather than actual external influences, are not a basis for impeaching a jury's verdict. See United States v. Ahee, 5 F. App'x 342 (6th Cir. 2001), Peterson v. Chrans, 921 F.3d 278 (7th Cir. 1990); United States v. Krall, 835 F.2d 711, 715-16 (8th Cir. 1987).
Alternatively, the state habeas court found that "juror misconduct, if any, was resolved through the trial court's curative instructions." S.H.R. at 969. The trial court took steps to remedy any concerns raised by the incident. The state habeas court found that, "[u]pon learning of juror Upshaw's elevator incident, the trial court questioned each juror individually about what had transpired, and each juror assured the Court that the situation would not affect their decision making in [Batiste's] trial. S.H.R. at 967; see also Smith v. Phillips, 455 U.S. 209, 215 (1982) ("This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias."); United States v. Martinez-Moncivais, 14 F.3d 1030, 1036 (5th Cir. 1994) ("[A] trial court must hold an evidentiary hearing when a defendant shows that external influence."). Each juror affirmed that they would impartially consider the evidence. After that, "the trial court regularly admonished the jurors that they were not to discuss the case among themselves." S.H.R. at 968. The trial court repeatedly instructed jurors only to consider only the evidence, which presumably cures any error. See Zafiro v. United States, 506 U.S. 534, 540 (1993).
Batiste has not shown that the state habeas court was unreasonable in finding that one juror's subjective concern, based on what likely was an innocuous incident, amounts to an outside influence on jury deliberations. Further, Batiste has not shown that the state court unreasonably found that the trial court's efforts and instructions were insufficient to cure any error. The Court, therefore, will deny Batiste's jury misconduct claim.
Batiste faults trial counsel for not making numerous objections during the State's crossexamination of defense witnesses. Batiste argues: "During the cross-examination of the defense's eleven penalty phase witnesses, the State asked numerous impermissible questions that called for hearsay, improperly impeached witnesses, or related to irrelevant events. Despite this, trial counsel objected only twice, ignoring at least fifty other plausible objections." Dkt. 9 at 199 (footnotes omitted). As he did in his state habeas application, footnotes in Batiste's federal petition cite pages in the record which he argues trial counsel should have made "twenty-three different hearsay objections," "twenty-two different character or impeachment objections," and ten different relevance based objections." Dkt. 9 at 199; S.H.R. at 192. Batiste, however, only provides significant discussion regarding a few of the unobjected-to questions.
The state habeas court found that Batiste had not adequately briefed most of his allegations of error. Batiste's habeas briefing cited record pages without identifying the particular statements to which trial counsel should have objected. The state habeas court found that, because Batiste did not identify "when an objection should have been made," much of this claim was "vague and inadequately briefed." S.H.R. at 969. Accordingly, the state habeas court found that Batiste had procedurally defaulted consideration of any inadequately briefed objections. The same default results in a procedural bar of federal review. See Roberts v. Thaler, 681 F.3d 597, 607-08 (5th Cir. 2012).
The state habeas court considered only whether trial counsel should have objected during the State's cross-examination of witnesses Kevin Noel Jr. and Stephanie Soliz. Batiste complains that trial counsel should have objected when the State asked questions about those witnesses' bad acts, including Noel's gang membership, Soliz's participation in stealing cars with Batiste, and both of their drug use with Batiste. Tr. Vol. 23 at 168-69, 171; Tr. Vol. 24 at 3, 16, 23, 38, 44-45, 159. Batiste argued that his trial attorney's failure to object "tarnished the credibility of [the defense's] own witnesses, diminished the strength of the mitigating evidence these witnesses attempted to share, and crippled trial counsel's effort to make a compelling case for Batiste's life." S.H.R. at 215.
Batiste based his state habeas claim on Rule 608 of the Texas Rules of Evidence which provides that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime . . ., may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence." Under this rule, the parties may not attack a witness' character for truthfulness by offering extrinsic evidence concerning specific prior instances of untruthfulness. See Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009). Respondent argues that the State did not ask the indicated cross-examination questions in an effort to impeach the witness' credibility. Respondent argues that the witness' answers were relevant, offered in rebuttal to testimony on direct, or otherwise permissible under Texas law. For example, the state habeas court found that Noel's gang membership was relevant because it related to gang references in Batiste's correspondence with him. S.H.R. at 970. Also, Batiste's drug use with the two witnesses was relevant because Batiste had already "acknowledged on crossexamination that he would regularly spend $150 per week on marihuana for his home." S.H.R. at 970.
Even if trial counsel should have objected in those instances, however, the state habeas court found that "questions regarding Noel's and Soliz's bad acts in these eight specific areas of the record did not `undermine' or `cripple' [Batiste's] mitigation case" when "both witnesses provided evidence favorable to [Batiste] regarding his love for his children and the positive role he played in his children's lives." S.H.R. at 970. The state habeas court found that trial counsel's failure to object did not harm the defense.
Batiste has not shown that the state habeas decision was unreasonable, particularly because much of the unobjected-to testimony came before jurors in a different form or had negligible effect on the trial. Even if trial counsel did not ask Noel about his gang membership, Batiste's correspondence alluded to that fact. Batiste himself described marijuana use in his home, and the testimony of the indicated witnesses was not so harmful either to eviscerate the force of their testimony or influence the punishment phase as a whole. Batiste has not shown that the jury's verdict would have been different if trial counsel made the indicated objections. Batiste has not met his burden of showing that the state court judgment was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Batiste complains that the trial court violated federal and state law by compensating his trial attorneys through a flat fee arrangement. The trial court "grant[ed] a $70,000 flat fee to each trial counsel for their representation of [Batiste]." S.H.R. at 970. The state court observed that Texas law does not define what compensation for capital representation is "reasonable," nor does it expressly preclude compensation through a flat fee. S.H.R. at 971. In fact, at the time of trial "a flat fee for counsel appointed to represent a defendant in a Harris County death capital represented a prevailing professional norm." S.H.R. at 971. The state habeas court found that Batiste did not provide any "legal authority to support his claim that the [trial court] committed fundamental and structural error by granting trial counsel a flat fee for their representation in [his] capital murder trial." S.H.R. at 972.
Despite providing political and policy reasons for which a flat fee may not be the best way to ensure effective legal representation, Batiste has not identified any clearly established federal law requiring the States to adopt one method of compensating capital counsel. Accordingly, Batiste has not shown constitutional error in his conviction and sentence due to counsel's compensation, and finding otherwise would require the creation of new federal law in violation of the non-retroactivity doctrine announced in Teague v. Lane, 489 U.S. 288 (1989). The Court summarily denies Batiste's compensation-of-counsel claim.
Batiste complains that his death sentence is unconstitutional because he received it in Harris County, rather than in another location. According to Batiste, "geographic and racial disparities in Texas have created a system of capital punishment . . . that punishes, not based on the heinousness of a defendant's crime, but on the irrelevant factors of where he lives and what races were involved in the crime." Dkt. 9 at 220. Batiste argues that Texas arbitrarily and capriciously imposes death sentences because: (1) most capital convictions arise from only a few counties and (2) racial considerations taint capital prosecution and sentencing.
Batiste has not shown that a constitutional violation occurred because of where he received his death sentence. Constitutional law, particularly in the jurisprudence flowing from Gregg v. Georgia, 428 U.S. 153 (1976) and Furman v. Georgia, 408 U.S. 238 (1972), emphasizes "eliminating total arbitrariness and capriciousness in" imposing the death penalty. Proffitt v. Florida, 428 U.S. 242, 258 (1976). The Constitution, however, does not require complete uniformity throughout the entire death penalty process. Discretion permeates capital punishment at various stages: "the prosecutor's decision whether to charge a capital offense in the first place, his decision whether to accept a plea to a lesser offense, the jury's consideration of lesser included offenses, and, after conviction and unsuccessful appeal, the Executive's decision whether to commute a death sentence." Id. at 254. The existence of discretion alone does not "render[] the capital sentences imposed arbitrary and capricious." McCleskey v. Kemp, 481 U.S. 279, 307 (1987) (quoting Gregg, 428 U.S. at 199); see also Spinkellink v. Wainwright, 578 F.2d 582, 608 (5th Cir. 1978); Proffitt, 428 U.S. at 254. The Constitution only limits prosecutorial discretion in charging capital crimes when "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification[.]" Wayte v. United States, 470 U.S. 598, 608 (1985) (quotations omitted); see also United States v. Armstrong, 517 U.S. 456, 465 (1996).
Batiste's briefing says that differences in death sentence throughout Texas occur because larger counties, such as Harris County, can allocate greater resources to capital prosecutions. The Supreme Court has not required uniformity in prosecutorial considerations made by state entities with different resources. Other courts have traditionally recognized "the amount of resources required to convict a defendant" and "the extent of prosecutorial resources" as "legitimate prosecutorial factors that would justify" the use of prosecutorial discretion. United States v. Lightly, 616 F.3d 321, 370 (4th Cir. 2010); see also Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004) (noting "the optimal deployment of prosecutorial resources" among the permissible "host of variables" in deciding to prosecute). Constitutionally prohibited arbitrariness does not occur merely because "[t]he capability of the responsible law enforcement agency can vary widely." McCleskey, 481 U.S. at 307 n.28. The Fifth Circuit has similarly observed in another context that the Constitution does not prohibit
Parude v. City of Natchez, 72 F. App'x 102, 105 (5th Cir. 2003) (quotation omitted). Batiste has not pointed to any case finding that different prosecutorial decisions in different counties violates the Equal Protection Clause.
In particular, Batiste has not shown that any unlawful considerations drive the State's choice to prosecute his as a capital crime. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999) (requiring "a criminal defendant to introduce `clear evidence' displacing the presumption that a prosecutor has acted lawfully."). Batiste's crime facially fit the statutory requirements for capital murder. Nothing suggests that the prosecutor in this case considered anything other than the severity of Batiste's crime in asking for a severe punishment. Batiste can only speculate that Harris County's resources made his a capital prosecution when another county would have sought a lesser penalty. In short, federal habeas relief is not available because "no Supreme Court case has held that the Constitution prohibits geographically disparate application of the death penalty due to varying resources across jurisdictions." Allen v. Stephens, 805 F.3d 617, 629 (5th Cir. 2015).
Batiste has also not shown that racial discrimination played any part in his conviction or sentence. Batiste relies on studies which concluded that certain racial groups are more likely than others to be sentenced to death. "[T]o prevail under the Equal Protection Clause, [Batiste] must prove that the decisionmakers in his case acted with discriminatory purpose." McCleskey v. Kemp, 481 U.S. 279, 292-93 (1987) (emphasis added). Batiste "offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence." McCleskey, 481 U.S. at 292-93. Batiste has not shown that racism, rather than a permissible exercise of prosecutorial discretion, was the motivating factor in the State's decision to seek a sentence of death. The state court's rejection of this claim was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Consistent with article 37.071, § 2, of the Texas Code of Criminal Procedure, the trial court told jurors that their votes for a death sentence must be unanimous, but that ten or more jurors could return an answer resulting in a life sentence. C.R. at 1708. Courts generally label this instruction the "12-10 Rule." Batiste contends that, by not informing the jury of the effect of a single dissenting vote or of a single hold-out juror, the instructions predisposed the jurors to impose a death sentence, thus violating the Sixth, Eighth, and Fourteenth Amendments. Batiste specifically argues that the trial court's punishment-phase instructions violated Mills v. Maryland, 486 U.S. 367 (1988), by failing to adequately inform the jury on the effect of hold-out jurors.
In Mills, the Supreme Court "held invalid capital sentencing schemes that require juries to disregard mitigating factors not found unanimously." Beard v. Banks, 542 U.S. 406, 408 (2004) (emphasis added); see also Smith v. Spisak, 558 U.S. 139, 148 (2010); McKoy v. North Carolina, 494 U.S. 433, 439-40 (1990). Because the Constitution mandates that jurors be able to consider mitigating evidence, see Lockett v. Ohio, 438 U.S. 586, 604 (1978), Mills prohibits sentencing instructions that preclude jurors "from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance." Mills, 486 U.S. at 384 (emphasis added). Batiste argues that the 12-10 Rule instruction gave jurors the mistaken impression that they did not have an individual ability to prevent a death sentence, thus precluding them from considering mitigating evidence.
The Fifth Circuit has held that Texas's 12-10 Rule instruction "is wholly dissimilar to that involved in Mills," Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir. 1996), because "all jurors can take into account any mitigating circumstance." Jacobs, 31 F.3d at 1329. Unlike in Mills, "the instructions did not say that the jury must determine the existence of each individual mitigating factor unanimously." Spisak, 558 U.S. at 148. On that basis, the Fifth Circuit has repeatedly denied 12-10 Rule claims. See Allen v. Stephens, 805 F.3d 617, 632 (5th Cir. 2015); Holiday v. Stephens, 587 F. App'x 767, 789 (5th Cir. 2014); Reed v. Stephens, 739 F.3d 753, 779 (5th Cir. 2014); Parr v. Thaler, 481 F. App'x 872, 878 (5th Cir. 2012); Druery v. Thaler, 647 F.3d 535, 542-43 (5th Cir. 2011); Greer v. Thaler, 380 F. App'x 373, 389 (5th Cir. 2010). The Fifth Circuit also has held that any extension of Mills to Texas's penalty-phase instructions would violate Teague v. Lane's prohibition on habeas courts from creating new constitutional law. See Druery, 647 F.3d at 542-43 (5th Cir. 2011). This Court concludes that Batiste has not shown entitlement to habeas relief based on the trial court's 12-10 Rule instruction to the jury.
The trial court held twenty-seven off-the-record discussions throughout trial. Batiste complains that trial counsel should have asked for the court reporter to record all discussions.
On state habeas review, trial counsel averred that "[a]nything said by any one that could possibly adversely effect [Batiste's] right to a fair trial and due process was on the record." S.H.R. at 820. The state habeas court, presided over by the same judge who presided over trial, found "[b]ased on the record and personal recollection," that the hearings involved "administrative matters" and other unimportant issues such as "whether the jury should be given a break." S.H.R. at 875. The state habeas court simply found that Batiste did not "demonstrate any alleged deficiency regarding the court reporter's record," S.H.R. at 876, because: "(1) the trial record is voluminous; (2) there are no missing sections of an entire phase of the trial; (3) counsel's efforts to build and protect the record allowed appellate counsel to raise twenty-two (22) points of error on direct appeal; and (4) the context of several of the conferences indicate that the topics being discussed were administrative." S.H.R. at 992.
Trial counsel averred that the off-the-record discussions did not involve Batiste's substantive rights. The state habeas court did not remember any issue missing from the record. Batiste has not countered those recollections with any verifiable showing that the court reporter omitted crucial matters from the trial record. See Green v. Johnson, 160 F.3d 1029, 1043-44 (5th Cir. 1998) (rejecting a similar claim when the petitioner offered "only the conclusory allegation that `significant proceedings affecting substantial rights of the accused have been lost forever"). Batiste, therefore, has not shown that the state habeas court's judgment was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Batiste's tenth claim complains that the trial court denied his Eighth Amendment rights by providing the jurors a definition of mitigating evidence that restricted their consideration of his punishment-phase evidence. The trial court gave the commonly used Texas instruction: "[Y]ou shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness, including evidence of the defendant's background, character, record, emotional instability, intelligence, or the circumstances of the offense that mitigates against the imposition of the death penalty." C.R. at 1709; see also TEX. CODE CRIM. PRO. art. 37.071 § 2(g) (describing mitigating evidence as "evidence that a juror might regard as reducing the defendant's moral blameworthiness."). Even though the instruction given by the trial court informs jurors to consider broad factors such as a defendant's background and character, Batiste argues that the instructions confined the jury to considering only matters relating to his "personal culpability" because of the term "moral blameworthiness." C.R. at 435.
Batiste raised this claim on state habeas review. The state habeas court found that the Court of Criminal Appeals had "previously rejected the argument that TEX. CRIM. PRO. CODE art. 37.071 unconstitutionally narrows a jury's discretion to consider as mitigating only those factors concerning moral blameworthiness." S.H.R. at 977 (citing Shannon v. State, 942 S.W.2d 591 (Tex. Crim. App. 1996)). The state habeas court found that "the punishment instructions . . . allowed the jury to consider all submitted evidence in answering the special issues" and "did not restrict the jury to consider as mitigating only evidence that reduced [Batiste's] moral blameworthiness." S.H.R. at 977.
The law is clear that Texas' mitigation special issue provides a constitutionally acceptable vehicle to consider mitigating evidence. In fact, the Fifth Circuit has "rejected similar arguments multiple times." Rockwell v. Davis, 853 F.3d 758, 763 (5th Cir. 2017); see also Blue v. Thaler, 665 F.3d 647, 665-66 (5th Cir. 2011); Robles v. Thaler, 344 F. App'x 60, 63-64 (5th Cir. 2009); Cantu v. Quarterman, 341 F. App'x 55, 60-61 (5th Cir. 2009); Roach v. Quarterman, 220 F. App'x 270, 277 (5th Cir. 2007); Jackson v. Dretke, 181 F. App'x 400, 413-14 (5th Cir. 2006); O'Brien v. Dretke, 156 F. App'x 724, 735-36 (5th Cir. 2005); Beazley, 242 F.3d at 260. Accordingly, Batiste has not shown that the state court's decision regarding his challenge to the trial court's mitigation instruction was contrary to or an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1).
Batiste claims for the first time on federal review that his appellate and habeas attorneys should have challenged Texas' capital punishment scheme under Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny. Batiste's failure to exhaust this claim makes it subject to dismissal, but it also lacks merit. Inmates have repeatedly challenged Apprendi's application to Texas. Here, Batiste argues that his former attorneys should have argued that Apprendi requires that the indictment include findings on the future-dangerous special issue. The Court of Criminal Appeals, however, has rejected any application of Apprendi to a grand jury indictment. See Velez v. State, 2012 WL 2130890, at *34 (Tex. Crim. App. 2012); Thompson v. State, 2007 WL 3208755 (Tex. Crim. App. 2007); Roberts v. State, 220 S.W.3d 521, 535 (Tex. Crim. App. 2007); Renteria v. State, 206 S.W.3d 689, 709 (Tex. Crim. App. 2006); Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005); see also Bigby v. Stephens, 595 F. App'x 350, 354 (5th Cir. 2014).
Batiste was wearing a blue necklace when the police arrested him for murdering Horace Holiday.
Officer Ponder then provided the jury a brief description of the necklace as being blue, a color worn by Crips gang members, with a "grim reaper" figure attached. Tr. Vol. 18 at 175, 177. Officer Ponder identified the necklace as a "Santa Muerte necklace" and explained its significance:
Tr. Vol. 18 at 175. Officer Ponder affirmed that "non-gang members, non-criminals, also have items that might have Santa Muerte on them" and "[n]ot everybody wearing a Santa Muerte is a criminal." Tr. Vol. 18 at 176. Officer Ponder also agreed that "somebody who was going to commit a crime might wear" a Santa Muerte necklace. Tr. Vol. 18 at 176.
Officer Ponder then gave extensive testimony about Batiste's various gang-related tattoos. Tr. Vol. 18 at 177-195. The prosecution also set the stage for later discussion of Batiste's prison letters by discussing with Officer Ponder idiosyncratic features in writing and clothing by Crips members. Tr. Vol. 195-200. Trial counsel did not ask Officer Ponder any questions.
Batiste raised several complaints about the necklace and related testimony on direct appeal, including that it "(1) violated his right to the free exercise of religion under the federal and Texas constitutions, (2) was irrelevant under Article 37.071, (3) should have been excluded under Rule 403, and (4) was not properly authenticated." On federal review, Batiste argues that the trial court violated his First Amendment rights by commenting on his religious background and practices.
Batiste, however, does not present his First Amendment arguments in a procedural actionable manner. Trial counsel did not object based on the First Amendment. Relying on TEX. R. APP. P. 33.1(a)(1)(A), the Court of Criminal Appeals held that Batiste "failed to preserve . . . any First Amendment or religious issue." Opinion on Direct Appeal at 9. In other words, the appellate court relied on Texas' contemporaneous-objection rule to preclude consideration of any First Amendment issue. See Evans v. Cockrell, 285 F.3d 370, 373 (5th Cir. 2002) (linking TEX. R. APP. P. 33.1 and Texas' judicial contemporaneous-objection rule). "The `Texas contemporaneous objection rule constitutes an adequate and independent state ground that procedurally bars federal habeas review of a petitioner's claims.'" Styron v. Johnson, 262 F.3d 436, 453 (5th Cir. 2001) (quoting Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999). The First Amendment portions of this claim are procedurally barred.
The Court of Criminal Appeals discussed the Santa Muerte necklace's religious implications in a footnote. The Court of Criminal Appeals observed that "[a]t no time did the prosecutor or the gang expert suggest that Batiste's necklace had any significance to the exercise of a bona fide religion." Opinion on Direct Appeal at 9, n.6. After reviewing state and federal cases addressing the relationship between Santa Muerte worship and drug trafficking, the Court of Criminal Appeals observed that "Officer Ponder never referred to [Batiste's] religious beliefs or affiliations; he simply stated that the Crips gang uses the color blue as was used in the necklace and that the `grim reaper' pendant is used by criminal gangs. The logical connection to be made is between `Santa Muerte' necklace and gang membership and criminal activities, not between wearing a `Santa Muerte' necklace and being religious or being Catholic." Opinion on Direct Appeal at 9, n.6.
The state habeas court's reasoning traveled a similar path in finding that trial counsel did not provide ineffective representation by not lodging an objection on First Amendment grounds. The state habeas court held that such an objection would have been meritless because "the State did not introduce into evidence that the scapular had any significance to the exercise of religion." S.H.R. at 990. Also, no prejudice resulted because "the evidence of [Batiste's] two capital murders, an aggravated robbery, and multiple bad acts was particularly strong." S.H.R. at 990. Appellate counsel also did not provide ineffective assistance by not raising trial counsel's effectiveness in that regard because Batiste did "not demonstrate that he would have prevailed on appeal" and because "appellate counsel chose to raise other claims on direct appeal regarding the Santa Muerte scapular." S.H.R. at 990.
The state court's rejection of any First Amendment claims was not unreasonable. This is not a case where, as Batiste alleges, "the State repeatedly injected the issue of religion." Dkt. 9 at 279. The State focused its references to the medallion on the gang and criminal, not religious, implications of wearing it. Interestingly, Batiste has never presented any evidence, through affidavit or otherwise, to establish what the Santa Muerte necklace meant to him. Batiste's briefing presumes that, because the medallion can have a religious meaning, it did to him. The record, however, does not provide any indication of whether Batiste wore the medallion for religious worship, as protection in the drug trade as suggested by the prosecution, or for some unrelated reason.
Even so, Batiste has not identified any case law precluding a trial discussion of a Santa Muerte symbol on First Amendment grounds. Federal courts often cite testimony about the use of Santa Muerte by drug traffickers or other criminals without expressing any constitutional concern. See United States v. Garcia-Coronado, 657 F. App'x 648, 649 (9th Cir. 2016); United State v. Zaragoza-Moreira, 780 F.3d 971, 976 (9th Cir. 2015); United States v. Guerrero, 768 F.3d 351, 356 (5th Cir. 2014); but see United States v. Medina-Copete, 757 F.3d 1092, 1095 (10th Cir. 2014) (avoiding any constitutional question because trial discussion of Santa Muerte came through the testimony of a witnesses improperly qualified as an expert). Nevertheless, Officer Ponder's testimony did not necessarily link the Santa Muerte necklace to religious beliefs or practices, but instead observed its common use among some criminals. Officer Ponder also explained the distinctiveness of the necklace in this instance where it, contrary to other practices, contained colors associated with the Crips gang. Batiste has not shown any violation of his First Amendment rights at trial.
Batiste has not shown that the presentation and discussion of the Santa Muerte necklace prejudiced the defense. Whether Batiste casts his claim in a First Amendment, Strickland, or other framework, federal relief only becomes available after some showing of harm. Batiste has not shown that the necklace had any measurable effect on the jury's consideration of the special issue questions. The discussion of the necklace was brief. Officer Ponder explained why some people may wear such a necklace, but did not provide the jury with any definitive description of why Batiste chose to do so. Even then, the necklace's "probative value concerning [Batiste's] character and gang membership was not particularly compelling—not nearly as compelling as the myriad gang tattoos on his body. . . ." Opinion on Direct Appeal at 13. The discussion of the necklace was the prelude to a lengthy and detailed discussion, comprising numerous pages of transcript, of how Batiste adorned himself with other signs of violence and lawlessness. The abundant and detailed testimony about Batiste's numerous gang-related tattoos would eclipse any short mention of the Santa Muerte necklace, particularly given the fact that the State did not return to discuss the necklace in closing arguments but amply addressed his gang tattoos. Nothing else in the record suggested that, as Batiste committed the repeated and extremely violent acts upon which the State premised its punishment case, he relied on divine or talismanic protection. When properly placed in the detailed landscape of the punishment phase, the necklace was of only incidental importance. Whether assessing the trial under a reasonable-probability, harmlessness, or other standard, Batiste has not shown that the admission of, and testimony about, the necklace prejudiced the defense. See United States v. Esquivel-Rios, 725 F.3d 1231, 1241 (10th Cir. 2013) (finding any error harmless when a government agent identified a Santa Muerte tattoo).
For the same reasons as discussed above, and in light of the fact that the state habeas court found that the "trial court would not have abused his discretion in overruling a First Amendment objection," Batiste has not shown that trial counsel should have objected to the necklace on First Amendment grounds. S.H.R. at 990. The Court denies Batiste's claims relating to his Santa Muerte necklace.
Batiste argues that the trial court violated Texas evidentiary law by allowing victim-impact testimony (claim eighteen) and that courtroom disruptions violated his due process rights (claim nineteen). Batiste's claims arise from three concerns: the trial court (1) did not prevent emotional outbursts by people observing the trial; (2) allowed family members to testify constructively through emotional outbursts and (3) permitted one victim's mother to relate hearsay statements. Federal procedural and substantive law preclude habeas relief on these claims.
Batiste first argues that outbursts during trial violated his right to confront witnesses and to due process. The record indicates that some family members present in the courtroom reacted emotionally to trial testimony. The State requested that the trial court allow Horace Holiday's mother, grandmother, and uncle to be present in the courtroom during trial. Tr. Vol. 13 at 3. The trial court overruled the defense's objection that family members should be excluded from the courtroom for fear that they would become emotional.
As an assistant medical examiner testified about Mr. Holiday's death, the trial court requested a bench conference because Mr. Holiday's family was "all crying over there." Tr. Vol. 16 at 20-21. The prosecutor opined that she had heard some "sniffling," but had not heard any crying. Tr. Vol. 16 at 22. Trial counsel did not want to draw attention to the crying by asking for a jury instruction, but instead unsuccessfully requested a mistrial. Tr. Vol. 16 at 23.
In another incident, an unidentified spectator loudly said "Amen" when the prosecutor questioned Batiste "[i]f you were scared [during the Black Widow robbery] why did you do this robbery in the first place?" Tr. Vol. 24 at 208. Batiste attributes the outburst to the victim's uncle. Trial counsel did not object to the outburst. The trial court later made the following statement to courtroom spectators outside the jury's presence:
Tr. Vol. 24 at 230. Batiste complains that these audible outbursts deprived him of a fair trial.
On direct appeal, the Court of Criminal Appeals observed that emotional outbursts by grieving family members is "one potential hazard in a society that cherishes the right to a public trial." Opinion on Direct Appeal at 21. The Court of Criminal Appeals continued: "The defendant in a criminal trial has the constitutional right to a trial that is open to the public; and the public — including both the defendant's and victim's family members — also has a right to attend criminal trials." Opinion on Direct Appeal at 21 (footnotes omitted). The Court of Criminal Appeals' review of the record led it to conclude:
Opinion on Direct Appeal at 23-24 (quoting Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009)). The Court of Criminal Appeals did not find any error because "[n]othing in this record suggests that the jury could not (1) ignore those occasions when Mr. Holiday's family members showed some emotion or (2) fairly examine the evidence in arriving at a verdict." Opinion on Direct Appeal at 24. Batiste's briefing does not show that the state court's assessment of those outbursts was unreasonable.
Batiste also complains that outbursts by Mr. Holiday's uncle (who was never called to the stand) was the equivalent of actual testimony, subject to confrontation and cross-examination under Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The Court of Criminal Appeals, however, correctly observed that Crawford "applies only to those who offer testimony or testimonial statements." Opinion on Direct Appeal at 20, n.36. The Court of Criminal Appeals explained that "Mr. Holiday's uncle cannot be said to have `testified' against the defendant by sitting in the courtroom during public proceedings, even when he may have exhibited some emotion." Opinion on Direct Appeal at 20, n. 36.
Finally, Batiste complains because the trial court allowed Holiday's mother to relate hearsay statements. During her trial testimony, Mr. Holiday's mother mentioned that he had saved his money to buy the wheel rims for his Cadillac. Batiste complains that the contrast between the victim's hard work and his own robbery to obtain the rims was "a contrast that rises to the level of an impermissible use of victim impact evidence to compare the value of the complainant to other members of society." Dkt. 9 at 287. The Court of Criminal Appeals refused to consider this argument under TEX. R. APP. P. 33.1 because trial counsel did not make a hearsay objection, a holding that likewise bars federal habeas review. The Court of Criminal Appeals also found that state law did not forbid that "type of comparison" and that any error was harmless. Opinion on Direct Appeal at 21, n.36. Because no clearly established federal law prohibits the testimony about Mr. Holiday's efforts to obtain the rims, and the testimony played only a minor role at trial, the state habeas court was not unreasonable in denying this aspect of Batiste's claim.
Batiste claims that the trial court should have allowed testimony on how his execution would impact his family members.
Snarr, 704 F.3d at 401-02 (quoting Payne, 501 U.S. at 825); see also Jackson, 450 F.3d at 618. For those reasons, the Court of Criminal Appeals rejection of this claim was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Batiste claims that the trial court violated his constitutional rights by granting the State's motion to dismiss prospective juror Alexandria Dunwood for cause. As will be discussed below, the trial court excused Ms. Dunwood because she repeatedly said that she could not return a death sentence in this case. Exclusion of prospective jurors "hesitant in their ability to sentence a defendant to death" without any limitations violates the Fourth and Fourteenth amendments. Morgan v. Illinois, 504 U.S. 719, 732 (1992); see also Adams v. Texas, 448 U.S. 38, 45 (1980); Witherspoon v. Illinois, 391 U.S. 510, 521-22 (1968). The State must demonstrate through questioning that the potential juror it seeks to exclude lacks impartiality, and the judge must then determine whether the state's challenge is proper. See Wainwright v. Witt, 469 U.S. 412, 423 (1985). Thus, the key issue is "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id. at 424 (quoting Adams, 448 U.S. at 45).
The exclusion of potential jurors is a question of fact. See McCoy v. Lynaugh, 874 F.2d 954, 960 (5th Cir. 1989); Patton v. Yount, 467 U.S. 1025, 1036 (1984). The factual determinations of the Texas Court of Criminal Appeals are presumed to be correct, and the petitioner has the burden of rebutting these determinations by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). This Court can grant federal habeas relief only if the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); see also Fuller v. Johnson, 114 F.3d 491, 500-01 (5th Cir. 1997) (holding that a trial court's finding of juror bias is entitled to a presumption of correctness)
The prosecution questioned Alexandria Dunwood first. After a few preliminary inquires regarding her responses on the jury questionnaire about capital punishment, the prosecutor observed that Ms. Dunwood had not answered the question of whether she had any moral, religious, or personal beliefs that would prevent her from rendering a verdict that would result in execution. Tr. Vol. 8 at 103. Ms. Dunwood said that she did not answer the question because she "really [didn't] know what [her] answer would be to that question." Tr. Vol. 8 at 103. Throughout the remainder of the State's questioning, Ms. Dunwood consistently expressed that she could not return a verdict resulting in a death sentence. Tr. Vol. 8 at 104-05. After repeated questions resulting in similar answers, the State said that it "has a motion." Tr. Vol. 8 at 105. While the State did not elaborate that it intended to challenge Ms. Dunwood for cause, the defense's subsequent questioning shows that the parties understood that was the State's intention and that the for-cause challenge related to her inability to return a death sentence.
The defense asked several questions, and Ms. Dunwood repeatedly answered that she could not render a death sentence. Ms Dunwood affirmed that she could not do so "no matter what" and without regard to "how bad the case was." Tr. Vol. 8 at 107. Ms. Dunwood's answer to the final question put to her, however, gives rise to the instant claim:
Tr. Vol. 8 at 107 (emphasis added). The State then objected to "any further questioning" because "She's already made herself clear. And further battering by the defense counsel I don't think we should get her — make her change her answer to that question." Tr. Vol. 8 at 107. The trial court sustained that objection and granted the State's challenge for cause. Trial counsel, however, had Ms. Dunwood clarify that the defense was not battering her. Tr. Vol. at 8 at 108.
After the trial court excused Ms. Dunwood, the defense objected that her last answer indicated an ability to serve "depend[ing] on what the evidence was." Tr. Vol. 8 at 108. The State responded by asking the trial court to "make a finding on the record as to what her demeanor was and the way she answered the questions. . . ." Tr. Vol. 8 at 109. The trial court stated that "[s]he obviously, obviously said that she could not do it. And I believe that any further questioning would be fruitless." Tr. Vol. 8 at 109.
Batiste challenged the dismissal of Ms. Dunwood on direct appeal. Under Texas law, appellate courts review the State's for-cause challenge with "considerable deference" because the trial court is in the best position to evaluate a prospective juror's demeanor and responses. Hernandez v. State, 390 S.W.3d 310, 317 (Tex. Crim. App. 2012). Texas appellate courts pay particular deference when a prospective juror's answers are vacillating, unclear, or contradictory. Id. A federal habeas court's respect for such a finding "certainly should be no less." Ortiz v. Quarterman, 504 F.3d 492, 502 (5th Cir. 2007).
Here, the Court of Criminal Appeals found no error in the dismissal of Ms. Dunwood for cause:
Opinion on Direct Appeal at 34-35.
In all of the repeated questioning, Ms. Dunwood only possibly wavered in one instance. Notwithstanding that answer, the trial court did not hesitate to find that Ms. Dunwood's personal opinions would prevent her from following the law. The "predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from the appellate record." Id. at 429. Indeed,
Witt, 469 U.S. at 425-26. Despite her single statement during the defense examination, the trial court could reasonably conclude that Ms. Dunwod would "frustrate the State's legitimate interest in administering constitutional capital sentencing schemes by not following [her] oath[]." Witt, 469 U.S. at 423. As the trial court clearly could have been "left with the definite impression that [Ms. Dunwood] would be unable to faithfully and impartially apply the law," Witt, 469 U.S. at 426, the trial court had a reasonable basis for granting the State's challenge for cause. Batiste, therefore, has not met his AEDPA burden of overcoming the state court's factual determination regarding her answers and demeanor.
Batiste made several incriminating statements to police officers after the murder. Immediately after being pulled over, Batiste responded to questions about whether he had been shot. Batiste also confessed to the murder for which he was convicted, and other crimes, during a subsequent police interrogation. After hearing testimony in a suppression hearing, the trial court allowed Batiste's statements to come before the jury.
Batiste repeatedly shot the victim as he drove down the freeway. Blood covered the inside of the victim's car when Batiste drove it away from the scene of the murder. Police officers knew that Batiste had fired shots when the Cadillac had stopped at the gas station; they did not know the whole series of events that led to Batiste stealing the car. Tr. Vol. 13 at 91. Batiste eluded police officers for some time until spike strips blew out the Cadillac's tires. Police officers, including Harris County Sheriff Officer Christopher Gore, took Batiste into custody. Officers handcuffed Batiste and put him in the back of a police car.
At that point, Officer Gore went to "clear[] the vehicle and ma[ke] sure it was safe." Tr. Vol. 13 at 79. Officer Gore then noticed "blood spatter throughout the interior of the vehicle and another small caliber handgun in the front seat." Tr. Vol. 13 at 80. "With the amount of blood that [he] saw," Officer Gore told another officer: "I wonder if this guy's been shot, there's blood everywhere." Tr. Vol. 13 at 81. The other officer said: "Go check on him, make sure he's not injured. That way if he is we can get him medical attention." Tr. Vol. 13 at 82.
Officer Gore then approached Batiste who was still sitting in a patrol car, under arrest. Officer Gore saw blood on Batiste. Officer Gore asked "if he had been shot." Tr. Vol. 13 at 82. The conversation that gives rise to the instant claim then took place:
Tr. Vol. 13 at 82-83. Batiste argues that Officer Gore subjected him to a custodial interrogation and, because he did not receive his Miranda warnings, the trial court should not have allowed Officer Gore to tell jurors how Batiste had responded to his questions.
In Miranda, the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444. Custodial interrogation consists of questioning by law enforcement agents "after a person has been taken into custody." Id. The "term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). An incriminating response is "any statement — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial." Id. at 301 n. 5.
The State conceded that Batiste was in custody when Officer Gore asked if he had been shot, but argued that Officer Gore did not interrogate him. Tr. Vol. 13 at 87-88. The Court of Criminal Appeals found that "[i]t is undisputed that [Batiste] was in custody," leaving only "the legal question [of] whether Sgt. Gore `interrogated' [him] for the purposes of Miranda." Opinion on Direct Appeal at 37. Interrogation includes "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 301. Certain questions "normally attendant to arrest and custody" such as those concerning a suspect's "name, address, height, weight, eye color, date of birth, and current age" are not an interrogation. See Pennsylvania v. Muniz, 496 U.S. 582 (1990). The State argued that Officer Gore's questions were not the functional equivalent of an interrogation because he "had a responsibility to make certain [Batiste] was not injured." Tr. Vol. 13 at 88.
Here, Officer Gore's question about whether Batiste was injured was not "reasonably likely to elicit an incriminating response." Innis, 446 U.S. at 301. On direct appeal, the Court of Criminal Appeals could not "say that Sgt. Gore was acting under the guise of inquiring about [Batiste's] medical condition, but actually hoping to elicit an incriminating response." Opinion on Direct Appeal at 39.
Batiste provided a confusing answer to Officer Gore's initial question. He told Officer Gore that the driver had been shot, but without more-detailed information about the circumstances leading up to the chase, Officer Gore would not know that Batiste meant the victim. As the Court of Criminal Appeals observed, Batiste "responded with an answer to that question [which] was confusing and required some follow-up to ensure that (1) [he] was not actually suffering from a serious wound or trauma but was too confused or delusional to relay the correct information to the officer, or (2) there was not another person—perhaps the driver—who had been in the car with him, who may have left the scene, and was either a security threat or in need of immediate medical attention." Opinion on Direct Appeal at 41. "In sum, Sgt. Gore's questions neither presented [Batiste] with the `psychological intimidation' associated with a police interrogation nor was it an underhanded way of bypassing Miranda and eliciting an incriminating response." Opinion on Direct Appeal at 41. Batiste's answer that the blood belonged to "the driver" confused the officers who had just seen him drive the car. Tr. Vol. 13 at 82-85, 92-93. Because Officer Gore's follow-up question was not reasonably likely to evoke an incriminating response, but only clarified who had been the driver that had left so much blood in the car, it does not constitute interrogation. See Innis, 446 U.S. 291 at 301. The state habeas court's rejection of Batiste's challenge to his initial statements was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Batiste made several incriminating statements after the police transported him to the police station. Batiste first gave a recorded statement in which he confessed to the murder for which he was eventually convicted. Tr. Vol. 14 at 138-48. About twelve hours later, a police officer interrogated Batiste about the murder he committed at the Black Widow tattoo parlor. The police officer taking that statement said that he delivered the Miranda warnings before speaking to Batiste. Tr. Vol. 11 at 59. Batiste gave an initial unrecorded confession to the crime, followed by a recorded statement reconfirming his guilt. A different officer later took a recorded statement in which Batiste confessed to robbing the Phat Kats tattoo parlor.
The trial court found that the police properly warned Batiste prior to each interview and statement. C.R. at 1800-04. Batiste presents no evidence to rebut the state court's findings. Batiste nonetheless claims that the trial court should have suppressed all these statements because they violated the rule set forth in Missouri v. Seibert, 542 U.S. 600 (2004).
In Seibert, the police diluted the effect of Miranda warnings through a two-step strategy: a detective exhaustively questioned the suspect until securing a confession and then, after a brief break, delivered the Miranda warnings and had the suspect repeat the earlier confession. Seibert addressed a specific concern: "the strategy of withholding Miranda warnings until after interrogating and drawing out a confession." 542 U.S. at 609; see also United States v. Montalvo-Rangel, 437 F. App'x 316, 319 (5th Cir. 2011) (stating that Seibert condemned a "question first" police tactic, "a strategy by which officials interrogate an individual without administering a Miranda warning, obtain an admission, administer a Miranda warning, and then obtain the same admission again"). Batiste claims that Officer Gore intentionally interrogated Batiste and, once he inculpated himself, only then warned him of his constitutional rights in the subsequent questioning.
On direct appeal, the Court of Criminal Appeals found that Batiste had procedurally defaulted consideration of this claim by not making an argument for their suppression under Seibert. Opinion on Direct Appeal at 44. Because Batiste has not shown cause or prejudice to overcome that state-law ruling, a procedural bar precludes federal consideration of this claim.
In the alternative, the Court of Criminal Appeals found that Batiste's Seibert claim lacked merit:
Opinion on Direct Appeal at 44-45. Batiste's federal Seibert claim is also wholly dependant on the presence of constitutional error in his statement to Officer Gore. Because Batiste has not shown that Officer Gore violated his constitutional rights through the same "question first, warn later" procedure condemned in Seibert, he has also not demonstrated any constitutional violation. Batiste has not shown that the state court adjudication was unreasonable, and accordingly has not shown that he merits habeas relief.
Under AEDPA, a prisoner cannot seek appellate review from a lower court's judgment without receiving a Certificate of Appealability ("COA"). See 28 U.S.C. § 2253(c). Batiste has not yet requested that this Court grant him a COA, though this Court can consider the issue sua sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). "The COA statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal." Slack v. McDaniel, 529 U.S. 473, 482 (2000). A court may only issue a COA when "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
The Fifth Circuit holds that the severity of an inmate's punishment, even a sentence of death, "does not, in and of itself, require the issuance of a COA." Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). The Fifth Circuit, however, anticipates that a court will resolve any questions about a COA in the death-row inmate's favor. See Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000). The Supreme Court has explained the standard for evaluating the propriety of granting a COA on claims rejected on their merits as follows: "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484; Miller-El, 537 U.S. at 336-38. On the other hand, a district court that has denied habeas relief on procedural grounds should issue a COA "when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; Miller-El, 537 U.S. at 336-38. Unless the prisoner meets the COA standard, "no appeal would be warranted." Slack, 529 U.S. at 484.
Batiste's petition raises issues worthy of judicial review. Nevertheless, having considered the merits of Batiste's petition, and in light of AEDPA's standards and controlling precedent, this Court determines that a COA should not issue on any claim.
For the reasons described above, the Court GRANTS Respondent's motion for summary judgment, DENIES Batiste's petition, and DISMISSES this case WITH PREJUDICE. All other requests for relief are DENIED. The Court will not certify any issue for appellate review.
S.H.R. at 271.
S.H.R. at 960.
