XAVIER RODRIGUEZ, District Judge.
Petitioner Juan Edward Castillo filed this federal habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2005 Bexar County conviction for capital murder and sentence of death.
For the reasons set forth below, Petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.
The Texas Court of Criminal Appeals published an opinion affirming Petitioner's conviction and summarized the pertinent guilt-innocence phase testimony from Petitioner's capital murder trial. See Castillo v. State, 221 S.W.3d 689, 691-93 (Tex. Crim. App. 2007).
A Bexar County grand jury indicted Petitioner on February 24, 2004 in cause no. 2004-CR-1461 on a single count of capital murder, to wit, intentionally and knowingly causing the death of Tommy Garcia by shooting Garcia with a deadly weapon in the course of committing and attempting to commit the offense of robbery of Garcia.
The guilt-innocence phase of Petitioner's capital murder trial commenced on August 23, 2005. The jury heard evidence from prosecution witnesses establishing (1) Debra Espinosa frantically beat on the door of a nearby residence immediately after Garcia was shot until the residents let her in,
On August 30, 2005, the jury returned its verdict, finding Petitioner guilty of capital murder as charged in the indictment.
The punishment phase commenced on August 31, 2005, with Petitioner advising the state trial court he wished to represent himself throughout the remainder of trial.
On September 1, 2005, the jury returned its verdict at the punishment phase of Petitioner's capital murder trial, finding (1) beyond a reasonable doubt there was a probability Petitioner would commit acts of violence that would constitute a continuing threat to society and (2) unanimously, taking into consideration all of the evidence, including the circumstances of the offense and the defendant's background, character, and personal moral culpability, there was not a sufficient mitigating circumstance to warrant that a sentence of life imprisonment rather than a death sentence be imposed.
Petitioner filed his appeal June 27, 2006, challenging the factual and legal sufficiency of the evidence of guilt, arguing Petitioner's death sentence violated the Eighth Amendment, and arguing the trial court erred in overruling Petitioner's pretrial motion to exclude the testimony of Petitioner's accomplices Debra Espinosa and Francisco Gonzales. The Texas Court of Criminal Appeals affirmed Petitioner's conviction and sentence in a published opinion issued May 2, 2007. Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007). Petitioner did not thereafter seek further review of his conviction from the United States Supreme Court through a petition for writ of certiorari.
Petitioner filed his application for state habeas corpus relief on November 13, 2009,
Petitioner filed his federal habeas corpus petition in this Court on June 28, 2013 (ECF no. 12), reasserting the ineffective assistance complaints he urged in his state habeas corpus proceeding, along with his claim the state trial court erroneously granted his request for self-representation during the punishment phase of trial (and failed to hold a Faretta hearing on Petitioner's pretrial expressions of dissatisfaction with his trial counsel) and a wholly new claim that a prosecution witness (Gerardo Gutierrez) committed perjury during Petitioner's trial.
On January 23, 2014, Respondent filed his answer to Petitioner's federal habeas corpus petition (ECF no. 22), arguing (1) the state courts reasonably rejected Petitioner's ineffective assistance claims on the merits because all those claims were either refuted by the uncontradicted testimony of Petitioner's trial counsel during the extended state habeas hearing or because Petitioner failed to allege any facts showing how he was "prejudiced" within the meaning of Strickland by the alleged deficiencies in his trial counsels' performance, (2) the state trial court properly granted Petitioner's request for self-representation and failed to make a Faretta inquiry prior to trial because Petitioner's requests for appointment of new counsel were withdrawn almost as soon as they were made, and (3) Petitioner's allegation of perjured testimony by a prosecution witness is both unexhausted, and therefore procedurally defaulted, as well as legally meritless because Petitioner alleges no facts showing the prosecution ever knew of any factual inaccuracy in Gutierrez's trial testimony.
Because Petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court's review of Petitioner's claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792 (2001). Under the AEDPA standard of review, this Court cannot grant Petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).
The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of 28 U.S.C. Section 2254(d) (1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141; Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) ("A state court's decision is `contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"). A state court's failure to cite governing Supreme Court authority does not, per se, establish the state court's decision is "contrary to" clearly established federal law: "the state court need not even be aware of our precedents, `so long as neither the reasoning nor the result of the statecourt decisions contradicts them.'" Mitchell v. Esparza, 540 U.S. at 16.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the Petitioner's case. Brown v. Payton, 544 U.S. at 141; Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) ("A federal habeas court can only set aside a state-court decision as `an unreasonable application of...clearly established Federal law,' § 2254(d) (1), if the state court's application of that law is `objectively unreasonable.'"); Wiggins v. Smith, 539 U.S. at 520-21. The focus of this inquiry is on whether the state court's application of clearly established federal law was objectively unreasonable; an "unreasonable" application is different from a merely "incorrect" one. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold."); Wiggins v. Smith, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) ("it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner").
As the Supreme Court has explained:
Bobby v. Dixon, ___ U.S. ___, ___, 132 S.Ct. 26, 27, 181 L. Ed. 2d 328 (2011) (quoting Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 786-87, 178 L. Ed. 2d 624 (2011)).
Legal principles are "clearly established" for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) ("We look for `the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Under the AEDPA, what constitutes "clearly established federal law" is determined through review of the decisions of the United States Supreme Court, not the precedent of the federal Circuit Courts. See Lopez v. Smith, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___, 2014 WL 4956764, *1 (Oct. 6, 2014) (holding the AEDPA prohibits the federal courts of appeals from relying on their own precedent to conclude a particular constitutional principle is "clearly established").
The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. 28 U.S.C. §2254(d) (2) provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301 (2010) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."); Williams v. Taylor, 529 U.S. at 410 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination. Wood v. Allen, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).
In addition, section 2254(e) (1) provides a Petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74 ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with `clear and convincing evidence.'"); Rice v. Collins, 546 U.S. 333, 338-39 (2006) ("State-court factual findings, moreover, are presumed correct; the Petitioner has the burden of rebutting the presumption by `clear and convincing evidence.'"); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) ("[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the `presumption of correctness by clear and convincing evidence.'"); 28 U.S.C. §2254(e) (1). It remains unclear at this juncture whether Section 2254(e) (1) applies in every case presenting a challenge to a state court's factual findings under Section 2254(d) (2). See Wood v. Allen, 558 U.S. at 300 (choosing not to resolve the issue of Section 2254(e) (1)'s possible application to all challenges to a state court's factual findings); Rice v. Collins, 546 U.S. at 339 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e) (1)).
However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240 (the standard is "demanding but not insatiable"); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.").
Finally, in this Circuit, a federal habeas court reviewing a state court's rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court's written opinion supporting its decision. See Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir. 2010) (federal habeas review of a state court's adjudication involves review only of a state court's decision, not the written opinion explaining the decision), cert. denied, ___ U.S. ___, 132 S.Ct. 124, 181 L. Ed. 2d 46 (2011); St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir. 2006) (holding section 2254(d) permits a federal habeas court to review only a state court's decision and not the written opinion explaining that decision), cert. denied, 550 U.S. 921 (2007).
In his first claim, Petitioner argues his trial counsel rendered ineffective assistance by (1) failing to meet adequately with Petitioner face-to-face at the jail, (2) failing to interview prosecution witnesses, (3) waiting until the eve of trial to engage in trial preparation, (4) failing to investigate Petitioner's background and prepare for the punishment phase of trial, (5) failing to present mitigating evidence through the testimony of the defense team's forensic psychologist at the punishment phase of trial, (6) failing to admit documentary mitigating evidence via stipulation at the punishment phase of trial, (7) failing to interview Petitioner's family members and present them as witnesses at the punishment phase of trial, (8) filing a frivolous motion attacking the admissibility of Petitioner's accomplices' testimony, (9) lacking knowledge and skills in capital litigation, (10) making a "bad" opening statement at the guilt-innocence phase of trial, (11) failing to investigate the prosecution's case and bolstering the testimony of prosecution witnesses, (12) conceding Petitioner's guilt during closing argument at the guilt-innocence phase of trial, (13) failing to object to sleeping jurors, (14) mishandling the lone defense witness, (15) failing to (a) object to Petitioner's assertion of his right to self-representation as untimely and (b) argue Petitioner was too depressed to be capable of self-representation and failing to present Petitioner's pretrial complaints about the performance of trial counsel to the state trial court as a request for self-representation, (16) accepting venire members Cedillo and Carter as jurors, i.e., failing to challenge either venire member for cause or exercise a peremptory strike against either venire member, and (17) the cumulative effect of the foregoing deficiencies in the performance of Petitioner's trial counsel prejudiced Petitioner.
The Sixth Amendment entitles criminal defendants to "the effective assistance of counsel," i.e., legal representation that does not (1) fall below an objective standard of reasonableness in light of prevailing professional norms and the circumstances of the defendant's case (Wong v. Belmontes, 558 U.S. 15, 16-17 (2009); Bobby v. Van Hook, 558 U.S. 4, 7 (2009)); and (2) give rise to a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (Porter v. McCollum, 558 U.S. 30, 38-40 (2009); Wong v. Belmontes, 558 U.S. at 19-20).
The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984):
To satisfy the first prong of Strickland, i.e., establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003); Williams v. Taylor, 529 U.S. 362, 390-91 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 687-91. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Bobby v. Van Hook, 558 U.S. at 7; Strickland v. Washington, 466 U.S. at 688-89. It is strongly presumed counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. at 690.
To satisfy the "prejudice" prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. at 534; Strickland v. Washington, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland v. Washington, 466 U.S. at 694.
In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the evidence in aggravation against the totality of available mitigating evidence (had the Petitioner's trial counsel chosen a different course). Wong v. Belmontes, 558 U.S. at 20; Wiggins v. Smith, 539 U.S. at 534. Strickland does not require the State to "rule out" or negate a sentence of life in prison to prevail; rather, it places the burden on the defendant to show a "reasonable probability" that the result of the punishment phase of a trial would have been different. Wong v. Belmontes, 558 U.S. at 27.
In evaluating Petitioner's complaints about the performance of his counsel under the AEDPA, i.e., those complaints which the state courts have addressed on the merits, the issue before this Court is whether the Texas Court of Criminal Appeals could reasonably have concluded Petitioner's complaints about his trial counsel's performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003), cert. denied, 540 U.S. 1154 (2004). In making this determination, this Court must consider the underlying Strickland standard. Id. In those instances in which the state courts failed to adjudicate either prong of the Strickland test (such as those complaints the state courts summarily dismissed under the Texas writabuse statute or which Petitioner failed to fairly present to the state courts), this Court's review of the un-adjudicated prong is de novo. See Porter v. McCollum, 558 U.S. at 39 (holding de novo review of the allegedly deficient performance of Petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390 (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534 (holding the same).
A habeas Petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009), cert. denied, 558 U.S. 839 (2009); Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008), cert. denied, 556 U.S. 1240 (2009); Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000), cert. denied, 522 U.S. 1067 (2001).
Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bell v. Cone, 535 U.S. 685, 698 (2002); Strickland v. Washington, 466 U.S. at 690; Scheanette v. Quarterman, 482 F.3d at 820; Sonnier v. Quarterman, 476 F.3d 349, 356 (5th Cir. 2007), cert. denied, 552 U.S. 948 (2007); Gonzales v. Quarterman, 458 F.3d 384, 390 (5th Cir. 2006), cert. denied, 549 U.S. 1323 (2007).
In his first assertion of ineffective assistance by his trial counsel, Petitioner argues his counsel should have met more frequently with Petitioner at the jail prior to trial and furnished Petitioner with copies of notes counsel made after reviewing the prosecution's file.
Petitioner included the same basic set of complaints to the state habeas court.
The state trial court's factual findings, expressly adopted by the Texas Court of Criminal Appeals, were fully supported by the evidence presented during Petitioner's state habeas corpus proceeding. As the state trial court noted, the only testimony presented during Petitioner's state habeas corpus proceeding consisted of that of Petitioner's trial counsel, who explained in rational and reasonable terms (1) the steps they took to communicate prior to trial with Petitioner (who insisted throughout pretrial proceedings he had an alibi — even after his purported alibi witness refused to furnish an alibi, repeatedly communicated his desire that his family not be called upon to furnish any testimony at trial, and ultimately decided not to testify at the guilt-innocence phase of trial), (2) the difficulties they experienced getting information from Petitioner relevant to the case, and (3) the steps they took to investigate Petitioner's alibi defense and gather potential mitigating evidence for possible use at the punishment phase of trial.
This Court has independently examined the evidence presented to the state habeas trial court and concludes Petitioner's assertions that his defense counsel "abandoned" Petitioner and failed to adequately communicate with Petitioner prior to trial were refuted by the uncontradicted testimony of Petitioner's trial counsel and the voluminous correspondence between Petitioner and lead defense counsel Callahan admitted into evidence during Petitioner's state habeas corpus proceeding. As the state trial court accurately noted, the correspondence between Petitioner and attorney Callahan amply demonstrates Petitioner was able to communicate effectively with his trial counsel and the defense team furnished Petitioner with relevant and material information Petitioner needed to make informed decisions on a wide range of matters, including whether Petitioner should testify at the guiltinnocence phase of trial, the disadvantages of Petitioner representing himself, whether to seek admission of Petitioner's federal Pre-Sentence Investigative Report, and the availability of mitigating evidence through Dr. Ferrell's testimony and agreements Petitioner's trial counsel reached with the prosecution to admit Petitioner's educational records. More significantly, Petitioner presented the state habeas court, and presents this Court, with no evidence showing a reasonable probability that, but for the alleged failure by Petitioner's trial counsel to more thoroughly communicate with Petitioner face-to-face, the outcome of either phase of Petitioner's capital murder trial would have been any different. Petitioner identifies no evidence suggesting he was unable to communicate any identifiable information to his trial counsel or that said counsel failed to communicate any relevant, material, information to Petitioner prior to trial. Brevity of consultation time between a defendant and his counsel, alone, cannot support a claim of ineffective assistance. Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984). Therefore, this Court independently concludes this complaint satisfies neither prong of Strickland analysis. The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his second assertion of ineffective assistance, Petitioner argues his trial counsel should have interviewed unidentified prosecution witnesses prior to trial.
Petitioner presented the same conclusory complaint as part of his multi-faceted ineffective assistance claim in his state habeas corpus proceeding.
The state trial court's factual findings, expressly adopted by the Texas Court of Criminal Appeals, were fully supported by the evidence presented during Petitioner's state habeas corpus proceeding. This Court has independently reviewed the record from Petitioner's state habeas corpus proceeding and finds no evidence in the record before the state habeas court, or any fact-specific allegations currently before this Court, showing either (1) any identified prosecution witness would have been willing to grant Petitioner's trial counsel a pretrial interview, (2) Petitioner's trial counsel possessed, or through the exercise of due diligence could have obtained, any information suggesting a pretrial interview of any identified prosecution witness (other than Francisco Gonzales or Debbie Espinosa) might produce potential impeachment, exculpatory, or mitigating evidence, or (3) a pretrial interview of any prosecution witness who was available for such a pretrial interview would have produced any impeachment, exculpatory, or mitigating evidence or led to the discovery of same. Petitioner's trial counsel may not reasonably be faulted for failing to interview prosecution witnesses Gonzales and Espinosa prior to trial. The state habeas court reasonably found both of these prosecution witnesses refused, through their own defense counsel, to submit to an interview by Petitioner's trial counsel. A prosecution witness who does not wish to be interviewed by defense counsel prior to trial may not be required to do so. United States v. Soape, 169 F.3d 257, 271 n.9 (5th Cir.), cert. denied, 527 U.S. 1011 (1999); United States v. Caldwell, 750 F.2d 341, 346-47 (5th Cir. 1984) (criminal defendant possessed no constitutional right to interview government witness outside presence of federal or state district attorney), cert. denied, 471 U.S. 1007 (1985); United States v. Rice, 550 F.2d 1364, 1374 (5th Cir.) ("All that a defendant is entitled to is access to a prospective witness. This right, however, exists co-equally with the witnesses' right to refuse to say anything."), cert. denied, 434 U.S. 954 (1977).
Petitioner has failed to allege any specific facts showing his trial counsel were aware, or should have been aware, of any information prior to trial suggesting a pretrial interview of any available prosecution witness might benefit the defense. Likewise, Petitioner has failed to allege any specific facts showing a pretrial interview of any available prosecution witness would have produced impeachment, exculpatory, or mitigating evidence or led to the discovery of same. Thus, Petitioner has failed to allege any specific facts showing his trial counsels' failure to interview any available prosecution witness prior to trial either (1) caused the performance of Petitioner's trial counsel to fall below an objective level of reasonableness or (2) "prejudiced" Petitioner within the meaning of Strickland. The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
Citing the vouchers filed with the state trial court by Petitioner's trial counsel and notes found in the files of Petitioner's trial counsel, Petitioner argues his trial counsel undertook no trial preparation until ten days before jury selection, failed to adequate prepare to cross-examine prosecution witnesses, gave a "bad" opening statement at the guilt-innocence phase of trial, and asked questions during cross-examination which re-enforced the prosecution's case.
Petitioner presented the same multifarious set of ineffective assistance complaints in his state habeas corpus application.
The state trial court's factual findings, expressly adopted by the Texas Court of Criminal Appeals, were fully supported by the evidence presented during Petitioner's state habeas corpus proceeding. This Court has independently reviewed the record from Petitioner's state habeas corpus proceeding and finds no evidence in the record before the state habeas court, or any fact-specific allegations currently before this Court, showing either (1) the methods of pretrial preparation employed by Petitioner's trial counsel fell below an objective level of reasonableness or (2) Petitioner was "prejudiced" within the meaning of Strickland by any alleged deficiency in the pretrial preparation of Petitioner's trial counsel. Petitioner has not alleged any facts, much less furnished any evidence, showing that better or different pretrial preparation by Petitioner's trial counsel would have resulted in the discovery or elicitation of any additional impeachment or exculpatory evidence during the guilt-innocence phase of Petitioner's capital murder trial. For instance, while Petitioner faults Petitioner's trial counsel for failing to write out lengthy cross-examination questions prior to trial, Petitioner does not allege any specific facts, much less furnish any evidence, showing what additional or different questions Petitioner's trial counsel could have utilized to elicit additional impeachment or exculpatory testimony from any identified prosecution witness. Petitioner also furnished the state habeas trial court with no evidence showing Petitioner's trial counsel undertook no trial preparation until the eve of Petitioner's trial. The extensive correspondence between Petitioner and his lead trial counsel belies any such contention.
Petitioner did not present any witnesses to the state habeas court other than his own trial counsel. Petitioner did not re-call any prosecution witness and elicit any additional, potentially beneficial, testimony from any of those witnesses. This Court has independently reviewed the entirety of the record from Petitioner's capital murder trial. Contrary to Petitioner's contentions in his federal habeas corpus petition, Petitioner's trial counsel's opening statement at the guiltinnocence phase of trial was clear and purposeful in that it (1) reminded the jury the prosecution bore the burden of proof, (2) pointed to Gonzales and Espinosa, rather than Petitioner, as the actual perpetrators of Garcia's murder, and (3) informed the jury the defense would make its case through the cross-examination of prosecution witnesses whom the defense considered to be less than credible.
Likewise, contrary to the suggestions contained in this portion of Petitioner's federal habeas corpus petition, Petitioner's trial counsel did elicit admissions from prosecution witnesses which did legitimately raise questions about those witness's credibility. Francisco Gonzales admitted during his cross-examination that (1) he entered into a plea bargain with the State during jury selection at his own capital murder trial, (2) he had a prior conviction for burglary of a vehicle and was subsequently sent to prison after he violated the terms of his probated sentence, (3) he fathered three children but had never paid any child support for any of his children, (4) he initially denied any knowledge of Garcia's murder when confronted by the police, (5) he initially told police he did not have a gun on the night of Garcia's murder, (6) he informed police he had possession of a gun on the night of Garcia's murder only after he entered into his plea agreement, (7) Petitioner told him that Espinosa was a "ho," and (8) he, Petitioner, and Espinosa planned to split the proceeds from the robbery of Garcia.
The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his fourth through seventh complaints of ineffective assistance, Petitioner argues his trial counsel failed to (1) adequately develop mitigating evidence and prepare for the punishment phase of Petitioner's trial, (2) utilize court-appointed forensic psychologist Dr. Jack Ferrell at the punishment phase of trial to present mitigating evidence regarding Petitioner's background, (3) introduce documentary evidence (including school records) during the punishment phase of trial through stipulations with the prosecution, and (4) interview Petitioner's family members and introduce mitigating evidence through their testimony at the punishment phase of trial.
Petitioner included the same group of complaints in his state habeas corpus application.
The state habeas trial court found (1) Callahan believed it was important to present mitigating evidence through Petitioner's family members showing Petitioner's father abandoned Petitioner when Petitioner was a child, (2) Petitioner denied his father abandoned him and instructed Callahan not to present the testimony of Petitioner's family members, (3) nonetheless, Callahan attempted to contact Petitioner's family members, with little success, (4) Callahan contacted Dr. Ferrell, who was prepared to testify at trial regarding mitigating information he had learned concerning Petitioner's personal background, and (5) Petitioner presented no potentially mitigating evidence during the state habeas proceeding which might have been proffered at Petitioner's trial.
The state habeas court's factual findings were fully supported by the uncontradicted testimony of Petitioner's trial counsel. Petitioner failed to present the state habeas court with any documentary evidence reflecting additional mitigating evidence which could have been proffered at the punishment phase of Petitioner's trial or any testimony from Dr. Ferrell, any member of Petitioner's family, or any other witness with personal knowledge of Petitioner's background or any mitigating information regarding the Petitioner's character or the circumstances of Petitioner's offense. Thus, Petitioner failed to satisfy the prejudice prong of Strickland analysis. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (holding, absent a specific, affirmative showing of precisely what evidence or testimony was rendered unavailable due to a trial counsel's failure to investigate, develop, and present same, i.e., a showing of exactly what the missing evidence or testimony would have been, a court cannot even begin to apply the Strickland analysis because it is very difficult to determine whether the defendant was prejudiced by any such deficiencies in counsel's performance).
Petitioner argues in his federal habeas corpus petition, without citation to any evidence properly before the state habeas court, that there was mitigating evidence available at the time of Petitioner's capital murder trial which showed (1) Petitioner was raised by a single mother and had an unstable childhood with multiple moves, (2) while in school, Petitioner had social problems as a child, including fights and disputes that produced school counseling, and (3) Petitioner dropped out of school in the seventh grade and never earned a GED.
This Court independently concludes there is no reasonable probability that, but for the failure of Petitioner's trial counsel to present unspecified mitigating evidence showing Petitioner had an unstable childhood, social problems at school, and failed to progress past the seventh grade the outcome of the punishment phase of Petitioner's capital murder trial would have been any different. The jury convicted Petitioner of capital murder at the guilt-innocence phase of trial after hearing testimony showing Petitioner fatally shot an unarmed Tommy Garcia, Jr. multiple times after demanding money from Garcia. At the punishment phase of trial the prosecution presented uncontradicted testimony showing Petitioner (1) had never worked a legitimate job in his life, (2) robbed bar patrons with Francisco Garcia, (3) shot at a moving vehicle in an unprovoked assault and was convicted of aggravated assault, (4) used his wife to acquire weapons and bullet proof vests while Petitioner was on parole and thereby violated the conditions of his parole, (5) together with Debra Espinosa planned several other robberies before the robbery of Tommy Garcia, Jr., (6) shot a drug dealer in the face during a home invasion, (7) usually carried a firearm, (8) physically abused, assaulted with a firearm, and kidnaped the mother of his second son, (9) violated the terms of his probation by taking the mother of his second son and their child to California and remaining there beyond the term Petitioner had been authorized to go there, (10) pointed a loaded firearm at the pregnant sister of his second son's mother, and (11) involved his wife in an attempt to pass a forged check.
Moreover, the additional, potentially mitigating, evidence to which Petitioner vaguely alludes in his state and federal habeas pleading (but which Petitioner failed to present to the state habeas court) was double-edged in nature. Any sympathy Petitioner might have hoped to engender in his jury by introducing testimony from family members, school records, or other evidence establishing Petitioner's "unstable" childhood, social problems as a child, and lack of education would have aided the prosecution in securing an affirmative answer to the future dangerousness special issue, as such evidence would have tended to show Petitioner had a long history of violence and difficulty conforming his behavior to social norms. Petitioner did not present the state habeas court with any evidence showing he suffered from the types of severe intellectual deficiency and extreme abuse present in Williams v. Taylor
Given the offense, Petitioner's lengthy history of violent criminal behavior, the total absence of any evidence in the trial record or the record before the state habeas court showing Petitioner has ever expressed sincere contrition or genuine remorse for his murder of Garcia, and the double-edged nature of the additional mitigating evidence Petitioner argues should have been presented at his trial, there is no reasonable probability that, but for the failure of Petitioner's trial counsel to present any of the comparatively weak, additional, mitigating evidence described by Petitioner in his pleadings herein, the jury's answers to the Texas capital sentencing special issues at the punishment phase of Petitioner's capital murder trial would have been different.
More significantly, Petitioner's trial counsel cannot reasonably be faulted for failing to present any of the mitigating evidence available at the time of Petitioner's capital murder trial. Petitioner foreclosed the efforts of Petitioner's to present mitigating evidence on Petitioner's behalf when Petitioner exercised his constitutional right under Faretta v. California, 422 U.S. 806 (1975), to undertake self-representation during the punishment phase of his capital murder trial. "[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'" Faretta v. California, 422 U.S. at 834 n.46. Petitioner's complaints about the "performance" of his trial counsel in connection with the punishment phase of Petitioner's capital trial are, thus, non sequitur. See Nixon v. Epps, 405 F.3d 318, 325-26 (5th Cir. 2005) ("A defendant cannot block his counsel from attempting one line of defense at trial, and then on appeal assert that counsel was ineffective for failing to introduce evidence supporting that defense."), cert. denied, 546 U.S. 1016 (2006); Roberts v. Dretke, 356 F.3d 632, 638 (5th Cir. 2004) ("[W]hen a defendant blocks his attorney's efforts to defend him, including forbidding his attorney from interviewing his family members for purposes of soliciting their testimony as mitigating evidence during the punishment phase of the trial, he cannot later claim ineffective assistance of counsel."), cert, denied, 544 U.S. 963 (2005).
Finally, Petitioner presented the state habeas court with no evidence showing his trial counsel's investigation into Petitioner's background failed to uncover any of the potentially mitigating evidence Petitioner now argues should have been presented during the punishment phase of Petitioner's capital murder trial. On the contrary, the correspondence between Petitioner and his lead defense counsel and the uncontradicted testimony of Petitioner's trial counsel during Petitioner's state habeas corpus proceeding establish (1) Petitioner's trial counsel were well aware Petitioner had grown up in an unstable family environment and (2) they were ready, willing, and able to present mitigating testimony through Dr. Ferrell and mitigating documentary evidence in the form of school records showing Petitioner's difficult childhood. Thus, Petitioner failed to present the state habeas court with any evidence establishing there was anything professionally deficient or objectively unreasonable with regard to the scope of Petitioner's trial counsels' investigation into Petitioner's background.
The state habeas trial court reasonably concluded Petitioner's complaints about the performance of his trial counsel at the punishment phase of trial failed to satisfy either prong of Strickland analysis. The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his eighth assertion of ineffective assistance, Petitioner argues his trial counsel (1) filed a frivolous motion seeking to exclude the guilt-innocence phase trial testimony of Petitioner's accomplices Gonzales and Espinosa, (2) should have filed a motion seeking notice of the prosecution's plans to present evidence of Petitioner's convictions and uncharged misconduct, and (3) should have filed a motion requesting Brady information.
Petitioner presented the same arguments in his state habeas corpus application.
The state habeas trial court's findings and conclusions regarding these complaints of ineffective assistance were fully supported by the evidence presented to that court. Petitioner failed to allege any specific facts, much less present any evidence, before the state habeas court showing Petitioner was prejudiced within the meaning of Strickland by his trial counsel either (1) failing to file a written motion requesting Rule 404(b) information or (2) filing an unsuccessful motion seeking to exclude the testimony of Petitioner's accomplices.
This Court independently concludes there is no factual allegation, much less any evidence, currently before this Court showing the failure of Petitioner's trial counsel to file a written motion requesting the prosecution's disclosure of beneficial information pursuant to defense counsel either (1) caused the performance of Petitioner's trial counsel to fall below an objective level of reasonableness or (2) "prejudiced" Petitioner within the meaning of Strickland. Few constitutional principles are more firmly established by Supreme Court precedent than the rule that `the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Banks v. Dretke, 540 U.S. 668, 691 (2004); Brady v. Maryland, 373 U.S. 83, 87 (1963). The Supreme Court has consistently held the prosecution's duty to disclose evidence material to either guilt or punishment, i.e., the rule announced in Brady v. Maryland, applies even when there has been no request by the accused. Banks v. Dretke, 540 U.S. at 690; Strickler v. Greene, 527 U.S. 263, 280 (1999); United States v. Agurs, 427 U.S. 97, 107 (1976). Thus, the prosecution was required by the rule in Brady and its progeny to disclose beneficial information to Petitioner's trial counsel regardless of whether a formal request for same was ever filed. It was constitutionally unnecessary for Petitioner's trial counsel to formally move for disclosure of Brady material. Their failure to do so did not cause their performance to fall below an objective level of reasonableness. Nor has Petitioner alleged any specific facts, much less furnished any evidence, showing that, but for the failure of Petitioner's trial counsel to formally move for disclosure of Brady information, the outcome of either phase of Petitioner's capital murder trial would have been any different.
The state habeas trial court reasonably concluded Petitioner's complaints about the filing of Petitioner's unsuccessful motion to exclude the testimony of Petitioner's accomplices and the failure of Petitioner's trial counsel to file written motions requesting disclosure of Rule 404(b) and Brady information did not prejudice Petitioner within the meaning of Strickland. The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his ninth assertion of ineffective assistance, Petitioner argues his trial counsel rendered ineffective assistance by (1) asking unspecified questions of prosecution witnesses which bolstered their credibility, (2) failing to "control" in an unspecified manner the testimony of the lead homicide detective and failing to properly object to unspecified testimony, (3) making a closing argument which was inconsistent with the defense's opening jury argument and conceded Petitioner's guilt, and (4) filing a frivolous motion (presumably the same motion to exclude the testimony of Petitioner's accomplice witnesses discussed above) and failing to make requests for information from the prosecution.
Petitioner asserted or re-asserted these same arguments in his state habeas corpus application.
During Petitioner's state habeas corpus proceeding, Petitioner did not call or examine any of the prosecution witness from his trial whom he argued his trial counsel should have crossexamined differently. Petitioner offered the state habeas court no evidence showing that any additional exculpatory, impeachment, or mitigating evidence would have been elicited had his trial counsel cross-examined any prosecution witness at trial in a different manner. Petitioner did not even question his trial counsel during Petitioner's state habeas corpus proceeding regarding the rationale behind or strategy underlying his trial counsel's cross-examination of any prosecution witness, other than Debra Espinosa. Under such circumstances, the state habeas court reasonably concluded Petitioner's complaints about the manner in which his trial counsel cross-examined the prosecution witnesses identified in Petitioner's state habeas corpus application failed to satisfy the prejudice prong of Strickland. See Anderson v. Collins, 18 F.3d at 1221 (ineffective assistance complaints about trial counsel's failure to present evidence at trial must be supported by a showing of exactly what the additional evidence would have been).
As explained above, Petitioner's trial counsel did elicit admissions from Espinosa on crossexamination that (1) she did not know Francisco Gonzales, Lucinda Gonzales, or Teresa Quintero and merely assumed they were truthful, (2) she did not know Bryan Brown at all, (3) she lied to many people, including her own family and the police, regarding her involvement in Garcia's murder, (4) she did not mention that Francisco Gonzales' gun was broken in any of her statements to police, (5) she was on crank and had not slept in days at the time of Garcia's murder, (6) she was in shock immediately after Garcia's murder, and (7) she did not believe she told detective Angell the Petitioner was wearing latex gloves at the time of Garcia's murder.
Petitioner's conclusory complaints that his trial counsel failed to "control" in an unspecified manner the testimony of the lead homicide detective (presumably Timm Angell) and failed to properly object on unidentified grounds to unspecified testimony (presumably of this same witness) were not supported by any evidence presented during Petitioner's state habeas corpus proceeding. During cross-examination at the guilt-innocence phase of Petitioner's trial, Petitioner's trial counsel elicited testimony from Detective Angell that (1) Lucinda Gonzales' car (i.e., the vehicle driven by Teresa Quintero to the general location of Garcia's murder on the night of Garcia's murder with Petitioner and Francisco Gonzales as her passengers) disappeared from December, 2003 until April, 2005, (2) Francisco Gonzales was never completely truthful with police regarding Garcia's murder, (3) Espinosa was truthful regarding her role in Garcia's murder only toward the end of her multiple interviews, (4) Gonzales never told police that his gun was unloaded on the night of Garcia's murder, and (5) Espinosa told police she picked Garcia as the group's victim because she knew Garcia carried a lot of cash.
As explained above, Attorney Harris' opening jury argument at the guilt-innocence phase of Petitioner's capital murder trial (1) reminded the jury the prosecution bore the burden of proof, (2) pointed to Gonzales and Espinosa, rather than Petitioner, as the actual perpetrators of Garcia's murder, and (3) informed the jury the defense would make its case through the cross-examination of prosecution witnesses whom the defense considered to be less than credible.
Petitioner presented the state habeas court with no evidence or fact-specific allegations showing a reasonable probability that, but for opening or closing arguments made by Petitioner's defense counsel at the guilt-innocence phase of Petitioner's capital murder trial, the outcome of that phase of trial would have been any different. At the close of the guilt-innocence phase of Petitioner's capital murder trial, the state trial court instructed the jury that the statements and arguments made by counsel during trial or during jury argument, if not supported by evidence, "are to be wholly disregarded."
Insofar as Petitioner re-urges his complaint about the filing of Petitioner's pretrial motion seeking to exclude the trial testimony of accomplice witnesses Francisco Gonzales and Debra Espinosa, for the reasons set forth in Section III.G.3. above, this complaint does not satisfy the prejudice prong of Strickland analysis.
The state habeas trial court reasonably concluded this group of Petitioner's conclusory complaints did not satisfy either prong of Strickland analysis. The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his tenth assertion of ineffective assistance, Petitioner argues during opening jury argument at the guilt-innocence phase of trial his trial counsel (1) should have pointed out that (a) DNA test results on the ski mark were inconclusive, (b) no murder weapon was recovered, (c) Gonzales and Espinosa were both arrested near the crime scene, (d) after their arrest both Gonzales and Espinosa gave inconsistent statements to police, and (e) Gonzales and Espinosa were "filthy with guilt," and (2) failed to attack the credibility of prosecution witnesses.
Petitioner made the same arguments in his state habeas corpus application.
Attorney Harris' opening jury argument at the guilt-innocence phase of Petitioner's capital murder trial (1) reminded the jury the prosecution bore the burden of proof, (2) pointed to Gonzales and Espinosa, rather than Petitioner, as the actual perpetrators of Garcia's murder, and (3) informed the jury the defense would cross-examine prosecution witnesses who were less than credible.
The state habeas court reasonably concluded there was nothing objectively unreasonable with the opening jury argument made by Petitioner's trial counsel at the guilt-innocence phase of trial. This Court independently concludes the strategic decision by Petitioner's trial counsel to focus during opening jury argument on the ultimate credibility issues in the case, rather than to get bogged down in the details of physical and forensic evidence and other testimony yet to be presented to the jury, did not cause the performance of Petitioner's trial counsel to fall below an objective level of reasonableness. Petitioner's jury was made aware through extensive testimony, including some elicited through cross-examination of prosecution witnesses, that (1) there was no physical or forensic evidence linking Petitioner to Garcia's murder,
Petitioner did not examine Petitioner's trial counsel during Petitioner's state habeas corpus proceeding regarding the rationale or strategy underlying the defense's opening jury argument. Nor did Petitioner present the state habeas court with any evidence establishing a reasonable probability that, but for the failure of Petitioner's trial counsel to argue during opening jury argument the absence of physical and forensic evidence linking Petitioner to Garcia's murder, the outcome of the guilt-innocence phase of Petitioner's capital murder trial would have been any different.
For the foregoing reasons, as well as those set forth in Section III.H.3. above, the state habeas court reasonably concluded Petitioner's complaints about his trial counsel's opening jury argument at the guilt-innocence phase of trial fail to satisfy either prong of Strickland analysis. The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his eleventh assertion of ineffective assistance, Petitioner complains his trial counsel (1) failed to interview any prosecution witnesses prior to trial, (2) asked prosecution witness Russell about the credibility of Espinosa, (3) accused Russell and Garcia of smoking marijuana on the night of Garcia's murder, (4) asked prosecution witness Jimenez about Russell's credibility, (5) asked prosecution witness Espinosa about the credibility of several other prosecution witnesses, (6) failed to question Espinosa about her testimony on direct examination that she had not slept in six days prior to Garcia's murder, or to explore the subject of sleep deprivation with the medical examiner, (7) repeatedly confused Lucinda Gonzales with Debra Espinosa during cross-examination of prosecution witness Timm Angell, (8) asked prosecution witness Angell if there had been any other suspects, and (9) elicited testimony from prosecution witness Danny Higginbotham that Espinosa did not have blood on her.
Petitioner presented the same set of complaints in his state habeas corpus application.
Petitioner bears the burden of proving both prongs of Strickland analysis by a preponderance of the evidence. Rogers v. Quarterman, 555 F.3d at 489; Blanton v. Quarterman, 543 F.3d at 235; Montoya v. Johnson, 226 F.3d at 408. In the context of reviewing claims of ineffective assistance, the Supreme Court and Fifth Circuit have directed federal habeas courts to exercise great caution to avoid the distorting effects of hindsight. See Premo v. Moore, 562 U.S. 115, ___, 131 S.Ct. 733, 741, 178 L. Ed. 2d 649 (2011) ("In determining how searching and exacting their review must be, habeas courts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel."); Bell v. Cone, 535 U.S. 685, 698 (2002) ("In Strickland we said that `[j]udicial scrutiny of a counsel's performance must be highly deferential' and that `every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'"); United States v. Juarez, 672 F.3d 381, 386 (5th Cir. 2012) (quoting Strickland for the same principle). It is incumbent upon this Court in addressing Petitioner's ineffective assistance claims, therefore, to make every effort to eliminate the distorting effects of hindsight and to remain aware that a "conscious and informed decision on trial tactics and strategy cannot be the basis of constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Richards v. Quarterman, 566 F.3d 553, 564 (5th Cir. 2009) (quoting Strickland). Thus, the burden is on Petitioner to show the performance of his trial counsel fell below an objective level of reasonableness in view of the circumstances as they existed at the time of Petitioner's trial. See Strickland v. Washington, 466 U.S. at 689:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
As explained below, Petitioner failed to present the state habeas court with any evidence showing his trial counsel's performance fell below an objective level of reasonableness in view of the circumstances as they existed at the time of Petitioner's trial. In fact, with the lone exception of Debra Espinosa, Petitioner made no genuine effort to present evidence showing why his trial counsel chose to cross-examine particular prosecution witnesses in any particular manner or what information said counsel had before them when making their determination as to how best to crossexamine prosecution witnesses. Likewise, Petitioner's state habeas counsel presented the state trial court with no evidence showing there was any information reasonably available to Petitioner's trial counsel at the time of trial which made the methods of cross-examination actually utilized by Petitioner's trial counsel objectively unreasonable.
For instance, Petitioner complains his trial counsel questioned prosecution witnesses Frank Russell, Robert Jimenez, and Debra Espinosa regarding their knowledge of the credibility of other prosecution witnesses. Russell testified on cross-examination (1) he did not trust Espinosa but did not know much about her, (2) he did not know if Espinosa would tell the truth, (3) he was not familiar with Espinosa's character for being truthful, (4) he had heard things about Espinosa (specifically that she was promiscuous) which led him to not want her in his life, (5) he had a bad feeling when Espinosa called Garcia on the night of the murder, and (6) he urged Garcia not to meet Espinosa.
Petitioner also faults his trial counsel for suggesting during the cross-examination of Frank Russell that Russell and Garcia had been smoking marijuana on the evening of the murder. Russell denied the suggestion.
Petitioner faults his trial counsel for failing to cross-examine Espinosa regarding her admission on direct examination that she had not slept for six days prior to Garcia's murder.
Petitioner complains his trial counsel failed to question the medical examiner as an expert witness regarding the effects of sleep deprivation. But Petitioner presented the state habeas court with no factual allegations, much less any evidence, showing what additional exculpatory or impeachment evidence would have been elicited at trial through cross-examination of the medical examiner or another medical expert on this subject. Thus, this complaint fails to satisfy the dual prongs of the Strickland analysis. See United States v. Bernard, 762 F.3d 467, 473 (5th Cir. 2014) (holding ineffective assistance complaints about uncalled witnesses must include specific allegations showing what additional evidence would have been furnished by the uncalled witnesses because a trial counsel's decision to call or not call a witness is considered to be essentially strategic and speculation as to what uncalled witnessers would have testified is too uncertain); United States v. Fields, 761 F.3d 443, 461 (5th Cir. 2014) (to prevail on an ineffective assistance complaint about an uncalled witness, "the Petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense."); Woodfox v. Cain, 609 F.3d at 808 (holding the same and quoting Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009)); Gregory v. Thaler, 601 F.3d at 352 (holding the same).
Petitioner also faults the manner in which his trial counsel cross-examined Detective Angell, specifically complaining his trial counsel "got the facts blatantly wrong," repeatedly confused Lucinda Gonzales with Debra Espinosa, opened the door to permit Angell to assert Espinosa had been truthful with the police "toward the end" of her multiple interviews, and elicited testimony from Angell that there were never any suspects in Garcia's murder other than Petitioner. Petitioner did not question Attorney Callahan during the state habeas corpus proceeding regarding the reasons, rationale, or strategy underlying his cross-examination of Detective Angell at Petitioner's capital murder trial. Petitioner made no effort to ascertain whether Attorney Callahan was attempting to employ the same trial strategy with Detective Angell he employed while cross-examining Debra Espinosa, i.e., deliberately misstating facts in his cross-examination questions in an attempt to confuse the prosecution witness. As to Petitioner's complaint about Angell's testimony that he believed Espinosa was being truthful "toward the end" of her multiple police interviews, that testimony must be viewed in the context of Espinosa's admissions during her own cross-examination by Petitioner's trial counsel that she repeatedly lied to the police and her own family regarding her role in Garcia's robbery and murder. As to Petitioner's complaint about Angell's cross-examination testimony about the absence of other suspects, Angell's actual testimony was that he was aware of no other suspects besides those about whom the jury had already heard.
Petitioner complains his trial counsel elicited testimony from police officer Danny Higginbotham that Espinosa did not have any blood on her. On cross-examination, Higginbotham actually testified he observed no blood on Espinosa's clothing,
Petitioner also complains his trial counsel confused Garcia's gold chain with a silver chain while cross-examining prosecution witness Rudy Luna. In response to Attorney Callahan's leading cross-examination questions, Luna, an acquaintance of Garcia, testified (1) he observed Garcia on the day of the murder wearing a big silver chain around his neck, a big silver watch, and a big silver bracelet, (2) he did not recall seeing Garcia wearing a diamond earring, and (3) he and Garcia did not smoke marijuana together "that day."
In conclusion, Petitioner failed to present the state habeas court with any factual allegations, much less any evidence, showing the manner in which his trial counsel cross-examined the prosecution witnesses discussed above was objectively unreasonable in light of the information then available to Petitioner's trial counsel. Petitioner's trial counsel reasonably could have believed the undisputed presence of marijuana in Garcia's vehicle after the murder justified directing crossexamination questions to Garcia's acquaintances, such as Russell and Luna, about their and Garcia's use of marijuana the date of the murder. Petitioner made no effort during the state habeas corpus proceeding to present the state habeas court with factual allegations, much less any evidence, showing there was information available at the time of Petitioner's trial which rendered the crossexamination questions Petitioner's trial counsel asked prosecution witnesses either objectively unreasonable or potentially harmful to their efforts to earn Petitioner an acquittal or a conviction on a lesser-included offense, i.e., something less than capital murder. The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his twelfth assertion of ineffective assistance, Petitioner argues Attorney Callahan conceded Petitioner's guilt during closing jury argument at the guilt-innocence phase of Petitioner's capital murder trial based upon an apparent misunderstanding of applicable state law.
Petitioner presented the same basic complaints in his state habeas corpus application.
The initial problem with this aspect of Petitioner's multi-faceted ineffective assistance claim is Petitioner's complaints focus exclusively upon the closing jury argument made by Attorney Callahan. Petitioner ignores the fact Attorney Harris made the initial portion of closing argument for the defense at the guilt-innocence phase of Petitioner's capital murder trial and argued Petitioner was not guilty of any offense because the prosecution's accomplice witnesses were not credible and their trial testimony was insufficiently corroborated by other evidence.
More specifically, collectively, Attorney Harris and Attorney Callahan's closing arguments argued: (1) the Petitioner's accomplice witnesses (Francisco Gonzales and Debra Espinosa) gave testimony at trial which was inconsistent with each other's accounts of Garcia's fatal shooting and inconsistent with the physical evidence and, therefore, was not credible, (2) the accomplice witness rule as set forth in the trial court's jury instructions, (3) the accomplice witnesses' testimony was not sufficiently corroborated to be considered credible, (4) the prosecution had failed to carry its burden of proof beyond a reasonable doubt, (5) the physical evidence did not link Petitioner to the crime scene, (6) the credibility of other prosecution witnesses, (7) that, even if the jury believed the testimony of accomplice witnesses Francisco Gonzales and Debra Espinosa, their testimony did not rule out the very reasonable inference that Petitioner fatally shot Garcia not as part of a planned or attempted robbery but, rather, in an act of jealous rage after witnessing Espinosa (Petitioner's lover) engaged in oral sex with Garcia, (8) Francisco Gonzales admitted to others in jail he killed Garcia, and (9) the large amount of cash found on Garcia's body by the medical examiner's personnel refuted the prosecution's contention that Garcia's murder occurred in the course of a robbery.
In this Circuit, complaints about a defense attorney's concession of the defendant's guilt as to a lesser-included offense are reviewed under the familiar standard of Strickland. See Haynes v. Cain, 298 F.3d 375, 381 (5th Cir.) (holding situations in which defense counsel concedes the defendant's guilt for only lesser-included offenses are viewed as tactical decisions which are properly analyzed under Strickland), cert, denied, 537 U.S. 1072 (2002). This Court has independently reviewed the entirety of the evidence from Petitioner's trial and the testimony of Petitioner's trial counsel during Petitioner's state habeas corpus proceeding and concludes the decision by Petitioner's trial counsel to request a lesser-included offense instruction on ordinary murder and to argue Petitioner was guilty, at most, of only ordinary murder did not cause the performance of said counsel to fall below an objective level of reasonableness. See United States v. Short, 181 F.3d 620, 624-25 (5th Cir. 1999) (defense counsel's concession during closing argument that defendant was involved in the drug trade, but not admitting commission of any specific Count of the indictment, was a reasonable strategic decision and a reasonable effort to enhance counsel's credibility with the jury to increase the likelihood the jury would accept his arguments regarding the more serious offenses), cert. denied, 528 U.S. 1091 (2000). Moreover, this Court finds Petitioner failed to present any evidence to the state habeas court showing a reasonable probability that, but for Attorney Callahan's alternative concession that Petitioner might be guilty of ordinary murder, the outcome of the guiltinnocence phase of Petitioner's capital murder trial would have been any different. Under Petitioner's extremely broad theory, any attorney who ever requested a lesser-included offense instruction and argued in the alternative for a conviction only on the a lesser-included offense would necessarily be guilty of ineffective assistance. During closing jury argument, Petitioner's trial counsel argued, consistent with their opening argument, that Debra Espinosa and Francisco Gonzales were not credible witnesses and the prosecution had failed to carry its burden of proving guilt beyond a reasonable doubt. While continuing to argue Espinosa and Francisco Gonzales were not credible, Callahan's closing argument offered Petitioner's jury a plausible alternate theory of Garcia's murder in which Petitioner acted solely out of jealous rage and not as part of a robbery or attempted robbery. Under the circumstances of Petitioner's trial, the state habeas court reasonably concluded this jury argument was neither objectively unreasonable nor "prejudicial" within the meaning of Strickland.
Petitioner's trial counsel cannot reasonably be faulted for offering a plausible alternative factual theory in their closing jury argument which was clearly intended to help avoid Petitioner's conviction for capital murder. The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his thirteenth assertion of ineffective assistance, Petitioner argues his trial counsel failed to object when unidentified jurors fell asleep at both phases of trial.
Petitioner presented the same complaints in his state habeas corpus application.
Insofar as Petitioner argues his trial counsel rendered ineffective assistance by failing to object to a juror allegedly sleeping during the punishment phase of Petitioner's capital murder trial, that argument is without merit. Petitioner represented himself during the punishment phase of his capital murder trial. "[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'" Faretta v. California, 422 U.S. at 834 n.46. If, in fact, a juror slept during any portion of the punishment phase of Petitioner's capital murder trial, under applicable Texas law, it was incumbent upon Petitioner himself to call that fact to the state trial court's attention through a timely objection, a motion for mistrial, a motion for new trial, making a statement in open court on the record which is neither controverted nor disputed by opposing counsel or the trial court, or some other procedural maneuver reasonably calculated to alert the trial court to the situation. See Thieleman v. State, 187 S.W.3d 455, 457 (Tex. Crim. App. 2005) (defense counsel's statement on the record in open court regarding an allegedly sleeping juror sufficient to furnish some evidence of the fact where neither the prosecution nor the trial court contradicted or disputed defense's counsel's oral assertions in support of defendant's motion for mistrial); Menard v. State, 193 S.W.3d 55, 59 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (defendant waived complaint about allegedly sleeping juror by failing to move for mistrial, move for new trial, object to the juror's continued service, or make the trial court aware of the sleeping juror at the time the juror was asleep). Petitioner did not do anything to alert the trial court to any allegedly sleeping juror during the punishment phase of trial. Having exercised his right to self-representation recognized in Faretta throughout the punishment phase of his capital murder trial, Petitioner may not cast blame on his trial counsel for allegedly deficient performance occurring during the punishment phase of his trial. Faretta v. California, 422 U.S. at 834 n.46.
Petitioner's complaint about his trial counsel's failure to object to an unidentified juror allegedly sleeping for an unspecified time during the guilt-innocence phase of his trial was unsupported in Petitioner's state habeas corpus proceeding by any direct evidence showing either (1) an identifiable juror actually fell asleep during a portion of the guilt-innocence phase of Petitioner's trial or (2) any juror slept through a portion of the guilt-innocence phase of trial during which Petitioner's trial counsel cross-examined a prosecution witness or presented the defense's case-in-chief. Attorney Callahan testified during Petitioner's state habeas corpus proceeding that he recalled a female juror who appeared to nod off for an unspecified duration at an unidentified point during the guilt-innocence phase of Petitioner's trial.
As correctly argued by Respondent, the Texas authorities cited by Petitioner do not render Attorney Callahan's testimony conclusive on the subject and do not mandate an automatic mistrial in the event a juror is determined to have slept through a portion of a criminal trial. See Thieleman v. State, 187 S.W.3d at 458 (holding even a defense counsel's undisputed and uncontradicted assertions on the record regarding a sleeping juror are not conclusive to prove the event actually occurred); Menard v. State, 193 S.W.3d at 60 (holding no abuse of discretion in the trial court's denial of defendant's motion for mistrial and refusal to dismiss juror, even where juror admitted to "dozing a couple of times," where juror asserted he nonetheless remained cognizant of what was going on, was able to hear the testimony, and asserted he would be able to render a fair verdict). Under Texas law, a mistrial is the trial court's remedy for improper conduct that is so prejudicial that expenditure of further time and expense would be wasteful and futile. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) ("a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error."), cert. denied, 529 U.S. 1070 (2000). Put somewhat differently, under Texas law, a mistrial is only appropriate in "extreme circumstances" for incurable and highly prejudicial errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).
Several Texas intermediate appellate courts have applied the discretionary standard set forth in the Seventh Circuit's opinion in United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir. 2000),
In his fourteenth assertion of ineffective assistance, Petitioner complains his trial counsel (1) waited until after the start of the guilt-innocence phase of Petitioner's trial to interview defense witness "Ralph Perdigone,"
Petitioner raised the same complaints in his state habeas corpus application.
At trial, Pedrigone testified (1) he witnessed Francisco Gonzales state, in response to a television report on Garcia's murder, "That's the guy I killed. I mean they killed," (2) Gonzales later told Pedrigone he had not meant his statement and only vaguely remembered it but did not want Pedrigone to testify about it, (3) Gonzales' nickname in the jail was "Pancho," (4) Pedrigone felt Gonzales was bragging when he made the statement in question, (5) Petitioner told Pedrigone that calls were made on Garcia's cell phone after Garcia's murder, (6) Pedrigone had multiple theft and forgery convictions and a conviction for escape, and (7) while Gonzales made the inculpatory statement in question, Gonzales immediately recanted same.
Petitioner made no effort during his state habeas corpus proceeding to question his trial counsel regarding the manner in which said counsel interviewed Pedrigone prior to trial, the discussions Petitioner's trial counsel had with Pedrigone to prepare Pedrigone to testify, the reasons why Petitioner's trial counsel chose to call Pedrigone to testify at trial, the manner in which Petitioner's trial counsel questioned Pedrigone at trial, or the manner in which Petitioner's trial counsel prepared Pedrigone for potential cross-examination by the prosecution. It is clear from the correspondence between Petitioner and Attorney Callahan that Petitioner considered what Pedrigone had to say very important and wished to have Pedrigone's testimony presented to his jury.
Likewise, Petitioner presented the state habeas court with no evidence showing the decision by Petitioner's trial counsel to call Pedrigone to testify at the guilt-innocence phase of Petitioner's trial was either objectively reasonable or "prejudicial" to Petitioner within the meaning of Strickland. Pedrigone testified he heard Gonzales make, and then immediately recant, a clearly inculpatory statement. The state habeas court reasonably concluded Petitioner's complaints about Pedrigone's trial testimony and his trial counsel's decision to call Pedrigone to testify failed to overcome the strong presumption "that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland v. Washington, 466 U.S. at 689.
The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his fifteenth assertion of ineffective assistance, Petitioner argues his trial counsel should have (1) objected to Petitioner's assertion at the punishment phase of trial of Petitioner's right to self-representation under Faretta v. California, 422 U.S. 806 (1975), as untimely and argued Petitioner was too depressed to competently waive representation and adequately represent himself, and (2) requested the state trial court hold a hearing pursuant to Faretta when Petitioner first voiced complaints with the performance of Petitioner's trial counsel.
Petitioner presented the same complaints in his state habeas corpus application.
The state habeas trial court found (1) Petitioner expressed his dissatisfaction with attorney Callahan long before trial, (2) Petitioner was informed he did not have the right to select his own defense counsel but did have the right to represent himself, (3) Petitioner did not assert his right to self-representation until the conclusion of the guilt-innocence phase of trial, (4) there was no evidence presented showing Petitioner suffered from a clinical diagnosis of depression, (5) both of Petitioner's trial counsel testified Petitioner (a) was alert and coherent throughout the guilt-innocence phase of trial, (b) was able to assist counsel during trial, and (c) understood the nature of the proceeding, (6) Petitioner appeared to be of sound mind when he made his request for selfrepresentation, and (7) Petitioner presented the state habeas court with no evidence showing he was depressed to the point his mind, reasoning, or thought processes were impaired.
Defendants have a Sixth Amendment right to represent themselves in a criminal proceeding. See Faretta v. California, 422 U.S. 806, 819-20 (1975) ("Although not stated in the Amendment in so many words, the right to self-representation—to make one's own defense personally—is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused, for it is he who suffers the consequence if the defense fails.") (Footnote omitted); Miller v. Thomas, 714 F.3d 897, 903 (5th Cir. 2013) ("A criminal defendant has a constitutional right to self-representation at trial when he knowingly and intelligently waives the right to counsel."); Batchelor v. Cain, 682 F.3d 400, 406 (5th Cir. 2012) ("In Faretta, the Supreme Court announced that the right of a criminal defendant to represent himself at trial is implicit in the structure of the Sixth Amendment, and applies to state court proceedings through the Fourteenth Amendment."); United States v. Long, 597 F.3d 720, 723 (5th Cir.) ("A defendant has a right to represent himself at trial."), cert. denied, ___ U.S. ___, 130 S.Ct. 3524, 177 L. Ed. 2d 1105 (2010). To exercise this right, the defendant must knowingly and intelligently forego his right to counsel and must clearly and unequivocally request to proceed pro se. United States v. Long, 597 F.3d at 724; United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008); United States v. Kizzee, 150 F.3d 497, 502 (5th Cir. 1998) (recognizing there is a presumption against finding waiver of the right to counsel); Burton v. Collins, 931 F.2d 131, 133 (5th Cir.) ("To assert his right to self-representation, a defendant must `knowingly and intelligently' waive his right to counsel, and the request must be `clear and unequivocal.'"), cert. denied, 502 U.S. 1006 (1991).
The state habeas court's factual findings summarized above were fully supported by the uncontradicted testimony of Petitioner's trial counsel and the documentary evidence admitted during Petitioner's state habeas corpus proceeding. Petitioner presented no testimony from himself or any other witness indicating he intended his letters of January 16 or June 2, 2005 as requests to represent himself. In the letter of January 16, 2005, Petitioner expressed dissatisfaction over the fact he had only seen Callahan once in the past 13 months, but he did not specifically discharge Callahan, request new counsel, or specifically state that he intended to represent himself.
Petitioner's letter of June 2, 2005, did request the trial court to dismiss his court appointed counsel, but did not state that he intended to represent himself. It is settled law in this Circuit that something more than just firing one's attorney is required before one "clearly and unequivocally" requests to proceed pro se. See United States v. Long, 597 F.3d at 724-25 (defendant's request to fire one's counsel not a clear and unequivocal assertion of right to self-representation); United States v. Majors, 328 F.3d 791, 794 (5th Cir. 2003) (defendant did not clearly and unequivocally invoke right to self-representation where (1) defendant's third attorney moved to withdraw prior to trial, (2) trial court denied that motion, (3) defendant gave the trial court a letter on the day of trial complaining about his trial counsel's representation but not mentioning self-representation, and (4) on second day of trial, defense counsel's associate informed trial court defendant was dissatisfied and wished either to retain counsel or make closing argument himself); Burton v. Collins, 931 F.2d at 133-34 (defendant did not clearly and unequivocally waive right to counsel by spontaneously asking trial court "May I represent myself" after trial court denied defendant's request that his counsel be replaced); Moreno v. Estelle, 717 F.2d 171, 174-75 (5th Cir. 1983) (defendant did not waive right to counsel merely by telling court he wished his attorney to withdraw because "I feel she isn't helping me," "I can't get her to do anything," and "I don't want her."), cert. denied, 466 U.S. 975 (1984). The state habeas court reasonably concluded Petitioner's letters did not clearly and unequivocally assert Petitioner's right to self-representation.
Petitioner was aware, at least as early as Petitioner received Callahan's letter dated January 31, 2005 (State Exhibit no. 45) of his right to self-representation. Yet Petitioner presented the state habeas court with no evidence suggesting he ever made a clear or unequivocal request (to either the trial court or his trial counsel) to represent himself prior to the conclusion of the guilt-innocence phase of his capital murder trial. Petitioner's trial counsel cannot reasonably be faulted for failing to request a Faretta hearing on Petitioner's behalf prior to trial when Petitioner never made a clear or unequivocal request to either of his trial counsel to undertake self-representation.
Petitioner also complains his trial counsel should have objected to, or otherwise opposed, Petitioner's request to represent himself at the start of the punishment phase of trial because the request was untimely and Petitioner was "too depressed to make this decision."
First, Petitioner presented the state habeas court with no evidence showing he was, in fact, suffering from a mental illness, defect, or other mental condition (including clinical depression) of sufficient severity as to render Petitioner's waiver of his right to counsel involuntary or unknowing. As explained above, both Attorney Harris and Attorney Callahan were aware Petitioner (1) was displaying what they termed a "negative," "defeatist," or "fatalistic" demeanor, (2) had expressed a preference for a death sentence rather than a term of incarceration for life, and (3) did not wish to have his family members testify at trial or to have any other evidence presented which might make people feel sympathy for Petitioner.
Second, as Respondent correctly argues, Petitioner has identified no legal authority which imposes a duty upon a criminal defense counsel to object on the basis of untimeliness to his client's assertion of the right recognized in Faretta. Contrary to the implications underlying this aspect of Petitioner's multi-faceted ineffective assistance claim, defense counsel are not obligated to disregard a capital defendant's directive that defense counsel stand mute at sentencing. See Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir. 2007) (recognizing neither the Supreme Court nor the Fifth Circuit has ever held that a lawyer provides ineffective assistance by complying with a capital murder defendant's clear and unambiguous instructions not to present evidence at the punishment phase of trial), cert. denied, 552 U.S. 1151 (2008). Petitioner's action, in invoking his right to selfrepresentation under Faretta at the start of the punishment phase of his capital murder trial, effectively ensured no mitigating evidence would be presented during the punishment phase of his capital murder trial.
The Fifth Circuit has recognized trial counsel is not ethically required to ignore his client's objection to the presentation of certain types of mitigating evidence. See, e.g., Nixon v. Epps, 405 F.3d 318, 325-26 (5th Cir.) (holding the defendant cannot block his trial counsel from attempting one line of defense at trial and then argue on appeal his counsel was ineffective for failing to introduce evidence supporting that defense), cert. denied, 546 U.S. 1015 (2005); Roberts v. Dretke, 356 F.3d 632, 638 (5th Cir. 2004) (where a defendant forbids his trial counsel from interviewing family members, the defendant may not thereafter complain of ineffective assistance arising from the failure to discover mitigating evidence known to those same family members), cert. denied, 544 U.S. 963 (2005); Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000) (holding trial counsel may not be held ineffective for honoring his client's wishes that his family members not be interviewed or called to testify at trial as long as the client made an informed decision), cert. denied, 532 U.S. 915 (2001); Amos v. Scott, 61 F.3d 333, 348-49 (5th Cir.) (holding no deficient performance or prejudice arose from trial counsel's failure to present a witness at the punishment phase of trial where the defendant strongly opposed having any witnesses testify on his behalf during the punishment phase and the defendant acknowledged same during a colloquy on the record in open court), cert. denied, 516 U.S. 1005 (1995). Thus, Petitioner has identified no ethical obligation or other duty imposed upon a criminal defense counsel requiring said counsel to oppose his client's expressed desire not to present mitigating evidence at the punishment phase of a capital murder trial. On the contrary, the Fifth Circuit has suggested a defense counsel is ethically obligated to follow a client's knowing directive not to present mitigating evidence. See Autry v. McKaskle. 727 F.2d 358, 362-63 (5th Cir.) (holding trial counsel ethically obligated to comply with defendant's knowing directive not to present mitigating evidence nor required to seek a competency hearing before complying with that directive), cert. denied, 465 U.S. 1085 (1984). In their correspondence prior to trial, Attorney Callahan repeatedly advised Petitioner of the importance of presenting evidence of his background but Petitioner made very clear his wishes that his family members not be called to testify and that no other evidence concerning Petitioner's background be presented.
The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim in the course of Petitioner's state habeas corpus proceeding was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his sixteenth assertion of ineffective assistance, Petitioner argues his trial counsel should have (1) objected during individual voir dire when the state trial court informed venire member (and later juror) Doris Cedillo that voir dire was running late that morning due to a mix-up at the jail, (2) accepted the prosecution's invitation to assert a challenge for cause to Ms. Cedillo, (3) challenged for cause or employed a peremptory strike against venire member Cedillo based upon the trial court's comments and Ms. Cedillo's confused answers given during individual voir dire, and (4) challenged for cause or employed a peremptory strike against venire member Arthur Carter based upon his answer to a question about future dangerousness.
During individual voir dire examination on July 27, 2005, the state trial court made the following comment upon the entry of venire member Cedillo into the courtroom:
The parties questioned Ms. Cedillo and she was briefly excused from the courtroom.
During his voir dire examination by the prosecution, venire member Arthur Carter testified in pertinent part, that (1) he believed the death penalty should be available for intentionally taking a life while committing another felony, (2) he understood there was a presumption under Texas law in favor of a life sentence in capital murder cases, (3) he understood the State bore the burden of proof at the guilt-innocence of trial, (4) he understood the State bore the burden of proving at the punishment phase of trial that there was a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society, (5) he understood why it might be necessary for the prosecution to cut a deal with an accomplice to get testimony from that witness, and (6) he would not require the prosecution to prove premeditation as an element of capital murder.
Petitioner presented the same ineffective assistance arguments as his fourth ground for relief in his state habeas corpus application.
The state habeas court's factual findings regarding this aspect of Petitioner's multi-faceted ineffective assistance claims were fully supported by the evidence presented to the state habeas court summarized above and by the record from the voir dire examinations of venire members Cedillo and Carter. The state habeas court reasonably concluded the trial judge's remark about a delay resulting from a mix-up at the jail did not "taint" Ms. Cedillo. The remark did not ascribe fault for the delay to any person or party involved in Petitioner's case. Furthermore, even a cursory review of the voir dire examination of venire member Cedillo reveals she demonstrated reluctance to answers voir dire questions which sought to inquire whether she could participate in a process which resulted in an execution.
Petitioner likewise failed to question his trial counsel regarding the rationale or strategy behind their decision not to challenge venire member Carter for cause or to exercise a peremptory challenge against him. Petitioner failed to furnish the state habeas court and this Court with Mr. Carter's juror questionnaire answers. The state habeas court correctly found Mr. Carter did not demonstrate any confusion regarding the nature of, nor burden of proof associated with, the Texas capital sentencing scheme's future dangerousness special issue. This Court's independent review of the voir dire examination of Mr. Carter confirms the state habeas court's finding that, as soon as Mr. Carter responded to a lengthy question by the prosecutor regarding the future dangerousness special issue with the answer "Possibility," the prosecutor immediately explained the special issue required a higher standard than merely a possibility:
Petitioner identifies nothing in venire member Carter's voir dire examination which suggests venire member Carter remained confused about the plain language of the Texas capital sentencing scheme's future dangerousness special issue after the prosecutor furnished the foregoing explanation. Nor does Petitioner identify anything in Carter's voir dire answers which indicates Carter suggested he would automatically answer the future dangerousness special issue affirmatively.
Petitioner presented the state habeas court with no evidence, and presents this Court with neither specific factual allegations nor any evidence, showing either venire member Carter or venire member Cedillo possessed any disqualifying bias or was otherwise ineligible for serve as a juror at Petitioner's trial. Petitioner does not allege any facts showing either of these venire members answered any voir dire question erroneously or deceptively. Petitioner does not allege any facts showing either venire member had previously been convicted of a felony or was otherwise ineligible to serve as a juror at Petitioner's trial. Nor does Petitioner allege either of these venire members possessed any disqualifying bias against Petitioner arising from their personal knowledge of the facts of Petitioner's offense, their relationship with any party or witness, or any other factor. Insofar as Petitioner argues Carter or Cedillo were "confused" about the meaning or content of the Texas capital sentencing special issues during their voir dire examination, this Court independently concludes the state trial court properly instructed Petitioner's capital sentencing jury at the punishment phase of trial regarding the nature and burdens of proof relevant to the Texas capital sentencing special issues.
Under clearly established federal law, "a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Adams v. Texas, 448 U.S. 38, 45 (1980). The same standard applies to the exclusion of jurors in non-capital federal trials. See United States v. Cooper, 714 F.3d 873, 878 (5th Cir.) ("The Sixth Amendment right to an impartial jury requires the exclusion of a potential juror if his `views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" (quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)), cert. denied, ___ U.S. ___, 134 S.Ct. 313, 187 L. Ed. 2d 222 (2013). Petitioner alleges no facts showing either venire member Carter or Cedillo possessed any personal views which prevented or substantially impaired the performance of their duties as jurors at Petitioner's trial in accordance with their instructions and oaths. Under such circumstances, this Court independently concludes Petitioner's complaints about his trial counsels' actions during voir dire vis-a-vis venire members Cedillo and Carter fail to satisfy the prejudice prong of the Strickland analysis.
The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claim was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his final assertion of ineffective assistance, Petitioner cites to state law authority and argues "counsel's overall performance taken as a whole" can compel a finding of a constitutional violation.
Petitioner presented the same basic argument in his state habeas corpus application.
For the reasons set forth at length above, none of Petitioner's assertions of ineffective assistance by his trial counsel satisfy the prejudice prong of the Strickland analysis. Most do not even allege specific facts which show Petitioner's trial counsels' conduct fell below an objective level of reasonableness. Under such circumstances, Petitioner's cumulative ineffective assistance claim is also without merit. See United States v. Hall, 455 F.3d 508, 520 (5th Cir. 2006) ("ineffective assistance of counsel cannot be created from the accumulation of acceptable decisions and actions."), cert. denied, 549 U.S. 1343 (2007); Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.) (where Petitioner failed to demonstrate error by trial counsel, by definition, Petitioner failed to show that cumulative error of counsel deprived him of a fair trial), cert. denied, 531 U.S. 849 (2000).
The Texas Court of Criminal Appeals' rejection on the merits of Petitioner's cumulative ineffective assistance claim was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his second claim for relief herein, Petitioner argues the state trial court erred when it (1) failed to make a proper inquiry under Faretta after the Petitioner wrote the trial judge in January, 2005 complaining he had only seen attorney Callahan once and calling the trial judge's attention to Petitioner's pro se motion to dismiss counsel, (2) failed to make a proper inquiry under Faretta in June, 2005 when Petitioner wrote another letter to the trial judge and filed a generic motion to dismiss appointed counsel in which Petitioner complained he had lost faith in his counsel and no longer trusted his counsel's advice, (3) misstated the law applicable to a Faretta claim, i.e., suggested the trial court could not deny Petitioner's request for self-representation made after the start of trial, and (4) granted Petitioner's request to represent himself at the punishment phase of trial without making any inquiry of Petitioner's trial counsel, without inquiring as to Petitioner's educational level, and without assuring that Petitioner's waiver of his right to counsel was voluntary, intelligent, and competently made.
Petitioner first presented the state appellate courts with his complaints about the state trial court's disposition of Petitioner's pretrial requests for dismissal of his trial counsel and his complaint about the state trial court's granting Petitioner's request for self-representation as his second claim in his state habeas corpus application.
Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the Petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). In either instance, the Petitioner is deemed to have forfeited his federal habeas claim. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). Procedural defaults only bar federal habeas review when the state procedural rule which forms the basis for the procedural default was "firmly established and regularly followed" by the time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424 (1991).
As Respondent correctly points out, the Texas Court of Criminal Appeals' conclusion that Petitioner's second claim in Petitioner's state habeas corpus application was procedurally barred forecloses federal habeas review of Petitioner's second claim for relief in this action. Texas law provides that record-based claims (such as Petitioner's complaints herein about the state trial court's handling of his pretrial requests for dismissal of trial counsel and Petitioner's request for selfrepresentation) not raised on direct appeal will not be considered in state habeas corpus proceedings. Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007) (citing Ex parte Gardner, 959 S.W.2d 189, 191 (Tex. Crim. App. 1996), clarified on rehearing February 4, 1998), cert. denied, 552 U.S. 1232 (2008). The Fifth Circuit recognizes the Gardner rule as an adequate state ground capable of barring federal habeas review. Dorsey v. Quarterman. 494 F.3d at 532; Busby v. Dretke, 359 F.3d 708, 719 (5th Cir.), cert. denied, 541 U.S. 1087 (2004).
The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus Petitioner can show either (1) "cause and actual prejudice" for his default or (2) that failure to address the merits of his procedurally defaulted claim will work a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 262 (1989). To establish "cause," a petitioner must show either that some objective external factor impeded the defense counsel's ability to comply with the state's procedural rules or that petitioner's trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding proof of ineffective assistance by counsel satisfies the "cause" prong of the exception to the procedural default doctrine). In order to satisfy the "miscarriage of justice" test, the petitioner must supplement his constitutional claim with a colorable showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36 (1992). In the context of the punishment phase of a capital trial, the Supreme Court has held that a showing of "actual innocence" is made when a Petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48. The Supreme Court explained in Sawyer v. Whitley this "actual innocence" requirement focuses on those elements which render a defendant eligible for the death penalty and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error. Sawyer v. Whitley, 505 U.S. at 347. For the reasons discussed below, Petitioner may not circumvent the Texas Court of Criminal Appeals' procedural default ruling on Petitioner's Faretta claim by arguing his state appellate counsel was ineffective in failing to assert Petitioner's Faretta claim on direct appeal. Because Petitioner's Faretta claim possessed no arguable merit, there was nothing objectively unreasonable (nor prejudicial within the meaning of Strickland) with regard to the decision by Petitioner's state appellate counsel not to present same as part of Petitioner's direct appeal. Likewise, Petitioner has failed to allege any specific facts sufficient to satisfy the fundamental miscarriage of justice exception to the procedural default doctrine.
The United States Supreme Court has recognized an equitable exception to the doctrine of procedural default where a federal habeas corpus petition can make a showing that his failure to exhaust available state remedies on a federal constitutional claim of ineffective assistance by trial counsel resulted from deficient performance on the part of the petitioner's state habeas counsel. More specifically, the Supreme Court in Martinez v. Ryan, 566 U.S. 1 (2012), carved out of the Supreme Court's procedural default jurisprudence a narrow exception for claims of ineffective assistance by trial counsel which were not raised in a convicted criminal defendant's state habeas corpus proceeding because of the ineffective assistance of the defendant's state habeas counsel. See Martinez v. Ryan, 566 U.S. at ___, 132 S. Ct. at 1315 ("Inadequate assistance of counsel at initial review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial). In Trevino v. Thaler, ___ U.S. ___, ___, 133 S.Ct. 1911, 1912, 185 L. Ed. 2d 1044 (2013), the Supreme Court reaffirmed the narrow focus of its holding in Martinez: "In Martinez v. Ryan, 566 U.S. 1, __, 132 S.Ct. 1309, 1320, 182 L. Ed. 2d 272, this Court held that `a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State's] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.'"
Petitioner's second claim herein does not present a complaint of ineffective assistance by Petitioner's trial counsel that was foreclosed from state habeas review by virtue of the ineffective assistance of Petitioner's state habeas counsel. On the contrary, Petitioner's second claim herein consists of (1) a direct attack upon the actions of the Petitioner's state trial court in failing to hold a Faretta hearing in response to Petitioner's pretrial letters to the trial court and pretrial pro se motions to dismiss appointed counsel and (2) a direct attack upon the state trial court's decision [made after a formal Faretta hearing] to grant Petitioner's request for self-representation prior to the start of the punishment phase of Petitioner's capital murder trial. As such, the Supreme Court's recent holdings in Trevino v. Thaler, supra, and Martinez v. Ryan, supra, have no application to Petitioner's procedural default on Petitioner's second claim herein. Accordingly, Petitioner's second claim herein, i.e., his Faretta claims are procedural defaulted and not properly subject to federal habeas review.
The state habeas court's factual findings regarding the nature of Petitioner's pretrial letters and pro se motions requesting dismissal of Petitioner's court-appointed trial counsel were fully supported by the evidence presented before the state habeas court. Petitioner presented the state habeas court with no evidence showing he intended his pretrial letters to the state trial court or his pro se motions for dismissal of appointed counsel as requests to represent himself at trial. For the reasons discussed in Section III.N.3. above, Petitioner's state trial court cannot be faulted for failing to hold a Faretta hearing in response to any of Petitioner's pretrial letters to the trial judge or Petitioner's pro se motions for dismissal of court-appointed trial counsel. None of those letters or pro se motions reasonably alerted, much less clearly or unequivocally advised, the state trial court that Petitioner wished to represent himself at trial.
Furthermore, Petitioner presented the state habeas court with no evidence showing he was actually suffering from clinical depression or any other medical or mental condition which rendered Petitioner's request for self-representation prior to the state of the punishment phase of trial either involuntary, unknowing, or uninformed as to the consequences of that decision. Petitioner's trial counsel testified during Petitioner's state habeas corpus proceeding that defense expert Dr. Jack Ferrell examined Petitioner prior to trial and found Petitioner competent to stand trial.
In his correspondence prior to trial, Attorney Callahan repeatedly advised Petitioner of the importance of presenting evidence of Petitioner's background but Petitioner made very clear his wishes that his family members not be called to testify and that no other evidence concerning Petitioner's background be presented.
During a Faretta hearing, the trial court must warn the defendant against the perils and disadvantages of self-representation. United States v. Hodges, 460 F.3d 646, 650 (5th Cir. 2006); United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). As Respondent correctly points out, however, the Supreme Court has not adopted "a sacrosanct litany" for warning defendants against waiving their right to counsel. See United States v. Davis, 269 F.3d 518, 519 n.11 (5th Cir. 2001) (listing suggested questions for a Faretta hearing taken from The Benchbook for U.S. District Court Judges 1.02 (4th ed. 2000) published by the Federal Judicial Center but recognizing this list is merely suggestive and not mandatory). Rather, the issue is more practical and less formalistic:
United States v. Martin, 790 F.2d 1215, 1218 (5th Cir. 1986) (citations omitted), cert. denied, 479 U.S. 868 (1986).
United States v. Joseph, 333 F.3d 587, 590 (5th Cir.), cert. denied, 540 U.S. 973 (2003).
United States v. Davis, 269 F.3d at 518 (quoting Faretta v. California, 422 U.S. at 835, 95 S. Ct. at 2541)).
Petitioner presented no testimony from himself or any other witness during his state habeas corpus proceeding establishing he was mentally incompetent or suffering from coercion or duress at the time he chose to represent himself during the punishment phase of his capital murder trial. Petitioner also presented the state habeas court no evidence showing he was unaware of any of the potential disadvantages or perils he faced if he chose to proceed to represent himself at the punishment phase of his trial. Nor did Petitioner present the state habeas court (or this Court) with any specific facts showing Petitioner made his decision to represent himself at the punishment phase of his capital murder trial without full knowledge of what he was doing and his eyes open. Under the such circumstances, the state trial court, and state habeas court, both reasonably concluded Petitioner's invocation of his right to self-representation was voluntary, intelligent, and knowing.
Petitioner's second claim herein is procedurally defaulted and, alternatively, does not furnish a basis for federal habeas corpus relief. Insofar as Petitioner argues his waiver of his right to counsel at the punishment phase of trial was other than voluntary, intelligent, and knowing, Petitioner presented the state habeas court with no evidence supporting that claim and has alleged no specific facts before this Court which refute Petitioner's representations to the contrary made on the record before the state trial court. Petitioner's second claim does not warrant federal habeas corpus relief.
In his third claim in this action, Petitioner argues his state appellate counsel, who also served as Petitioner's lead trial counsel, (1) failed to file an affidavit in support of Petitioner's motion for new trial and failed to request a hearing on that motion, (2) had a conflict of interest in representing Petitioner on direct appeal because Petitioner's state habeas counsel was asserting claims of ineffective assistance by Petitioner's trial counsel, (3) failed to assert on direct appeal any claims of ineffective assistance by Petitioner's trial counsel, (4) used a portion of a brief said counsel had filed in a prior appeal (which had proven unsuccessful) in Petitioner's state appellate brief, (5) failed to raise Petitioner's Faretta claims on direct appeal, (6) raised a non-meritorious point of error complaining about the admission of Petitioner's accomplices' testimony at Petitioner's trial, and (7) failed to file a petition for writ of certiorari with the United States Supreme Court.
Petitioner presented the same set of complaints about the performance of his state appellate counsel as his third claim for state habeas corpus relief.
The same two-pronged standard for evaluating ineffective assistance claims against trial counsel announced in Strickland applies to complaints about the performance of counsel on appeal. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (holding a petitioner arguing ineffective assistance by his appellate counsel must establish both (1) his appellate counsel's performance was objectively unreasonable and (2) there is a reasonable probability that, but for appellate counsel's objectively unreasonable conduct, the petitioner would have prevailed on appeal); Dorsey v. Stephens, 720 F.3d 309, 319 (5th Cir. 2013) ("A criminal defendant has a constitutional right to receive effective assistance of counsel on his first appeal. In a direct appeal, ineffective assistance of counsel claims are governed by the standard established by the Supreme Court in Strickland v. Washington." (Footnotes omitted)), cert. denied, ___ U.S. ___, 134 S.Ct. 1292, 188 L. Ed. 2d 319 (2014); Higgins v. Cain, 720 F.3d 255, 261 n.8 (5th Cir.) ("The Strickland standard is used to evaluate claims for ineffective assistance of appellate counsel."), cert. denied, ___ U.S. ___, 134 S.Ct. 688, 187 L. Ed. 2d 557 (2013). Thus, the standard for evaluating the performance of counsel on appeal requires inquiry into (1) whether appellate counsel's performance was deficient, i.e., whether appellate counsel's conduct was objectively unreasonable under then-current legal standards, and (2) whether appellate counsel's allegedly deficient performance "prejudiced" Petitioner, i.e., whether there is a reasonable probability that, but for appellate counsel's deficient performance, the outcome of Petitioner's appeal would have been different. Smith v. Robbins, 528 U.S. at 285; Higgins v. Cain, 720 F.3d at 260-61; Busby v. Dretke, 359 F.3d at 714; Schaetzle v. Cockrell, 343 F.3d at 444.
Appellate counsel who files a merits brief need not and should not raise every non-frivolous claim but, rather, may select from among them in order to maximize the likelihood of success on appeal. Smith v. Robbins, 528 U.S. at 288; Jones v. Barnes, 463 U.S. 745, 751 (1983); Busby v. Dretke, 359 F.3d at 714. The process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail is the hallmark of effective appellate advocacy. Smith v. Murray, 477 U.S. 527, 536 (1986); Jones v. Barnes, 463 U.S. at 751-52.
Nonetheless, appellate counsel is obligated to research relevant facts and law or to make an informed decision that certain avenues will not prove fruitful. See Busby v. Dretke, 359 F.3d at 714 (a reasonable attorney has an obligation to research relevant facts and law or make an informed decision that certain avenues will not be fruitful); United States v. Reinhart, 357 F.3d 521, 525 (5th Cir. 2004) (holding the same). Likewise, solid, meritorious arguments based on directly controlling precedent should be discovered and brought to the appellate court's attention. United States v. Reinhart, 357 F.3d at 525; Schaetzle v. Cockrell, 343 F.3d at 445.
Where, as in Petitioner's case, appellate counsel presented, briefed, and argued, albeit unsuccessfully, one or more non-frivolous grounds for relief on appeal and did not seek to withdraw from representation without filing an adequate Anders brief, the defendant must satisfy both prongs of the Strickland test in connection with his claims of ineffective assistance by his appellate counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 477 & 482 (2000) (holding the dual prongs of Strickland apply to complaints of ineffective appellate counsel and recognizing, in cases involving "attorney error," the defendant must show prejudice); Smith v. Robbins, 528 U.S. at 287-89 (holding petitioner who argued his appellate counsel rendered ineffective assistance by failing to file a merits brief must satisfy both prongs of Strickland); Busby v. Dretke, 359 F.3d at 714-17 (applying dual prongs of Strickland to a complaint about appellate counsel's failure to present a point of error on appeal).
Petitioner attempts to circumvent the foregoing legal principles by arguing because Petitioner's state appellate counsel (who had also served as Petitioner's lead trial counsel) (1) failed to assert any claims of ineffective assistance by trial counsel on direct appeal and (2) was aware Petitioner's state habeas counsel intended to raise claims of ineffective assistance by Petitioner's trial counsel, a conflict of interest arose which mandates a more stringent standard of review for Petitioner's complaints of ineffective assistance by his state appellate counsel under Cuyler v. Sullivan, 446 U.S. 335 (1980).
The Sixth Amendment right to counsel includes the right to representation that is free from any conflict of interest. United States v. Bernard, 762 F.3d 467, 476 (5th Cir. 2014); United States v. Hernandez, 690 F.3d 613, 618 (5th Cir. 2012); United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006). A conflict of interest exists when defense counsel places himself in a position conducive to divided loyalties. United States v. Hernandez, 690 F.3d at 618; United States v. Burns, 526 F.3d 852, 856 (5th Cir. 2008). "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); United States v. Scruggs, 691 F.3d 660, 670 (5th Cir. 2012) (to prove ineffective assistance based on a conflict of interest, a criminal defendant must show "that an actual conflict of interest adversely affected his lawyer's performance"), cert. denied, ___ U.S. ___, 133 S.Ct. 1282, 185 L. Ed. 2d 186 (2013); United States v. Burns, 526 F.3d at 856 ("To establish a Sixth Amendment violation on the basis of a conflict of interest the defendant must demonstrate: (1) that his counsel acted under the influence of an actual conflict; and (2) that the conflict adversely affected his performance at trial."). The Cuyler standard differs substantially from the Strickland test in that Cuyler requires no showing of "prejudice." See Strickland v. Washington, 466 U.S. at 692 (recognizing prejudice is presumed under the Cuyler test only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."); United States v. Newell, 315 F.3d 510, 516 (5th Cir. 2002) ("When a defendant has been able to show that his counsel `actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance,' constitutional error has occurred and prejudice is inherent in the conflict."); Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000) (discussing the distinction between the Cuyler and Strickland tests).
In Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995)(en banc), cert. denied, 517 U.S. 1157 (1996), the Fifth Circuit rejected a broad-ranging application of the Cuyler standard to complaints of ineffective assistance arising from alleged conflicts of interest by defense counsel. See Beets v. Scott, 65 F.3d at 1268 (holding that not every potential conflict, even in multiple client representation cases, is an "actual conflict' for Sixth Amendment purposes). Subsequently, the Fifth Circuit has consistently refused to apply the Cuyler test outside the context of multiple representation situations. See, e.g., United States v. Bernard, 762 F.3d at 476 (in cases other than multiple representation, the standard for testing conflict of interest arises under Strickland); Bostick v. Quarterman, 590 F.3d 303, 306 n.2 (5th Cir. 2009) (In the absence of a Cuyler v. Sullivan actual conflict, a defendant who claims his attorney had a conflict of interest must show a reasonable probability that the conflict prejudiced the defense, undermining the reliability of the proceeding); United States v. Garza, 429 F.3d 165, 172 (5th Cir. 2005) ("Cuyler only applies where an attorney was effectively, if not technically, representing multiple clients in the same proceeding."), cert. denied, 546 U.S. 1220 (2006); United States v. Newell, 315 F.3d at 516 (holding Strickland "more appropriately gauges an attorney's alleged conflict of interest arising not from multiple client representation but from a conflict between the attorney's personal interest and that of his client"); Perillo v. Johnson, 205 F.3d at 781 ("An `actual conflict' exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client.").
Petitioner does not allege any specific facts showing Attorney Callahan was actively representing multiple parties with conflicting interests at the time he prepared and filed Petitioner's state appellate brief. As a result, Petitioner's allegations of a conflict of interest on the part of Callahan, as well as Petitioner's other complaints about the performance of his state appellate counsel, must be reviewed under the Strickland standard.
Petitioner alleged no specific facts and introduced no evidence before the state habeas court establishing that Attorney Callahan represented multiple parties in the same proceeding or otherwise engaged in multiple representations of the nature which require analysis of his conflict of interest claim under the Cuyler test. The state habeas court may not be faulted for applying the dual prongs of Strickland to Petitioner's complaints about the performance of his state appellate counsel. Petitioner has failed to allege any specific facts showing his state appellate counsel labored under an actual conflict of interest or that any act or omission on the part of Petitioner's state appellate counsel "prejudiced" petition within the meaning of Strickland.
Petitioner offered the state habeas court little evidence regarding the rationale or strategy behind the decisions made by Attorney Callahan in perfecting Petitioner's appeal and filing Petitioner's state appellate brief, other than Callahan's testimony that he felt his constitutional challenge to the death penalty possessed merit despite the fact the same claim had previously been denied by the Texas Court of Criminal Appeals. Attorney Callahan admitted his point of error challenging the constitutionality of the Texas capital sentencing scheme had proved unsuccessful in a past capital murder appeal but he felt it nonetheless possessed merit. Petitioner alleged no specific facts, and presented the state habeas court with no evidence, showing a reasonable probability exists that, but for Callahan's inclusion of his constitutional challenge to the Texas death penalty, the outcome of Petitioner's direct appeal would have been any different. The inclusion of points of error in an appellate brief which have previously been rejected by the appellate courts does not, per se, cause the performance of an appellate counsel to fall outside the broad range of objectively reasonable appellate performance. The state habeas court reasonably concluded Petitioner's complaints about Attorney Callahan's inclusion in Petitioner's state appellate brief of a challenge to the constitutionality of the Texas death penalty did not satisfy either prong of Strickland analysis.
Petitioner's complaints about Callahan's failure to assert points of error on direct appeal premised upon allegations of ineffective assistance by trial counsel are equally unavailing. The Texas Court of Criminal Appeals has long noted the practical difficulty in addressing ineffective assistance claims raised on direct appeal. See Menefield v. State, 363 S.W.2d 591, 592-93 (Tex. Crim. App. 2012) ("`Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped.'" (quoting Thompson v. State, 9 S.W.3d 808. 813 (Tex. Crim. App. 1999)); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (holding the same). In addition, Callahan testified during Petitioner's state habeas corpus proceeding that he was aware Petitioner's initial state habeas counsel planned to assert claims of ineffective assistance by Petitioner's trial counsel in the state habeas corpus proceeding. Under such circumstances, the state habeas court could reasonably have believed it was objectively reasonable for Petitioner to forego assertion on direct appeal of Petitioner's then-undeveloped ineffective assistance claims. Moreover, in view of this Court's independent conclusion that none of Petitioner's complaints about the performance of his trial counsel satisfied the prejudice prong of Strickland, Petitioner's complaints about the failure of his state appellate counsel to assert the same claims on direct appeal likewise fails to satisfy the prejudice prong of Strickland. There is no reasonable probability that, but for the failure of Petitioner's state appellate counsel to raise on direct appeal meritless points of error complaining about the performance of Petitioner's trial counsel, the outcome of Petitioner's appeal would have been any different. See Clark v. Thaler, 673 F.3d 410, 429 (5th Cir.) ("failure to assert a meritless objection cannot be grounds for a finding of deficient performance."), cert. denied, ___ U.S. ___, 133 S.Ct. 179, 184 L. Ed. 2d 90 (2012); Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009) (holding failure to raise a meritless objection does not satisfy the deficient performance prong of Strickland), cert. denied, ___ U.S. ___, 131 S.Ct. 1050, 178 L. Ed. 2d 870 (2011); Wood v. Quarterman, 503 F.3d 408, 413 (5th Cir. 2007) (failure to raise futile or meritless objections is not ineffective lawyering), cert. denied, 552 U.S. 1314 (2008). The state habeas court reasonably concluded Petitioner's complaints about the failure of his state appellate counsel to include Petitioner's complaints about the performance of his trial counsel as points of error on direct appeal failed to satisfy either prong of Strickland analysis.
While Petitioner complains Callahan did not accompany Petitioner's motion for new trial with an affidavit, Petitioner alleges no facts suggesting exactly what information such an affidavit should have contained or explain how inclusion of such an affidavit could possibly have altered the outcome of Petitioner's direct appeal. Petitioner complains Callahan did not raise claims of ineffective assistance by Petitioner's trial counsel in Petitioner's motion for new trial but, as explained above, Petitioner alleges no facts showing he was adversely affected by the failure of Callahan to assert any identified ineffective assistance claim in Petitioner's motion for new trial. As explained in Section III above, none of the assertions of ineffective assistance by Petitioner's trial counsel which Petitioner has raised before either the state habeas court or this Court satisfy the prejudice prong of Strickland analysis. Attorney Callahan cannot reasonably be faulted for failing to present claims of ineffective assistance, either in Petitioner's motion for new trial or on direct appeal, which possessed no arguable merit. Clark v. Thaler, 673 F.3d at 429; Peredes v. Quarterman, 574 F.3d at 291; Wood v. Quarterman, 503 F.3d at 413. For the reasons discussed in Section IV above, attorney Callahan can also not reasonably be faulted for failing to present Petitioner's Faretta claims as part of Petitioner's direct appeal. Those claims were likewise without merit. Thus, Petitioner has failed to allege any facts showing he was "adversely affected" by any decisions made by Callahan, when acting as Petitioner's state appellate counsel.
Finally, Petitioner's complaint that his state appellate counsel failed to file a petition for writ of certiorari possesses no arguable merit. A criminal defendant who has been furnished courtappointed assistance on direct appeal does not possess a constitutional right to the assistance of counsel to pursue discretionary state appeals or applications for review before the United States Supreme Court. Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1997); Wainwright v. Torna, 455 U.S. 586, 587 (1982); Ross v. Moffitt, 417 U.S. 600, 610 (1974); Clark v. Johnson, 227 F.3d 273, 283 (5th Cir. 2000), cert, denied, 531 U.S. 1167 (2001). Petitioner's court-appointed state appellate counsel had no duty to pursue certiorari review on Petitioner's behalf.
The Texas Court of Criminal Appeals' rejection on the merits, in the course of Petitioner's state habeas corpus proceeding, of Petitioner's complaints of ineffective assistance by his state appellate counsel was neither (1) contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding.
In his fourth and final claim for federal habeas corpus relief, Petitioner argues his conviction violates due process principles because, in June, 2013, former prosecution witness Gerardo Gutierrez claimed he committed perjury during Petitioner's 2005 capital murder trial.
Petitioner did not fairly present this claim to the Texas Court of Criminal Appeals in either his direct appeal or state habeas corpus proceeding. Thus, Petitioner has failed to exhaust state appellate and state habeas corpus remedies with regard to this claim. The Fifth Circuit has consistently held that federal habeas review on unexhausted claims presented by a convicted Texas criminal defendant is barred under the procedural default doctrine. See, e.g., Beatty v. Stephens, 759 F.3d 455, 465 (5th Cir. 2014) (federal habeas corpus petition procedurally defaulted on ineffective assistance claim by failing to present the claim to the Texas Court of Criminal Appeals); Reed v. Stephens, 739 F.3d 753,780 (5th Cir. 2014) (unexhausted federal habeas corpus claim procedurally defaulted), cert. filed June 17, 2014 (no. 13-1509); Trottie v. Stephens, 720 F.3d 231, 248 (5th Cir. 2013) (Petitioner procedurally defaulted on ineffective assistance claim by asserting a new factual basis to support the claim which rendered same unexhausted), cert. denied, ___ U.S. ___, 134 S.Ct. 1540, 188 L. Ed. 2d 562 (2014). Because this claim is not framed in terms of ineffective assistance by Petitioner's state trial counsel, the Supreme Court's holdings in Trevino and Martinez afford Petitioner no relief from his procedural default. See Garza v. Stephens, 739 F.3d at 676 (to establish cause sufficient to overcome a procedural default, the Petitioner must show (1) his claim of ineffective assistance of counsel at trial is substantial — i.e., has some merit — and (2) that habeas counsel was ineffective in failing to present those claims in Petitioner's first state habeas corpus proceeding). Moreover, as explained below, because this claim lacks any arguable merit, Petitioner cannot demonstrate cause for his procedural; default by showing his state appellate or state habeas counsel rendered ineffective assistance by failing to raise this claim on direct appeal or in Petitioner's state habeas corpus proceeding.
Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir. 2003) ("28 U.S.C. § 2254(b) (1) requires that federal habeas petitioners fully exhaust remedies available in state court before proceeding in federal court."), cert. denied, 543 U.S. 835 (2004); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir. 2003) ("Absent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his claims in state court before he may seek federal habeas relief."), cert. denied, 540 U.S. 956 (2003); Mercadel v. Johnson, 179 F.3d 271, 276-77 (5th Cir. 1999); 28 U.S.C. § 2254(b)(1)(A). However, 28 U.S.C. §2254(b) (2) empowers a federal habeas court to deny an unexhausted claim on the merits. Avila v. Quarterman, 560 F.3d 299, 310 n.8 (5th Cir.), cert. denied, 556 U.S. 993 (2009); Pondexter v. Quarterman, 537 F.3d 511, 527 (5th Cir. 2008), cert, denied, 555 U.S. 1219 (2009); Mercadel v. Johnson, 179 F.3d at 276-77.
A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264, 269-70 (1959). To succeed in showing a due process violation from the use of allegedly perjured testimony, a defendant has the burden of establishing that (1) the witness in question actually gave false testimony, (2) the falsity was material in that there was a reasonable likelihood that it affected the judgment of the jury, and (3) the prosecution used the testimony in question knowing that it was false. Giglio v. United States, 405 U.S. at 153-54; Canales v. Stephens, 765 F.3d 551, 573 (5th Cir. 2014) (a conviction obtained through false evidence known to be such by representatives of the State violates a defendant's constitutional rights); Kinsel v. Cain, 647 F.3d 265, 271 (5th Cir.) ("The Supreme Court has held that the Due Process Clause is violated when the government knowingly uses perjured testimony to obtain a conviction."), cert. denied, ___ U.S. ___, 132 S.Ct. 854, 181 L. Ed. 2d 551 (2011); Reed v. Quarterman, 504 F.3d 465, 473 (5th Cir. 2007).
Petitioner alleges no specific facts showing the prosecution or any representative of the State possessed any information at the time of Petitioner's capital murder trial suggesting Gutierrez's testimony was in any way factually inaccurate. Instead, Petitioner relies exclusively upon a Ninth Circuit opinion (Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010)) which holds that a conviction or sentence based on false material evidence violates due process principles regardless of the prosecution's knowledge of the inaccuracy of the evidence. Neither Supreme Court precedent nor Fifth Circuit precedent require reversal of criminal convictions obtained through allegedly false testimony or evidence without a showing the prosecution either knowingly presented the false evidence or knowingly failed to correct false testimony. Napue v. Illinois, 360 U.S. at 269; United States v. Fields, 761 F.3d 443, 477 (5th Cir. 2014) ("`To establish a due process violation based on the government's use of false or misleading testimony, [a defendant] must show that (1) the testimony in question was actually false; (2) the testimony was material; and (3) the prosecution had knowledge that the testimony was false.'" (quoting United States v. Webster, 392 F.3d 787, 801 (5th Cir. 2004)). Because Petitioner has alleged no facts showing anyone on the prosecution team or representing the State was aware at the time of Petitioner's capital murder trial of any material factual inaccuracy in Gutierrez's trial testimony, Petitioner's Giglio/Napue claim does not warrant federal habeas corpus relief.
Petitioner procedurally defaulted on his unexhausted Giglio-Napue claim. This claim lacks any arguable merit because Petitioner has failed to allege any specific facts showing the prosecution or any State representative knew prior to Gutierrez's 2013 affidavit that Gutierrez gave testimony at Petitioner's capital murder trial which was factually inaccurate.
Petitioner requests an evidentiary hearing for the purpose of permitting him to develop the factual and evidentiary bases for his claims herein.
Hoffman v. Cain, 752 F.3d 430, 437-38 (5th Cir. 2014).
With regard to those claims herein on which Petitioner obtained a ruling on the merits from the Texas Court of Criminal Appeals in the course of Petitioner's state habeas corpus proceeding, i.e., all of Petitioner's complaints of ineffective assistance by his trial or state appellate counsel, Petitioner is not entitled to an evidentiary hearing in this Court. See Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398-1401, 179 L. Ed. 2d 557 (2012) (holding an evidentiary hearing is unnecessary when a state court has rejected a claim on the merits and federal habeas review of that rejection is governed by §2254(d) (1)); Clark v. Thaler, 673 F.3d 410, 416-17 (5th Cir.) (no evidentiary hearing or factual development in federal court where the claim was adjudicated on the merits in state court), cert. denied, ___ U.S. ___, 133 S.Ct. 179, 184 L. Ed. 2d 90 (2012); Pape v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011) (holding the same), cert. denied, ___ U.S. ___, 132 S.Ct. 1100, 181 L. Ed. 2d 987 (2012). Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a Petitioner made insufficient effort to prove in state proceedings. Cullen v. Pinholster, ___ U.S. at ___, 131 S. Ct. at 1401; Lewis v. Thaler, 701 F.3d 783, 790 (5th Cir. 2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1739, 185 L. Ed. 2d 798 (2013).
Thus, Petitioner is not entitled to a federal evidentiary hearing on any of his ineffective assistance claims herein, all of which were litigated to a resolution on the merits in Petitioner's state habeas corpus proceeding. Petitioner's second claim herein presents purely legal, record-based, arguments which do not require factual development. Petitioner's final claim, his unexhausted, procedurally defaulted, Giglio-Napue claim, is unaccompanied by any specific facts sufficient to warrant federal habeas corpus relief.
Moreover, 28 U.S.C. Section 2254(e) (2) restricts this Court's ability to hold an evidentiary hearing even when a claim has not been fully adjudicated on the merits by a state court. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the Petitioner's factual allegations which, if true, would entitle the applicant to federal habeas relief."). "[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. This Court has examined de novo the merits of Petitioner's second and fourth claims herein, assumed the accuracy of the facts Petitioner alleges in support of these claims (except where refuted by the record from Petitioner's state trial court, state direct appeal, and state habeas proceedings), conducted a de novo review of same, and has determined Petitioner has failed to allege any facts which would entitle him to federal habeas relief. Therefore, Petitioner is not entitled to a federal evidentiary hearing on any of these claims. See Spence v. Johnson, 80 F.3d 989, 1000 (5th Cir. 1996) (holding in a pre-AEDPA case that a federal habeas Petitioner must allege facts which, if proved, would entitle him to relief before the Petitioner is entitled to a federal evidentiary hearing and that the federal court need not "blindly accept speculative and inconcrete claims as the basis to order a hearing"), cert, denied, 519 U.S. 1012 (1996).
The AEDPA converted the "certificate of probable cause" previously required as a prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a "Certificate of Appealability" ("CoA"). See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding the standard for obtaining a CoA is the same as for a CPC). The CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n.2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998). Effective December 1, 2009, Rule 11(a) of the Rules Governing Section 2254 Cases in United States District Courts requires this Court to issue or deny a CoA when it enters an order adverse to a federal habeas corpus Petitioner.
Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA. Miller-El v. Johnson, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003); 28 U.S.C. §2253(c) (2). Likewise, under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n.10 (5th Cir. 2002) (holding a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n.2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding the scope of appellate review of denial of a habeas petition limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v. Cockrell, 301 F.3d at 658 n.10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Murphy v. Johnson, 110 F.3d 10, 11 n.1 (5th Cir. 1997); 28 U.S.C. §2253(c) (3).
A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282 (2004); Miller-El v. Johnson, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. 473, 483 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 (1983).
To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282; Miller-El v. Johnson, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. at 484; Barefoot v. Estelle, 463 U.S. at 893 n.4. This Court is required to issue or deny a CoA when it enters a final Order such as this one adverse to a federal habeas Petitioner. Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts.
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. "[W]here 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." Miller-El v. Johnson, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. at 484); accord Tennard v. Dretke, 542 U.S. at 282. In a case in which the petitioner wishes to challenge on appeal this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court's procedural ruling was correct).
In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner's favor. Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.), cert. denied, 558 U.S. 993 (2009); Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir. 2008); Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir. 2005), cert. denied, 548 U.S. 909 (2006). Nonetheless, a CoA is not automatically granted in every death penalty habeas case. See Miller-El v. Cockrell 537 U.S. at 337 ("It follows that issuance of a COA must not be pro forma or a matter of course."); Sonnier v. Quarterman, 476 F.3d at 364-69 (denying CoA on a wide variety of challenges to the Texas capital sentencing scheme).
While it might be possible to quibble over the state habeas court's applications of the deficient performance prong of the Strickland test to Petitioner's complaints of ineffective assistance by his trial counsel, reasonable minds could not disagree over this Court's conclusion that the state habeas court reasonably concluded all of Petitioner's complaints of ineffective assistance by his trial counsel failed to satisfy the prejudice prong of Strickland. Likewise, reasonable minds could not disagree that Petitioner's complaints about the performance of his state appellate counsel also fail to satisfy the prejudice prong of Strickland. Reasonable minds also could not disagree with this court's conclusions that Petitioner procedurally defaulted on both his Faretta claims and his unexhausted Giglio-Napue claim. Petitioner is not entitled to a CoA on any of his claims herein.
This Court independently reviewed the entire record from Petitioner's trial, direct appeal, and state habeas corpus proceeding and concludes Petitioner's ineffective assistance complaints all fail to satisfy the prejudice prong of the Strickland analysis. Viewed in the light most favorable to the jury's verdict, the evidence of Petitioner's guilt was overwhelming. At the punishment phase of Petitioner's trial, the jury was furnished with a wealth of information concerning Petitioner's long history of violent criminal behavior.
Accordingly, it is hereby
1. All relief requested in Petitioner's federal habeas corpus petition, June 28, 2013, ECF no. 12, is
2. Petitioner is
3. Petitioner's request for an evidentiary hearing is
4. All other pending motions are
It is so ORDERED.
The two residents of the home at 9710 Clamp Street testified they heard multiple shots and called police prior to Espinosa pounding on their door. S.F. Trial, Volume 15, testimony of John Medlick, at pp. 42, 44-45; Volume 15, testimony of George Gruber, at pp. 68, 82.
Another resident of the area testified he was also awakened by the shots and phoned police about same and a car with body damage which he saw driving slowly through the area after the shots woke him and which turned around in his driveway. S.F. Trial, Volume 16, testimony of James Fenimore, at pp. 157, 159-61.
A trace evidence expert from the Bexar County Criminal Investigation Laboratory testified swabs taken from Frank Gonzales' hands at the time of Gonzales' arrest were negative for gun shot residue. S.F. Trial, Volume 16, testimony of Michael Victor Martinez, at pp. 68-71, 75, 81.
Gonzales testified he negotiated a plea bargain in which he received a forty-year sentence for murder in exchange for Gonzales' truthful testimony at Petitioner's trial. Volume 16, testimony of Francisco Gonzales, at pp. 132, 134, 154.
Espinosa also testified she changed her mind about protecting Petitioner after she had a conversation with Petitioner a few days after she got out of jail in which Petitioner referred to Espinosa as a "loose end" and stated confidently he did not believe he would be convicted because he had burned the gun, mask, and his gloves and he didn't believe Gonzales would "snitch" on him. S.F. Trial, Volume 17, testimony of Debra Espinosa, at pp. 60-61, 64-65, 67. Espinosa testified she entered into a plea bargain which allowed her to plead to a reduced charge of aggravated robbery and receive a forty-year sentence in exchange for her giving truthful testimony at Petitioner's trial. Id., at pp. 68-69.
In his first, third, and fourth grounds for relief, Petitioner's state habeas corpus application included arguments that Petitioner's trial counsel rendered ineffective assistance (1) during jury selection by (a) failing to move to disqualify or object to the trial court's comments made in the presence of venire member Doris Cedillo and (b) failing to move to disqualify or strike venire member Arthur Carter [Fourth ground], (2) during trial by (a) failing to meet with Petitioner at the jail with sufficient frequency, (b) failing to interview prosecution witnesses, (c) waiting until the eve of trial to begin trial preparation, (d) failing to adequately investigate and prepare for the sentencing phase of trial, (e) failing to utilize the defense team's forensic psychologist during the sentencing phase of trial, (f) failing to introduce documentary evidence via stipulation during the sentencing phase of trial, (g) failing to interview Petitioner's family and present their testimony at the sentencing phase of trial, (h) filing a frivolous motion challenging the admissibility of Petitioner's accomplices' trial testimony, (i) making a bad opening statement, moving for judicial sentencing and otherwise demonstrating a lack of knowledge of capital sentencing proceedings, (j) failing to investigate the prosecution's case, failing to present evidence regarding the effects of sleep deprivation, and asking questions on cross-examination which bolstered the credibility of prosecution witnesses, (k) conceding Petitioner's guilt during closing arguments at the guilt-innocence phase of trial, (l) failing to object to sleeping jurors, (m) failing to interview the sole defense witness until after trial began, (n) failing to object to Petitioner's assertion of his right to self-representation, and (o) the cumulative effect of the foregoing acts of deficient performance [First ground], and (3) on appeal by (a) failing to include an affidavit with Petitioner's motion for new trial, (b) failing to assert the foregoing claims of ineffective assistance in Petitioner's direct appeal, (c) urging the same Eighth Amendment argument the Texas Court of Criminal Appeals had rejected in a recent opinion involving another of the same appellate counsel's clients, Kevin Watts, and (d) operating under a conflict of interest once it became apparent Petitioner had viable complaints of ineffective assistance by his trial counsel [Third ground].
Lead counsel Callahan testified without contradiction (1) he met with Petitioner at the jail December 15, 2003 but not thereafter, (2) the during their initial meeting, Petitioner displayed a flat affect, i.e., Petitioner appeared a bit cavalier about his fate and did not appear concerned about the gravity of the charge against him (which raised a red flag in Callahan's mind), (3) he was unable to elicit any detailed information from Petitioner regarding Petitioner's purported alibi defense during their initial meeting but subsequently did receive some information regarding a possible alibi defense from Petitioner, (4) he corresponded extensively with Petitioner after their first meeting, and (5) he sent Petitioner a copy of Dr. Ferrell's report and explained what testimony Dr. Ferrell was prepared to give for the defense. S.F. State Habeas Hearing, Volume 4 of 7, testimony of Vincent D. Callahan, at pp. 317-18/64-65, 321/68, 338/85, 352/99, 356-59/103-06, 364-83/111-30. Callahan also testified without contradiction (1) he corresponded frequently with Petitioner in an attempt to elicit a time line relative to Garcia's murder for Petitioner's whereabouts and a possible alibi, (2) he wrote Petitioner to explain the importance of Petitioner cooperating with defense expert Dr. Ferrell, (3) he wrote Petitioner to answer a question about the indictment posed by Petitioner, (4) he wrote Petitioner to try and convince Petitioner of the importance of obtaining testimony from Petitioner's family but Petitioner did not want to involve his family, particularly his mother, (5) he contacted Petitioner's purported alibi witness, Carlos Castillo, who refused to furnish Petitioner with an alibi, (6) he wrote to Petitioner and explained Petitioner's right to self-representation but also explained Petitioner had no right to hybrid representation, (7) he wrote Petitioner and explained Carlos Castillo would not furnish an alibi and could be impeached and also explained defense counsel had worked out an agreement with the prosecution to admit educational records by stipulation, (8) Petitioner resisted the defense team's efforts to investigate Petitioner's background, and (9) Petitioner communicated extensively with trial counsel during voir dire. S.F. State Habeas Hearing, Volume 5 of 7, testimony of Vincent D. Callahan, at pp. 401-18/15-33, 426-27/40-41, 429/43, 434-35/48-49, 437-38/52-53, 447-49/61-63, 454-58/68-72, 469/83.
Attorney Callahan testified without contradiction during the same proceeding that (1) while Petitioner displayed a nihilistic, fatalistic, or negative attitude at times, he never perceived that Petitioner was clinically depressed or required medical or psychological treatment, (2) Petitioner's emotional state went up and down throughout the course of his representation of Petitioner, (3) he informed Petitioner of the testimony Dr. Ferrell could furnish and sent Petitioner a copy of Dr. Ferrell's report, (4) he did interview Petitioner's mother over the phone, (5) he had been involved with forty-to-fifty death penalty cases prior to Petitioner. ten of which went to trial, (6) his voucher did not reflect all his work on Petitioner's case, (7) he wrote Petitioner multiple times asking for information on Petitioner's alibi, (8) initially, Petitioner did not furnish a true alibi, (9) eventually, Callahan made contact with Petitioner's purported alibi witness (Carlos castillo) who refused to furnish an alibi for Petitioner on the night of the murder, (10) he searched unsuccessfully for a writing in which Francisco Gonzales identified himself as "Pancho Loco," (11) neither of the attorneys for Petitioner's co-defendants would permit Callahan to interview their clients prior to trial, (12) he explained to Petitioner that Carlos Castillo could be subject to impeachment based upon a recording the prosecution had of a phone conversation between Carlos Castillo and Debbie Espinosa shortly after her arrest, and (13) Petitioner indicated he did not wish to present any evidence at trial regarding his background. S.F. State Habeas Hearing, Volume 3 of 7, testimony of Vincent D. Callahan, at pp. 152-71/233-52; Volume 4 of 7, testimony of Vincent D. Callahan, at pp. 21-130/274-383; Volume 5 of 7, testimony of Vincent D. Callahan, at pp. 12-122/399-508.
Attorney Callahan testified in pertinent part that (1) he did not interview any prosecution witnesses prior to trial, (2) the witnesses for Petitioner's accomplice witnesses intervened and refused to permit Callahan to interview their clients, and (3) he did not interview any of the forensic witness presented by the prosecution prior to trial because none of their testimony linked Petitioner to the offense. S.F. State Habeas Hearing, Volume 4 of 7, testimony of Vincent D. Callahan, at pp. 38-40/291-93; Volume 5 of 7, testimony of Vincent D. Callahan, at pp. 39-40/425-26.
More specifically, attorney Callahan testified without contradiction during Petitioner's state habeas corpus proceeding that (1) he repeatedly explained to Petitioner the need for testimony from Petitioner's family at the punishment phase of trial about Petitioner's background, (2) Petitioner wrote Callahan in February and March, 2005 and again in July, 2005 repeatedly insisting he did not wish his mother to testify, and (3) these communications were memorialized in State Exhibit nos. 48, 49, 51, 65, 67, and 68. S.F. State Habeas Hearing, Volume 5 of 7, testimony of Vincent D. Callahan, at pp. 68-69/454-55, 75/462, 80-81/466-67.
In his state habeas corpus application, Petitioner identified several areas of crossexamination in which he criticized the performance of his trial counsel. Specifically, Petitioner complained his trial counsel (1) asked prosecution witness Frank Russell about the credibility of prosecution witness Debra Espinosa (to which Russell replied he did not know Espinosa well enough to express an opinion on her credibility), (2) accused Russell of smoking marijuana on the night of Garcia's murder (an accusation Russell denied), (3) asked prosecution witness Robert Jimenez about Russell's credibility (to which Jimenez responded that he believed Russell to be truthful), (4) asked prosecution witness Debra Espinosa about the credibility of prosecution witnesses Francisco Gonzales, Lucinda Gonzales, Teresa Quintero, and Bryan Brown (Petitioner alleged Espinosa testified Francisco Gonzales, Lucinda Gonzales, and Quintero were truthful and Espinosa did not know Brown's reputation for truthfulness), (5) failed to cross-examine prosecution witness Debra Espinosa regarding her direct testimony that she was suffering from the effects of drug use and sleep deprivation on the night of Garcia's murder, (6) asked prosecution witness Timm Angell whether Debra Espinosa had been untruthful throughout her dealings with police (to which Petitioner alleged Angell responded that Espinosa had been truthful at the end of her multiple interviews), (6) asked Angell whether police ever obtained any information which led them to investigate other suspects in Garcia's murder, and (7) asked prosecution witness Danny Higginbotham whether Espinosa had any blood on her (which Higginbotham answered negatively). State Habeas Transcript, at pp. 93-97.
Callahan's letter to Petitioner dated January 31, 2005 (State Exhibit no. 45) [found at S.F. State Habeas Hearing, Volume 6 of 7, at pp. 632-33] includes Callahan's explanation of Petitioner's right to self-representation. Petitioner wrote Callahan on May 3, 2005 (State Exhibit 62) [S.F. State Habeas Hearing, Volume 6 of 7, at p. 678] regarding self-representation. Callahan wrote Petitioner back on May 13, 2005 (State Exhibit 64) [S.F. State Habeas Hearing, Volume 6 of 7, at p. 683] advising Petitioner it was unwise for Petitioner to represent himself.
Petitioner's letter dated January 16, 2005 to the state trial court does not appear in the record from Petitioner's state trial court proceedings but is quoted verbatim in Petition, at p. 73 and in State Habeas Transcript, at p. 113.
On January 19, 2005, Petitioner filed a pro se motion dated January 16, 2005 to dismiss appointed counsel which appears in Trial Transcript, at pp. 13-16.
Petitioner's letter to the state trial court dated June 2, 2005 appears in Trial Transcript, at p. 27 and is quoted verbatim in Petition, at pp. 74-75 and in State Habeas Transcript, at p. 115.
In response to questions by Petitioner's trial counsel, Ms. Cedillo testified (1) she wanted to serve on the jury, (2) her answers to certain questionnaire answers had not changed, and (3) she would have the courage to stick to her views of what is true and not true if confronted by eleven other persons who thought differently from her. Id., at pp. 32-34.
This Court has previously pointed out the vital importance of reviewing venire members' questionnaires in capital murder cases when a federal habeas court is called upon to review the performance of trial counsel during jury selection:
Garza v. Thaler, 909 F.Supp.2d 578, 617 n.93 (W.D. Tex. 2012), CoA denied, 738 F.3d 669 (5th Cir. 2013), cert. denied, ___ U.S. ___, 134 S.Ct. 2876, ___ L. Ed. 2d ___ (2014).
The importance of furnishing a reviewing court with the juror questionnaires is highlighted in this case by the fact Petitioner's trial counsel questioned Ms. Cedillo during voir dire about her answers to her juror questionnaire. S.F. Trial, Volume 5, voir dire examination of Doria Cedillo, at pp. 32-33. In the absence of Ms. Cedillo's juror questionnaire, the exchanges between Ms. Cedillo and Attorney Callahan render it difficult for this Court, or any other reviewing court, to determine the import of Ms. Cedillo's answers to Attorney Callahan's voir dire questions.
This same principle applies to a federal habeas corpus petitioner's complaints about his trial counsel's failure to challenge for cause, or to exercise a peremptory challenge against, a particular venire member. When deprived of the ability to review the juror questionnaires completed by the entire jury venire, a federal habeas court is deprived of the ability to intelligently ascertain whether there were objectively reasonable reasons why defense counsel may have chosen to exercise their limited peremptory strikes against other members of the jury venire rather than the venire member or venire members identified by a petitioner in an ineffective assistance claim. As this Court has also noted, jury selection is more art than science. Cordova v. Johnson, 993 F.Supp. 473, 530 W.D. Tex. 1998), CPC denied, 157 F.3d 380 (5th Cir. 1998), cert. denied, 525 U.S. 1131 (1999). The presumption of reasonableness which is afforded trial counsel's strategic decision-making under Strickland applies with equal force to decisions regarding how to question venire members during voir dire and whether to challenge a particular venire member for cause or employ a peremptory challenge against a particular venire member. See Neville v. Dretke, 423 F.3d 474, 482-83 (5th Cir. 2005) (Petitioner was obligated to overcome the presumption that his trial counsel's decision not to question venire members regarding the issue of lupus was sound trial strategy).
For unknown reasons, in his Answer, Respondent refers to Petitioner's Faretta claim as Petitioner's "claim four." Respondent's Answer, filed January 23, 2014, ECF no. 22, at p. 19.
