PATRICK E. HIGGINBOTHAM, Circuit Judge.
Texas prisoner Lisa Ann Coleman was convicted of capital murder and sentenced to death. A federal district court denied her petition for habeas relief, a judgment she seeks to appeal on three grounds. Because jurists of reason would not disagree with or find debatable the district court's rejection of her claims, we deny her request for a Certificate of Appealability.
This case arises out of the death of nine-year-old Davontae Williams. On the morning of July 26, 2004, emergency services were summoned to Davontae's home upon report of his "breathing difficulty." Paramedic Troy Brooks arrived at the residence only minutes later to find Davontae "obviously dead," inferring that Davontae had passed away several hours earlier. Davontae, Brooks testified, was clad only in bandages and a diaper, so "emaciated and underweight" that it was "shocking." Brooks and another paramedic each believed that nine-year-old Davontae weighed only twenty-five pounds.
Crime Scene Investigator Regina Taylor testified that Davontae had "numerous injuries throughout ... his entire body," including a disfigured ear, swollen hands, a slit in his lip, and "ligature marks around his wrists and ankles."
Ultimately, however, Dr. Konzelmann deemed the cause of Davontae's death to be malnutrition with pneumonia. Dr. Peerwani, Chief Medical Examiner for Tarrant County, further testified that Davontae's pneumonia resulted from his malnutrition. And although Davontae was born prematurely, Dr. Kellogg explained that Davontae previously had "a normal growth velocity;" a metabolic disease, she inferred, was not responsible for his malnutrition. According to the State of Texas, however, Lisa Coleman was.
Lisa spent much of her time living with Marcella Williams, Davontae's mother. Lisa and Marcella were involved romantically and had been for several years. In 1999, for example, Child Protective Services (CPS) removed Davontae from Marcella's custody because Lisa was abusing
Lisa nevertheless continued to interact with Davontae. Davontae's sister Destinee testified that Lisa would tie up Davontae with an extension cord. Lisa denied use of an extension cord, but admitted that she and Marcella had tied up Davontae on "several occasions."
Toward the end of his life, Davontae did receive some treatment. He appeared to have been given TheraFlu, Alka Seltzer, and NyQuil.
Dr. Konzelmann also opined that "[t]he attempt to treat ... is as much an attempt to prevent [Davontae] from coming to the attention of the physicians who would have reported" his condition. Lisa essentially acknowledged as much; according to a CPS investigator, she stated that "Marcella did not want to take [Davontae] to a doctor because she was afraid that once they saw the bruises and marks on him, that CPS would be called and ... her children would be taken away." She likewise admitted, according to a different CPS investigator, that "Marcella would tell people when they would ask where Davontae was that he was with her people [even though] he was actually in the apartment."
At the beginning of the punishment phase, Lisa pleaded true to a Habitual Offender Notice and the court brought forward all of the evidence admitted during the guilt/innocence phase. After brief testimony by the State's only witness, the defense called seven witnesses to describe Lisa's difficult past and project a non-violent future.
According to the evidence, Patricia Coleman became pregnant with Lisa when she was only thirteen years old, after her stepfather, James Bunch, molested her. Patricia was ill-equipped to parent; young and afflicted by mental challenges, she failed to prevent Lisa from being abused by other family members. Lisa was spanked at four months old for crying, whipped with extension cords, and sexually abused by her Uncle Leotis for at least three years. Lisa was also knifed in the back by a cousin at eleven years old — moments after she learned from her cousins' taunts that she was a product of molestation.
Lisa spent much of her childhood in foster care, beginning when she was only three years old. Her first foster home, in which she was likely sexually abused, burned down about two-and-a-half years after she arrived. While still in foster care, Lisa felt abandoned because her mother Patricia would often miss scheduled visits and rarely see her. At some point, however, Patricia did begin calling Lisa "Pig," a nickname that stuck until the time of trial and was cause for ridicule when Lisa was a child in school. This upbringing, expert testimony suggested, would make it difficult for Lisa to be a good parent.
Lisa's later years were also troubled. She began using drugs at thirteen years old and started drinking at fourteen. At sixteen, she gave birth to her own child. And at some point, she was diagnosed with bipolar disorder.
Despite her upbringing, Lisa was described by family members as "playful" and "very good with kids." Lisa's younger sister Yvonne further testified that Lisa was "always there for [her]" and that she would "go crazy" if Lisa was sentenced to death. Testimony also suggested that Lisa would not be a future danger; although Davontae was a difficult child to parent, Lisa had no enemies in jail
The jury retired to deliberate just before 3pm on June 21, 2006. Fewer than
In December 2009, on direct review, the Texas Court of Criminal Appeals affirmed Lisa's sentence and conviction.
Lisa now seeks a Certificate of Appealability (COA) so that she may appeal on three grounds: First, she argues that her legal team failed to investigate facts relevant to her conviction for capital murder, in violation of her Sixth Amendment right to counsel. Second, she argues that her legal team failed to investigate and present mitigation evidence, also in violation of her right to counsel. Third, she argues that she is incarcerated for an offense of which she is actually innocent, in violation of the Due Process Clause of each of the Fifth and Fourteenth Amendments.
When a person is in custody pursuant to a state-court judgment, we may "entertain [her] application for a writ of habeas corpus ... only on the ground that [s]he is in custody in violation of the Constitution or laws or treaties of the United States."
Whether a decision is "contrary to" or an "unreasonable application" of clearly established law involves two distinct inquiries. A state-court decision is "contrary to" established law when a court "applies a rule that contradicts the governing law" or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent."
A habeas petitioner must obtain a COA before she may appeal from a district court's denial of her petition.
Although we must review federal district courts' habeas rulings in light of the deference due to state-court judgments on the merits,
Petitioner claims that her counsel was ineffective for failing to investigate certain evidence that may have been exculpatory and for failing to investigate evidence that may have mitigated her punishment. We
The Sixth Amendment entitles a criminal defendant to the assistance of counsel for her defense.
In Strickland v. Washington, the Supreme Court explained that to obtain reversal of a conviction or death sentence based on ineffective assistance, a defendant must make two showings. First, she must show that her "counsel's performance was deficient."
To demonstrate deficient performance, "the defendant must show that counsel's representation fell below an objective standard of reasonableness"
To demonstrate prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Petitioner first argues that her attorneys failed to investigate and present testimony from Tonya Coleman Brown, Sharon Coleman, and Marcella Williams. Petitioner raised these claims during state post-conviction proceedings, where they were rejected on the merits for want of deficiency and prejudice. We consider each claim in turn. Given the intersecting standards of review, we will grant a COA only if reasonable jurists would agree that, or at least find debatable whether, the state court unreasonably applied Strickland.
On May 1, 2008, Marcella Williams gave a statement in which she claimed, among other things, that Davontae played outside with other children several times each week, and that any restraint of Davontae was done "with [her] permission or at [her] direction." Her statement, petitioner contends, contains information "vital and important to Coleman's defense to the kidnapping allegation." This claim is without force.
On post-conviction review, the state trial court found that Williams faced the death penalty for Davontae's death "[d]uring the entire pendency of [Lisa's] case through the jury verdict." It also found that she had given "incriminating statements to the police and CPS" regarding Lisa. Most significantly, it found that both of Lisa's attorneys were familiar with Williams's court-appointed attorneys, and that they "knew any request to interview [Williams] would be refused due to the severity of the charges" that she faced and Williams's prior, incriminating statements.
Petitioner further contends that her counsel failed to interview and call as a witness Tonya Coleman Brown and Sharon Coleman. On April 30, 2008, Brown averred:
On the same day, Sharon Coleman averred:
On post-conviction review, the state trial court ordered each of Fred Cummings and Michael Heiskell, Lisa's trial counsel, to submit an affidavit addressing these claims.
In his affidavit, Cummings explained that Sharon and Tonya each spoke with a member of the defense team before trial. His affidavit reads, in pertinent part:
The record suggests that Knox spoke with Sharon and Tonya primarily regarding mitigation issues, and the state court did not find otherwise. We need not consider whether effective counsel would have investigated further, however, because petitioner has not demonstrated prejudice.
"This Court has repeatedly held that complaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative."
Considered together, Tonya and Sharon's affidavits appear to make four claims. First, Davontae was seen constantly playing outside with other children. Second, he was "acting like a normal child." Third, neither Tonya nor Sharon ever saw Davontae "tied up" or "restrained." And fourth, Davontae always appeared to be in good health.
Two of these claims are of little import. The third literally means only that Tonya and Sharon never saw Davontae restrained; the affidavits do not speak to whether he was actually restrained — and if they did, their statements would be contradicted by both overwhelming physical evidence and Lisa's admission to the contrary. The fourth claim, that Davontae was in good health, would have likewise had no probity, let alone a reasonable probability of convincing jurors to disregard the gruesome photographs and extensive testimony regarding Davontae's poor health.
That Davontae allegedly played outside constantly is of greater concern; it goes to the component of the capital murder charge on which the State's proof was weakest: kidnapping. Even here, the affidavits fall short. Tonya claims to have seen Davontae playing outside "constantly," but admits to having visited only one or two times each month. Sharon's affidavit claims more routine observation. But according to Knox's notes, Sharon admitted "that in order to get [Davontae] to go outside for a picture or to play with the other children, everyone in the apartment had to go outside and lock the doors." And the affidavits do not contradict the evidence that medical treatment was withheld from Davontae to avoid a call to CPS.
The remaining claim, that Davontae acted like a "normal child," would (if anything) have increased the probability of petitioner's conviction. Part of counsel's strategy at trial was to describe Davontae as a difficult child to raise, one whose mistreatment resulted from Lisa and Williams's lack of parenting abilities. The more "normal" Davontae, the more abhorrent his supposed caretakers' response.
In sum, petitioner asks us to overturn her conviction based on two nearly identical statements, offered by family members, which in several places flatly contradict the inescapable weight of the evidence before the state court. We cannot do so. Reasonable jurists would not conclude that, or even debate whether, petitioner has demonstrated prejudice — let alone whether the state court's determination otherwise was unreasonable.
Petitioner next claims that her counsel failed to investigate adequately and present all available mitigation evidence. Petitioner raised this claim during state post-conviction proceedings, where it was rejected on the merits for want of deficiency and prejudice. Her claim appears to rest on two theories: (1) her attorneys should have obtained neuropsychological testing and (2) "the jury was not presented evidence regarding Lisa's own horrific upbringing and her lack of understanding or knowledge of basic parenting skills."
Neither theory has merit. Regardless of whether petitioner's attorneys should have obtained neuropsychological testing, Lisa identifies no evidence establishing what that testing would have revealed.
The second theory is similarly unsupported with respect to prejudice. And with respect to deficiency, we agree with the district court that "[t]he state habeas record affirmatively discloses that the trial defense team thoroughly investigated potential mitigation evidence" and presented that information adequately.
Petitioner finally contends that she is "actually innocent" of capital murder because she did not kidnap Davontae. Her theory is essentially a repackaged version of her first ineffective assistance claim: the affidavits of Marcella Williams, Tonya Coleman Brown, and Sharon Coleman, she reasons, establish that she did not commit a kidnapping. She raised this claim during state post-conviction proceedings, where it was rejected on the merits.
"`Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.'"
Perhaps for those reasons, petitioner suggests that she instead presents a "Schlup type claim." In Schlup v. Delo, the Supreme Court distinguished freestanding, substantive innocence claims — in which a petitioner asserts that her innocence entitles her to habeas relief — from procedural innocence claims — in which a petitioner seeks to "have [her] otherwise barred constitutional claim considered on the merits."
Because reasonable jurists would not disagree with, or even debate, the district court's rejection of petitioner's claims, we DENY her request for a COA.
