DAVID HITTNER, District Judge.
Arthur Lee Burton, an inmate on Texas' death row, has filed a petition seeking federal habeas corpus relief. (Docket Entry No. 1). Respondent Rick Thaler, Director of the Texas Department of Criminal Justice — Correctional Institutions Division, has filed an answer. (Docket Entry No. 5). After considering the record, the pleadings, and the applicable law, the Court will deny Burton's habeas petition. The Court will not certify any issue for appellate review.
On July 29, 1997, Nancy Adleman left her home shortly after 7:00 p.m. for a short run on her usual route which took her along a bayou near her home. She never returned. The next day, police officers found Mrs. Aldeman's brutally beaten body in a heavily wooded area near the bayou. She had been strangled with her own shoelace. Because she was naked from the waist down, the police suspected that she had been sexually assaulted.
Witnesses reported having seen a dirty and angry-looking man riding a bicycle along the bayou around the time when Ms. Aldeman had left to go jogging. Using the witnesses' description, the police released a composite sketch to the public, from which individuals recognized Burton. The police took Burton to the homicide office for questioning. Burton initially denied committing the murder. When the police confronted him with inconsistencies in his story, he confessed.
Burton described how he killed Ms. Aldeman after a failed sexual assault:
Tr. Vol. 29, State's Exhibit 2.
The State of Texas charged Burton with capital murder. Clerk's Record at 3. The
Burton appealed his conviction and sentence. During the pendency of Burton's appeal, he filed an initial state application for a writ of habeas corpus. The courts, however, took no immediate action on that application because the Texas Court of Criminal Appeals vacated Burton's death sentence on direct appeal. Burton v. Texas, No. 73,204 (Tex.Crim.App. March 7, 2001).
The State of Texas held a second punishment hearing in 2002. The Court of Criminal Appeals summarized the evidence adduced by the State as follows:
Burton v. Texas, No. 73,204, at 2-3, 2004 WL 3093226 (Tex.Crim.App. May 19, 2004). The State also emphasized that during a prison classification interview Burton stated that he killed the victim because it was "[j]ust something [he] couldn't help."
The defense presented evidence that Burton was remorseful for his crime. Witnesses also described Burton's difficult, poverty-ridden childhood. The defense emphasized that Burton had not acted violently since his incarceration. A jury again answered Texas' special issues unfavorably to Burton. Burton was sentenced to death a second time on September 6, 2002. The Court of Criminal Appeals affirmed the direct appeal from Burton's second punishment hearing.
The reversal of Burton's initial death sentence did not void his initial state habeas application insofar as it related to his capital conviction. During the pendency of his second direct appeal, Burton filed a second application for a writ of habeas corpus. On separate dates (March 10, 2006 and April 2, 2007), the lower habeas court signed the State's proposed findings and conclusions recommending that the
On November 7, 2007, the Court of Criminal Appeals entered two orders relating to Burton's state habeas applications. First, the Court of Criminal Appeals adopted all the findings and conclusions relating to Burton's initial application and denied relief on that action. Ex parte Burton, No. WR 64,360-02, 2007 WL 3292685 (Tex.Crim.App. Nov. 7, 2007).
This Court appointed counsel to represent Burton throughout his federal habeas proceedings. Burton filed a petition for a federal writ of habeas corpus raising the following grounds for relief:
Respondent has filed an answer arguing that Burton's claims do not merit habeas relief. (Docket Entry No. 5), Burton has filed a reply. (Docket Entry No. 7). Pursuant to court order, the parties have provided additional briefing. (Docket Entry Nos. 9, 12). This matter is now ripe for adjudication.
The writ of habeas corpus provides an important, but limited, examination of an inmate's conviction and sentence. See Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) ("[S]tate courts are the principal forum for
The AEDPA honors the traditional bounds of federal habeas review by requiring an inmate to provide the state courts with the first opportunity to adjudicate his constitutional challenges. See 28 U.S.C. § 2254(b)(1). Federal practice further limits review to those claims that an inmate presented in compliance with state procedural law. See Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004); Lambrix v. Singletary, 520 U.S. 518, 523, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997); Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). If an inmate fails to follow well-established state procedural requirements for attacking his conviction or sentence, and the state court hereby finds that he has defaulted consideration of any issues, a procedural bar forecloses federal review. See Lambrix, 520 U.S. at 523, 117 S.Ct. 1517; Coleman, 501 U.S. at 732, 111 S.Ct. 2546.
To the extent that the state courts considered the merits of Burton's claims, the AEDPA "bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions in [28 U.S.C] §§ 2254(d)(1) and (d)(2)." Richter, ___ U.S. at ___, 131 S.Ct. at 784. A federal court can only grant relief if "the state court's adjudication of the merits was `contrary to, or involved an unreasonable application of, clearly established Federal law.'" Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250, 2258, 176 L.Ed.2d 1098 (2010) (quoting 28 U.S.C. § 2254(d)(1)); see also Thaler v. Haynes, ___ U.S. ___, 130 S.Ct. 1171, 1174, 175 L.Ed.2d 1003 (2010); Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Early v. Packer, 537 U.S. 3, 7-8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The focus of this well-developed standard "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Thus, the AEDPA serves as a "guard against extreme malfunctions in the state criminal justice systems," not as a vehicle for error correction. Richter, ___ U.S. at ___, 131 S.Ct. at 786 (citation omitted); see also Wilson v. Cain, 641 F.3d 96, 100 (5th Cir.2011). "If this standard is difficult to meet, that is because it was meant to be." Richter, ___ U.S. at ___, 131 S.Ct. at 786.
The AEDPA's focus on the application of Supreme Court precedent complements the traditional non-retroactivity doctrine established in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Federal habeas review exists to enforce, not create, constitutional law. Teague bars federal habeas courts from creating "a new rule" of constitutional law, that is, federal courts cannot "break[] new ground," "impose[] a new obligation on the
With those standards in mind, the Court turns to Burton's grounds for relief.
Burton raises two claims relating to testimony from his second punishment hearing. While his direct appeal was still pending before the Court of Criminal Appeals, a prison employee interviewed Burton. The State called the employee during the second punishment phase to relay comments Burton made during that interview. Burton first claims that the introduction of the prison testimony violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel (claim one/Miranda
After his conviction and first death sentence, the State of Texas transferred Burton to death row. On October 8, 1998, J.P. Guyton, a prison sociologist,
Burton's classification interview resulted in information which the State would use at trial to prove his future danger to society. Burton told Mr. Guyton that, as a teenager, he both used and sold drugs. At issue in the instant proceeding, when Mr. Guyton asked the routine question: "Our records indicate that you did [the offense for which you were convicted]. Can you tell me why you did that?," Burton answered: "Just something I couldn't help." Tr. 2 Vol. 16 at 102.
The State provided defense counsel written notice of the intent to use Burton's statements to Mr. Guyton in the second punishment phase. The notice specifically mentioned Burton's admissions of marijuana use and drug sales. Clerk's Record 2 at 326. Trial counsel objected to Mr. Guyton's
The State called Mr. Guyton as its last trial witness. Mr. Guyton told the jury about Burton's admission to committing drug offenses and relayed his justification for the murder. The State's closing arguments repeatedly emphasized Burton's statement that the murder was "[j]ust something [he] couldn't help" to show his remorselessness and his inability to stop himself from killing again. The prosecution described that statement as "so harmful to [Burton]" because "[w]hat he is saying is `Yes, yes. There's a probability I'm going to do this again.' But we don't know why or when, we just know there's a probability because `it's just something I couldn't help.'" Tr. 2 Vol. 17 at 58-59.
Burton challenged Mr. Guyton's testimony both on appeal and on habeas review after his second punishment phase. How Burton raised his complaints and how the state court dealt with them will guide the course of federal review. In particular, application of the AEDPA's deferential standards requires a close review of the interplay between the state district court's recommendations and the Court of Criminal Appeals' decisions in this case.
Burton first challenged Mr. Guyton's testimony on direct appeal, alleging that the State violated his Fifth and Sixth Amendment rights because he did not receive Miranda warnings before the interview. Burton's appellate briefing, however, did not specify which portions of Mr. Guyton's testimony were problematic. Pointing to TEX.R.APP. P. 33.1 which requires that a party object "with sufficient specificity to make the trial court aware of the complaint," the Court of Criminal Appeals concluded that Burton's complaint about his reason for killing was not "preserved for appeal because [he] confined his [trial] objections to extraneous offenses." After finding that trial counsel had only preserved error "with regard to the admissibility of the two extraneous offenses mentioned during the interview," the Court of Criminal Appeals found no reversible error.
Burton's second state habeas action raised two complaints relating to Mr. Guyton's testimony. Burton's first claim (the Miranda claim) largely reiterated his appellate complaint that the introduction of Mr. Guyton's testimony violated his Fifth and Sixth Amendment rights. Second State Habeas Record at 21-35. On habeas review, however, Burton specified that the trial court should not have allowed Mr. Guyton to testify about why he killed.
Burton's second claim faulted trial counsel's representation under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for not sufficiently objecting to Mr. Guyton's testimony. Second State Habeas Record at 35-42. Burton complained that trial counsel should have objected to the testimony about why he killed. Trial counsel provided an affidavit explaining that he had intended to object to Mr. Guyton's testimony on that basis.
The state district court issued findings of fact and conclusions of law on March 10, 2006. As a preliminary matter, the state district court held that Burton defaulted his habeas Miranda claim because (1) he had litigated the challenge to the drug offenses on direct appeal and (2) trial counsel had not objected to his justification for the killing. The state district court's decision went on to discuss the merits of his Miranda and Strickland claims conjointly. Specifically, the state district court found that Mr. Guyton's interview did not amount to "custodial interrogation" for Miranda purposes. With that understanding, the state district court found no Miranda violation or Strickland error.
The Court of Criminal Appeals thereafter issued a succession of orders that have muddied the AEDPA's influence in this case. The Court of Criminal Appeals entered an order on November 7, 2007, stating that "[w]ith respect to [Burton's] allegations (1) [that is, the Miranda claim], (3), and (4), we have reviewed the record and adopt the trial judge's findings." The Court of Criminal Appeals, however, did not enter any judgment with regard to Burton's Strickland claim. Instead, the court stated: "we direct that this case be filed and set for submission[.]" Ex parte Burton, WR-64,360-01, 2007 WL 3289679 (November 7, 2007).
The State filed a motion for clarification of the November 7, 2007 order.
Respondent, however, still maintains that the AEDPA requires deference to the state district court's factual findings — at least with regard to the Miranda claim — primarily because the Court of Criminal Appeals "did not reject the findings of fact that it had previously adopted." (Docket Entry No. 9 at 7). The December 19, 2007 order, however, still leaves the prior adoption of many factual findings unclear. Because "an analysis of an ineffective assistance of counsel claim necessarily includes consideration of the underlying act or omission that gave rise to the allegedly deficient conduct," the Court of Criminal Appeals' December 19, 2007 order also required the parties to brief the following issues:
Ex parte Burton, No. AP-75,590 (Tex. Crim.App. Dec. 19, 2007). In other words, the Court of Criminal Appeals treated the state district court's primary finding — that there had not been a custodial interrogation — as if it were unresolved.
The parties subsequently provided additional briefing. Burton's briefing for the first time included an affidavit describing his version of the events surrounding the classification interview. Given his construction of the circumstances, Burton argued that he was "in custody" for Miranda purposes.
In a June 18, 2008 order, however, the Court of Criminal Appeals remanded the case to the state district court for additional fact finding. Two concerns drove the remand. First, the Court of Criminal Appeals had recently handed down a decision in Herrera v. State, 241 S.W.3d 520 (Tex. Crim.App.2007), a case dealing with Miranda's application in the prison setting.
The issues left open by the Court of Criminal Appeals involved the merits of Burton's Miranda claim, though they did not impact the procedural default of that claim. The December 19, 2007, order suggested that the Court of Criminal Appeals had not adopted any factual finding regarding whether the prison interview was a custodial interrogation, even though the state district court had decided that issue. The Court of Criminal Appeals, in effect, rejected the factual findings sub silentio. The findings of fact supporting the Miranda
On remand, the state district court ordered both parties to file any additional affidavits and any proposed findings. Second State Habeas Record at 150. The State submitted an affidavit from Robert Compton, an Assistant Intake Administrator for the Texas Department of Criminal Justice, giving additional details about the sociological interview for death row inmates. Second State Habeas Record at 153-56. Both parties submitted proposed findings.
The state district court's detailed factual findings extensively reviewed the prison classification process and Mr. Guyton's role therein. Observing that the interview was unrelated to the criminal process and Mr. Guyton was unauthorized to engage in law enforcement, the state district court found that the "classification interview does not constitute `custody' for Miranda purposes; that Miranda warnings were not required prior to the interview; and, that Guyton was not an agent of the State so that Miranda warnings were required." Second State Habeas Record at 191. In addition, Burton did not show that "he was in custody during the routine prison interview beyond his incarceration for purposes of his judgment and sentence for the instant offense." Second State Habeas Record at 192. Because Burton "fail[ed] to show that his prison interview constitutes custodial interrogation requiring Miranda warnings," the state district court found no deficient performance in trial counsel's failure to lodge an appropriate objection. Second State Habeas Record at 193-94.
The Court of Criminal Appeals again did not explicitly adopt those findings. Instead, the Court of Criminal Appeals reviewed the relevant procedural history and commented:
Ex parte Burton, No. AP-75,790, 2009 WL 874202 (Tex.Crim.App. Apr. 1, 2009) (footnote omitted). The parties debate which, if any, of the state district court's second round of findings and conclusions survived the Court of Criminal Appeals' review.
The Court will consider the procedural status and legal merit of Burton's Miranda and Strickland claims.
Burton's complaint that Mr. Guyton should have administered a Miranda warning comes before the Court under the limitations of federal habeas corpus review. The state habeas court found that Burton had procedurally defaulted his Miranda claim. If an inmate fails to follow well-established state procedural requirements for attacking his conviction or sentence, and the state court thereby finds
Judicial accommodation prevents a state procedural default from becoming an insurmountable barrier to federal review. The Supreme Court excuses a procedural bar if an inmate "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. 2546 (emphasis added). A petitioner shoulders the burden of overcoming this procedural hurdle. See McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Burton seems to allege that trial counsel's failure to make a proper objection should forgive the default of his Miranda claim. For the reasons that the Court discusses with regard to his Strickland claim, Burton has not shown that he can overcome the procedural default of his Miranda claim. The Court, therefore, will deny Burton's first ground for relief.
Burton claims that trial counsel rendered deficient performance by not making a specific-enough objection to Mr. Guyton's testimony. Under Strickland's two-pronged inquiry, "[t]o establish ineffective assistance of counsel `a defendant must show both deficient performance by counsel and prejudice.'" Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011)(quoting Knowles v. Mirzayance, 556 U.S. Ill, 122, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009)). "Surmounting Strickland's high bar is never an easy task[.]" Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). When the state courts have already adjudicated the merits of a Strickland claim, "[a] state court must be granted deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Richter, ___ U.S. at ___, 131 S.Ct. at 785. The AEDPA gives wide latitude to the state adjudication of a Strickland claim through a "doubly deferential judicial review." Knowles, 556 U.S. at 123, 129 S.Ct. 1411; see also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1410, 179 L.Ed.2d 557 (2011).
The Court of Criminal Appeals' rejection of Burton's Strickland claim focused on the deficient-performance prong. The parties have debated the application of AEDPA deference to the findings and conclusions the lower habeas court made in its various recommendations. The parties have extensively discussed whether the prison classification interview amounted to "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. The state district court's analysis tracked the traditional factors in a Miranda analysis, finding that (1) Mr. Guyton was not a law
The Court of Criminal Appeals found resolution of each underlying component of the Miranda inquiry unnecessary to a resolution of Burton's Strickland claim. Given federal habeas review's focus on the state courts' ultimate decision, "not every jot of its reasoning," Santellan v. Cockrell, 271 F.3d 190, 193-94 (5th Cir.2001), the Court likewise need not ferret out the tricky questions of whether the state district court's resolution of each Miranda factor merits AEDPA deference or was ultimately correct. The most important question is whether the Supreme Court's Miranda case law relating to prison inmates was sufficiently clear that the Court of Criminal Appeals was not objectively unreasonable in finding no deficient performance.
The convoluted and confusing procedural history in this case suggests that the Court of Criminal Appeals was troubled by the question of whether a Miranda warning was required before portions of Mr. Guyton's interview. Nevertheless, no Strickland deficient performance occurs when trial counsel fails to raise an objection based on "unsettled" law. Givens v. Cockrell, 265 F.3d 306, 310 (5th Cir.2001); Sharp v. Johnson, 107 F.3d 282, 289-90 (5th Cir.1997); see also Jones v. United States, 224 F.3d 1251, 1258 (11th Cir.2000) ("[W]e are not prepared to say categorically that counsel's failure to [preserve an argument] constituted prejudicial, ineffective nonfeasance while the law was still unsettled."); Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir.1999) ("[T]he rule that an attorney is not liable for an error in judgment on an unsettled proposition of law is universally recognized[.]") (quotation omitted). Trial counsel cannot be faulted for not objecting when the law "was conceptually amorphous and unsettled at the time of ... conviction and appeal." Sharp, 107 F.3d at 290.
Neither the law nor the facts establish that trial counsel could have successfully lodged a Miranda objection. At the time of trial, the law concerning Miranda's influence in the prison setting was unclear. Burton argues that trial counsel should have relied on Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), to argue that he was "`in custody' for the purposes of custodial interrogation found in Miranda" (Docket Entry No. 1 at 20). The Supreme Court in Mathis found that an inmate serving a prison sentence for one crime was "in custody" when a known state agent interrogated him in prison about another, unrelated crime. Mathis, however, is not dispositive to the question before the state courts in this case. The "holding in Mathis is simply that a prisoner who otherwise meets the requirements for Miranda custody is not taken outside the scope of Miranda" when "[a] criminal investigation had not been commenced at the time of the interview, and the prisoner was incarcerated for an unconnected offense." Howes v. Fields, ___ U.S. ___, 132 S.Ct. 1181, 1188, 182 L.Ed.2d 17 (2012). To date, the Supreme Court has not held that Miranda rights are triggered simply because an individual is incarcerated. See Maryland v. Shatzer, ___ U.S. ___, 130 S.Ct. 1213, 1224, 175 L.Ed.2d 1045 (2010); see also Wilson, 641 F.3d at 101 ("[T]he mere fact
The law otherwise did not provide a definitive answer to the specific issues addressed by the lower habeas court, whether Burton was in custody and whether Mr. Guyton was acting as a law enforcement officer. The Supreme Court has "never decided whether incarceration constitutes custody for Miranda purposes, and has indeed explicitly declined to address the issue." Shatzer, ___ U.S. at ___, 130 S.Ct. at 1224. The Supreme Court had clarified before Burton's trial that "[t]he bare fact of custody may not in every instance require a warning even when the suspect is aware that he is speaking to an official." Illinois v. Perkins, 496 U.S. 292, 299, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). The law did definitively show that Burton was in custody during the classification interview.
In addition, the law at the time of trial did not definitively designate Mr. Guyton a state agent — that is, acting as the equivalent of a law-enforcement official — when he performed the classification interview. The Supreme Court has never held that a prison employee performing duties unrelated to law enforcement must deliver Miranda warnings. See Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (reiterating that Miranda "laid down `concrete constitutional guidelines for law enforcement agencies and courts to follow'") (emphasis added). The Fifth Circuit has refused to extend Mathis to individuals not serving in a law-enforcement capacity. See Powell v. Quarterman, 536 F.3d 325, 343 (5th Cir. 2008); United States v. Borchardt, 809 F.2d 1115, 1118 (5th Cir.1987).
Texas law has likewise held that "a state employee must be acting as an agent of law enforcement pursuant to a police practice before the safeguards attendant to custodial interrogation come into play. Only under those circumstances do non-law enforcement personnel become agents of the State for purposes of distinguishing custodial interrogation from non-custodial interrogation." Paez v. State, 681 S.W.2d 34, 37 (Tex.Crim.App.1984); see also Cates v. State, 776 S.W.2d 170, 173 (Tex.Crim.App.1989) (limiting Miranda's impact to someone acting as "an agent of law enforcement in the State of Texas"). A Miranda warning is only necessary when a state actor "deliberately elicits incriminating statements from an in-custody defendant solely for the purpose of helping the police gather evidence against the defendant." Escamilla v. State, 143 S.W.3d 814, 824 (Tex.Crim.App.2004). Also, the Court of Criminal Appeals has found no Miranda warning necessary when the interview was not "in connection with [the] offense" for which he had been convicted, particularly when the interview occurred after trial. Jenkins v. State, 912 S.W.2d 793, 811 (Tex.Crim.App.1993). Given Texas law, Burton has not shown that trial counsel could have made a strong objection based on Miranda.
Given the unsettled nature of federal and state law relating to Miranda's influence on prison interviews, the Court of Criminal Appeals was not unreasonable for finding no error in trial counsel's failure to object. Regardless of the integrity of the state district court's specific findings about the substantive Miranda claim, Burton has not shown that the Court of Criminal Appeals' ultimate conclusion of no Strickland deficient performance was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Burton has also failed to show Strickland prejudice. To meet Strickland's prejudice prong, Burton must prove the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. at 694, 104 S.Ct. 2052. When a petitioner alleges prejudice from trial counsel's failure to raise an objection, he "must show there was a reasonable probability that the trial court would have granted it, or would have reversibly erred by refusing it." Amos v. Thornton, 646 F.3d 199, 209 (5th Cir.2011) (quotation omitted); see also Kimmelman v. Morrison, All U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) ("[A] meritorious ... issue is necessary to the success of a Sixth Amendment claim[.]"), United States v. Flores-Ochoa, 139 F.3d 1022, 1024 (5th Cir.1998) (determining that a defendant cannot show that he was prejudiced where "there is no evidence that the court would have granted the motion."); Wilson v. Henry, 185 F.3d 986, 990 (9th Cir.1999) (finding that Strickland's prejudice inquiry requires a petitioner to show that (1) had his counsel filed the motion, it is likely that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is likely that there would have been an outcome more favorable to him).
Furthermore, Burton has not shown that the jury would have responded differently had Mr. Guyton omitted the challenged statement from his testimony. Another jury had already given Burton a death sentence without knowing why he killed. While included in the prosecutor's closing, the statement was far from the only indication of Burton's violence or remorselessness. The jury already had substantial evidence of Burton's lawlessness including his commission of numerous burglaries. Burton wantonly destroyed property during those burglaries. The jury knew that Burton used and sold drugs. Finally, the circumstances of the murder strongly supported a death sentence. As the Court of Criminal Appeals observed in the context of Burton's sufficiency-of-the-evidence claim on direct appeal:
Burton v. State, No. AP-73,204 at 4, 2004 WL 3093226 (Tex.Crim.App. May 19, 2004). Because the jury already had before it substantial information that would justify a death sentence, Burton has not shown a reasonable probability of a different result had counsel made the objection he emphasizes on federal review.
Perhaps a zealous attorney would have challenged Mr. Guyton's testimony for the reasons Burton outlines in his federal habeas petition. Burton, however, has not shown that the state habeas court was unreasonable or wrong in denying his Strickland claim. The Court, therefore, will deny his second ground for relief.
Burton raises two claims arguing that the Constitution should allow a criminal defendant to give a statement of allocution free from cross-examination. A statement of allocution is "[a]n unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence." BLACK'S LAW DICTIONARY 83 (8th ed.2004). Burton complains that the trial counsel did not let him express remorsefulness to the jury without being subjected to the rigors of cross-examination.
Before the second punishment phase, Burton filed a "Motion to Introduce the Defendant's Statement of Allocution, Free From Cross-Examination by the State, Reflecting His Remorse for the Offense." Clerk's Record 2 at 355. The trial court denied that motion. Clerk's Record 2 at 364. After the State rested its case in the second punishment phase, Burton reurged his motion. Tr. 2 Vol. 16 at 108-09. Trial
In Burton's second state habeas action, he again set forth a constitutional right to present a personal statement of remorse without being subject to cross-examination. Burton also faulted his appellate attorney for not raising the allocution issue on direct appeal. The state habeas court found that Burton procedurally defaulted his right-to-allocution claim by not raising it on direct appeal. Second State Habeas Record at 130.
In the alternative, the state habeas court found no error in the denial of his trial motions. Second State Habeas Record at 131. The state habeas court found that "a defendant who takes the stand as a witness is subject to cross-examination and impeachment in the same manner as any other witness." Second State Habeas Record at 128. Accordingly, appellate counsel did not provide deficient representation by not raising the issue on direct appeal. Further, the state habeas court found that any error did not harm Burton because the senselessness and brutality of the murder would have eclipsed any statement of remorse. Second State Habeas Record at 131-32.
Burton's federal habeas petition again raises his allocution claim and the related ineffective-assistance-of-appellate-counsel issue. Burton's federal habeas petition recognizes that neither the Texas state nor the federal courts have found a constitutional right for a defendant to testify without being subjected to cross-examination. (Docket Entry No. 1 at 50-51). Burton argues that recent developments in other States, and the federal constitution's heightened protection for mitigating evidence, should allow the creation of a new constitutional right to express remorse.
Long-standing limitations on federal habeas review prevent this Court from granting relief. Burton does not complain that the trial court or trial counsel prevented him from taking the stand. The record indicates that nothing impaired Burton's ability to provide testimony in his own behalf. His complaint is that the fear of cross-examination hindered his ability to express remorse to the jury. The Fifth Circuit, however, has explicitly held that "a criminal defendant in a capital case does not possess a constitutional right to make an unsworn statement of remorse before the jury that is not subject to cross-examination." United States v. Hall, 152 F.3d 381, 396 (5th Cir.1998), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000); see also United States v. Jackson, 549 F.3d 963, 980 (5th Cir. 2008). Because the Constitution does not
Similarly, Burton's fourth ground for relief fails. Given the lack of a firm legal basis for his argument, appellate counsel cannot have provided unconstitutionally infirm representation in not advocating the creation of a right to allocution. Accordingly, the Court denies Burton's third and fourth federal habeas claims.
Burton's fifth claim asserts that he is actually innocent. Burton makes a threepronged attack on the evidence proving his guilt. Burton relies on: (1) new evidence suggesting that the victim died significantly before the time the State alleged at trial; (2) an affidavit in which a trial witness recanted his testimony; and (3) allegations that the police coerced Burton's confession. Taking those arguments together, Burton alleges that the due process clause prevents his execution for a crime he did not commit.
A person who stands trial enjoys a presumption of innocence, and the State must prove his guilt beyond a reasonable doubt. "Society's resources have been concentrated at [a criminal trial] in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens." Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); see also McFarland v. Scott, 512 U.S. 849, 859, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (stating that a "criminal trial is the `main event' at which a defendant's rights are to be determined"). But "[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears." Herrera v. Collins, 506 U.S. 390, 399, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Thus, by the time an inmate invokes federal habeas jurisdiction he "comes before the habeas court with a strong — and in the vast majority of the cases conclusive — presumption of guilt." Schlup v. Delo, 513 U.S. 298, 326, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); see also Herrera, 506 U.S. at 399-400, 113 S.Ct. 853 (stating that a petitioner "does not come before the Court as one who is `innocent,' but, on the contrary, as one who has been convicted by due process of law"); Bosley v. Cain, 409 F.3d 657, 664 (5th Cir.2005) ("[T]here is no presumption of innocence at a habeas proceeding.").
The Supreme Court has not accepted actual innocence as a cognizable ground for federal habeas corpus relief. In Herrera, the Supreme Court stated that "[c]laims 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." 506 U.S. at 400, 113 S.Ct. 853. Similarly, in Schlup, the Supreme Court again noted that a petitioner's "claim of innocence does not by itself provide a basis for relief." 513 U.S. at 315, 115 S.Ct. 851. Following that reasoning, the Fifth Circuit has repeatedly and unequivocally held that the Constitution does not endorse an independent actual-innocence ground for relief. See Kinsel v. Cain, 647 F.3d 265, 270 n. 20 (5th Cir. 2011); Foster v. Quarterman, 466 F.3d 359, 367 (5th Cir.2006); Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir.2003); Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000); Graham v. Johnson, 168 F.3d 762, 788 (5th Cir.1999); Robison v. Johnson,
Even assuming that actual innocence constitutes an actionable basis for habeas relief, Burton has not made a strong showing of innocence. Unlike federal law, Texas law recognizes an inmate's innocence as a ground for relief. See Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim. App.1996); State ex rel. Holmes v. Court of Appeals for the Third District, 885 S.W.2d 389 (Tex.Crim.App.1994). When Burton asserted his innocence in his initial state habeas application, the state habeas court exhaustively addressed each portion of Burton's actual-innocence argument.
With regard to the first factor, the state habeas court found each component of Burton's actual-innocence argument unpersuasive. In specific, the state habeas court observed:
As a second thrust of its decision, the state habeas court found that strong evidence supported Burton's conviction. The state habeas court pointed to forensic evidence linking Burton to the crime. Significant evidence corroborated inmate testimony that incriminated Burton. Most importantly, trial testimony proved that Burton had voluntarily confessed.
In short, the state habeas court found Burton's actual-innocence argument unpersuasive. Given the deference this Court must pay state habeas decisions under the AEDPA, Burton has not made strong showing that he could succeed if an actual innocence ground for relief existed. The Court, therefore, denies relief on Burton's fifth claim.
The AEDPA prevents appellate review of a habeas petition unless the district or circuit courts certify specific issues for appeal. See 28 U.S.C. § 2253(c); FED. R.APP. PRO. RULE 22(b). Burton has not yet requested that this Court grant him a Certificate of Appealability ("COA"), though this Court can consider the issue sua sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). A court may only issue a COA when "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Clear and binding precedent forecloses relief on Burton's claims. Under the appropriate standard, Burton has not shown that this Court should authorize appellate consideration of any claim. This Court will not certify any issue for review by the Fifth Circuit.
For the reasons described above, the Court finds that Burton has not shown an entitlement to federal habeas relief. This Court
The Court
Prior to trial, I was made aware of the proposed testimony at trial of a Mr. J.P. Guyton, an employee of the Texas Department of Criminal Justice, who had conducted an interview with Mr. Burton at the Ellis Unit on October 8, 1998, shortly after he was originally sentenced to death. I was aware that the interview was conducted without counsel and the information elicited from Mr. Burton at that interview would seriously damage him at his second trial on punishment. That is why I objected to its admission outside the presence of the jury.
I was of the opinion that my objection was specific and had received a specific ruling. If the Court contends that I did not make the objection specific enough, or did not receive a specific enough ruling, and thus resulted in a waiver, it was not trial strategy.
Second State Habeas Record at 70. Burton also supported his claim with an affidavit from his first appellate attorney attesting that, had she known that the State would use the results of the classification interview against Burton, she would have cautioned him not to participate in the interview without her being present. Second State Habeas Record at 67-68.
