FRED BIERY, Chief Judge.
Petitioner Ray Jasper, III, filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 collaterally attacking his January, 2000, Bexar County conviction for capital murder and sentence of death. For the reasons set forth below, petitioner is not entitled to federal habeas corpus relief from this Court but is entitled to a Certificate of Appealability on his Batson claim herein.
There is no genuine dispute as to the operative facts of petitioner's offense. Petitioner signed a detailed written statement confessing his role in the robbery and murder of music producer David Alejandro on the night of November 29, 1998.
The undisputed facts are: (1) petitioner informed his girlfriend Christina Breton that he and some friends planned to rob David Alejandro,
On June 1, 1999, a Bexar County grand jury indicted petitioner in cause no. 1999-CR-2645-A on a charge of capital murder: intentionally causing the death of David Alejandro by stabbing him with a deadly weapon, i.e., a knife, while in the course of committing and attempting to commit the offense of robbing David Alejandro.
The guilt innocence phase of petitioner's capital murder trial began on January 11, 2000.
In addition to the facts summarized above, the jury heard evidence from the prosecution which established: (1) the many items of electronic equipment and other property found by police inside the vehicles driven to the crime scene by petitioner and his accomplices belonged to David Alejandro,
After the prosecution rested, the defense called one witness, a San Antonio Police officer who had previously mentioned in his trial testimony that he had sketched the exterior crime scene, i.e., the parking lot outside David Alejandro's studio, who now testified he could no longer locate his sketch of the exterior of the crime scene.
On January 18, 2000, after deliberating less than ninety minutes, the jury returned its verdict, finding petitioner guilty of capital murder beyond a reasonable doubt.
The punishment phase of petitioner's capital murder trial began on the same day the jury returned its verdict at the guilt-innocence phase of trial.
The prosecution presented witnesses who testified: (1) petitioner had been found in possession of marijuana while on school property,
Petitioner's trial counsel called several character witnesses, including petitioner's parents and pastor and a Bexar County Adult Detention Center classification officer who testified: (1) petitioner was a very smart young man, a natural leader, who since his arrest had begun to listen to spiritual things, to align himself with Christ and make frequent contact with his family's congregation,
Dr. John C. Sparks testified: (1) he had evaluated petitioner for competence and
Petitioner's trial counsel then called petitioner to testify and the following exchange occurred:
After the defense rested and the prosecution closed, petitioner's trial counsel were permitted to recall petitioner to the stand, at which time the following transpired:
BY MR. REECE:
BY MR. MULLINER:
BY MR. REECE:
On January 20, 2000, after deliberating less than three hours, petitioner's jury returned its verdict at the punishment phase of trial finding: (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society, (2) beyond a reasonable doubt the petitioner actually caused the death of the deceased or, if he did not cause the death of the deceased, petitioner intended to kill the deceased or another or anticipated that a human life would be taken, and (3) taking into consideration all of the evidence, including the circumstances of the offense, the petitioner's character, background, and personal moral culpability, there were insufficient mitigating circumstances
Petitioner appealed.
Petitioner filed an application for state habeas corpus relief on September 4, 2001, raising more than thirty claims, including a multi-faceted assertion of ineffective assistance by his trial counsel.
The state habeas trial court held an evidentiary hearing on May 18, 2005. Petitioner's trial counsel testified during that hearing as follows: (1) they had not advised petitioner to testify at either phase of trial but, rather, had explained to petitioner his right to testify if he wished to do so, (2) petitioner's repeated denials of any responsibility for the death of David Alejandro came as a surprise to them because that was not what they had discussed with petitioner prior to petitioner taking the stand, (3) petitioner's punishment phase testimony hurt the petitioner's chances for obtaining a life, sentence, (4) they went over petitioner's written statement to police with petitioner and he never asserted to them there were any factual errors in said statement, (5) they discussed with petitioner his right to testify and counseled petitioner about the pitfalls of testifying on his own behalf, and (6) in hindsight, it would have been better if petitioner had not testified.
Petitioner's parents testified during the state habeas hearing that, had they been permitted to do so, they would have testified at the punishment phase of petitioner's capital murder trial that: (1) petitioner was not a murderer, (2) it was a teacher's fault petitioner dropped out of school, (3) petitioner was a "typical boy" who simply "got mixed up," and (4) their son was not guilty of murder because "he's not that type of person."
In an Order issued October 11, 2007, the state habeas trial court concluded petitioner had not satisfied the standard for establishing ineffective assistance by petitioner's trial counsel and recommended denial of petitioner's state habeas corpus application.
On July 31, 2009, petitioner filed his federal habeas corpus petition herein, asserting fourteen claims for relief. Docket entry no. 10. Respondent filed his answer on November 19, 2009. Docket entry no. 14. Petitioner filed a reply on February 12, 2010. Docket entry no. 18.
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, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (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 Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). Under the "contrary to" clause, a federal habeas court may grant relief if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1438; Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (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 state-court decisions contradicts them.'" Mitchell v. Esparza, 540 U.S. at 16, 124 S.Ct. at 10.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1439; Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (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, ___ U.S. ____, 130 S.Ct. 665, 673, 175 L.Ed.2d 582 (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, 123 S.Ct. at 2535. 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, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007) ("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold."); Wiggins v. Smith, 539 U.S. at 520, 123 S.Ct. at 2535; Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (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").
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, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (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.'");
The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) of Title 28, United States Code 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, ___ U.S. ____, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (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, 120 S.Ct. at 1522 ("[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, ___ U.S. at ____, 130 S.Ct. at 849; Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 976, 163 L.Ed.2d 824 (2006).
In addition, Section 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74, 127 S.Ct. at 1939-40 ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with `clear and convincing evidence.'"); Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (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, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (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 time 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, ___ U.S. at ____, 130 S.Ct. at 849 (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, 126 S.Ct. at 974 (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, 125 S.Ct. at 2325 (the standard is "demanding but not insatiable"); Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (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.").
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 St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir.2006) (holding Section 2254(d) permits a federal habeas court to
In his first claim, petitioner argues his constitutional rights recognized in the Supreme Court's holding in Batson v. Kentucky were violated when the prosecution used a peremptory challenge to strike an African-American venire member named Vernon Galloway.
As is often the case in complex litigation, petitioner's venire members were each presented with a lengthy written questionnaire which they completed. Counsel for all parties and the state trial court reviewed the questionnaire answers with the venire members during the subsequent individual voir dire of the venire panel members. For unknown reasons, petitioner's state appellate counsel did not designate the venire members' questionnaires as part of the record on direct appeal.
The individual voir dire of venire member Vernon Galloway took place on November 30, 1999.
After offering a brief summary of the Texas capital sentencing special issues, the prosecutor began focusing on Mr. Galloway's questionnaire answers:
After attempting to explain the State's burden of proving petitioner's guilt beyond a reasonable doubt,
After the prosecutor asked Mr. Galloway a question about aircraft engines, counsel for both parties indicated they had no further questions.
having being [sic] first duly sworn, testified as follows:
Petitioner raised a claim complaining about the state trial court's failure to sustain his Batson objection to the prosecution's peremptory strike of Mr. Galloway as point of error number four in petitioner's appellant's brief.
Jasper v. State, 61 S.W.2d 413, 422 (Tex. Crim.App.2001) (citations omitted).
Petitioner re-urged his Batson claim regarding venire member Galloway as his eleventh ground for relief in petitioner's state habeas corpus application.
It is well-settled that a State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded. See Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 306-08, 25 L.Ed. 664 (1880) (striking down as a violation of the Equal Protection Clause a state statute barring blacks from service on juries). In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court extended this principle to the prosecution's use of peremptory challenges during petit jury selection. See Batson v. Kentucky, 476 U.S. at 89, 106 S.Ct. at 1719 ("the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.").
Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: first, the defendant must make out a prima facie case of discriminatory jury selection by the totality of the relevant facts concerning a prosecutor's conduct during the defendant's own trial; second, once the defendant makes the prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging jurors within the arguably targeted class; and finally, the trial court must determine if the defendant established purposeful discrimination by the prosecution. Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008); Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 2324-25, 162 L.Ed.2d 196 (2005); Batson v. Kentucky, 476 U.S. at 94-98, 106 S.Ct. at 1721-24.
With regard to the first step, i.e., establishing a prima facie case, the Supreme Court has described that process as follows:
Batson v. Kentucky, 476 U.S. at 96, 106 S.Ct. at 1723 (citations omitted).
With regard to the second step, i.e., the prosecution's burden of presenting a neutral reason for the peremptory challenge, the Supreme Court has noted that, while there are any number of bases on which a prosecutor reasonably might believe it is desirable to strike a venire member who is not excused for cause, the prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the peremptory challenge. Miller-El v. Dretke, 545 U.S. at 239, 125 S.Ct. at 2324; Batson v. Kentucky, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20.
Miller-El v. Dretke, 545 U.S. at 252, 125 S.Ct. at 2332.
With regard to the third and final step in the Batson process, the Supreme Court has emphasized the critical role of the trial court in evaluating the prosecutor's credibility. Snyder v. Louisiana, 552 U.S. at 477, 128 S.Ct. at 1208.
Miller-El v. Cockrell, 537 U.S. 322, 338-339, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003).
In considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted and considered. Snyder v. Louisiana, 552 U.S. at 478, 128 S.Ct. at 1208. In several recent opinions, the Supreme Court has examined a wide array of factors in resolving Batson claims. See, e.g., Snyder v. Louisiana, 552 U.S. at 480-85, 128 S.Ct. at 1209-1212 (holding a prosecutor's proffer of a pretextual explanation regarding the struck venire member's scheduling conflicts, which were significantly less imposing than those of a white venire member whom the prosecutor accepted, permitted an inference of discriminatory intent); Miller-El v. Dretke, 545 U.S. at 240-66, 125 S.Ct. at 2325-40 (citing the prosecutor's differential questioning of black and white venire members
In an attempt to apply his Batson claim regarding venire member Galloway into the reasoning employed by the United States Supreme Court in its recent Miller-El and Snyder decisions, petitioner argues the prosecution employed a different standard with regard to white venire members and Mr. Galloway. More specifically, petitioner complains: (1) Vernon Galloway gave some answers that were favorable to the prosecution, (2) Vernon Galloway retracted most of his questionable questionnaire answers during the individual voir dire, (3) the state trial court made no express credibility findings regarding the prosecution's reliance on Vernon Galloway's demeanor, (4) the prosecution also struck the only other Black venire member, and (5) various non-Black venire members were accepted by the prosecution despite the fact they gave an answer on their juror questionnaires that was the same as, or similar to, one given by Mr. Galloway on his questionnaire.
Contrary to the insistence of petitioner's trial counsel, Mr. Galloway was not the only Black member of the jury venire. According to the state trial court, venire member Natasha Hagans was also Black.
Ms. Hagans' potential bias against the prosecution was open and obvious. She had been involved romantically with a person she knew was dealing drugs. She candidly admitted to having strong suspicions and negative feelings toward police officers. Because this case involved petitioner giving a written confession to a police officer which petitioner later recanted, the state trial court could have reasonably concluded the prosecution had legitimate, non-racial reasons for concluding Ms. Hagans' suspicions about police officers might make her a poor juror from the prosecution's perspective. Thus, the state trial court could reasonably have believed Ms. Hagans' strike by the prosecution did not evidence a pattern of discriminatory use of peremptory challenges during petitioner's voir dire and did not render the strike of Mr. Galloway a violation of the principles announced in Batson.
This Court has independently reviewed the voir dire examination of venire members Felipe Flores, Gloria Salazar, Jimmy Lazarin, Debra Uecker, Diane Laramie, and Teresa Sauceda and finds none of these venire members furnished the same or a similarly wide array of questionnaire answers or oral testimony during individual voir dire as antithetical to the death penalty as did Mr. Galloway in his questionnaire answers.
Mr. Flores was asked only one question during individual voir dire about his questionnaire answers, to which he replied he had been confused by the wording of the particular question and did not understand same, which answer the prosecutor accepted.
Venire member Gloria Salazar testified so persistently about her reluctance to impose the death penalty the prosecution moved to strike her for cause.
Venire member Jimmy Lazarin did answer one question on his juror questionnaire similar to Mr. Galloway—they each indicated a belief the death penalty is occasionally imposed wrongly or unfairly.
Like Mr. Galloway, Debra Uecker did answer one questionnaire answer to the effect that, while she believed the death penalty was appropriate in some cases, she could not vote to impose it herself.
Like Mr. Galloway, Diane Laramie gave one questionnaire answer to the effect that, while she believed the death penalty was appropriate in some cases, she could not vote to impose it herself.
Neither party questioned venire member Teresa Sauceda during voir dire about her questionnaire answers specifically.
This Court's independent review of the voir dire of all the venire members reveals no instances in which Black venire members were questioned in a manner dramatically different from the questioning of venire members of other ethnic groups. Unlike the situation in Miller-El, there does not appear to have been an blatant use of graphic voir dire questions about the process of carrying out an execution in Texas at the commencement of voir dire for Black venire members. Nor did this Court identify anything else that was different about the way the prosecution chose to conduct voir dire of Black venire members, as opposed to non-Black venire members. The state trial court could reasonably have concluded there was nothing about the prosecution's questioning of the jury venire as a whole which supported a finding the strike of Mr. Galloway was racially motivated.
As a review of Vernon Galloway's voir dire examination detailed above reflects, Mr. Galloway gave a number of answers on his juror questionnaire which raised red flags in the mind of the prosecution. Among those questionnaire answers were statements indicating a suspicion about the efficacy of the death penalty, as well as Mr. Galloway's own doubts as to his ability to vote to impose the death penalty. Mr. Galloway also furnished an array of inconsistent responses to voir dire questions from both the prosecution and defense counsel about the relevant burden of proof
The prosecution focused its voir dire examination of Mr. Galloway on a host of questionnaire answers that appeared to reflect a rather significant bias against the death penalty on Mr. Galloway's part. When Mr. Galloway gave oral voir dire answers different from his questionnaire answers, the prosecutor expressed skepticism about the validity of Mr. Galloway's expressed explanation for those differences. Specifically, the prosecutor pointed out to the trial judge, and the defense counsel made no effort to refute, that there was no time constraint placed on the venire members' completion of their juror questionnaires. The prosecutor also expressed concern over Mr. Galloway's statement in his questionnaire answers that friends might describe Mr. Galloway as "crazy." The prosecutor took little solace in Mr. Galloway's explanation that this meant he (Galloway) was a jokester. In so doing, the state trial court could have reasonably believed the prosecution identified a number of legitimate, race-neutral reasons for exercising a peremptory challenge against Mr. Galloway.
The prosecutor also identified two factors relating to Mr. Galloway's demeanor as race-neutral justifications for striking Mr. Galloway: the gold-hoop earring worn by the male, fifty-something venire member and Mr. Galloway's hesitation in answering when responding to a defense counsel question inquiring whether Mr. Galloway had any problems with the death penalty.
By identifying a member of an identified ethnic group whom petitioner claimed the prosecution was seeking to exclude on racial grounds, the petitioner made a prima facie case sufficient to satisfy the first prong of Batson analysis. See Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986) (the defendant first must show he is a member of a cognizable racial group, and the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race).
The prosecution gave a clear and reasonably specific explanation of his legitimate reasons for exercising the peremptory challenge against Mr. Galloway. Thus, the burden shifted back to the defendant to establish purposeful discrimination by the prosecution. Unlike the situations in Snyder and Miller-El, there was nothing implausible about the prosecution's proffered reasons for striking Mr. Galloway. There is no genuine dispute over the fact Mr. Galloway's questionnaire answers did express reservations about the efficacy of the death penalty, as well as Mr. Galloway's own ability to vote to impose a death
Furthermore, there does not appear to be any dispute Mr. Galloway gave a number of opinions regarding the efficacy of the death penalty which were not shared by the vast majority of the venire members whom the prosecution found acceptable to serve on petitioner's jury. Unlike in Miller-El, the prosecution did not appear to engage in differential voir dire questioning of petitioner's venire members along racial or ethnic lines. The prosecution appeared to question every member of the jury venire who gave any questionable answers on their juror questionnaires regarding their views on the efficacy of the death penalty in a similar, open-ended manner.
Almost at the outset of his individual voir dire, Mr. Galloway sua sponte observed he did not feel comfortable playing "the role of God." Given his many questionnaire answers reflecting a bias against the death penalty and his explanation for his widely divergent voir dire answers, the state trial court could reasonably have found credible the prosecutor's expressions of fear Mr. Galloway was concealing a bias against the death penalty sufficient to warrant a peremptory strike. As this Court has noted on prior occasions, selecting a jury is more art than science. Martinez v. Dretke, 426 F.Supp.2d 403, 461 (W.D.Tex. 2006), CoA denied, 270 Fed.Appx. 277 (5th Cir.2008); Salazar v. Dretke, 393 F.Supp.2d 451, 495 (W.D.Tex.2005), aff'd, 260 Fed.Appx. 643 (5th Cir.2007), cert. denied, 554 U.S. 922, 128 S.Ct. 2963, 171 L.Ed.2d 893 (2008).
In addition, Mr. Galloway's appearance apparently did include one race-neutral aspect the defense did not challenge during the relevant Batson hearing—the fact Mr. Galloway wore a gold-hoop earring to a state judicial proceeding. While not all expressions of individuality in terms of personal appearance rise to the level of a legitimate justification for exercising a peremptory strike, given Mr. Galloway's many written reservations about the efficacy of the death penalty and his less than convincing explanation of the reasons for his vastly different oral voir dire opinions on the same subjects, the state court could have reasonably concluded the prosecutor's strike of Mr. Galloway was race-neutral. See Romero v. Lynaugh 884 F.2d 871, 878 (5th Cir.1989) ("The selection of a jury is inevitably a call upon experience and intuition. The trial lawyer must draw upon his own insights and empathetic abilities."), cert. denied, 494 U.S. 1012, 110 S.Ct. 1311, 108 L.Ed.2d 487 (1990).
The Texas Court of Criminal Appeals' rejection on the merits, in the course of petitioner's direct appeal of petitioner's
In addition, the prosecutor testified during the relevant Batson hearing he found Mr. Galloway's oral explanations for the vast discrepancy between Mr. Galloway's written questionnaire answers regarding Mr. Galloway's opinions on the death penalty and Mr. Galloway's oral answers during voir dire to raise concern. This Court does not disagree with the prosecutor's skepticism regarding the legitimacy of Mr. Galloway's claims that he felt "rushed" or "hurried" when completing his written questionnaire. Likewise, the prosecutor's reference to Mr. Galloway's gold-hoop earring furnished a race-neutral basis for the prosecution's suspicions about this particular venire member's fitness to serve as a juror in a capital murder trial. Even disregarding the prosecutor's reliance on Mr. Galloway's demeanor, a subject the state trial court chose not to specifically address in its findings, there was ample evidentiary basis before the state trial court to believe the prosecutor's race-neutral justifications for striking Mr. Galloway were sincere and fully credible.
Furthermore, unlike the situations in Snyder and Miller-El, petitioner herein has not identified any other venire members who gave a plethora of questionnaire answers similar to Mr. Galloway's (which doubted the efficacy of the death penalty) who were accepted by the prosecution. Simply put, there is no evidence before this Court (possibly because petitioner failed to present this Court with the venire members' juror questionnaires) suggesting the prosecution accepted any other venire members who were truly similarly situated with Mr. Galloway. Answering a single questionnaire question in the same manner as Mr. Galloway did not place other members of the venire in the same posture as did Mr. Galloway's numerous answers questioning the efficacy of the death penalty. As the state trial court noted during the voir dire examination of many venire members, no one wants to be placed in the posture of having to determine the fate of a fellow human being. None of the other venire members, however, expressed their reluctance to serve on petitioner's petit jury in quite the same way as did Mr. Galloway, who volunteered that he did not wish to play God.
Petitioner's complaint about the striking of venire member Ms. Hagans lends no support to petitioner's assertion Mr. Galloway's strike was racially motivated. Ms. Hagans' bias against law enforcement was amply demonstrated during her voir dire examination. Ms. Hagans expressed open distrust of law enforcement resulting from what she felt was the unjust jailing of her younger brother and the failure of the police to solve the murders of several of her friends when she was a teenager, and testified she had borne a child to a man she knew to be an unrepentant crack dealer. It would not be reasonable for a prosecutor
This Court has also found no evidence the prosecution employed differential questioning of venire members along racial or ethnic lines during the voir dire process in petitioner's trial. On the contrary, the prosecution consistently used open-ended questions to elicit the venire members' feelings about the death penalty without resorting to the selective use of graphic descriptions of the actual execution process in Texas found significant in Miller-El.
For the foregoing reasons, petitioner's Batson claim does not warrant relief under the AEDPA.
In his sixth claim, petitioner argues there was insufficient evidence to support the jury's affirmative answer to the first Texas capital sentencing special issue, i.e., the jury's finding there was a probability the petitioner "would commit criminal acts of violence that would constitute a continuing threat to society."
Petitioner's jury answered the first capital sentencing special issue affirmatively.
Petitioner raised the same claim as point of error three in his direct appeal.
Jasper v. State, 61 S.W.3d 413, 418 (Tex. Crim.App.2001)
For more than a generation, the United States Supreme Court has consistently applied a single standard for evaluating the sufficiency of the evidence to support a state criminal jury verdict. "In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we held that a state prisoner is entitled to habeas corpus relief if a federal judge finds that `upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" McDaniel v. Brown, ___ U.S. ___, 130 S.Ct. 665, 666, 175 L.Ed.2d 582 (2010) (citation omitted). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789; Perez v. Cain, 529 F.3d 588, 594 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 496, 172 L.Ed.2d 358 (2008).
Petitioner argues he presented evidence showing he had a clean or non-violent record, i.e., he was a "model prisoner," during his pre-trial incarceration.
Viewed in the light most favorable to the jury's verdict, however, the evidence presented during petitioner's trial established, in pertinent part, as follows: (1) as a teenager, petitioner led police on a high speed chase which exceeded ninety miles per hour and which ended only when petitioner wrecked his vehicle on a set of railroad tracks
In addition to the facts of the offense, petitioner refused to accept responsibility for his role in David Alejandro's murder when petitioner took the stand at trial and repeatedly denied he had caused David Alejandro's death.
The state appellate court reasonably concluded petitioner's demonstrated lack of remorse for his role in David Alejandro's murder combined with the facts of the offense itself to fully support the jury's affirmative finding on the future dangerousness special issue. Moreover, this Court agrees the evidence at the punishment phase of petitioner's capital murder trial establishes petitioner engaged in an escalating pattern of violence culminating in David Alejandro's murder. Petitioner was sanctioned by school authorities for possession of marijuana.
The Texas Court of Criminal Appeals' rejection on the merits, in the course of petitioner's direct appeal, of petitioner's insufficient evidence claim relating to the
In his eighth claim, petitioner argues the Texas capital sentencing statute's definition of "mitigating evidence" unconstitutionally narrows the capital sentencing jury's focus because it limits that term to evidence relevant to the defendant's moral blameworthiness.
In the course of instructing petitioner's jury at the punishment phase of trial, the state trial court gave the following directives:
Petitioner did not raise a timely objection to his punishment phase jury instructions on the same ground urged in his eighth claim.
Petitioner did raise this same claim for the first time as his twenty-fourth ground for relief in his state habeas corpus application.
Respondent correctly points out petitioner procedurally defaulted on this claim by failing to raise a timely objection at the trial court level to the punishment phase jury charge.
Procedural default occurs where 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 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, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (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, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991).
The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show either "cause and actual prejudice" for his default or 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, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (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, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that 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, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (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 petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. at 2523. 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, 112 S.Ct. at 2523.
The Fifth Circuit has repeatedly held a procedural default premised upon a federal habeas corpus petitioner's failure to comply with the Texas contemporaneous objection rule constitutes an adequate and independent barrier to federal habeas review
The Fifth Circuit Court of Appeals has also recognized the efficacy of the Texas contemporaneous objection rule as a barrier to federal habeas review was "firmly established" for federal procedural default purposes long before the date petitioner filed his brief on direct appeal. See Scheanette v. Quarterman, 482 F.3d at 823 ("We have recognized a federal petitioner's failure to comply with the Texas contemporaneous objection rule as an adequate and independent state procedural bar to federal habeas review."); Turner v. Quarterman, 481 F.3d at 301 ("The Texas contemporaneous objection rule is strictly or regularly applied evenhandedly to the vast majority of similar claims, and is therefore an adequate procedural bar."); Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir.2000) (holding the same), cert, denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156 (2001); Hogue v. Johnson, 131 F.3d 466, 487 (5th Cir. 1997) (holding the Texas contemporaneous objection rule was already well established 35 years ago and recognized as an adequate state procedural barrier to federal habeas review at least twenty years ago), cert. denied, 523 U.S. 1014, 118 S.Ct. 1297, 140 L.Ed.2d 334 (1998); Rogers v. Scott, 70 F.3d 340, 342 (5th Cir. 1995) (recognizing the Texas contemporaneous objection rule foreclosed federal habeas review), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996); Amos v. Scott, 61 F.3d 333, 343-44 (5th Cir.) (holding Texas appellate courts consistently apply the contemporaneous objection rule in the vast majority of cases and, thereby, strictly and regularly apply same), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995).
Petitioner's failure to make a timely objection to the statutory definition of "mitigating evidence" contained in the state trial court's punishment phase jury instructions bars federal habeas review of petitioner's constitutional challenge to that definition unless petitioner can satisfy one of the two exceptions to the procedural
Petitioner has not alleged any facts sufficient to satisfy either exception to the procedural default doctrine. For the reasons set forth hereinafter, the failure of petitioner's trial counsel to raise this objection to petitioner's punishment phase jury charge does not satisfy either prong of the Strickland v. Washington test for ineffective assistance. Likewise, petitioner has alleged no facts sufficient to establish his "actual innocence" of the death penalty. See Sawyer v. Whitley, 505 U.S. 333, 346-48, 112 S.Ct. 2514, 2523, 120 L.Ed.2d 269 (1992) (holding that a showing of "actual innocence" is made in connection with the punishment phase of a capital murder trial when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law). The Supreme Court has explained 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, 112 S.Ct. at 2523. Petitioner has alleged no facts and has not presented this Court with clear and convincing evidence, establishing that, but for presence of the statutory definition of "mitigating evidence" contained in his punishment phase jury charge, no reasonable juror would have ruled favorably to petitioner on any of the Texas capital sentencing special issues actually submitted to the jury at the punishment phase of trial. As is explained in Section XII, Subpart F, petitioner's complaint about his trial counsels' failure to object to the punishment phase jury charge on the same ground urged in claim eight herein lacks merit.
Petitioner's failure to contemporaneously object to the allegedly improper statutory definition of "mitigating evidence" in his punishment phase jury charge constitutes an impermeable barrier to federal habeas
Alternatively, petitioner's eighth claim lacks merit. See Bartee v. Quarterman, 574 F.Supp.2d 624, 707-11 (W.D.Tex.2008) (rejecting an identical claim), CoA denied, 339 Fed.Appx. 429 (5th Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1882, 176 L.Ed.2d 370 (2010); Martinez v. Dretke, 426 F.Supp.2d 403, 538-41 (W.D.Tex.2006) (rejecting an identical claim as lacking merit), CoA denied, 270 Fed.Appx. 277 (5th Cir.2008).
The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment phase jury instructions. See Abdul-Kabir v. Quarterman, 550 U.S. 233, 262-63, 127 S.Ct. 1654, 1674, 167 L.Ed.2d 585 (2007) (holding proper test is whether there is a reasonable likelihood the jury applied the challenged instruction in a way that prevented its consideration of constitutionally relevant evidence); Ayers v. Belmontes, 549 U.S. 7, 13, 127 S.Ct. 469, 473-74, 166 L.Ed.2d 334 (2006) (holding the same); Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 2102-03 & n. 9, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence).
Thus, the Supreme Court has clearly established the principle that "sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future." Abdul-Kabir v. Quarterman, 550 U.S. at 246, 127 S.Ct. at 1664.
This "reasonable likelihood" standard does not require the petitioner to prove the jury "more likely than not" interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than "only a possibility" of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). "In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would—with a `commonsense understanding of the instructions in the light of all that has taken place at the trial.'" Johnson
Petitioner's arguments in support of his eighth claim misconstrue the appropriate constitutional standard for evaluating the propriety of jury instructions at the punishment phase of a capital trial. The Supreme Court identified the proper inquiry as whether there is a reasonable likelihood the jury applied the challenged instructions in a way that prevented the consideration of constitutionally relevant evidence. Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. Thus, the federal constitutional issue properly before this Court in connection with petitioner's challenge to the statutory definition of "mitigating evidence" contained in Texas Code of Criminal Procedure Article 37.071, § 2(f)(4) is not whether the statutory language in question satisfies some abstract definition of the term "mitigating evidence" but, rather, whether the jury instructions actually given during the punishment phase of petitioner's trial could reasonably be construed as precluding the jury from giving mitigating effect to any of the evidence properly before the jury at the punishment phase of petitioner's capital trial. Id.
Petitioner argues he presented evidence which showed he: (1) was young and immature at the time of his offense, (2) was a model prisoner during his pretrial detention, (3) had the potential to improve his character and grow out of his youthful aggressiveness, (4) had become a spiritual, religious person during his pretrial incarceration, and (5) had matured during his pretrial detention. Setting aside the issue of whether this evidence addresses petitioner's "moral blameworthiness," this Court concludes all of the foregoing evidence could have been adequately considered and given mitigating effect by petitioner's capital sentencing jury when it addressed the first special issue, i.e., the future dangerousness special issue.
As explained in Section IV, subpart C, item 2 above, petitioner presents this Court with the same factual arguments he claims his capital sentencing jury was somehow precluded from considering. All of the potentially mitigating evidence petitioner has identified as allegedly outside the scope of his capital sentencing jury's consideration in connection with the Penry or "mitigation" special issue was well within the proper scope of petitioner's jury in connection with its determination and resolution of the first capital sentencing special issue. In sum, evidence which tended to show the petitioner was a young, immature man when he committed his offense but had grown, matured, and become a more spiritually cognizant or religious person while in custody could have been adequately considered by petitioner's sentencing jury when it answered the future dangerousness special issue.
Furthermore, this Court disagrees with petitioner's construction of the Texas statutory definition of "mitigating evidence" contained in petitioner's punishment phase jury charge. This Court concludes petitioner's jury, employing "a commonsense understanding of the instructions in the light of all that [had] taken place at the trial," would not have felt precluded by that definition from considering petitioner's youth and relative immaturity at the time of his offense as potentially mitigating factors when answering the "mitigation" capital sentencing special issue. Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. at 2669. Petitioner's trial counsel urged the jury, without objection from the prosecution, throughout closing argument at the punishment phase of trial to consider petitioner's youth and immaturity at the time of his offense, his non-violent record during pretrial
Had petitioner's jury construed the punishment phase jury charge in the manner urged by petitioner in his eighth claim, the jury would have been perplexed over how it could exercise its express duty to consider "all the evidence of petitioner's character and background" before it in answering the first and third capital sentencing special issues. There was considerable evidence before petitioner's capital sentencing jury of petitioner's character and background, including petitioner's recent religious development and maturation shown by his non-violent jail record. Petitioner's trial counsel repeatedly argued this same evidence warranted a life sentence for petitioner. The narrow construction of the punishment phase jury charge urged by petitioner in his eighth claim is unreasonable under the facts and circumstances of petitioner's trial.
There is no clearly established federal law in the form of Supreme Court precedent mandating a definition of "mitigating evidence" broader than the one set forth in the Texas statute. On the contrary, the Supreme Court has twice approved the following state court definition: "Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value." Tennard v. Dretke, 542 U.S. 274, 284, 124 S.Ct. 2562, 2570, 159 L.Ed.2d 384 (2004); McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 1232, 108 L.Ed.2d 369 (1990).
The Texas statutory definition is fully consistent with the evolving notion of "mitigating evidence" contained in Supreme Court and Fifth Circuit precedent. See Scheanette v. Quarterman, 482 F.3d 815, 825-26 (5th Cir.2007) (rejecting the same arguments attacking the Texas capital sentencing scheme's definition of "mitigating evidence" raised by petitioner herein), stay denied, ___ U.S. ___, 129 S.Ct. 1305, 173 L.Ed.2d 482 (2009); Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.) (holding the same Texas statutory definition of "mitigating evidence" challenged by petitioner herein did not unconstitutionally preclude jury consideration of the mitigating aspects of any evidence of the defendant's character or background or the circumstances of the offense which the defendant presented at trial), cert. denied, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001); Cordova v. Johnson, 993 F.Supp. 473, 489-98 (W.D.Tex.1998) (discussing the Supreme Court's analysis of mitigating evidence), Martinez v. Dretke, 426 F.Supp.2d 403,
The Supreme Court has expressly held States are not limited to submitting narrow special issues to the jury when the sentencing jury reaches the selection phase of a capital sentencing proceeding. More specifically, the Supreme Court has held at the selection stage, the States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined factors, such as "the circumstances of the crime," "the defendant's prior criminal record," and "all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment." Tuilaepa v. California, 512 U.S. 967, 978, 114 S.Ct. 2630, 2638, 129 L.Ed.2d 750 (1994). The Supreme Court has made it clear States are permitted to guide the discretion exercised by capital sentencing juries so long as the jury is not precluded from giving mitigating effect to evidence that does lessen the defendant's moral culpability or blameworthiness for his crime. See Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993) (holding there is no constitutional requirement of unfettered sentencing discretion in the jury, and States are free to "structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty."); Boyde v. California, 494 U.S. 370, 377, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990) (holding the same). The Texas capital sentencing scheme's definition of "mitigating evidence" is a proper method of guiding the discretion exercised by a capital sentencing jury. Bartee v. Quarterman, 574 F.Supp.2d 624, 711 (W.D.Tex.2008), CoA denied, 339 Fed.Appx. 429 (5th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1882, 176 L.Ed.2d 370 (2010); Martinez v. Dretke, 426 F.Supp.2d 403, 538-41 (W.D.Tex.2006), CoA denied, 270 Fed. Appx. 277 (5th Cir.2008).
Petitioner's evidence showing he was a good person and a model prisoner during his pretrial detention and had matured and become a religious person could all have been adequately considered by petitioner's jury in answering the future dangerousness special issue. This evidence is indistinguishable from the type of "good character" evidence which can be given adequate consideration in connection with the future dangerousness special issue. See Scheanette v. Quarterman, 482 F.3d at 826 n. 64 (furnishing a long list of Supreme Court and Fifth Circuit opinions recognizing evidence of good character can be assessed adequately within the context of the future dangerousness special issue); Cordova v. Johnson, 993 F.Supp. at 496-98 & n. 122 (furnishing a longer list of Fifth Circuit opinions holding evidence of good character can be adequately considered under the future dangerousness special issue). If the jury determined petitioner had matured into a fundamentally "good person" during his pretrial detention who would likely continue to be a "model prisoner" during a term of life imprisonment, the jury could have answered the future dangerousness special issue negatively.
This Court concludes there is no reasonable likelihood petitioner's capital sentencing jury considered itself precluded by petitioner's punishment phase jury instructions from giving mitigating effect to any of petitioner's proffered mitigating evidence showing he was young and immature at the time of his offense, was a model prisoner during his pretrial detention, had the potential to improve his character and grow out of his youthful aggressiveness, had become a spiritual, religious, person during his pretrial incarceration, and had matured during his pretrial detention.
Petitioner procedurally defaulted on his eighth claim, i.e., his challenge to the Texas capital sentencing scheme's definition of "mitigating evidence," by failing to timely object to the definition of that term in petitioner's punishment phase jury charge. Moreover, petitioner's eighth claim lacks merit. Both this Court and the Fifth Circuit have rejected this same claim on numerous occasions in the past, and petitioner has not distinguished any of those cases from his own. See, e.g., Scheanette v. Quarterman, 482 F.3d at 826 n. 64; Bartee v. Quarterman, 574 F.Supp.2d at 709-10.
Petitioner's eighth claim does not warrant relief under the AEDPA. Petitioner's jury had an adequate opportunity when addressing the future dangerousness special issue to give "mitigating" effect to all of petitioner's evidence showing his relative immaturity at the time of his offense, non-violent record during pretrial detention, potential for growth and increasing maturity, and actual maturation and spiritual development during pretrial detention. Furthermore, given the broad language contained in petitioner's punishment phase jury instructions, the extensive jury argument petitioner's trial counsel presented emphasizing petitioner's relative youth and immaturity at the time of his offense, and petitioner's punishment phase trial testimony (which amply demonstrated how immature petitioner remained), there was no reasonable likelihood petitioner's capital sentencing jury believed itself precluded from considering petitioner's youth and immaturity, as well as petitioner's other proffered mitigating evidence concerning his background and character, when answering the "mitigation" special issue.
The alternative rejection by the Texas Court of Criminal Appeals on the merits, during petitioner's state habeas corpus proceeding, of petitioner's complaint about the statutory definition of "mitigating evidence" included in the Texas capital sentencing special issues was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding. Petitioner's eighth claim does not warrant relief under the AEDPA.
In his ninth claim, petitioner argues his Eighth Amendment rights were violated by virtue of the state trial court's failure to define several key terms included in petitioner's punishment phase jury instructions.
Petitioner did not timely object to the absence from his punishment phase jury charge of the definitions in question. Moreover, petitioner did not complain on direct appeal about any-alleged error in his punishment phase jury instructions. When petitioner raised this complaint for the first time as his twentieth ground for state habeas relief,
For the reasons set forth in Section V subpart C above, respondent correctly points out petitioner procedurally defaulted on his ninth claim by failing to either timely object to the absence of definitions of the terms in question from his punishment phase jury instructions or submit proposed definitions of those same terms for inclusion in his punishment phase jury charge.
Both this Court and the Fifth Circuit have previously rejected this same argument regarding the purported necessity for definitions of the terms in question as lacking in merit. See Paredes v. Quarterman, 574 F.3d 281, 294 (5th Cir.2009) (holding the terms "probability," "criminal acts of violence," and "continuing threat to society" "have a plain meaning of sufficient content that the discretion left to the jury is no more than that inherent in the jury system itself"); Turner v. Quarterman, 481 F.3d 292, 299-300 (5th Cir.2007) (rejecting claims the terms "probability," "criminal acts of violence," and "continuing threat to society" were so vague as to preclude a capital sentencing jury's consideration of mitigating evidence); Leal v. Dretke, 428 F.3d 543, 552-53 (5th Cir.2005) (listing numerous Fifth Circuit opinions rejecting complaints about the failure of Texas courts to define the terms "probability," "criminal acts of violence," and "continuing threat to society"), cert. denied, 547 U.S. 1073, 126 S.Ct. 1771, 164 L.Ed.2d 522 (2006); Bartee v. Quarterman, 574 F.Supp.2d at 694-94 (citing numerous Fifth Circuit opinions and opinions of this Court rejecting the same arguments contained in petitioner Jaspers's ninth claim); see Moore v. Quarterman, 526 F.Supp.2d 654, 720-21 (W.D.Tex.2007) (Judge Furgeson discussing the long line of Fifth Circuit opinions, as well as numerous opinions from district courts in the Western District of Texas, rejecting the same arguments raised by petitioner Jasper's ninth claim), CoA denied, 534 F.3d 454 (5th Cir. 2008).
Petitioner procedurally defaulted on his ninth claim by failing to either timely object to the absence of definitions of the terms in question from his punishment phase jury charge or submit requested definitions of those same terms. Moreover, within the context of the Texas capital sentencing scheme's special issues, the terms in question possess a common sense core of meaning which eliminates any constitutional requirement that they be defined further. Paredes v. Quarterman, 574 F.3d at 294.
The alternative rejection by the Texas Court of Criminal Appeals on the merits, during the course of petitioner's state habeas corpus proceeding, of petitioner's complaints about the absence of definitions of key terms employed in the first Texas capital sentencing special issue was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding. Thus, petitioner's ninth claim does not warrant relief under the AEDPA.
In his tenth claim, petitioner argues the Texas capital sentencing scheme unconstitutionally fails to provide "meaningful appellate review" of a death sentence because there is no means for a state appellate court to second guess a jury's
As explained above, petitioner did not raise any complaint about his punishment phase jury instructions at trial or on direct appeal. When petitioner first raised this complaint, as his twenty-second claim for state habeas relief,
This claim lacks merit. See Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir.) ("Circuit precedent has specifically rejected the argument that there is a constitutional requirement that mitigation special issue evidence be subject to appellate review by the state."), cert. denied, 546 U.S. 848, 126 S.Ct. 103, 163 L.Ed.2d 117 (2005); Woods v. Cockrell, 307 F.3d 353, 359-60 (5th Cir. 2002) (holding Texas Court of Criminal Appeals' refusal to review the sufficiency of the evidence supporting negative answers to the Texas capital sentencing scheme's "mitigation" special issue, i.e., the Penry issue, did not violate due process principles); Johnson v. Cockrell, 306 F.3d 249, 256 (5th Cir.2002) (denying CoA on claim that Texas Court of Criminal Appeals' refusal to review whether sufficient mitigating evidence existed to support a life sentence violated Eighth Amendment), cert. denied, 538 U.S. 926, 123 S.Ct. 1573, 155 L.Ed.2d 319 (2003); Beazley v. Johnson, 242 F.3d 248, 261 (5th Cir.) (holding petitioner was afforded meaningful state appellate review of death sentence when state appellate court reviewed sufficiency of evidence supporting future dangerousness special issue), cert. denied, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001); Bartee v. Quarterman, 574 F.Supp.2d at 696-97 (listing numerous Fifth Circuit opinions, opinions of this Court and district courts in the Western District of Texas rejecting the argument that "meaningful appellate review" of a jury's findings on the Texas capital sentencing special issues is constitutionally necessary above and beyond that permitted under the Jackson v. Virginia standard).
The rejection on the merits by the Texas Court of Criminal Appeals, in the course of petitioner's state habeas corpus proceeding, of petitioner's complaint about the absence of "meaningful appellate review" of a jury's answers to the Texas capital sentencing special issues was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding. Petitioner's tenth claim does not warrant relief under the AEDPA.
In his eleventh claim, petitioner argues the Texas capital sentencing scheme deprives petitioner of his constitutional right to proportionality review of his capital sentence.
Petitioner did not complain about this alleged defect in the Texas capital sentencing scheme at trial or on direct appeal. When he raised this claim for the first time as his twenty-third claim for state habeas relief,
This claim lacks merit. The United States Supreme Court has expressly rejected the argument that a state appellate court is required to independently re-weigh aggravating and mitigating evidence. See Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 879, 79 L.Ed.2d 29 (1984) ("There is thus no basis in our cases for holding that comparative proportionality review by an appellate court is required in every case in which the death sentence is imposed and the defendant requests it."). Both before and after the Supreme Court mandated judicial proportionality review of punitive damage awards in civil cases, the Fifth Circuit has consistently held no such "proportionality review" of a capital sentence is constitutionally mandated. See Martinez v. Johnson, 255 F.3d 229, 241 n. 17 (5th Cir.2001) (recognizing there is no constitutional right to proportionality review), cert. denied, 534 U.S. 1163, 122 S.Ct. 1175, 152 L.Ed.2d 118 (2002); Hughes v. Johnson, 191 F.3d 607, 622 (5th Cir.1999) (holding a state appellate court was not required to conduct proportionality review of a capital sentence), cert, denied, 528 U.S. 1145, 120 S.Ct. 1003, 145 L.Ed.2d 945 (2000); United States v. Webster, 162 F.3d 308, 354 (5th Cir. 1998) (holding the Constitution does not require a comparison of the penalties imposed in similar criminal cases), cert, denied, 528 U.S. 829, 120 S.Ct. 83, 145 L.Ed.2d 70 (1999); Evans v. McCotter, 790 F.2d 1232, 1243 (5th Cir.) (holding there is no federal constitutional right to any type of proportionality review, so long as the state's capital punishment scheme protects against arbitrary and capricious imposition of the death penalty), cert, denied, 479 U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986).
This Court has rejected the same argument urged by petitioner in his eleventh claim—the Supreme Court's holding mandating proportionality review of punitive damage awards in civil cases necessarily requires similar judicial scrutiny of capital sentences. See Bartee v. Quarterman, 574 F.Supp.2d at 695-98 (rejecting contention that due process concerns mandate proportionality review in capital criminal cases); Martinez v. Dretke, 426 F.Supp.2d 403, 530-32 (W.D.Tex.2006) (holding the Supreme Court's opinion in Tuilaepa permits states to adopt capital sentencing schemes which vest the sentencing jury with virtually unfettered discretion at the selection phase of a capital trial), CoA denied, 270 Fed.Appx. 277 (5th Cir.2008); see Cordova v. Johnson, 993 F.Supp. 473, 509 (W.D.Tex.1998) (then District Judge Prado wrote, "Insofar as proportionality analysis is constitutionally necessary with regard to the Texas capital sentencing scheme, that analysis is incorporated in the `eligibility decision' described in Tuilaepa and Buchanan and is accomplished in the Texas capital sentencing scheme at the guilt-innocence phase of a trial because the Texas capital murder statute itself performs the constitutionally-mandated narrowing function.").
An analysis of comparing punitive damage awards in civil cases with one another has never been applied by the Supreme Court in the context of criminal sentencing. Thus, there is no clearly established federal case law requiring proportionality review of a state capital sentence. Furthermore, as demonstrated by the Federal Sentencing Guidelines' focus on the specific aspects of an offender and his particular offense, criminal sentencing requires careful consideration of a host of individual
The rejection on the merits by the Texas Court of Criminal Appeals in the course of petitioner's state habeas corpus proceeding of petitioner's demand for proportionality review of his capital sentence was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding. Petitioner's eleventh claim does not warrant relief under the AEDPA.
In his twelfth claim, petitioner argues the Texas capital sentencing scheme violates Eighth and Fourteenth Amendment principles because it fails to inform capital sentencing jurors of the effect of a single hold-out juror.
Petitioner neither requested a jury instruction at the punishment phase of his capital murder trial advising the jury regarding the impact of a single hold-out juror nor raised the absence of such an instruction as a point of error on direct appeal. When petitioner raised this complaint for the first time as his twenty-sixth claim for state habeas corpus relief,
This claim is without merit. The United States Supreme Court rejected the argument underlying petitioner's twelfth claim in Jones v. United States, 527 U.S. 373, 382, 119 S.Ct. 2090, 2099, 144 L.Ed.2d 370 (1999) (the Eighth Amendment does not require a capital sentencing jury be instructed as the effect of a "breakdown in the deliberative process," because the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and such an instruction might well undermine the strong governmental interest in having the jury express the conscience of the community on the ultimate question of life or death). The Supreme Court has never held the Constitution mandates a jury instruction of the type requested by petitioner in this claim.
The Fifth Circuit, this Court and other district courts in the Western District of Texas, have rejected efforts identical to petitioner's to apply the Supreme Court's holding in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), into the dissimilar context of a Texas capital trial. See, e.g., Turner v. Quarterman, 481 F.3d 292 300 (5th Cir.2007)
No Caldwell error results merely because a Texas capital sentencing jury is not informed of the effect of a single hold-out juror. Bartee v. Quarterman, 574 F.Supp.2d at 701-03.
The rejection by the Texas Court of Criminal Appeals rejection on the merits in the course of petitioner's state habeas corpus proceeding of petitioner's demand for a jury instruction informing the jurors of the effect of a single hold-out juror at the punishment phase of a Texas capital murder trial was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding. Petitioner's twelfth claim does not warrant relief under the AEDPA.
Petitioner argues in his thirteenth claim that the "open-ended discretion" afforded a Texas capital sentencing jury in answering the Penry or "mitigation" special issue violates the Eighth and Fourteenth Amendments.
Petitioner raised no timely objection to his punishment phase jury charge and raised no point of error on direct appeal complaining about the "mitigation" special issue. In his twenty-seventh claim for state habeas corpus relief, however, petitioner presented the same argument as in his thirteenth claim before this Court.
This claim lacks merit. The current Texas mitigation or Penry capital sentencing special issue conforms to the Supreme Court's holdings in Buchanan v. Angelone and Tuilaepa v. California, both of which recognize the Eighth Amendment authorizes a state to permit a capital sentencing jury to exercise virtually unfettered discretion at the selection phase, i.e., when it determines whether to impose or withhold a death sentence on a criminal defendant whom it has properly determined is eligible to receive same.
In Tuilaepa, the Supreme Court held States may adopt capital sentencing procedures which rely upon the jury, in its sound judgment, to exercise wide discretion. Tuilaepa v. California, 512 U.S. 967, 974, 114 S.Ct. 2630, 2636, 129 L.Ed.2d 750 (1994). The Supreme Court held further, at the selection stage, States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined factors, such as "the circumstances of the crime," "the defendant's prior criminal record," and "all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment." Tuilaepa, 512 U.S. at 978, 114 S.Ct. at 2638. The mitigation or Penry special issue submitted at the punishment phase of a Texas capital trial focuses exclusively on the selection decision, which the Supreme Court has held may involve a capital sentencing jury exercising unfettered discretion to withhold a death sentence from a defendant otherwise eligible to receive same. See Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761-62, 139 L.Ed.2d 702 (1998) (at the selection phase of a capital sentencing proceeding, "our decisions suggest that complete jury discretion is constitutionally permissible."); Tuilaepa v. California, 512 U.S. at 978-80, 114 S.Ct. at 2638-39 (at the selection phase, the States are not confined to submitting specific propositional questions; a capital sentencer need not be instructed how to weigh any particular fact; discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed is not impermissible).
The discretion exercised by a Texas capital sentencing jury to withhold the death penalty from defendants who have been determined eligible to receive same is fully consistent with the Eighth Amendment principles set forth in Tuilaepa and Buchanan. See Turner v. Quarterman, 481 F.3d at 299 (holding Tuilaepa permits capital sentencing juries to exercise "unbridled discretion"); Bartee v. Quarterman, 574 F.Supp.2d 624, 704-05 (W.D.Tex.2008) (holding the same), CoA denied, 339 Fed. Appx. 429 (5th Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1882, 176 L.Ed.2d 370 (2010); Moore v. Quarterman, 526 F.Supp.2d 654, 731 (W.D.Tex.2007) (holding the same); Martinez v. Dretke, 426 F.Supp.2d 403 (W.D.Tex.2006) (holding the same), CoA denied, 270 Fed.Appx. 277 (5th Cir.2008); Salazar v. Dretke, 393 F.Supp.2d 451, 488-91 (W.D.Tex.2005) (holding the same), aff'd 260 Fed.Appx. 643 (5th Cir.2007), cert. denied, 554 U.S. 922, 128 S.Ct. 2963, 171 L.Ed.2d 893 (2008).
The rejection on the merits by the Texas Court of Criminal Appeals in the course of petitioner's state habeas corpus proceeding of petitioner's complaint about the "open-ended discretion" exercised by Texas capital sentencing juries answering the "mitigation" special issue was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination
In his fourteenth and final claim, petitioner argues the Texas capital sentencing scheme's "mitigation" or Penry special issue violates the Eighth and Fourteenth Amendments because the State is not required to disprove the existence of "mitigating evidence" beyond a reasonable doubt.
Petitioner raised no timely objection to his punishment phase jury charge and included no point of error in his direct appeal complaining about the absence of an explicit burden of proof instruction regarding the "mitigation" special issue. Petitioner did raise the same complaint as that set forth here in his fourteenth claim as his thirty-second ground for state habeas relief.
This claim lacks merit. The Supreme Court has implicitly rejected the legal arguments underlying petitioner's final claim herein. See Kansas v. Marsh, 548 U.S. 163, 175, 126 S.Ct. 2516, 2525, 165 L.Ed.2d 429 (2006) ("In aggregate, our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. The thrust of our mitigation jurisprudence ends here. `[W]e have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.'").
The Fifth Circuit has rejected the arguments underlying petitioner's fourteenth claim, concluding the federal Constitution does not mandate assignment of a burden of proof on the Texas capital sentencing scheme's mitigation special issue. See Ortiz v. Quarterman, 504 F.3d 492, 504-05 (5th Cir.2007) (the Texas death penalty scheme does not violate Apprendi or Ring by failing to require the State to prove beyond a reasonable doubt the absence of mitigating circumstances), cert. denied, 553 U.S. 1035, 128 S.Ct. 2428, 171 L.Ed.2d 234 (2008); Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.2007) (Texas death penalty scheme did not violate either Apprendi or Ring by failing to require the state to prove beyond a reasonable doubt the absence of mitigating circumstances), stay of execution denied, ___ U.S. ___, 129 S.Ct. 1305, 173 L.Ed.2d 482 (2009); Granados v. Quarterman, 455 F.3d 529, 536 (5th Cir.) (holding no burden of proof requirement applies because the jury's answer to the Texas capital sentencing scheme's mitigation special issue does not enhance the sentence to death but, rather, reduces same from death to life), cert. denied, 549 U.S. 1081, 127 S.Ct. 732, 166 L.Ed.2d 568 (2006).
On several occasions, this Court has rejected the same arguments petitioner presents here in his fourteenth claim, reasoning as follows:
Bartee v. Quarterman, 574 F.Supp.2d at 698-99 (quoting Moore v. Quarterman, 526 F.Supp.2d at 737).
Petitioner has identified no "clearly established" Supreme Court precedent recognizing a constitutional requirement for an express assignment of the burden of proof in connection with the Texas capital sentencing scheme's mitigation special issue. This is likely because the unique aspects of the Texas capital sentencing scheme make the Texas scheme's mitigation special issue readily distinguishable from the capital sentencing schemes in the weighing jurisdictions addressed in the opinions relied upon by the petitioner.
The rejection on the merits by the Texas Court of Criminal Appeals during the course of petitioner's state habeas corpus proceeding of petitioner's complaint about the absence of an express burden of proof assignment in the Texas capital sentencing scheme's mitigation special issue was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state trial and state habeas corpus proceedings. Petitioner's fourteenth claim does not warrant relief under the AEDPA.
In his fourth claim, petitioner argues the state trial court violated due process when it failed to inquire into "the obvious conflict between Mr. Jasper and his attorneys."
As respondent correctly points out, petitioner never presented this argument to the state courts in the course of either his direct appeal or his state habeas corpus proceeding. Accordingly, petitioner has procedurally defaulted on this unexhausted claim.
Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary "opportunity," the prisoner must "fairly present" his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (rejecting the argument that a petitioner "fairly presents" a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O'Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732-33 (holding comity requires a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State's established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 2081, 135 L.Ed.2d 457 (1996) (holding that, for purposes of exhausting state remedies, a claim for federal relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief and rejecting the contention that the exhaustion requirement is satisfied by presenting the state courts only with the facts necessary to state a claim for relief).
The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts and, thereby, to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001); O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732; Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).
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, 125 S.Ct. 250, 160 L.Ed.2d 56 (2004); Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir.2003); Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir.) ("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, 124 S.Ct. 408, 157 L.Ed.2d 293 (2003); Mercadel v. Cain, 179 F.3d 271, 276-77 (5th Cir.1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998); Jones v. Jones, 163 F.3d 285, 299 (5th Cir.1998), cert. denied, 528 U.S. 895, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999). However, Title 28 U.S.C. § 2254(b)(2) empowers a federal habeas court to deny an exhausted claim on the merits. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002), cert. dism'd, 541 U.S. 913,
In order to "exhaust" available state remedies, a petitioner must "fairly present" all of his claims to the state courts. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. at 270, 275-76, 92 S.Ct. 509, at 512-13 (1971); Kunkle v. Dretke, 352 F.3d at 988; Riley v. Cockrell, 339 F.3d at 318; Anderson v. Johnson, 338 F.3d at 386; Jones v. Jones, 163 F.3d at 296; Shute v. State, 117 F.3d 233, 237 (5th Cir.1997) ("a habeas petitioner `must fairly apprise the highest court of his state of the federal rights which were allegedly violated.'"). In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir.1985).
The exhaustion doctrine requires the petitioner present his federal claim in a manner reasonably designed to afford the state courts a meaningful opportunity to address same. The exhaustion requirement is satisfied when the substance of the federal habeas claim has been "fairly presented" to the highest state court, i.e., the petitioner presents his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (holding a petitioner failed to "fairly present" a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel "ineffective," without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a claim); Moore v. Cain, 298 F.3d 361, 364 (5th Cir.2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003); Mercadel v. Cain, 179 F.3d at 275. However, the petitioner need not spell out each syllable of the claim before the state court for the claim to have been "fairly presented" and thereby fulfill the exhaustion requirement. Riley v. Cockrell, 339 F.3d at 318; Fisher v. Texas, 169 F.3d 295, 303 (5th Cir.1999).
The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276 277-78, 74 L.Ed.2d 3 (1982); Riley v. Cockrell, 339 F.3d at 318 ("It is not enough that the facts applicable to the federal claims were all before the State court, or that the petitioner made a similar state-law based claim. The federal claim must be the `substantial equivalent' of the claim brought before the State court."); Wilder v. Cockrell, 274 F.3d at 259 ("where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement"); Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001). Likewise, to have "fairly presented" his federal claim, the petitioner must have reasonably alerted the state courts to the federal nature of his claim. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (holding a petitioner failed to "fairly present" a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel "ineffective," without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a
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., Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir.2008) ("This court has held that, since 1994, the Texas abuse of the writ doctrine has been consistently applied as a procedural bar, and that it is an independent and adequate state ground for the purpose of imposing a procedural bar."), cert. denied, ___ U.S. ___, 129 S.Ct. 2378, 173 L.Ed.2d 1299 (2009); Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir.2005) (holding the Texas abuse of the writ rule ordinarily is an adequate and independent procedural ground on which to base a procedural default ruling), cert. denied, 547 U.S. 1136, 126 S.Ct. 2059, 164 L.Ed.2d 793 (2006); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004) (holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim), cert. denied, 543 U.S. 1124, 125 S.Ct. 1067, 160 L.Ed.2d 1074 (2005); Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir.) (holding a petitioner procedurally defaulted by failing to "fairly present" a claim to the state courts in his state habeas corpus application), cert. denied, 543 U.S. 989, 125 S.Ct. 498, 160 L.Ed.2d 374 (2004); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir.2003) (holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003) (recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002) (holding unexhausted claims were procedurally barred), cert. dism'd, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.) (holding unexhausted ineffective assistance claim procedurally barred from federal habeas review), cert. denied, 527 U.S. 1059, 120 S.Ct. 29, 144 L.Ed.2d 832 (1999); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.) (holding unexhausted claims procedurally barred), cert. denied, 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (holding the Texas writ-abuse rule an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998).
Section 5 of Article 11.071 of the Texas Code of Criminal Procedure prohibits a successive state habeas corpus application except in limited circumstances which do not apply to petitioner's complaint about the violation of the presumption of innocence arising from the alleged vagueness of the first Texas capital sentencing special issue. See Tex. Code Crim. Proc. Ann. art. 11.071, § 5 (Vernon Supp. 2006) (barring consideration on the merits of new claims contained in a subsequent state habeas corpus application unless either the new claims could not have been presented in a previous application because the legal or factual basis for the new claims were unavailable at the time the previous application was filed; by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty
Nothing prevented petitioner from asserting the same federal constitutional complaint raised here in his fourth claim in the course of his direct appeal or state habeas corpus proceeding. The factual basis for that claim existed as of the date petitioner filed his appellant's brief. Likewise, petitioner alleges no facts in this Court and presented the state habeas court with no evidence which satisfies either of the final two exceptions to the Texas writ-abuse barrier erected by Section 5 of Article 11.071. On the contrary, the evidence of petitioner's guilt was overwhelming as was the evidence supporting the jury's answers to the petitioner's capital sentencing special issues.
Nothing in petitioner's appellant's brief or state habeas corpus application "fairly presented" the Texas Court of Criminal Appeals with the same federal constitutional arguments contained in petitioner's fourth claim for relief. In short, nothing in petitioner's pleadings in any of his state court proceeding to date "fairly presented" any state court with the federal constitutional arguments underlying petitioner's fourth claim.
If petitioner were to attempt at this time to return to state court and assert these new federal constitutional arguments underlying his fourth claim in a successive state habeas application, the applicable provisions of the Texas writ-abuse statute would preclude him from doing so. Thus, petitioner failed to exhaust available state remedies on his fourth claim and, thereby, procedurally defaulted on same. See Ries v. Quarterman, 522 F.3d 517, 526 (5th Cir.) (affirming dismissal of unexhausted ineffective assistance claim as procedurally defaulted), cert. denied, ___ U.S. ___, 129 S.Ct. 485, 172 L.Ed.2d 351 (2008); Hughes v. Dretke, 412 F.3d 582, 594-95 (5th Cir. 2005) (holding petitioner procedurally defaulted on a jury misconduct claim by presenting the state courts with purely state-law arguments supporting same and waiting until he reached federal court to first urge federal constitutional arguments), cert. denied, 546 U.S. 1177, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006); Beazley v. Johnson, 242 F.3d 248, 264-68 (5th Cir.) (holding petitioner procedurally defaulted on a claim by failing to present same to the Texas Court of Criminal Appeals either on direct appeal or in a state habeas corpus application where claim was readily available at the time petitioner filed his state habeas application), cert. denied, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001); Hicks v. Johnson, 186 F.3d 634, 637-38 (5th Cir. 1999) (petitioner procedurally defaulted on an unexhausted claim for relief), cert. denied, 528 U.S. 1132, 120 S.Ct. 976, 145 L.Ed.2d 844 (2000).
The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show "cause and actual prejudice" for his default or that failure to address the merits of his procedurally
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, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (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 petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. at 2523. 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, 112 S.Ct. at 2523. Petitioner has alleged no specific facts satisfying this "factual innocence" standard. Because petitioner has failed to satisfy the "actual innocence" test, he is not entitled to relief from his procedural default on his fourth claim under the fundamental miscarriage of justice exception to the procedural default doctrine.
Alternatively, the record before the state habeas court establishes there was no legal or factual basis supporting petitioner's "due process" complaint about the state trial court's failure to intervene during petitioner's punishment phase trial testimony.
Petitioner testified during the evidentiary hearing in his state habeas corpus proceeding that he concealed from his trial counsel his intention to deny under oath any responsibility for David Alejandro's murder. More specifically, petitioner testified during his state habeas hearing he did not want to testify during the guilt-innocence phase of his trial and chose not to do so,
Petitioner argues the hostility he exhibited toward his trial co-counsel (attorney William Reece) when he was recalled to testify during the punishment phase of trial,
In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), decided the same day as Strickland, the Supreme Court held a presumption of prejudice similar to that recognized in Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980), arises in three narrow circumstances: first, when a criminal defendant is completely denied the assistance of counsel; second, when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; and third, where the circumstances are such that even competent counsel likely could not render effective assistance. United States v. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047. As examples of the latter two situations, respectively, the Supreme Court cited the denial of effective cross-examination in Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974) (defendant was denied the opportunity to cross-examine the prosecution's key witness for bias), and the circumstances surrounding the trial of the "Scottsboro Boys" addressed in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (no individual attorney was appointed to represent the defendants and trial proceeded after a volunteer attorney from another state appeared on the first day of trial but
In Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914 (2002), the Supreme Court reiterated that the second exception to the requirement of Strickland "prejudice" it had envisioned in Cronic was limited to situations in which defense counsel completely failed to subject the prosecution's case to meaningful adversarial testing. See Bell v. Cone, 535 U.S. at 697-98, 122 S.Ct. at 1851-52 (holding complaints about trial counsel's waiver of closing argument at the punishment phase of trial and failure to adduce mitigating evidence insufficient to create a presumption of prejudice absent a showing trial counsel completely failed to challenge the prosecution's case throughout the sentencing proceeding).
The presumption of prejudice recognized in Cronic does not apply where the defendant complains of merely shoddy or poor performance by his trial counsel; for a defendant to be entitled to such a presumption, his attorney's failure must be complete. See Bell v. Cone, 535 U.S. at 697, 122 S.Ct. at 1851 (holding the presumption applicable only when counsel entirely failed to subject the prosecution's case to meaningful adversarial testing); United States v. Griffin, 324 F.3d 330, 364 (5th Cir.2003) ("When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of how bad, does not support the per se presumption of prejudice."); Riddle v. Cockrell, 288 F.3d 713, 718 (5th Cir.) (holding "constructive denial of counsel" sufficient to support a presumption of prejudice arises only when counsel was absent from the courtroom, there was an actual conflict of interest, or there was official interference with the defense), cert. denied, 537 U.S. 953, 123 S.Ct. 420, 154 L.Ed.2d 300 (2002); Mayo v. Cockrell, 287 F.3d 336, 340 n. 3 (5th Cir.) (holding the same), cert. denied, 537 U.S. 975, 123 S.Ct. 443, 154 L.Ed.2d 332 (2002); Burdine v. Johnson, 262 F.3d 336, 344 n. 4 (5th Cir.2001) (holding the same), cert. denied, 535 U.S. 1120, 122 S.Ct. 2347, 153 L.Ed.2d 174 (2002); Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir.2000) ("`A constructive denial of counsel occurs in only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.' We have found constructive denial in cases involving the absence of counsel from the courtroom, conflicts of interest between defense counsel and the defendant, and official interference with the defense; and have stated that constructive denial will be found when counsel fails to subject the prosecution's case to any meaningful adversarial testing." (Citations and footnote omitted)).
There is no legal authority supporting petitioner's contention he possessed a constitutional right to trial court intervention when petitioner expressed generalized dissatisfaction with the performance of his trial counsel. As explained above, such dissatisfaction does not rise to the level of a "conflict of interest" as envisioned by the Supreme Court's holding in Cronic.
There is no legal authority supporting petitioner's contention that a presumption of prejudice arises whenever a
Petitioner's denial of responsibility for David Alejandro's murder undercut any argument petitioner's trial counsel could have hoped to make to establish that petitioner was sincerely remorseful or contrite over his crime and was truly repentant therefor.
Given petitioner's refusal to accept responsibility for David Alejandro's murder during his first appearance on the stand, there was nothing objectively unreasonable with the attempt by petitioner's trial counsel to recall petitioner and attempt to limit the damage done by petitioner's initial appearance. Under such circumstances, the trial court was not obligated to intrude into the strategic decision making of petitioner and his trial counsel.
There is no dispute the petitioner chose to exercise his right to testify after conferring with counsel. Petitioner does not allege any facts showing he was coerced to testify during his trial. It is likewise clear from petitioner's testimony during his state habeas corpus hearing the petitioner chose not to disclose to his trial counsel his intention to deny any responsibility for David Alejandro's murder (which essentially nullified the effort by petitioner's trial counsel to portray petitioner as a maturing, spiritually awakening, "changed man" who would not be violent in the future). Petitioner's trial counsel were surprised by petitioner's denial of responsibility and sought, by recalling petitioner,
Petitioner has alleged no specific facts or presented any admissible evidence establishing there was a complete breakdown in communications between himself and his trial counsel. Nor has petitioner alleged any specific facts showing either a betrayal of petitioner's confidence by his trial counsel or an irreconcilable conflict between petitioner and his trial counsel actually arose before or during trial. See United States v. Dilworth, 524 F.2d 470, 473 n. 3 (5th Cir.1975) ("the appellant must do more than allege dissatisfaction with trial counsel before the court will impose on the government the burden of disproving any inference of inadequate representation."). It was apparent to everyone but petitioner why his trial counsel recalled petitioner to testify after petitioner initially denied any responsibility for David Alejandro's murder. There was no reason for the state trial court to intervene when, after being recalled to the stand, petitioner expressed impatience with his trial counsel's questions, which were clearly designed to afford petitioner an opportunity to express at least some degree of remorse or contrition over David Alejandro's murder and his role in that crime. See Moreno v. Estelle, 717 F.2d at 175 (a criminal defendant's generalized dissatisfaction with his trial counsel did not require the trial court to advise the defendant of his right to self-representation). Petitioner's refusal to accept any responsibility for David Alejandro's murder, while admitting he planned the robbery and murder and recruited others to assist him in carrying out the offense, cannot be laid at the feet of petitioner's trial counsel or the state trial court. Petitioner counter-acted his own trial counsel's efforts to obtain a life sentence for petitioner. The state trial court was not required to intervene when petitioner's refusal to accept any responsibility for his offense became a generalized statement of dissatisfaction with the performance of petitioner's trial counsel.
Petitioner procedurally defaulted on his fourth claim by failing to present same to the state courts either on direct appeal or in the course of petitioner's state habeas corpus proceeding. Petitioner's fourth claim is unexhausted and cannot form the basis for federal habeas corpus relief. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir.2003), cert. denied, 543 U.S. 835, 125 S.Ct. 250, 160 L.Ed.2d 56 (2004); 28 U.S.C. § 2254(b)(1).
Petitioner's fourth claim is foreclosed by the non-retroactivity doctrine of Teague v. Lane.
Alternatively, there is no merit to petitioner's fourth claim. A criminal defendant's generalized statement of dissatisfaction with the performance of his trial counsel does not, standing alone, necessitate intervention by a trial court to inquire into the reasons for that dissatisfaction. Moreno v. Estelle, 717 F.2d at 175. Moreover, under the facts of petitioner's case, it was evident to the state trial court why petitioner was expressing impatience and even hostility toward his own trial counsel—said trial counsel were attempting to help petitioner obtain a life sentence despite petitioner's refusal to accept any responsibility for David Alejandro's murder. The testimony of petitioner and his trial counsel before the state habeas trial court
Accordingly, petitioner's fourth claim does not warrant federal habeas corpus relief.
In his second, third, fifth, and seventh claims, petitioner argues his trial counsel rendered ineffective assistance by failing to: (1) raise petitioner's immaturity as a defense at the punishment phase of trial, (2) adequately prepare petitioner prior to his testimony at trial, (3) adequately prepare for the punishment phase of trial and present available mitigating evidence, and (4) request a "vehicle" for the jury to give effect to petitioner's mitigating evidence showing petitioner was an immature young man who had found religion while in jail, was now a "model prisoner," and was likely to become less aggressive as he continued to mature.
The Sixth Amendment entitles criminal defendants to "the effective assistance of counsel," i.e., legal representation that does not fall below an objective standard of reasonableness in light of prevailing professional norms and the circumstances of the defendant's case, Wong v. Belmontes, ___ U.S. ___, 130 S.Ct. 383, 384, 175 L.Ed.2d 328 (2009); Bobby v. Van Hook, ___ U.S. ___, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (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, ___ U.S. ___, 130 S.Ct. 447, 452-53, 175 L.Ed.2d 398 (2009); Wong v. Belmontes, 130 S.Ct. at 386.
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, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (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, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption the conduct of his trial counsel falls within a wide range of reasonable
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, 123 S.Ct. at 2542; Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542; Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.
In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the aggravating evidence against the totality of available mitigating evidence (had the petitioner's trial counsel chosen a different course). Wong v. Belmontes, ___ U.S. at ___, 130 S.Ct. at 386; Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542. 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 capital murder trial would have been different. Wong v. Belmontes, ___ U.S. at ___, 130 S.Ct. at 390-91.
In evaluating petitioner's complaints about the performance of his counsel under the AEDPA, 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, 124 S.Ct. 1156, 157 L.Ed.2d 1050 (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, this Court's review of the un-adjudicated prong is de novo. See Porter v. McCollum, ___ U.S. at ___, 130 S.Ct. at 452 (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. 374, 390, 125 S.Ct. 2456, 2467, 162 L.Ed.2d 360 (2005) (holding de novo review of the prejudice prong of Strickland was 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, 123 S.Ct. at 2542 (holding the same).
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. at 698, 122 S.Ct. at 1852; Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066; Scheanette v. Quarterman, 482 F.3d at 820; Sonnier v. Quarterman, 476 F.3d 349, 356 (5th Cir.), cert. denied, 552 U.S. 948, 128 S.Ct. 374, 169 L.Ed.2d 259 (2007); Amador v. Quarterman, 458 F.3d 397, 410 (5th Cir.2006), cert. denied, 550 U.S. 920, 127 S.Ct. 2129, 167 L.Ed.2d 866 (2007); Gonzales v. Quarterman, 458 F.3d 384, 390 (5th Cir.2006), cert. denied, 549 U.S. 1323, 127 S.Ct. 1909, 167 L.Ed.2d 568 (2007).
Furthermore, under the AEDPA, in order to obtain federal habeas relief on an ineffective assistance claim rejected on the merits by a state court, the petitioner must do more than convince the federal court the state court applied Strickland incorrectly—the petitioner must show the state court applied Strickland to the facts of his case in an objectively unreasonable manner. Bell v. Cone, 535 U.S. at 699, 122 S.Ct. at 1852.
In his second claim, petitioner argues his trial counsel failed to present evidence and argue at the punishment phase of his capital trial that petitioner's immaturity mitigated in favor of a life sentence.
Petitioner presented this same complaint about the performance of his trial counsel as petitioner's fourth assertion of ineffective assistance in petitioner's second claim for state habeas corpus relief.
As explained in Section I, subpart D, item 2 above, during the punishment phase of petitioner's capital murder trial, petitioner's counsel presented testimony from: (1) the pastor of the church petitioner attended
During closing argument at the punishment phase of petitioner's trial, petitioner's counsel repeatedly emphasized petitioner's youth and immaturity, pointing out petitioner: (1) "committed this crime when he was 18 years old,"
Petitioner presented the state habeas court with no additional evidence addressing petitioner's immaturity or youth which petitioner's trial counsel failed to present to petitioner's capital sentencing jury. Petitioner does not identify for this Court any additional evidence, available at the time of petitioner's trial, which would have established or highlighted petitioner's youth and immaturity to any greater extent than did the witnesses actually called by petitioner's trial counsel. Petitioner did not present the state habeas court with any additional jury arguments he claimed his trial counsel should have made at the punishment phase of trial to further emphasize petitioner's youth and immaturity as mitigating factors. Likewise, petitioner has identified to this Court no additional arguments his trial counsel could have made at trial which would have made clarified further their contention that petitioner was a young, immature man, still in his teens, who was becoming religious, had demonstrated he could behave while incarcerated, and did not warrant imposition of the death penalty. Petitioner presented the state habeas court with no evidence showing there was anything else his trial counsel could reasonably have done to make petitioner's youth and immaturity any more plain to petitioner's capital sentencing jury than they did.
This Court has independently reviewed the record from petitioner's trial and state habeas corpus proceeding and has carefully considered the arguments urged by petitioner in his second claim for federal habeas relief. This Court finds petitioner's trial counsel did everything possible to place petitioner's youth and immaturity at the forefront of petitioner's jury when it retired to deliberate petitioner's fate. This Court independently concludes there was nothing objectively unreasonable
The state habeas trial court acted in an objectively reasonable manner when it concluded petitioner's complaint about his trial counsel's alleged failure to present evidence and argue petitioner's youth and immaturity as a mitigating factor failed to satisfy the deficient performance prong of Strickland analysis.
Petitioner's trial counsel presented evidence during the punishment phase of trial establishing petitioner was barely eighteen years of age at the time of his offense, was moderately immature, had matured spiritually during his pretrial detention, had behaved in an non-aggressive manner throughout his pretrial detention, and could reasonably be expected to become less impulsive and aggressive as he aged and matured. Petitioner's trial counsel also argued petitioner's youth and immaturity as mitigating factors and pointed out petitioner's relatively limited criminal record prior to the murder of David Alejandro. Petitioner has not identified any additional evidence or arguments concerning petitioner's youth and immaturity available at the time of petitioner's trial which his trial counsel failed to present to petitioner's capital sentencing jury. Petitioner's capital sentencing jury was well aware of petitioner's youth and immaturity and all of the mitigating arguments which could reasonably be derived from those facts when it undertook its deliberations at the punishment phase of petitioner's capital murder trial.
This Court independently concludes there is no reasonable probability that, but for any failure by petitioner's trial counsel to further argue or present evidence concerning petitioner's youth and immaturity, the outcome of the punishment phase of petitioner's capital murder trial would have been any different. Petitioner's trial counsel did everything possible to make the jury aware of petitioner's youth and immaturity and to urge the jury to consider those factors in mitigation of petitioner's sentence, with regard to both the future dangerousness and mitigation special issues. There was nothing objectively unreasonable with the state habeas court's conclusion that this particular ineffective assistance claim failed to satisfy the prejudice prong of Strickland.
The rejection on the merits by the Texas Court of Criminal Appeals, in the course of petitioner's state habeas corpus proceeding, of petitioner's claim of ineffective assistance regarding petitioner's trial counsels' presentation of mitigating evidence and arguments regarding petitioner's youth and immaturity was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state trial and state habeas corpus proceedings. The Texas Court of Criminal Appeals' conclusion this particular complaint of ineffective assistance failed to satisfy either prong of the Strickland standard was the product of a reasonable application of that legal standard. Petitioner's second claim does not warrant relief under the AEDPA.
In his third claim for relief, petitioner argues his trial counsel failed to adequately prepare petitioner to testify and failed to anticipate the damaging nature of petitioner's punishment phase testimony.
Petitioner presented a significantly different ineffective assistance claim as his third assertion of ineffective assistance in his state habeas corpus application; more specifically, petitioner argued in his state habeas application his trial counsel rendered ineffective assistance by recalling petitioner to testify during the punishment phase of trial and, thereby, "interjecting" prejudicial testimony from petitioner.
Petitioner failed to present his third claim for relief to the state habeas court. The allegation of ineffective assistance urged by petitioner in his state habeas corpus application focused on his trial counsels' tactical decision to recall petitioner to testify after petitioner's first trip to the witness stand had neutralized the efforts of petitioner's trial counsel to gain petitioner a life sentence. The state habeas trial court concluded petitioner had effectively painted his own trial counsel into a strategic corner which mandated recalling petitioner to testify in what turned out to be an unsuccessful attempt to get petitioner to express sincere remorse for his role in David Alejandro's robbery and murder. Therefore, the state habeas court concluded petitioner's trial counsel could not be faulted for attempting to cure some of the harm done by petitioner during his first trip to the witness stand.
In contrast to his complaint in state habeas court, petitioner's third claim presents this Court with a complaint about his trial counsels' alleged failure to adequately prepare petitioner to testify at trial. The state habeas trial court was never presented with this factual theory of ineffective assistance and, therefore, made no factual findings or legal conclusions regarding same. Rather, the state habeas court limited its focus to the question whether petitioner's trial counsel had rendered ineffective assistance in recalling petitioner to testify after petitioner's first trip to the witness stand. Thus, the third claim petitioner presents to this Court is factually distinct from the somewhat analogous ineffective
Because petitioner failed to present the state courts with his third claim, i.e., his complaint about his trial counsels' alleged failure to adequately prepare petitioner to testify, this Court's review of that claim is necessarily de novo. See Porter v. McCollum, ___ U.S. ___, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) (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. 374, 390, 125 S.Ct. 2456, 2467, 162 L.Ed.2d 360 (2005) (holding de novo review of the prejudice prong of Strickland was 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. 510, 534, 123 S.Ct. 2527, 2542, 156 L.Ed.2d 471 (2003) (holding the same).
This Court has carefully reviewed the testimony from petitioner's state habeas corpus proceeding. Both of petitioner's trial counsel testified they advised petitioner of his right to testify and discussed with petitioner the potential pitfalls to be anticipated should petitioner choose to exercise his right to testify.
Petitioner testified extensively during his state habeas corpus proceeding but did not controvert the assertions of his trial counsel that: (1) they discussed petitioner's statement and the facts of the case extensively with petitioner prior to trial, (2) they advised petitioner of his right to testify, (3) they discussed the potential pitfalls of testifying with petitioner, and (4) petitioner made the decision to testify on both occasions at the punishment phase of his capital murder trial against the advice of counsel. Petitioner also furnished no testimony to the state habeas court suggesting there was anything his trial counsel could have said or done to alter or change petitioner's decision to testify in the manner petitioner did during the punishment phase of trial. Likewise, petitioner alleges no specific facts in this Court suggesting there was anything his trial counsel could have done to prevent petitioner from taking the stand during the punishment phase of trial and eviscerating his trial counsel's efforts to convince the jury to give petitioner a life sentence.
On the contrary, petitioner testified during his state habeas hearing, in pertinent part, as follows:
This Court finds: (1) petitioner's trial counsel interviewed petitioner prior to trial and fully discussed the facts set forth in petitioner's written statement to police, which facts petitioner did not deny during his conversations with his trial counsel,
There is no evidence currently before this Court establishing there was any information reasonably available to petitioner's trial counsel prior to petitioner taking the stand to testify at the punishment phase of trial suggesting petitioner planned to either deny responsibility for David Alejandro's murder or admit he had thought about taking the bailiff's gun and shooting people in the courtroom. Petitioner's trial counsel cannot be faulted for failing to anticipate petitioner would engage in such a course of conduct. See United States v. Fields, 565 F.3d 290, 294 (5th Cir.) (clairvoyance is not a required attribute of effective representation), cert. denied, ___ U.S. ___, 130 S.Ct. 298, 175 L.Ed.2d 199 (2009); Sharp v. Johnson, 107 F.3d 282, 289 n. 28 (5th Cir. 1997) (holding the same).
In view of the foregoing factual findings, based primarily on the record from petitioner's trial and the testimony from petitioner's state habeas corpus hearing, this Court independently concludes there was nothing objectively unreasonable with petitioner's trial counsels' preparation of petitioner to testify at trial, the initial decision by petitioner's trial counsel to call petitioner to testify during the punishment phase of trial initially (in an attempt to portray petitioner as repentant), or the decision by petitioner's trial counsel to recall petitioner in an effort to mitigate the damage done by petitioner's unforeseeable refusal to accept any responsibility for David Alejandro's murder during petitioner's initial appearance on the witnesses stand. Under these circumstances, the performance of petitioner's trial counsel did not fall below an objective level of reasonableness. Petitioner's third claim does not satisfy the first prong of Strickland analysis.
"In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542.
There is no evidence before this Court establishing there was anything petitioner's trial counsel could have done to prevent petitioner from exercising his constitutional right to testify during the punishment phase of his capital murder trial and refusing to accept any responsibility for David Alejandro's murder. Petitioner's continued refusal to accept any responsibility for David Alejandro's murder effectively assisted the prosecution at the punishment phase of trial. Petitioner's argument he did not deliver the fatal injury and is absolved of being held legally responsible for David Alejandro's murder
While petitioner's trial counsel attempted to portray petitioner as a young, immature person who had found religion while awaiting trial and had behaved during his pretrial detention, the undisputed evidence presented to the jury also showed: (1) petitioner was removed from public school and eventually expelled for repeated violations of the rules, (2) less than two years before David Alejandro's murder, petitioner, an unlicensed driver, led police on a high-speed chase in a vehicle which did not end until petitioner crashed his vehicle, and (3) only days before David Alejandro's murder, petitioner attacked a police officer who observed petitioner engaged in an attempted burglary of a residence and the officer was so challenged by the ferocity of the petitioner's assault he felt it necessary to discard his police handgun during the struggle until he could secure petitioner. Thus, there was evidence before the jury showing the petitioner, while still young, had a lengthy history of anti-social behavior dating back to his early teen years which escalated into a violent assault upon a police officer only days before David Alejandro's murder.
Petitioner's refusal to accept any responsibility for David Alejandro's murder and petitioner's admission he had thought about taking the bailiff's gun and shooting people in the courtroom appears to have had a devastating impact upon the capital sentencing jury. But that was not the only aggravating evidence before the jury at the punishment phase of petitioner's trial.
There is no evidence before this Court establishing there was anything petitioner's trial counsel could have done to prevent petitioner from testifying in the manner petitioner chose to do so at the punishment phase of his capital murder trial. Petitioner has presented this Court with no fact specific allegations or any evidence establishing petitioner would have heeded the advice or recommendation of his trial counsel not to testify during the punishment phase of trial in the manner petitioner chose to do. On the contrary, one of petitioner's trial counsel, attorney Kevin Collins, testified without contradiction during petitioner's state habeas hearing that he advised petitioner against testifying at the punishment phase of trial but the petitioner chose to do so nonetheless.
The facts of petitioner's offense detailed in petitioner's written statement to police, largely uncontested throughout the guilt-innocence phase of trial, established petitioner planned and prepared for some time to rob and murder David Alejandro, a person petitioner himself described at trial as a very nice person. Petitioner secured the assistance of two others to complete the robbery and murder and himself undertook significant preparations before arriving at David Alejandro's studio on the night in question. Petitioner and his accomplices worked for several hours in David Alejandro's studio before petitioner initiated the fatal assault on their host. Once David Alejandro was dead, petitioner covered the body with a sheet petitioner had brought with him. Thus, petitioner's offense involved a high degree of planning
In addition, there was uncontested evidence introduced during the punishment phase of trial establishing David Alejandro's murder robbed the community of an individual who routinely helped those, such as petitioner and Doug Williams, just getting started in the music business.
Petitioner's mitigating evidence consisted primarily of testimony: (1) from petitioner's parents which sought to establish (a) petitioner was a young man who was not to blame for his antisocial behavior but, rather, the victim of unsympathetic school officials, and (b) petitioner suffered because of his father's overseas military assignment during petitioner's formative early teen years; (2) from Dr. Sparks and a BCADC officer which sought to establish petitioner had a non-violent record during his pretrial detention, (3) from Reverend Patterson which sought to establish petitioner had become religious during his pretrial detention and was on his way toward becoming a follower of Christ, and (4) from Dr. Sparks which sought to establish petitioner was an immature young man who could be expected to grow less impulsive and aggressive as he aged and matured.
After reweighing the aggravating and mitigating evidence presented during petitioner's trial and state habeas corpus proceeding, this Court finds there is no reasonable probability that, but for the failure of petitioner's trial counsel to "adequately prepare" petitioner to testify at the punishment phase of trial, the outcome of that phase of petitioner's capital murder trial would have been any different.
Despite the advice of his trial counsel not to testify, petitioner chose to take the stand and try to convince the jury he was not responsible for David Alejandro's murder. Petitioner also chose not to reveal his intentions to his trial counsel. Moreover, even if petitioner had not testified as he did at the punishment phase of trial, this Court is convinced the facts of petitioner's offense and the meager mitigating evidence available to be presented would not have altered the jury's answers to the Texas capital sentencing special issues. The degree of planning and preparation involved in petitioner's offense, combined with the extremely violent nature of petitioner's assault upon David Alejandro and the petitioner's escalating record of violent conduct would likely have convinced petitioner's capital sentencing jury to answer the future dangerousness special issue affirmatively even if petitioner had not taken the stand and refused to accept any responsibility for David Alejandro's murder. The petitioner's parents offered little more in their trial testimony (and testimony during petitioner's state habeas corpus proceeding) than excuses for petitioner's increasingly violent criminal conduct, blaming educators and themselves but never acknowledging the petitioner's demonstrated propensity for violence.
There is no reasonable probability the petitioner's capital sentencing jury would have answered the mitigation special issue differently, even if petitioner had not taken
This Court independently concludes petitioner's third claim fails to satisfy the prejudice prong of Strickland.
Petitioner's third claim fails to satisfy either prong of the Strickland test. Therefore, petitioner's complaint about his trial counsels' alleged failure to adequately prepare petitioner to testify at trial does not warrant federal habeas corpus relief.
Alternatively, for the reasons set forth above, insofar as petitioner's third claim can be construed as mirroring the claim presented by petitioner as his third assertion of ineffective assistance in petitioner's state habeas corpus application, the rejection by the Texas Court of Criminal Appeals on the merits of that claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial and state habeas corpus proceeding. On the contrary, the state habeas court's conclusion that petitioner's trial counsel acted in an objectively reasonable manner in recalling petitioner to testify at the punishment phase of trial was itself an objectively reasonable application of the first prong of Strickland analysis.
In his fifth claim, petitioner argues his trial counsel failed to call unidentified available witnesses who could have furnished unspecified additional mitigating evidence.
In his eighth assertion of ineffective assistance contained in his second claim for state habeas corpus relief, petitioner complained his trial counsel failed to present unidentified witnesses at the punishment phase of trial who could have furnished unspecified, additional mitigating evidence.
During the evidentiary hearing held in petitioner's state habeas corpus proceeding, petitioner failed to call any new witnesses to testify about any mitigating evidence. Instead, petitioner elicited essentially the same testimony from petitioner's parents they had given during the punishment phase of petitioner's trial.
Specifically, petitioner's father testified during the state habeas corpus hearing: (1) he gave petitioner's trial counsel the names of several unidentified character witnesses who could have testified about unspecified information,
Petitioner's mother testified during the same state habeas corpus hearing: (1) petitioner was under stress at the time of David Alejandro's murder because petitioner's girlfriend was expecting a child and both of petitioner's parents were overseas,
Both of petitioner's trial counsel testified before the state habeas court they presented at trial every character witness of whom they were aware.
The state habeas trial court expressly found: (1) while petitioner's father testified he was aware of additional character
Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative. Day v. Quarterman, 566 F.3d 527, 538 (5th Cir.2009); Coble v. Quarterman, 496 F.3d 430, 436 (5th Cir. 2007); Miller v. Dretke, 420 F.3d 356, 362 (5th Cir.2005); United States v. Harris, 408 F.3d 186, 190 (5th Cir.), cert. denied, 546 U.S. 919, 126 S.Ct. 297, 163 L.Ed.2d 259 (2005); Graves v. Cockrell, 351 F.3d 143, 156 (5th Cir.2003). "Ordinarily, a defendant's failure to present some evidence from the uncalled witness regarding that witness's potential testimony and willingness to testify would be fatal to an ineffective assistance of counsel claim." Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir.2007) (Emphasis in original).
Petitioner's trial counsel presented the jury with the two persons best qualified to comment on petitioner's character, i.e., petitioner's parents. The only "new" or "additional" potentially mitigating testimony offered by petitioner's parents at the state habeas hearing consisted of an anecdote from petitioner's mother about a gift of shoes from an unknown benefactor and both of petitioner's parents' assertions the petitioner could not commit murder. These later assertions were tempered with their candid admissions they had no personal knowledge regarding the circumstances of petitioner's offense. One of petitioner's trial counsel testified without contradiction during the state habeas corpus proceeding that he interviewed petitioner's father extensively about petitioner's background.
Petitioner presented the state habeas court with no testimony from any uncalled witnesses and no affidavits purporting to establish the substance of any admissible testimony these unidentified witnesses could have furnished at petitioner's trial. Petitioner thereby deprived the state habeas court of any evidentiary basis for concluding the strategic decision by petitioner's trial counsel not to call these witnesses was objectively unreasonable. Under
For the foregoing reasons, the state habeas court's conclusion petitioner's complaint about his trial counsels' alleged failure to develop and present additional mitigating evidence failed to satisfy the deficient performance prong of Strickland was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Nor was the state habeas court's conclusion based on an unreasonable determination of the facts in light of the evidence presented in the petitioner's state trial and state habeas corpus proceedings.
Without some showing a counsel's subjective decision-making was objectively unreasonable in view of the information and evidence then available to counsel, it is almost impossible for a habeas corpus petitioner to overcome the presumption of reasonableness afforded his counsel's strategic and tactical decisions under Strickland. See Gutierrez v. Dretke, 392 F.Supp.2d 802, 875-76 (W.D.Tex.2005), CoA denied, 201 Fed.Appx. 196 (5th Cir.2006) (recognizing the burden on a habeas petitioner asserting a Wiggins claim includes demonstrating that, in light of the potentially mitigating evidence and information available at the time of trial, his trial counsel's efforts to investigate, develop, and present potentially mitigating evidence were objectively unreasonable), cert. denied, 549 U.S. 1227, 127 S.Ct. 1297, 167 L.Ed.2d 112 (2007).
During his state habeas corpus hearing, petitioner's trial counsel testified they presented all the mitigating evidence of which they were aware. Petitioner's father may have furnished counsel with the names of additional character witnesses but, without some showing those alleged additional character witnesses actually possessed personal knowledge of admissible evidence, petitioner cannot show the failure of petitioner's trial counsel to call any such witness was objectively unreasonable. See Neal v. Puckett, 286 F.3d 230, 237 (5th Cir.2002) (recognizing that, in evaluating the performance of trial counsel against a claim that said counsel failed to investigate and present mitigating evidence, the relevant inquiry focuses on what counsel did to prepare for sentencing, what mitigating evidence counsel accumulated, what additional leads counsel had, and the results said counsel might reasonably have expected from those leads), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003).
It is essential a habeas petitioner asserting a claim of ineffective assistance by his trial counsel arising from deficient performance not manifested on the face of the trial or appellate record develop and present the state habeas court with evidence regarding the objective unreasonableness of his trial counsel's performance in light of the circumstances as they existed at the time of the petitioner's trial. This requires inquiry into both the quality of trial counsel's subjective thought processes and the objective reasonableness of same. Moore v. Quarterman, 526 F.Supp.2d 654, 695 (W.D.Tex.2007). More specifically, this means a habeas petitioner must place
The prosecution's punishment phase evidence, the details of petitioner's crime, as well as petitioner's performance during cross-examination at the punishment phase of his trial combined to ensure any rational jury would answer petitioner's capital sentencing special issues in a manner favorable to the prosecution. This does not change even when considering the weak, additional, mitigating evidence petitioner presented through his parents during petitioner's state habeas corpus proceeding. There is no reasonable probability that, but for the failure of petitioner's trial counsel to present the additional testimony from petitioner's parents offered during petitioner's state habeas corpus proceeding, the outcome of the punishment phase of petitioner's trial would have been any different.
Because petitioner failed to present the state habeas court with any evidence showing what any of the unidentified, uncalled, character witnesses to whom petitioner's father alluded could have furnished in terms of admissible testimony at the time of petitioner's capital murder trial, petitioner's complaint about these uncalled witnesses fails to satisfy the prejudice prong of Strickland. 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); Moore v. Quarterman, 526 F.Supp.2d at 696 (holding the same).
This Court independently concludes petitioner's complaints about his trial counsels' alleged failure to present additional mitigating evidence during the punishment phase of petitioner's capital murder trial fail to satisfy either prong of Strickland analysis.
The rejection by the Texas Court of Criminal Appeals rejection on the merits of this ineffective assistance claim in the course of petitioner's state habeas corpus proceeding was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial and state habeas corpus proceedings.
In his seventh claim, petitioner argues his trial counsel should have objected to the punishment phase jury charge or requested supplemental instructions informing the jury it could give mitigating effect to petitioner's evidence of: (1) his youth and immaturity at the time of his offense, (2) his potential to improve his character and outgrow his youthful aggressiveness, (3) his record as a "model prisoner" during his pretrial detention, and (4) his personal spiritual growth and increasing maturity during his pretrial detention; petitioner argues the Texas capital sentencing special issues did not permit adequate consideration by petitioner's jury of the foregoing mitigating evidence because the statutory definition of "mitigating evidence" included in petitioner's punishment phase jury charge limited the jury's consideration of "mitigating evidence" to only such evidence which reduced petitioner's moral blameworthiness for his offense.
Petitioner raised the same argument as his ninth claim for state habeas relief albeit in a different form.
As was explained in Section V subpart D above, the Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990).
The Supreme Court has consistently applied this standard to evaluate challenges to punishment phase jury instructions. See Abdul-Kabir v. Quarterman, 550 U.S. 233, 262-63, 127 S.Ct. 1654, 1674, 167 L.Ed.2d 585 (2007) (holding the proper test is whether there is a reasonable likelihood the jury applied the challenged instruction in a way that prevented its consideration of constitutionally relevant evidence); Ayers v. Belmontes, 549 U.S. 7, 13, 127 S.Ct. 469, 473-74, 166 L.Ed.2d 334 (2006) (holding the same); Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 2102-03 & n. 9, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted
Thus, the Supreme Court has clearly established the principle that "sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future." Abdul-Kabir v. Quarterman, 550 U.S. at 246, 127 S.Ct. at 1664.
The failure of petitioner's trial counsel to request a supplemental jury instruction addressing petitioner's mitigating evidence did not cause the performance of counsel to fall below an objective level of reasonableness. As was explained in Section V, subpart D above, there was nothing constitutionally deficient in petitioner's punishment phase jury instructions.
The failure of petitioner's trial counsel to raise a meritless objection to the punishment phase jury charge did not cause the performance of said counsel to fall below an objective level of reasonableness. See 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. filed November 19, 2010 (no. 10-7650); 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, 128 S.Ct. 1874, 170 L.Ed.2d 752 (2008); Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir.2002) (holding there was nothing deficient in counsel's failure to object to the admission of psychiatric testimony that was admissible under then-existing precedent), cert. denied, 538 U.S. 926, 123 S.Ct. 1573, 155 L.Ed.2d 319 (2003); Robison v. Johnson, 151 F.3d 256, 261 (5th Cir.1998) (nothing deficient regarding trial counsel's failure to seek admission of a document the state court concluded was inadmissible), cert. denied, 526 U.S. 1100, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999); Emery v. Johnson, 139 F.3d 191, 198 (5th Cir.1997) (failure to assert a meritless objection cannot be the grounds for a finding of deficient performance), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142 L.Ed.2d 339 (1998).
Moreover, petitioner has failed to show what type of supplemental jury instruction his trial counsel should have offered to ensure the jury's consideration of petitioner's mitigating evidence. By directing the jury to consider petitioner's character and background in connection with both the first and third special issues, i.e., the future dangerousness and mitigation issues, petitioner's punishment phase jury instructions afforded his jury multiple opportunities to give "mitigating" effect to all of petitioner's potentially mitigating evidence of his: (1) youth and immaturity at the time of his offense, (2) non-violent record during pretrial detention, (3) spiritual growth and maturation during pretrial detention, and (4) potential for further maturation and spiritual growth, with an accompanying reduction in impulsiveness and aggressiveness. Petitioner's narrow construction of his punishment phase jury charge is not reasonable given the extensive evidence of petitioner's background and character admitted into evidence, as well as petitioner's trial counsels' arguments calling the jury's attention to petitioner's youth, immaturity, recent spiritual development, non-violent jail record, and potential for further maturation and spiritual development.
Petitioner's trial counsels' failure to raise a meritless objection to petitioner's punishment phase jury instruction did not "prejudice" petitioner within the meaning
Petitioner's seventh claim fails to satisfy either prong of Strickland analysis. The rejection on the merits by the Texas Court of Criminal Appeals during petitioner's state habeas corpus proceeding of this ineffective assistance claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial and state habeas corpus proceedings.
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, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir.1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041, 118 S.Ct. 1342, 140 L.Ed.2d 502 (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. Cockrell, 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; Muniz v. Johnson, 114 F.3d at 45; 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, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).
To make such a showing, the petitioner need not show he will prevail on the
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. If this Court rejects a prisoner's constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court's assessment of the constitutional claim to be debatable or wrong. "[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. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. 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, 120 S.Ct. at 1604 (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 the claim is a valid assertion of the denial of a constitutional right and 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, ___ U.S. ___, 130 S.Ct. 536, 175 L.Ed.2d 350 (2009); Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir.2008); Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir.2006), cert. denied, 550 U.S. 906, 127 S.Ct. 2099, 167 L.Ed.2d 817 (2007); Dickson v. Quarterman, 462 F.3d 470, 476 (5th Cir.2006); Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005), cert. denied, 549 U.S. 828, 127 S.Ct. 351, 166 L.Ed.2d 49 (2006); Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir.2005), cert. denied, 548 U.S. 909, 126 S.Ct. 2961, 165 L.Ed.2d 959 (2006).
Nonetheless, a CoA is not automatically granted in every death penalty habeas case. See Miller-El v. Cockrell, 537 U.S. at 337, 123 S.Ct. at 1040 ("It follows that issuance of a COA must not be pro forma or a matter of course."); Sonnier v. Quarterman, 476 F.3d 349, 364-69 (5th Cir.) (denying CoA on a wide variety of challenges to the Texas capital sentencing scheme, including some similar to petitioner Jasper's eighth through fourteenth claims presented in this case), cert. denied, 552 U.S. 948, 128 S.Ct. 374, 169 L.Ed.2d 259 (2007).
With the exception of his Batson claim, none of petitioner's claims herein satisfy the standard for obtaining a CoA.
Petitioner's ineffective assistance claims all fail to satisfy either of the prongs of Strickland analysis. During his state habeas corpus proceeding, petitioner failed to present substantial evidence showing there was material mitigating evidence available at the time of his trial which his trial counsel failed to develop or present. Likewise, petitioner's own testimony during his state habeas corpus proceeding established petitioner undermined his trial counsels' efforts to obtain a life sentence for petitioner by "surprising" counsel with trial testimony in which petitioner refused to accept any responsibility for David Alejandro's murder. After petitioner gave that testimony, counsel had little practical choice left but to recall petitioner and attempt to limit the damage done by petitioner's initial refusal to accept responsibility. Petitioner only worsened his situation by once more refusing to accept any responsibility for David Alejandro's murder (despite admitting he planned and coordinated the robbery and murder and made the first assault on David Alejandro) and volunteering he had thought about grabbing a bailiff's gun and shooting people in the courtroom.
The evidence of petitioner's escalating propensity for violence combined with the facts of petitioner's offense and his refusal to accept any responsibility dwarf the meager mitigating evidence showing petitioner had become religious while awaiting trial and might grow less aggressive if allowed to mature for many years. At the punishment phase of trial, the jury had before it petitioner's detailed confession, in which he admitted planning David Alejandro's robbery and murder, recruiting others to assist in that endeavor, and initiating the fatal assault on David Alejandro with a particularly brutal act. Only days before David Alejandro's murder, petitioner assaulted a police officer who caught petitioner engaged in an attempted burglary. Given petitioner's refusal to accept responsibility for his crime, there was little petitioner's trial counsel could do to save petitioner's life. Petitioner's testimony during his state habeas corpus proceeding reveals there was nothing his trial counsel could have done to keep petitioner from taking the stand and eviscerating their trial strategy designed to gain petitioner a life sentence. Petitioner is not entitled to a CoA on his second, third, fifth, or seventh claims herein.
Petitioner's constitutional challenges to the Texas capital sentencing scheme present claims this Court and the Fifth Circuit have consistently rejected for more than half a decade. Petitioner made no effort to distinguish the rulings by this Court or the many opinions by the Fifth Circuit Court of Appeals rejecting those constitutional complaints on the merits. Petitioner's eighth through fourteenth claims herein have been denied on the merits repeatedly by this Court and the Fifth Circuit. This Court has also rejected those same claims as bases for a CoA. See, e.g., Bartee v. Quarterman, 574 F.Supp.2d at 712-14 (denying CoA on many of the same claims asserted by petitioner in his eighth through fourteenth claims herein); Moore v. Quarterman, 526 F.Supp.2d at 740 (denying CoA on many of the same constitutional challenges to the Texas capital sentencing scheme raised by petitioner herein). Petitioner is not entitled to a CoA on any of his eighth through fourteenth claims.
Petitioner's fourth and sixth claims herein are without factual or legal support in the record and do not warrant issuance of a CoA. There was no "conflict
Petitioner's complaint about the prosecution's use of a peremptory strike against venire member Galloway lacks merit for several reasons, chief among them is petitioner's failure to present the state appellate and habeas courts, as well as this Court, with copies of the pertinent juror questionnaires that formed the bulk of the voir dire examination of petitioner's jury venire. Furthermore, contrary to the unsubstantiated suggestions contained in petitioner's pleadings, this Court's independent review of the voir dire examination of petitioner's jury venire did not reveal discriminatory questioning of Vernon Galloway by the prosecution. Mr. Galloway did far more than the other members of petitioner's jury venire who expressed reluctance to serve on a jury which could potentially be faced with the task of determining whether to sentence a criminal defendant to death. Mr. Galloway also answered more than a half-dozen other written questions in a manner suggesting he had serious doubts about the efficacy of the death penalty. He also volunteered he did not feel he could "act as God." Under such circumstances, it would have been unusual for the prosecution not to inquire about that declaration and those questionnaire answers. Petitioner has not identified any other member of his jury venire who, like Vernon Galloway, answered their juror questionnaire with as many "red flag" answers on questions inquiring about their views on the efficacy of the death penalty as did Mr. Galloway.
Moreover, unlike the situation in Snyder v. Louisiana, the prosecution did not offer one or two superficial reasons for rejecting Vernon Galloway as a juror but, rather, furnished the state trial court with a plethora of facially race-neutral reasons for striking Vernon Galloway ranging from Vernon Galloway's many questionnaire answers questioning the efficacy of the death penalty to Mr. Galloway's unwarranted subjective feeling that he had been "rushed" or "hurried" to answer his juror questionnaire (when no objective time constraint ever existed on that task) to Mr. Galloway's gold hoop earring. There was nothing implicitly implausible or questionable about any of the prosecution's proffered justifications for peremptorily striking Vernon Galloway. Viewed against the record now before this Court, the prosecution's reasoning appears not only sincere but compelling. This Court finds nothing inherently implausible or fantastic about any of the prosecution's proffered reasons for striking Vernon Galloway.
The Bexar County District Attorneys' Office does not have a demonstrated, long-standing record of overt racial discrimination in the selection of capital jurors.
Nonetheless, the Supreme Court has noted that a CoA may issue on a debatable Batson claim even where there is no certainty of ultimate relief. Miller-El v. Cockrell, 537 U.S. at 337, 123 S.Ct. at 1039. There are several reasons why a CoA should issue with regard to petitioner's Batson claim herein. First, the state trial judge made no express factual findings regarding the credibility of the prosecution's proffered race-neutral reasons for striking Mr. Galloway. Second, neither the state appellate court nor this Court were furnished copies of the venire members' juror questionnaire answers. Third, Mr. Galloway's answers regarding his personal views of the efficacy of the death penalty given during individual oral voir dire differed so vastly from his written questionnaire answers on the same subject as to place particular significance on the trial court's favorable credibility determinations of the prosecution's race-neutral explanations for striking Vernon Galloway. Fourth, the prosecution accepted venire member Gloria Salazar after making an unsuccessful challenge for cause based on her consistent representations of reluctance to vote to impose the death penalty, which reluctance wavered only when she was interrogated by the state trial judge. Fifth, this Court and other federal habeas courts would benefit from any guidance the Fifth Circuit could furnish regarding whether petitioner's failure to present the state appellate court with copies of the relevant venire members' questionnaire answers effectively waived petitioner's Batson claim herein. Given the incomplete record from voir dire currently before this Court, i.e., the absence of the venire members' questionnaire answers, and the prosecution's unexplained acceptance of Gloria Salazar as a juror, the prudent course appears to be to grant petitioner a CoA on this Batson claim herein.
Granting petitioner a CoA on the Batson claim will also permit the Fifth Circuit to interrogate the respective parties' counsel at oral argument concerning the factual bases for their respective positions on the credibility of the prosecution's proffered race-neutral reasons for striking Vernon Galloway.
Accordingly, it is hereby
1. All relief requested in petitioner's federal habeas corpus petition, filed July 31, 2009, docket entry no. 10, is
2. Petitioner is granted a Certificate of Appealability on his first claim herein, i.e., the Batson claim arising from the prosecution's use of a peremptory strike against venire member Vernon Galloway.
3. Petitioner is
4. All other pending motions are
5. The Clerk shall prepare and enter a Judgment in conformity with this Memorandum Opinion and Order.
Petitioner's written statement was also read into the record in open court during petitioner's trial. S.F. Trial, Volume 16, testimony of Billy Rutland, at pp. 196-208.
Nonetheless, petitioner consistently asserted that he had not "personally" killed David Alejandro and was not "culpable" for David Alejandro's murder because: (1) the medical examiner testified David Alejandro was killed by multiple stab wounds and the wound to the front of David Alejandro's neck would not have been fatal by itself and (2) Steven Russell was the person who stabbed David Alejandro multiple times. S.F. Trial, Volume 21, testimony of Ray Jasper, III, at pp. 151-53; S.F. State Habeas Hearing, testimony of Ray Jasper, III, at pp. 138-40, 144-50, 155, 165-67 [State Habeas Transcript, at pp. 243-45, 249-55, 260, 270-72].
Like petitioner, Steven Russell and Doug Williams both gave police written statements following their arrests. Their statements were presented to the state trial court during pretrial proceedings in petitioner's case but never introduced into evidence during petitioner's trial. Steven Russell admitted in his written statement (1) he and petitioner planned the robbery of David Alejandro, (2) he and the petitioner assaulted David Alejandro with knives and (3) immediately thereafter, he and petitioner loaded equipment from David Alejandro's studio into their vehicles. S.F. Trial, Volume 24, at pp. 39-45. Doug Williams admitted: (1) he was present on the night in question, (2) he knew in advance of petitioner's plan to rob David Alejandro, (3) he saw a knife in the van on the ride to David Alejandro's studio, (4) he saw petitioner and Steven Russell fighting with David Alejandro, but (5) he denied he participated in the assault upon David Alejandro. S.F. Trial, Volume 24, at pp. 47-49.
An apartment maintenance contractor and an off-duty Sheriff's deputy working as an apartment security guard both recounted for the jury their unsuccessful efforts to pursue petitioner and his accomplices on the night in question. S.F. Trial, Volume 15, testimony of John Davidsmeyer, at pp. 265-73; Volume 16, testimony of Jesus Garza, at pp. 7-20.
David Alejandro's brother and a former colleague each identified many of the items found inside the vehicles as belonging to David Alejandro. S.F. Trial, Volume 15, testimony of Steven Alejandro, at pp. 29-40; testimony of Michael Morales, at pp. 105-14. The owner of an equipment repair company identified one of the items of electronic equipment police found inside the minivans as an item he had repaired for David Alejandro and returned to David Alejandro in 1995. S.F. Trial, Volume 18, testimony of Mark Naziry, at pp. 25-29. A music equipment store manager testified that a multi-part invoice found inside one the duffel bags police discovered inside the minivans had been issued to David Alejandro in connection with David Alejandro's purchases of microphones and other equipment in 1997. S.F. Trial, Volume 18, testimony of Ernest Sanchez, at pp. 4-14.
The time stamps on the guilt-innocence phase jury charge and verdict form indicate the jury began its deliberations at 12:55 p.m. and returned its verdict at 2:20 p.m. Trial Transcript, Volume 2, at pp. 143-44. The official court reporter's verbatim transcription of trial court proceedings indicates the jury retired to deliberate at 1:50 p.m. and returned with its verdict at 2:22 p.m. S.F. Trial, Volume 19, at pp. 95-96.
On cross-examination, Dr. Sparks reported petitioner had explained his assault upon a police officer as petitioner's attempt to resist an inappropriate arrest. Id. at p. 99. Dr. Sparks also testified that, despite petitioner's confession, petitioner insisted he was not guilty of murder. Id. at p. 102.
The court reporter's record and the date stamps on the punishment phase verdict form indicate petitioner's jury began its deliberations on the punishment phase of trial at approximately 10:41 a.m. on January 20, 2000, and returned its verdict at approximately 1:38 p.m. the same date.
As grounds for relief, petitioner argued: (1) his trial counsel rendered ineffective assistance through a variety of unreasonable acts and omissions, (2) his state appellate counsel rendered ineffective assistance by failing to raise a point of error on direct appeal complaining about the prosecution contacting a member of the jury venire prior to voir dire, and (3) the punishment phase jury charge was defective because it (a) included a number of inadequately defined terms, (b) did not assign a burden of proof on the mitigating evidence special issue, (c) did not furnish the jury with a vehicle to give effect to petitioner's mitigating evidence, and (d) too narrowly defined the term "mitigating evidence." Petitioner also re-urged his Batson claim.
The petitioner's state habeas corpus records include a second set of page numbers for that entire volume, including the relevant portions of the hearing testimony from petitioner's trial counsel cited above, i.e., attorneys Collins and Reece. The corresponding citations to the State Habeas Record for that same testimony are as follows: State Habeas Record, testimony of Kevin Collins, at pp. 119-21, 123-24, 127-28, 131-32, 137-38, 140; testimony of William Reece, Jr., at pp. 151-52, 159-60, 165-66, 172.
Venire member Galloway's juror questionnaire was admitted into evidence during the Batson hearing on November 30, 1999. S.F. Trial, Volume 7, at pp. 78-79.
The entirety of Mr. Lazarin's voir dire examination appears at S.F. Trial, Volume 8, at pp. 83-112.
Employees of Academy and petitioner's parents' bank identified two checks used to purchase the duffel bags as having been drawn on petitioner's' parents checking account (at a time when petitioner's parents were both in Europe). S.F. Trial, Volume 15, testimony of Michelle Hildebrand, at pp. 157-61; testimony of Yvonne Cavazos, at pp. 162-63; testimony of Carmine Sanguedolce, at pp. 168-74.
Likewise, respondent provided little briefing addressing the decision by the prosecution to accept venire member Gloria Salazar, whose reluctance to vote to impose the death penalty was displayed during her individual voir dire examination the state trial court probably could have granted the prosecution's challenge for cause to this member of the jury venire. Because her individual voir dire took place after Mr. Galloway's Batson hearing concluded, the prosecution was never asked to explain why it had accepted Ms. Salazar after it struck Mr. Galloway for giving many similar oral voir dire answers.
