XAVIER RODRIGUEZ, District Judge.
Petitioner Christopher Anthony Young filed this federal habeas corpus action pursuant to 28 U.S.C. Section 2254 challenging his 2006 Bexar County conviction for capital murder and sentence of death for the fatal shooting of Hasmukh Patel during the course of an attempted robbery. For the reasons set forth below, Petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.
The Texas Court of Criminal Appeals' published opinion affirming Petitioner's conviction on direct appeal summarized the pertinent evidence introduced at the guilt-innocence phase of Petitioner's capital murder trial as follows:
Two of Patel's regular customers, Raul Vasquez, Jr. and Hattie Helton, happened to be in the parking lot of the store at the time of the offense. Vasquez had just pulled into a parking space in front of the store. Before he could exit his truck, he heard gunshots and looked up to see a black male leaning over the counter firing a gun at Patel. When the gunman left the store and got into a small red car, Vasquez called the police and then chased the gunman, but with no success. Vasquez was able to tell the police that the car's license plate had a "W" and that the perpetrator was wearing a black shirt and light-colored shorts. Helton, who was parked directly in front of the door, had just exited the store moments earlier and was in her car checking her "scratch-off" lottery tickets. When she heard the store alarm go off, she looked up to see a black male exit the store and get in a small red car that was parked by the gas pumps. Once he was gone, Helton exited her car and called to Patel. When he did not answer, Helton called the police on a payphone located outside of the store. Both Vasquez and Helton identified the appellant as the perpetrator at trial.
The appellant was apprehended at approximately 11:00 a.m. when an officer spotted the red car parked at a house several miles away. The car's license plate began with a "W." The appellant was wearing a black shirt and light-colored shorts. The appellant's hands, shirt, and the steering wheel of the car all tested positive for gunshot residue. Patel's blood was found on one of the appellant's socks. Patel died from the gunshot wound to his chest. The murder weapon was never recovered. Young v. State, 283 S.W.3d 854, 860-61 (Tex. Crim. App. 2009), cert. denied, 558 U.S. 1093 (2009).
On February 13, 2015, a Bexar County grand jury indicted Petitioner on a charge of capital murder, to wit, intentionally causing the death of Patel by shooting Patel with a deadly weapon, namely a firearm, while in the course of committing and attempting to commit the robbery of Patel.
The guilt-innocence phase of Petitioner's capital murder trial commenced on January 30, 2006. On February 1, 2006, after deliberating less than two hours, Petitioner's jury returned its verdict, finding Petitioner guilty of capital murder as charged in the indictment.
The Texas Court of Criminal Appeals' opinion summarized the testimony and other evidence presented during the punishment phase of Petitioner's trial as follows:
At approximately 8:45 a.m. on November 21, 2004, Daphne Edwards was serving breakfast to her three young girls, all under the age of eight, when she realized that she was out of cigarettes. Edwards decided to leave her efficiency apartment and quickly drove to Patel's store about one block away while the children were eating. She was gone less than five minutes. Upon returning, she parked in front of the apartment and went straight inside. Almost immediately after her return, there was a knock on her door. Thinking it was her sister, Edwards opened the door to find the appellant standing there pointing a silver revolver at her. The appellant put the gun to Edwards' head, pushed his way in and asked her, "Where's the fucking money?" The appellant walked Edwards through the apartment at gunpoint to make sure no one else was home other than the children and that there was no access to a phone. The three children were scared and crying. Edwards gave the appellant all the money that she had in her purse—$28—but he told her that she had to give him something else because that was not enough money. The appellant then told Edwards to undress. He had Edwards tell her girls to go to the other room; however, as it was an efficiency apartment the girls could still see and hear everything that happened. The appellant then told Edwards that she was not disrobing quickly enough, so he shot the gun into the floor next to her feet. Edwards disrobed, and the appellant made her sit in a chair and perform oral sex on him. The appellant then made Edwards walk to the bathroom where the children could not fully see what was happening but the appellant could see the children. The appellant then made Edwards get on her knees and perform oral sex on him again.
Young v. State, 283 S.W.3d at 863-65.
The mother of one of Petitioner's two daughters testified in pertinent part that (1) she lived with Petitioner for about three years before the birth of their daughter in June, 2004, (2) she had a good relationship with Petitioner but was not living with him on the date of Petitioner's arrest, (3) the murder of Petitioner's father when Petitioner was a child "just didn't settle right with him," (4) Petitioner's father's death deeply affected Petitioner, and (5) Petitioner became depressed whenever he talked about his father.
Petitioner's step-father testified (1) he had known Petitioner since Petitioner was eighteen years old, (2) Petitioner would never talk about his father or his father's murder, (3) the death of Petitioner's father was "an empty spot in his life," (4) he tried to serve as a role model for Petitioner and to instill family values in Petitioner, (5) Petitioner got along well with his siblings, (6) Petitioner had a lot of problems which Petitioner kept bottled up inside him, (7) Petitioner always treated him with respect, (8) Petitioner would never open up about what was troubling him, and (9) he had never seen a mean streak in Petitioner or Petitioner drunk.
Petitioner's grandmother testified (1) Petitioner's father — Willard Floyd Young — was murdered on Martin Luther King Day less than an hour after he returned Petitioner and Petitioner's sister to their residence after taking them to the MLK Day March, (2) Petitioner was eight years old at the time of his father's murder and, up to that point, was a normal eight year old — polite, respectful of others, and liked school, (3) after Willard's murder, she did not see much of Petitioner for several years as Petitioner lived with his aunt Velina, (4) Petitioner came to live with her and her husband when Petitioner was fifteen after Petitioner went to juvenile court and began to have problems with his mother, (5) Petitioner worked at Dollar Bills Detail Shop starting when Petitioner was fifteen or sixteen, (6) Petitioner got along fine with the rest of their family, managed his money well, and seemed to enjoy attending Roosevelt High School, (7) Petitioner did not like Madison High School when he went to live with his aunt Velina, (8) Petitioner never used crude or loud language, never fought, and (9) she never expected Petitioner to rob or kill anyone.
Petitioner's aunt testified (1) Petitioner's father was a high school graduate and chef, (2) Willard was thirty years old when he was murdered, (3) she was around Petitioner daily when Petitioner was a boy, (4) as a boy, Petitioner was out-going, close to his family, and got along well with his family, (5) Petitioner's father was shot, taken from his car, and laid out in the street with his arms crossed, (6) the murder of Petitioner's father was never solved which weighed heavily upon Petitioner, (7) the day of Willard's murder, Petitioner and his sister went to the MLK Day march with Willard, (8) Willard was killed less than an hour after dropping off Petitioner and Petitioner's sister, (9) Petitioner came to live with her for about two months after Willard's murder, (10) Petitioner would cry at night and wake up screaming, (11) Petitioner's mother did not get Petitioner any counseling despite her suggestions that she do so, (12) Petitioner still breaks down on family visits to the cemetery, (13) the death of Willard was very rough on Petitioner, (14) after Willard's murder, Petitioner began having problems at school when other students commented on the death of his father, (15) Petitioner grew frustrated and no longer wanted to attend school, (16) shortly after the death of his father, Petitioner's older sister was sexually assaulted on the way home from school and a subsequent medical examination revealed she was several months pregnant, (17) the ensuing investigation revealed Petitioner's first step-father, Clarence Franklin, had molested and impregnated Petitioner's older sister, (18) this led to Franklin's arrest and imprisonment, (19) Petitioner and his mother had fought with, and been assaulted by, Franklin, (20) Petitioner did not attend his father's funeral and never accepted Willard's tragic death, (21) Petitioner loved to be around kids and was attempting to obtain custody of one of his daughters at the time of Patel's murder, and (22) she feels Patel's murder was wholly at odds with the Christopher she knows.
Petitioner's mother testified (1) she never married Petitioner's biological father, (2) she was seventeen when she gave birth to Petitioner, (3) Petitioner loved his father Willard, (4) Petitioner was eight years old when Willard was murdered, less than an hour after Willard dropped off Petitioner and his sister Charlotte following their participation in the MLK Day march, (5) Willard's murder affected Petitioner "really bad," (6) Petitioner has not accepted Willard's murder at all, (7) Petitioner began having problems at school because of Willard's murder when other students commented about Willard's murder, (8) Petitioner was angered by other students' comments, (9) Petitioner's attitude toward school changed after Willard's murder, (10) Petitioner's attitude toward school went downhill after the murder, (11) Petitioner became frustrated, bitter, and no longer wanted to go to school, (12) Petitioner did not attend his father's funeral and tends to keep things bottled up inside him, (13) shortly after the murder of Petitioner's father, it was discovered that her husband, Clarence Franklin, had sexually assaulted and impregnated Petitioner's older sister Tasha, who was thirteen at the time, (14) Tasha's pregnancy was discovered when she was abducted and raped on her way home from school and Tasha was taken to the hospital for a sexual assault examination, (15) Petitioner did not adjust well to Tasha's sexual assault — blaming his mother for bringing Clarence Franklin into their lives, (16) Petitioner became even more bitter, (17) after Tasha's rape, Petitioner's behavior went even further downhill, (18) Petitioner didn't want to go to school, wouldn't talk to anyone, and kept everything bottled up inside him, (19) Petitioner never had a father figure in his life after Willard's death, (20) she could not believe when she heard Petitioner had shot and killed someone, (21) she knew Petitioner had experimented with marijuana but not that he had used other drugs, (22) Petitioner bonded well with her second husband, David Johnson, (23) she still has faith in her son, who told her he is very remorseful for what happened to Patel, and (24) she spoke with Petitioner on the phone the night before Patel's murder and Petitioner was having trouble controlling his anger over problems he was having with one of his girlfriends.
The defense called Dr. Paul A. Kern, a psychologist, who testified (1) he evaluated Petitioner in March, 1999 at the request a Bexar County juvenile probation officer, (2) he learned Petitioner experienced suicidal ideation following the death of his father, (3) Petitioner's uncle is serving a 50-year sentence for murder, (4) after evaluating Petitioner, he recommended that (a) Petitioner continue residing with his aunt, (b) Petitioner be evaluated by a psychiatrist to determine if medications might be available to help Petitioner deal with his anger and other emotional problems, © Petitioner receive substance abuse counseling and individual therapy for anger management, family counseling, and behavioral management training, (d) Petitioner receive remedial training in reading and spelling, independent living skills, vocational training, and an eye examination, and (e) Petitioner participate in therapy to explore issues surrounding Petitioner's father's death, (5) Petitioner knows right from wrong and the consequences of doing wrong, (6) Petitioner never indicated he intended to go through with the suicidal thoughts he had at ages twelve and thirteen, and (7) Petitioner indicated he had never been sexually or physically abused.
The defense also called Dr. Brian P. Skop, a forensic psychiatrist, who testified (1) he had evaluated Petitioner in January, 2006,
On February 7, 2006, after deliberating less than four hours, Petitioner's jury returned its verdict, finding unanimously (1) beyond a reasonable doubt there was a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence be imposed.
Petitioner appealed his conviction and sentence.
Petitioner filed his application for state habeas corpus relief on September 25, 2009, presenting twenty claims for relief.
Petitioner filed his original federal habeas corpus petition in this action on March 18, 2014 (ECF no. 22). In his original petition, he urged as grounds for relief arguments that (1) the prosecution's use of a peremptory strike against venire member Myrtlene Williams was based upon her religious affiliation and violated petitioner's rights under the Fourteenth Amendment's Due Process Clause, the Equal Protection Clause and the First Amendment, (2) the prosecution's use of a peremptory strike against venire member Paulette Bell violated both Petitioner's and Ms. Bell's rights because her strike was based, at least in part, on racial factors, (3) Petitioner's trial counsel rendered ineffective assistance by failing to conduct a reasonable sentencing phase investigation, which would have shown (a) Petitioner's mother abandoned petitioner and created dangerous living conditions for Petitioner and his siblings and (b) the murder of Petitioner's father and rape of Petitioner's sister had a devastating effect upon petitioner, and (4) the state trial court violated Petitioner's Eighth Amendment rights by failing to instruct the jury that the jurors need not agree on what particular evidence they found to be mitigating.
Petitioner then filed his first amended petition on May 16, 2014 (ECF no. 32), asserting therein a host of new grounds for relief. Petitioner's first amended petition contained arguments that (1) the prosecution's use of a peremptory strike against venire member Myrtlene Williams was based upon her religious affiliation and violated petitioner's rights under the Fourteenth Amendment's Due Process Clause, the Equal Protection Clause and the First Amendment, (2) the prosecution's use of a peremptory strike against venire member Paulette Bell violated both Petitioner's and Ms. Bell's rights because her strike was based, at least in part, on racial factors, (3) the trial court's punishment phase jury instructions failed to instruct the jury that a single holdout juror could force the trial court to impose a life sentence under Texas law, in violation of the Supreme Court's holding in Simmons v. South Carolina, (4) the trial court violated Petitioner's rights by failing to instruct the jury that the jurors need not unanimously agree on which particular evidence warranted an answer favorable to the defense on the mitigation special issue, (5) Petitioner's trial counsel rendered ineffective assistance by failing to conduct a reasonable sentencing phase investigation, which would have shown (a) Petitioner's mother abandoned Petitioner and created dangerous living conditions for Petitioner and his siblings and (b) the murder of Petitioner's father and the rape of Petitioner's sister had a devastating effect upon Petitioner, and (6) Petitioner's trial counsel rendered ineffective assistance by failing to object to the absence of an instruction pursuant to Article 37.071, §2(f)(3) in the punishment phase jury instructions.
On June 27, 2014, more than three weeks after the expiration of the AEDPA's one-year statute of limitations, Petitioner filed his second amended federal habeas corpus petition mistitled Petitioner's "First Amended Petition for a Writ of Habeas Corpus (ECF no. 39). As grounds for relief, Petitioner presented all of the same claims he raised in his actual first amended petition and added a new claim, to wit, an argument that his trial counsel rendered ineffective assistance in connection with the punishment phase of the capital murder trial by failing to conduct a proper investigation into Petitioner's background and present evidence showing Petitioner suffers from "post-traumatic stress disorder severe type with complex PTSD."
On July 16, 2014 (ECF no. 41), Respondent filed his answer to Petitioner's second amended petition and argued, in part, that (1) Petitioner procedurally defaulted on his Batson claim regarding venire member Myrtlene Williams by failing to present this new claim to any state court, i.e., this claim is unexhausted and procedurally barred, (2) Petitioner's Batson claims involving venire members Williams and Bell are barred by the non-retroactivity doctrine announced in Teague v. Lane, (3) Petitioner's complaint about his punishment phase jury instructions premised upon Simmons v. South Carolina is unexhausted, procedurally defaulted, and foreclosed by both longstanding Fifth Circuit precedent as well as the Supreme Court's holding in Teague v. Lane, (4) the juror affidavits submitted by Petitioner in support of several of his claims herein are inadmissible under Fed. R. Evid. 606(b), (5) Petitioner's complaints about the absence of an instruction pursuant to Article 37.071, §2(f)(3) from his punishment phase jury instructions is foreclosed by the Supreme Court's holding in Smith v. Spisak, (6) Petitioner may not present new factual and legal theories in support of the ineffective assistance claims rejected on the merits in the course of Petitioner's state habeas corpus proceeding because to do so renders those claims unexhausted and procedurally defaulted, (7) Petitioner may not present new affidavits and other additional evidence in support of his exhausted ineffective assistance claims because to do violates the Supreme Court's holding in Cullen v. Pinholster, and (8) Petitioner's ineffective assistance claims, both those exhausted and unexhausted, do not satisfy the prejudice prong of Strickland analysis.
On August 6, 2014 (ECF no. 43), Petitioner filed a reply and argued, in pertinent part, that (1) the Batson claim involving venire member Myrtlene Williams is exhausted and not Teague-barred, (2) the new affidavits and other documents are not barred from federal habeas review under Rule 606(b) or Pinholster, (3) Smith v. Spisak is inapplicable to Petitioner's case, (4) Petitioner admittedly unexhausted ineffective assistance claims are procedurally viable under the exception to the procedural default rule recognized in Martinez v. Ryan and Trevino v. Thaler, and (5) Petitioner's state habeas counsel was ineffective.
Because Petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court's review of Petitioner's claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792 (2001). Under the AEDPA standard of review, this Court cannot grant Petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).
The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of 28 U.S.C. Section 2254(d) (1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141; Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court's 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.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Brown v. Payton, 544 U.S. at 141; Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); Wiggins v. Smith, 539 U.S. at 520-21. The focus of this inquiry is on whether the state court's application of clearly established federal law was objectively unreasonable; an "unreasonable" application is different from a merely "incorrect" one. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold."); Wiggins v. Smith, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) ("it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner").
As the Supreme Court has explained:
Bobby v. Dixon, ___ U.S. ___, ___, 132 S.Ct. 26, 27, 181 L. Ed. 2d 328 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Legal principles are "clearly established" for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) ("We look for `the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Under the AEDPA, what constitutes "clearly established federal law" is determined through review of the decisions of the United States Supreme Court, not the precedent of the federal Circuit Courts. See Lopez v. Smith, ___ U.S. ___, ___, 135 S.Ct. 1, 2, 190 L. Ed. 2d 1 (2014) (holding the AEDPA prohibits the federal courts of appeals from relying on their own precedent to conclude a particular constitutional principle is "clearly established").
The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. 28 U.S.C. Section 2254(d) (2) provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301 (2010) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."); Williams v. Taylor, 529 U.S. at 410 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination. Wood v. Allen, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).
In addition, Section 2254(e) (1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74 ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with `clear and convincing evidence.'"); Rice v. Collins, 546 U.S. 333, 338-39 (2006) ("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by `clear and convincing evidence.'"); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) ("[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the `presumption of correctness by clear and convincing evidence.'"); 28 U.S.C. §2254(e) (1). It remains unclear at this juncture whether Section 2254(e) (1) applies in every case presenting a challenge to a state court's factual findings under Section 2254(d) (2). See Wood v. Allen, 558 U.S. at 300 (choosing not to resolve the issue of Section 2254(e) (1)'s possible application to all challenges to a state court's factual findings); Rice v. Collins, 546 U.S. at 339 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e) (1)).
However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240 (the standard is "demanding but not insatiable"); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.").
Finally, in this Circuit, a federal habeas court reviewing a state court's rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court's written opinion supporting its decision. See Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir. 2010) (federal habeas review of a state court's adjudication involves review only of a state court's decision, not the written opinion explaining the decision), cert. denied, ___ U.S. ___, 132 S.Ct. 124, 181 L. Ed. 2d 46 (2011); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003) (holding the precise question before a federal habeas court in reviewing a state court's rejection on the merits of an ineffective assistance claim is whether the state court's ultimate conclusion was objectively reasonable), cert. denied, 541 U.S. 1045 (2004); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (holding a federal court is authorized by §2254(d) to review only a state court's decision and not the written opinion explaining that decision), cert. denied, 537 U.S. 1104 (2003).
In his first and second claims for relief in his second amended petition, Petitioner argues (1) the prosecution's use of a peremptory strike against venire member Myrtlene Williams was based upon her religious affiliation and violated equal protection and due process principles and (2) the prosecution's use of a peremptory strike against venire member Paulette Bell was based upon "mixed motives" and violated both Petitioner's and Ms. Bell's equal protection rights under Batson.
During individual voir dire examination, the prosecution questioned venire member Williams about her participation in Outreach Ministries, which she had mentioned in her juror questionnaire answers.
In his third point of error on direct appeal, Petitioner argued the prosecution's proffered raceneutral reasons for its use of a peremptory challenge to strike venire member Williams were pretextual.
During her individual voir dire examination by the prosecution, venire member Bell stated (1) she had previously served on a criminal jury which acquitted a defendant charged with molesting a young girl in a park, (2) she was an Evangelical Missionary who was licensed to go into jails, (3) while she had not yet actually gone to a jail, she was working with Outreach at her church and looked forward to going to visiting a jail, (4) her husband and son felt they had been the subjects of racial profiling and had expressed to her their view that it was "hard to be a Black man," (5) she knew multiple persons who had been to prison, and (6) her son had been to jail for DUI.
In his third point of error on direct appeal, Petitioner argued the prosecution's first justification proffered for its peremptory challenge was not race-neutral and this tainted, i.e., rendered invalid, all of the prosecution's proffered reasons for striking Ms. Bell.
Young v. State, 283 S.W.3d at 871 (footnote omitted).
The state appellate court also concluded that, even if the prosecution's first proffered reason for striking Ms. Bell was not race-neutral, the trial court had reasonably concluded the prosecution's remaining reasons were:
Young v. State, 283 S.W.3d at 871 (footnotes omitted).
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court extended the equal protection principle barring the purposeful exclusion of Blacks from criminal jury service to the prosecution's use of peremptory challenges during petit jury selection. See Batson v. Kentucky, 476 U.S. at 89 ("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 (2008); Miller-El v. Dretke, 545 U.S. 231, 239 (2005); Batson v. Kentucky, 476 U.S. at 94-98.
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 (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; Batson v. Kentucky, 476 U.S. at 98 n.20.
Miller-El v. Dretke, 545 U.S. at 252.
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.
Miller-El v. Cockrell, 537 U.S. 322, 338-339 (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. 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 (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 (citing the prosecutor's differential questioning of black and white venire members throughout the entire voir dire, the prosecution's "remarkable" use of ten of its fourteen peremptories to strike ten of the eleven black venire members who were not removed for cause or by agreement, the prosecutor's failure to strike white venire members who offered voir dire testimony similar to black venire members whom the prosecutor did strike, and the prosecution's selective requests for a jury shuffle only when black venire members were near the front of the list as evidence warranting a finding of purposeful discrimination).
Petitioner did not object at the time of Ms. Williams' voir dire to the prosecution's use of a peremptory strike against her because of her religious affiliation. On the contrary, as explained above, Petitioner's trial counsel argued the prosecution's proffered reason for striking Ms. Williams, i.e., her participation in Outreach Ministries, was pre-textual and the real reason the prosecution had stricken her was because of her race. At no point did Petitioner's counsel inform the trial court that Petitioner objected to Ms. Williams being stricken on First Amendment grounds or suggest there was any religious animus underlying the prosecution's use of a peremptory strike against her.
Petitioner did not argue either on direct appeal or in his state habeas corpus proceeding that the prosecution's use of a peremptory strike against venire member Williams violated constitutional principles on the basis of her religion. Rather, Petitioner's third point of error on direct appeal raised a classic Batson challenge to the prosecution's use of a peremptory strike, i.e., as having been motivated by discriminatory animus based upon the potential juror's race.
At no point has Petitioner "fairly presented" any state court with the wholly new claim asserted as the first ground for relief in Petitioner's second amended petition, i.e., that the striking of Ms. Williams was based upon her exercise of her religious freedoms protected by the First Amendment and, thereby, a violation of Equal Protection and Due Process principles similar to those underlying the rule in Batson.
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 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 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 (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 (holding comity requires that 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 (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). Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir. 2003) ("28 U.S.C. § 2254(b)(1) requires that federal habeas petitioners fully exhaust remedies available in state court before proceeding in federal court."), cert. denied, 543 U.S. 835 (2004); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir. 2003) ("Absent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his claims in state court before he may seek federal habeas relief."), cert. denied, 540 U.S. 956 (2003).
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 (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 255, 259 (5th Cir. 2001) ("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"). Likewise, to have "fairly presented" his new 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 (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); Wilder v. Cockrell, 274 F.3d at 260 ("A fleeting reference to the federal constitution, tacked onto the end of a lengthy, purely state-law evidentiary argument, does not sufficiently alert and afford a state court the opportunity to address an alleged violation of federal rights."). At no point in his appellant's brief did Petitioner "fairly present" the Texas Court of Criminal Appeals with his new "religion-based" Batson complaint about the striking of venire member Williams.
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., Williams v. Thaler, 602 F.3d 291, 305 (5th Cir.) (procedural default occurs when a prisoner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claim in order to meet the exhaustion requirement would now find the claims procedurally barred), cert. denied, 562 U.S. 1006 (2010); Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir. 2004) (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 (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 (2004); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir. 1999)(holding unexhausted ineffective assistance claim procedurally barred from federal habeas review), cert. denied, 527 U.S. 1059 (1999).
Section 5(a) of Article 11.071 of the Texas Code of Criminal Procedure prohibits a successive state habeas corpus application except in limited circumstances. See Williams v. Thaler, 602 F.3d at 306 (recognizing Article 11.071, §5(a) of the Texas Code of Criminal Procedure bars consideration on the merits of new claims contained in a subsequent state habeas corpus application unless either (1) 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; (2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution, no rational juror would have answered in the state's favor one or more of the capital sentencing special issues).
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 defaulted claim will work a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989). To establish "cause," a petitioner must show either that some objective external factor impeded the defense counsel's ability to comply with the state's procedural rules or that petitioner's trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding that proof of ineffective assistance by counsel satisfies the "cause" prong of the exception to the procedural default doctrine). While a showing of ineffective assistance can satisfy the "cause" prong of the "cause and actual prejudice" exception to the procedural default doctrine, Petitioner does not argue or allege any specific facts suggesting his state appellate counsel's failure to present the same federal constitutional complaints about the trial court's rulings on the challenges for cause somehow rendered said counsel's performance ineffective under the standard of Strickland v. Washington.
Petitioner cannot satisfy the "cause and actual prejudice" standard for circumventing his procedural default of his claims for relief because, at the time of Petitioner's trial, direct appeal, and state habeas corpus proceeding, the United States Supreme Court had not extended the rule in Batson to include peremptory strikes based upon a potential juror's religious affiliation. See Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999) (holding no precedent existed at that time clearly dictating an extension of the Batson principle to religion). Petitioner's state trial counsel, state appellate counsel, and state habeas counsel cannot reasonably be faulted for failing to present a "religion-based" Batson challenge to the striking of venire member Williams. Even now, no legal basis for such a challenge exists under clearly established federal law.
In order to satisfy the "miscarriage of justice" test, a petitioner must supplement his constitutional claim with a colorable showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36 (1992). In the context of the punishment phase of a capital trial, the Supreme Court has held that a showing of "actual innocence" is made when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48. The Supreme Court explained in Sawyer v. Whitley this "actual innocence" requirement focuses on those elements which render a defendant eligible for the death penalty and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error. Sawyer v. Whitley, 505 U.S. at 347. 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 under the fundamental miscarriage of justice exception to the procedural default doctrine.
Respondent argues this Court is precluded from recognizing the new legal theory underlying Petitioner's claims herein in the context of this federal habeas corpus proceeding. See Teague v. Lane, 489 U.S. 288, 310 (1989) (holding that, unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced). Under the holding in Teague, federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review. Caspari v. Bohlen, 510 U.S. 383, 389-90 (1994). A "new rule" for Teague purposes is one which was not dictated by precedent existing at the time the defendant's conviction became final. See O'Dell v. Netherland, 521 U.S. 151, 156 (1997) (holding a "new rule" either "breaks new ground," "imposes a new obligation on the States or the Federal Government," or was not "dictated by precedent existing at the time the defendant's conviction became final"). Under this doctrine, unless reasonable jurists hearing the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing so on collateral review. Id.
The holding in Teague is applied in three steps: first, the court must determine when a petitioner's conviction became final; second, the court must survey the legal landscape as it then existed and determine whether a state court considering the petitioner's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution; and third, if the rule advocated by the petitioner is a new rule, the court must determine whether the rule falls within one of the two narrow exceptions to the non-retroactivity principle. Caspari v. Bohlen, 510 U.S. at 390.
The only two exceptions to the Teague non-retroactivity doctrine are reserved for (1) new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense and (2) "watershed" rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, i.e., a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. O'Dell v. Netherland, 521 U.S. at 157. A conviction becomes final for Teague purposes when either the United States Supreme Court denies a certiorari petition on the defendant's direct appeal or the time period for filing a certiorari petition expires. Caspari v. Bohlen, 510 U.S. at 390. Petitioner's conviction became final under this standard on December 14, 2009 when the United States Supreme Court denied Petitioner's petition for writ of certiorari. Teague remains applicable after the passage of the AEDPA. See Horn v. Banks, 536 U.S. 266, 268-72 (2002) (applying Teague in an AEDPA context); Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir. 2003)(recognizing the continued vitality of the Teague non-retroactivity doctrine under the AEDPA), cert. denied, 539 U.S. 979 (2003).
As of the date Petitioner's conviction and sentence became final for Teague purposes no federal court, much less the United States Supreme Court, had held the rule announced in Batson applied to peremptory strikes exercised, allegedly, based upon a potential juror's religion affiliation. Thus, unless Petitioner's proposed new rule falls within one of the exceptions to the Teague non-retroactivity doctrine recognized by the Supreme Court, Petitioner's claims herein may not furnish a basis for federal habeas corpus relief.
The only two exceptions to the Teague non-retroactivity doctrine are reserved for (1) new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense and (2) "watershed" rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, i.e., a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. O'Dell v. Netherland, 521 U.S. at 157, 117 S.Ct. at 1973; Fisher v. Texas, 169 F.3d at 306. The new rule proposed by petitioner in his first claim herein does not fall within either of the two noted exceptions to the Teague doctrine. See Fisher v. Texas, 169 F.3d at 306:
Petitioner's first claim for relief in his second amended petition is unexhausted, procedurally defaulted, and barred by the Teague doctrine. Petitioner's first claim in his second amended petition does not furnish a basis for federal habeas corpus relief.
As noted by the Texas Court of Criminal Appeals, in the course of rejecting Petitioner's Batson challenge to the prosecution's use of a peremptory strike against venire member Bell, the state trial court ruled that even if the prosecution's first proffered race-neutral reason for striking venire member Bell were not truly race-neutral, the remaining reasons furnished by the prosecution were, i.e., the fact Bell had previously served on a jury which had acquitted a criminal defendant, Bell was a licensed missionary who looked forward to ministering in jail, and, in her juror questionnaire answers, Bell had strongly indicated she could not vote to impose a death sentence. The state trial court implicitly found these clearly race-neutral reasons to be credible and sufficient to support the prosecution's exercise of a peremptory strike against Bell.
The state trial court's ruling in favor of the prosecution constitutes an implicit factual finding regarding the credibility of the prosecutor's proffered race-neutral reasons for striking Bell, to which this Court must defer absent clear and convincing evidence to the contrary in the record. See Rice v. Collins, 546 U.S. at 338-39 (recognizing state court factual findings regarding the credibility of a prosecutor's race-neutral explanation for a peremptory strike are entitled to a presumption of correctness absent clear and convincing evidence to the contrary); Moody v. Quarterman, 476 F.3d 260, 268-72 (5th Cir.) (holding a state appellate court's factual findings on a Batson claim were entitled to federal court deference even where the state trial court failed to employ the three-step approach required for analysis of Batson claims), cert. denied, 552 U.S. 843 (2007).
Other than Petitioner's assertion that the prosecution's first proffered reason was not truly race-neutral, Petitioner offered the state trial court and Texas Court of Criminal Appeals no evidence of racial animus underlying the peremptory strike of Bell. Petitioner does not allege any facts, much less furnish any evidence, showing Bexar County prosecutors have ever engaged in the type of longstanding, systematic, exclusion of an identifiable protected group from criminal juries which was practiced in Dallas County and twice rejected by the United States Supreme Court in Miller-El v. Dretke. 545 U.S. 231 (2005), and Miller-El v. Cockrell, 537 U.S. 322 (2003). On the contrary, the prosecution's identification of Bell as a person who had previously served on a jury which acquitted a criminal defendant of a serious felony, was licensed as a missionary who looked forward to ministering in jail, and who had given answers on her juror questionnaire indicating her unwillingness to ever vote to impose the death penalty furnished the state trial court with ample raceneutral reasons for the prosecution's use of a peremptory strike. There was nothing objectively unreasonable with either the state trial court's implicit factual findings or the Texas Court of Criminal Appeals' legal conclusions rejecting on the merits petitioner's Batson claim regarding Bell.
The Texas Court of Criminal Appeals' rejection on the merits in the course of Petitioner's direct appeal of Petitioner's Batson challenge to the prosecution's striking of venire member Bell 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 based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial court and direct appeal proceedings.
Petitioner argues that because the first reason proffered by the prosecution for striking Bell was not in Petitioner's view truly race-neutral, the prosecution should have been barred from proffering any truly race-neutral reasons and the state appellate court erred in applying a "mixed motives" analysis to approve the state trial court's decision to accept the prosecution's remaining, clearly race-neutral, reasons as justification for the prosecution's peremptory strike of Bell.
The Texas Court of Criminal Appeals reasonably rejected Petitioner's Batson challenge to the prosecution's peremptory strike of venire member Bell, in full conformity with the Supreme Court's Batson case law, based upon the state trial court's implicit factual determination that the prosecution's three proffered race-neutral reasons for striking Bell were credible. Furthermore, adoption of the new rule advocated by Petitioner in his second claim herein is barred by Teague. Petitioner's second claim does not warrant federal habeas corpus relief.
In his third claim in his second amended petition, Petitioner argues his capital sentencing jury was misled by the punishment phase jury instructions regarding the effect of a single holdout juror on the outcome of that phase of Petitioner's capital murder trial.
Petitioner did not present this same claim as a point of error on direct appeal. Petitioner did, however, include a somewhat similar claim as his twentieth claim for relief in his state habeas corpus application.
Insofar as Petitioner's third claim in his second amended petition embraces the same legal arguments contained in Petitioner's twentieth claim for relief in his state habeas corpus application, that claim is procedurally defaulted. See Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007) (recognizing the Texas Court of Criminal Appeals has held that record based claims not raised on direct appeal will not be considered in state habeas corpus proceedings and the Fifth Circuit has held this state procedural rule firmly established since at least 1998), cert. denied, 552 U.S. 1232 (2008); Busby v. Dretke, 359 F.3d 708, 718-19 (5th Cir.) (recognizing the Texas Court of Criminal Appeals' decision in Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1996), clarified on reh'g (Feb. 4, 1998), firmly established the rule in Texas that record-based claims not raised on direct appeal will not be considered in a subsequent state habeas corpus proceeding), cert. denied, 541 U.S. 1087 (2004).
Insofar as Petitioner seeks to rely upon the Supreme Court's holding in Simmons v. South Carolina, and the other legal arguments contained in his third claim for relief in his second amended petition, his third claim for relief herein is unexhausted and procedurally defaulted. See Hughes v. Dretke, 412 F.3d at 594-95 (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); 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").
In such circumstances, this Court can address the merits of Petitioner's third claim for relief only if Petitioner can satisfy the cause and actual prejudice or fundamental miscarriage of justice exceptions to the procedural default doctrine. "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750; see also Brewer v. Quarterman, 466 F.3d 344, 347 (5th Cir. 2006) (cause to overcome a procedural default exists only where "the prisoner can demonstrate actual prejudice as a result of the alleged violation of federal law," or where it would work "a fundamental miscarriage of justice" (quoting Coleman)), cert. denied, 552 U.S. 834 (2007). Petitioner cannot satisfy either of the exceptions to the procedural default doctrine because, as explained below, Petitioner's Simmons claim is without merit.
Because no state court has yet ruled on the Petitioner's unexhausted Simmons claim, this Court's review of same is necessarily de novo. See Porter v. McCollum, 558 U.S. at 39 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390 (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534 (holding the same).
Insofar as Respondent argues Petitioner's affidavits from several members of Petitioner's petit jury are inadmissible under Fed. R. Evid. 606(b) to support Petitioner's claims herein, Respondent is correct. See Tanner v. United States, 483 U.S. 107, 120-25 (1987) (recognizing that Rule 606(b) precludes juror testimony regarding "any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith . . ."); Summers v. Dretke, 431 F.3d 861, 873 (5th Cir. 2005) ("Under Rule 606(b) of the Federal Rules of Evidence, jurors' affidavits are inadmissible `regarding the following four topics: (1) the method or arguments of the jury's deliberations, (2) the effect of any particular thing upon an outcome in the deliberations, (3) the mind set or emotions of any juror during deliberation, and (4) the testifying juror's own mental process during the deliberations.'"), cert. denied, 549 U.S. 840 (2006); United States v. Jones, 132 F.3d 232, 245 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999).
Section 2(d) of Article 37.071 of the Texas Code of Criminal Procedure provides as follows:
The court shall charge the jury that:
At the punishment phase of trial, Petitioner's capital sentencing jury was instructed, in pertinent part, as follows:
Petitioner argues his jurors were misled by the foregoing instructions because the trial court failed to inform the jury that a failure by the jury to unanimously agree on an answer to any special issue favorable to the prosecution and a simultaneous failure by at least ten jurors to agree on an answer to any special issue favorable to the defense would also result in a life sentence for the Petitioner. Petitioner argues such an instruction is mandated by the Supreme Court's holding in Simmons v. South Carolina, 512 U.S. 154 (1994).
The Supreme Court has implicitly rejected Petitioner's arguments underlying his third claim herein. See Jones v. United States 527 U.S. 373, 382 (1999) (holding the Eighth Amendment does not require a capital sentencing jury be instructed as to the effect of a "breakdown in the deliberative process," because (1) the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and (2) 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). On numerous occasions, the Fifth Circuit has expressly rejected the legal premise underlying Petitioner's third claim herein, i.e., the argument a Texas capital murder defendant is constitutionally entitled to have his punishment-phase jury instructed regarding the consequences of a hung jury or a single holdout juror. See, e.g., Hughes v. Dretke, 412 F.3d at 593-94 (holding the same arguments underlying petitioner's third claim herein were so legally insubstantial as to be unworthy of a certificate of appealability); Alexander v. Johnson, 211 F.3d 895, 897-98 (5th Cir. 2000) (holding the Teague v. Lane non-retroactivity doctrine precluded applying such a rule in a federal habeas context); Davis v. Scott, 51 F.3d 457, 466-67 (5th Cir. 1995), cert. denied, 516 U.S. 992 (1995).
Petitioner's reliance upon Simmons v. South Carolina is likewise unpersuasive. In Simmons, the Supreme Court addressed capital sentencing in South Carolina and other jurisdictions which authorized capital sentencing juries to impose sentences of either death or life without the possibility of parole. In contrast to South Carolina, at the time of Petitioner's trial, Texas did not provide for a sentence of life imprisonment without the chance of parole. Rather, Petitioner's jury was instructed at the punishment phase of trial, as follows:
The Supreme Court's opinion in Ramdass v. Angelone, 530 U.S. 156 (2000), continued the vitality of the distinction recognized in Simmons, as the Supreme Court plurality specifically limited the holding in Simmons to "only those instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison." Id., 530 U.S. at 169. In her separate, concurring, opinion in Ramdass, Justice O'Connor once again emphasized her view of the continued vitality of the rule in Simmons, as enunciated by the plurality in Ramdass, and also pointed out Ramdass came before the Supreme Court in the context of a federal habeas corpus proceeding, in which the Supreme Court's review, like this Court's review in the present cause, is circumscribed by the terms of the AEDPA. Id., 530 U.S. at 179 (concurring opinion).
The Supreme Court's opinion in Shafer v. South Carolina, 532 U.S. 36 (2001), at least implicitly acknowledged the continued vitality of the distinction first noted in Simmons by holding South Carolina's new capital sentencing scheme was guilty of the same constitutional defect identified in Simmons because, at least under some circumstances, the sentencing jury would be faced with a choice between a sentence of death and a sentence of life without the possibility of parole. See Shafer v. South Carolina, 532 U.S. at 51 ("We therefore hold that whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole."). In Kelly v. South Carolina, 534 U.S. 246 (2002), the Supreme Court reiterated its holding in Shafer, emphasizing once again South Carolina capital sentencing juries which unanimously found the presence of an aggravating circumstances were left to select between one of only two possible sentences: death or life imprisonment without the possibility of parole. Kelly v. South Carolina, 534 U.S. at 252 & n.2.
At the time of Petitioner's offense and trial, Texas law did not provide for a sentence of life imprisonment without the possibility of parole. The Supreme Court's Fourteenth Amendment jurisprudence, including Simmons, Ramdass, Shafer, and Kelly, makes an express distinction between the rule applied in Simmons and Shafer and the due process requirements in jurisdictions such as Texas at the time of Petitioner's crime and capital murder trial, where sentences of either death or life without parole were not the only choices facing a capital sentencing jury. The legal premise underlying Petitioner's third claim herein ignores this critical distinction. There is simply no "clearly established" federal law, as enunciated by the United States Supreme Court, holding the Fourteenth Amendment's Due Process Clause requires capital sentencing juries at the time of Petitioner's capital murder trial to be informed of the impact of a single holdout juror on any of the Texas capital sentencing special issues.
On the contrary, 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 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (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 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367 (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).
This "reasonable likelihood" standard does not require a petitioner to prove the jury "more likely than not" interpreted the challenged instruction in an impermissible way; however, a petitioner must demonstrate more than "only a possibility" of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367; Boyde v. California, 494 U.S. at 380. 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 (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 v. Texas, 509 U.S. at 368; Boyde v. California, 494 U.S. at 381.
Nothing in Petitioner's punishment-phase jury charge can reasonable be construed as foreclosing the consideration by Petitioner's jury of any of the potentially mitigating evidence actually presented during Petitioner's capital murder trial. None of Petitioner's jurors could rationally have been led to believe by Petitioner's punishment-phase jury charge that either (1) they lacked the authority to answer either of the Texas capital special issues in a manner consistent with their conscience and the evidence regardless of the votes of other jurors or (2) their determination to vote in a manner inconsistent with other jurors would have no legal impact. Thus, there is no reasonable likelihood any of Petitioner's jurors construed their punishment phase jury instructions in a manner which prevented them from considering or giving effect to any constitutionally relevant mitigating evidence.
Likewise, nothing in Petitioner's punishment-phase jury charge misled Petitioner's capital sentencing jury regarding its role as the ultimate arbiter of Petitioner's fate. Petitioner's argument is foreclosed by both Supreme Court and Fifth Circuit precedent recognizing there is no constitutional right to jury instructions instructing individual jurors how they can achieve a "hung jury." See Jones v. United States, 527 U.S. at 382 (the Eighth Amendment does not require a capital sentencing be instructed as the effect of a "breakdown in the deliberative process," because (1) the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and (2) 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); Druery v. Thaler, 647 F.3d 535, 544 (5th Cir. 2011) (holding an argument that a Texas capital defendant had a constitutional right to an instruction informing the jury of the impact of a hung jury barred under the non-retroactivity doctrine of Teague v. Lane), cert. denied, ___ U.S. ___, 132 S.Ct. 1550, 182 L.Ed.2d 180 (2012); Turner v. Quarterman, 481 F.3d 292, 300 (5th Cir.) (recognizing Fifth Circuit precedent foreclosed arguments the Eighth Amendment and Due Process Clause of the Fourteenth Amendment mandated jury instructions regarding the effect of a capital sentencing jury's failure to reach a unanimous verdict), cert. denied, 551 U.S. 1193 (2007).
Petitioner's reliance upon the Supreme Court's holdings in McKoy and Mills is also unpersuasive. Petitioner's argument that the Texas twelve-ten rule violates the due process principles set forth in these opinions has repeatedly been rejected by the Fifth Circuit. See, e.g., Blue v. Thaler, 665 F.3d 647, 669-70 (5th Cir. 2011) (rejecting an Eight Amendment challenge to the Texas twelve-ten rule), cert. denied, ___ U.S. ___, 133 S.Ct. 105, 184 L.Ed.2d 49 (2012); Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000) (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas twelve-ten rule in the course of affirming this Court's rejection of claims virtually identical to those raised by Petitioner herein); Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir. 2000) (holding Mills inapplicable to a Texas capital sentencing proceeding), cert. denied, 531 U.S. 849 (2000); Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir. 1996) (holding the same), cert. denied, 519 U.S. 854 (1996). For the reasons discussed by the Fifth Circuit in each of the foregoing opinions, i.e., because the Texas capital sentencing scheme is vastly different from those employed in Maryland and North Carolina, Petitioner's reliance on the Supreme Court's opinions in McKoy and Mills is misplaced. Viewed under a de novo standard, Petitioner's third claims herein lack merit and do not warrant federal habeas corpus relief.
In his fourth claim in his second amended petition, Petitioner argues his Eighth Amendment rights recognized in Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), were violated when the state trial court failed to instruct the jury at the punishment phase of his trial in accordance with Article 37.071, §2(f)(3) of the Texas Code of Criminal Procedure, i.e., the jury was not informed that the jurors need not agree on what evidence supported an affirmative answer to the second special issue (the mitigation special issue).
Petitioner presented the same claim as his fifteenth point of error on direct appeal.
Young v. State, 283 S.W.3d at 878-79 (footnotes omitted).
Because the Texas Court of Criminal Appeals rejected on the merits Petitioner's arguments regarding the absence of a punishment jury instruction informing the jury it need not unanimously agree on which evidence supported an affirmative answer to the mitigation special issue, Respondent correctly argues this Court is precluded from considering any of the new evidence Petitioner has presented in support of this same claim in this Court. See Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1401, 179 L. Ed. 2d 557 (2011) (holding a federal habeas petitioner is not entitled to present new evidence supporting a claim in federal court when the state court has ruled on the merits of the underlying claim); Loden v. McCarty, 778 F.3d 484, 493 (5th Cir. 2015) ("When, as here, a habeas petitioner's claim has been adjudicated on the merits in state court, `review under § 2254(d)(1) is limited to the record that was before the state court.'" (quoting Cullen v. Pinholster)), cert. filed June 29, 2015, no. 15-10; Woodfox v. Cain, 772 F.3d 358, 368 (5th Cir. 2014) ("The Supreme Court has clarified that when a claim is adjudicated on the merits, for the purposes of review under § 2254(d)(1), the record is limited to the one before the state court, even if the state court issued a summary affirmance."), cert. filed April 27, 2015, no. 14-1288). Respondent also correctly points out the juror affidavits submitted by Petitioner in support of this claim may not be considered by this Court for the purposes Petitioner has submitted them. Tanner v. United States, 483 U.S. at 120-25; Summers v. Dretke, 431 F.3d at 873.
In Mills, the Supreme Court rejected a capital sentencing system in a weighing jurisdiction in which the jury was informed, both through the trial court's jury instructions as well as the verdict form, that it could not consider a mitigating circumstance or even particular mitigating evidence unless the jury unanimously agreed upon the existence of that particular mitigating circumstance:
Mills v. Maryland, 486 U.S. at 384.
Construed under the reasonable juror standard applied by the Supreme Court in Mills,
More significantly, the Supreme Court addressed a situation far more analogous to Petitioner's trial than the situation in Mills. In Smith v. Spisak, 558 U.S. 139 (2010), the Supreme Court held no constitutional error existed with jury instructions and a verdict form used in another weighing jurisdiction which "did not say that the jury must determine the existence of each individual mitigating factor unanimously." Smith v. Spisak, 558 U.S. at 148 ("Neither the instructions nor the forms said anything about how—or even whether—the jury should make individual determinations that each particular mitigating circumstance existed. They focused only on the overall balancing question. And the instructions repeatedly told the jury to `conside[r] all of the relevant evidence.'").
In contrast to the jury instructions and verdict form in Mills, and consistent with the jury instructions in Spisak, Petitioner's jury was not informed that it was required to unanimously agree upon any particular mitigating circumstance or any particular mitigating evidence before it could answer the mitigation special issue affirmatively. Thus, even without the punishment phase jury instruction called for by Article 37.071, §2(f)(3) of the Texas Code of Criminal Procedure, the constitutional error present in Mills was absent from Petitioner's capital sentencing trial, just as it was absent from the capital sentencing trial in Spisak.
Petitioner's reliance on the Supreme Court's holdings in Mills and McKoy is also misplaced because those opinions addressed capital sentencing systems vastly different from the one employed in Texas at the time of Petitioner's capital murder trial.
The Texas Court of Criminal Appeals' rejection on the merits in the course of Petitioner's direct appeal of Petitioner's complaint about the absence from his punishment phase jury instructions of the admonition contained in Article 37.071, §2(f)(3) of the Texas Code of Criminal Procedure 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 based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial court and direct appeal proceedings. Smith v. Spisak, 558 U.S. at 148-49. Petitioner's fourth claim in his second amended federal habeas corpus petition does not warrant federal habeas corpus relief.
In his fifth and final claim for relief in his second amended petition, Petitioner argues his trial counsel rendered ineffective assistance in connection with the punishment phase of Petitioner's capital murder trial by (1) failing to conduct a reasonable sentencing investigation, i.e., an adequate investigation into Petitioner's background, (2) failing to present available mitigating evidence showing (a) Petitioner's father's murder and the rape of Petitioner's sister had a devastating effect and caused him to become suicidal, (b) Petitioner's mother created dangerous living conditions for Petitioner and his siblings, (c) the abandonment of Petitioner by his mother had a damaging psychological effect on Petitioner, and (d) because of his early childhood trauma, Petitioner suffers from severe, complex, posttraumatic stress disorder ("PTSD"), and (3) failing to object to the absence of a punishment phase jury instruction informing the jurors they need not unanimously agree upon what particular mitigating evidence warranted an affirmative answer to the mitigation special issue.
As explained above, Petitioner's state habeas corpus application included complaints that his trial counsel rendered ineffective assistance by (1) failing to request a jury instruction at the punishment phase of trial pursuant to Article 37.071, §2(f)(3) of the Texas Code of Criminal Procedure informing the jurors they need not unanimously agree on which mitigating evidence warranted a finding favorable to the defense on the mitigation special issue, (2) failing to request a jury instruction at the guilt-innocence phase of trial on the lesser-included offense of felony murder, (3) failing to investigate whether the fatal bullet went through Patel's hand and ricocheted off the floor before striking Patel in the chest, (4) failing to have a forensic expert examine the fatal bullet to see if it passed through Patel's hand before striking the floor and then entering Patel's chest, (5) failing to voir dire the jury venire on the difference between capital murder and felony murder, (6) failing to challenge the legality of petitioner's arrest, (7) failing to object to the admission of evidence defense counsel had previously contested, and (8) failing to investigate possible mitigating evidence, including evidence showing Petitioner suffered from Attention Deficit Disorder, asthma, dyslexia, the effects of post-traumatic stress disorder, and organic brain damage due to prolonged drug abuse.
The state trial court (1) concluded Petitioner was not prejudiced by his trial counsels' failure to request a jury instruction in accordance with Article 37.071, §2(f)(3), i.e., an instruction advising the jury it need not unanimously agree on which evidence warranted an affirmative finding on the mitigation special issue because the Texas Court of Criminal Appeals concluded on direct appeal this error was harmless in Petitioner's case, (2) found Petitioner had presented no new mitigating evidence not previously submitted to Petitioner's jury at the punishment phase of his trial, (3) concluded Petitioner's complaint about his trial counsel's allegedly deficient investigation and presentation of mitigating evidence failed to satisfy the prejudice prong of Strickland analysis, and (4) recommended denial of Petitioner's ineffective assistance claims.
The Sixth Amendment entitles criminal defendants to "the effective assistance of counsel," i.e., legal representation that does not (1) fall below an objective standard of reasonableness in light of prevailing professional norms and the circumstances of the defendant's case (Wong v. Belmontes, 558 U.S. 15, 16-17 (2009); Bobby v. Van Hook, 558 U.S. 4, 7 (2009)); and (2) give rise to a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (Porter v. McCollum, 558 U.S. 30, 38-40 (2009); Wong v. Belmontes, 558 U.S. at 19-20).
The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984):
To satisfy the first prong of Strickland, i.e., establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003); Williams v. Taylor, 529 U.S. 362, 390-91 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 687-91. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Bobby v. Van Hook, 558 U.S. at 7; Strickland v. Washington, 466 U.S. at 688-89. It is strongly presumed counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. at 690.
To satisfy the "prejudice" prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. at 534; Strickland v. Washington, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland v. Washington, 466 U.S. at 694.
In evaluating Petitioner's complaints about the performance of his counsel under the AEDPA, i.e., those complaints which the state courts have addressed on the merits, the issue before this Court is whether the Texas Court of Criminal Appeals could reasonably have concluded Petitioner's complaints about his trial counsel's performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003), cert. denied, 540 U.S. 1154 (2004). In making this determination, this Court must consider the underlying Strickland standard. Id. In those instances in which the state courts failed to adjudicate either prong of the Strickland test (such as those complaints the state courts summarily dismissed under the Texas writabuse statute or which petitioner failed to fairly present to the state courts), this Court's review of the un-adjudicated prong is de novo. See Porter v. McCollum, 558 U.S. at 39 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390 (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534.
A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009), cert. denied, 558 U.S. 839 (2009); Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008), cert. denied, 556 U.S. 1240 (2009). Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bell v. Cone, 535 U.S. 685, 698 (2002); Strickland v. Washington, 466 U.S. at 690.
Petitioner has failed to exhaust available state remedies with regard to complaints that his trial counsel rendered ineffective assistance by failing to present available mitigating evidence showing (1) Petitioner's mother created dangerous living conditions for Petitioner and his siblings, (2) the abandonment of Petitioner by his mother had a damaging psychological effect on Petitioner, and (3) because of his early childhood trauma, Petitioner suffers from severe, complex, posttraumatic stress disorder ("PTSD"). Petitioner procedurally defaulted on these unexhausted complaints of ineffective assistance. See Beatty v. Stephens, 759 F.3d 455, 465 (5th Cir. 2014) (Texas petitioner who failed to raise complaint of ineffective assistance by his trial counsel during his first state habeas corpus proceeding would be precluded under Article 11.071, §5 from returning to state court to litigate same claim and procedurally defaulted on claim in federal habeas corpus proceeding), cert. denied, ___ U.S. ___, 135 S.Ct. 2312, ___ L. Ed. 2d ___ (2015); Trottie v. Stephens, 720 F.3d 231, 248 (5th Cir. 2013) (holding petitioner's failure to fairly present factual basis underlying an ineffective assistance complaint in his state habeas corpus action rendered same ineffective assistance complaint unexhausted and procedurally defaulted), cert. denied, ___ U.S. ___, 134 S.Ct. 1540, 188 L. Ed. 2d 562 (2014).
Petitioner cannot satisfy either of the exceptions to the procedural default doctrine because, as explained below, even under de novo review. Petitioner's unexhausted ineffective assistance complaints do not satisfy the prejudice prong of the Strickland analysis. See Johnson v. Cain, 712 F.3d 227, 234 (5th Cir.) ("Where, as here, `a prisoner fails to exhaust state remedies and the court to which the prisoner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred due to the prisoner's own procedural default,' we are barred from reviewing those claims unless the petitioner `demonstrate[s] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claims will result in a fundamental miscarriage of justice.'"), cert. denied, ___ U.S. ___, 134 S.Ct. 431, 187 L. Ed. 2d 290 (2013). Likewise, Petitioner's unexhausted ineffective assistance claims are not entitled to merits review from this Court under the rule announced in Martinez v. Ryan and Trevino v. Thaler because Petitioner's unexhausted ineffective assistance claims are insubstantial, i.e., they lack merit. See Beatty v. Stephens, 759 F.3d at 465-66 ("To succeed in establishing cause under Trevino and Martinez, the petitioner must show: (1) that his claim of ineffective assistance of counsel at trial is `substantial' (i.e., `has some merit'); and (2) that his habeas counsel was ineffective for failing to present those claims in his first state habeas application.).
Because no state court has addressed the Petitioner's unexhausted ineffective assistance claims, this Court's review of same is necessarily de novo. Porter v. McCollum, 558 U.S. at 39; Rompilla v. Beard, 545 U.S. at 390, 125; Wiggins v. Smith, 539 U.S. at 534. Even under a de novo standard of review, however, this Court may not consider the juror affidavits submitted by Petitioner in support of his unexhausted ineffective assistance claims. Tanner v. United States, 483 U.S. at 120-25; Summers v. Dretke, 431 F.3d at 873.
An analysis of Petitioner's unexhausted ineffective assistance complaints begins with recognition that Petitioner's trial counsel presented a substantial amount of mitigating evidence during the punishment phase of Petitioner's capital murder trial showing, among other things, (1) Petitioner experienced multiple childhood traumas, including the unsolved murder of Petitioner's father, sexual assaults upon his older sister, and a generally unstable family life, (2) Petitioner's childhood traumas were the causes of Petitioner's substance abuse and propensity for violence as an adult, (3) Petitioner nonetheless possessed good character traits, and (4) Petitioner felt sincere remorse over having murdered Patel.
Petitioner's new witness affidavits from Petitioner's aunt Velina Thomas, childhood friend Randy Simms, grandmother Cherlye Benson, younger sister Charlotte Young, cousin Kanishia Young, and mother Dannetta Johnson offer the same information about the murder of Petitioner's father and the sexual assault of Petitioner's older sister (and the traumatic impact of those events on Petitioner) which Petitioner's trial counsel presented during the punishment phase of Petitioner's trial.
Additionally, Petitioner presents a report from a forensic and clinical psychologist (Dr. John Matthew Fabian) which reports extensive psychological testing was performed on Petitioner and concludes Petitioner suffers from post-traumatic stress disorder ("PTSD") of a severe and complex nature.
Viewed collectively, Dr. Fabian's report and the new witness affidavits present a wealth of double-edged evidence which, while possibly furnishing an explanation for Petitioner's extremely violent behavior, also paint a portrait of Petitioner as the product of an extremely violent, gangdominated, culture in which Petitioner was exposed to violence long before his father's murder or his sister's sexual assault. Petitioner admired the members of his family who participated in gang violence, and Petitioner dealt drugs beginning at age thirteen, even while residing with his grandparents. As the product of such a violent, crime-dominated, environment, Petitioner's jury could well have construed the vast majority of this new evidence as supporting an affirmative answer to the Texas capital sentencing scheme's future dangerousness special issue. Furthermore, insofar as the new evidence tends to identify Petitioner's mother as a major culprit in the deficient nurturing of Petitioner, such evidence would necessarily have undermined the credibility and effectiveness of Mrs. Johnson when she testified at the punishment phase of Petitioner's capital murder trial as the sole defense witness who asserted Petitioner had expressed sincere remorse over his murder of Patel. Thus, there are objectively reasonable bases for believing the new evidence presented by Petitioner in support of his unexhausted ineffective assistance claims would have been significantly less efficacious in terms of eliciting a favorable jury answer to the Texas capital special issues than the case in mitigation actually presented by Petitioner's trial counsel.
Furthermore, at least some aspects of this new evidence could have undermined the factual underpinnings of Dr. Kern's and Dr. Skop's expert testimony at trial. Specifically, Dr. Skop testified without contradiction at trial that he reviewed the report of Dr. Kern and relied upon same as part of his evaluation of Petitioner.
There are also dramatic inconsistencies between the information Petitioner apparently gave Dr. Kern (upon which Dr. Skop relied) and the information Petitioner furnished to Dr. Fabian regarding his history of suicidal ideation and suicide attempts. Dr. Kern testified at trial that, while Petitioner admitted he had experienced suicidal ideation following his father's murder, he stated he had never acted upon those thoughts.
While Petitioner's new witness affidavits contain many statements indicating those witnesses had little-to-no communication with Petitioner's trial counsel, those allegations must be viewed in proper context.
At the punishment phase of Petitioner's capital murder trial, the jury confronted only two special issues, i.e., the questions whether (1) there was a probability Petitioner would commit criminal acts of violence which constituted a continuing threat to society and (2) taking into consideration all of the evidence, sufficient mitigating circumstances (or a sufficient mitigating circumstance) existed which warranted a life sentence for Petitioner.
Petitioner's trial counsel attempted, albeit unsuccessfully, to elicit answers from the jury favorable to defendant on both those special issues by presenting evidence showing, among other things, that (1) Petitioner's mother, aunt, and grandmother all still loved Petitioner despite his commission of Patel's murder, (2) Petitioner's family members were "shocked" when they learned of Petitioner's offense, (3) Petitioner was a fairly normal eight year old until his father was brutally murdered and his older sister was sexually assaulted, (4) as a result of comments by others at school after his father's death, Petitioner began displaying anger and lost interest in attending school, (5) it was the traumatic experiences Petitioner suffered around age eight which caused Petitioner to withdraw emotionally from his family and become angry, (6) Petitioner been employed gainfully for many years and managed his money, and (7) Petitioner was a good boyfriend to at least one of the mothers of his daughters and loved both his daughters.
Presentation at trial of the "new mitigating evidence" proffered by Petitioner in the witness affidavits and report of Dr. Fabian attached to Petitioner's second amended petition would have dramatically reduced the potential efficacy of Petitioner's actual case in mitigation by (1) presenting a host of new information (including Petitioner's gang membership, extensive history of drugdealing, the active gang membership of Petitioner's family, and Petitioner's childhood exposure to a wide range of violence — both within his home and within his community) showing many forces which underlay Petitioner's propensity for violence existed separate and apart from the traumatic influences of his father's murder and his sister's sexual assault, (2) undermining the factual information underlying Dr. Kern's and Dr. Skop's expert opinions (by suggesting alternative reasons for Petitioner's descent into a pattern of violence and antisocial behavior), and (3) undermined the credibility and effectiveness of the lone defense witness (i.e., Petitioner's mother) who testified at trial that Petitioner was sincerely remorseful for having killed Patel. Petitioner's trial counsel could reasonably have concluded a trial strategy focused on (1) humanizing Petitioner, (2) showing Petitioner to be remorseful, and (3) showing Petitioner's troubles at school and propensity for violence resulted from the tragic murder of Petitioner's father and the sexual assaults upon Petitioner's older sister (rather than Petitioner's gang affiliation and exposure to a long history of domestic and gang violence) was superior to presenting the type of double-edged "new evidence" contained in Dr. Fabian's report and the new witness affidavits accompanying Petitioner's second amended petition. Having independently reviewed the entire record from Petitioner's trial, direct appeal, and state habeas corpus proceedings and all of the admissible new evidence accompanying Petitioner's second amended petition, this Court concludes Petitioner's unexhausted ineffective assistance claims all fail to satisfy the deficient performance prong of the Strickland analysis. This Court finds Petitioner's defense team (1) did conduct an objectively reasonable investigation (through its mitigation expert) into Petitioner's background, (2) identified and presented significant potentially mitigating evidence at trial designed to humanize Petitioner and explain Petitioner's propensity for violence as an adult resulted from Petitioner's childhood traumas (i.e., the unsolved murder of Petitioner's father's, the multiple sexual assaults upon Petitioner's older sister, and Petitioner's difficult, unstable childhood), and (3) presented evidence showing Petitioner felt sincere remorse over having murdered Patel. In so doing, the performance of Petitioner's trial counsel did not fall below an objective level of reasonableness.
In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the evidence in aggravation against the totality of available mitigating evidence (had the petitioner's trial counsel chosen a different course). Wong v. Belmontes, 558 U.S. at 20; Wiggins v. Smith, 539 U.S. at 534. Strickland does not require the State to "rule out" or negate a sentence of life in prison to prevail; rather, it places the burden on the defendant to show a "reasonable probability" that the result of the punishment phase of a trial would have been different. Wong v. Belmontes, 558 U.S. at 27. The prejudice inquiry under Strickland requires evaluating whether there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "The likelihood of a different result must be substantial, not just conceivable." Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012)(citing Harrington v. Richter, 562 U.S. 86 (2011)), cert. denied, ___ U.S. ___, 133 S.Ct. 1244, 185 L. Ed. 2d 190 (2013).
"To prevail on an ineffective assistance claim based upon uncalled witnesses, an applicant must name the witness, demonstrate that the witness would have testified, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable." Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir.), cert. denied, 562 U.S. 911 (2010). "An applicant `who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.'" Id.
Federal habeas corpus petitioners asserting claims of ineffective assistance based on counsel's failure to call a witness (either a law witness or an expert witness) satisfy the prejudice prong of Strickland analysis only by naming the witness, demonstrating the witness was available to testify and would have done so, setting out the content of the witness' proposed testimony, and showing the testimony would have been favorable to a particular defense. Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010); Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).
As explained above, the bulk of the new evidence presented by Petitioner in support of his second amended petition is repetitive of the testimony presented during the punishment phase of Petitioner's capital murder trial, i.e., the evidence of Petitioner's negative reaction to his father's murder and his older sister's sexual assault by his step-father. Petitioner's new evidence adds very little to the trial testimony of Petitioner's mother, grandmother, aunt, and Dr. Skop on these subjects.
During the punishment phase the prosecution presented the testimony of Chala Riley and Daphne Edwards, as well as evidence showing Petitioner had a lengthy criminal history for violent conduct, both as a juvenile and an adult.
Petitioner's procedurally defaulted unexhausted ineffective assistance claims fail to satisfy either prong of the Strickland analysis, do not satisfy either of the exceptions to the procedural default doctrine, and do not present a substantial claim of ineffective assistance by Petitioner's trial counsel. Thus, Petitioner's state habeas counsel did not render ineffective assistance in failing to present the state habeas court with the same new evidence Petitioner has presented in support of his second amended petition. Petitioner's unexhausted ineffective assistance claims do not warrant federal habeas corpus relief.
The state trial court concluded Petitioner's complaints about his trial counsels' failure to (1) object to the absence of a jury instruction informing the jury it need not unanimously agree on which evidence supported an affirmative finding on the mitigation special issue and (2) conduct a more thorough investigation into Petitioner's background and present additional mitigating evidence both failed to satisfy the prejudice prong of the Strickland analysis. The Texas Court of Criminal Appeals accepted those conclusions and denied state habeas corpus relief.
This Court is precluded from considering any of the new evidence Petitioner has presented in support of his exhausted ineffective assistance claims. See Cullen v. Pinholster, ___ U.S. at ___, 131 S. Ct. at 1401 (holding a federal habeas petitioner is not entitled to present new evidence supporting a claim in federal court when the state court has ruled on the merits of the underlying claim); Loden v. McCarty, 778 F.3d at 493 ("When, as here, a habeas petitioner's claim has been adjudicated on the merits in state court, `review under § 2254(d)(1) is limited to the record that was before the state court.'"); Woodfox v. Cain, 772 F.3d at 368 ("The Supreme Court has clarified that when a claim is adjudicated on the merits, for the purposes of review under § 2254(d)(1), the record is limited to the one before the state court, even if the state court issued a summary affirmance.").
When, as here, a state court has rejected a claim of ineffective assistance on the merits, under the AEDPA, a federal habeas court's review of that ruling is also highly deferential:
Harrington v. Richter, 562 U.S. at 101.
For the reasons set forth at length in Section V above, the Texas Court of Criminal Appeals reasonably concluded Petitioner was not prejudiced by the absence from Petitioner's punishment phase jury instructions of the admonition required by Article 37.071, §2(f)(3) of the Texas Code of Criminal Procedure. Petitioner's jury unanimously concluded there were no mitigating circumstances (and no mitigating circumstance) sufficient to warrant imposition of a life sentence in Petitioner's case. Nothing in Petitioner's punishment phase jury instructions or punishment phase verdict form advised Petitioner's jury it was required to unanimously agree upon which evidence supported an affirmative answer to the mitigation special issue. Thus, the constitutional error in Mills was not present at Petitioner's trial. Nor could Petitioner's jury have reasonably construed any of the jury arguments or voir dire examination they received as suggesting a need for unanimity on specific mitigating evidence before the jury could render an affirmative finding on the mitigation special issue. The state habeas court reasonably concluded this complaint failed to satisfy the prejudice prong of Strickland analysis. Smith v. Spisak, 558 U.S. at 148-49.
Having independently reviewed the record from Petitioner's trial and state habeas corpus proceeding, this Court also finds, as did the state habeas trial court, that Petitioner presented no new mitigating evidence in support of his Wiggins claim in his state habeas corpus proceeding.
The Texas Court of Criminal Appeals' rejections on the merits of Petitioner's ineffective assistance complaints premised upon (1) the absence of an Article 37.071, §2(f)(3) jury instruction, and (2) the scope of Petitioner's trial counsels' investigation into Petitioner's background and the mitigation evidence the defense team actually presented during the punishment phase of Petitioner's capital murder trial were neither contrary to, nor involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States nor based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial court and state habeas corpus proceedings. Petitioner's exhausted ineffective assistance claims do not warrant federal habeas corpus relief.
Petitioner has requested an evidentiary hearing to permit more factual development of his claims herein. Under the AEDPA, the proper place for development of the facts supporting a claim is the state court. See Hernandez v. Johnson, 108 F.3d 554, 558 n.4 (5th Cir.) (holding the AEDPA clearly places the burden on a petitioner to raise and litigate as fully as possible his federal claims in state court), cert. denied, 522 U.S. 984 (1997). Furthermore, where a petitioner's claims have been rejected on the merits, further factual development in federal court is effectively precluded by virtue of the Supreme Court's holding in Cullen v. Pinholster, ___ U.S. at ___, 131 S. Ct. at 1398-1400 (holding an evidentiary hearing is unnecessary when a state court has rejected a claim on the merits and federal habeas review of that rejection is governed by §2254(d)(1)). Thus, Petitioner is not entitled to a federal evidentiary hearing on any of his claims herein which were rejected on the merits by the state courts, either on direct appeal or during Petitioner's state habeas corpus proceeding. See Woodfox v. Cain, 772 F.3d 358, 368 (5th Cir. 2014) ("The Supreme Court has clarified that when a claim is adjudicated on the merits, for the purposes of review under § 2254(d)(1), the record is limited to the one before the state court, even if the state court issued a summary affirmance."), cert. filed, April 27, 2015, no. 14-1288).
Likewise, where a federal habeas corpus petitioner's claims lack merit on their face, further factual development is not necessitated. See Register v. Thaler, 681 F.3d 623, 627-30 (5th Cir. 2012) (recognizing District Courts possess discretion regarding whether to allow factual development, especially when confronted with claims foreclosed by applicable legal authority). "In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court." Richards v. Quarterman, 566 F.3d 553, 562 (5th Cir. 2009) (quoting Schriro v. Landrigan, 550 U.S.465, 468 (2007)). "In determining whether to grant a hearing, under Rule 8(a) of the habeas Court Rules `the judge must review the answer [and] any transcripts and records of state-court proceedings . . . to determine whether an evidentiary hearing is warranted.'" Richards v. Quarterman, 566 F.3d at 562-63 (quoting Hall v. Quarterman, 534 F.3d 365, 368 (5th Cir. 2008) (in turn quoting Schriro, 550 U.S. at 473)). In making this determination, courts must consider whether an evidentiary hearing could "enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Richards v. Quarterman, 566 F.3d at 563 (quoting Schriro, 550 U.S. at 474).
Petitioner's unexhausted first claim for relief herein is not only procedurally defaulted but also barred by the non-retroactivity doctrine of Teague v. Lane. Petitioner's second claim is also barred by the holding in Teague. In addition to being without merit, Petitioner's third claim is unexhausted and procedurally defaulted. Petitioner's unexhausted ineffective assistance claims are procedurally defaulted and not "substantial" for purposes of the Ryan v. Martinez exception to the procedural doctrine. Petitioner is not entitled to an evidentiary hearing for the purpose of developing any of his procedurally defaulted or Teague-barred claims.
Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA. Miller-El v. Johnson, 537 U.S. 322, 335-36 (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); 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. Crutcher v. Cockrell, 301 F.3d at 658 n.10; 28 U.S.C. §2253(c) (3).
A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282 (2004); Miller-El v. Johnson, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. 473, 483 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282; Miller-El v. Johnson, 537 U.S. at 336. This Court is required to issue or deny a CoA when it enters a final Order such as this one adverse to a federal habeas petitioner. Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts.
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. "[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Johnson, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. at 484); accord Tennard v. Dretke, 542 U.S. at 282. In a case in which the petitioner wishes to challenge on appeal this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court's procedural ruling was correct).
In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner's favor. Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.), cert. denied, 558 U.S. 993 (2009); Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir. 2005), cert. denied, 548 U.S. 909 (2006). Nonetheless, a CoA is not automatically granted in every death penalty habeas case. See Miller-El v. Cockrell, 537 U.S. at 337 ("It follows that issuance of a COA must not be pro forma or a matter of course.").
Reasonable minds could not disagree with this Court's conclusions that (1) Petitioner's unexhausted first claim herein is procedurally defaulted and barred by the non-retroactivity doctrine of Teague v. Lane, (2) Petitioner's second claim was reasonably rejected by the state courts on the merits in a manner fully consistent with clearly established federal law, as well as barred by Teague, (3) Petitioner's third claim is unexhausted, procedurally defaulted, and without merit, (4) Petitioner's fourth claim was reasonably rejected by the state appellate court in a manner consistent with clearly established federal law, (5) all of Petitioner's ineffective assistance claims, both his unexhausted and his exhausted complaints, all fail to satisfy the prejudice prong of the Strickland analysis, (6) Petitioner's juror affidavits are inadmissible in this federal habeas corpus proceeding for all the purposes for which Petitioner has submitted them for review in this cause, and (7) Cullen v. Pinholster precludes this Court from considering Petitioner's new evidence in connection with any of the Petitioner's claims in his second amended petition which the state appellate court or state habeas court rejected on the merits. Petitioner is not entitled to a CoA on either his Martinez v. Ryan arguments, his Strickland claims, or any of his remaining claims for relief.
Accordingly, it is hereby
1. All relief requested in Petitioner's second amended federal habeas corpus petition, filed June 27, 2014 (ECF no. 39), is
2. Petitioner is
3. Petitioner's request for an evidentiary hearing is
4. All other pending motions are
The court reporter's record from Petitioner's trial reveals the jury retired to deliberate at the guilt-innocence phase of trial at 10:47 AM on February 1, 2006 and returned to the courtroom with its verdict form at 12:34 PM the same date. It is unclear from the record whether Petitioner's jury took a lunch break during that time frame.
Significantly, in his appellant's brief, Petitioner complained that the prosecution's use of peremptory strikes against three African-American female members of the jury venire, i.e., Geneva Nealy Johnson, Myrtlene Anderson Williams, and Paulette Childress, were based upon improper racial considerations and, therefore, violated the principle announced by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). Appellant's Brief, at pp. 37-54. At no point in his Appellant's Brief did Petitioner argue the prosecution's real reason for striking any of these three venire members was anything other than their ethnicity. Petitioner never argued in his Appellant's Brief that the prosecution had engaged in any improper consideration of the religion or religious affiliation of any of these three venire members.
As grounds for relief, Petitioner's state habeas counsel argued (1) Petitioner's trial counsel rendered ineffective assistance under both federal and state law by (a) failing to request a jury instruction at the punishment phase of trial pursuant to Article 37.071, §2(f)(3) of the Texas Code of Criminal Procedure informing the jurors they need not unanimously agree on which mitigating evidence warranted a finding favorable to the defense on the mitigation special issue, (b) failing to request a jury instruction at the guilt-innocence phase of trial on the lesser-included offense of felony murder, (c) failing to investigate whether the fatal bullet went through Patel's hand and ricocheted off the floor before striking Patel in the chest, (d) failing to have a forensic expert examine the fatal bullet to see if it passed through Patel's hand before striking the floor and then entering Patel's chest, (e) failing to voir dire the jury venire on the difference between capital murder and felony murder, (f) failing to challenge the legality of petitioner's arrest, (g) failing to object to the admission of evidence defense counsel had previously contested, and (h) failing to investigate possible mitigating evidence, including evidence showing Ppetitioner suffered from Attention Deficit Disorder, asthma, dyslexia, the effects of post-traumatic stress disorder, organic brain damage due to prolonged drug abuse.
Petitioner's state habeas counsel also argued: (1) the trial court erroneously failed to instruct the jury at the punishment phase of trial in accordance with Article 37.071, §2(f)(3) of the Texas Code of Criminal Procedure that the jurors need not unanimously agree on which mitigating evidence warranted a finding favorable to the defense on the mitigation special issue, in violation of Due Process principles, (2) Article 44.251(A) when read in conjunction with Article 37.071, §2(e) is facially unconstitutional under the Eighth and Fourteenth Amendments to the U.S. Constitution, (3) Due Process principles require appellate review of the proportionality of capital sentences, (4) the Texas statutory definition of "mitigating evidence" is unconstitutionally narrow because it is limited to evidence which reduces a defendant's moral blameworthiness, (5) the Texas capital sentencing scheme's mitigation special issue is facially unconstitutional because it is open-ended in nature, (6) the Texas capital sentencing scheme's mitigation special issue fails to place the burden on the prosecution to disprove the existence of mitigating evidence warranting a life sentence, (7) the death penalty is unconstitutional under the U.S. Constitution and the Texas Constitution, and (8) the Texas capital sentencing scheme is unconstitutional because (a) it forces juries to continue deliberating even after a juror votes to answer a special issue in a manner favorable to the defense and (b) the jurors are not advised of the effect of a single holdout juror.
Petitioner's mother testified (1) Petitioner had a normal childhood until his father's murder when Petitioner was six years old, which was traumatic for both Petitioner and his entire family, (2) Petitioner was diagnosed with dyslexia and ADD in the seventh grade, which inhibited Petitioner's ability to read and write, and (3) no one offered counseling to her or Petitioner when Petitioner was a juvenile. S.F. State Habeas Hearing, testimony of Dannetta Johnson, at pp. 40-53.
Petitioner's aunt testified (1) Petitioner was eight years old when his father was murdered, (2) Petitioner became frustrated when Petitioner watched a Crime Stopper's re-enactment of his father's murder, (3) Petitioner attended his father's wake but not his father's funeral, (4) Petitioner stayed with her for a few months after his father's murder and had nightmares, and (5) Petitioner worked at a car wash that fronted for a drug dealer beginning at age seventeen or eighteen. S.F. State Habeas Hearing, testimony of Velina Thomas, at pp. 54-59.
Petitioner's older sister testified (1) she was very close to Petitioner, (2) she was raped by their stepfather, (3) Petitioner reacted very negatively to the murder of their father and to her rape, (4) Petitioner became withdrawn, violent, and dropped out of school, (5) Petitioner became violent toward their mother, (6) Petitioner observed violence in their home between their mother and their stepfather. (7) Petitioner became angry over this violence, (8) Petitioner also became very protective and controlling, (9) she was living in Milwaukee, Wisconsin at the time of Petitioner's trial, (10) because of complications with her pregnancy, she was unable to travel to attend Petitioner's capital murder trial, and (11) nonetheless, she wrote to Petitioner's trial counsel and offered to help. S.F. State Habeas hearing, testimony of Tasha Ferguson, at pp. 60-71.
Linda Tussay testified (1) she was the court-appointed mitigation specialist for the defense, (2) she suggested to Petitioner's counsel that Petitioner should be evaluated for post-traumatic stress, (3) she did not believe it necessary to evaluate Petitioner for mental retardation, (4) not all of Petitioner's educational and school records were available to the defense team because Petitioner had attended so many schools and many of his school records had been destroyed by the time of trial, (5) she helped prepare the defense's witnesses at the punishment phase of trial, but (6) she was not present for the testimony of Dr. Kern or Dr. Skop and was unaware of the contents of their testimony or the nature of their evaluations of Petitioner. S.F. State Habeas Hearing, testimony of Linda Tussay, at pp. 71-93.
The individual voir dire examination of Petitioner's twelve petit jurors appear at S.F. Trial, Volume 4, voir dire examination of Ramon Luna, at pp. 15-39; S.F. Trial, Volume 5, voir dire examination of Darcelle Lott, at pp. 7-40; S.F. Trial, Volume 5, voir dire examination of Mark Hairston, at pp. 120-46; S.F. Trial, Volume 5, voir dire examination of Joan Thomas, at pp. 179-207; S.F. Trial, Volume 6, voir dire examination of Jason Olivarri, at pp. 31-41; S.F. Trial, Volume 6, voir dire examination of Robert Gonzalez, at pp. 67-96 (accepted at S.F. Trial, Volume 8, at p. 197); S.F. Trial, Volume 6, voir dire examination of Monique Medina, at pp. 136-66; S.F. Trial, Volume 7, voir dire examination of Griselda Tamez, at pp. 4-26; S.F. Trial, Volume 8, voir dire examination of Roland Bazan, at pp. 28-54; S.F. Trial, Volume 9, voir dire examination of Rodrigo Rodriguez, at pp. 80-107; S.F. Trial, Volume 9, voir dire examination of Alison Campbell-Davies, at pp. 163-91; S/F. Trial, Volume 10, voir dire examination of Christine Avery, at pp. 34-63.
Dr. Fabian also concluded (1) Petitioner's PTSD resulted from Petitioner suffering the loss of his father at an early age, a history of neglect and abuse by his mother, chronic and intense gang activity within his family, (2) Petitioner's PTSD is characterized by antisocial behavior, verbal and physical aggressiveness towards people or objects, reckless and self-destructive behavior combined with difficulty processing his emotions, significant alcohol and substance abuse, and increased stress reactivity as well as anger and impulsiveness, (3) Petitioner lacks empathy for others, (4) there is little chance Petitioner will ever escape from his chronic PTSD, (5) youth who have been victimized by abuse or violence have been found to be more likely to recidivate than other youth, and (6) Petitioner "was exposed to an extreme combination of early, intense, severe, and frequent traumatic experiences and conditions that placed him at risk for attachment deficits, substance abuse, depression, and antisocial behavior." Id., at pp. 19-23.
Attorney Sawyer testified (1) Ms. Tussay did extensive background investigation into Petitioner's life history and developed evidence showing Petitioner's father's murder and the rape of Petitioner's sister Tasha both had a tremendous impact on Petitioner's development, (2) Petitioner used crack cocaine on the date of the murder, (3) he discussed the possibility of Petitioner testifying at trial and Petitioner chose not to do so, and (4) he discussed the possibility of using post-traumatic stress syndrome as a defense at the guilt-innocence phase of trial but decided it could not be used effectively. S.F. State Habeas Hearing, testimony of Michael J. Sawyer, at pp. 8-14, 28, 32, 36. Ms. Tussay testified she helped prepare the defense's punishment phase witnesses. Id., testimony of Linda Tussay, at p. 85.
Dr. Fabian's Report, at p. 5.
Dr. Fabian's Report, at pp. 8-9.
Id., at p. 19.
Dr. Fabian's Report, at pp. 13-14.
