No. 14- IN THE Supreme Court of the United States CHRISTOPHER CHUBASCO WILKINS, Petitioner, v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR A WRIT CERTIORARI BROOK HOPKINS WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 HILARY SHEARD LAW OFFICE OF HILARY SHEARD 7301 Burnet Road #102-328 Austin, TX 78757 SETH P. WAXMAN Counsel of Record CATHERINE M.A. CARROLL WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 [email protected]m
Transcript
No. 14-
IN THE
Supreme Court of the United States
CHRISTOPHER CHUBASCO WILKINS, Petitioner,
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT CERTIORARI
BROOK HOPKINS WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 HILARY SHEARD LAW OFFICE OF HILARY SHEARD 7301 Burnet Road #102-328 Austin, TX 78757
SETH P. WAXMAN
Counsel of Record CATHERINE M.A. CARROLL
WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 [email protected]
(i)
CAPITAL CASE
QUESTIONS PRESENTED
Christopher Wilkins, an indigent death-row prison-er, was represented in Texas habeas proceedings by an attorney who was about to go work for the same office that had prosecuted Wilkins. That attorney refused to raise and failed to investigate any ineffective-assistance claim, despite several red flags indicating trial counsel’s deficient performance. Wilkins therefore sought to in-vestigate and develop his ineffective-assistance claims in federal court, but the district court ordered him not to raise any unexhausted claims and denied Wilkins’s request for funding. The Fifth Circuit affirmed the de-nial of funding and denied a certificate of appealability.
The questions presented are:
1. Whether the Fifth Circuit erred in holding that a capital habeas petitioner may not obtain funding un-der 18 U.S.C. § 3599(f) to investigate and develop a claim of ineffective assistance of trial counsel if the claim has been procedurally defaulted, regardless of whether the petitioner can establish cause for the de-fault under Martinez v. Ryan, 132 S. Ct. 1309 (2012), at least where the petitioner has not already demonstrat-ed the merits of the claim.
2. Whether, in a capital habeas case where the pe-titioner has had no opportunity or funding to investi-gate or develop his procedurally defaulted ineffective-assistance claim, a federal court may deny relief and deny a certificate of appealability based on a premature determination that the claim lacks merit.
(iii)
TABLE OF CONTENTS Page
QUESTIONS PRESENTED ............................................ i
TABLE OF AUTHORITIES .........................................vii
A. The Fifth Circuit’s Rule Conflicts With § 3599 And Frustrates This Court’s Precedent ............................................................. 19
B. Courts In The Fifth Circuit Are Alone In Applying This Rule And Are Doing So With Increased Frequency .......................... 22
C. Wilkins’s Request For Funds Should Have Been Granted ............................................ 24
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TABLE OF CONTENTS—Continued
Page
II. THE COURT SHOULD GRANT REVIEW TO
CLARIFY THAT AN INEFFECTIVE-ASSISTANCE CLAIM CANNOT BE REJECTED
A. The Fifth Circuit’s Premature Rejec-tion Of Undeveloped Ineffective-Assistance Claims On Their Merits Frustrates The Purposes Of Martinez ............ 27
B. The Fifth Circuit’s Approach Contra-venes Miller-El ................................................... 30
APPENDIX A: Opinion of the United States Court of Appeals for the Fifth Circuit denying certificate of appealability and af-firming denial of funding, Mar. 25, 2014 .................. 1a
APPENDIX B: Order of the United States District Court for the Northern District of Texas denying petition, No. 12-cv-270, Jan. 29, 2013 .............................................................. 33a
APPENDIX C: Order of the United States District Court for the Northern District of Texas denying funding, No. 12-cv-270, June 19, 2012 ............................................................. 73a
v
TABLE OF CONTENTS—Continued
Page
APPENDIX D: Transcript of Telephone Con-ference, United States District Court for the Northern District of Texas, No, 11-cv-72, Feb. 24, 2011 .............................................................. 75a
APPENDIX E: Order of the United States District Court for the Northern District of Texas interpreting motion to abate as mo-tion to withdraw the motion for appoint-ment of counsel and dismissing case with-out prejudice, No. 11-cv-72, Mar. 8, 2011 .............. 79a
APPENDIX F: Order of the United States District Court for the Northern District of Texas fixing schedule for filing of habeas papers, No. 12-cv-270, May 2, 2012 ........................ 81a
APPENDIX G: Order of the United States District Court for the Northern District of Texas denying motion for scheduling order, No. 12-cv-270, May 3, 2012 ...................................... 83a
APPENDIX H: Order of the United States District Court for the Northern District of Texas denying stay pending Trevino, No. 12-cv-270, Nov. 30, 2012 ................................. 91a
APPENDIX I: Order of the United States District Court for the Northern District of Texas denying motion to vacate, alter, or amend and denying certificate of appeala-bility, No. 12-cv-270, Mar. 15, 2013 ........................ 93a
APPENDIX J: Order of the United States Court of Appeals for the Fifth Circuit denying rehearing, June 10, 2014 ........................... 95a
Dix, George E., & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure (3d ed. 2011) ............................................... 8
x
TABLE OF AUTHORITIES—Continued
Page(s)
Hertz, Randy, & James S. Liebman, Federal Habeas Corpus Practice And Procedure (6th ed. 2011) ................................................................ 30
State Bar of Texas, Guidelines and Standards for Texas Capital Counsel, 69 Tex. Bar J. 966 (2006) ............................................. 8
IN THE
Supreme Court of the United States
No. 14-
CHRISTOPHER CHUBASCO WILKINS, Petitioner,
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Christopher Wilkins respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals denying a certif-icate of appealability and affirming the denial of fund-ing (App. 1a-32a) is unpublished but is available at 560 F. App’x 299. The opinion of the district court denying the petition for habeas corpus (App. 33a-71a) is un-
2
published but is available at 2013 WL 335998. The dis-trict court’s order denying petitioner’s request for funds (App. 73a-74a) is unreported.
JURISDICTION
The court of appeals entered judgment on March 25, 2014, and denied a timely rehearing petition on June 10, 2014. App. 95a-96a. This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS
Provisions of 18 U.S.C. § 3599 and 28 U.S.C. § 2253 are reproduced in the Appendix. App. 97a-99a.
STATEMENT
Christopher Wilkins was convicted of capital mur-der in Texas in 2008 and sentenced to death. Because the district court would not appoint counsel for Wil-kins’s federal habeas proceedings unless Wilkins agreed to a severely truncated filing deadline, Wilkins had no counsel for those proceedings until an attorney agreed to represent him pro bono just ten weeks before his federal habeas petition was due. Through an un-funded preliminary investigation, pro bono counsel un-covered several red flags indicating that trial counsel’s performance was constitutionally deficient. Among other things, trial counsel had conducted only an ane-mic mitigation investigation, failed to pursue leads that emerged in that investigation, and failed to prepare for other issues that were sure to arise at trial. Pro bono counsel also learned that Wilkins’s state habeas attor-ney—acting in disregard of his statutory and profes-sional obligations and contrary to Wilkins’s specific in-structions—had refused to raise and failed to investi-gate any ineffective-assistance claim.
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Although Wilkins’s ineffective-assistance claims had been procedurally defaulted, Wilkins’s pro bono federal habeas counsel asserted those claims as best she could despite her limited opportunity to investi-gate—first by applying for funds under 18 U.S.C. § 3599(f), and then in Wilkins’s federal habeas petition. She argued that an appropriate investigation would likely demonstrate not only the merits of the underly-ing claims, but also cause for the procedural default un-der Martinez v. Ryan, 132 S. Ct. 1309 (2012). Martinez held that inadequate representation at an “initial-review collateral proceeding”—such as a Texas habeas proceeding—can establish cause to excuse the default of a substantial claim of ineffective assistance of trial counsel. Id. at 1315-1320; see also Trevino v. Thaler, 133 S. Ct. 1911 (2013) (applying Martinez to Texas cas-es). This Court adopted that equitable exception to the procedural-default rule “[t]o protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel,” recognizing that without such an excep-tion, “no court will review the prisoner’s claims.” Mar-tinez, 132 S. Ct at 1315, 1316. As the Court explained in Trevino, “significant unfairness” would result from “depriv[ing] the defendant of any opportunity at all for review of an ineffective-assistance-of-trial-counsel claim.” 133 S. Ct. at 1919, 1921.
The Fifth Circuit made an end-run around this Court’s decisions by affirming the denial of Wilkins’s request for funds in light of the procedural default and then holding that Wilkins could not establish cause for the default or obtain relief on the merits because he had not produced sufficient evidence to substantiate his in-effective-assistance claims—i.e., the very evidence he needed the funds to obtain. Under the Fifth Circuit’s circular analysis, a capital habeas petitioner cannot se-
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cure resources to develop an ineffective-assistance claim unless the petitioner can already demonstrate the claim’s merit. That reasoning finds no support in the text of § 3599(f) and makes little sense in those cases where the reason Martinez might apply is because state habeas counsel never conducted a reasonable in-vestigation. Yet federal courts within the Fifth Cir-cuit—apparently alone among the federal courts—have taken this approach with increased frequency. This Court should grant review to correct the Fifth Circuit’s improper approach and allow Wilkins, for the first time, to conduct a meaningful investigation of his ineffective-assistance claims and ensure that they receive proper consideration.
A. Wilkins’s Trial And Sentencing
Christopher Wilkins was arrested for the October 2005 murders of Mike Silva and Willie Freeman in Fort Worth, Texas. The prosecution’s evidence indicated that Freeman tricked Wilkins into buying gravel for $20 that Freeman passed off as cocaine. App. 2a. Ac-cording to the prosecution, Wilkins thereafter decided to kill Freeman. Wilkins told Freeman he had a stash of guns and drugs across town, and Silva agreed to drive the two men to retrieve them. App. 2a-3a. Dur-ing that trip, Wilkins shot Freeman in the back of the head and shot Silva three times as he tried to escape. App. 3a.
Wilkins was arrested about a week later and made statements to Detective Cheryl Johnson confessing to numerous murders and suggesting that he might plead guilty. 28 RR 136-149, 164-169, 180-182.1
1 The trial transcript (“Reporter’s Record”) is cited as “RR”
by volume and page.
5
In December 2005, the trial court appointed Wess-ley Ball to represent Wilkins, assisted by Warren St. John. Wilkins was tried in early 2008. Ball presented no evidence or witnesses at the guilt phase. His sole defense theory, pursued through cross-examination of Detective Johnson, was that Wilkins tended to make false confessions. 26 RR 36-41; 29 RR 140-145. Alt-hough Johnson conceded that police could not verify most of Wilkins’s confessions, 28 RR 136-149, 164-165, she testified that she did not believe Wilkins had lied about all of them, id. at 165. On March 4, 2008, the jury convicted Wilkins of capital murder. App. 34a.
At sentencing, the prosecution called 24 witnesses to describe prior crimes and acts of violence committed by Wilkins. 30 RR 10 through 33 RR 96. These includ-ed the shooting of Ball’s former client, Gilbert Vallejo. Although witnesses could not identify Wilkins as Valle-jo’s assailant, 32 RR 58-60, and fingerprints from Valle-jo’s murder could not be linked to Wilkins, 33 RR 20-21, a firearms examiner testified that projectiles from the Silva-Freeman and Vallejo murders appeared to have been fired from the same weapon, 32 RR 87-88. The prosecution also called a sheriff’s deputy to testify about Wilkins’s striking tattoos, which the deputy claimed were insignia of the “Confederate Hammer-skin” gang. 34 RR 50-81. And the prosecution called three corrections officers to testify about Wilkins’s be-havior in jail, including an incident in which he obtained and swallowed a handcuff key. Id. at 83-163.
In defense, Ball called five of Wilkins’s immediate family members, who testified that Wilkins had a fairly stable childhood, despite a mostly absentee father, but that he had been influenced by “drugs and the wrong people.” 33 RR 176; see id. at 98-188. Five corrections officers also indicated, in less than an hour of testimony,
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that Wilkins was generally compliant. 34 RR 163-200. Ball’s only expert witness was a former prison war-den—whom Ball had hired the day before trial, 26 RR 10-13—to testify about the conditions in which Wilkins would be confined if sentenced to life in prison. 35 RR 92-144. She testified—erroneously, and to Wilkins’s considerable detriment—that Wilkins could achieve a less restrictive security status, potentially allowing him to work or live outside the main prison buildings, after only ten years. Id. at 103-108; cf. Petition Ex. 38, at 237; Petition Ex. 39, at 245-246.2
Wilkins also testified. 35 RR 10-91. He admitted to shooting Freeman and Silva and took responsibility for his actions, stating “[i]t doesn’t have anything to do with [my family]. … I make bad decisions. I know they’re bad decisions when I’m making them, I make them anyway.” Id. at 13, 26-27. Wilkins also admitted to Vallejo’s murder and admitted that he had confessed falsely to other crimes. Id. at 28-36. Wilkins explained that he “th[ought] subconsciously [he’d] been trying to kill [him]self or get [him]self killed” since his relation-ship with the mother of his three children ended. Id. at 59. When asked if it was his idea to plead not guilty, Wilkins replied, “No, absolutely not.” Id. at 16; see also id. at 14-15. But, Wilkins asserted, his lawyers “didn’t want [him] to” plead guilty and “convinced” him to go to trial. Id. at 16. Wilkins concluded: “[A]t this point, really, it doesn’t matter what I want. … [I]t’s no big deal, no big deal. Just do whatever you do.” Id. at 61.
On March 11, 2008, the jury returned its sentencing verdict, finding that Wilkins “would commit criminal
2 Exhibits to Wilkins’s Petition for Habeas Corpus, Dkt. 30, No. 12-cv-270 (N.D. Tex. May 22, 2012) (“Petition”) are cited as “Petition Ex.”
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acts of violence that would constitute a continuing threat to society” and that there were not sufficient mitigating circumstances to warrant a sentence of life imprisonment without parole rather than death. App. 36a. The court imposed the death sentence. Id.
B. Direct Appeal
After sentencing, the trial court appointed Ball as Wilkins’s appellate counsel. App. 36a-37a. Wilkins lat-er learned, however, that Ball’s previous representa-tion of Vallejo presented a potential conflict of interest. Although Ball had earlier informed Wilkins of his rela-tionship with Vallejo, Ball had not explained the legal consequences of the potential conflict or informed the trial court. MSO Ex. K at 6-16.3 In January 2009, Wil-kins sought to have Ball removed, and the Texas Court of Criminal Appeals remanded for a hearing. The trial court found no conflict of interest, but accepted Ball’s offer to withdraw and substituted David Richards as appellate counsel. Id. at 22-24, 27-28.
Consistent with Texas law and practice, see Trevi-no, 133 S. Ct. at 1918-1920, Richards raised no ineffec-tive-assistance claims, limiting his appeal to record-based issues and constitutional challenges to Texas’s death-penalty scheme. Wilkins v. State, 2010 WL 4117677 (Tex. Crim. App. Oct. 20, 2010). The Court of Criminal Appeals affirmed Wilkins’s conviction and sentence. Id. Richards submitted a petition for certio-rari to this Court, but failed to attach the required in forma pauperis affidavit, and his petition was never docketed. See Petition Ex. 1. Wilkins separately filed a
3 Exhibits to Wilkins’s Motion for Scheduling Order, Dkt. 10,
No. 12-cv-270 (N.D. Tex. May 1, 2012) (“MSO”) are cited as “MSO Ex.”
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pro se petition for certiorari attempting to raise claims of ineffective assistance of counsel, MSO Ex. XX, which this Court denied. Wilkins v. Texas, 131 S. Ct. 2901 (2011).
C. State Habeas Proceedings
Pursuant to Texas law, Wilkins’s state habeas ap-plication proceeded simultaneously with his direct ap-peal. See Tex. Code Crim. Proc. art. 11.071 § 4; 43B Dix & Schmolesky, Texas Practice § 58.64 (3d ed. 2011). The trial court appointed Jack Strickland as Wilkins’s state habeas counsel. App. 37a.
Strickland was obligated to conduct an extra-record investigation into potential collateral claims, in-cluding ineffective assistance of trial counsel. Tex. Code Crim. Proc. art. 11.071 § 3(a) (requiring “expedi-tious[]” investigation, “before and after the appellate record is filed,” of the factual and legal basis for poten-tial claims); see also State Bar of Texas, Guidelines and Standards for Texas Capital Counsel, 69 Tex. Bar J. 966, 976 (2006). And, as Wilkins detailed in several pro se filings, Wilkins repeatedly asked Strickland to pur-sue claims that he had been denied the effective assis-tance of counsel. See, e.g., MSO Ex. I. Strickland did no such thing. He waited a year before hiring an inves-tigator and did not collect the appellate record until nearly six months after it had become available. MSO Ex. E at 126; MSO Ex. F at 130. And although Strick-land secured funding for a mitigation specialist and a psychologist, he never retained anyone to fill those roles. MSO Ex. H at 167. Strickland’s investigator did not interview any witnesses until May 29, 2010, ten days before Strickland filed the habeas application. MSO Ex. G at 154-156.
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Strickland’s state habeas application raised 18 claims. MSO Ex. A. Each claim either rested on the trial record or challenged the constitutionality of Tex-as’s death-penalty system. Id. None reflected any ex-tra-record investigation, and none raised any ineffec-tive-assistance issue. Id.
In late 2010, while his habeas application was pend-ing, Wilkins learned that Strickland had accepted a job with the same District Attorney’s office that had prose-cuted Wilkins. Strickland had previously worked there, and it was announced publicly in May 2010—one month before Strickland filed Wilkins’s habeas application—that Strickland would be returning. MSO Ex. N. Yet Strickland never told Wilkins he had accepted employ-ment with Wilkins’s adversary, and he did not with-draw from Wilkins’s case until February 2011—after he returned to the District Attorney’s office, and after ha-beas relief had been denied. MSO Ex. O. When Wil-kins learned of the conflict, he tried to raise the issue in the Court of Criminal Appeals, MSO Ex. UU at 538, but received no response.
In February 2011, on the trial court’s recommenda-tion, the Court of Criminal Appeals denied Wilkins’s habeas application. Ex Parte Wilkins, 2011 WL 334213.
D. District Court Proceedings
1. Because Strickland had returned to the District Attorney’s office, a new attorney, John Stickels, moved for appointment as Wilkins’s federal habeas counsel under 18 U.S.C. § 3599(a)(2). See Mot. for Appoint-ment, Dkt. 2, No. 11-cv-72 (N.D. Tex. Feb. 8, 2011).
Before ruling on the motion, District Judge McBryde held a telephone conference with Wilkins and Stickels to explain his practice with respect to ap-
10
pointment of counsel in habeas proceedings. “If we go forward now,” the court explained, “I’ll sign an order that requires the … petition for writ be filed within 45 days, and we move pretty fast. We rule on them real fast because I think that’s the proper thing to do[.]” App. 76a. At that point, this Court had not yet denied certiorari on direct review of Wilkins’s conviction and sentence, so the one-year period under 28 U.S.C. § 2244(d) for filing a federal habeas petition had not yet begun to run. Forced to choose between having coun-sel appointed right away or having the full year in which to prepare his claims, Wilkins opted for more time. Id. Stickels acquiesced to the court’s 45-day rule (App. 77a), withdrew his motion (App. 79a-80a), and took no further action on Wilkins’s behalf.
2. Wilkins derived little benefit from the time he gained. Without counsel, progress on his case halted for one year. Finally, on March 9, 2012—just ten weeks before Wilkins’s federal habeas petition was due—Wilkins obtained pro bono counsel. Using her own re-sources, Wilkins’s new attorney, Hilary Sheard, tried to investigate potential claims, including ineffective assis-tance of counsel.
Based largely on her review of case files and billing records submitted by Wilkins’s state-court attorneys, Sheard discovered that the feeble mitigation case Ball had presented at sentencing reflected an investigation that was abandoned soon after it began and resumed only on the eve of trial. Ball waited three months after his appointment to hire an investigator. 1 CR 14-16.4 That investigator apparently did no work on the case,
4 The “Clerk’s Record” of trial-court docket entries are cited
as “CR” by volume and page.
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but Ball did not replace him until two days before jury selection began. Id. at 212-214. Similarly, although Ball had hired a mitigation specialist in 2006, Ball let that investigation languish and did not even learn until shortly before trial that the mitigation specialist had been ill and “unable to work going on almost a year.” Petition Exs. 5-6.
To the extent Ball’s limited investigation revealed any leads, Sheard learned, he failed to pursue or pre-sent them. For example, Ball hired Dr. Kelly Goodness to evaluate Wilkins’s mental functioning. Goodness learned that Wilkins had been exposed to LSD as a child and suffered from “a number of cognitive deficits indicative of some form of brain pathology.” Petition Ex. 28, at 178. Goodness also reviewed a 1983 psycho-logical assessment indicating that Wilkins had abused drugs since the age of eight and that he had sustained several head injuries and other factors conducive to brain damage. Petition Ex. 26, at 165-171; Petition Ex. 27, at 174-175; Petition Ex. 28, at 178-179. Goodness accordingly recommended a full neuropsychological in-vestigation, explaining that, “[t]he question is not whether or not Mr. Wilkins has some neuropsychologi-cal deficits—he does.” Petition Ex. 28, at 178. Ball never followed up on Goodness’s recommendation and presented no mental health evidence to the jury.
Apart from the mitigation issue, Sheard also learned that Ball permitted his prison-classification ex-pert to testify, prejudicially, that Wilkins could achieve a relatively low level of security ten years into a life sentence when in fact he could not. Supra p. 6. And Ball failed to prepare to address the topic of Wilkins’s striking tattoos, even though they had attracted media attention after Wilkins’s arrest, Petition Ex. 17. Ball could have sought an expert to testify about prisoners’
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propensity to acquire gang tattoos to intimidate poten-tial assailants in prison or other psychological explana-tions. Instead, Ball waited until the end of the sentenc-ing phase of trial to seek a continuance to obtain the services of a “symbologist” to “interpret[]” the tattoos. 34 RR 47-49. The continuance was denied. Id. at 49.
3. On May 1, 2012, Sheard entered a notice of ap-pearance and filed a motion on Wilkins’s behalf for a scheduling order that would allow for filing and amendment of the habeas petition after proper devel-opment of the claims. MSO at 3-42. Sheard also moved for leave to file an ex parte request for investigative funds under § 3599(f). Id. at 42-56. The motion re-counted the numerous red flags Sheard had uncovered concerning Ball’s deficient performance and Strick-land’s refusal to investigate or raise any ineffective-assistance claims. In support of the motion, Sheard submitted three volumes of exhibits documenting those deficiencies. She acknowledged that the ineffective-assistance-of-trial-counsel claims were procedurally barred because Strickland had failed to raise them in the state habeas proceeding. Citing this Court’s deci-sion in Martinez, 132 S. Ct. at 1315-1320, however, Sheard argued that Wilkins could likely overcome the procedural default if given the time and resources he needed to demonstrate the inadequacy of his trial and state habeas counsel and resulting prejudice. MSO at 34-42.
The next day, the district court entered a schedul-ing order that ignored Sheard’s motion and ordered Sheard to include in Wilkins’s habeas petition only
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those claims that had been exhausted in state court. App. 81a-82a.5
On May 25, 2012, the district court denied leave to submit the funding request ex parte, and Sheard filed an unsealed application stating Wilkins’s specific need for funds. See Application, Dkt. 34, No. 12-cv-270 (N.D. Tex. May 25, 2012). In the application and supporting appendix, Sheard set out a detailed plan for conducting the investigation that Strickland failed to do. Id. at 4-18. Sheard requested funding for 300 hours of work by an investigator and 500 hours of work by a mitigation specialist. Id. at 9, 13. Sheard also sought funding for a neuropsychological evaluation and an expert in prison classification who could explain the inaccuracies in the testimony Ball elicited at sentencing. Id. at 14-15, 17-18.
On June 19, 2012, the court denied Wilkins’s re-quest for investigative and expert funds in its entirety. App. 73a-74a. The court stated it was “unable to find that the requested investigative, expert, and other ser-vices” were “reasonably necessary,” as required under § 3599. App. 73a.
4. On May 22, 2012, while the funding application remained pending, Sheard filed Wilkins’s federal habe-as petition. In it, Sheard presented the ineffective-assistance claims as best she could given the lack of time and funds to obtain the necessary extra-record ev-idence. Sheard submitted 52 exhibits and nearly 200 pages of briefing raising the several red flags she had uncovered in her short, unfunded review. Among other issues, Sheard addressed Ball’s minimal mitigation in-
5 On May 3, 2012, the district court entered a further order
finding no basis in Sheard’s motion for entry of any schedule other than the one the court had already issued. App. 83a-84a.
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vestigation, his failure to obtain the neuropsychological evaluation recommended by Dr. Goodness, his intro-duction of erroneous testimony that led the jury to be-lieve Wilkins could eventually move to less restrictive confinement, and his failure to prepare any response to the prosecution’s evidence about Wilkins’s tattoos. See Petition at 24-92.6
Sheard again acknowledged that Wilkins’s ineffec-tive-assistance claims had been defaulted. But she ar-gued that Martinez potentially applied to excuse the default, explaining that Strickland had labored under a conflict of interest and categorically refused to raise and failed to investigate any ineffective-assistance claims. Petition at 3-15. Sheard accordingly renewed the requests for funding and an opportunity to demon-strate cause and prejudice and develop through full in-vestigation and an evidentiary hearing the claims Strickland had ignored. Id. at 191-193.7
5. On January 29, 2013, without holding an evi-dentiary hearing, the district court denied relief. App. 33a-71a. The court first reaffirmed its earlier ruling denying funds, holding that Wilkins was not entitled to any funding because he “failed to provide in his motion for additional funds any meaningful specificity as to the precise information he would expect to develop.” App. 45a.
6 Among other claims, Sheard also challenged Ball’s potential
conflict of interest arising from his prior representation of Vallejo, Ball’s insistence that Wilkins plead not guilty, and Ball’s failure to question Wilkins’s competence to stand trial. Petition at 92-101, 105-127.
7 On November 7, 2012, Sheard moved to stay adjudication of Wilkins’s petition pending this Court’s decision in Trevino. The district court denied the stay. App. 91a-92a.
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The court then rejected Wilkins’s ineffective-assistance claims as procedurally defaulted. Relying on Fifth Circuit precedent that has since been overruled, the court held that Martinez did not apply in Texas cases. App. 55a. The court held in the alternative that even if Martinez did apply, Wilkins had not shown that his state habeas counsel was inadequate. App. 55a-56a. The court found that Strickland had “vigorous[ly]” briefed 18 claims of error and that Wilkins had made only “conclusory” and “factually unsupported” attacks on Strickland’s performance. App. 56a.
The district court also held that even if Wilkins could establish cause and prejudice, Wilkins’s ineffec-tive-assistance claims were “meritless.” App. 56a-69a. In doing so, the court faulted Wilkins for failing to pro-vide the very evidentiary support his request for fund-ing was designed to produce, holding that a petitioner alleging an unreasonable failure to investigate must show “‘with specificity what the investigation would have revealed and how it would have altered the out-come of the trial.’” App. 57a (quoting United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)). Applying that rule, the court dismissed as “conclusory” Wilkins’s claim that trial counsel was deficient in failing to inves-tigate and present mitigation evidence because Wilkins “failed to provide any evidence as to what his trial counsel would have discovered by further investiga-tion.” App. 59a; see also, e.g., App. 66a (“[Wilkins] fails to provide any evidence as to what his trial counsel should have discovered”).
On March 5, 2013, the court denied Wilkins’s mo-tion to vacate or amend the judgment without explana-tion and denied a certificate of appealability. App. 93a-94a.
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E. The Court Of Appeals’ Decision
On March 25, 2014, the U.S. Court of Appeals for the Fifth Circuit affirmed the denial of funds and de-nied a COA. App. 1a-32a. The court acknowledged that under Trevino, the Martinez exception applies in Texas cases. App. 11a. The court accordingly found the district court’s procedural ruling to be debatable. Id. And the court “assum[ed] arguendo” that Strick-land “was deficient for failing to bring the [ineffective-assistance] claims during state habeas proceedings.” App. 30a. The court nevertheless denied a COA on the ground that Wilkins had “failed to state any substantial [ineffective-assistance] claims.” App. 12a.
Like the district court—and despite the evidence Sheard had submitted below—the Fifth Circuit charac-terized Wilkins’s allegations as “conclusory,” faulting him for failing to present the extra-record evidence of deficiency and prejudice he had never had the oppor-tunity to obtain. App. 15a-16a; see also, e.g., App. 22a (“[n]o evidence was presented” to show reasonable probability of different result); App. 25a (“Wilkins of-fered no support to the district court that his actions are the result of brain damage and mental health prob-lems or that he was unable to consult with counsel or understand the proceedings.”); id. (“Based on the lack of probative evidence …, we cannot say that reasonable jurists would find the district court’s decision debatable or wrong.”). The court acknowledged Sheard’s argu-ment that “the impact of Ball’s unreasonable pretrial mitigation investigation can only be known ‘if the fed-eral habeas courts provide the means to investigate and present the case that should have been developed prior to trial,’” but the court rejected that argument as a “conclusory allegation[].” App. 15a-16a. The court therefore concluded that Wilkins could not establish
17
cause for his procedural default because “none of the underlying [ineffective-assistance] claims are ‘substan-tial’ as required by Martinez” and concluded that Wil-kins was not entitled to a COA because he had “failed to establish both prongs of an ineffective assistance claim under Strickland.” App. 30a.
The court of appeals also upheld the denial of funds. App. 30a-31a.8 Under circuit precedent, the court stat-ed, the “reasonably necessary” standard of § 3599(f) re-quired Wilkins to demonstrate a “‘substantial need’” for the requested assistance. App. 30a. That standard, the court asserted, could not be met when, among other things, a petitioner “fail[s] to supplement his funding request with a viable constitutional claim that is not procedurally barred” or “when the sought after assis-tance would only support a meritless claim.” App. 30a-31a (internal quotation marks omitted). Applying that standard, the court stated that “Wilkins offered little to no evidence that the investigative avenues counsel pro-posed to take hold any significant chance for success.” App. 31a. “Our precedent is clear,” the court held, “that a habeas petitioner is not entitled to investigative funds under these circumstances.” Id.
On June 10, 2014, the court of appeals denied re-hearing. App. 95a-96a.
8 Under Fifth Circuit precedent, “no COA is necessary to ap-
peal the district court’s denial of funds to a habeas petitioner.” App. 6a; cf. Harbison v. Bell, 556 U.S. 180, 183 (2009).
18
REASONS FOR GRANTING THE PETITION
I. THE COURT SHOULD GRANT REVIEW TO CORRECT
THE FIFTH CIRCUIT’S OUTLIER RULE THAT FUNDING
IS UNAVAILABLE UNDER § 3599(f) FOR PROCEDURALLY
DEFAULTED CLAIMS
This Court has repeatedly recognized that develop-ing an ineffective-assistance claim can require signifi-cant time and resources. See, e.g., Martinez v. Ryan, 132 S. Ct. 1309, 1317-1318 (2012); Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013). That is particularly true of a claim based on trial counsel’s failure to conduct a rea-sonable mitigation investigation. To substantiate such a claim, a prisoner must conduct the investigation trial counsel should have performed and show that the evi-dence counsel failed to discover could have led the jury to return a different sentence. See Wiggins v. Smith, 539 U.S. 510, 534-536 (2003); Strickland v. Washington, 466 U.S. 668, 690-691, 694 (1984); see also Porter v. McCollum, 558 U.S. 30, 41 (2009) (to assess prejudice, court considers “‘the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding’” (emphasis added)).
To facilitate such investigations, Congress created a statutory right for capital habeas petitioners to re-ceive federal funds for “reasonably necessary” investi-gative and expert services. 18 U.S.C. § 3599(f); see McFarland v. Scott, 512 U.S. 849, 854-856 (1994) (inter-preting predecessor to § 3599(f)). The Fifth Circuit has held, however, that a habeas petitioner is not entitled to such funds “when his claim is procedurally barred from review.” Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004); see also Sells v. Stephens, 536 F. App’x 483, 499 (5th Cir. 2013), cert. denied, 134 S. Ct. 1786 (2014); Gutierrez v. Quarterman, 201 F. App’x 196, 208-209
19
(5th Cir. 2006) (per curiam). The court of appeals ap-plied that precedent here to affirm the denial of Wil-kins’s request for funding on the ground that Wilkins’s ineffective-assistance claim was procedurally barred and Wilkins had “offered little to no evidence that the investigative avenues counsel proposed to take hold any significant chance for success.” App. 30a-31a.
The Fifth Circuit’s rule that funding is unavailable for procedurally defaulted claims—at least where the petitioner cannot already demonstrate the claim’s mer-its—departs from the terms of § 3599(f) and conflicts with this Court’s decision in McFarland. Moreover, when applied in cases where a prisoner has had no op-portunity to develop evidentiary support sufficient to prove the underlying claim or establish cause for the default, the Fifth Circuit’s rule perpetuates the “signif-icant unfairness” this Court’s decisions in Martinez and Trevino were intended to prevent. Trevino, 133 S. Ct. at 1919. No other circuit applies such a rule. This Court should grant review to bring the Fifth Circuit in line with this Court’s precedent and to preserve the role of Martinez in “protect[ing] prisoners with a po-tentially legitimate claim of ineffective assistance of trial counsel.” 132 S. Ct. at 1315.
A. The Fifth Circuit’s Rule Conflicts With § 3599 And Frustrates This Court’s Precedent
Section 3599(f) provides that
[u]pon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defend-ant’s attorneys to obtain such services on behalf
20
of the defendant and, if so authorized, shall or-der the payment of fees and expenses therefor.
See also 18 U.S.C. § 3599(a)(2) (indigent capital habeas petitioner “shall be entitled to” the furnishing of “in-vestigative, expert, or other reasonably necessary ser-vices”).
The Fifth Circuit construes the statute’s “reasona-bly necessary” standard to require petitioners to “demonstrate ‘a substantial need’ for the requested as-sistance.” Riley, 362 F.3d at 307 (quoting Clark v. Johnson, 202 F.3d 760, 768 (5th Cir. 2000)); Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir. 1997)); see Clark, 202 F.3d at 769 (affirming denial of funds where peti-tioner did not show the requested assistance was “sub-stantially necessary”); cf. Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009) (affirming denial of funds “in light of” holding that petitioner was not entitled to ha-beas relief). And, as noted, it has held that “[a] peti-tioner cannot show a substantial need when his claim is procedurally barred from review,” Riley, 362 F.3d at 307; supra pp. 18-19—at least where the petitioner has not already demonstrated the merits of his claim (App. 30a-31a).
Nothing in the text of § 3599 supports the limita-tions the Fifth Circuit has imposed. Subject to the dis-trict court’s sound discretion, that statute “entitles cap-ital defendants to a variety of expert and investigative services” simply “upon a showing of necessity.” McFarland, 512 U.S. at 855. It does not categorically preclude funding for investigation of procedurally de-faulted claims, and it does not require that a petitioner demonstrate the merits of his claim before obtaining funding—particularly under a rigorous “significant chance for success” standard. App. 31a. To the contra-
21
ry, in McFarland, this Court emphasized that the pur-pose of funding is to assist the prisoner in “re-search[ing] and identif[ying]” his “possible claims and their factual bases.” Id. at 855 (emphasis added). Re-quiring an indigent capital prisoner to proceed without such assistance until after he had filed his habeas peti-tion, the Court reasoned, would expose the petitioner to a “substantial risk that his habeas claims never would be heard on the merits.” Id. at 856. Here, the Fifth Circuit’s rule precluding funding for defaulted claims when the petitioner cannot already establish their likely merit poses precisely the same risk.
Related provisions of the Anti-Terrorism and Ef-fective Death Penalty Act similarly lend no support to the Fifth Circuit’s rule that “reasonably necessary” funds are unavailable for a procedurally defaulted claim. To the contrary, AEDPA contemplates that ha-beas petitioners can sometimes raise defaulted claims and receive consideration of those claims on the merits. For example, AEDPA identifies circumstances in which a petitioner may assert unexhausted claims, 28 U.S.C. § 2254(b)(1)(B), or in which a court may decide a defaulted claim on the merits if the State waives objec-tion, see id. § 2254(b)(3). This Court has likewise rec-ognized exceptions allowing a petitioner to raise de-faulted claims. E.g., Martinez, 132 S. Ct. at 1316. And it has recognized that federally funded counsel appoint-ed under § 3599 may assist a petitioner in litigating such claims. Harbison v. Bell, 556 U.S. 180, 190 n.7 (2009). Given that petitioners may thus pursue and courts may consider defaulted claims on their merits in some circumstances, the statutory scheme cannot sen-sibly be understood to categorically preclude funding to develop such claims.
22
The Fifth Circuit reasoned that because Wilkins had defaulted on his ineffective-assistance claims and adduced only limited extra-record evidence to support them, Wilkins could not show a “significant chance for success.” App. 31a. But denying funds on this basis deprives this Court’s decisions in Martinez and Trevino of force. Those decisions contemplate that a death-sentenced prisoner with a potentially meritorious claim that he was denied the effective assistance of his trial counsel should have a meaningful opportunity to devel-op and present that claim and receive consideration on the merits. Trevino, 133 S. Ct. at 1918-1921; Martinez, 132 S. Ct. at 1315-1318. And they recognize an excep-tion to the procedural-default rule that applies in many cases precisely because the ineffective-assistance-of-trial-counsel claims were never previously investigated due to state habeas counsel’s own ineffectiveness. If, as the Fifth Circuit held (App. 31a), investigative funds are unavailable for procedurally defaulted claims unless a petitioner can already demonstrate a “significant chance for success,” then few indigent prisoners in such circumstances could ever obtain the funds necessary to establish cause under Martinez unless they happen to have benefited from some other source of funding or support. That result cannot be what this Court intend-ed in Martinez and Trevino.
B. Courts In The Fifth Circuit Are Alone In Applying This Rule And Are Doing So With Increased Frequency
By denying funding under § 3599(f) “when [a] claim is procedurally barred from review,” Riley, 362 F.3d at 307, the Fifth Circuit has erected a barrier to meaning-ful consideration of defaulted ineffective-assistance
23
claims that courts within that circuit have applied re-peatedly since this Court’s decision in Martinez.
The court of appeals’ decision in Crutsinger v. Ste-phens, 2014 WL 3805464 (5th Cir. Aug. 4, 2014) (per cu-riam), illustrates the Fifth Circuit’s restrictive ap-proach in cases that implicate Martinez. There, the dis-trict court denied Crutsinger’s request for funding on the ground that his ineffective-assistance claim was procedurally defaulted. Id. at *1. On appeal from the denial of habeas relief, Crutsinger sought reexamina-tion of the funding denial under Martinez and Trevino, arguing that his state habeas counsel’s ineffectiveness could excuse the default but that he needed an oppor-tunity to demonstrate that he met the Martinez stand-ard. Id. at *7-8. The Fifth Circuit rejected his argu-ment, declaring that Martinez “does not … alter our rule that a prisoner cannot show a substantial need for funds when his claim is procedurally barred from re-view.” Id. at *8. “Without both a showing under Strickland that state habeas counsel was ineffective and a demonstration that the underlying [ineffective assistance] claim ‘has some merit,’” the court reasoned, “Martinez offers no relief from a potential procedural default.” Id. And because Crutsinger could not yet make both of those showings, he was not entitled to the funding that might have enabled him to do so. Id.
Similarly, in Sells, the Fifth Circuit affirmed the denial of Sells’s request for funds to develop an ineffec-tive-assistance claim. 536 F. App’x at 498-499. As in Crutsinger and in this case, the court asserted that a petitioner may not obtain funds under § 3599(f) to in-vestigate a procedurally defaulted claim, and it applied that rule to reject Sells’s appeal based on the court’s determination that Sells had failed to adduce sufficient evidence to establish cause and prejudice excusing the
24
default. Id. at 499; see also id. at 493-495. District courts have followed suit. See, e.g., Mamou v. Ste-phens, 2014 WL 4274088, at *1-5 (S.D. Tex. Aug. 28, 2014) (denying funding based in part on procedural de-fault and petitioner’s failure to show he could overcome procedural bar); Order 4-7, Dkt. 24, Thompson v. Ste-phens, No. 13-cv-1900 (S.D. Tex. May 2, 2014) (denying funds to investigate ineffective-assistance claim under circuit precedent precluding funds for procedurally de-faulted claims where petitioner had not yet “described in detail what mitigating evidence trial counsel investi-gated, which witnesses testified at trial, and what in-formation did not come before the jury”); see also Or-der 2, Dkt. 5, Allen v. Stephens, No. 11-cv-1676 (S.D. Tex. June 3, 2011) (denying funds because the petition-er “ha[d] not yet shown” that he could overcome proce-dural default).
In contrast, we have found no decisions outside the Fifth Circuit denying a request for funds to investigate a potentially meritorious ineffective-assistance claim on the ground that the petitioner had defaulted the claim or could not yet “establish both prongs” of the Strick-land test. App. 30a.
C. Wilkins’s Request For Funds Should Have Been Granted
Under a proper standard, the district court should have granted Wilkins’s request for funds. Even Sheard’s shoestring examination showed deficiencies in Ball’s performance as trial counsel sufficient to raise a “substantial” claim of ineffectiveness. Supra pp. 10-12, 13-14; see also Martinez, 132 S. Ct. at 1318-1319 (a “substantial” claim is one that has “some merit” and is not “wholly without factual support”). Additional fund-ing was reasonably necessary to demonstrate a sub-
25
stantial claim that Ball’s performance resulted in prej-udice sufficient to meet the Strickland standard, which required Wilkins to conduct the reasonable investiga-tion Ball should have conducted and show that the evi-dence Ball failed to discover might have led to a differ-ent verdict. Strickland, 466 U.S. at 690-691, 694; see also Wiggins, 539 U.S. at 534-536.
As the district court acknowledged (App. 45a n.1), Sheard submitted a comprehensive plan in support of the funding request detailing her intended avenues of investigation and the evidence she hoped to develop—evidence that was never pursued by state habeas coun-sel and thus could not be marshaled in support of the request. See supra p. 13. For example, given Ball’s de-cision to ignore Dr. Goodness’s recommendation to ob-tain a neuropsychological evaluation, Sheard requested funding for a neuropsychologist to conduct such an ex-amination. Application 13-15, Dkt. 34, No. 12-cv-270 (N.D. Tex. May 25, 2012). And given the red flags for abuse, drug use, and brain damage in Wilkins’s past, Sheard sought resources to conduct the mitigation in-vestigation Ball had not pursued in order to develop the extent to which Wilkins was prejudiced by Ball’s ap-parently deficient investigation. Id. at 9-13.
The district court deemed the requested funds not “reasonably necessary” for Wilkins’s representation. App. 73a. But the funds’ “necess[ity]” was made evi-dent by the court’s own opinion rejecting Wilkins’s claims on the merits, which cited the absence of the very proof Wilkins would have used the requested funding to obtain. App. 55a-69a. And when the Fifth Circuit affirmed the denial of Wilkins’s request for funds—faulting him for failing to provide the very evi-dentiary support he sought funding to develop (App. 11a-30a)—it foreclosed Wilkins’s last and only oppor-
26
tunity to develop the record necessary to support his potentially meritorious ineffective-assistance claims. This Court should reverse the denial of funds and reject the Fifth Circuit’s improper analysis.
II. THE COURT SHOULD GRANT REVIEW TO CLARIFY
THAT AN INEFFECTIVE-ASSISTANCE CLAIM CANNOT
BE REJECTED ON ITS MERITS BEFORE THE PETITIONER
HAS HAD ANY MEANINGFUL OPPORTUNITY TO INVES-
TIGATE AND DEVELOP THAT CLAIM
Despite severe limitations of time and resources, Sheard submitted a nearly 200-page habeas petition—supported by 52 exhibits—that identified numerous de-ficiencies of trial counsel. Those deficiencies included Ball’s unreasonably incomplete mitigation investigation and his failure to present any mental-health or similar evidence relevant to the jury’s evaluation of Wilkins’s moral culpability. Although Wilkins needed funding for investigative and expert services to substantiate those claims, this showing was more than sufficient to raise doubts about the constitutional adequacy of counsel’s performance. At a minimum, Wilkins’s ineffective-assistance claims “deserve[d] encouragement to pro-ceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). The Fifth Circuit nonetheless denied Wilkins’s request for a COA and rejected his reliance on Martinez, citing his failure to adduce the very evidence that Wilkins had no oppor-tunity or funding to obtain. See App. 9a-30a; supra pp. 16-17.9
9 As noted, denial of funds was not the only way in which the
lower courts frustrated Wilkins’s ability to develop his ineffec-tive-assistance claims. Judge McBryde’s idiosyncratic 45-day rule denied Wilkins the year of appointed counsel’s assistance that § 3599(f) and AEDPA’s one-year limitations period contem-
27
That analysis warrants this Court’s review. Where a prisoner has had no funding or opportunity to investi-gate an ineffective-assistance-of-trial-counsel claim that has been procedurally defaulted because of state habe-as counsel’s own failure to develop it, a federal court should not deny relief or deny a COA on the ground that the prisoner has not yet established the claim’s ul-timate merit. The Fifth Circuit did just that in this case, concluding that Wilkins was not entitled to a COA and could not show cause under Martinez because he had “failed to establish both prongs of an ineffective as-sistance claim under Strickland.” App. 30a. That anal-ysis frustrates the purpose of Martinez and Trevino. It also contravenes this Court’s specific instruction in Mil-ler-El v. Cockrell, 537 U.S. 322, 336 (2003), that AED-PA “does not require,” but in fact “forbids,” “full con-sideration of the factual or legal bases” of a claim at the COA stage. Like the Fifth Circuit’s affirmance of the denial of funding, its premature scrutiny of Wilkins’s embryonic ineffective-assistance claim contravenes this Court’s precedent.
A. The Fifth Circuit’s Premature Rejection Of Undeveloped Ineffective-Assistance Claims On Their Merits Frustrates The Purposes Of Martinez
Although the court of appeals “assum[ed] arguendo that state habeas counsel … was deficient” for failing to raise Wilkins’s ineffective-assistance claims, it conclud-
plate. Supra pp. 9-10. By the time Sheard undertook to represent Wilkins pro bono, she had only ten weeks in which to investigate possible claims and prepare the petition. The district court denied Sheard’s motion for a scheduling order that would have permitted proper development of Wilkins’s claims. App. 83a-84a. And the court denied her request for a stay pending Trevino. App. 91a-92a.
28
ed that Wilkins could not show that his claims were “‘substantial,’” as required by Martinez and necessary to obtain a COA, because he had “failed to establish both prongs of an ineffective assistance claim under Strickland.” App. 30a. Reaching that judgment prem-aturely in a case where the petitioner has had no oppor-tunity to develop his ineffective-assistance claim de-feats the purpose of Martinez.
As this Court explained, the equitable exception recognized in Martinez serves to “protect prisoners with a potentially legitimate claim” of ineffective assis-tance of trial counsel from being denied an opportunity to develop that claim and receive full judicial considera-tion of its merits. 132 S. Ct. at 1315 (emphasis added). In many cases, Martinez will apply precisely because no professionally reasonable investigation of the inef-fective-assistance claim was ever conducted. Where that is so, the court of appeals’ holding that an indigent prisoner cannot establish cause under Martinez or ob-tain a COA unless he can already “establish both prongs” of the Strickland test renders Martinez and Trevino meaningless unless the petitioner happens to benefit from the assistance of pro bono federal counsel with significant investigative resources.
Underscoring this conflict with Martinez, in several recent cases, courts within the Fifth Circuit have pre-vented ineffective-assistance claims from receiving full consideration by prejudging the claims’ merits before they were ever investigated or developed. In Crutsinger, for example, when the petitioner raised a defaulted ineffective-assistance claim that the district court had denied funding to develop, the prosecution waived the procedural bar and the district court simply rejected the claim on its merits, holding that Crutsinger had not satisfied the Strickland standard.
29
2014 WL 3805464, at *1-2. The Fifth Circuit denied a COA, agreeing that Crutsinger failed to show what ad-ditional investigation “would reveal.” Id. at *5.
Similarly, in Newbury v. Stephens, 756 F.3d 850, 852 (5th Cir. 2014), the Fifth Circuit denied a COA on ineffective-assistance claims the petitioner had re-ceived limited funding to investigate. Citing Martinez and Trevino, Newbury argued that the district court erred in rejecting his claims before he had an oppor-tunity to develop them. Id. at 868. But the Fifth Cir-cuit declined to remand because “the district court, in its alternative holding, rejected his constitutional claims on the merits,” and that decision was not rea-sonably debatable in light of Newbury’s failure to come forward with the record he needed the funding to pro-duce. Id. at 871; see id. at 871-874. In Allen, the dis-trict court similarly rejected Allen’s ineffective-assistance claim as defaulted, holding that Allen could not satisfy the Martinez requirements and, in the al-ternative, rejecting his claim on its merits. Order 29-33, Dkt. 34, No. 11-cv-1676 (S.D. Tex. Apr. 1, 2014). The court acknowledged that it had previously denied Allen’s request for funding to develop the claim, but concluded that the denial of funding was correct in light of the procedural default. Id.
In contrast, other circuits give meaning to Mar-tinez by providing habeas petitioners some opportunity to prove cause and prejudice and develop their default-ed ineffective-assistance claims before rejecting them on their merits. For example, in Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013), an Arkansas case, the district court rejected Sasser’s ineffective-assistance claims as procedurally barred. This Court subsequently decided Trevino, and the Eighth Circuit applied the reasoning of that case to hold that Martinez applies in Arkansas.
30
Id. at 851-853. In light of that holding, the Eighth Cir-cuit held that Sasser was entitled to an evidentiary hearing to develop his claims and remanded with in-structions to give Sasser “an opportunity to present evidence related to [the defaulted] claims.” Id. at 853-854.
The Ninth Circuit has similarly recognized that courts should allow petitioners whose ineffective-assistance claims might fall within the Martinez excep-tion an opportunity to develop those claims before re-jecting them on the merits. See, e.g., Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc) (petitioner was entitled on remand in light of Martinez “to present evidence” of cause, prejudice, and the substantiality of his claim); Snodgrass v. Angelozzi, 545 F. App’x 698, 700 (9th Cir. 2013) (in case where ineffective-assistance claim was rejected as defaulted before Martinez, “pru-dential course” is to remand to district court). This ap-proach is consistent with the ordinary practice of courts considering cause and prejudice, which often turns on factual questions unlikely to have been addressed in state court. See 2 Hertz & Liebman, Federal Habeas Corpus Practice And Procedure § 26.3[e] (6th ed. 2011). The Fifth Circuit’s contrary practice, however, ignores the key purpose of Martinez and Trevino of “ensur[ing] that proper consideration [i]s given to a substantial claim,” Martinez, 132 S. Ct. at 1318, after a petitioner has had a “meaningful opportunity” to present it, Tre-vino, 133 S. Ct. at 1921.
B. The Fifth Circuit’s Approach Contravenes Miller-El
In Martinez, this Court limited the equitable ex-ception to the procedural-default rule to cases in which the petitioner’s ineffective-assistance claim is “substan-
31
tial.” 132 S. Ct. at 1318. In doing so, however, the Court lent no support to the Fifth Circuit’s practice of scuttling ineffective-assistance claims on their merits before the petitioner has had a chance to substantiate them. To the contrary, the Court defined that substan-tiality requirement to mean only that “the claim has some merit.” Id. It explained that an insubstantial claim is one that is “wholly without factual support.” Id. at 1319. And it cited the standard for granting a COA under 28 U.S.C. § 2253(c), id. at 1318-1319, under which a petitioner need only show that “reasonable ju-rists could debate whether (or, for that matter, agree that) the [claim] should have been resolved in a differ-ent manner or that the issues presented were adequate to deserve encouragement to proceed further,” Slack, 529 U.S. at 484 (internal quotation marks omitted).
In this case, the Fifth Circuit applied Martinez and the COA standard to require much more than “sub-stantiality.” Although the court recited the low thresh-old of “reasonable debatability” in analyzing Wilkins’s entitlement to a COA (e.g., App. 5a-6a), its deconstruc-tion of the evidence supporting each of Wilkins’s indi-vidual ineffective-assistance claim confirms that the court in fact applied a much stricter degree of scrutiny. App. 13a-30a. The Fifth Circuit effectively required Wilkins to produce evidence “establish[ing]” his ulti-mate entitlement to relief under Strickland, as it can-didly concluded at the end of its analysis. App. 30a. And because Wilkins could not establish his entitlement to relief without having had time or resources to fully develop his claims, the court denied relief. Id.; supra pp. 16-17.
That analysis defies this Court’s command in Mil-ler-El that the “threshold” COA inquiry “does not re-quire full consideration of the factual or legal bases ad-
32
duced in support of the claims. In fact, the statute for-bids it.” 537 U.S. at 336. “When a court of appeals sidesteps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits,” the Court ex-plained, “it is in essence deciding an appeal without ju-risdiction.” Id. at 336-337. The Court continued:
[O]ur opinion in Slack held that a COA does not require a showing that the appeal will succeed. Accordingly, a court of appeals should not de-cline the application for a COA merely because it believes the applicant will not demonstrate an entitlement to relief. The holding in Slack would mean very little if appellate review were denied because the prisoner did not convince a judge, or, for that matter, three judges, that he or she would prevail. It is consistent with § 2253 that a COA will issue in some instances where there is no certainty of ultimate relief. After all, when a COA is sought, the whole premise is that the prisoner has already failed in that endeavor.
Id. at 337 (internal quotation marks omitted). Here, the Fifth Circuit denied a COA precisely because it did not believe Wilkins had “demonstrate[d] an entitlement to relief.” Id. And it applied that inappropriately high standard before Wilkins’s counsel was afforded the time and resources to investigate and present his complete claim.10
10 This approach mirrored the court of appeals’ analysis in
other recent cases. See, e.g., Reed v. Stephens, 739 F.3d 753, 773-778 (5th Cir. 2014), petition for cert. filed, No. 13-1509 (U.S. June 17, 2014) (declining to remand in light of Trevino and denying a COA on the merits where “compari[son] [of] the affidavits Reed
33
An erroneous application of the COA standard might not frequently warrant this Court’s review. Here, however, the Fifth Circuit’s improper approach threatens significant harm when combined with that court’s propensity to judge the merits of a defaulted ineffective-assistance claim before that claim has been fully developed, supra Part II.A, and to then invoke that premature judgment as a basis to deny the funding petitioners often need to demonstrate a claim’s merit in the first place, supra Part I. As this Court recognized in Martinez, “[t]he right to the effective assistance of counsel at trial is a bedrock principle in our justice sys-tem.” 132 S. Ct. at 1317. “A prisoner’s inability to pre-sent a claim of trial error” is therefore “of particular concern when the claim is one of ineffective assistance of counsel,” id., and the exception adopted in Martinez and applied in Trevino exists to guard against that con-cern, see Trevino, 133 S. Ct. at 1917, 1920-1921. Here,
present[ed] and the testimony … presented at trial” indicated that Reed’s ineffective-assistance claim lacked merit); Crutsinger, 2014 WL 3805464, at *3-5 (denying a COA because “evidence supports the district court’s determination” denying the ineffective-assistance claim).
Outside the Fifth Circuit, the precise relationship between Martinez’s “substantiality” requirement and the prejudice ele-ments of Strickland and the “cause and prejudice” standard has generated some confusion. See, e.g., Clabourne v. Ryan, 745 F.3d 362, 375-378 (9th Cir. 2014); compare Detrich v. Ryan, 740 F.3d 1237, 1243-1246 (9th Cir. 2013) (en banc) (opinion of Fletcher, J.), with id. at 1260-1262 (Nguyen, J., concurring in result), and id. at 1265 n.3 (Graber, J., dissenting), cert. denied, 134 S. Ct. 2662 (2014). Yet courts consistently recognize that the substantiality standard does not call for a court to “pass[] judgment on the merits of the petitioner’s [ineffective-assistance] claim.” Weber v. Sin-clair, 2014 WL 1671508, at *7 (W.D. Wash. Apr. 28, 2014); Ngabi-rano v. Wengler, 2014 WL 517494, at *8 (D. Idaho Feb. 7, 2014) (“The first Martinez prong is not the same as a merits review[.]”).
34
the Fifth Circuit thwarted this Court’s decisions in Martinez and Trevino by cutting Wilkins’s ineffective-assistance claims off at the pass, under an inappropri-ately stringent standard, before he had any meaningful opportunity to develop them or to have those claims considered by any court. This Court should intervene to correct the Fifth Circuit’s departure from this Court’s rulings and to ensure that habeas petitioners receive the meaningful opportunity to develop poten-tially meritorious ineffective-assistance claims that this Court’s precedents contemplate.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
BROOK HOPKINS WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 HILARY SHEARD LAW OFFICE OF HILARY SHEARD 7301 Burnet Road #102-328 Austin, TX 78757
SETH P. WAXMAN
Counsel of Record CATHERINE M.A. CARROLL
WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 [email protected]
SEPTEMBER 2014
APPENDIX
1a
APPENDIX A
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 13-70014
CHRISTOPHER CHUBASCO WILKINS, Petitioner-Appellant,
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION, Respondent-Appellee.
March 25, 2014
[560 F. App’x 299]
* * * [301]
Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Christopher Chubasco Wilkins (“Wilkins”) seeks a certificate of appealability (“COA”) to prosecute his ap-plication for habeas corpus challenging the constitu-tionality of his Texas state court death sentence. Wil-
* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2a
kins was denied relief on direct appeal, in his initial state habeas corpus proceedings, and finally by the dis-trict court. For the reasons set out below, we now DENY Wilkins’s motion for a COA and AFFIRM the district court’s denial of additional funding.
I.
The facts underlying Wilkins’s conviction are not in dispute. The Court of Criminal Appeals of Texas (“TCCA”) set forth the facts leading to Wilkins’s capital murder conviction as follows:
[Petitioner] gave statements to authorities that described his murders of Willie Freeman and Mike Silva. Freeman was a homeless man who lived in Fort Worth. Silva lived outside Fort Worth, but traveled into the city to purchase drugs. Freeman would show Silva where to buy drugs, and Silva would share his purchases with Freeman.
In October 2005, [petitioner] left a halfway house in Houston, stole a truck, and drove to Fort Worth. [Petitioner] happened upon Freeman, who offered to sell him some drugs. But Freeman and his supplier tricked [peti-tioner] into buying a piece of gravel instead of a rock of cocaine. The men took $20 from [peti-tioner] and laughed at him. So [petitioner] de-cided to kill Freeman.
Over the next few weeks, Freeman and [peti-tioner] used drugs together. Freeman apolo-gized for stealing from [petitioner] and gave him some drugs to make up for it.
On October 27, 2005, [petitioner] told Freeman that he had some guns and drugs stashed on
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the west side of Fort Worth. Silva agreed to drive Freeman and [petitioner] in Silva’s vehi-cle. From the back seat, [petitioner] directed Silva to an area on the west side of Fort Worth. When they arrived at a deserted stretch of road, [petitioner] shot Freeman in the back of the head. Silva stopped the vehicle and tried to escape, but he got caught in his seatbelt.
[Petitioner] shot him once in the neck and twice in the head. [Petitioner] then climbed into the driver’s seat and began driving with Silva’s body hanging outside of the vehicle, still entan-gled in his [302] seatbelt. [Petitioner] finally cut the seatbelt to remove Silva, and dumped the victims’ bodies in a ditch at the side of the road.
About a week later, after two high-speed police chases, Silva’s vehicle was recovered, and [pe-titioner] was apprehended.1
Wilkins was subsequently indicted for the murders of Freeman and Silva. In March 2008, a jury found Wilkins guilty of the murders and sentenced him to death. The TCCA affirmed his conviction and sentence on direct appeal.2 The United States Supreme Court denied certiorari.3 While his direct appeal was pending before the TCCA, Wilkins filed a state application for a writ of habeas corpus in the trial court, raising eighteen claims for relief. The trial court, in its findings of fact
1 Wilkins v. State, No. 75,858, 2010 WL 4117677, at *1 (Tex.
Crim. App. Oct. 20, 2010). 2 See id. 3 See Wilkins v. Texas, 131 S. Ct. 2901.
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and conclusions of law, recommended to the TCCA that relief be denied. Based on the trial court’s findings and conclusions, the TCCA denied Wilkins’s application for relief.4
Wilkins filed his federal petition for habeas corpus in May 2012. Three weeks prior to filing his petition, Wilkins submitted an ex parte motion to the district court, seeking nearly $92,000 in funding to pay for a fact investigator, a mitigation specialist, a neuropsy-chologist, and a prison expert to help develop his claims for relief. The district court denied the motion, stating that the funding was not “reasonably necessary for the representation of petitioner in this 28 U.S.C. § 2254 proceeding.”
Wilkins alleged twenty-one grounds for relief in his federal habeas petition, all of which were denied by the district court. The district court denied his first eleven claims as procedurally defaulted under Coleman v. Thompson5 because Wilkins failed to exhaust those claims in state court.6 Wilkins now asks this court for a
4 See Ex parte Wilkins, No. 75,229-01, 2011 WL 334213 (Tex.
Crim. App. Feb. 2, 2011). 5 501 U.S. 722. 6 The district court also found, alternatively, that Wilkins’s
unexhausted claims for relief numbers 1-7 and 10, all of which al-leged ineffective assistance of trial counsel, would fail on the mer-its should the Supreme Court decide that its holding in Martinez v. Ryan, 132 S. Ct. 1309 (2012), which carved out an exception to the rule in Coleman, also applied to cases arising out of Texas courts. At the time the district court issued its order denying Wilkins’s petition for relief, the Supreme Court had granted a writ of certio-rari in Trevino v. Thaler, 133 S. Ct. 524 (2012), to address the ques-tion of whether the exception to the procedural bar created in Martinez applies to cases arising out of Texas state courts. Sub-sequently, the Supreme Court issued its opinion in Trevino an-
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certificate of appealability as to eight of his claims for ineffective assistance of trial counsel which the district court denied as procedurally defaulted.7
II.
Before a federal habeas petitioner can appeal the district court’s denial of his petition, he must first ob-tain a certificate of appealability (“COA”).8 To obtain a COA, the petitioner must make “a substantial showing of the denial of a constitutional [303] right.”9 “Where 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 as-sessment of the constitutional claims debatable or wrong.”10 However, when the district court denies a habeas petition on procedural grounds, a COA should only issue if “the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”11
swering that question in the affirmative. See 133 S. Ct. 1911 (2013).
7 Wilkins takes no appeal of the district court’s denial of his other claims for relief.
8 See 28 U.S.C. § 2253(c). 9 See id. § 2253(c)(2). 10 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 11 Id. (emphasis added).
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In reviewing Wilkins’s request for a COA, we con-duct only a threshold inquiry into the merits of the claims he raised in his underlying habeas petition.12 “This threshold inquiry does not require full considera-tion of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.”13 In death penalty cases, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.”14
Because no COA is necessary to appeal the district court’s denial of funds to a habeas petitioner, we review that portion of the district court’s order for abuse of discretion.15
III.
Wilkins argues that the district court erred in denying habeas relief on his unexhausted claims; he as-serts that he demonstrated cause and prejudice that excused his failure to exhaust and seeks a COA to chal-lenge that determination.
Relying on Maples v. Thomas,16 he argues first that his state habeas counsel Jack Strickland essentially abandoned him by failing to pursue valid claims for re-lief.
He argues next that he demonstrated cause to ex-cuse his failure to raise a number of ineffective assis-
12 See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 13 Id. 14 Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (altera-
tion in original) (citation and internal quotation marks omitted). 15 See Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005). 16 132 S. Ct. 912 (2012).
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tance of trial counsel (“IATC”) claims, pursuant to Martinez v. Ryan17 and Trevino v. Thaler.18
A state prisoner’s claims for habeas corpus relief may not be entertained by a federal court “when (1) ‘a state court [has] declined to address [those] claims be-cause the prisoner had failed to meet a state procedural requirement,’ and (2) ‘the state judgment rests on inde-pendent and adequate state procedural grounds.’”19 However, “[a] prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.”20 There is no dispute [304] that the Texas Code of Criminal Proce-dure’s bar on successive state court applications for ha-beas relief is an independent and adequate state ground.21
A. Maples Claim
Wilkins first argues he has cause to excuse his pro-cedural bar under Maples v. Thomas because his state habeas counsel, Jack Strickland (“Strickland”), aban-doned him during state habeas proceedings.
A federal habeas petitioner is ordinarily bound by his attorney’s negligence because the attorney and the
17 132 S. Ct. 1309 (2012). 18 133 S. Ct. 1911 (2013). 19 Walker v. Martin, 131 S. Ct. 1120, 1127 (2011) (first altera-
tion in original) (quoting Coleman, 501 U.S. at 729-30). 20 Martinez, 132 S. Ct. at 1316 (citing Coleman, 501 U.S. at
750). 21 See Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a); see also
Balentine v. Thaler, 626 F.3d 842, 857 (5th Cir. 2010) (recognizing that Section 5 is an independent and adequate state law ground for rejecting a claim).
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client have an agency relationship under which the principal is bound by the actions of the agent.22 How-ever, an attorney who “abandons his client without no-tice … sever[s] the principal-agent relationship” and “no longer acts, or fails to act, as the client’s repre-sentative.”23 In Maples, the Supreme Court held that this sort of complete attorney abandonment can consti-tute the kind of “extraordinary circumstances” neces-sary to supply cause for a procedural default.24
In Maples, the petitioner’s pro bono counsel, two attorneys in a large New York law firm, left the firm months before the state procedural default occurred, and, unbeknownst to the petitioner, no other lawyer was serving as the petitioner’s agent in any meaningful sense of the word.25 Consequently, the petitioner was “left without any functioning attorney of record.”26 The petitioner failed to timely appeal the denial of his state post-conviction petition in state court because he was not notified of the denial until the time to appeal had lapsed.27
The instant case and Maples are distinguishable. Wilkins asserts he was abandoned by Strickland be-
22 See Coleman, 501 U.S. at 753 (“Attorney ignorance or in-
advertence is not ‘cause’ because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error. ” (citation omitted)).
23 Maples, 132 S. Ct. at 922–23 (citation omitted). 24 Id. at 924. 25 See id. at 924-27. 26 Id. at 927. 27 Id. at 920.
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cause Strickland worked under multiple conflicts of in-terest arising out of professional relationships with counsel at trial and direct appeal, as well as the court. As a result of these conflicts, Wilkins argues Strickland refused to investigate and raise any IATC claims, and failed to hire a psychologist or mitigation specialist, contrary to Wilkins’s desires.28 We have previously noted that counsel’s failure to raise all issues a petition-er would like to argue does not amount to abandon-ment.29 Moreover, the record indicates that, unlike counsel in Maples, Strickland never missed a filing deadline and filed a lengthy petition which raised eighteen points of error on Wilkins’s behalf. The record reflects that Strickland actively represented petitioner and, unlike counsel in Maples, did not abandon his cli-ent. Maples has no application in this case.
[305]
B. Martinez-Trevino Claims
Next, Wilkins argues that Strickland’s performance as state habeas counsel was ineffective because he failed to raise any IATC claims, constituting cause to excuse Wilkins’s procedural default for failure to ex-haust those claims under Martinez v. Ryan and Trevino v. Thaler.30
28 Wilkins brought this claim before the district court, which
quickly rejected his argument in a footnote, stating that “ Maples simply would not apply to this case even if petitioner’s state habe-as counsel had not performed properly.”
29 See Ibarra v. Thaler, 691 F.3d 677, 685 n.1 (5th Cir. 2012). 30 Wilkins alleges eight IATC claims in his petition: 1) that
trial counsel failed to conduct an adequate pretrial mitigation in-vestigation; 2) that he was denied his right to unconflicted counsel; 3) that he was denied counsel at a critical stage of the proceeding;
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In Martinez, the Supreme Court held that a peti-tioner may establish cause to excuse a procedural de-fault as to an IATC claim by showing that (1) his state habeas counsel was constitutionally deficient in failing to include an IATC claim in his first state habeas appli-cation; and (2) the underlying IATC claim is “substan-tial.”31 For a claim to be “substantial,” a “prisoner must demonstrate that the claim has some merit.”32 Con-versely, an “insubstantial” IATC claim is one that “does not have any merit” or that is “wholly without factual support.”33 The Martinez Court reasoned that when inmates can only raise IATC claims under Strickland v. Washington34 on state habeas review, a state habeas attorney’s deficient performance may forgive a federal procedural bar.35 Subsequently, this court held in Ibar-ra v. Thaler that Martinez did not apply to federal ha-beas cases arising from Texas convictions and that Texas inmates were “not entitled to the benefit of Mar-tinez for … ineffectiveness claims” because Texas in-mates are not limited to raising Strickland claims in
4) that counsel was ineffective for proceeding to trial even though Wilkins desired to plead guilty; 5) that counsel was ineffective for failing to raise the issue of Wilkins’s competency to stand trial; 6) that counsel failed to conduct a reasonable pretrial investigation; 7) that counsel was ineffective for failing to strike certain members of the jury venire who were biased; and 8) that counsel was inef-fective for failing to object to “excessive and prejudicial” security measures imposed by the court during the sentencing phase of trial.
31 132 S. Ct. at 1318. 32 Id. 33 Id. at 1319. 34 466 U.S. 668 (1984). 35 Martinez, 132 S. Ct. at 1320.
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initial collateral review proceedings.36 In Trevino, the Supreme Court decided that Martinez does apply to cases which originated in Texas courts because “the Texas procedural system—as a matter of its structure, design, and operation—does not offer most defendants a meaningful opportunity to present a claim of ineffec-tive assistance of trial counsel on direct appeal.”37
The district court issued its order denying Wil-kins’s petition for habeas relief before the Supreme Court handed down its decision in Trevino. It denied Wilkins’s IATC claims as procedurally barred because, at the time, this court’s opinion in Ibarra controlled. In that case we determined that Martinez did not apply to petitions challenging Texas convictions. However, the district court also acknowledged the pendency of Tre-vino in the Supreme Court, and made the alternative holding that, even if Martinez did apply to Wilkins’s claims for ineffective assistance, such claims would nevertheless fail on their merits. The district court’s reliance on Ibarra is therefore incorrect following Tre-vino, and its procedural ruling is, at the very least, de-batable. However, to obtain a COA Wilkins must still demonstrate [306] that reasonable jurists would debate “whether the petition states a valid claim of the denial of a constitutional right.”38 This in turn required Wil-kins to make a substantial showing that he was denied effective assistance of trial counsel under Strickland.
36 687 F.3d 222, 227 (5th Cir. 2012). 37 133 S. Ct. at 1921. 38 Reed v. Stephens, 739 F.3d 753, 774 (5th Cir. 2014) (quoting
Slack v. McDaniel, 529 U.S. 473, 478, 484 (2000) (internal quotation marks omitted)).
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Ineffective assistance of counsel claims are gov-erned by the standard laid out in Strickland. “First, the defendant must show that counsel’s performance was deficient.”39 “Second, the defendant must show that the deficient performance prejudiced the de-fense.”40 To show deficient performance, “the defend-ant must show that counsel’s representation fell below an objective standard of reasonableness.”41 To demon-strate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofes-sional errors, the result of the proceeding would have been different. A reasonable probability is a probabil-ity sufficient to undermine confidence in the out-come.”42 “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence re-sulted from a breakdown in the adversary process that renders the result unreliable.”43
Concluding that Wilkins has failed to state any sub-stantial IATC claims, we deny a COA. We address each of his eight claims below.44
39 Strickland, 466 U.S. at 687. 40 Id. 41 Id. at 688. 42 Id. at 694. 43 Id. at 687. 44 Wilkins makes a ninth claim arising out of the trial court’s
issuance of supplementary jury instructions without notifying him or his trial counsel, or reconvening the court. He styles this claim as ineffective assistance of counsel. But it is properly framed as a claim for the denial of his right to a public trial under the Sixth Amendment. Such a claim does not fall within the scope of Mar-tinez or Trevino and is therefore procedurally barred.
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1. Failure to conduct reasonable pretrial mitiga-tion investigation
Wilkins asserts his trial counsel, Wes Ball (“Ball”), was ineffective because he failed to investigate and present a constitutional sentencing case. In particular, Wilkins contends that Ball abandoned early attempts at investigation only to resume them once it was too late; that Ball failed to ensure that the jury had a “true pic-ture of the security measures” Wilkins would be sub-jected to if he were sentenced to life in prison; that Ball failed to “exclude, contest or mitigate the evidence” concerning Wilkins’s tattoos; and finally that Ball failed to investigate the evidence of extraneous offenses the State introduced at sentencing.
To prevail on an IATC claim, a petitioner “who al-leges 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.”45 “In any [IATC claim], a particu-lar decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”46 Our assessment [307] of trial counsel’s investigation turns upon our “objective review of [his] performance, measured for ‘reasonableness under prevailing profes-sional norms,’ which includes a context-dependent con-sideration of the challenged conduct as seen ‘from coun-sel's perspective at the time.’”47
45 United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). 46 Strickland, 466 U.S. at 691. 47 Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strick-
land, 466 U.S. at 688-89).
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The record shows that Ball first obtained the assis-tance of an investigator, Bruce Cummings (“Cum-mings”), in February 2006 and gave him “authority to investigate and seek tangible and testimonial evidence from all witnesses having knowledge or not regarding the accusations that may be presented in [Wilkins’s] case.” In March 2006, Ball enlisted the help of mitiga-tion specialist Melissa Robinson (“Robinson”). Wilkins claims that both Cummings and Robinson “soon ceased work,” as demonstrated by the fact that Cummings did not submit billing for his work performed in the case. The district court noted that Robinson was replaced due to health problems. In January 2008, Ball replaced Cummings when he hired Cliff Ginn and Doug Lamber-son to work as investigators. Ball also hired Dr. Kelly Goodness (“Dr. Goodness”) to act as both a mitigation specialist and psychologist.
The district court found that the record showed Ginn, Lamberson, and Dr. Goodness “worked diligently at mitigation investigation,” and that there was “sub-stantial evidence that trial counsel caused timely and reasonable investigation to be conducted,” including the fact that Ball called nine witnesses on Wilkins’s behalf during the punishment phase of trial. The record sup-ports this finding.
Wilkins disagrees, characterizing the investigation as abandoned too early and resumed too late. Wilkins claims he provided Ball with over eighty names of fami-ly, friends, and other persons with knowledge of his personal history, and that Ball chose to interview only a small number of them. Wilkins also contends Ball failed to locate and examine basic records of his personal his-tory, as well as interview persons other than his moth-er about Wilkins’s childhood. According to Wilkins, if Ball had conducted a proper investigation, a “different
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picture of his childhood might well have emerged.” However, Dr. Goodness’s investigation uncovered many of these details: she noted Wilkins’s issues with drug use as a youth and reported that he felt “neglect-ed and rejected by his family.” Dr. Goodness conclud-ed, “The lack of any sort [of] treatment or rehabilitation efforts is remarkable.” Wilkins also asserts that Ball’s mitigation investigation was unreasonable because he failed to allow Dr. Goodness to perform further exami-nations into Wilkins’s mental health issues, despite Dr. Goodness’s conclusion that Wilkins had “neuropsycho-logical deficits … in several areas.” Wilkins further ar-gues it was unreasonable for Ball to rely on Wilkins’s “self-reported information without taking into account his impulsive and self-destructive tendencies.”
In addition, Wilkins claims Ball was ineffective at the punishment phase for “fail[ing] to ensure the jury had a true picture of the security measures to which [Wilkins] would be subject if sentenced to life,” for fail-ing to “exclude, contest or mitigate the evidence con-cerning [Wilkins’s] tattoos,” and for failing to investi-gate the evidence the state introduced at sentencing.
The district court determined that Wilkins’s claim of an unreasonable mitigation investigation amounted to “conclusory allegations” which were insufficient to show that he suffered any prejudice at the sentencing [308] phase of his trial. We agree. Wilkins makes nu-merous allegations of deficient performance, but fails to show how the performance created a “reasonable prob-ability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”48 He claims the impact of Ball’s unreasonable pretrial
48 Strickland, 466 U.S. at 694.
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mitigation investigation can only be known “if the fed-eral habeas courts provide the means to investigate and present the case that should have been developed prior to trial.” Concerning the evidence of Wilkins’s tattoos, he states that Ball should have filed a motion in limine,49 and that the prejudice he suffered as a result of the evidence being introduced “may be great.” Fi-nally, he claims that the prejudicial effects of Ball’s de-ficient performance concerning the security measures and the evidence of extraneous offenses require “fur-ther development upon remand” with “sufficient means to develop relevant facts.” None of these conclusory allegations are sufficient to merit relief under Strick-land.50 Wilkins fails to persuade us that reasonable ju-rists would find the district court’s assessment of his IATC claim for inadequate pretrial mitigation investi-gation debatable or wrong.51
2. Denial of the right to unconflicted counsel
Wilkins next argues that he was denied the right to unconflicted counsel at trial because Ball had previous-ly represented Gilbert Vallejo (“Vallejo”) in probation revocation proceedings two decades earlier. Sometime before trial, Wilkins confessed to police that he had murdered Vallejo two days before killing Freeman and
49 The record shows that Ball did object to the introduction of
the evidence of Wilkins’s tattoos. 50 See 466 U.S. at 693-94. (“It is not enough for the defendant
to show that the errors had some conceivable effect on the out-come of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the out-come undermines the reliability of the re-sult of the proceeding.”) (citation omitted).
51 See Slack, 529 U.S. at 484.
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Silva. Wilkins contends his confession to murdering Ball’s former client was false. The evidence of the con-fession was excluded at trial, but the state was permit-ted to introduce this evidence during the sentencing phase. Wilkins did not raise this issue at trial. He orig-inally raised this issue with the TCCA prior to his di-rect appeal, and the TCCA remanded the case to the trial court to investigate. After holding a hearing at which both Ball and Wilkins testified, the trial court concluded that Ball had no conflict of interest despite his representation of Vallejo twenty years earlier. Nevertheless, the trial court allowed Ball to withdraw as appellate counsel and substituted another attorney.
Cuyler v. Sullivan establishes the controlling law regarding ineffective assistance of counsel based on conflict of interest: “In order to establish a violation of the Sixth Amendment, a defendant who raised no ob-jection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s perfor-mance.”52 Therefore, we must determine whether Wil-kins offered proof that (1) trial counsel actively repre-sented conflicting interests, and (2) that an actual con-flict of interest adversely impacted his lawyer’s per-formance.53 “[U]ntil a defendant shows [309] that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”54
Although Cuyler involved concurrent representa-tion, this court “has not definitively embraced the theo-
52 446 U.S. 335, 349-50 (1980). 53 Id. at 348-49 (citation omitted). 54 Id. at 350.
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ry that there is any real and inviolate substantive dif-ference between conflicts of interest arising in the con-text of successive, as opposed to concurrent, represen-tations.”55 In the case of successive representation, a non-hypothetical conflict exists only “when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing inter-ests of a former or current client.”56 This determina-tion depends on a number of factors, “including … whether the attorney has confidential information that is helpful to one client but harmful to another; whether and how closely the subject matter of the multiple rep-resentations is related; how close in time the multiple representations are related; and whether the prior rep-resentation has been unambiguously terminated.”57
We are satisfied that the conflict here remained “purely hypothetical.”58 Ball represented Vallejo in an unrelated probation revocation proceeding twenty years prior to his representation of Wilkins. The rep-resentation of Vallejo had been unequivocally termi-nated; the facts and issues of the prior representation had no relation to Ball’s representation of Wilkins. No evidence was produced by Wilkins to show that Ball even remembered representing Vallejo. The burden lies with Wilkins to show that “there was some plausi-ble alternative defense strategy that could have been
55 Perillo v. Johnson, 205 F.3d 775, 798 (5th Cir. 2000). 56 Id. at 781. 57 United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005)
(citing Perillo, 205 F.3d at 798-99). 58 See United States v. Burns, 526 F.3d 852, 857 (5th Cir.
2008).
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pursued, but was not, because of the actual conflict.”59 Wilkins has not carried this burden, and fails to demon-strate that reasonable jurists would find the district court’s assessment of this claim debatable or wrong.60
3. Denial of the right to counsel at a critical stage of the proceeding
For his third claim, Wilkins asserts that he was de facto without counsel during the conflict hearing re-garding Ball’s relationship with Gilbert Vallejo as a re-sult of Ball’s conflict of interest. According to Wilkins, this amounted to a denial of his right to counsel at a critical stage of the proceeding in violation of his Sixth Amendment right to counsel.
The Sixth Amendment provides in part that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his de-fence.”61 “An accused’s right to be represented by counsel is a fundamental component of our criminal jus-tice system.”62 “The mere presence of counsel is insuf-ficient; a defendant is not represented by the counsel as guaranteed under the Sixth Amendment [310] simply because an attorney is standing next to him during a hearing.”63
59 Infante, 404 F.3d at 393 (citing Perillo, 205 F.3d at 807). 60 See Slack, 529 U.S. at 484. 61 U.S. Const. amend. VI. 62 United States v. Cronic, 466 U.S. 648, 653 (1984). 63 United States v. Robles, 445 F. App’x 771, 776-77 (5th Cir.
2011) (citing Avery v. Alabama, 308 U.S. 444, 446 (1940)) (“[T]he denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the ap-pointment of counsel into a sham and nothing more than a formal
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“It is well settled that [the Sixth Amendment] means that a defendant is entitled to be represented by counsel at all critical stages of a criminal proceeding against him; critical stages of a criminal proceeding are those stages of the proceeding at which the substantial rights of a defendant may be affected.”64 In determin-ing whether the presence of counsel is required at a particular stage, we focus on whether there has been a “denial of such significance that it makes the adversary process itself unreliable.”65 This court has held that a critical stage of a criminal proceeding is a stage at which “the substantial rights of [a defendant] may be affected.”66
Ordinarily, a defendant asserting a violation of his Sixth Amendment right to counsel is required to demonstrate that counsel’s performance was deficient and that he suffered prejudice as a result.67 However, there are exceptions in three situations that involve circumstances “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”68 They are: (1) “the complete denial of counsel,” (2) where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” compliance with the Constitution’s requirement that an accused be given the assistance of counsel.”).
64 United States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991) (citations omitted).
65 United States v. Russell, 205 F.3d 768, 771 (5th Cir. 2000) (citing Cronic, 466 U.S. at 659).
66 McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011) (citation and internal quotation marks omitted).
67 Strickland, 466 U.S. at 685-87. 68 Cronic, 466 U.S. at 658.
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and (3) where “surrounding circumstances ma[k]e it … unlikely that any lawyer could provide effective assis-tance.”69
Wilkins asserts he was completely denied counsel at the conflict hearing in violation of his Sixth Amend-ment rights. However, we have already determined that Ball did not have any actual conflict of interest in his representation of Wilkins. Therefore, Wilkins was not deprived of counsel during the conflict hearing.
4. Involuntary not guilty plea
Wilkins next argues Ball was ineffective for pro-ceeding to trial despite Wilkins’s desire to plead guilty. One of the most important duties of an attorney repre-senting a criminal defendant is advising the defendant about whether he should plead guilty.70 An attorney fulfills this obligation by informing the defendant about the relevant circumstances and likely consequences of a plea.71 A defendant cannot make an intelligent choice about whether to accept a plea offer unless he fully un-derstands the risks of proceeding to trial.72
Wilkins claims his plea of not guilty was not volun-tary, and that he went to trial [311] only at the insist-ence of Ball for Ball’s benefit. Wilkins claims Ball wanted to proceed to trial to “rack up” his billable hours, despite the fact that the “prospect of success at the time of [Wilkins’s] plea was slender.” According to Wilkins, the not guilty plea did not reflect his voluntary
69 Id. at 659, 661. 70 Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965). 71 Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995). 72 Id. at 1171.
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and intelligent choice and was made only for the finan-cial benefit of Ball. In support of his claim, Wilkins cites to portions of his testimony during sentencing, when he stated “I’ve been trying to tell those people from out of the gate that, look, I’m guilty, okay so now what? Let’s … get on over there and get this over with sooner rather than later.” When asked if pleading not guilty had been his idea, he responded “No, absolutely not.… Well, these guys over here, they convinced me [to plead not guilty] .…” Wilkins continued to say he thought Ball wanted to continue to trial in order to ac-cumulate billable hours. Wilkins claims that the “likely consequence” of Ball’s conduct was the death sentence Wilkins received.
Our cases which consider claims of an involuntary not guilty plea require a petitioner to show that, by pleading guilty, he would have received a lower sen-tence,73 or to show, in addition to deficient performance, a “reasonable probability that … the result of the pro-ceeding would have been different.”74
No evidence was presented that the state offered any deal or concession in return for a guilty plea. Therefore, even assuming Wilkins has made out a claim for deficient performance, he has not shown a reasona-ble probability the result of the proceeding would have been different. Like the defendant in United States v. Faubion, Wilkins fails to demonstrate how he was harmed by going to trial instead of pleading guilty.75
73 See United States v. Faubion, 19 F.3d 226, 229-30 (5th Cir.
1994). 74 See United States v. Herrera, 412 F.3d 577, 580 (5th Cir.
2005). 75 See 19 F.3d at 229-30.
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Wilkins has thus failed to satisfy the second prong of Strickland, that he was prejudiced by Ball’s insistence on entering a not guilty plea. We therefore find no showing that reasonable jurists would find the district court’s assessment of this claim debatable or wrong.76
5. Incompetency to enter a plea or stand trial
Wilkins contends that Ball was ineffective for fail-ing to raise the issue of incompetency. Wilkins argues he was incompetent to stand trial because he “lacked both the ability to make meaningful use of counsel’s ad-vice, and a rational understanding of the gravity of the proceedings against him.”
This court has observed that “[d]ue process prohib-its the prosecution of a defendant who is not competent to stand trial.”77 The Supreme Court has held that “the standard for competence to stand trial is whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational under-standing’ and has ‘a rational as well as factual under-standing of the proceedings against him.’”78 Habeas petitioners claiming incompetency need to bear this “threshold burden of proof which must be satisfied be-fore the habeas court has a duty to investigate the con-stitutional challenge [312] further.”79 To obtain habeas relief based on incompetency, Wilkins must show that the facts are “sufficient to positively, unequivocally and
76 See Slack, 529 U.S. at 484, 120 S. Ct. 1595. 77 Dunn v. Johnson, 162 F.3d 302, 305 (5th Cir. 1998). 78 Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 125
L.Ed.2d 321 (1993) (quoting Dusky v. United States, 362 U.S. 402, 403, 80 S. Ct. 788, 4 L.Ed.2d 824 (1960)).
79 Bruce v. Estelle, 536 F.2d 1051, 105859 (5th Cir. 1976).
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clearly generate a real, substantial and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel during a criminal trial.”80 Once Wilkins has “presented enough probative evidence to raise a substantial doubt as to his competency at the time of trial, he must then prove that incompetency by a preponderance of the ev-idence.”81
In support of this claim, Wilkins points to a series of “bad decisions” he made, including: at least one ex-tremely dangerous escape attempt; false confessions to offenses which never occurred; talking with law en-forcement against the wishes of his lawyers; proceeding to trial despite his desire to plead guilty so he could “give his attorneys more billable hours”; and, rather than fighting for his life at the punishment stage, Wil-kins told the jury “Just do whatever you do.” In addi-tion, Wilkins claims the record indicates many factors suggesting brain damage, and quotes a report submit-ted by Dr. Goodness, a psychologist, which stated, “Significant impulsivity and attention problems were noted with his having great difficulty focusing on what-ever the task was, he had difficulty screening out ancil-lary noises in the jail, and his mind often wandered.” Wilkins cites to jail records which he says indicate he is “paranoid and schizophrenic,” although those same rec-ords indicate that this claim is unsubstantiated because it was not possible to take Wilkins’s medical history be-cause he became “too defensive to answer questions.” Wilkins also makes the unsubstantiated claim that the
80 Id. at 1058-59. 81 Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998) (cita-
tions omitted).
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records in his case “indicate many factors suggesting brain damage.” According to Wilkins, these facts sug-gest mental health issues, and Ball, despite being fully aware of all the facts, was deficient for failing to raise the issue of incompetency to stand trial. Wilkins now asks this court for the opportunity to develop evidence concerning his mental status at the time of trial and Ball’s deficient decisionmaking.
The district court rejected Wilkins’s assertion that Ball was ineffective when he failed to raise the issue of competency to stand trial. Based on the lack of proba-tive evidence tending to show incompetence, we cannot say that reasonable jurists would find the district court’s decision debatable or wrong.82 Wilkins has dis-played a pattern of bad decisions, as well as erratic be-havior, inappropriate jocularity, and an indifferent atti-tude during the guilt and sentencing phases of his pro-ceedings. But Wilkins offered no support to the district court that his actions are the result of brain damage and mental health problems or that he was unable to consult with counsel or understand the proceedings. These facts are not enough to raise a debatable issue that he was incompetent to stand trial.
6. Failure to conduct reasonable pretrial investi-gation
Wilkins asserts Ball was ineffective because he failed to conduct a reasonable pretrial investigation and preparation for the guilt phase of the trial. In support of his argument, Wilkins claims that Ball expended “lit-tle effort to investigate the merits beyond one crime scene visit, speaking to the medical examiners and in-specting [313] the physical evidence a few days before
82 See Slack, 529 U.S. at 484.
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trial began.” As to the investigators hired by Ball, Wilkins claims they likewise “did little concerning the merits beyond visiting the crime scenes, made some in-quiries there, served subpoenas, and tried to locate, or actually interviewed four witnesses from the State’s witness list.” Wilkins now seeks the time and re-sources to conduct an independent investigation so he can raise “legitimate issues” concerning the State’s case.
Like his IATC claim for unreasonable pretrial mit-igation investigation, Wilkins has failed to show any prejudice resulting from Ball’s purportedly deficient performance in conducting the pretrial investigation. Thus, this claim lacks merit because Wilkins has failed to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”83 We therefore find that Wilkins has failed to demonstrate that reasonable ju-rists would find the district court’s denial of this claim debatable or wrong.84
7. Failure to strike members of the jury venire
Wilkins next argues Ball was ineffective for failing to strike two members of the jury venire who were “unable to render an impartial decision.” Specifically, Wilkins argues that Ball was ineffective for accepting juror Robert Lee Evans (“Evans”) because Evans had a family member who was a prosecutor, had encoun-tered the prosecutor in Wilkins’s case in social settings, and was “predisposed to sentence [Wilkins] to death because of the subject matter of his tattoos.” In addi-
83 See Strickland, 466 U.S. at 6942. 84 See Slack, 529 U.S. at 484.
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tion, Wilkins claims Ball was ineffective for accepting juror Brandy Medford (“Medford”), who Wilkins claims “had been exposed to unauthorized information about [Wilkins’s] case, was impaired in her ability to follow the law, and who was related to a member of the court personnel.”
“In conducting the deficient performance analysis in the context of counsel’s failure to strike an allegedly partial juror, a court first evaluates whether the juror at issue was actually biased.”85 “The issue of juror bias is a factual finding.”86 Determining bias focuses on a juror’s own indication that she has “such fixed opinions that [she] could not judge impartially [the petitioner’s] guilt,”87 and whether “her views would prevent or sub-stantially impair the performance of his or her duties as a juror in accordance with his or her instructions and oath.”88
We agree with the district court that Wilkins has not provided evidence that either juror at issue was ac-tually biased. The familial and social relationships pointed to by Wilkins are insufficient to carry his bur-den. Thus, Ball’s failure to object to the inclusion of the two jurors does not constitute deficient performance within the meaning of Strickland. Wilkins has thus failed to demonstrate that reasonable jurists would find
85 Seigfried v. Greer, 372 F. App’x 536, 539 (5th Cir. 2010) (per
86 Id. (citing Virgil, 446 F.3d at 610 n. 52). 87 Patton v. Yount, 467 U.S. 1025, 1035 (1984). 88 United States v. Scott, 159 F.3d 916, 925 (5th Cir. 1998) (cita-
tions omitted).
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the district court’s assessment of this claim debatable or wrong.89
[314]
8. Failure to object to excessive and prejudicial security measures during the sentencing phase of trial
In his last Martinez claim, Wilkins argues Ball was ineffective because he failed to object to excessive and prejudicial security measures adopted by the trial court during the sentencing phase of trial. Namely, Wilkins claims there was an excessive number of guards in close proximity to him while he testified at the sentenc-ing phase, and that the use of a taser belt as a restraint with a guard holding the remote nearby and visible to the jury impaired his defense. Wilkins argues this was a prejudicial violation to which Ball should have object-ed, but did not.
The Supreme Court “has stressed the ‘acute need’ for reliable decisionmaking when the death penalty is at issue.” 90 “The appearance of the offender during the penalty phase in shackles … almost inevitably implies to a jury, as a matter of common sense, that court au-thorities consider the offender a danger to the commu-nity—often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the State does not specifically argue the point.”91 Thus, it “inevitably undermines” a jury’s ability to weigh with accuracy all relevant considerations when it determines
89 See Slack, 529 U.S. at 484. 90 Deck v. Missouri, 544 U.S. 622, 632 (2005) (quoting Monge
v. California, 524 U.S. 721, 732 (1998)). 91 Id. at 633.
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whether a defendant deserves death.92 Accordingly, the Court has concluded that “courts cannot routinely place defendants in shackles or other physical re-straints visible to the jury during the penalty phase of a capital proceeding.”93 However, a trial judge is permit-ted “in the exercise of his or her discretion, to take ac-count of special circumstances, including security con-cerns, that may call for shackling.”94
The record in the instant case makes clear that Wilkins had attempted escape multiple times: he broke both ankles after falling thirty feet from the outer wall of a prison basketball court; at one point, he was dis-covered to have swallowed a handcuff key; one of the key events which led to his encounter with murder vic-tims Freeman and Silva was an escape from a Texas halfway house. The record also indicates a history and propensity for violence. We therefore conclude that any objection made by Ball likely would have been fu-tile, as the trial court was well within its discretion to impose increased security measures during the penalty phase given Wilkins’s personal history, and the record does not demonstrate that the presence of the taser belt was open and obvious to the jury. Thus, his claim that Ball was ineffective for failing to object fails to sat-isfy the prejudice prong of Strickland. We see no rea-son to find that reasonable jurists would find the dis-trict court’s denial of this claim debatable or wrong.95
92 Id. 93 Id. 94 Id. 95 See Slack, 529 U.S. at 484.
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Conclusion as to IATC claims
In summary, Wilkins has failed to establish cause for his procedural default under Martinez. Even as-suming arguendo that state habeas counsel, Jack Strickland, was deficient for failing to bring the claims during state habeas proceedings, none of the underly-ing IATC claims are “substantial” as required by Mar-tinez.96 Because Wilkins, in each of his eight claims for [315] relief, has failed to establish both prongs of an in-effective assistance claim under Strickland, we deny his petition for COA.
IV.
Finally, Wilkins argues that the district court abused its discretion in denying him funding to pay for expert and investigative assistance in developing the merits of his IATC claims, and that the district court’s refusal to order that Wilkins’s entire legal files be re-turned to him was an abuse of discretion.
Under the relevant statute, a district court “may authorize … [and] order the payment of fees and ex-penses” for “investigative, expert, or other services” upon a finding that they “are reasonably necessary for the representation of the defendant.”97 This court con-strues “reasonably necessary” to mean that a petitioner must demonstrate “a substantial need” for the request-ed assistance.98 However, the denial of such funding “has been upheld ‘when a petitioner has (a) failed to
96 See 132 S. Ct. at 1318. 97 18 U.S.C. § 3599(f). 98 Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004) (quoting
Clark v. Johnson, 202 F.3d 760, 768 (5th Cir. 2000)) (internal quo-tation marks omitted).
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supplement his funding request with a viable constitu-tional claim that is not procedurally barred, or (b) when the sought after assistance would only support a merit-less claim, or (c) when the sought after assistance would only supplement prior evidence.’”99 Wilkins of-fered little to no evidence that the investigative ave-nues counsel proposed to take hold any significant chance for success. Our precedent is clear that a habe-as petitioner is not entitled to investigative funds under these circumstances, and the district court did not abuse its discretion in so holding.
Likewise, the district court did not abuse its discre-tion when it failed to order that Wilkins’s entire legal files be returned to him. The record demonstrates that, after both parties filed motions concerning the disclo-sure of the files, the district court held a hearing during which the parties agreed to “continue to negotiate terms of disclosure” of the material. Thereafter, the district court dismissed both motions as moot. No sub-sequent motions were filed on this issue which would have allowed the district court to take action; it was on-ly raised later as grounds for relief in Wilkins’s habeas petition. The district court denied relief. It stated that, during the hearing on the disclosure issue, Wilkins’s federal habeas counsel “virtually admitted” this claim lacked substance, and that “[n]othing alleged in the pe-tition causes the [district] court to conclude that [Wil-kins’s] federal habeas counsel has not received all parts of his state court counsels’ files relevant to his federal habeas petition.” The district court did not abuse its discretion in failing to order disclosure of files under these circumstances.
ing Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005)).
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V.
For the reasons stated above, we find that Wilkins has failed to demonstrate that reasonable jurists would find the district court’s assessment of his claims under Maples and Martinez debatable or wrong. The district court’s judgment denying additional funding is AF-FIRMED and Wilkins’s motion for a COA is DENIED.
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APPENDIX B
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS,
[1] Before the court for decision is the petition of Christopher C. Wilkins (“petitioner”) for a writ of ha-beas corpus pursuant to the authority of 28 U.S.C. § 2254. After having considered such petition, the an-swer thereto of respondent, Rick Thaler, Director, Texas Department of Criminal Justice, Correctional Institutions Division, petitioner’s reply, the state trial, appeal, and habeas records, and applicable legal author-
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ities, the court has concluded that the relief sought by such petition should be denied.
I.
Background and Procedural History
Petitioner was charged by an indictment filed Feb-ruary 7, 2006, with intentionally or knowingly causing the October 28, 2005 death of Willie Freeman by shoot-ing him with a firearm, and during the same criminal transaction causing the death of Mike Silva by shooting him with a firearm. Wes Ball (“Ball”) had been ap-pointed on December 2, 2005, to represent petitioner, in accordance with article 26.052(e) of the Texas Code of Criminal Procedure. Upon motion filed by Ball, Bruce Cummings was appointed in February 2006 as an in-vestigator “with authority to investigate and seek tan-gible and testimonial evidence from all witnesses hav-ing knowledge or not regarding the accusations that may be presented in [petitioner’s] case.” Clerk’s R., Vol. 1 at 16. Warren St. John (“St. John”) was appoint-ed on February 16, 2008, as second chair attorney for petitioner, pursuant to the authority of article 26.052(e). Clifford W. Ginn, a licensed private investi-gator, was appointed on January 8, 2008, for the pur-pose of investigating the accusations made against peti-tioner and “to investigate and seek tangible or testa-mentary evidence from any and all witnesses regarding the accusations made against [petitioner], except for the privileged material or work product of the State.” Id. at 214.
The trial of petitioner commenced February 27, 2008. On March 4, 2008, the jury returned its verdict at the guilt/innocence stage of his trial, finding petitioner guilty of the offense of capital murder, as charged in the indictment. As related by the Court of Criminal Ap-
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peals of Texas in its October 20, 2010 unpublished opin-ion affirming petitioner’s conviction and sentence, the trial evidence that led to the capital murder conviction was as follows:
[Petitioner] gave statements to authorities that described his murders of Willie Freeman and Mike Silva. Freeman was a homeless man who lived in Fort Worth. Silva lived outside Fort Worth, but traveled into the city to pur-chase drugs. Freeman would show Silva where to buy drugs, and Silva would share his pur-chases with Freeman.
In October 2005, [petitioner] left a halfway house in Houston, stole a truck, and drove to Fort Worth. [Petitioner] happened upon Freeman, who offered to sell him some drugs. But Freeman and his supplier tricked [peti-tioner] into buying a piece of gravel instead of a rock of cocaine. The men took $20 from [peti-tioner] and laughed at him. So [petitioner] de-cided to kill Freeman.
[2]
Over the next few weeks, Freeman and [petitioner] used drugs together. Freeman apologized for stealing from [petitioner] and gave him some drugs to make up for it.
On October 27, 2005, [petitioner] told Freeman that he had some guns and drugs stashed on the west side of Fort Worth. Silva agreed to drive Freeman and [petitioner] in Silva’s vehicle. From the back seat, [petition-er] directed Silva to an area on the west side of Fort Worth. When they arrived at a deserted
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stretch of road, [petitioner] shot Freeman in the back of the head. Silva stopped the vehicle and tried to escape, but he got caught in his seatbelt. [Petitioner] shot him once in the neck and twice in the head. [Petitioner] then climbed into the driver’s seat and began driv-ing with Silva’s body hanging outside of the vehicle, still entangled in his seatbelt. [Peti-tioner] finally cut the seatbelt to remove Silva, and dumped the victims’ bodies in a ditch at the side of the road.
About a week later, after two high-speed police chases, Silva’s vehicle was recovered, and [petitioner] was apprehended.
Wilkins v. Texas, No. AP-75,878, Oct. 20, 2010 Op. at 2-3.
The punishment phase of petitioner’s trial com-menced March 4, 2008. On March 11, 2008, the jury unanimously found, in response to special issues in the form prescribed by sections 2(b)(1) and (e) (1) of article 37.071 of the Texas Code of Criminal Procedure, (1) be-yond a reasonable doubt that there was a probability that petitioner would commit criminal acts of violence that would constitute a continuing threat to society, and (2) that it could not find that, taking into considera-tion all of the evidence, including the circumstances of the offense, petitioner’s character and background, and the personal moral culpability of petitioner, there was a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed. The trial judge signed a Capital Judgment on March 12, 2008, imposing a death penalty on petitioner.
Ball was appointed as counsel for petitioner on his direct appeal to the Texas Court of Criminal Appeals.
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The trial judge made findings on April 4, 2008, under article 26.052(k) of the Texas Code of Criminal Proce-dure, in reference to Ball’s appointment. By its opinion issued October 20, 2010, the Texas Court of Criminal Appeals affirmed the trial court’s Capital Judgment imposing the death sentence on petitioner. Petitioner then unsuccessfully petitioned the United States Su-preme Court for writ of certiorari. Wilkins v. Texas, 131 S. Ct. 2901 (2011).
On March 13, 2008, the trial court appointed Jack Strickland (“Strickland”) pursuant to article 11.071 of the Texas Code of Criminal Procedure to represent pe-titioner for state writ of habeas corpus purposes. While his direct appeal was pending, petitioner, acting through Strickland, filed a state application for writ of habeas corpus in the trial court, raising eighteen grounds for relief. The State responded. The trial court adopted the State’s proposed findings of fact and conclusions of law, recommending to the Texas Court of Criminal Appeals that the relief sought by petitioner be denied. Based on those findings and conclusions, as well as its own review of the record, the Texas Court of Criminal Appeals denied petitioner’s requested relief.
[3] Petitioner filed on May 22, 2012, the petition for habeas corpus that is now before the court for decision. Respondent answered on September 6, 2012, and peti-tioner replied to the answer on October 10, 2012.
II.
Claims for Relief Asserted by Petitioner
The twenty-one claims for relief asserted by peti-tioner in the habeas petition under consideration are as follows:
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Claim for Relief Number 1
Petitioner’s counsel failed to conform to pre-vailing professional norms with regard to the sentencing phase of trial because they failed to conduct a reasonable pretrial mitigation inves-tigation, thereby violating Petitioner’s rights under the Sixth, Eighth and Fourteenth Amendments.
….
Claim for Relief Number 2
Petitioner was denied the right to unconflicted counsel at trial, because trial counsel had pre-viously represented the victim of an extraneous homicide, thereby violating Petitioner’s Sixth Amendment right to effective assistance of counsel.
….
Claim for Relief Number 3
Petitioner was denied the right to counsel at a critical stage of the proceedings, because he was functionally without counsel during a hear-ing on whether his trial counsel had labored under a conflict of interests, having previously represented the victim of an extraneous homi-cide of which evidence was introduced by the State, thereby violating Petitioner’s Sixth Amendment right to the assistance of counsel.
Claim for Relief Number 4
(A) Petitioner’s plea of not guilty was not vol-untary: he had expressed his wish to plead guilty to counsel, but at counsel’s insistence the trial on the merits went forward,
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thereby violating Petitioner’s Sixth Amendment right to the effective assis-tance of counsel and to due process of law under the Fourteenth Amendment.
(B) Petitioner’s plea of not guilty was not vol-untary: counsel knew that Petitioner wished to plead guilty but insisted on the trial going ahead because it would benefit counsel to do so, thereby violating Peti-tioner’s Sixth Amendment right to the as-sistance of unconflicted counsel and to due process of law under the Fourteenth Amendment.
….
Claim for Relief Number 5
(A) Petitioner was not competent to enter a plea or to stand trial since he lacked the ability to protect his own interests, was self-destructive and was incapable of mak-ing a reasoned choice between legal strate-gies and options; being subjected to trial while incompetent violated Petitioner’s right to due process of law under the Four-teenth Amendment.
(B) Petitioner was not competent to enter a plea or to stand trial since he lacked the ability to protect his own interests, was self-destructive and incapable of making a reasoned choice between legal strategies and options; counsel’s decision to continue to trial while Petitioner was incompetent violated Petitioner’s Sixth Amendment right to the effective assistance of counsel
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and to due process of law under the Four-teenth Amendment.
[4]
….
Claim for Relief Number 6
Petitioner’s counsel failed to conform to pre-vailing professional norms with regard to the trial on the merits because they failed to con-duct reasonable pretrial preparation and inves-tigation, thereby violating Petitioner’s rights under the Sixth, Eighth and Fourteenth Amendments.
….
Claim for Relief Number 7
Petitioner’s counsel failed to conform to pre-vailing professional norms because they failed to strike two venire persons who would be un-able to render an impartial verdict or sentence, thereby violating Petitioner’s rights under the Sixth, Eighth and Fourteenth Amendments.
….
Claim for Relief Number 8
Petitioner was denied the right to a public trial, to be present during the course of his own trial, and denied the right to counsel at a critical stage of the proceedings, when the trial court issued supplementary jury instructions in re-sponse to notes from the jury without notifying Petitioner or counsel or reconvening the court, thereby violating Petitioner’s rights under the Sixth and Fourteenth Amendment.
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….
Claim for Relief Number 9
The presentation of factually inaccurate testi-mony violated Petitioner’s right to Due Process under the Eighth and Fourteenth Amendments to the United States Constitution.
….
Claim for Relief Number 10
Petitioner’s counsel failed to conform to pre-vailing professional norms with regard to the sentencing phase of trial because they failed to object to excessive and prejudicial security measures adopted by the trial court, which were not justified by any essential state inter-est specific to Petitioner, in violation of Peti-tioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.
….
Claim for Relief Number 11
The jury instruction that mitigating evidence must reduce “moral blameworthiness” violates the Eighth Amendment by precluding consid-eration of evidence regarding a defendant’s character and background that a juror could find to be mitigating.
….
Claim for Relief Number 12
Petitioner was denied the right to present evi-dence in his own defense when the trial court excluded evidence of a confession to an extra-neous murder, thereby violating Petitioner’s
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right under the Sixth and Fourteenth Amend-ments to a meaningful opportunity to present a defense.
….
Claim for Relief Number 13
Petitioner’s challenge to the admission of one of his statements to law enforcement was errone-ously denied; the State had failed to meet its burden of showing a voluntary waiver of coun-sel, thereby violating Petitioner’s rights under the Fifth Amendment.
….
Claim for Relief Number 14
Petitioner’s challenges to two potential jurors were erroneously denied even though one would have automatically found Petitioner to be a future danger and the other would have placed a burden on Petitioner to present evi-dence in his defense, thereby violating Peti-tioner’s rights under the Sixth, Eighth and Fourteenth Amendments.
[5]
….
Claim for Relief Number 15
Petitioner’s rights under the Fifth and Four-teenth Amendments to the United States Con-stitution were violated by the failure of Texas law to require grand juries to pass on the death penalty eligibility factors in this case.
….
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Claim for Relief Number 16
Petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated be-cause the jury was misled by instructions con-cerning the so-called “10-12 rule” in the Texas death penalty statute.
….
Claim for Relief Number 17
Petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated be-cause the Texas death penalty scheme fails to instruct the jury that if a single juror “holds out” for life the defendant will receive a sen-tence of life imprisonment by operation of law.
….
Claim for Relief Number 18
Petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated be-cause the Texas death penalty scheme does not place the burden of proof on the state on the mitigation special issue.
….
Claim for Relief Number 19
Petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated be-cause the Texas death penalty scheme fails to instruct the jurors that a “Yes” answer to the
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mitigation evidence special issue is required unless the jurors determined that the aggravat-ing evidence outweighs the mitigating evidence.
….
Claim for Relief Number 20
Petitioner’s rights under the Eighth and Four-teenth Amendments to the United States Con-stitution were violated because the Texas death penalty scheme fails to require the jury to consider mitigation in answering special issue two.
….
Claim for Relief Number 21
Petitioner’s rights under the Eighth and Four-teenth Amendments to the United States Con-stitution were violated because the Texas death penalty scheme fails to adequately define “mitigating circumstances.”
Petitioner’s Implied Complaints About Earlier Rulings of This Court
Over the years, the typical grounds for federal ha-beas relief have evolved from primarily complaints about state trial court conduct, then mainly to com-plaints about the conduct of trial counsel, and then to criticism of the adequacy of the petitioner’s state habe-as counsel. The petition under consideration goes a step further with what are, in effect, complaints about previous rulings of this court in this habeas action that
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petitioner maintains have prevented him from ade-quately presenting his petition.
Petitioner starts at the bottom of page 5, going through most of page 6, of his petition with an implicit criticism of this court’s failure to grant a motion he filed before he filed his petition, requesting almost $92,000.00 of government funds to pay for expert and investigative assistance.1 After having considered the motion and respondent’s response thereto, the court denied the motion by order signed June 19, 2012, on the ground that the court was “unable to find that the re-quested investigative, expert, and other services for which petitioner has sought funding are reasonably necessary for the representation of petitioner in this 28 U.S.C. § 2254 proceeding.” June 19, 2012 Order. Peti-tioner failed to provide in his motion for additional funds any meaningful specificity as to the precise in-formation he would expect to develop through any such assistance or any plausible interpretation of any part of 22 U.S.C. § 2254 that would have authorized an order of
1 In a document petitioner filed on May 25, 2012, he detailed
the funds he was seeking and the uses he proposed to make of them as follows:
Mitigation Specialist Gulf Region Advocacy Center $37,500
Neuropsychologist Dr. Dale G. Watson $22,035
Prison Classification and Conditions Expert Frank AuBuchon $ 2,250
GRAND TOTAL: $91.785
Appl. filed by Pet’r on May 25, 2012 at 18.
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the kind requested by petitioner. This court remains convinced that it was correct in denying petitioner’s request for virtually unlimited money to start his crim-inal proceedings all over again.
[6] Next, on pages 6-10 of his petition, petitioner complains that he still has not received the files of his former state court counsel to be used by his current habeas counsel in the preparation of his federal peti-tion. Implicit in petitioner’s presentation on this issue is a criticism of this court for not granting motions he filed May 1, 2012, titled “Motion for Order to Preserve Evidence and Directing Release of Client’s Legal Files” and on May 14, 2012, titled “Motion for Order to Re-lease Petitioner’s Files to His Current Counsel,” re-spectively. The court took seriously the contention that petitioner’s state court counsel was refusing to turn over to his federal habeas counsel needed file material; and, the court, after having received a written response from state court counsel, conducted a hearing by tele-phone on May 31, 2012. At that hearing, the court learned that petitioner’s claims that his federal habeas attorney was being denied files of his state court coun-sel lacked substance. His federal habeas counsel virtu-ally admitted as much during the hearing. The court denied petitioner’s motions because, based on what the court learned during the telephone conference hearing, the issue was moot. That was the last this court heard of that matter until receipt of the petition now under consideration. Nothing alleged in the petition causes the court to conclude that petitioner’s federal habeas counsel has not received all parts of his state court counsels’ files relevant to his federal habeas petition.
Petitioner’s federal habeas counsel does not make clear in his petition the true goal of his current com-plaints that he needed more money for an expert and
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investigative assistance and that he still has not re-ceived all of state court counsels’ files other than to suggest that the existence of those complaints could, if all else fails, provide petitioner an avenue for further complaint. See Pet. at 3, 6, 10, 136, 192. Petitioner has presented nothing to cause this court to think that it erred in its orders denying additional funding and rul-ing moot petitioner’s claim that he had not received his legal files from state court counsel. To whatever extent petitioner might be seeking relief because of either of those rulings, id. at 192, such relief is being denied.
IV.
Standards Applicable to Petitioner’s Claims for Relief
A. General Standards
In pertinent part, 28 U.S.C. § 2254 provides that the only ground for relief thereunder is that the peti-tioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A petition brought under § 2254
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as de-termined by the Supreme Court of the United States; or
[7]
(2) resulted in a decision that was based on an unreasonable determination of the facts
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in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Tay-lor, 529 U.S. 362, 405-06 (2000); see also Hill v. John-son, 210 F.3d 481, 485 (5th Cir. 2000). A state court de-cision will be an unreasonable application of clearly es-tablished federal law if it correctly identifies the appli-cable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
In a § 2254 proceeding such as this, “a determina-tion of a factual issue made by a State court shall be presumed to be correct” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). A federal court may assume the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied. Townsend v. Sain, 372 U.S. 293, 314 (1963)2; Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002).
B. Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST.
2 The standards of Townsend v. Sain have been incorporated
into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981).
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amends. VI, XIV; Strickland v. Washington, 466 U.S. 668, 685-86 (1984). An ineffective assistance claim is governed by the familiar standards set forth in Strick-land. In order to prevail on an ineffective assistance of counsel ground, petitioner must show, first, that his counsel’s performance was deficient, i.e., that his coun-sel made errors so serious that counsel was not func-tioning as the “counsel” guaranteed to petitioner by the Sixth Amendment, and, second, that the deficient per-formance prejudiced her defense, i.e., that his counsel’s errors were so serious as to deprive him of a fair trial, a trial whose result is reliable. Id. at 687. The proper standard for measuring the attorney’s performance is that of reasonably effective assistance. Id.
Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 687. To es-tablish the first prong, petitioner must overcome a strong presumption that her counsel’s conduct falls within the wide range of reasonable professional assis-tance or sound trial strategy. Id. at 689. It is not enough to show that some, or even most, defense law-yers would have handled the case differently. Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir. 1989). For the second prong, petitioner must show that his counsel’s errors were so serious as to “deprive [him] of a fair tri-al, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
[8] Where a petitioner’s ineffective assistance claims have been reviewed on their merits and denied by the state courts, federal habeas relief will be grant-ed only if the state courts’ decision was contrary to or involved an unreasonable application of the standards set forth in Strickland. See Bell v. Cone, 535 U.S. 685, 698-99 (2002); Santellan v. Dretke, 271 F.3d 190, 198 (5th Cir. 2001).
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V.
Petitioner’s Unexhausted Claims for Relief
A. Petitioner is Barred from Asserting His Unex-hausted Claims
Petitioner acknowledges that he failed to exhaust his state court remedies with regard to his claims for relief 1 through 11 by not presenting them to the Texas Court of Criminal Appeals for review either on direct appeal or during his state habeas proceedings. Reply at 1-2. With specified exceptions, 28 U.S.C. § 2254(b)(1) prohibits the grant of an application for writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a state court unless he has first exhausted the remedies available to him in the courts of that state.3 In Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998), the Fifth Circuit explained:
A fundamental prerequisite to federal ha-beas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief. A federal habeas petition should be dismissed if state remedies have not
3 Section 2254(b)(1) of title 28 provides as follows:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State correc-tive process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
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been exhausted as to all of the federal court claims.
The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly-presented to the highest state court. In Texas, the highest state court for criminal matters is the Texas Court of Criminal Appeals. A federal court claim must be the “substantial equivalent” of one presented to the state courts if it is to satisfy the “fairly pre-sented” requirement.
(footnotes omitted).
However, because the exhaustion requirement re-fers only to remedies still available at the time of the federal petition, it is satisfied “if it is clear that the ha-beas petitioner’s claims are now procedurally barred under state law.” Gray v. Netherland, 518 U.S. 152, 161 (1996) (internal citations omitted) (quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)); Graham v. Johnson, 94 F.3d 958, 969 (5th Cir. 1996) (“exhaustion is not re-quired if it would plainly be futile”). This is the excep-tion upon which petitioner relies to satisfy the exhaus-tion requirement as to his first eleven claims. If peti-tioner were now to return to state court and attempt to exhaust his first eleven claims for relief, he would be barred from raising those claims in a successive state court application by reasons of the provisions of section 5(a) of article 11.071 of the Texas Code of Criminal Pro-cedure.4
4 Section 5(a) of article 11.071 of the Texas Code of Criminal
Procedure reads as follows:
(a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court
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Nevertheless, such a claim is subject to denial in federal court as procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In Coleman, the court explained:
[9]
This Court will not review a question of federal law decided by a state court if the deci-sion of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.
* * * * *
We have applied the independent and ade-quate state ground doctrine not only in our own
may not consider the merits of or grant relief based on the subsequent application unless the application con-tains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented in a timely initial ap-plication or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;
(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 rea-sonable doubt; or
(3) by clear and convincing evidence, but for a vio-lation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071, 37.0711, or 37.072.
Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a). Petitioner has not attempted to show that any of the section 5(a) exceptions would allow state court review of any of his first eleven claims for relief.
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review of state court judgments, but in decid-ing whether federal district courts should ad-dress the claims of state prisoners in habeas corpus actions. The doctrine applies to bar fed-eral habeas when a state court declined to ad-dress a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judg-ment rests on independent and adequate state procedural grounds.
Id.
Just as in Gray, “the procedural bar which gives rise to exhaustion provides an independent and ade-quate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claims, unless petitioner can demonstrate cause and prejudice for the default.” 518 U.S. at 162. See also Nichols v. Scott, 69 F.3d 1255, 1280 (5th Cir. 1995) (barring claim on basis that claim would be barred in state court if it were presented there).
The showing petitioner is required to make at this time is that he has cause5 for his state court procedural default and has suffered actual prejudice as a result of the alleged violation of federal law or that the failure of this court to consider his claims will result in a funda-mental miscarriage of justice. In Coleman, the Su-preme Court explained:
In all cases in which a state prisoner has defaulted his federal claims in state court pur-
5 To establish “cause,” petitioner must show that “some ob-
jective factor external to the d-fense” prevented him from raising the claim on direct appeal. United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
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suant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demon-strate cause for the default and actual preju-dice as a result of the alleged violation of feder-al law, or demonstrate that failure to consider the claims will result in a fundamental miscar-riage of justice.
501 U.S. at 750.
Petitioner seeks to avoid a procedural bar from federal habeas review of his claims one through eleven by reliance on the holding of the Supreme Court in Martinez v. Ryan, 132 S. Ct. 1309 (2012), arguing that his state habeas counsel’s alleged inadequacies consti-tute, under the Martinez holding, cause to excuse peti-tioner’s procedural default.
The Court held in Martinez that, under the Mar-tinez facts and applicable Arizona state law, “[i]nadequate assistance of counsel at initial review col-lateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial,” Martinez, 132 S. Ct. at 1315. The Court limited the effect of its holding by stating that the rule in Coleman, 501 U.S. at 755, that attorney negligence in post-conviction proceedings does not establish cause “remains true except as to initial-review collateral pro-ceedings for claims of ineffective assistance of counsel at trial,” Martinez, 132 S. Ct. at 1319-21.
[10] Among the reasons why Martinez does not provide comfort to petitioner are the holdings of the Fifth Circuit that Martinez does not apply to a case governed by Texas law. Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012); Adams v. Thaler, 679 F.3d 312, 317 n.4 (5th Cir. 2012).
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B. Even if Martinez Applied, It Would Not Benefit Petitioner
Even if the court were to assume, arguendo, that Martinez applies to petitioner’s unexhausted claims for relief, nevertheless he would be limited out of those to his claims for relief numbers 1 through 7 and 10, which are the ones alleging directly or indirectly ineffective-assistance-of-counsel against his trial counsel. Because of the possibility that the Supreme Court will disagree with the Fifth Circuit on applicability of the Martinez principle to Texas,6 the court is further addressing peti-tioner’s unexhausted claims l through 7 and 10. But first, the court addresses the contention of petitioner that his state habeas counsel was inadequate.
1. Petitioner Has Made No Showing That His State Habeas Counsel Was Not Adequate
For petitioner to successfully invoke Martinez, if it were to be applicable in Texas, he would be required to show that Strickland did not provide him adequate as-sistance of counsel during petitioner’s state habeas pro-ceeding.
Petitioner’s conclusory complaint is that Strickland had conflicts of interest that prevented him from pursu-ing, and even caused him to hinder, the proper litiga-tion of petitioner’s claims in his state habeas petition.
6 The Supreme Court has granted a writ of certiorari in Tre-vino v. Thaler, No. 11-10189, 133 S. Ct. 524 (Oct. 29, 2012), to ad-dress the question of whether the exception to procedural bar cre-ated in Martinez v. Ryan, 132 S. Ct. 1309 (2012), applies to cases arising out of the Texas state courts. The Court has also stayed executions in cases presenting the same issue, but has not acted on the petitions for writ of certiorari in those cases. See Balentine v. Thaler, No. 12-5906 (12A173), 133 S. Ct. 90 (Aug. 22, 2012); Havnes v. Thaler, No. 12-6760 (12A369), 133 S. Ct. 498 (Oct. 18, 2012).
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Pet. at 11-13. Not only does the state habeas record not support petitioner’s conclusory assertions of deficient performance, the record demonstrates that Strickland urged, and fully briefed, eighteen grounds for relief in petitioner’s state habeas petition. State Habeas R. at 3-98. The mere fact that Strickland did not raise an al-legation or allegations that petitioner now contends he should have raised does not render Strickland’s assis-tance ineffective under the Strickland standards. See Smith v. Robbins, 528 U.S. 259, 285 (2000); Jones v. Barnes, 463 U.S. 745, 751-53 (1983); Engle v. Isaac, 456 U.S. 107, 134 (1982). Petitioner’s conclusory, argumen-tative, and factually unsupported attacks on the profes-sional reputation and performance of petitioner’s state habeas counsel do not begin to satisfy the Martinez standard; moreover, the state habeas record affirma-tively demonstrates that Strickland provided petitioner proper, indeed vigorous, state habeas representation. Thus, even if petitioner had the benefit of Martinez, he could not establish cause that would excuse his unex-hausted claims from being procedurally defaulted.
2. Petitioner’s Unexhausted Ineffective Trial Counsel Claims Would Be Found to Be With-out Merit in Any Event
Even if the court were to further assume, arguen-do, the correctness of petitioner’s contentions as to the quality of his state habeas representation, he still would not be entitled to be excused of his procedural bar be-cause the unexhausted claims of ineffective trial coun-sel are meritless. As well as overcoming the hurdle of establishing cause under Martinez, petitioner would also have to show the merits of his underlying claims in order to overcome a procedural default. Martinez, 132 S. Ct. at 1318-19. Petitioner has failed to make such a
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showing as to any of his unexhausted claims that in-cludes an assertion of ineffective trial counsel.
a. Claims for Relief 1 and 10
[11] Petitioner’s claims 1 and 10 bear on the effec-tiveness of his trial counsel at the punishment phase of his trial. Claim for relief 1 is directed to the adequacy of trial counsel’s pretrial mitigation investigation, and claim number 10 complains of trial counsel’s conduct in relation to security measures adopted by the trial court during the punishment phase. Petitioner fails in his pe-tition to demonstrate that trial counsel’s performance was constitutionally ineffective as to either of those matters or that any alleged deficiency had any prejudi-cial effect on the outcome of the punishment phase.
For petitioner to establish that his trial counsel was ineffective by virtue of a failure to investigate, he must do more than merely allege a failure to investigate—he must show, inter alia, “with specificity what the inves-tigation would have revealed and how it would have al-tered the outcome of the trial.” United States v. Green 882 F.2d 999, 1003 (5th Cir. 1989). Strategic choices made by counsel after thorough investigation of law and facts cannot normally be challenged; and, even strategic choices made after an investigation that might be characterized as incomplete are reasonable to the extent that professional judgments, reasonably exer-cised, support the limitations on investigation. Strick-land, 466 U.S. at 699. Trial counsel was not required to investigate every conceivable line of mitigating evi-dence, no matter how unlikely the investigation would assist petitioner at sentencing; nor is trial counsel re-quired to present mitigating evidence at sentencing in every case. Wiggins v. Smith, 539 U.S. 510, 533 (2003). For a conscious and informed decision on trial tactics
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and strategy to form the basis for a claim of ineffective assistance of counsel, the petitioner must show that the strategy was so poor that it robbed him of any oppor-tunity for a fair trial. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002). Of course, trial counsel’s decision to pursue one course rather than another is not to be judged in hindsight; and, the fact that a particular strategy proved to be unsuccessful does not establish that counsel’s assistance was ineffective. Gray v. Lucas, 677 F.2d 1086, 1094 (5th Cir. 1982).
Trial counsel sought and obtained the assistance of an investigator, Bruce Cummings, in February 2006 “with authority to investigate and seek tangible and testimonial evidence from all witnesses having knowledge or not regarding the accusations that may be presented in [petitioner’s] case”. Clerk’s R., Vol. 1 at 16. Around March 2006, trial counsel obtained the services of mitigation specialist Melissa Robinson. Pet. Ex.’s 5, 13.
When Cummings and Robinson were replaced (Robinson due to health problems, Pet. Ex. 6), trial counsel obtained the services of two investigators in January 2008, Cliff Ginn and Doug Lamberson, as re-placement for Cummings, and hired Dr. Kelly Goodness to act as both a mitigation specialist and a forensic psy-chologist. Clerk’s R ., Vol. 1 212-14, Pet. Ex.’s 11-16, 19, 20, 24 at 2-3, 25, 28. The record shows that Ginn, Lam-berson, and Goodness worked diligently at mitigation investigation. Pet. Ex.’s 11-16, 19, 20, 24 at 2-3, 25, 28. Not only does the record contain substantial evidence that trial counsel caused timely and reasonable investi-gation to be conducted, the record shows that nine wit-nesses were called on petitioner’s behalf at the punish-ment hearing.
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[12] Petitioner has provided no evidence that any of the experts employed by petitioner’s trial counsel did not properly perform the services for which they were hired. Petitioner’s conclusory allegations complaining of the conduct of trial counsel in advance of and at the punishment phase of his trial simply are not sufficient to show that petitioner suffered prejudice by reason of any failure on the part of trial counsel in relation to in-vestigation leading to the sentencing process. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (Mere conclu-sory allegations do not raise a constitutional issue in a habeas case); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1993). Having failed to provide any evidence as to what his trial counsel would have discovered by further investigation, or that the investigation done by trial counsel was, in fact, inadequate, petitioner cannot over-come the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, Strickland, 466 U.S. at 687, 689, nor can pe-titioner show that more, or a different, investigation would have altered the outcome.
The complaint petitioner makes by his tenth claim for relief is that his trial counsel did not object to “ex-cessive and prejudicial security measures adopted by the trial court, which were not justified by any essen-tial state interest specific to [him].” Pet. at 151-53. He asserts that the “excessive number of guards,” one of which was holding the control to a taser belt worn by petitioner, was a prejudicial violation to which petition-er’s trial counsel should have, but did not, object. Id.
Petitioner provides no reference to anything in the state court record that would support his recitations concerning the security measures of which he com-plains; and, the court’s independent search has not turned up anything in the record supporting petition-
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er’s factual assertions relative to what he considers to be excessive security measures. Thus, if for no other reason, his tenth claim for relief should be denied as be-ing unsupported factually by anything in the record to which petitioner has called this court’s attention.
The court would add that even if the record did provide factual support for petitioner’s tenth claim for relief, petitioner has provided no factual or legal basis for a conclusion that an objection by his trial counsel to those security measures would have been effective. The case law suggests that any such objection probably would have been futile. See Deck v. Missouri, 544 U.S. 622, 633 (2005); United States v. Joseph, 333 F.3d 587, 591 (5th Cir. 2003) (citing United States v. Hope, 102 F.3d 114, 117 (5th Cir. 1996)). The trial court record makes clear that petitioner had a propensity for vio-lence and had before attempted an escape. Thus, his trial counsel would have gained nothing by an objection to security measures of the kind petitioner describes.
Moreover, petitioner presents nothing showing that his trial counsel’s failure to object to the security measures somehow affected the outcome of petitioner’s trial. Pure speculation that it might have is not suffi-cient to satisfy the prejudice prong of Strickland. Con-sequently, his ineffective assistance claim as to the se-curity measures fails for the additional reason that it does not satisfy either prong of the Strickland test.
b. Claim for Relief 2
[13] Petitioner’s second claim for relief has to do with an alleged conflict of interest that petitioner claims one of his trial counsel had because, twenty years earlier, the trial counsel had represented a third murder victim of petitioner in connection with a bur-
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glary charge.7 Petitioner originally raised that issue with the Texas Court of Criminal Appeals prior to his direct appeal proceedings in a “Motion to Fire Direct Appeal Attorney,” and the Court of Criminal Appeals remanded the case to the trial court to investigate. Wilkins v. State, No. AP-75,878, Per Curiam Order dated February 11, 2009. After conducting a hearing at which trial counsel and petitioner both testified, Rep.’s R. of Mar. 9, 2009, Hr’g at 6-32, the trial court conclud-ed that trial counsel had no conflict of interest notwith-standing his representation of the third murder victim twenty years earlier, id. at 27. Nevertheless, the trial court allowed trial counsel to withdraw as direct appeal counsel and replaced him with another attorney. Id. at 27-28. Petitioner did not request relief on this claim ei-ther on direct appeal or during his state habeas pro-ceeding.
For petitioner to establish that he was denied ef-fective assistance of counsel because of counsel’s con-flict of interest, he was required to prove that (1) coun-sel actively represented conflicting interests, and (2) that an actual conflict of interest adversely impacted his lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980); Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005). If a petitioner fails to make such a showing, he has failed to establish the constitutional predicate for his claim of ineffective assistance of coun-sel. Cuyler, 446 U.S. at 350; see also Mickens v. Taylor, 535 U.S. 162, 175-76 (2002).
7 At the punishment phase of petitioner’s trial, there was evi-
dence, including petitioner’s confession, that petitioner murdered the other victim two days prior to committing the murders for which he was tried.
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Here, petitioner could not possibly demonstrate that trial counsel actively represented conflicting inter-ests since the murder victim he had represented was deceased and had not been represented by trial counsel in twenty years. Pet. Ex. 24 at 4. Nor has any evi-dence been adduced by petitioner that his trial counsel had any relationship with the murder victim’s family or that he even remembered representing the murder vic-tim. Id. Finally, there is no suggestion in anything ad-duced by petitioner that, even if trial counsel’s repre-sentation of the murder victim could be considered a conflicting interest, it adversely affected his legal rep-resentation of petitioner.
Petitioner’s second claim for relief would be with-out merit even if he were permitted to pursue it.
c. Claim for Relief 3
Petitioner’s third claim for relief relates to the same unindicted murder that was the subject of his second claim for relief. The complaint this time is that petitioner was de facto without counsel during the hearing that was convened to ascertain whether trial counsel had a conflict of interest affecting the adequacy of his representation of petitioner. As is true of his second claim conflict-of-interest allegation, petitioner never raised the allegation under discussion either on direct appeal or during his state habeas proceeding. This claim is without merit because the pre-appeal hearing about which petitioner complains was not at a critical stage.
[14] While the Sixth Amendment provides that in all criminal prosecutions, the accused enjoys the right to have the assistance of counsel for his defense, it is settled that the Amendment means that “a defendant is entitled to be represented by counsel at all critical
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stages of a criminal proceeding against him.” Mempa v. Rhay, 389 U.S. 128, 134 (1967); see also United States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991). The Supreme Court has made clear that a “critical stage” in the pro-ceedings is only one at which “rights are preserved or lost.” White v. Maryland, 373 U.S. 59, 60 (1963). Fifth Circuit law is that critical stages of a criminal proceed-ing are those stages of a proceeding at which “the sub-stantial rights of a defendant may be affected.” McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011); Burdine v. Johnson, 262 F.3d 336, 347 (5th Cir. 2001). At the hear-ing of which petitioner complains, no substantial rights were affected, and no rights were “preserved or lost.” Wright, 373 U.S. at 60. The goal of the hearing was solely to determine whether petitioner’s trial counsel should continue representing him on direct appeal. See Wilkins v. State, No. AP-75,878, Per Curiam Order dated February 11, 2009.
Moreover, petitioner hardly has basis to complain of his representation at the hearing because he ended up receiving what he was seeking—new counsel on his appeal. Petitioner cannot legitimately claim that any-thing happened that would render “the adversary pro-cess itself unreliable.” United States v. Russell, 205 F.3d at 768, 771 (5th Cir. 2000).
Petitioner’s third claim would fail for lack of merit even if it could be urged notwithstanding its lack of ex-haustion.
d. Claim for Relief 4
By his fourth claim for relief, petitioner advances the somewhat absurd contention that his plea of not guilty was not voluntary and that his trial counsel knew that he wished to plead guilty but insisted on going forward with a trial so that the attorneys would benefit
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financially from the trial. The court does not need to devote significant time or space to this claim. No harm came to petitioner from having gone to trial notwith-standing a wish to plead guilty, if he had such a wish, because the end result was the same—the jury found him guilty of capital murder, just as he would have been found guilty of capital murder if he had pleaded guilty. Therefore, this claim for relief would be without merit even if it could be asserted.
e. Claim for Relief 5
Petitioner’s fifth claim for relief asserts that he was not competent to enter a plea or to stand trial because he “lacked the ability to protect his own interests, was self-destructive and incapable of making a reasoned choice between legal strategies and options.” Pet. at 118. Yet, not the slightest probative evidence has been presented, or suggested, in support of such a conten-tion. His reference to what he refers to as bad deci-sions he made prior to the trial and to two reports indi-cating he had some neuropsychological deficits does not satisfy the burden he had “to positively, unequivocally, and clearly generate a real, substantial and legitimate doubt as to his mental competency at the time of trial.” Dunn v. Johnson, 162 F.3d 302, 306 (5th Cir. 1998) (in-ternal quotations omitted). See also Carter v. Johnson, 131 F.3d 452, 460 (5th Cir. 1997). Petitioner’s threshold burden to successfully urge such a ground is “extreme-ly heavy.” Miller-El v. Johnson, 261 F.3d 445, 454 (5th Cir. 2001), rev’d on other grounds, 537 U.S. 322 (2003); Johnson v. Estelle, 704 F.2d 232, 238 (5th Cir. 1983). Not only must petitioner present enough probative ev-idence to raise a substantial doubt as to his competency at the time of trial, he must then prove his incompeten-cy by a preponderance of the evidence. Moody v. John-son, 139 F.3d 477, 481 (5th Cir. 1998).
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[15] The two-part test for competence is (1) wheth-er the defendant has “a rational as well as factual un-derstanding of the proceedings against him” and (2) whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of ra-tional understanding.” Indiana v. Edwards, 554 U.S. 164, 170 (2008) (citing Dusky v. United States, 362 U.S. 402 (1960) (emphasis in original).
If the evidence before the trial court presents a bo-na fide doubt as to a defendant’s competency, proce-dural due process requires the trial court to hold a competency hearing before proceeding with trial. Pate v. Robinson, 383 U.S. 375, 385 (1966). A bona fide doubt is a real, substantial, and legitimate doubt. Pedrero v. Wainwright, 590 F.2d 1383, 1388 (5th Cir. 1979). A habeas petitioner carries the burden of show-ing by clear and convincing evidence that a Pate viola-tion occurred at the state criminal proceeding. On col-lateral review, the test is “whether, in light of what was then known [by the state trial court], the failure to make further inquiry into [petitioner’s] competence to stand trial, denied him a fair trial.” Drope v. Missouri, 420 U.S. 162, 174-75 (1975).
Petitioner does not adduce any evidence to indicate that either a Dusky or a Pate violation occurred in peti-tioner’s case. The mere fact that a defendant made poor decisions does not make him incompetent to stand trial. If it did, almost any defendant could avoid prose-cution simply by pointing to all the bad decisions he made during his life. While petitioner’s behavior prior to and during trial demonstrated a blatant disregard for authority and of the proceedings against him, his behavior cannot be said to constitute proof of his inabil-ity to understand the proceedings or consult with his attorneys.
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Even if it could be raised, petitioner’s claim number 5 would be without merit.
f. Claims for Relief 6 and 7
Petitioner’s sixth and seventh claims contend that his trial counsel was ineffective at the guilt/innocence phase of his trial. The sixth claim makes the broad as-sertion that his counsel failed to conduct a reasonable pretrial preparation and investigation, and his seventh claim attributes ineffectiveness to his counsel for not striking two venirepersons who petitioner now con-tends were unable to render an impartial verdict or sentence. In addition to the procedural bar previously discussed, these claims must fail because petitioner does not demonstrate how counsel’s alleged inaction resulted in a deprivation of the right to effective assis-tance of counsel under the Strickland standard.
As to the general failure to prepare and investigate for trial claim, petitioner virtually admits that his peti-tion is deficient, contending that he “is not currently in a position to allege any specific claim” due to reasons beyond his control. Pet. at 135-36. He fails to provide any evidence as to what his trial counsel should have discovered, and he fails to demonstrate that the inves-tigation done by his trial counsel was in fact deficient. Jordan v. Dretke, 416 F.3d 363, 371 (5th Cir. 2005) (con-firming that the burden of affirmatively proving preju-dice rests with the petitioner and that the state does not have the burden to disprove prejudice). Petitioner has not overcome the strong presumption that counsel’s pretrial conduct came within the wide range of reason-able professional assistance, nor has he provided evi-dence that the result of his proceeding would have been different absent any alleged deficiency. Consequently, he cannot satisfy either prong of Strickland.
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[16] Similarly, petitioner has failed to make any showing that his trial counsel’s performance was defi-cient in respect to non-use of peremptory challenges on the two jurors to which he refers in his seventh claim. He has failed to offer any proof that “counsel’s repre-sentation fell below an objective standard of reasona-bleness under then-prevailing professional standards.” Richards v. Ouarterman, 566 F.3d 553, 564 (5th Cir. 2009) (internal quotation marks and citations omitted). For a court to determine whether trial counsel’s failure to strike a particular juror constitutes deficient per-formance, the court must first evaluate whether the ju-ror at issue was actually biased. Virgil v. Dretke, 446 F.3d 598, 608-10 (5th Cir. 2006); see also Seigfried v. Greer, 372 F. App’x 536, 539 (5th Cir. 2010) (un-published). The determination of a potential juror’s bi-as centers on a juror’s own indication that he has “such fixed opinions that he cannot judge impartially re-spondent’s guilt.” Patton v. Yount, 467 U.S. 1025, 1035 (1984). Failing such a showing, a petitioner cannot demonstrate that he was denied his Sixth Amendment right to a fair and impartial jury. See Smith v. Phillips, 455 U.S. 209, 215 (1985). Petitioner has failed to make the required showings as to either of the jurors about which he has complained.
C. Conclusion as to Petitioner’s Unexhausted Claims for Relief
None of petitioner’s unexhausted claims for relief can be pursued in this federal habeas action unless peti-tioner can demonstrate cause and prejudice for his pro-cedural default as to the claim. He does not contend that the failure of this court to consider his unexhaust-ed claims would result in a fundamental miscarriage of justice. Rather, he pitches his plea for consideration of his unexhausted claims on his theory that state habeas
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counsel was inadequate, that Martinez applies in Texas so that the inadequacy of state habeas counsel satisfies the cause feature of his cause and prejudice prerequi-sites, and that he was prejudiced by his state habeas counsel’s failures to raise in his state habeas application his claims for relief 1 through 11. Petitioner’s theory for avoiding the bar related to his unexhausted claims is faulty in multiple respects.
First, the Fifth Circuit has held that Martinez does not apply to a federal habeas petition arising from a Texas conviction. Therefore, Martinez does not provide the “cause” that is so essential to petitioner’s theory. Second, even if Martinez did apply, petitioner has failed to show that Strickland, his state habeas counsel, did not provide him adequate representation in the prose-cution of his state habeas application. Third, even if Martinez were assumed to be applicable in Texas and Strickland’s state habeas representation were assumed to have been inadequate, Martinez would provide cause only as to the unexhausted claims that assert ineffec-tive assistance of trial counsel, which would be limited to his claims for relief 1 through 7 and 10; and, petition-er’s claims for relief 1 through 7 and 10 are not shown by petitioner to have merit, with the consequence that he would have failed to carry his burden of establishing prejudice even if he had satisfied the cause feature of his cause and prejudice burden.8 Thus, for multiple
8 The court is not addressing further petitioner’s unexhausted
claims for relief 8, 9, and 11, none of which remotely involve a con-tention of ineffective assistance by trial counsel, other than to note that the court’s review of those claims causes the court to conclude that even if they legitimately could be presented in this federal habeas petition, they would be without merit. The court has con-sidered, and rejects, petitioner’s argument (which assumes ap-plicability of Martinez ) that Maples v. Thomas, 132 S. Ct. 912
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reasons, petitioner must be denied any relief based on his unexhausted claims for relief.
VI.
Petitioner’s Exhausted Claims for Relief
[17] Petitioner devotes only 28 pages of his 193-page petition to discussion of his exhausted claims for relief 12 through 21. In petitioner’s reply to respond-ent’s answer to the petition, petitioner, in effect, argues that none of the exhausted claims for relief has merit. Reply at 4-5. His lack of merit contentions as to the unexhausted claims are summed up in his reply with the statement that “[t]he state habeas application as filed therefore stood literally no chance of success.” Reply at 5. That petitioner does not take the exhausted claims for relief seriously, and is not asking this court to do so, is further evidenced by the fact that he makes no further mention of any of them in his 101-page reply to respondent’s answer, even though respondent included in its answer a response to each of those claims. Given petitioner’s lack of interest in his claims 12 through 21, the court is not devoting in this memorandum opinion significant space to a discussion of those claims. The court starts with a reminder that a petition under § 2254
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(2012), provides an avenue for this court to consider petitioner’s unexhausted claims even though they do not urge ineffective assis-tance of trial counsel. The court concludes that petitioner is in er-ror in making such a contention because Maples simply would not apply to this case even if petitioner’s state habeas counsel had not performed properly.
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(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as de-termined 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.
28 U.S.C. § 2254(d). Petitioner has not shown that any of the state court’s adjudications of petitioner’s claims for relief 12 through 21 resulted in a decision that (1) “was contrary to, or involved an unreasonable applica-tion of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. Therefore, all of petitioner’s ex-hausted claims must be denied.
VII.
Conclusion and Order
For the reasons given above, all relief petitioner seeks by his petition must be denied. Petitioner has provided nothing to support the relief he seeks by parts (a), (b), (c), and (d) on page 192 of his petition. Nor has he provided a valid basis for granting any of his claims for relief. Therefore,
The court ORDERS that all relief sought by the Petition for Writ of Habeas Corpus by a Person Sen-tenced to Death filed by petitioner on May 22, 2012, be, and is hereby, denied.
SIGNED January 29, 2013.
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/s/ John McBryde JOHN McBRYDE United States District Judge
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APPENDIX C
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS,
After having considered the application of petition-er, Christopher Chubasco Wilkins, for authorization of funds for expert and investigative assistance filed May 25, 2012, the response thereto of respondent, Rick Tha-ler, Director, Texas Department of Criminal Justice, Correctional Institutions Division, filed June 8, 2012, and petitioner’s reply filed June 18, 2012, the court con-cludes that it is unable to find that the requested inves-tigative, expert, and other services for which petitioner has sought funding are reasonably necessary for the representation of petitioner in this 28 U.S.C. § 2254 proceeding. Therefore
The court ORDERS that such application be, and is hereby, denied.
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SIGNED June 19, 2012.
/s/ John McBryde JOHN McBRYDE United States District Judge
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APPENDIX D
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS,
FORT WORTH DIVISION
No. 11-cv-72
CHRISTOPHER CHUBASCO WILKINS, Plaintiff,
v.
RICK THALER, DIRECTOR, TDCJ-CID, Defendant.
February 24, 2011
TRANSCRIPT OF TELEPHONE CONFERENCE BEFORE THE HONORABLE JOHN McBRYDE
UNITED STATE DISTRICT COURT JUDGE
* * *
[4]
THE COURT: Okay. We set this up because Mr. Stickels sent me a letter a few days ago—and it shows he sent a copy to Mr. Wilkins and to Mr. Greenwell—saying that Mr. Greenwell (sic) wants to wait a while before he actually files a federal petition for Writ of Habeas Corpus and was willing to have this telephone conversation, rather than to come to Fort Worth for a hearing, and I appreciate that, Mr. Wilkins. I think that saves us all some time, your willingness to do that.
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Tell me, Mr. Stickels, what conversation you’ve had with Mr. Wilkins about the time element of the filing of his writ?
MR. STICKELS: I discussed with Mr. Wilkins the fact that he has a one-year time period from the date his conviction becomes final, either by the Supreme Court denying the Writ of Certiorari, or the Court of Criminal Appeals denying his Writ of Habeas Corpus, and that would be about 12 months from now.
I told Mr. Wilkins the Court’s procedure about [5] entering a scheduling order with some pretty close deadlines, more than the—I told him that he could wait for about eight, nine months, and then we could request an attorney be appointed and that way he would save that time on his federal writ.
Those are the facts I discussed with him.
THE COURT: Okay. You understand what he’s talking about, Mr. Wilkins?
MR. WILKINS: Yes, sir, I believe I do.
THE COURT: If we go forward now, I’ll sign an order that requires the writ be filed—or the petition for writ be filed within 45 days, and we move pretty fast. We rule on them real fast because I think that’s the proper thing to do, which means that there could be a ruling in maybe two or three months.
But if you wait, as Mr. Stickels suggests, until clos-er to the end of that one-year period, then it just gives you that much more time.
Is that what you want to do?
MR. WILKINS: Yes, sir.
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THE COURT: Okay. Mr. Stickels, for us to accom-plish that, you’ll need to file a motion to dismiss—you’ll either need to file a document withdrawing the motion you have already filed—actually you filed a motion and brief for appointment of counsel. I think probably [6] what you need to do is file a motion asking that that be dismissed.
MR. STICKELS: Yes, sir, I will get that done.
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APPENDIX E
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS,
The above-captioned action was initiated by the fil-ing on February 7, 2011, of a motion for a appointment of counsel by petitioner, Christopher Chubasco Wilkins, acting through John W. Stickels (“Stickels”). On March 8, 2011, petitioner, acting through Stickels, filed a mo-tion to abate, without prejudice, his request for ap-pointment of counsel. Taking into account discussions had during a telephone conference conducted February 24, 2011, with petitioner, Stickels, and counsel for re-spondent on the line, the court is interpreting the mo-tion to abate as a motion to withdraw the motion for appointment of counsel filed February 7, 2011. Such a withdrawal terminates the above-captioned action. Therefore,
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The court ORDERS that such motion and the above-captioned action be, and are hereby, dismissed without prejudice.
The court assumes that the petitioner has in mind that he will renew in a timely manner his attempts to seek relief under 28 U.S.C. § 2254. If he does, and if he wishes at that time to be represented by a court-appointed attorney, he should bear in mind that he must, in addition to seeking court-appointed counsel, provide proof of his eligibility for counsel appointed by the court to represent him in a § 2254 proceeding.
SIGNED March 8, 2011
/s/ John McBryde JOHN McBRYDE United States District Judge
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APPENDIX F
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS,
The above-captioned action was initiated by the fil-ing of several papers by petitioner, Christopher Chu-basco Wilkins, acting through his attorney, Hilary Sheard (“Sheard”), on May 1, 2012, including petition-er’s motion to proceed in forma pauperis for the pur-pose of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which has been granted, and an entry of appearance by Sheard informing the court that she has entered an appearance on behalf of petitioner for the purpose of a petition for writ of habeas corpus pur-suant to 28 U.S.C. § 2254. Consistent with the court’s normal practices in § 2254 death penalty habeas cases,
The court ORDERS that:
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(1) Petitioner file, by June 22, 2012, his 28 U.S.C. § 2254 petition for writ of habeas corpus, presenting therein only grounds that have been exhausted in the state court,
(2) Respondent file his response1 to such petition within 30 days after the filing of such petition;
(3) If petitioner desires to reply to respondent’s response, he shall do so within fifteen days after the fil-ing of such response.
* * *
SIGNED May 2, 2012
/s/ John McBryde JOHN McBRYDE United States District Judge
1 Respondent is cautioned not to file a motion for summary
judgment in response to the petition, as such a motion does not fit into the scheme of review of petitions filed under 28 U.S.C. § 2254. The court considers the proceeding to be more in the nature of an appeal; that is, there is a petition and a response. See Rules 2 and 5 of the Rules Governing § 2254 Cases in the United States Dis-trict Courts, 28 U.S.C. foll. § 2254.
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APPENDIX G
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS,
On May 1, 2012, petitioner, Christopher Chubasco Wilkins, acting through his attorney, Hilary Sheard, filed a document titled:
PETITIONER CHRISTOPHER CHUBASCO WILKINS’ MOTION FOR, AND BRIEF IN SUPPORT OF MOTION:
(1) FOR A SCHEDULING ORDER THAT GIVES EFFECT TO
MARTINEZ v. RYAN, 132 S. CT. 1309 (2012) AND MAPLES v. THOMAS, 132 S. CT. 92 (2012), AND
(2) FOR LEAVE TO FILE AN EX PARTE SEALED REQUEST
FOR NECESSARY FUNDS FOR EXPERT AND INVESTIGATIVE
ASSISTANCE.
The court has not been persuaded that there is any reason for the entry of a scheduling order other than
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the one the court already has issued. Therefore, the request for a scheduling order is being denied.
Before making a decision on petitioner’s request for leave to file an ex parte sealed request for necessary funds for expert investigative assistance, the court is requiring a response from respondent as to that feature of petitioner’s motion. For the reasons given below, the court tentatively has concluded that an ex parte filing of such motion should not be permitted.
As this court explained in United States v. Ray-bould:
The public has a common-law right to in-spect and copy judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978); S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). This access to ju-dicial records is not absolute, but a district court’s discretion to seal the record of a pro-ceeding “is to be exercised charily.” Van Wae-yenberghe, 990 F.2d at 848 (quoting Federal Sav. & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987)). Public access to judicial records “serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete un-derstanding of the judicial system, including a better perception of its fairness.” Id. at 849 (quoting Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988)).
This common-law rule has been referred to as a “strong common law presumption in favor of public access to court proceedings and rec-ords.” Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983), cert.
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denied, 465 U.S. 1100 (1984). In Brown & Wil-liamson, the Court said about the common-law rule (as well as the right under the First Amendment of the Constitution of the United States to have access to judicial proceedings) that information contained in court documents “often provide[s] important, sometimes the on-ly, bases or explanations for a court’s decision.” Id. at 1177. “Without access to the proceed-ings, the public cannot analyze and critique the reasoning of the court.” Id. at 1178.
In Richmond Newspapers, Inc. v. Virginia, the Supreme Court explained that “a presump-tion of openness inheres in the very nature of a criminal trial under our system of justice.” 448 U.S. 555, 573 (1980) (plurality opinion). Among the guarantees of the First Amendment is the right of the public to attend criminal trials, without which “important aspects of freedom of speech and ‘of the press could be eviscerated.’” Id. at 580 (quoting Branzberg v. Hayes, 408 U.S. 665, 681 (1972)). In Globe Newspaper Co. v. Superior Court, the Supreme Court ex-plained that “[u]nderlying the First Amend-ment right of access to criminal trials is the common understanding that ‘a major purpose of that Amendment was to protect the free dis-cussion of governmental affairs.’” 457 U.S. 596, 604 (1982) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Public criminal proceedings ensure that “judge and prosecutor carry out their duties responsibly.” Waller v. Georgia, 467 U.S. 39, 46 (1984).
The right to openness in criminal proceed-ings may give way in certain cases to other
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rights or interests, such as the government’s interest in inhibiting disclosure of sensitive in-formation; but, “[s]uch circumstances will be rare, however, and the balance of interests must be struck with special care.” Id. at 45. “The knowledge that every criminal trial is subject to contemporaneous review in the fo-rum of public opinion is an effective restraint on possible abuse of judicial power”; and, “[w]ithout publicity, all other checks are insuf-ficient: in comparison of publicity, all other checks are of small account.” In re Oliver, 333 U.S. 257, 270-71 (1948).
Openness in judicial proceedings “gives as-surance that established procedures are being followed and that deviations will become known,” enhancing “both the basic fairness of the criminal trial and the appearance of fair-ness so essential to public confidence in the sys-tem.” Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 508 (1984). The Supreme Court explained, in the context of a criminal ju-ry proceeding, what sometimes is referred to as ?community therapeutic value,” saying:
Criminal acts, especially violent crimes, often provoke public concern, even out-rage and hostility; this in turn gener-ates a community urge to retaliate and desire to have justice done. See T. Reik, The Compulsion to Confess 288-295, 408 (1959). Whether this is viewed as retribution or otherwise is irrele-vant. When the public is aware that the law is being enforced and the crim-inal justice system is functioning, an
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outlet is provided for these under-standable reactions and emotions. Pro-ceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceed-ings vindicate the concerns of the vic-tims and the community in knowing that offenders are being brought to ac-count for their criminal conduct by ju-rors fairly and openly selected. See United States v. Hasting, 461 U.S. 499, 507 (1983); Morris v. Slappy, 461 U.S. 1, 14-15 (1983).
“People in an open society do not demand infallibility from their institu-tions, but it is difficult for them to ac-cept what they are prohibited from ob-serving.” Richmond Newspapers [Inc. v. Virginia, 448 U.S. 555,] 572 [ (1980)].
Id. at 508-09. The Supreme Court added that “[c]losed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.” Id. (footnote omitted).
For the presumption of openness in crimi-nal proceedings to be overcome, an overriding interest must be shown, and any order denying openness must be “based on findings that clo-sure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. at 510. After having recognized the First Amendment right of access to the records of criminal proceedings, the Fifth Circuit conclud-ed in United States v. Edwards that “if closure
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of a presumptively open proceeding is to with-stand a first amendment challenge … the court [must] make specific, on-the-record, factfind-ings demonstrating that a substantial probabil-ity exists that an interest of a higher value will be prejudiced and that no reasonable alterna-tives to closure will adequately protect that in-terest.” 823 F. 2d 111, 119 (5th Cir. 1987), cert. denied, 485 U.S. 934 (1988).
130 F. Supp. 2d 829, 831-833 (N.D. Tex. 2000). See, also, United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 690 (5th Cir. 2010) (“Public confidence [in our judicial system] cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court’s decision sealed from public view.”).
The taxpaying public has a vital interest in know-ing the uses to be made of public funds in the protection of the interests of criminal defendants, including those who are trying to avoid execution of a sentence of death. In this case, petitioner, by his proposed ex parte application, is seeking almost $92,000 for appointment of what petitioner describes as persons having the ex-pertise needed to delve into matters that petitioner ap-parently maintains could form the basis for the presen-tation of grounds for habeas relief in a federal petition, perhaps in disregard of the legal principles establishing the constraints of a federal petition for writ of habeas corpus filed under 28 U.S.C. § 2254, including the pro-hibition against raising unexhausted grounds in a fed-eral petition for habeas corpus under § 2254.
Not only does the public have an interest in learn-ing of the requests petitioner is making in his proposed
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ex parte application, respondent presumably has an in-terest in the sense that he would prefer that unlimited federal resources not be made available to petitioner and his pro bono counsel for multiple fishing expedi-tions in an attempt to come up with what might be pre-sented as exceptions to the § 2254 constraints, thus subjecting respondent to the inconvenience and ex-pense of responding to what could well be frivolous claims. The court would benefit from an informed re-sponse by respondent.
The tentative conclusion of the court that petition-er’s request for an ex parte filing and presentation of his application for funding should be denied takes into consideration the court’s obligation, as trustee of the public’s funds, to see that excessive and unnecessary payments out of public funds are not authorized. See United States v. Nichols, 184 F.3d 1169, 1171-72 (10th Cir. 1999). The statute pursuant to which payment of “[f]ees and expenses for investigative, expert, and oth-er reasonably necessary services” is authorized pro-vides that such fees and expenses “shall not exceed $7,500 in any case, unless payment in excess of that lim-it is certified by the court as necessary to provide full compensation for services of an unusual character or duration, and the amount of the excess payment is ap-proved by the chief judge of the circuit.” 18 U.S.C. § 3599(g)(2). The court does not think it can make such a certification in this action.
When a defense attorney submits a voucher re-questing compensation and reimbursement for expens-es, “that attorney is making a direct claim upon the lim-ited resources of the U.S. Treasury.” United States v. Smith, 76 F. Supp. 2d 767, 768 (S.D. Tex. 1999). There-fore, the court “has an inherent obligation to scrutinize those requests, make necessary adjustments, and thus
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safeguard these taxpayer provided funds.” Id. Pay-ment should not be approved for unproductive time. United States v. Cook, 628 F. Supp. 38, 42 (D. Colo. 1985). A response by respondent to the request for funds would assist the court in the performance of the court’s duty of oversight.
Moreover, the statute that authorizes payment by the government of investigative, expert, or other ser-vices that are reasonably necessary for the representa-tion of the defendant expressly provides that “[n]o ex parte proceeding, communication, or request may be considered pursuant to this section unless a proper showing is made concerning the need for confidentiali-ty.” 18 U.S.C. § 3559(f). The court is not satisfied that such a showing has been made by petitioner.
Therefore,
The court ORDERS that all relief sought by such motion be, and is hereby, denied except as to the re-quest for leave to file an ex parte sealed request for necessary funds for expert and investigative assistance; and
The court further ORDERS that respondent file by May 17, 2012, a response to petitioner’s request for leave to file an ex parte sealed request for necessary funds for expert and investigative assistance.
SIGNED May 3, 2012
/s/ John McBryde JOHN McBRYDE United States District Judge
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APPENDIX H
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS,
After having considered the motion filed by peti-tioner, Christopher Chubasco Wilkins, on November 7, 2012, to stay adjudication of petitioner’s petition for writ of habeas corpus pending decision of the United States Supreme Court in Trevino v. Thaler, the opposi-tion thereto of respondent, Rick Thaler, Director, Texas Department of Criminal Justice, Correctional Institu-tions Division, petitioner’s reply, and pertinent legal authorities, the court has concluded that such motion should be, and is hereby, denied.
THE COURT SO ORDERS.
SIGNED November 30, 2012
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/s/ John McBryde JOHN McBRYDE United States District Judge
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APPENDIX I
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS,
After having considered the motion filed by peti-tioner, Christopher Chubasco Wilkins, on February 25, 2013, to vacate, alter, or amend judgment denying peti-tion for writ of habeas corpus, the response thereto of respondent Rick Thaler, Director, Texas Department of Criminal Justice, Correctional Institutions Division, and pertinent parts of the record, the court has con-cluded that such motion should be denied. Therefore,
The court ORDERS that such motion be, and is hereby, denied.
As to the request made by petitioner in the prayer of his motion that the court grant him a certificate of appealability,
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The court further ORDERS that a certificate of appealability be, and is hereby, denied as petitioner has failed to make a substantial showing of the denial of a constitutional right.
SIGNED March 5, 2013
/s/ John McBryde JOHN McBRYDE United States District Judge
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APPENDIX J
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 13-70014
CHRISTOPHER CHUBASCO WILKINS, Petitioner-Appellant,
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION, Respondent-Appellee.
Appeal from the United States District Court for the
(X) The Petition for Rehearing is DENIED and no member of this panel nor judge in regular ac-tive service on the court having requested that the court be polled on Rehearing En Banc,
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(FED R. APP. P. AND 5TH CIR. R. 35) the Peti-tion for Rehearing En Banc is also DENIED.
* * *
ENTERED FOR THE COURT:
/s/ [illegible] UNITED STATES CIRCUIT JUDGE
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APPENDIX K
18 U.S.C. § 3599—Counsel for financially unable defendants
(a) …
(2) In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other rea-sonably necessary services shall be entitled to the ap-pointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).
* * *
(f) Upon a finding that investigative, expert, or other services are reasonably necessary for the repre-sentation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such ser-vices on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor under subsection (g). No ex parte proceeding, commu-nication, or request may be considered pursuant to this section unless a proper showing is made concerning the need for confidentiality. Any such proceeding, commu-nication, or request shall be transcribed and made a part of the record available for appellate review.
(g)(1) Compensation shall be paid to attorneys ap-pointed under this subsection at a rate of not more than $125 per hour for in-court and out-of-court time. The Judicial Conference is authorized to raise the maximum for hourly payment specified in the paragraph up to the aggregate of the overall average percentages of the ad-
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justments in the rates of pay for the General Schedule made pursuant to section 5305 of title 5 on or after such date. After the rates are raised under the preceding sentence, such hourly range may be raised at intervals of not less than one year, up to the aggregate of the overall average percentages of such adjustments made since the last raise under this paragraph.
(2) Fees and expenses paid for investigative, ex-pert, and other reasonably necessary services author-ized under subsection (f) shall not exceed $7,500 in any case, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge, if the services were rendered in connection with the case disposed of entirely before such magistrate judge, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.
(3) The amounts paid under this paragraph for services in any case shall be disclosed to the public, after the disposition of the petition.
28 U.S.C. § 2253—Appeal
* * *
(c)(1) Unless a circuit justice or judge issues a cer-tificate of appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceed-ing in which the detention complained of arises out of process issued by a State court; or
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(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substan-tial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
