John Battaglia v. William Stephens, Director ( 2015 )

Case: 13-70035 Document: 00513115920 Page: 1 Date Filed: 07/15/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-70035 FILED
July 15, 2015
Lyle W. Cayce
JOHN DAVID BATTAGLIA Clerk
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 Northern District of Texas
USDC No. 3:09-CV-1904
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
John Battaglia was sentenced to death by a Texas jury and seeks
habeas relief. He requests a Certificate of Appealability (COA) to appeal the
district court’s denial of his claim that state trial counsel ineffectively failed
to question jurors about their openness to considering mental health
evidence. He also asks for leave to develop potential new ineffective
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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assistance of counsel claims that would have been procedurally defaulted
prior to Trevino v. Thaler. 1 We DENY Mr. Battaglia’s requests.
I.
The facts were ably explained by the magistrate judge and adopted by
the district court. 2 We repeat them only as necessary. Mr. Battaglia was
sentenced to death for killing his two young daughters. There was evidence at
trial that he suffered from severe bipolar disorder. His conviction and death
sentence were affirmed on direct appeal. 3 In state post-conviction
proceedings, Mr. Battaglia argued that trial “counsel made no or only
minimal attempts to determine the venire members’ attitudes regarding
whether mental illness played any role as a mitigating factor.” The initial
state habeas court found that this claim was drawn entirely from the
appellate record and thus procedurally barred by Texas law because it should
have been raised on direct appeal. 4 It also denied the claim in the alternative
on the merits. 5 The Court of Criminal Appeals (CCA) adopted the Texas
district court’s opinion. 6
Mr. Battaglia then filed for habeas relief in federal court. He again
argued trial counsel were ineffective because they “failed to adequately
question the venire about their views on mental illness as mitigation.” The
magistrate judge recommended rejecting the claim on the merits, reasoning
that because the state court found the questions would have been improper
1 133 S.Ct. 1911 (2013).
2 Battaglia v. Stephens, 3:09-CV-1904-B, 2013 WL 5570216, at *9-10 (N.D. Tex. Oct.
9, 2013).
3 Battaglia v. State, AP-74,348, 2005 WL 1208949 (Tex. Crim. App. May 18, 2005)
(unpublished).
4 Ex Parte Battaglia, No. W01-52159-H(A), at 13-14 (Crim. Dist. Ct. No. One, Dallas
Cty. Tx. Aug. 6, 2008), available at W.R. 494.
5 Id. at 26-31, 37-38.
6 Ex Parte Battaglia, WR-71,939-01, 2009 WL 3042925, at *1 (Tex. Crim. App. Sept.
23, 2009) (unpublished).
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under state law, counsel could not have been ineffective in failing to ask
them. 7 The district court adopted this recommendation, denied the habeas
petition, and denied a COA. 8
II.
To obtain leave to appeal the district court’s denial of his habeas
petition, Mr. Battaglia “need only demonstrate ‘a substantial showing of the
denial of a constitutional right.’” 9 To do so, he “must sho[w] that reasonable
jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” 10 “The issue is ‘the debatability of the
underlying constitutional claim, not the resolution of the debate.’” 11 Though
this standard is forgiving, it must be viewed in conjunction with the
restrictions of the Antiterrorism and Effective Death Penalty Act (AEDPA)
and the standards governing the underlying constitutional question. 12
Mr. Battaglia’s constitutional claim is that trial counsel were
ineffective because they failed to adequately question potential jurors about
their openness to evidence of bipolar disorder during voir dire. To prove an
ineffective assistance of counsel (IAC) claim, Mr. Battaglia must show “(1)
that counsel’s performance was deficient; and (2) that such deficient
performance prejudiced the defense.” 13 Under AEDPA, when state courts
deny a habeas claim on the merits, federal courts may not grant relief unless
the state court decision:
7 Battaglia, 2013 WL 5570216, at *24-25.
8 Id. at *5-6, 9.
9 Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (quoting 28 U.S.C. § 2253(c)(2)).
10 Id. at 336 (internal quotation marks omitted) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)).
11 Beatty v. Stephens, 759 F.3d 455, 461 (5th Cir. 2014) (quoting Miller-El, 537 U.S.
at 342).
12 Id. at 462-63.
13 Id. at 462 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding. 14
Since Mr. Battaglia has not challenged the state court’s fact findings, the
relevant question before the district court was “whether the state court’s
application of the Strickland standard was unreasonable.” 15 The district
court determined that it was not.
We now ask whether reasonable jurists could debate the district court’s
determination that habeas relief was not warranted. Combining the
Strickland, AEDPA, and COA standards, Mr. Battaglia is entitled to a COA if
reasonable jurists could debate whether the state habeas court’s finding that
there was no Strickland violation was contrary to, or an unreasonable
application of, clear Supreme Court law.
III.
a. Procedural Bar
The CCA rejected Mr. Battaglia’s claim that “counsel made no or only
minimal attempts to determine the venire members’ attitudes regarding
whether mental illness played any role as a mitigating factor” on both
procedural and merits grounds. “A state court’s invocation of a procedural
rule to deny a prisoner’s claims precludes federal review of the claims if,
among other requisites . . . the rule is firmly established and consistently
followed.” 16 Review of Mr. Battaglia’s claim is not barred because Texas
courts have not consistently applied the rule that matters based entirely on
14 28 U.S.C. § 2254(d).
15 Beatty, 759 F.3d at 463 (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)).
16 Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012).
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the appellate record should be raised on direct appeal. 17 The Supreme Court
has extensively discussed the ways in which “Texas courts in effect have
directed defendants to raise claims of ineffective assistance of trial counsel on
collateral, rather than on direct, review.” 18 The state has not challenged the
district court’s finding of inconsistency, instead arguing that Mr. Battaglia
has not made a substantial showing of the denial of a constitutional right.
b. Debatability of Mr. Battaglia’s Constitutional Claim
The CCA found that Mr. Battaglia had failed to show his counsel’s
performance was “deficient or prejudicial.” 19 The court’s reasoning focused on
the performance prong and proceeded along two lines. First, it found that
counsel did question potential jurors about how they would view testimony
by mental health professionals and whether they could consider mental
health evidence with regard to mitigation. 20 Second, it found that Battaglia
was arguing that counsel should have “fleshed out whether specific jurors
personally viewed mental illness as a mitigating factor,” which would have
constituted “improper commitment questions.” 21 The district court denied the
habeas petition based on the CCA’s second line of reasoning, finding counsel
could not have been ineffective for failing to ask questions that were
17 See McCarthy v. Thaler, No. 3:07-CV-1631-O, 2011 WL 1754199, at *3 (N.D. Tex.,
May 9, 2011) (stating that “a state procedural default for failure to raise an ineffective
assistance of trial counsel claim in the direct appeal does not appear to have been regularly
followed in the Texas courts,” and citing CCA statements that the general rule is that
ineffective assistance claims should be raised on habeas); Parr v. Thaler, 481 F. App’x 872,
874-75 (5th Cir. 2012) (noting unchallenged finding that “a state court determination that
an ineffective assistance of counsel claim is waived if not raised on direct appeal is neither
firmly established nor regularly followed in Texas”).
18 Trevino, 133 S.Ct. at 1918-20.
19 Battaglia, No. W01-52159-H(A), at 37-38. Adopted by CCA in Battaglia, 2009 WL
3042925, at *1.
20 Battaglia, No. W01-52159-H(A), at 26-30.
21 Id. at 31.
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improper under Texas law. 22
In this application for COA, Mr. Battaglia emphasizes that his claim is
only that jurors were not asked whether they would be open to considering
evidence of bipolar disorder at the mitigation phase. He does not argue trial
counsel should have asked how jurors would weigh his mental illness. At
least some of his arguments to the state habeas court are consistent with this
version of his claim. Nevertheless, even setting aside, arguendo, the Texas
improper commitment question rule, we find that reasonable jurists could not
debate the district court’s denial of Mr. Battaglia’s petition.
Mr. Battaglia’s IAC claim is not debatable because state trial counsel
did ask jurors about their openness to evidence of mental illness, and Mr.
Battaglia has identified no Supreme Court law suggesting that the manner in
which they did so fell outside the range of reasonable representation. First,
trial counsel stated in affidavits that they drew information from juror
responses to questionnaire items assessing their feelings about mental health
professionals, and about testimony by such professionals in a capital murder
trial. These responses “indicated to [counsel] how open each juror might be to
considering evidence of mental illness at punishment.”
Additionally, for each of the twelve jurors eventually selected, counsel
either asked whether the juror would be open to considering evidence of
mental illness with regard to mitigation, or counsel explained that the jury
could consider such evidence with regard to mitigation. Counsel took pains to
explain that even if the evidence was not enough to show that Mr. Battaglia
was “insane” for guilt-phase purposes, it could still be relevant to mitigation.
All jurors responded affirmatively to the question or explanation by defense
counsel, indicating that they were open to such evidence or understood that
22 Battaglia, 2013 WL 5570216, at *24-25; (magistrate judge’s recommendation); id.
at *5-6 (district court adopting magistrate’s reasoning and denying petition).
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they could consider it. Additionally, counsel attempted without success to get
a definition of “mitigation” from the trial court in order to be better able to
question jurors during voir dire.
Counsel had information from all jurors about how they would view
evidence from mental health professionals, and ascertained that all jurors
understood they were allowed to consider evidence of mental illness with
regard to mitigation. Mr. Battaglia has not cited any Supreme Court law
even suggesting that counsel were constitutionally ineffective for failing to do
more. He highlights cases establishing the importance of voir dire, 23 the right
of capital defendants to question jurors on their beliefs about the death
penalty, 24 and the fact that sentencers may not “refuse to consider, as a
matter of law, any relevant mitigating evidence.” 25
None of these cases can bear Mr. Battaglia’s burden of showing that
reasonable jurists could debate whether the Texas courts unreasonably
applied clearly established Supreme Court law. Mr. Battaglia was permitted
to question jurors about whether they could consider mental health evidence
with regard to mitigation, so cases establishing the right to do so are
inapposite. Moreover, none of the cases cited establish that counsel must ask
such questions at all, 26 let alone that counsel must ask them at a particular
level of specificity or minuteness.
To the extent Mr. Battaglia now argues counsel should have gone
further and asked whether jurors could consider evidence of bipolar disorder
23 Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981).
24 Morgan v. Illinois, 504 U.S. 719, 730-36 (1992).
25 Eddings v. Oklahoma, 455 U.S. 104, 114 (1982) (emphasis original); see also Boyde
v. California, 494 U.S. 370, 377-78 (1990) (“The Eight Amendment requires that the jury be
able to consider and give effect to all relevant mitigating evidence offered by petitioner.”);
Penry v. Lynaugh, 492 U.S. 302, 318-20 (1989).
26 See Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013) (“Moreover, Garza cites
no authority, and we have found none, that would require a defense attorney to ask specific
questions at voir dire.”).
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specifically, as opposed to asking about mental health evidence generally,
this argument was not made before the state courts or the federal district
court, and has even less purchase in the law. Mr. Battaglia has not pointed to
any cases establishing that this greater level of specificity in voir dire
questioning is required in order for counsel not to be constitutionally
deficient.
Because, in light of the AEDPA and Strickland standards, reasonable
jurists could not debate whether Mr. Battaglia’s IAC claim deserves
encouragement to proceed further, the application for a COA is denied.
IV.
Alongside his request for a COA, Mr. Battaglia attempts to raise new
trial IAC claims that his state habeas counsel may have ineffectively failed to
pursue. Mr. Battaglia suggests that (a) state trial counsel were ineffective
because they failed to pursue a not guilty by reason of insanity verdict; and
(b) state habeas counsel ineffectively failed to investigate and make this
claim. He asks for a “stay and abeyance” of these proceedings and
appointment of counsel so that this claim can be developed. He also suggests
there may be other trial IAC claims that could be developed if the court
stayed and abated the case.
The trial IAC claims Mr. Battaglia seeks to develop were procedurally
barred prior to Trevino v. Thaler 27 because they were not brought during
state post-conviction proceedings. In Trevino, the Supreme Court held that
ineffective assistance of counsel during Texas habeas proceedings can provide
an excuse in federal court for the failure to exhaust substantial trial IAC
claims. 28 Mr. Battaglia’s reasoning is that although counsel in federal district
27 133 S.Ct. 1911 (2013).
28 Id. at 1921.
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court did not raise Trevino claims, 29 we should consider granting a stay and
abeyance now because Trevino issued only a few months before the district
court ruled, giving counsel below inadequate opportunity to respond.
We do not address Mr. Battaglia’s procedurally improper request.
Generally, “issues that are not covered by a COA are not properly before this
court and thus cannot be considered on appeal.” 30 Mr. Battaglia neither has
nor asks for a COA on this issue—nor could he since his request was never
made below. Rather, Mr. Battaglia seeks broad leave to develop potential
Trevino IAC claims for the first time in this proceeding.
In capital habeas, as in other contexts, we generally do not address
matters which were not presented to the district court. 31 Mr. Battaglia does
not show that exceptional circumstances warrant a departure from this
rule. 32 His only argument is that his counsel had no time to react to Trevino
in the district court—but even assuming we found that circumstance
29 Mr. Battaglia did raise Trevino claims in supplemental pro se pleadings in the
district court, but his current counsel does not seek to renew those claims, which were
denied on multiple grounds, instead seeking to develop new ones.
30 Kohler v. Cain, 214 F.3d 1350, 2000 WL 634646, at *2 (5th Cir. 2000)
(unpublished) (citing Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997)).
31 See, e.g., Carter v. Johnson, 131 F.3d 452, 464-65 (5th Cir. 1997) (issues not raised
before district court in capital § 2254 proceeding waived); Johnson v. Puckett, 176 F.3d 809,
814 (5th Cir. 1999) (same—new contention “cannot be considered”); Davis v. Thaler, 511 F.
App’x 327, 331 n.1 (5th Cir. 2013).
32 See Tifford v. Wainwright, 592 F.2d 233, 234 (5th Cir. 1979) (per curiam) (in
habeas setting, rejecting exception where “the issue tendered is technical, not substantial”
and the issues were “not based on any new developments in the law or on any newly
unearthed facts”); Carter, 131 F.3d at 465 n.20 (in habeas setting, rejecting argument that a
“miscarriage of justice will result from our refusal to address his argument” in the “absence
of any colorable reason to question his factual guilt”); see also, more generally, Gen.
Universal Sys., Inc. v. Lee, 379 F.3d 131, 159 & n.87 (5th Cir. 2004) (per curiam) (citing
Matter of Novack, 639 F.2d 1274, 1276-77 (5th Cir. Unit B Mar. 1981)); Honeycutt v. Long,
861 F.2d 1346, 1352 (5th Cir. 1988) (listing situations where appeals court will hear issues
raised for first time on appeal); City of Waco, Tex. v. Bridges, 710 F.2d 220, 228 (5th Cir.
1983) (same).
“The burden of establishing exceptional circumstances rests on the party asserting
the new issue.” Newman v. Strachan Shipping Co. of Texas, 117 F.3d 1417, 1997 WL
336181, at *1 (5th Cir. 1997) (unpublished).
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relevant, his assertion is inaccurate. Trevino issued months before the
magistrate judge’s recommendation below, and was explicitly discussed by
the magistrate months before the district court’s final ruling. Counsel below
simply failed to pursue the matter. We further note that this is not a case
where counsel was put in the position of arguing that she herself was
ineffective. 33 Counsel in the district court and on this appeal were federally
appointed and had no involvement in the state proceedings. We deny Mr.
Battaglia’s request made without a COA and never presented to the district
court.
_____________
Mr. Battaglia’s application for COA and request for a stay and
abeyance are DENIED.
Cf. Speer v. Stephens, 2015 WL 1449798, at *1-2 (5th Cir. Mar. 30, 2015)
33
(appointing supplemental counsel under 18 U.S.C. § 3599 where federal habeas counsel
“also represented the petitioner during state habeas proceedings”).
10