Howard v. Dretke , 125 F. App'x 560 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-70021
RONALD RAY HOWARD
Petitioner - Appellant
v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
Appeal from the United States District Court
for the Southern District of Texas
No. 03-CV-48
Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
KING, Chief Judge:*
Petitioner-Appellant Ronald Ray Howard seeks a certificate
of appealability (COA) to appeal the district court’s dismissal
of his 28 U.S.C. § 2254 habeas corpus petition. Because Howard
cannot make a substantial showing of the denial of a
constitutional right, we DENY his application for a COA.
I. BACKGROUND
*
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that this opinion should not be published and is not precedent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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On April 11, 1992, Howard was driving an automobile that he
had stolen three days earlier when Department of Public Safety
Trooper Bill Davidson noticed that the right headlight of the
vehicle was broken. Davidson pulled Howard over to the side of
the road, called in the license plate, and got out of his police
car. As Davidson approached the driver-side window, Howard shot
him in the neck, inflicting a fatal wound. Howard then drove
off.
Law enforcement officers arrested Howard on the night of the
shooting. Later that month, a grand jury indicted him for
capital murder. Given the overwhelming evidence of guilt--e.g.,
multiple confessions by Howard (to the police, the grand jury,
and fellow inmates), numerous eye witnesses, and evidence that at
the time of his arrest Howard possessed ammunition matching the
firearm used to kill Trooper Davidson--Howard’s counsel did not
contest the State’s evidence at the guilt phase of his trial.
The jury convicted Howard of capital murder.
Following a separate punishment phase, the jury answered the
special issues in a manner requiring the imposition of the death
penalty. Consequently, the trial court sentenced Howard to
death. On direct review, however, the Texas Court of Criminal
Appeals overturned the sentence, finding that the trial court
erroneously dismissed a prospective juror over her ability to
answer Texas’s special issues. Howard v. State, 941 S.W.2d 102
(Tex. Crim. App. 1996). After a second punishment phase, a new
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jury answered Texas’s special issues in a manner again requiring
the imposition of a death sentence. Again, the trial court
sentenced Howard to death. The Court of Criminal Appeals
affirmed the judgment on direct appeal, and the United States
Supreme Court denied Howard’s petition for certiorari. Howard v.
Texas, 535 U.S. 1065 (2002).
While his second direct appeal was pending, Howard filed a
state application for habeas relief. The state habeas court
entered findings of fact and conclusions of law recommending the
denial of Howard’s state habeas application. The Court of
Criminal Appeals subsequently denied Howard’s application.
On May 5, 2003, Howard filed a petition for habeas relief in
the United States District Court for the Southern District of
Texas. In his federal habeas petition, which was prepared with
the assistance of newly court-appointed counsel, Howard alleged
that his trial counsel provided ineffective assistance of counsel
by not contesting the State’s evidence at the guilt phase of his
original trial. In addition, Howard argued that he was denied
effective assistance of counsel during his second punishment
phase because his attorney: (1) failed to object during voir dire
when the prosecution informed potential jurors of Howard’s first
death sentence; (2) failed to strike a juror whose husband and
brother were law enforcement officers; (3) entered into an
agreement with the prosecution that allowed Howard’s extraneous
offenses into evidence without objection; and (4) failed to
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object to numerous prosecution exhibits. On March 19, 2004, the
district court rejected Howard’s claims, denied his habeas
petition, and denied a COA on all of his claims. Howard now
seeks a COA from this court only with respect to his argument
that his trial attorney provided ineffective assistance of
counsel at the second punishment phase by not objecting when the
prosecution repeatedly informed potential jurors that Howard had
been sentenced to death at the original punishment phase of his
trial.
II. DISCUSSION
A. Standard of Review
Howard’s claim is governed by the Antiterrorism and
Effective Death Penalty Act (AEDPA) because he filed his § 2254
petition on May 5, 2003, after AEDPA’s April 24, 1996 effective
date. See Fisher v. Johnson, 174 F.3d 710, 711 (5th Cir. 1999)
(citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)). Under AEDPA,
a state habeas petitioner may appeal a district court’s dismissal
of his petition only if the district court or the court of
appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (explaining that
a COA is a “jurisdictional prerequisite” without which “federal
courts of appeals lack jurisdiction to rule on the merits of
appeals from habeas petitioners”). “[W]hen a habeas applicant
seeks permission to initiate appellate review of the dismissal of
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his petition, the court of appeals should limit its examination
to a threshold inquiry into the underlying merit of his claims.”
Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S.
473, 481 (2000)). “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of
the claims. In fact, the statute forbids it.” Id. at 336.
A COA will be granted “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2004). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El, 537
U.S. at 327 (citing Slack, 529 U.S. at 484). In other words,
“[t]he petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong.” Id. at 338. Hence, “[t]he question is the
debatability of the underlying constitutional claim, not the
resolution of that debate.” Id. at 342. “[A] claim can be
debatable even though every jurist of reason might agree, after
the COA has been granted and the case has received full
consideration, that petitioner will not prevail.” Id. at 338.
Finally, any doubt as to whether a COA should issue in a death-
penalty case must be resolved in favor of the petitioner. Newton
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v. Dretke, 371 F.3d 250, 254 (5th Cir. 2004); Medellin v. Dretke,
371 F.3d 270, 275 (5th Cir. 2004) (per curiam).
In determining whether the district court’s denial of
Howard’s petition was debatable, we must keep in mind the
deferential standard of review that AEDPA requires a district
court to apply when considering a petition for habeas relief.
Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003); see also
Miller-El, 537 U.S. at 336-37 (“We look to the District Court’s
application of AEDPA to petitioner’s constitutional claims and
ask whether that resolution was debatable amongst jurists of
reason.”). Under AEDPA, a federal court is not to grant a writ
of habeas corpus “with respect to any claim that was adjudicated
on the merits in State court proceedings” unless it determines
that the state court’s adjudication “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.” 28 U.S.C. § 2254(d)(1). A state
court’s decision is contrary to Supreme Court precedent if: (1)
“the state court arrives at a conclusion opposite to that reached
by [the Supreme Court] on a question of law”; or (2) “the state
court confronts facts that are materially indistinguishable from
a relevant Supreme Court precedent and arrives at a result
opposite to [that of the Supreme Court].” Williams v. Taylor,
529 U.S. 362, 405 (2000) (opinion of O’Connor, J.) (interpreting
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the statutory language “contrary to, or involved an unreasonable
application of”). “A state court’s decision is an unreasonable
application of clearly established federal law whenever the state
court identifies the correct governing legal principle from the
Supreme Court's decisions but applies that principle to the facts
of the prisoner's case in an objectively unreasonable manner.”
Young v. Dretke, 356 F.3d 616, 623 (5th Cir. 2004) (internal
quotation marks omitted); accord Williams, 529 U.S. at 409. “An
unreasonable application may also occur if ‘the state court
either unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply.’” Young, 356 F.3d at 623 (alteration in
original) (quoting Williams, 529 U.S. at 407).
“[A] determination of a factual issue made by a State court
shall be presumed to be correct” unless the petitioner rebuts the
presumption “by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). This presumption of correctness attaches not only
to explicit findings, but also to “unarticulated findings which
are necessary to the state court’s conclusions of mixed law and
fact.” Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)
(quotation marks omitted). A writ of habeas corpus may issue if
the state court’s adjudication of a claim “resulted in a decision
that was based on an unreasonable determination of the facts in
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light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2).
We review the district court’s findings of fact for clear
error and its conclusions of law de novo. Collier v. Cockrell,
300 F.3d 577, 582 (5th Cir. 2002).
B. Analysis
Under clearly established federal law as determined by the
Supreme Court, a federal habeas petitioner who alleges
ineffective assistance of counsel must demonstrate that: (1) his
counsel’s performance was constitutionally deficient; and (2) the
deficient performance resulted in actual prejudice. Strickland
v. Washington, 466 U.S. 668, 687 (1984); Riley v. Cockrell, 339
F.3d 308, 315 (5th Cir. 2003). “To establish deficient
performance, a petitioner must demonstrate that counsel’s
representation ‘fell below an objective standard of
reasonableness.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003)
(quoting Strickland, 466 U.S. at 688). “[T]o establish
prejudice, a ‘defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.’”2 Id. at 534 (quoting Strickland, 466 U.S. at
2
“[B]oth the performance and prejudice components of the
ineffectiveness inquiry are mixed questions of law and fact.”
Strickland, 466 U.S. at 698.
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694). “Failure to prove either deficient performance or actual
prejudice is fatal to an ineffective assistance claim.” Carter
v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997).
Howard requests a COA only on the claim that his attorney
provided ineffective assistance of counsel at his second
punishment phase because he allowed the prosecution to inform
potential jurors during voir dire that a previous jury had
sentenced Howard to death for murdering Davidson. On state
habeas review, Howard’s trial counsel explained via sworn
affidavit why he decided to allow the potential jurors to learn
of Howard’s first death sentence during voir dire:
Because of the pre-trial publicity in this cause, I was
concerned that some or many of the prospective jurors
would be aware that Mr. Howard had been previously
sentenced to death. Since voir dire would be my only
opportunity to question jurors about this matter, I
made a tactical decision to question prospective jurors
about whether or not they could disregard something
which a prior jury had done and make an independent
determination of the issues involved in the trial of
this punishment cause. I discussed this with Mr.
Howard and he agreed with this strategy decision.
Also, this decision was motivated in part by our
concern that when we put on evidence in the trial that
Mr. Howard had a good prison record since the last
trial, it would become evident to jurors that he had
been confined on death row. I felt that this decision
was sound trial strategy in this cause.
Howard has never disputed the truth of his trial counsel’s
affidavit, and the state habeas court explicitly acknowledged it
as true. In addition, the state habeas court made the following
“findings of fact”:
6. That [Howard’s] defense attorney made no objection
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to the veniremen being informed that [his]
original sentence [was] death.
7. That the issue of querying veniremen on the
question of the original sentence was discussed
prior to voir dire by [Howard’s] defense counsel
and the prosecuting attorney.
8. That [Howard’s] defense counsel felt that there
was a strong likelihood that some prospective
jurors might already be aware of [Howard’s]
original sentence of death, or might become aware
of same when evidence was presented as to
[Howard’s] good conduct while in prison, where he
was held on death row.
9. That [Howard’s] defense counsel felt, as a matter
of trial strategy, that it was in [Howard’s] best
interest to exercise this opportunity to question
prospective jurors about the effect of this
knowledge and their ability to make an independent
decision upon the issues which would be submitted
to the jury at the conclusion of the punishment
phase of the trial without being improperly
influenced by the previous verdict.
10. That the decision by [Howard’s] defense counsel
not to object to the prosecuting attorney
informing prospective jurors as to the prior
punishment verdict was a conscious decision after
considerable deliberation by defense counsel and
was a reasonable trial strategy given the
circumstances of the case.
11. That [Howard’s] defense counsel’s decision not to
object to the prosecuting attorney’s presentation
of this information to prospective jurors was
sound trial strategy.
12. That [Howard’s] defense counsel felt that he would
have to delve into the effect on each jury
panelist or risk the possibility that they knew or
would learn of the previous verdict and if they
were impermissibly influenced by the knowledge he
would have missed an opportunity to disqualify
those panelists.
13. That even if [Howard’s] defense counsel’s decision
not to object to the jurors being informed of the
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first jury verdict had been error, this Court
finds, beyond a reasonable doubt, that the result
of [his] punishment phase of the trial in Nueces
County would not have been different.
The state habeas court also made these “conclusions of law”:
5. [Howard’s] defense counsel did not provide
ineffective assistance of counsel at the
punishment phase of the trial in Nueces County in
violation of the United States and Texas
Constitutions.
6. [Howard] was not denied ineffective assistance of
counsel.
Thus, the state habeas court considered and rejected Howard’s
ineffective assistance of counsel claim on the merits.
The federal district court denied Howard’s petition for
habeas relief on this ineffective assistance of counsel claim
because Howard failed to show that the state habeas court’s
decision was based on an unreasonable determination of the facts
or that the state decision was contrary to, or an unreasonable
application of, clearly established federal law. The district
court’s conclusion is not debatable among jurists of reason. As
the state habeas court found, the district court recognized, and
Howard does not dispute, Howard’s trial counsel made a strategic
decision to allow the potential jurors to learn of Howard’s
previous death sentence because: (1) he believed that some, or
many, of the jurors may have already known of the prior sentence
given the high level of publicity surrounding the case; and (2)
he wanted to show that Howard had been well behaved while in
prison, which might have revealed that Howard had been on death
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row. Furthermore, trial counsel decided to allow the jury to be
informed of the prior sentence during voir dire, as opposed to
testimony later in the sentencing proceedings, because it offered
him the only opportunity to question potential jurors about the
issue and to eliminate those jurors who expressed that they might
not be able to make an independent determination. Moreover,
trial counsel discussed these tactics with Howard, who agreed to
the strategy. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Medellin, 371 F.3d at 277
(alteration in original) (quoting Strickland, 466 U.S. at 690).
“A conscious and informed decision on trial tactics and strategy
cannot be the basis for constitutionally ineffective assistance
of counsel unless it is so ill chosen that it permeates the
entire trial with obvious unfairness.” United States v. Jones,
287 F.3d 325, 331 (5th Cir. 2002) (quoting Garland v. Maggio, 717
F.2d 199, 206 (5th Cir. 1983)). Given the “strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance,” reasonable jurists could not debate the
district court’s conclusion that the state court did not
unreasonably apply clearly established federal law when it found
that Howard’s trial counsel’s performance was not deficient.3
3
Howard cites two cases in his COA application to
support his claim that his trial counsel’s performance was
deficient: United States v. Williams, 568 F.2d 464 (5th Cir.
1978), and Arthur v. Bordenkircher, 715 F.2d 118 (4th Cir. 1983).
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Strickland, 466 U.S. at 689. Because jurists of reason could not
debate the district court’s findings with respect to the state
court’s adjudication of Strickland’s deficiency prong, we need
not address the question of prejudice. See, e.g., Ramirez v.
Dretke, 2005 WL 174643, at *6 (5th Cir. Jan. 27, 2005).
III. CONCLUSION
For the forgoing reasons, we DENY Howard’s application for a
COA.
We question the applicability of these cases to Howard’s COA
application because they were decided before Strickland and
appear to be distinguishable. Regardless, neither case involved
AEDPA’s standard of review, and even if Williams and Arthur could
be read to support Howard’s argument that his trial counsel
performed deficiently, they do nothing to suggest that the state
court’s opposite conclusion was contrary to, or involved an
unreasonable application of, clearly established federal law as
determined by the Supreme Court.
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