Vaughn Ross v. Rick Thaler, Director , 511 F. App'x 293 ( 2013 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 5, 2013
No. 12-70001 Lyle W. Cayce
Clerk
VAUGHN ROSS,
Petitioner - Appellant
v.
RICK THALER, 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. 5:08-CV-174
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM*
This request for a certificate of appealability (COA) in this death penalty
case presents arguments that the district court should have considered
affidavits, even though they were not presented in state court; the defaulted
affidavits, which support the petitioner’s ineffective-assistance-of-trial-counsel
claim, should have been considered under the authority of Martinez v. Ryan, 132
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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S. Ct. 1309 (2012), because of the ineffectiveness of state habeas counsel in
failing to produce the affidavits in the state habeas proceedings.
Vaughn Ross was convicted and sentenced to death in Texas state court
for the 2001 murders of Viola Ross and Douglas Birdsall during the same
criminal episode. Ross was denied habeas relief by the Texas courts. Ross now
seeks federal relief. The district court held that the affidavits of trial counsel
that Ross presented for the first time in this federal proceeding could not be
considered under Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that
“review under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits”). The court further held that the state
habeas court did not unreasonably apply clearly established federal law when
it denied Ross’s ineffective-assistance-of-trial-counsel claims on the merits, based
on the evidence presented in state court. Ross now seeks a COA from this Court,
but because Ross has failed to demonstrate a substantial showing of the denial
of a constitutional right or that his claims are adequate to deserve
encouragement to proceed further, we DENY his request for a COA.
I.
A.
We first review the facts as presented by the prosecution in state court at
the guilt-innocence phase of the trial: Viola’s sister, Liza McVade, dated Ross.
On January 30, 2001, while McVade was at Ross’s apartment with her four-year-
old son, Viola telephoned her sister McVade several times. McVade’s former
boyfriend, Clarence Garner, was with Viola at the time. During one of those
conversations, Viola allowed Garner to speak to McVade. Ross knew that
McVade was talking to Garner and he was jealous, angry, and upset about
McVade’s conversation with Garner. Next, McVade called Viola to come and get
her. While they were talking, Teresa Williams came to Viola’s house and told
her that Douglas Birdsall was there, looking for a young, black female prostitute.
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To accommodate Birdsall, Viola delayed going for McVade, and offered to take
Birdsall to someone who would be interested. Viola left with Birdsall and
Williams. They dropped Williams off shortly thereafter.
Viola attempted to call McVade from Birdsall’s home. Ross answered the
telephone, cursed and threatened Viola, and told her not to call again. Ross
refused to take McVade and her son home and refused to allow her to use his
telephone to call for a ride. Ross then began putting on latex gloves and told
McVade to leave “because if I do something, I don’t want you around.” After
using a neighbor’s telephone in an unsuccessful attempt to get a ride, McVade
and her son walked to her father’s house. About fifteen to twenty minutes after
McVade had used his telephone, the neighbor heard gunshots, which he reported
to the police.
The next day, the bodies of Birdsall and Viola were found inside Birdsall’s
car, which was parked in a ravine. Both had been shot numerous times and both
had died from gunshot wounds to the head.
After discovering the bodies, the police investigated the report of shots
fired the night before, to see if there was a connection with the murders. In an
alley behind Ross’s apartment, the police discovered glass shards and two pools
of blood. The larger pool of blood was consistent with Birdsall’s DNA profile. A
shell casing recovered from the scene matched the shell casings found inside
Birdsall’s car. A latex glove tip found inside Birdsall’s car was tested. Blood on
the exterior of the glove tip was consistent with Birdsall’s DNA profile. The
inside of the glove tip contained DNA consistent with Ross’s DNA.
When Ross was interviewed by the police on January 31, he admitted that
he was angry with Viola on the evening of January 30, and that he and Viola
had argued over the phone when Viola let Garner speak to McVade. The police
interviewed Ross again on February 2. In that interview, he admitted that he
had argued with Viola and had threatened her. Ross also admitted that he had
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worn latex gloves that night because he was going to mop his kitchen floor and
the bleach hurt his hands. When the police told Ross they were worried that a
child might find the murder weapon, Ross told them they did not have to worry
because the gun was secure and wouldn’t cause any harm. When confronted
with the physical evidence – the close proximity of the crime scene to his
apartment, the blood and glass found there, the latex glove tip – Ross did not
admit killing Viola and Birdsall, but said that if the police had what they said
they had, then they had the truth.
With Ross’s consent, the police searched his apartment and found two
latex gloves and a sweatshirt. The sweatshirt had a very small bloodstain that
DNA testing revealed to be consistent with Birdsall’s, and Ross’s DNA was on
the inside of the shirt. Later, when he was in jail, Ross spoke with his mother,
who asked him whether he had committed the crime. Ross responded that he
“might have.”
B.
At trial, Ross was represented by Floyd Holder, Jr., and Patrick S. Metze.
They presented some evidence in support of his defense that the police may have
planted the latex glove tip that was found in Birdsall’s car. They also presented
evidence, including expert testimony, that Ross alone would not have been
capable of moving Birdsall’s body from the front seat of his car to the back seat,
where it was found, and that at least two people had to have committed the
murders. They produced Derald Powell, Ross’s former roommate, who testified
that he had never seen Ross with a gun. They also presented evidence that the
murderer would have been covered with blood and glass fragments, but that no
blood was found in Ross’s apartment or in his car.
The jury was not impressed and convicted Ross of capital murder.
Immediately after the guilty verdict, Ross’s trial counsel filed a motion for
continuance and for a psychiatric examination to determine whether Ross was
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competent to continue to stand trial. In the motion, defense counsel stated that
Ross had instructed his family and friends not to assist defense counsel at the
punishment stage of his trial and that further time was needed to consult with
Ross, his family and friends to secure their cooperation. Defense counsel
explained to the court that they questioned Ross’s competence because of his
insistence that his counsel not call witnesses in his defense at the punishment
phase. The trial court denied the motions, stating that based on its
observations, Ross knew what he was doing and was competent to stand trial.
C.
At the punishment phase of the trial, the State called a jailer who testified
that while Ross was in jail awaiting trial, he removed a wristband that all
inmates were required to wear. During a roll call, when asked for the wristband,
Ross threw it on the floor. The jailer testified that he wrote a disciplinary report
about the incident because Ross “kind of went crazy” and began cursing him.
The State also presented evidence that Ross pleaded guilty to felony
assault and stealing a motor vehicle in 1997, and was placed on probation. Susie
Caddell, a probation officer, testified that Ross told her that the victim was his
girlfriend, that they had problems in the past, and that she was stalking him.
Caddell said that Ross told her that the victim attempted to stab him, but he
took the knife from her and stabbed her. According to Caddell, Ross admitted
that anger and outrage contributed to the assault. He expressed no remorse but
did say that he would walk away if he had to do it over again. Ross had
successfully completed anger counseling and probation.
Kevin Knobbe, the Missouri police officer who responded to the call about
the stabbing, testified that the victim, Regina Carlisle, told him that her
boyfriend, Ross, had stabbed her and taken her vehicle. Carlisle had numerous
knife wounds, including a laceration on her neck that could have potentially
been life-threatening. Knobbe testified that he overheard Carlisle say that Ross
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told her to give him her neck and that she was going to die. On cross-
examination, defense counsel elicited testimony that Carlisle was not admitted
to the hospital for her injuries, but was only treated and released.
Ross presented testimony from three witnesses at the punishment phase.
The first was Felix Moore, a doctoral student at Texas Tech. Moore testified that
he and Ross were fraternity brothers, that Ross studied architecture, and that
Ross had paid for his education by working while attending school. Moore said
that he had never seen Ross with a gun or knife and had never seen Ross upset,
acting violently, or engaging in gangster-type behavior. Moore described Ross
as a “peacemaker.” According to Moore, Ross was “always pretty calm.” He said
that Ross drank alcohol, but did not use drugs, and that Ross had girlfriends.
Tanya Robertson also testified for Ross at the punishment phase.
Robertson, a Dallas accountant, explained that she knew Ross through her
sorority and eventually became roommates with Ross and Derald Powell, who
was in law school at the time. According to Robertson, Ross was a diligent
student, was not involved with drugs, did not engage in gangster behavior, and
rarely drank alcohol. Robertson said that Ross had one girlfriend during the
time Robertson was his roommate, and that they had a loving relationship.
Robertson described Ross as meek, humble, very calm, very polite, and very nice.
The final punishment phase witness for the defense was Ross’s mother,
Johnnie Ross, who testified that Ross had three sisters – Valeria, Tiffany, and
Michelle. Ross last saw his father, Hershall Sumpton, when he was about eight
years old. There were no men living in their home when Ross lived there. Ross
was born with pneumonia and suffered from asthma. He attended public school,
where he ran track and played football. He was involved in the Cub Scouts and
Boy Scouts. He attended inner city schools until junior high, when the family
moved to a St. Louis suburb, where they lived in a single-family home in a
predominantly white community with racially mixed schools. There were no
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guns in their home. Ross was not familiar with weapons and he did not hunt.
Ross went to church, where his step-grandfather was the preacher, three or four
times a week, until he went to college. Ross had a small, racially-mixed group
of friends in high school, who were “good kids.” Ross did not have trouble with
the law as a juvenile, other than a single curfew violation. He did not get into
trouble at school. His mother was not aware of any drug or alcohol use, and Ross
was not involved in any gang activity. As a teenager, Ross had a job at a country
club. His mother described him as a quiet, calm, laid-back person. After he
graduated from high school, Ross attended Central Missouri State College,
where he received an Associate of Science degree and a Bachelor of Science
degree. While in college, Ross did not use drugs and drank alcohol only socially.
He was active in his fraternity and was president of his chapter during his
senior year. After college, Ross had jobs with several architectural firms.
According to his mother, Ross was never in trouble with the law until the
incident with his girlfriend in 1997. After that incident, Ross went to Texas
Tech to continue his education. While at Texas Tech, Ross paid for his education
and did not have any mental problems. Ross’s mother said that she did not
know anything about Ross being in a car wreck in the 1990s.
At the conclusion of her testimony, defense counsel asked Ross’s mother
if she wanted to say anything to the jury. She lashed out at the jury, angrily,
saying:
I get to tell these people that I think they have done a horrible
job and that they have been unjust to me and my family and my son.
I get to tell these people that I do not think you even
considered or even tried to consider all the evidence that pointed
toward this situation.
I think you made your minds up from the beginning and you
decided that because you saw, as they hollered and shouted at us,
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Vaughn Ross sitting there, Black, that that was it. And you made
a decision right then and there.
You didn’t consider what you did to my family.
I understand, and I am so sorry about the Birdsalls, about the
Rosses, the McVades. But you didn’t consider that my son was
innocent. You didn’t consider what it would do to my son’s life or to
my family’s life.
And if I appear angry, it’s because I am. Because I don’t think
you gave him a chance. And I don’t think you gave him a chance
from the very beginning.
When defense counsel asked her if she wanted the jury to give her son a life
sentence, she responded: “No, I do not. That would be foolish for me to want
that.” When pressed, she said that neither choice was good, but that she “would
prefer life over death.”
The jury answered affirmatively the special punishment issues on future
dangerousness and whether Ross caused or anticipated the deaths of the victims.
It answered negatively the special issue on mitigating circumstances.
Accordingly, the trial court imposed the death sentence.
II.
A.
Ross next directly appealed his conviction and sentence to the state
appellate court. In this connection, the trial court appointed Richard Wardroup
to represent Ross on direct appeal. On May 5, 2004, the Texas Court of Criminal
Appeals affirmed his conviction and sentence. Ross v. State, 133 S.W.3d 618(Tex. Crim. App. 2004). Ross did not file a petition for a writ of certiorari.
The next step in the proceedings occurred while his direct appeal was
pending. The trial court appointed counsel to represent Ross in state habeas
proceedings, and Ross filed his state habeas application on March 26, 2004. In
his state habeas application, Ross asserted that his trial counsel rendered
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ineffective assistance by failing to investigate and present (1) evidence of the
criminal history of Regina Carlisle, the victim of Ross’s 1997 assault, to impeach
the State’s punishment phase evidence; and (2) mitigating evidence about Ross’s
background. Ross alleged that if counsel had investigated Carlisle’s criminal
history, they would have learned that she had an extensive criminal history
which included fraudulent use of a credit card, car theft, and assaulting a
boyfriend by hitting him with her car, and that she had been convicted of
manslaughter for shooting another boyfriend who later died from complications.
Ross argued that this evidence, together with evidence that Carlisle had a gun
in the car the night Ross allegedly assaulted her, that she was mentally
unstable, and that she had been stalking Ross, would have placed the entire
incident in a different light which had tangible, but untapped, mitigating
potential. He further alleged in his state habeas petition that, as a result of
counsel’s failure to investigate, valuable evidence that undercut the future
dangerousness issue was not presented to the jury, and Carlisle’s hearsay
statements were left unimpeached by her previous assaultive behavior and
crimes of moral turpitude. Ross also alleged that trial counsel’s mitigation
investigation consisted of a single interview with Ross’s mother and two of his
sisters for no more than an hour. Finally, he alleged that counsel had failed to
uncover additional mitigating evidence, described in the affidavits of licensed
private investigator Lisa Milstein and his sister, Valeria Martin, which were
attached as exhibits to his state habeas application.
In her affidavit, Milstein summarized proposed testimony from seven
potential witnesses:
(1) Ronnie Martin: According to Milstein, Ronnie Martin told her that
Viola’s father, Chester, did not want Ross to get the death penalty. However,
Chester would not speak with Milstein.
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(2) Lydia Davis: Milstein stated that she interviewed Davis, Ross’s
maternal grandmother, and that Davis was willing to help but was never
interviewed by anyone associated with Ross’s defense. According to Milstein,
Davis attributes all of Ross’s problems to his lack of a father figure and to his
mother’s refusal to help him contact his father.
(3) Marsha Green: Milstein stated that she interviewed Green, who dated
Ross for three years after he graduated from college, and that Green was willing
to help but was not interviewed by Ross’s defense team. According to Milstein,
Green said that Ross was quiet, not jealous or possessive, was nice to her, never
raised his voice or a hand to her, and had high expectations from life.
(4) Michelle Ross: Milstein stated that she interviewed Michelle Ross,
Ross’s youngest sister. According to Milstein, Michelle was interviewed by
Ross’s trial counsel in the company of her mother and sister, Valeria. The
interview was brief and focused on the evidence against Ross, barely touching
on Ross’s early life. Michelle did not testify at trial.
(5) Regina Carlisle: Milstein stated that she interviewed Carlisle, Ross’s
ex-girlfriend and the victim of the 1997 assault to which Ross pleaded guilty.
According to Milstein, Carlisle made her living by stealing cars, but Ross was not
involved in the thefts. Carlisle also described shooting a boyfriend who later
died from his wounds. On the night Ross assaulted her, she had a handgun in
her car. Milstein said that Carlisle was not interviewed by the defense team and
indicated that she would have spoken to them.
(6) Valeria Martin: Valeria was present at Ross’s trial but did not testify.
Milstein stated that Valeria told her that her mother would not allow the
children to discuss their childhood, and so they were unable to speak freely when
interviewed by Ross’s defense counsel in the presence of their mother. Valeria
believed that Ross suffered from the fact that he had no father figure and
resented his mother because she would not help him find his father.
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(7) Tiffany Ross: Milstein stated that she interviewed Ross’s sister,
Tiffany, who said that she would have been willing to speak with defense counsel
and testify at trial. According to Milstein, Tiffany described Ross as stubborn
and stated that his feelings were easily hurt and he was picked on in school
because he was short.
In her affidavit, Valeria stated that she, her sisters, and her mother met
with Ross’s defense counsel on one occasion for approximately an hour. They
were not interviewed separately. Valeria believed the family would have been
more open if they had been interviewed individually, because they did not feel
free to talk in the presence of their overbearing mother, who had always told
them not to tell their business to anyone. She stated that Ross was a very quiet,
sensitive child. He wanted affection from their mother, but the mother is not the
affectionate type. Ross was unable to gain that attention elsewhere. All of
Ross’s siblings had different fathers, but Ross was the only one who did not have
a relationship with his father. He wanted a male figure in his life, and always
resented his mother for not talking to him about his father and trying to involve
his father in his life. She stated that there was a side of her brother that the
jury did not hear about: he was popular in high school and never got in trouble;
he did not use or abuse drugs or alcohol, was active in his fraternity and was
considered to be a good person by everyone who knew him, and was kind and
sensitive.
Ross alleged that as a result of counsel’s inadequate investigation, the jury
did not get an accurate picture of his life history that could have humanized him
and led to an understanding of his need for a close relationship, but inability to
have one.
B.
The state trial court was not impressed by Ross’s habeas petition and on
July 3, 2007, it adopted the State’s proposed findings of fact and conclusions of
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law and recommended that the Texas Court of Criminal Appeals deny relief. Ex
parte Ross, No. 2001-435,653-A. On appeal of the denial of habeas relief, Ross
next filed a motion to remand the case to the trial court because his counsel did
not receive both the trial court’s order to submit proposed findings of fact and
conclusions of law and the State’s proposed findings and conclusions. The Texas
Court of Criminal Appeals granted the motion and ordered the trial court to re-
examine the findings it had entered in the light of Ross’s proposed findings and
conclusions. Ex Parte Ross, No. WR-60,294-01 (Tex. Crim. App. Oct. 10, 2007).
On remand, the habeas trial court re-entered the same findings of fact and
conclusions of law and again recommended that the Court of Criminal Appeals
deny relief on the merits: With respect to the claim of ineffective assistance for
failing to investigate the criminal history of Regina Carlisle, the state habeas
court found that Ross did not present evidence that defense counsel failed to
investigate Carlisle’s criminal history; that Ross failed to demonstrate how
defense counsel could have introduced evidence of Carlisle’s criminal history or
how it would have been admissible because she did not testify; that Ross’s
version of the events was before the jury through the testimony of his probation
officer; and that Ross had pleaded guilty to assaulting Carlisle. It concluded
that Ross had not demonstrated either that trial counsel’s performance was
deficient or that Ross was prejudiced in this respect.
Next, with respect to Ross’s claim that counsel were ineffective by failing
to investigate and present mitigating evidence, the state habeas court found that
Ross failed to allege any facts establishing deficient attorney performance.
Moreover, and in particular, Ross failed to allege facts to challenge: that Ross
had previously insisted that no punishment witnesses be called on his behalf;
that Ross dissuaded some punishment witnesses from testifying on his behalf;
that Ross advised his friends and family not to cooperate with defense counsel;
that Ross’s mother had told defense counsel to leave her alone; and that the
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additional mitigating evidence was neither powerful nor compelling, but was
similar to the evidence that indeed was presented at trial. The court concluded
that Ross had failed to show that counsel’s punishment investigation was
deficient and that Ross had obstructed counsel’s attempts to investigate and
present a punishment case. The court further concluded that Ross was unable
to show that, if the newly proffered evidence had been presented and explained,
there is a reasonable probability that the result of the sentencing proceeding
would have been different.
On January 23, 2008, the Texas Court of Criminal Appeals adopted the
trial court’s findings and conclusions and denied relief. Ex Parte Vaughn Ross,
No. WR-60,294-01, 2008 WL 217987 (Tex. Crim. App. January 23, 2008).
III.
A.
We now turn to the federal habeas proceedings. On August 27, 2008, Don
Vernay and Richard L. Wardroup were appointed to represent Ross in federal
habeas proceedings. Ross filed a petition for federal habeas relief on January 11,
2009. In his federal habeas petition, Ross alleged, as he had in his state habeas
petition, that trial counsel were ineffective for failing to investigate Regina
Carlisle’s criminal history and for failing to conduct a mitigation investigation.
In addition to the affidavits of Milstein and his sister Valeria Martin that were
attached to his state habeas petition, Ross attached to his federal habeas
petition the affidavits of his trial counsel, Floyd Holder and Patrick Metze. The
affidavits of trial counsel had not been presented in state court.
In his affidavit, Holder stated that he was retained by Ross’s family. He
did not ask the court to provide a mitigation investigator and did not retain one.
He stated that he was instructed by Ross and his family that the focus of the
investigation was on acquittal. Therefore, he spent very little time attempting
to investigate the facts relative to the punishment phase. He did not send an
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investigator to Missouri to investigate Ross’s psycho-social history. He stated
that his professional opinion is that blaming someone remote in time and place
for the way an accused turns out does not work to mitigate punishment unless
the evidence shows that the accused is less culpable because of the condition. He
stated that he did not investigate Regina Carlisle’s background and did not know
that she had a history of shooting a prior boyfriend or that she had a handgun
in her vehicle on the night that the assault occurred. He also did not know that
Carlisle had engaged in theft of automobiles and other types of fraud. He said
that Metze was appointed about a month before individual voir dire began, that
Metze was primarily responsible for preparation for the punishment phase, and
that he did not authorize Metze to retain any experts or investigators to assist
in his preparation. He said that he and Metze met with Ross’s family shortly
before the trial began and that he recalled visiting with the family twice and
communicating with them throughout the trial.
In his affidavit, Metze stated that he spent most of the time between his
appointment and the beginning of trial becoming familiar with the facts of the
case and the investigation that Holder had done. Holder asked him to prepare
for the punishment phase, but he did not have a mitigation investigator to assist
him. He did not have time to travel to Missouri to meet with Ross’s family,
friends, teachers, and coaches prior to starting jury selection. He met with some
members of Ross’s family in Holder’s Lubbock office, but the family was not
particularly forthcoming about Ross’s psycho-social history. They were
particularly obstinate when questioned about the specifics of Ross’s youth.
Metze stated that he did not investigate the character and criminal history of
Regina Carlisle. Although he discussed with Holder the possibility of doing a
more thorough mitigation investigation, he was not able to do so due to trial
preparation. He interviewed several witnesses who might testify for Ross:
Ross’s mother and sister, and Felix Moore and Derald Powell, Ross’s fraternity
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brothers. He also spoke to Tanya Robertson, who testified for Ross at the
punishment phase. In a motion for continuance filed after the conclusion of the
guilt-innocence phase, he represented to the court that Ross had instructed
family and friends not to cooperate with the presentation of punishment
evidence. He stated that this instruction limited the witnesses who were willing
to testify at trial, but it did not affect the investigation and development of
witnesses who might have testified. He stated that he solicited the assistance
of Vince Gonzales, a mitigation investigator, who volunteered to assist with
punishment phase witnesses. However, Gonzales, although qualified by training
and experience, was not asked to do any investigation into the mitigation
presentation in Ross’s case.
In his brief in support of his federal habeas petition, Ross argued that a
thorough investigation of Carlisle’s criminal history would have allowed the
defense to impeach the State’s punishment phase evidence about the 1997
assault. He also argued that the failure to locate and present mitigating
witnesses was particularly prejudicial, because those witnesses would have been
able to provide some context to Ross’s life and his relationships, as well as
elaborate on his good character. He contended that the jury should have heard
that the father of one of the victims did not want him to get the death penalty,
and should have heard about the peaceful side of his character, from women
with whom he had maintained relationships in the past. Finally, he argued that
the jury should have been told of his dysfunctional family.
The State argued that the affidavits of trial counsel were not presented to
the state habeas court and were therefore unexhausted and procedurally barred
from the federal court’s consideration. In response, Ross argued that the
matters raised in trial counsels’ affidavits were exhausted in state court because
the affidavits merely supplemented the evidence of ineffective trial counsel
presented in the state habeas proceeding, but did not fundamentally alter the
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ineffective trial counsel claim presented. He did not argue that state habeas
counsel were ineffective for failing to obtain and present the affidavits of trial
counsel to the state habeas court.
B.
The district court, in its ruling, agreed with the State and refused to
consider the affidavits because they were not submitted to the state habeas
court, citing Cullen v. Pinholster. The parties thereafter submitted proposed
findings of fact and conclusions of law, and the district court heard arguments
on May 1, 2009. On December 1, 2011, the district court denied federal habeas
relief and denied a COA. Ross v. Thaler, No. 5:08-CV-174 (N.D. Tex. Dec. 1,
2011). With respect to the claim of ineffective assistance in failing to investigate
the criminal history of Regina Carlisle, the district court held that Ross had not
demonstrated that the state court’s denial of his ineffective assistance of counsel
claim was contrary to, or an unreasonable application of, clearly established
Supreme Court law. With respect to the mitigating evidence ineffective
assistance claim, the district court stated that Ross had presented little or no
evidence to support his claim that defense counsel failed to investigate and
present mitigating evidence. The court noted that, although an investigator for
Ross had interviewed seven witnesses and summarized their evidence in a
statement for the state habeas court, only one of those witnesses, Valeria
Martin, signed a sworn affidavit stating that she would have testified at trial if
she had been asked to do so. The district court observed that the state habeas
court had compared the evidence actually presented at the punishment hearing
with Ross’s proposed additional mitigating evidence and had determined that
the additional evidence was neither powerful nor compelling, but was similar to
the evidence introduced by his attorneys. Thus the district court concluded that
Ross’s arguments that his case was comparable to Wiggins v. Smith, 539 U.S.
510 (2003), and Williams v. Taylor, 529 U.S. 362 (2000), were specious because
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Ross’s additional mitigation evidence – that he felt abandoned by his father and
wanted a male role model, that the father of one of the victims did not want him
to be sentenced to death, that his mother was unable to control her anger, that
Ross and his sisters practically raised themselves, that Ross’s former girlfriend
found him to be thoughtful and mild-mannered, and that his former girlfriend
and assault victim, Regina Carlisle, had a violent criminal past – did not rise to
the level of powerful, compelling evidence of abandonment, sexual molestation,
physical abuse, criminal neglect, diminished mental capacity, foster care,
alcoholism, and homelessness omitted from the punishment phases in Williams
and Wiggins. The district court therefore held that Ross had not demonstrated
that the state court’s adjudication of his claim was contrary to or an
unreasonable application of clearly established Supreme Court law.
IV.
Now before us, Ross requests a COA “on the issue of the failure of state
habeas counsel to provide evidence in support of their Wiggins [ineffective
assistance of trial counsel] claim.” It is important to note what Ross does not
request: He does not request a COA with respect to the district court’s denial of
his claim that the state habeas court unreasonably applied clearly established
law when it rejected his ineffective-assistance-of-trial counsel claim. In other
words, Ross does not argue that the district court erred by denying habeas relief
based on the evidence presented to the state habeas court, which did not include
trial counsels’ affidavits. Accordingly, the only question presented to us in this
COA application is whether Ross may appeal the district court’s refusal to
consider trial counsels’ affidavits – introduced for the first time in the federal
proceeding – when ruling on his ineffective-assistance-of-trial counsel claim.
A.
To obtain a COA, Ross must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
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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 v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)). “[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. In making the
decision whether to grant a COA, this Court’s examination is limited to a
“threshold inquiry,” which consists of “an overview of the claims in the habeas
petition and a general assessment of their merits.” Id. at 327, 336. We cannot
deny a COA because we believe the petitioner ultimately will not prevail on the
merits of his claims. Id. at 337. On the other hand, “issuance of a COA must not
be pro forma or a matter of course.” Id. “While the nature of a capital case is not
of itself sufficient to warrant the issuance of a COA, in a death penalty case any
doubts as to whether a COA should issue must be resolved in the petitioner’s
favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (brackets, internal
quotation marks, and citations omitted).
B.
1.
In seeking our authority for this appeal, Ross’s sole focus is on the failure
of state habeas counsel. Ross argues that the negligent failure of state habeas
counsel to obtain affidavits from state trial counsel deprived him of a full and
fair hearing on his ineffective-assistance-of-trial-counsel claims in both state and
federal court. He cites the Supreme Court’s recent decision in Martinez v. Ryan,
132 S. Ct. 1309, 1315 (2012) (holding that ineffective “assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial”), and contends
that Texas is a jurisdiction in which a petitioner may raise a claim of ineffective
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assistance of trial counsel only in state habeas proceedings – not in a direct
appeal of his conviction. Ross asserts that the failure of state habeas counsel to
interview or obtain affidavits from trial counsel is the type of ineffective habeas
counsel contemplated in Martinez. He asserts that because of this failure of
habeas counsel, he did not have a full and fair hearing of his claims in the state
habeas court, and consequently, the district court’s reliance on Cullen v.
Pinholster as a basis for refusing to consider the affidavits of trial counsel
disregarded the holding in Martinez. According to Ross, Pinholster’s strict
limitation on new evidence in the federal habeas proceeding presupposes that
a fair and complete state court record is before the federal court, which is not the
case here. He therefore contends that the failure of state habeas counsel to
present trial counsel’s affidavits in state court is a procedural default that should
now be excused.
2.
In response, the State points out that before the district court, Ross argued
only that all state remedies concerning the affidavits had been exhausted and
could be considered by the district court, because they merely supplemented the
evidence offered in the state habeas proceeding, but did not fundamentally alter
the claim presented. The State therefore contends that Ross has forfeited his
argument that state habeas counsel were ineffective for failing to obtain and
present the affidavits of trial counsel to the state habeas court, and that the
ineffective assistance of state habeas counsel should serve as cause to excuse this
default and allow consideration of the affidavits for the first time in federal
court. The State contends further that Martinez v. Ryan is inapplicable to
habeas proceedings arising in Texas because Texas does not restrict ineffective
trial counsel claims to habeas proceedings. Nor should it otherwise apply to the
circumstances of Ross’s case: Ross’s state habeas counsel did not procedurally
default the ineffective-assistance-of-trial-counsel claims; further, neither did the
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state or federal courts apply a procedural bar to foreclose review of those claims.
Instead, the district court only refused to consider the newly presented affidavits
based upon the Supreme Court’s specific holding that federal review is limited
to the record that was before the state habeas court. Pinholster, 131 S. Ct. at
1398. Furthermore, Martinez applies to claims, not to evidence supporting
claims. Finally, the State contends that even should Martinez apply, and state
habeas counsel’s deficient performance should serve as cause to excuse the
failure to present the affidavits in state court, Ross still cannot establish
prejudice because the underlying claims of ineffective assistance of trial counsel
are not “substantial.” See Martinez, 132 S. Ct. at 1318 (to overcome procedural
default of ineffective assistance of trial counsel claim, “a prisoner must also
demonstrate that the . . . claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit”). The State contends
that even if we were to consider the affidavits of trial counsel, the affidavits
would at most support – but not prove – that trial counsel performed deficiently.
According to the State, neither affidavit bears on whether trial counsel’s
ineffectiveness prejudiced Ross’s defense; nor does Ross even suggest how
reasonable jurists could debate the controlling deference owed to the state
court’s findings on prejudice.
C.
The State is correct that Ross did not argue to the district court that the
ineffectiveness of state habeas counsel excused the failure to produce the
affidavits to the state habeas court. As we have already noted, Ross only argued
in the district court that the affidavits should be considered procedurally
exhausted in state court because they did not fundamentally alter the claim
presented in state court. He did not argue that the failure to present the
affidavits in state court should be excused because of the ineffective performance
of state habeas counsel.
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The general rule, routinely applied except in rare circumstances not
present here, is that we will not consider arguments raised for the first time on
appeal. See Bower v. Quarterman, 497 F.3d 459, 475 (5th Cir. 2007). Because
Ross did not argue in the district court that the affidavits should have been
admitted on the basis of his state habeas counsel’s ineffective performance we
decline to consider that argument now.
We further find that reasonable jurists could not disagree with the district
court’s application of Pinholster. In Pinholster, the Supreme Court expressed
itself clearly when it stated:
We now hold that review under § 2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on the
merits. Section 2254(d)(1) refers, in the past tense, to a state-court
adjudication that “resulted in” a decision that was contrary to, or
“involved” an unreasonable application of, established law. This
backward-looking language requires an examination of the state-
court decision at the time it was made. It follows that the record
under review is limited to the record in existence at that same time
i.e., the record before the state court.
Pinholster, 131 S. Ct. at 1398.
The Court also rejected a suggested exception to the state-record-only rule
– that new evidence may be introduced in the federal proceeding as long it
“supports” an adjudicated claim:
The State . . . asserts that some of the evidence adduced in the
federal evidentiary hearing fundamentally changed Pinholster’s
claim so as to render it effectively unadjudicated. Pinholster
disagrees and argues that the evidence adduced in the evidentiary
hearing simply supports his alleged claim.
We need not resolve this dispute because, even accepting
Pinholster’s position, he is not entitled to federal habeas relief.
Pinholster has failed to show that the California Supreme Court
unreasonably applied clearly established federal law on the record
before that court, which brings our analysis to an end. Even if the
evidence adduced in the District Court additionally supports his
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claim, as Pinholster contends, we are precluded from considering it.
Id. at 1402 n.11 (citations omitted).
We are further unpersuaded by Ross’s argument that Pinholster applies
only when a fair and complete state court record is before the federal court. As
we recently held in Lewis v. Thaler, 701 F.3d 783, 791 (5th Cir. 2012), when a
federal habeas petitioner’s claims have been adjudicated on the merits in state
court, as Ross’s ineffective assistance of trial counsel claims have been, “§ 2254
limits our review to the record that was before the state court.” Accordingly, the
district court correctly refused to consider trial counsels’ affidavits, which were
presented for the first time in the federal proceeding.
In rendering our decision we do not reach Ross’s argument that the
Supreme Court’s decision in Martinez created a routine Pinholster exception –
thus allowing a federal habeas court to consider evidence that was not presented
in state court – for cases in which a petitioner is denied a full and fair hearing
in the state habeas courts because of the ineffectiveness of his state habeas
counsel. Because Ross did not argue in the district court that his state habeas
counsel was deficient for failing to obtain affidavits from state trial counsel, we
need not address the applicability of Martinez.
Because the district court’s refusal to consider the affidavits is fully
supported by Pinholster, its decision is not debatable and the issue is not
adequate to deserve encouragement to proceed further. We therefore deny
Ross’s request for a COA.
V.
To sum up: Ross did not argue in the district court, and thus forfeited, his
argument that, notwithstanding Pinholster, the district court could consider trial
counsels’ affidavits on the grounds that ineffective assistance of state habeas
counsel excused the failure to produce those affidavits to the state habeas court.
Alternatively, if we assume that the argument is not forfeited, the district court’s
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refusal to consider the affidavits of trial counsel is not debatable or wrong,
because Pinholster dictates that result. We do not reach Ross’s argument that
Martinez applies to this case. The bottom line: Because Ross has failed to make
a substantial showing of the denial of a constitutional right, his application for
a COA is
DENIED.
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