Smith v. Dretke , 89 F. App'x 859 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
January 7, 2004
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
__________________
No. 03-20326
__________________
CLYDE SMITH, JR.,
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, Houston
H-01-CV-4294
______________________________________________
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioner Clyde Smith, Jr., was convicted of capital murder in Texas and sentenced to death.
Smith filed a petition for a writ of habeas corpus in the United States District Court for the Southern
District of Texas pursuant to 28 U.S.C. § 2254. The district court denied Smith’s petition. The
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
district court also sua sponte denied Smith a certificate of appealability (“COA”). Smith now
requests a COA from this Court pursuant to 28 U.S.C. § 2253(c)(2). For the following reasons,
Smith’s Motion for a Certificate of Appealability is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
After Petitioner was convicted and his sentence imposed, the Texas Court of Criminal Appeals
affirmed the conviction and sentence on direct appeal in 1996. Petitioner did not seek certiorari in
the Supreme Court of the United States.
In 1997, Petitioner filed a state application for a writ of habeas corpus. The state trial-level
habeas court, without holding an evidentiary hearing on Petitioner’s claims, recommended to the
Texas Court of Criminal Appeals that Petitioner’s application be denied. In 2001, the Texas Court
of Criminal Appeals agreed and denied Petitioner’s application. Later that year, Petitioner filed the
federal petition for a writ of habeas corpus, the denial of which he seeks to appeal, in the United
States District Court for the Southern District of Texas.
Petitioner raised the same issues in the district court that he presents in his request for a COA.
Petitioner’s primary argument in the district court was that his state trial counsel was ineffective
because that counsel failed to properly investigate abuse that Petitioner suffered as a child. Petitioner
claims that evidence of this abuse should have been presented to the jury during the punishment phase
of his trial, and that the failure to do so deprived him of his constitutional right to adequate counsel.
The district court did not fully consider all of the evidence presented to it by Petitioner.
Petitioner submitted affidavits supporting his claim to the district court that were not presented to the
state courts. The district court held that, although Petitioner “proceeds in federal court under the
same constitutional provision and with the same general arguments as in state court, his failure to
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raise a defensible and supported claim in state court, combined with his choice to provide this Court
with substantial previously-discoverable evidence, render his reliance on the affidavits unexhausted.”
Mem. Op. and Order at 23 (Mar. 10, 2003) (Dist. Ct. Doc. 25); see Barrientos v. Johnson, 221 F.3d
741, 761 (5th Cir. 2000). Because Petitioner did not show cause and prejudice to overcome the
procedural bar to the district court considerat ion of the unexhausted material, the district court
disregarded the material. See Goodwin v. Johnson, 132 F.3d 162, 190 (5th Cir. 1997). Accordingly,
the district court looked only to the evidence presented to the state courts and, based upon that
evidence, denied the petition.
II. STANDARD OF REVIEW
Smith filed his Section 2254 petition for a writ of habeas corpus after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). The petition, therefore, is subject to the
procedures imposed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Under the AEDPA, a petitioner must obtain a COA before an appeal can be taken to this
Court. See 28 U.S.C. § 2253(c)(2) (2003); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(“[U]ntil a COA has been issued 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 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. “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 if the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2003). “A pet itioner satisfies this standard by
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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. “The question is the debatability of
the underlying constitutional claim, not the resolution of that debate.” Id. at 342. “Indeed, 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,
“[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue
must be resolved in [Petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
Though the district court did address the merits of the petition, the court did so after
excluding evidence presented to it. The district court held that the presentation of such evidence was
procedurally barred because the evidence was partially unexhausted in state court. The district court
made its substantive determination based upon less than all of the information available to it. If the
procedural ruling was incorrect, then the district court did not fully reach Petitioner’s underlying
constitutional claim. The district court’s denial of Petitioner’s application, therefore, is properly
characterized as a procedural denial. “[W]hen the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should
issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, that
jurist s 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.” Slack v. McDaniel, 529 U.S. 473, 478 (2000).
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III. ANALYSIS
a. Foreclosed issues
Petitioner bases his petition for a writ of habeas corpus upon five issues. Petitioner concedes
that four of the issues are foreclosed by directly contrary Fifth Circuit precedent that binds this panel.
As such, it is not debatable that these claims would fail on appeal to a panel of this Court.
Accordingly, Petitioner raises the foreclosed issues only to preserve them for possible en banc or
Supreme Court review. The foreclosed issues are: 1) that Petitioner’s property was seized in
violation of the Fourth Amendment and statements he made to Police resulted from that seizure, and
the state trial court erred by not excluding the evidence, 2) that the state trial court refused to inform
the jury that Petitioner would have been required to serve a minimum of 35 years in prison before he
would have become eligible for parole had he been sentenced to life imprisonment, 3) that the state
trial court did not require the State to prove a lack of mitigating circumstances beyond a reasonable
doubt, and 4) that the state trial court limited the concept of mitigation to factors that render a
defendant less “morally blameworthy” for the offense charged. We agree that these issues are
foreclosed as conceded in Petitioner’s brief and deny the request for a certificate of appealability with
respect to the same.
b. Ineffective assistance of counsel
The single issue Petitioner does not concede as being foreclosed is Petitioner’s claim that his
trial counsel was ineffective at the punishment stage of his trial for failing to investigate and present
evidence of Petitioner’s childhood abuse. We review this claim under the two-pronged Slack test.
See Slack, 529 U.S. at 478.
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1. Debatability of whether there is a valid claim of the denial of a constitutional right
To prevail on a claim of ineffective assistance of counsel, Petitioner must show (1) that his
counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and
(2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668,
689-94 (1984). The district court noted that had it considered all of the evidence presented to it, the
court’s determination as to the first prong would have been a more difficult question. See Mem. Op.
and Order at 30 n16 (Mar. 10, 2003) (Dist. Ct. Doc. 25). We agree with the district court and hold
that resolution of the first Strickland prong is debatable.
The district court also noted, however, that Petitioner suffered no constitutional prejudice as
a result of any deficiency. See Mem. Op. and Order at 31-32 n.17 (Mar. 10, 2003) (Dist. Ct. Doc.
25). This second-prong analysis is, however, debatable. Citing our case law, the district court
acknowledged that the prejudice inquiry is very difficult. Id. (quoting Tucker v. Johnson, 242 F.3d
617, 623 (5th Cir. 2001)). Moreover, the district court’s analysis in this respect was cursory because,
under the district court’s analysis, this was not the lynchpin issue. Therefore, prior to the exclusion
of evidence, and without undertaking a full review of the issue, “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack, 529
U.S. at 478. Petitioner has satisfied the first requirement of the Slack COA analysis.
2. Debatability of the district court’s procedural ruling
“[S]upplemental evidence that does not ‘fundamentally alter the legal claim already considered
by the state courts’ does not ‘require that the [habeas petitioner] be remitted to state court for
consideration of that evidence.’” Anderson v. Johnson, 338 F.3d 382, 388 n.24 (quoting Vasquez v.
Hillery, 474 U.S. 254, 262 (1986)). “[W]hether evidence ‘fundamentally alters’ or merely
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‘supplements’ the state petition is an inquiry that is, by necessity, case and fact specific.” Id.
The district court noted that Petitioner “proceeds in federal court under the same
constitutional provision and with the same general arguments as in state court.” Mem. Op. and Order
at 23 (Mar. 10, 2003) (Dist. Ct. Doc. 25). In reaching its partial exhaustion holding, the district court
found that Petitioner did not support his claim whatever in state court. We note, however, that the
state habeas court did not hold an evidentiary hearing. Even when claims are in a stronger evidentiary
position in the federal habeas proceedings than they were in the state court proceedings, the issue may
still be exhausted. See Anderson, 338 F.3d at 388. “Exhaustion requires only that the federal claim
has been fairly presented to the state's highest court before a petitioner pursues federal relief.” Id.
at 388 n.22. This is a qualitative question that we can not dispose of with any degree of certainty
in our ruling without subjecting the claim to full review. While the district court may have been
correct in its analysis, with the limited review we must undertake at the COA stage, the correctness
of the district court’s procedural ruling is debatable. Petitioner, then, has satisfied the second prong
of the two-pronged Slack COA analysis.
IV. CONCLUSION
Petitioner has satisfied this Court that reasonable judges would find it debatable whether the
district court was correct in its procedural ruling excluding evidence that tended to indicate his trial
counsel was ineffective. Likewise, in light of the debatability of the procedural ruling, Petitioner has
satisfied the Court that reasonable judges would find it debatable whether the petition states a valid
claim of the denial of a constitutional right. A COA must issue, therefore, as to Petitioner’s claim of
ineffective assistance of counsel so that this Court may fully review the issue. Petitioner’s other
claims are not debatable under this Court’s precedent.
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Petitioner’s Motion for Certificate of Appealability is GRANTED IN PART. Petitioner may
appeal to this Court the district court’s denial of his application for a writ of habeas corpus with
respect to his ineffective assistance of counsel claim, including the district court’s procedural ruling
that it could not consider certain evidence because the evidence was unexhausted in state court. In
all other respects, Petitioner’s Motion for Certificate of Appealability is DENIED.
GRANTED IN PART. DENIED IN PART.
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