Chambers v. Quarterman ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 19, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-11248
_____________________
RONALD CURTIS CHAMBERS,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas
USDC No. 3:99-CV-1283-L
_________________________________________________________________
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Ronald Curtis Chambers was convicted and sentenced to death in
1976 for capital murder during the course of a robbery. He
requests a certificate of appealability (“COA”) to appeal the
district court’s denial of federal habeas relief for sixteen
claims. The request is GRANTED, in part, and DENIED, in part.
I
To obtain a COA, Chambers must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A).
*
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this opinion should not be published and is not precedent except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.
To make such a showing, he must demonstrate 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). In
making our decision whether to grant a COA, we conduct 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.
A
Based on our limited, threshold inquiry and general assessment
of the merits of Chambers’s claims, we conclude that the following
claims present issues that are adequate to deserve encouragement to
proceed further:
Claim 1. Whether Chambers’s Sixth Amendment right to counsel
was violated when one of two attorneys appointed to represent him
on the direct appeal of his third conviction had a conflict of
interest based on that attorney’s representation of Chambers’s
accomplice in guilty plea proceedings in 1975.
Claim 2, subparts a, c, and e. Whether Chambers’s appellate
counsel rendered ineffective assistance by:
a. failing to appeal the denial of Batson objections to the
prosecution’s peremptory strikes of three minority jurors;
c. failing to appeal the prosecutor’s comment on the
defense’s failure to produce photographs;
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e. Failing to appeal the admission of testimony from a news
reporter regarding statements made by Chambers while on death row.
Claims 5-6. Whether Chambers’s Eighth Amendment rights were
violated by the trial court’s refusal to permit the introduction of
evidence of his accomplice’s criminal history to demonstrate his
comparative culpability; and, alternatively, whether appellate
counsel rendered ineffective assistance by failing to raise this
issue on appeal.
Claims 14-16. Whether the Texas capital punishment statute is
unconstitutional as applied to Chambers because it prohibited the
jury from considering mitigating evidence, and because it
prohibited the court from submitting to the jury a special issue
regarding whether mitigating evidence warranted a life sentence.
Accordingly, we GRANT a COA for these claims. If petitioner
Chambers wishes to file a supplemental brief with respect to the
claims for which a COA has been issued, he may do so within thirty
days. The supplemental brief should address only matters that have
not already been covered in the brief in support of the COA
application. The State may file a reply fifteen days thereafter.
B
Chambers has failed to demonstrate that jurists of reason
could disagree with the district court’s resolution of the issues
presented in the following claims, and we therefore DENY his
request for a COA for those claims, for the reasons set forth
below:
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Claim 2, subpart b: Whether appellate counsel rendered
ineffective assistance by failing to challenge on direct appeal the
State’s argument that a not guilty verdict must be based upon
unanimous reasonable doubt. The prosecutor told the jury, during
closing argument at the guilt-innocence phase, that it could find
Chambers guilty of capital murder only if all twelve jurors
unanimously found reasonable doubt. Chambers speculates that the
jurors carried this misunderstanding to the special issues and
inaccurately believed that unanimity was required on each of the
special issues in order for a life sentence to be imposed. He also
claims that the prosecutor reversed the burden of proof, telling
jurors that the burden was on Chambers to convince all twelve
jurors that reasonable doubt existed before he could escape a
capital murder verdict. The Texas Court of Criminal Appeals
adopted the state habeas court’s findings and conclusions that:
(1) the prosecutor’s argument was proper because he neither
contradicted the court’s charge nor misstated the law; (2) assuming
arguendo that the argument was improper, any error was cured when
the court instructed the jury to read and follow the charge; and
(3) appellate counsel were not ineffective for making the
reasonable decision not to raise this issue on appeal. The
district court found that the prosecutor’s statements merely
paraphrased the jury charge: Before the jury could consider the
lesser offense of murder, it had to first acquit Chambers of
capital murder, and the verdict had to be unanimous. The district
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court concluded that, because the prosecutor’s argument was
consistent with the jury charge, there was no error for appellate
counsel to raise on appeal. The district court’s resolution of
this sub-claim is not debatable.
Claim 2, subpart d: Whether appellate counsel rendered
ineffective assistance by presenting his Penry claims on direct
appeal as fundamental error under state law, based on their
erroneous belief that objections had been waived. Chambers argues
that all of the objections had been preserved by written motion.
The Texas Court of Criminal Appeals adopted the state habeas
court’s factual finding that appellate counsel cited the correct
appellate standard. The state habeas court found that the motion
filed two months before trial “neither enabled the trial court to
know in what respect Chambers regarded the charge as defective nor
afforded the trial court an opportunity to correct it before
reading the charge to the jury”. The district court held that,
because the state court had authoritatively ruled on this matter of
state procedural law, the court was not entitled to re-interpret
state law differently on federal habeas review. Reasonable jurists
would not consider the district court’s resolution of this issue to
be debatable.
Claim 2, subpart f: Whether appellate counsel rendered
ineffective assistance by failing to raise on appeal the trial
court’s failure to include an anti-parties charge at sentencing and
an application paragraph in the guilt-innocence instructions
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applying the law of parties to Chambers’s accomplice. Under Texas
law, it is error to refer to the law of parties in the abstract
portion of the guilt-innocence charge and not to apply the law or
to refer to that law in the application paragraph of the charge.
Furthermore, if there is a parties charge at the guilt-innocence
phase, the defendant is entitled to an anti-parties charge (an
instruction that the law of parties may not be considered by the
jury in assessing punishment or in answering the special issues in
a capital case) at the punishment phase if the defendant requests
such an instruction. Chambers contends that the instructions in
the guilt phase included a parties instruction:
You are instructed that an “accomplice,”
as that term is hereafter used, means any
person connected with the crime charged, as a
party thereto, and includes all persons who
are connected with the crime, as such parties,
by unlawful act or omission on their part
transpiring either before or during the time
of the commission of the offense. A person is
criminally responsible as a party to an
offense if the offense is committed by his own
conduct, by the conduct of another for which
he is criminally responsible, or by both.
Mere presence alone, however, will not
constitute one a party to an offense.
Chambers therefore contends that he was entitled to an application
paragraph pertaining to Williams, and an anti-parties charge at the
punishment phase, and that appellate counsel rendered ineffective
assistance by not raising these issues on direct appeal. The state
habeas court found that a parties application paragraph was not
required because the jury instructions in the guilt-innocence phase
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did not contain a parties charge (although they did contain an
accomplice witness instruction), and because the charge, read as a
whole, demonstrated that the State tried Chambers as the primary
actor, and not as a party. Therefore, the court concluded that an
anti-parties charge was not warranted in the jury instructions for
the punishment phase. The district court held that the prosecution
did not rely on party liability for a finding of guilt, and that
the charge permitted a verdict of guilty only upon evidence
establishing that Chambers’s own conduct caused the death of the
victim in the course of a robbery. Accordingly, even if the
accomplice witness instruction could be construed as a parties
instruction, the district court held that Chambers was not harmed
by the omission of an application paragraph. The district court
held that because the jury was instructed that it could find
Chambers guilty of capital murder based only on his own conduct, no
anti-parties instruction was required at the punishment phase.
Jurists of reason would not debate the district court’s resolution
of this sub-claim.
Claim 2, subparts g-o: Whether appellate counsel rendered
ineffective assistance by failing to raise on appeal the following
issues: (g) denial of his objection to victim impact testimony;
(h) denial of his motion to dismiss jurors who had read certain
news accounts; (i) denial of his request for a change of venue and
continuance; (j) improper excusal of several jurors for cause; (k)
denial of his objection to the trial court’s admission of four
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autopsy photographs; (l) denial of hearsay objections; (m) refusal
to release the statement of a convicted accomplice; (n) refusal to
excuse several jurors for cause; and (o) denial of a motion for new
trial based on jury misconduct. Chambers states that page
limitations required him to omit discussion of these sub-claims
(designated as claims 5-11 and 15-16 in the district court) in his
brief in support of his COA application, and he attempts to
incorporate by reference his briefing of these issues in district
court. Chambers did not, however, request permission from this
court to exceed the page limitations. Based on our precedent, we
will not consider these unbriefed issues. See Matchett v. Dretke,
380 F.3d 844, 848 (5th Cir. 2004) (claims not addressed in brief in
support of COA application deemed abandoned); Woods v. Cockrell,
307 F.3d 353, 357 (5th Cir. 2002) (inadequately briefed issues are
waived); Martin v. Cain, 246 F.3d 471, 475 n.1 (5th Cir. 2001)
(holding that court will not consider COA requests that are not
briefed).
Claim 3: Whether trial counsel rendered ineffective
assistance by failing to seek a parties application jury
instruction at the guilt-innocence phase of trial, followed by an
anti-parties charge at sentencing. As discussed supra, in sub-
claim 2-f, Chambers argued that appellate counsel rendered
ineffective assistance by not challenging on appeal the trial
court’s failure to include a parties application paragraph in the
instructions at the guilt-innocence phase and an anti-parties
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charge in the sentencing instructions. In Claim 3, he contends, in
the alternative, that if the court holds that trial counsel waived
error, then trial counsel rendered ineffective assistance by
failing to request such instructions. Reasonable jurists would not
find debatable the district court’s decision that there was no
error for trial counsel to waive, because there was no parties
instruction upon which to base an application paragraph or an anti-
parties charge.
Claim 4: Whether the claims that were not raised on direct
appeal are procedurally defaulted and/or barred by Teague v. Lane,
489 U.S. 288 (1989), and whether such claims constitute fundamental
error such that the failure to address them on the merits will
violate Chambers’s rights to procedural and substantive due process
and the Eighth Amendment. The district court held that the claims
that were not raised on direct appeal are procedurally defaulted,
Teague-barred, and meritless, because Chambers has no due process
and Eighth Amendment right to federal review of claims not raised
at the state level. The district court also held that Chambers had
not “shown that the state procedural rule is not adequate to bar
federal review; nor has he shown that sufficient cause and
prejudice exist to excuse the procedural default, or that
imposition of the bar would result in a fundamental miscarriage of
justice.” Reasonable jurists would not find the district court’s
rejection of this claim debatable or wrong.
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Claim 7: Whether Chambers’s execution after such a lengthy
delay would violate the Eighth Amendment. Chambers was arrested in
April 1975 and has been in custody since that time. He has been
tried, convicted, and sentenced to death three times. His first
(1976) conviction was reversed in a second state habeas action in
1984, because the State’s psychologist had interviewed him without
informing him that his statements would be used to obtain a death
sentence. Ex parte Chambers, 688 S.W.2d 483 (Tex. Crim. App.
1984), cert. denied, 474 U.S. 864 (1985). His second (1985)
conviction was reversed on direct appeal because of Batson
violations. Chambers v. State, 784 S.W.2d 29 (Tex. Crim. App.),
cert. denied, 496 U.S. 912 (1989). He was convicted for the third
time in 1992. He argues that his execution after such a lengthy
delay would violate the Eighth Amendment. He claims to be one of
the two or three longest-serving death row inmates in the United
States. The district court held that this claim is Teague-barred
and foreclosed by Fifth Circuit precedent. See Lackey v. Johnson,
83 F.3d 116 (5th Cir. 1996). The district court’s resolution of
this claim is not debatable.
Claims 8-10: Whether Chambers’s Eighth Amendment and
procedural due process rights were violated because the trial court
applied the wrong sentencing statute; alternatively, if trial and
appellate counsel waived this claim, whether he received
ineffective assistance of counsel. Chambers argues that the trial
court erred by failing to give him the benefit of the 1991
10
amendments to the capital sentencing statute, which required the
court to instruct the jury to consider mitigating evidence and to
submit a new special issue on mitigation. The Texas Court of
Criminal Appeals adopted the findings of the state habeas court
that Chambers’s jury was correctly instructed to answer the special
issues pursuant to the pre-1991 version of the statute. The
district court declined to review the state court’s interpretation
of state law and concluded that no waiver of error was present to
support a claim of ineffective assistance of trial and appellate
counsel. Reasonable jurists would not debate the district court’s
resolution of these claims.
Claims 11-12: Whether the jury misunderstood key terms used
in the sentencing phase instructions and did not feel able to give
effect to mitigating evidence. In support of these claims,
Chambers argues that social science evidence and testimony by the
jury foreperson prove that the jury did not understand or feel able
to give effect to mitigating evidence, and did not understand the
terms “deliberately”, “criminal acts of violence”, “probability”,
“continuing threat”, and “society”, as used in the sentencing phase
instructions. The Texas Court of Criminal Appeals adopted the
findings of the state habeas court that the affidavits of six
social scientists were unpersuasive because they were written for
a habeas proceeding in another case which had a different jury
charge in the punishment phase; and the jury foreperson’s affidavit
was not credible. The district court held that Chambers failed to
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rebut the state court’s presumptively correct factual findings.
Reasonable jurists would not find the district court’s resolution
of these claims to be debatable or wrong.
Claim 13: Whether Chambers received ineffective assistance of
counsel during his second trial, which resulted in the admission of
damaging evidence in his third trial. The Texas Court of Criminal
Appeals adopted the state habeas court’s conclusion that Chambers
had waived review of this claim because he cited no authority for
the proposition that ineffective assistance of counsel in a
previous trial is cognizable in a post-conviction proceeding
regarding a subsequent trial. The district court held that the
claim was procedurally defaulted, and that Chambers had not shown
cause or prejudice to excuse the default. It also noted that the
claim is Teague-barred. Reasonable jurists would not debate
whether the district court properly rejected as procedurally
defaulted and Teague-barred Chambers’s claim that habeas relief is
available for alleged ineffective assistance of counsel arising out
of a previously reversed conviction.
Accordingly, we DENY a COA for those claims.
COA GRANTED in part and DENIED in part.
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