Lucio v. Lumpkin ( 2021 )

Case: 16-70027 Document: 00515739449 Page: 1 Date Filed: 02/09/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 9, 2021
No. 16-70027 Lyle W. Cayce
Clerk
Melissa Elizabeth Lucio,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:13-CV-125
Before Owen, Chief Judge, and Higginbotham, Jones, Smith,
Stewart, Dennis, Elrod, Southwick, Haynes, Graves,
Higginson, Costa, Willett, Ho, Duncan, Engelhardt, and
Oldham, Circuit Judges.*
Andrew S. Oldham, Circuit Judge, announced the judgment of the
court and delivered an opinion joined by Owen, Chief Judge, and Jones,
Smith, Ho, Duncan, and Engelhardt, Circuit Judges:
*
This case was submitted before Judge Wilson was confirmed to our court. Judge
Wilson did not take part in the consideration or decision of this case.
Case: 16-70027 Document: 00515739449 Page: 2 Date Filed: 02/09/2021
No. 16-70027
A Texas jury convicted Melissa Lucio of capital murder for beating to
death her two-year-old daughter. The state courts affirmed her conviction
and sentence on direct appeal and denied her petition for postconviction
relief. Now she seeks federal habeas relief. Lucio argues that the state trial
court denied her constitutional right to present a complete defense by
excluding two expert witnesses from testifying at the guilt phase of her trial.
The federal district court held that she cannot surmount the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Ten members of the
en banc court agree with that judgment. We affirm.
I.
We begin with the tragic facts of this case. Then we turn to Lucio’s
proceedings in state and federal court. This case turns on the ever-evolving
arguments that Lucio offered at trial, on direct appeal, in state habeas, and in
federal habeas. So we recount the procedural history in detail.
A.
On the night of February 17, 2007, paramedics responded to a call at
the home shared by Lucio and her husband Robert Alvarez. ROA.14936–37,
14981–82. The call concerned the couple’s young daughter, Mariah.
ROA.14936. When the EMTs arrived, they found Mariah on the living-room
floor. ROA.14922–23, 14936. No one was near her. ROA.14922. Her body
was covered with bruises in various stages of healing, her arm had been
broken for several weeks, she had a bite mark on her back, and some of her
hair had been pulled out. ROA.14813–16, 14937, 15051–54, 15066. She was
not breathing. ROA.14923. She had no pulse. ROA.14923.
The EMTs tried to resuscitate Mariah and rushed her to the hospital.
ROA.14924–28. In the emergency room, a doctor also tried to revive Mariah.
ROA.14813. Those efforts were unsuccessful. ROA.14813. Mariah was
pronounced dead. ROA.14813. She was two years old. ROA.14922.
2
Case: 16-70027 Document: 00515739449 Page: 3 Date Filed: 02/09/2021
No. 16-70027
On the night of Mariah’s death, Lucio told the EMTs and the police
that Mariah fell down the stairs. ROA.8104–05, 14924. Later that night,
during a videotaped interview with investigators, Lucio explained that she
had caused the bruises on Mariah’s body by spanking Mariah “real hard”
and by pinching her vagina. ROA.8224–25. Lucio said “nobody else would
hit her.” ROA.8189. As for the bitemark on Mariah, Lucio explained that two
weeks before Mariah’s death, while Lucio combed Mariah’s hair, Lucio grew
frustrated with her other “kids jumping around.” ROA.8223. Although
Mariah had done nothing wrong, Lucio “placed [her] mouth over [Mariah’s]
back and bit her.” ROA.8222. During the interrogation, Lucio denied ever
punching Mariah, ROA.8227, causing the scratches on Mariah’s face,
ROA.8228, hitting Mariah on the head, or killing Mariah. ROA.8200. But
she also told investigators, “I’m responsible for it.” ROA.5395.
Following the interrogation, Lucio made a phone call. A police officer
who had been present with Lucio during the phone call testified that Lucio
had told her sister, “Don’t blame Robert. This was me. I did it. So don’t
blame Robert.” ROA.14990–91.
The State of Texas charged Lucio with capital murder. At the trial,
Lucio’s sister took the stand and testified about the phone call. She denied
that Lucio said, “This was me. I did it.” ROA.15203. Rather, Lucio’s sister
said that they only discussed spanking, and that Lucio said, “I would spank
the kids.” ROA.15203. Lucio’s sister also denied that Lucio spanked Mariah.
In the sister’s account, Lucio “never disciplined her children.” ROA.15200.
The jury also heard testimony concerning Mariah’s injuries. The
forensic pathologist who performed Mariah’s autopsy testified that her
injuries were not the result of a fall: “[T]his is a child that’s been beaten. This
is a battered child.” ROA.15070–71. In the pathologist’s expert opinion,
Mariah died from blunt-force trauma to the head. ROA.15096. At trial, the
3
Case: 16-70027 Document: 00515739449 Page: 4 Date Filed: 02/09/2021
No. 16-70027
emergency-room doctor who tried to revive Mariah testified that this was the
“absolute worst” case of child abuse he’d seen in his thirty-year career.
ROA.14821. To rebut this evidence, Lucio’s medical expert opined that
Mariah was physically abused. But he also stated that her death could’ve been
caused by either a fall or being “[h]it by a strong force.” ROA.15194.
The defense sought to call two additional expert witnesses, Dr. John
Pinkerman and Ms. Norma Villanueva. The defense offered Pinkerman, a
psychologist, to testify about Lucio’s personal background and
“psychological functioning.” ROA.15301. The trial court excluded it on the
ground that such evidence is relevant only at the sentencing phase of a capital
trial. See Tex. Code Crim. Proc. art. 37.071(e)(1) (tasking the jury, only
after finding the defendant guilty, with considering “the defendant’s
character and background,” “the personal moral culpability of the
defendant,” and “mitigating” evidence). So to preserve the issue for
appellate review, defense counsel took Pinkerman’s testimony for an offer of
proof. 1 Here is the entirety of what Pinkerman offered to prove in the state
trial court:
On the basis of my review of information, consultation with
additional experts, and the evaluation that I have done with the
defendant Mrs. Lucio, I was going to testify about the
characteristics and makeup of her psychological functioning. I
was also going to address how her demeanor, both immediately
after the incident and during the interrogation, may be
understood by understanding and appreciating the
psychological elements and previous history and background
1
“The primary purpose of an offer of proof is to enable an appellate court to
determine whether the exclusion was erroneous and harmful.” Mays v. State, 285 S.W.3d
884, 890 (Tex. Crim. App. 2009) (quotation omitted). A secondary purpose is to allow the
trial court “to reconsider [a] ruling in light of the actual evidence.” Ibid. (quotation
omitted).
4
Case: 16-70027 Document: 00515739449 Page: 5 Date Filed: 02/09/2021
No. 16-70027
that she has lived through. I was also going to address the
notion of how difficult it might have been for her to step into
some of the treatment, even though it was minimally offered.
And those are the highlights.
ROA.15301. Pinkerman did not proffer any opinions on the credibility of
Lucio’s statements during her interrogation. As Pinkerman acknowledged in
a post-trial affidavit prepared for Lucio’s state habeas proceeding, that issue
was “never raised at the pretrial [sic] or trial.” 2 ROA.8975.
The defense also offered the testimony of Ms. Villanueva, a licensed
clinical social worker, on “why [Lucio] . . . would have given police officer[s]
information in [her] statement that was not correct.” ROA.4691. The trial
court conducted a Daubert hearing. 3 See Tex. R. Evid. 702. During it,
2
Though defense counsel initially suggested Pinkerman might testify that “as a
battered woman, [Lucio] takes blame for everything that goes on in the family,”
ROA.15293, Pinkerman’s testimony in the offer of proof included no such opinion.
Moreover, Pinkerman’s expert report—authored two days before he made his offer of
proof—says nothing about battered woman syndrome, nor does it say that Lucio takes the
blame for anything. See infra Part III.B.3. The Texas Court of Criminal Appeals thus held
that no such proffer was preserved in the trial court. See Lucio v. State, 351 S.W.3d 878, 902
(Tex. Crim. App. 2011) (“Therefore, appellant’s claim on appeal as to what Pinkerman’s
testimony would have been does not comport with Pinkerman’s proffered testimony at
trial. Nor does it comport with what the trial attorney claimed that he was offering it for.”
(citation omitted)); cf. Mays, 285 S.W.3d at 891 (holding that an offer of proof must contain
“substance” that “rises to the level contemplated in our Rules of Evidence and this court’s
precedent” in order to preserve an issue for appellate review); ibid. (“[T]his sort of
summary, in the most general and cursory terms, without any of the meat of the actual
evidence, will not suffice to preserve error.”).
3
The term “Daubert hearing” is a shorthand for the inquiry that federal district
courts conduct before admitting expert testimony under the federal rules of evidence. See
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). While the Supreme Court’s
decision in Daubert applies only to federal proceedings, the Texas Court of Criminal
Appeals has described the inquiry under the Texas Rules of Evidence as “virtually
identical” to the standard set out in Daubert. Hartman v. State, 946 S.W.2d 60, 62 (Tex.
Crim. App. 1997) (en banc); accord Hernandez v. State, 116 S.W.3d 26, 29 (Tex. Crim. App.
5
Case: 16-70027 Document: 00515739449 Page: 6 Date Filed: 02/09/2021
No. 16-70027
Villanueva said her expertise derived from “clinical training and clinical
experience, . . . a combination of knowing life span development theories,
clinical theories[,] and human behavior social environment interaction
theories,” ROA.4695, as well as training in deciphering body language from
“clinical sources in [her] master’s degree, [and] continuing education
courses,” ROA.4697. On the basis of that experience, Villanueva offered to
testify as follows:
I was going to testify about three separate issues. The first issue
was about patterns of behavior with Mrs. Lucio which strongly
influenced her behavior during that videotaped statement
process with the investigators that night. . . . I was also going to
testify that the patterns of behavior as seen in the Child
Protective Services records, the patterns in her family, how
that influenced her decision making and how she felt with the
different investigators, male and female, and also how she
makes her life decisions. It influenced her behavior in that—
how she felt with the different investigators male and female
and how she made her decisions in answering the questions
during that process. And lastly, looking at her CPS history,
how—and also her social history, how she deals with different
people in levels of authority, and also how that influenced her
body language, and how body language is interpreted in
different ways if you do not have her history of behaviours [sic]
or patterns of behavior or her social history.
ROA.4706–07. Villanueva emphasized that she intended to offer an opinion
about what Lucio was thinking during the interrogation and whether Lucio
was telling the truth based on Lucio’s body language. ROA.4695–96.
2003) (en banc) (per curiam); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591,
598–600 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
6
Case: 16-70027 Document: 00515739449 Page: 7 Date Filed: 02/09/2021
No. 16-70027
The state trial court found that a social worker was unqualified to
testify about body language, unlike, say, “a psychologist . . . that has done
studies on that and has [an] academic background on that.” ROA.4691. The
court therefore concluded that Villanueva was not “an expert on whether or
not [Lucio’s interrogation] statement was true or not true.” ROA.4700. The
trial court found Villanueva was “imminently qualified on the issue of
mitigation.” ROA.4700. But it found she could not hold herself “as an expert
as to why that statement is or is not true.” ROA.4700.
Ultimately, the defense argued to the jury that, because Lucio
admitted that she abused her child, the jury should credit as true her
insistence to the police that she did not hit Mariah in the head. ROA.15340–
43. The prosecution asked the jury to infer that Lucio dealt the head blow
that killed Mariah, just as Lucio had abused the child in other ways.
ROA.15354–61.
The jury found Lucio guilty of capital murder. ROA.8093. And it
found insufficient mitigating evidence to warrant a life sentence. ROA.8098.
The trial court sentenced her to death. ROA.10284.
B.
Lucio appealed. See Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App.
2011). She raised fourteen “points of error” on direct appeal to the Texas
Court of Criminal Appeals. Id. at 880. Lucio’s ninth and tenth points of error
are at issue in our decision today.
Points of error nine and ten concerned the exclusion of Villanueva’s
and Pinkerman’s opinions, respectively. Id. at 897–902; ROA.10785–86.
Lucio argued that the exclusion of those opinions at the guilt phase of her trial
violated the Fourteenth Amendment’s Due Process Clause as interpreted in
Crane v. Kentucky, 476 U.S. 683 (1986). With respect to each expert, Lucio
argued:
7
Case: 16-70027 Document: 00515739449 Page: 8 Date Filed: 02/09/2021
No. 16-70027
The defendant has a constitutional right to present evidence
before the jury as to the circumstances under which his
confession is taken. Crane v. Kentucky, 746 U.S. 683, 106 S. Ct.
2142, 90 L. Ed. 2d 636 (1986)[.] Crane deals with
circumstances like how many policemen were there, how big
the room was, how long the questioning lasted, etc. But the
principle has wider application. The reason the jury [was]
entitled to know about the circumstances under which the
statement was given [was] so that they could assess the
voluntariness of the statement and so that they could use
evidence of circumstances and their conclusion on
voluntariness to follow the judge’s instructions to disregard the
statement unless they were convinced beyond a reasonable
doubt that the statement was voluntary.
ROA.10841; ROA.10844–45 (same). Lucio insisted that both Villanueva and
Pinkerman would have offered “critical evidence” that was “so important”
that its erroneous exclusion meant Lucio deserved a new trial. ROA.10841;
ROA.10844 (same).
The Court of Criminal Appeals found Lucio’s arguments on both
points unavailing. See Lucio, 351 S.W.3d at 897–902 (overruling points of
error nine and ten). As to point nine (concerning Villanueva), the court noted
that Villanueva testified at the admissibility hearing that she would give
opinions about the truthfulness of Lucio’s videotaped statements based on
her knowledge of body language. Id. at 899–900. But on appeal, counsel
claimed she would have given an opinion on whether Lucio suffered from
battered woman syndrome. Ibid. Noting the inconsistency, the court held
that she “failed to preserve the claim that she raises on appeal.” Id. at 900.
But even if Lucio had preserved point of error nine, the Court of
Criminal Appeals held, it would not matter. The court first observed that
Villanueva’s “testimony that was actually proffered had little, if any,
relevance” to the question of voluntariness. Ibid. (emphasis added). That was
8
Case: 16-70027 Document: 00515739449 Page: 9 Date Filed: 02/09/2021
No. 16-70027
so even under Texas law, which offered broader protections than the federal
constitution. See ibid. (citing Oursbourn v. State, 259 S.W.3d 159, 172–73
(Tex. Crim. App. 2008)); see also Oursbourn, 259 S.W.3d at 173 (explaining
that Texas’s statutory protections against “involuntary” confessions are
“broader in scope than those covered by the Due Process Clause or
Miranda”). Furthermore, under the Texas Rules of Evidence, Villanueva
could not “testify that [Lucio] may have been telling the truth when she
initially denied abusing Mariah.” Lucio, 351 S.W.3d at 901 n.25 (quoting
Yount v. State, 872 S.W.2d 706, 708–09 (Tex. Crim. App. 1993) (en banc),
for the proposition that an expert’s “direct testimony as to a witnesses’ [sic]
credibility is inadmissible under [Tex. R. Evid.] 702 because it does not
concern a subject upon which the testimony of an expert would assist the trier
of fact” (emphasis in original)). The court also held that any error was
harmless. See id. at 901 & n.25. 4
As to point of error ten (concerning Pinkerman), the Court of
Criminal Appeals found similar problems. Appellate counsel argued
Pinkerman would’ve testified “that since [Lucio] was an abused woman she
would agree with anything a policeman would say.” Id. at 901 (quotation
omitted). But the court observed that was not what Pinkerman had offered at
trial. Instead, at trial, Pinkerman made a “broad and general” offer of proof
4
The Court of Criminal Appeals noted that testimony about body language might
have countered some statements by Officer Escalon, who interrogated Lucio and
commented on her demeanor. But Lucio’s “subsequent admission during her recorded
statement that she abused Mariah, followed by her demonstrating such abuse with the doll”
rendered any error on that point harmless. Lucio, 351 S.W.3d at 901 n.25. Additionally, that
wasn’t Lucio’s only admission. As the Court of Criminal Appeals noted elsewhere, the jury
could have “reasonably infer[red] that [Lucio] was referring to Mariah’s fatal injuries when
she told her sister during their cell-phone conversation that she ‘did it.’” Id. at 895. And
that statement did not occur during a custodial interrogation, could not have been
motivated by a battered woman’s willingness to tell male police officers what they wanted
to hear, and had nothing to do with body language.
9
Case: 16-70027 Document: 00515739449 Page: 10 Date Filed: 02/09/2021
No. 16-70027
that referred to Lucio’s “psychological functioning” and “demeanor.” Id. at
902 n.26 (quotation omitted). The court concluded that because of this
variance between the offer of proof at trial and Lucio’s argument on appeal,
Lucio did not preserve her appellate argument concerning Pinkerman. Id. at
902.
But even if Lucio had preserved the point, the Court of Criminal
Appeals held, it would not matter. That was because, in the court’s view,
“Pinkerman’s proffered guilt-phase testimony had little, if any, relevance”
to the voluntariness of Lucio’s interrogation statements. Ibid. (citing
Oursbourn, 259 S.W.3d at 172–73). The court also held the exclusion of
Pinkerman’s opinion was harmless in any event. Ibid.The Court of Criminal Appeals overruled the rest of Lucio’s points of
error and affirmed the judgment of the trial court. Id. at 910. Lucio petitioned
the U.S. Supreme Court for a writ of certiorari; the Court denied it. Lucio v.
Texas, 566 U.S. 1036 (2012) (mem.).
C.
Next, Lucio applied for state postconviction relief. For present
purposes, the most important part of her state habeas application is issue
four.
She framed that part of her state habeas application in this way:
“ISSUE FOUR: The trial court deprived Melissa of the constitutional right
to present a complete defense when it excluded the testimony of defense
experts during the guilt/innocence phase of trial.” ROA.8029. In issue four,
Lucio again argued that the trial court erred by excluding the opinions of
Villanueva and Pinkerman during the guilt phase of her trial. ROA.8029–34.
Lucio took pains to distinguish this claim from her prior claims made during
her direct appeal. In a footnote at the start of her discussion of issue four,
Lucio said:
10
Case: 16-70027 Document: 00515739449 Page: 11 Date Filed: 02/09/2021
No. 16-70027
Counsel distinguishes the claim raised in the instant
proceeding from the claim raised on direct appeal that the trial
court abused its discretion by preventing Melissa from
presenting evidence regarding the circumstances under which
her confession was taken. See Direct Appeal Brief (citing Crane
v. Kentucky, 476 U.S. 683, 106 S.[]Ct. 2142, 90 L.[]Ed.[ ]2d 636
(1986)). The instant issue goes to the core of the case—
whether Melissa was likely to have engaged in ongoing abuse of
Mariah.
ROA.8029 n.36.
After disclaiming reliance on Crane, Lucio noted that “a criminal
defendant’s constitutional right to present a complete defense is violated by
the exclusion of evidence pursuant to a state evidentiary rule that
categorically and arbitrarily prohibits the defendant from offering otherwise
relevant, reliable evidence that is vital to his defense.” ROA.8029. Lucio’s
application went on to note that Texas’s relevance rule itself is constitutional
because it “serves a legitimate interest and does not unconstitutionally
abridge the right to present a defense.” ROA.8032. But, Lucio argued, “the
evidence at issue here was not irrelevant to the issue of Melissa’s guilt or
innocence.” ROA.8032. Because the proffered testimony of Villanueva and
Pinkerman “was relevant to attack the credibility of the State’s case,” Lucio
argued, “the jury was unable to make an informed decision regarding the
weight to be given the State’s evidence of ongoing abuse” without their
opinions. ROA.8033–34. On that account, “the trial court violated Melissa’s
right to present a complete defense when it disallowed her expert’s [sic]
testimony during guilt/innocence as irrelevant.” ROA.8034.
In other grounds of her state habeas application, Lucio also argued her
trial counsel provided ineffective assistance of counsel (“IAC”). For
example, she argued that trial counsel provided IAC by failing “to file a pre-
trial motion to suppress [her] custodial statements.” ROA.7970 (“Issue
11
Case: 16-70027 Document: 00515739449 Page: 12 Date Filed: 02/09/2021
No. 16-70027
Two”). She also argued that trial counsel “failed to make a timely request
for or adequately utilize the assistance of a mitigation specialist and
psychologist.” ROA.7988 (“Issue Three”). To support these IAC claims,
Lucio offered a post-trial affidavit from Pinkerman. ROA.8975. In that
affidavit, Pinkerman testified that Lucio’s “psychological characteristics
increase the likelihood that she would acquiesce while providing her
confession” during her custodial interrogation. ROA.8975. Pinkerman stated
that Lucio’s statements to police “could have been accounted for by her
dependent and acquiescent personality,” along with her history of
“emotional[ly] and physically abusive relationships with males.”
ROA.8975–76. Pinkerman faulted trial counsel for failing to ask the court if
he could offer opinions on these matters: “During meetings with defense
counsel I raised questions about these issues. To my knowledge these issues
were never raised at the pretrial [sic] or trial.” ROA.8975. Pinkerman’s IAC
affidavit did not purport to offer any opinion on why Lucio might accept
blame when talking on the phone to her sister about what happened to
Mariah.
The state habeas court rejected all of Lucio’s claims, including her
complete-defense claim in issue four. ROA.10083–96. The state habeas court
explained its analysis of issue four in two paragraphs:
39. [Lucio’s] complaint about this Court’s exclusion of her
mitigation experts [Villanueva and Pinkerman] from the guilt-
innocence portion of the trial is nearly identical to issues nine
and ten raised on direct appeal. Matters raised on direct appeal
should not be re-litigated on habeas unless the judgment is
subsequently rendered void or a subsequent change in the law
is made retroactive. While additional evidence may warrant
relief even when the issue was raised on direct appeal,
Applicant has not demonstrated that she is entitled to relief
herein because of any additional evidence herein.
12
Case: 16-70027 Document: 00515739449 Page: 13 Date Filed: 02/09/2021
No. 16-70027
40. Moreover, this Court did not abuse its discretion in
excluding the testimony of Norma Villanueva and Dr. John
Pinkerman from the guilt-innocence portion of the trial. Ms.
Villanueva proffered nothing to indicate that she had any sort
of specialized experience, knowledge or training in the area of
interpreting body language and patterns of behavior during
police interviews. Dr. Pinkerman’s proffered testimony as to
[Lucio’s] psychological functioning, including how there was
little support in the “historical record” for the idea that
[Lucio] physically abused her children, that she suffered from
battered woman syndrome, and the meaning of her demeanor
after the incident and during questioning had no relevance to
the question of [Lucio’s] guilt or innocence.
ROA.10091.
Lucio filed objections to the state habeas court’s findings of fact and
conclusions of law. ROA.5866–93. In those objections, Lucio recognized that
her complete-defense claim in state habeas was “nearly identical” to the one
she made on direct appeal—but “‘[n]early identical’ is not ‘identical.’”
ROA.5884. She emphasized that her state habeas application—unlike her
direct appeal—did not challenge the circumstances of her custodial
interrogation or the exclusion of her experts under Crane. ROA.5884. And
Lucio’s objections did not say that Pinkerman’s post-trial affidavit—
submitted to buttress her IAC claims—had any relevance whatsoever to her
complete-defense claim. ROA.5883–84. The Court of Criminal Appeals
adopted the lower court’s decision and denied relief. ROA.7768–69.
D.
Lucio then petitioned for habeas relief in federal court. See 28 U.S.C.
§ 2254. She raised 25 claims for relief, including a complete-defense claim.
See Lucio v. Davis, No. 13-cv-125, 2016 U.S. Dist. LEXIS 195659, at *31 (S.D.
Tex. Sept. 28, 2016). The district court wrote a thorough 65-page opinion
13
Case: 16-70027 Document: 00515739449 Page: 14 Date Filed: 02/09/2021
No. 16-70027
that analyzed all 25 claims. As to the complete-defense claim, the district
court held that Lucio “attempt[ed] to dress up [a] state evidence law claim
as a constitutional claim” and that her attempt was “without merit.” Id. at
*65–66. The district court denied the petition and denied a Certificate of
Appealability (“COA”). Id. at *92–94.
Lucio asked for a COA from our court. Lucio v. Davis, 783 F. App’x
313 (5th Cir. 2019). We granted one on “the question of whether the
exclusion of Lucio’s proffered experts on the credibility of her alleged
confession violated her constitutional right to present a complete defense.”
Id. at 319 (quotation omitted). Thereafter, a panel of our court determined
that Lucio had raised the issue of her right to a complete defense in state
court, but that no state court had adjudicated that claim. Id. at 314–15.
Applying de novo review, the panel concluded that the exclusion of
Pinkerman’s opinion violated Lucio’s right to present a complete defense.
Id. at 325. The panel found Crane highly relevant, notwithstanding Lucio’s
emphatic disclaimer of that authority in her state habeas application. And the
panel found Pinkerman’s affidavit highly relevant, notwithstanding
Pinkerman’s concession that none of the material in it had been properly
presented to the state trial court on account of alleged deficiencies by trial
counsel. The panel reversed the district court’s judgment and remanded for
the district court to grant habeas relief to Lucio. Ibid. Our en banc court
vacated the panel decision on rehearing. Lucio v. Davis, 947 F.3d 331 (5th Cir.
2020) (mem.).
II.
Our now-vacated panel decision concluded that Lucio fairly presented
a complete-defense claim to the state courts; the state courts simply
overlooked it; and Lucio therefore got the benefit of de novo review of her
complete-defense claim in federal court. That was error. To explain why, we
14
Case: 16-70027 Document: 00515739449 Page: 15 Date Filed: 02/09/2021
No. 16-70027
begin with the exhaustion requirement. Then we hold that the state courts
adjudicated Lucio’s claims as she presented them.
A.
The exhaustion requirement is a cornerstone of federal habeas for
state prisoners. The Supreme Court first announced it in Ex parte Royall, 117
U.S. 241 (1886), shortly after Congress extended the writ of habeas corpus
ad subjiciendum to prisoners in state custody. Then, in 1948, Congress
codified the exhaustion requirement in 28 U.S.C. § 2254. Today the statute
provides that Lucio’s federal habeas application “shall not be granted”
unless she has exhausted available remedies in the state courts. Id.§ 2254(b)(1).
“[T]he exhaustion doctrine is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999) (emphasis added). It’s premised on comity and federalism:
Because state courts are obligated to enforce federal law, they must be given
the first chance—after the state prisoner fully explains the federal claim—to
correct any error. See id. at 844. “This rule of comity reduces friction
between the state and federal court systems by avoiding the unseemliness of
a federal district court’s overturning a state court conviction without the
state courts having had an opportunity to correct the constitutional violation
in the first instance.” Id. at 845 (quotation omitted).
Obviously, it would undermine or eliminate the exhaustion
requirement if a state prisoner could change the claim along the way from
state court to federal court. As the Supreme Court has explained:
We emphasize that the federal claim must be fairly presented
to the state courts. If the exhaustion doctrine is to prevent
unnecessary conflict between courts equally bound to guard
15
Case: 16-70027 Document: 00515739449 Page: 16 Date Filed: 02/09/2021
No. 16-70027
and protect rights secured by the Constitution, it is not
sufficient merely that the federal habeas applicant has been
through the state courts. The rule would serve no purpose if it
could be satisfied by raising one claim in the state courts and
another in the federal courts. Only if the state courts have had
the first opportunity to hear the claim sought to be vindicated
in a federal habeas proceeding does it make sense to speak of
the exhaustion of state remedies. Accordingly, we have
required a state prisoner to present the state courts with the
same claim he urges upon the federal courts.
Picard v. Connor, 404 U.S. 270, 275–76 (1971) (emphasis added) (quotation
omitted).
Consider, for example, Duncan v. Henry, 513 U.S. 364 (1995) (per
curiam). In that case, a California jury convicted Henry of sexually molesting
a five-year-old. At trial, Henry objected to the introduction of testimony by
the parent of another child he allegedly molested 20 years earlier. In the state
courts, Henry framed his objection in terms of California evidentiary law. But
in the federal courts, Henry argued the erroneous introduction of the
testimony violated the Due Process Clause. The Ninth Circuit held that
Henry exhausted his state remedies because he gave the state courts “the
operative facts” and “the substance of his federal claim.” Henry v. Estelle, 33
F.3d 1037, 1040–41 (9th Cir. 1993) (quotation omitted).
The Supreme Court summarily reversed. It held the California courts
“understandably” decided Henry’s claim in the terms he presented it.
Henry, 513 U.S. at 366. And in presenting his claim to the state courts, Henry
did not claim the introduction of the challenged testimony violated the Due
Process Clause—even if he presented the “facts” and “substance” of the
claim in other terms. Ibid. “The failure [was] especially pronounced in that
[Henry] did specifically raise a due process objection before the state court
based on a different claim . . . .” Ibid. Therefore, the exhaustion requirement
16
Case: 16-70027 Document: 00515739449 Page: 17 Date Filed: 02/09/2021
No. 16-70027
provides that a state prisoner who does not fairly present a claim to a state
habeas court—specifying both the legal and factual basis for the claim—may
not raise that claim in a subsequent federal proceeding.
B.
For each claim that Lucio fully and fairly presented to the state courts,
there’s a rebuttable presumption that the state courts adjudicated it on the
merits. See Johnson v. Williams, 568 U.S. 289, 298 (2013). It’s possible that
Lucio did her part by presenting her claims fully and fairly, and that the state
courts nonetheless erred and overlooked them. But Williams holds such a
scenario is unlikely. See id. at 300–01 (“[I]t is by no means uncommon for a
state court to fail to address separately a federal claim that the court has not
simply overlooked”). Therefore, “a federal habeas court must presume that
the federal claim was adjudicated on the merits.” Id. at 301.
For each claim that the state court adjudicated on the merits,
AEDPA’s relitigation bar applies. See 28 U.S.C. § 2254(d) (generally barring
relitigation of claims that are “adjudicated on the merits” in state court); see
also ibid. (specifying that the relitigation bar applies on a “claim”-by-“claim”
basis). And Lucio can overcome the relitigation bar only by proving that
(1) the state court’s “decision” on her claim “was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” id. § 2254(d)(1); or
(2) the state court’s adjudication of the claim “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding,” id. § 2254(d)(2).
For each claim governed by AEDPA’s relitigation bar, we must
identify the relevant state-court “decision.” Id. § 2254(d)(1)–(2). To that
17
Case: 16-70027 Document: 00515739449 Page: 18 Date Filed: 02/09/2021
No. 16-70027
end, the Supreme Court says that we must “train [our] attention” on the
“last related state-court decision” that provides a “relevant rationale” to a
particular claim. Wilson v. Sellers, 138 S. Ct. 1188, 1191–92 (2018) (quotation
omitted). Only then can we consider whether the state court’s “decision”
was contrary to or an unreasonable application of clearly established Supreme
Court precedent. Id. at 1192; see also, e.g., Ylst v. Nunnemaker, 501 U.S. 797,
805 (1991) (“To decide the present case, therefore, we begin by asking which
is the last explained state-court judgment on the [federal] claim.” (emphasis
omitted)); Premo v. Moore, 562 U.S. 115, 123–33 (2011); Sears v. Upton, 561
U.S. 945, 951–56 (2010) (per curiam).
C.
In Lucio’s case, as in Henry, the state courts adjudicated the claims in
the same terms as the prisoner presented them. And, as in Henry, Lucio’s
claims shifted over time. That means, over the course of this litigation,
different state courts adjudicated different claims. We walk through each
relevant decision in turn.
At trial, Lucio urged that expert-opinion testimony from Villanueva
and Pinkerman should be admitted under the Texas Rules of Evidence. The
trial court excluded Villanueva because she was not qualified to offer an
expert opinion about Lucio’s psychology, body language, or credibility. See
Tex. R. Evid. 702 (providing the state-law standard for Daubert
challenges); Yount, 872 S.W.2d at 708–09. And the trial court excluded
Pinkerman’s opinion about Lucio’s “psychological functioning” as
irrelevant to her guilt and as relevant only to mitigation. See Tex. R. Evid.
402. At no point did trial counsel suggest that the exclusion of either witness
would violate Lucio’s rights under the federal Due Process Clause. See
Henry, 513 U.S. at 366 (“If a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the due process of law
18
Case: 16-70027 Document: 00515739449 Page: 19 Date Filed: 02/09/2021
No. 16-70027
guaranteed by the Fourteenth Amendment, he must say so, not only in
federal court, but in state court.”). And at no point did either expert offer to
testify about the circumstances of Lucio’s custodial interrogation and
whether she felt psychological pressure to admit to abusing Mariah. As
Pinkerman himself later said, “To my knowledge these issues were never
raised at the pretrial [sic] or trial.” ROA.8975.
On direct appeal, Lucio changed her claim and argued that, under the
Due Process Clause and Crane v. Kentucky, Lucio had the right to present
Villanueva and Pinkerman to challenge the “voluntariness” of her custodial
statements. Even though Lucio defaulted this claim by failing to present it to
the trial court, the Court of Criminal Appeals adjudicated it anyway. And the
court held Lucio’s voluntariness challenges failed because the testimony that
Lucio’s experts had actually proffered at trial had “little, if any, relevance”
to the issue of voluntariness. Lucio, 351 S.W.3d at 901 (Villanueva), 902
(Pinkerman). And again, that was so even though Texas law requires the
admission of more evidence than the minimum required by the Federal
Constitution. See id. at 900 (quoting Oursbourn, 259 S.W.3d at 172–73, for
various examples of “fact scenarios that can raise a state-law claim of
involuntariness (even though they do not raise a federal constitutional claim)”
(emphasis added)). Thus, the Court of Criminal Appeals adjudicated and
denied Lucio’s Crane claim on direct appeal. See Williams, 568 U.S. at 301(“[I]f the state-law rule subsumes the federal standard—that is, if it is at least
as protective as the federal standard—then the federal claim may be regarded
as having been adjudicated on the merits.”); see also Early v. Packer, 537 U.S.
3, 8 (2002) (per curiam).
On state habeas, Lucio changed the claim again. This time, she
expressly disclaimed any reliance on Crane and insisted that she did not want
to challenge the exclusion of “evidence regarding the circumstances under
which her confession was taken.” ROA.8029 n.36. Rather, she argued that
19
Case: 16-70027 Document: 00515739449 Page: 20 Date Filed: 02/09/2021
No. 16-70027
the exclusion of Villanueva and Pinkerman deprived her of the constitutional
right to present a complete defense by proving that she was “[un]likely to
have engaged in ongoing abuse of Mariah.” ROA.8029 & n.36. The state
habeas court held that Lucio’s claim was procedurally barred insofar as she
attempted to re-raise her Crane claim regarding the circumstances of her
custodial interrogation. ROA.10091. And beyond that, the claim was
meritless because Villanueva’s proffered body-language testimony failed the
Texas Daubert standard, and Pinkerman’s generalized proffer about Lucio’s
psychological functioning was relevant to mitigation but “had no relevance
to the question of [Lucio’s] guilt or innocence.” ROA.10091.
Based on the state-court proceedings, two things are clear: (1) Lucio
exhausted state remedies regarding two relevant claims in two different state
proceedings, and (2) the state courts adjudicated both claims on the merits. 5
On direct appeal, the Court of Criminal Appeals heard and rejected Lucio’s
claim that Crane v. Kentucky gives her the federal due process right to present
testimony regarding the circumstances of her custodial interrogation. On
state habeas, the state court heard and rejected Lucio’s distinct claim that the
exclusion of Villanueva and Pinkerman from the guilt phase of her trial
prevented her from proving that she was “[un]likely to have engaged in
ongoing abuse of Mariah.” This is the way Lucio chose to present her claims
and hence the way the state courts were required to adjudicate them. The
state courts adjudicated both claims on the merits. So AEDPA’s relitigation
bar applies. See 28 U.S.C. § 2254(d).
5
True, the state courts also identified procedural bars to both claims based on
Lucio’s ever-changing arguments. But it long has been true that a state court’s adjudication
of a claim on the merits means that the claim is exhausted. See, e.g., Castille v. Peoples, 489
U.S. 346, 350 (1989); Brown v. Allen, 344 U.S. 443, 447 (1953).
20
Case: 16-70027 Document: 00515739449 Page: 21 Date Filed: 02/09/2021
No. 16-70027
III.
We next evaluate the relevant state-court decisions under AEDPA’s
relitigation bar, 28 U.S.C. § 2254(d). In enacting that provision, Congress
imposed strict limitations on federal courts considering habeas applications
from state prisoners. See, e.g., Harrington v. Richter, 562 U.S. 86, 102 (2011);
Langley v. Prince, 926 F.3d 145, 155 (5th Cir. 2019) (en banc), cert. denied, 140
S. Ct. 2676 (2020) (mem.); see also Shinn v. Kayer, 141 S. Ct. 517, 526 (2020)
(per curiam) (“Under AEDPA, state courts play the leading role in assessing
challenges to state sentences based on federal law.”). “To overcome
AEDPA’s relitigation bar, a state prisoner must shoehorn [her] claim into
one of its narrow exceptions.” Langley, 926 F.3d at 155; see 28 U.S.C.
§ 2254(d)(1)–(2). The prisoner can do so only if the state court’s decision
was “so obviously wrong as to be beyond any possibility for fairminded
disagreement.” Kayer, 141 S. Ct. at 526 (quotation omitted).
Lucio says she satisfied AEDPA’s relitigation exceptions in three
ways. She first argues (A) the state court’s decision was “contrary to” or
“involved an unreasonable application of ” Crane. 28 U.S.C. § 2254(d)(1).
She next argues (B) the state court’s decision was “contrary to” or “involved
an unreasonable application of ” Chambers v. Mississippi, 410 U.S. 284 (1973).
28 U.S.C. § 2254(d)(1). She finally argues (C) the state court’s decision was
“based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). We
consider and reject each argument in turn.
A.
We start with Lucio’s claim under Crane v. Kentucky. We first explain
the law clearly established in Crane. Then we train our attention on the last
state-court decision to adjudicate that claim—the state court’s decision in
21
Case: 16-70027 Document: 00515739449 Page: 22 Date Filed: 02/09/2021
No. 16-70027
Lucio’s direct appeal—and evaluate that decision under the relitigation bar.
See Wilson, 138 S. Ct. at 1192.
1.
The Supreme Court has held that the “Constitution guarantees
criminal defendants ‘a meaningful opportunity to present a complete
defense.’” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (per curiam)
(quoting Crane, 476 U.S. at 690). But it has also recognized that “state and
federal rulemakers have broad latitude under the Constitution to establish
rules excluding evidence from criminal trials.” Ibid. (quoting Holmes v. South
Carolina, 547 U.S. 319, 324 (2006)). “Only rarely” has the Supreme Court
“held that the right to present a complete defense was violated by the
exclusion of defense evidence under a state rule of evidence.” Ibid.In Crane, the Supreme Court considered the constitutionality of a
novel evidentiary practice that was first recognized by the Kentucky Supreme
Court in Crane itself. Prior to his murder trial, Crane moved to suppress his
confession pursuant to Kentucky Rule of Criminal Procedure 9.78. Crane v.
Kentucky, 690 S.W.2d 753, 753 (Ky. 1985). That rule, adopted on January 1,
1978, stated:
Rule 9.78. Confessions and searches—Suppression of
evidence.—If at any time before trial a defendant moves to
suppress, or during trial makes timely objection to the
admission of evidence consisting of (a) a confession or other
incriminating statements alleged to have been made by him to
police authorities or (b) the fruits of a search, the trial court
shall conduct an evidentiary hearing outside the presence of the
jury and at the conclusion thereof shall enter into the record
findings resolving the essential issues of fact raised by the
motion or objection and necessary to support the ruling. If
supported by substantial evidence the factual findings of the
trial court shall be conclusive.
22
Case: 16-70027 Document: 00515739449 Page: 23 Date Filed: 02/09/2021
No. 16-70027
Ibid. The Kentucky trial court conducted a “lengthy hearing and denied the
motion to suppress, finding the confession to be voluntary.” Ibid. Then, at
trial, the court refused to allow the introduction of any evidence regarding
the “circumstances surrounding the taking of the confession.” Id. at 754.
The Kentucky Supreme Court affirmed, holding:
[O]nce a hearing is conducted pursuant to [Rule 9.78] and a
finding is made by the judge based upon substantial evidence
that the confession was voluntary, that finding is conclusive
and the trial court may exclude evidence relating to
voluntariness from consideration by the jury when that
evidence has little or no relationship to any other issue.
Id. at 755.
The Supreme Court reversed because the Kentucky Supreme Court’s
decision relied on the “assumption that evidence bearing on the
voluntariness of a confession and evidence bearing on its credibility fall in
conceptually distinct and mutually exclusive categories.” Crane, 476 U.S. at
687. That assumption was “directly at odds with language in several
[Supreme Court] opinions,” and it “conflict[ed] with the decisions of every
other state court to have confronted the issue,” ibid., as well as 18 U.S.C.
§ 3501(a) and Federal Rule of Evidence 104(e), id. at 689. The Court held
“on the facts of this case that the blanket exclusion of the proffered
testimony,” in “the absence of any valid state justification,” was
unconstitutional. Id. at 690. In making its decision, the Court took pains to
note that it was not “question[ing] the power of States to exclude evidence
through the application of evidentiary rules that themselves serve the
interests of fairness and reliability—even if the defendant would prefer to see
that evidence admitted.” Id. at 689.
The Supreme Court subsequently reminded us that Crane does “not
set[ ] forth an absolute entitlement to introduce crucial, relevant evidence”
23
Case: 16-70027 Document: 00515739449 Page: 24 Date Filed: 02/09/2021
No. 16-70027
at a criminal trial. Montana v. Egelhoff, 518 U.S. 37, 53 (1996) (plurality
opinion). It explained:
Our holding that the exclusion of certain evidence in that case
violated the defendant’s constitutional rights rested not on a
theory that all competent, reliable evidence must be admitted,
but rather on the ground that the Supreme Court of
Kentucky’s sole rationale for the exclusion (that the evidence
did not relate to the credibility of the confession) was wrong.
Crane does nothing to undermine the principle that the
introduction of relevant evidence can be limited by the State
for a valid reason.
Ibid. (quotations omitted).
2.
Lucio argues that the state court’s exclusion of Villanueva and
Pinkerman was “contrary to” the law clearly established in Crane. See 28
U.S.C. § 2254(d)(1). “A state-court decision is contrary to clearly
established federal law only if it arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or if it resolves a case
differently than the Supreme Court has on a set of materially
indistinguishable facts.” Langley, 926 F.3d at 155 (quotations omitted). For
example:
If a state court were to reject a prisoner’s claim of ineffective
assistance of counsel on the grounds that the prisoner had not
established by a preponderance of the evidence that the result
of his criminal proceeding would have been different, that
decision would be diametrically different, opposite in character
or nature, and mutually opposed to [the Supreme Court’s]
clearly established precedent because [it] held in Strickland
that the prisoner need only demonstrate a reasonable
probability that the result of the proceeding would have been
different.
24
Case: 16-70027 Document: 00515739449 Page: 25 Date Filed: 02/09/2021
No. 16-70027
Terry Williams v. Taylor, 529 U.S. 362, 405–06 (2000) (quotation omitted).
Lucio cannot meet that high bar here. In answering our en banc
questions, 6 Lucio conceded that, at best, her claim is “strongly supported”
by Crane and that no case is on “all fours” with her claim. Lucio Opening En
Banc Q&A 25–26. That is insufficient to show that the state court’s decision
is “diametrically different” from Crane. See Terry Williams, 529 U.S. at 405.
Therefore, “here, as in most AEDPA cases,” the “contrary to” exception
does not apply. Langley, 926 F.3d at 156.
Next, Lucio argues that the decision by the Court of Criminal Appeals
“involved an unreasonable application of ” Crane. See 28 U.S.C.
§ 2254(d)(1). To meet that exception to the relitigation bar, Lucio must do
much more than establish that the state court erred. See, e.g., Renico v. Lett,
559 U.S. 766, 773 (2010) (“[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” (quotation omitted)). “Rather, the relitigation
bar forecloses relief unless the prisoner can show the state court was so wrong
that the error was well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Langley, 926 F.3d at 156
(quotation omitted); see also Kayer, 141 S. Ct. at 520 (summarily reversing the
Ninth Circuit for “ordering issuance of a writ of habeas corpus despite ample
room for reasonable disagreement about the prisoner’s . . . claim”).
6
Because of COVID-19, our court did not conduct our usual en banc argument.
Instead, we used a multi-round form of written questions and answers. In the first round,
we presented written questions—some for both parties, some solely for Lucio or the State.
After the parties provided their answers to the court’s questions, they both submitted
rebuttals to each other’s answers. Both parties provided thorough and helpful answers.
25
Case: 16-70027 Document: 00515739449 Page: 26 Date Filed: 02/09/2021
No. 16-70027
We hold the Court of Criminal Appeals did not unreasonably apply
Crane in Lucio’s direct appeal. As an initial matter, we note that the Court of
Criminal Appeals held that the two witnesses’ opinions were inadmissible
under state law, which affords broader protections than the Crane-Due
Process standard in federal law. See Lucio, 351 S.W.3d at 900, 902 (citing
Tex. Code Crim. Proc. arts. 38.21, 38.22, and Oursbourn, 259 S.W.3d
at 172–73). Because Texas law is “broader in scope” than the U.S.
Constitution on this issue, a determination that a claim fails on state-law
grounds necessarily adjudicated any federal claim as well. See Williams, 568
U.S. at 298–99 (holding a state-law adjudication necessarily adjudicates the
federal question where the former “fully incorporat[es]” the latter). Lucio
has never argued that Texas’s statutory and decisional standards are in fact
narrower than the Crane standard. She therefore has forfeited any argument
to that effect.
Moreover, we have observed that cases involving Crane “typically
focus” on evidentiary rules that lead to “categorical prohibitions of certain
evidence and not discretionary decisions to exclude evidence under general
and otherwise uncontroversial rules.” Caldwell v. Davis, 757 F. App’x 336,
339 (5th Cir. 2018) (per curiam). As Lucio conceded in her en banc answers,
she is not challenging the constitutionality of Texas’s evidentiary rules
regarding the relevance and the admission of expert-opinion testimony.
Lucio Opening En Banc Q&A 24–25. Nor does Lucio allege that the Texas
courts categorically prohibited her from undermining her own inculpatory
statements. For example, the trial court permitted Lucio’s sister to testify
about Lucio’s background, her tendency to take the blame for things she did
not do, and the phone call in which Lucio allegedly said: “This was me. I did
26
Case: 16-70027 Document: 00515739449 Page: 27 Date Filed: 02/09/2021
No. 16-70027
it.” 7 Her only complaint is that the trial court made discretionary errors in
excluding the particular expert opinions proffered by Villanueva and
Pinkerman. Therefore, Lucio fails to show that Texas courts categorically
prohibited evidence undermining her inculpatory statements.
Lucio cannot argue that the Court of Criminal Appeals unreasonably
applied Crane by failing to extend it to discretionary evidentiary decisions.
“Section 2254(d)(1) provides a remedy for instances in which a state court
unreasonably applies [the Supreme] Court’s precedent; it does not require
state courts to extend that precedent or license federal courts to treat the
failure to do so as error.” White v. Woodall, 572 U.S. 415, 426 (2014)
(emphasis in original). We, like the Ninth Circuit, are aware of no clearly
established law regarding “a court’s exercise of discretion to exclude expert
testimony” as it relates to a “criminal defendant’s constitutional right to
present relevant evidence.” Moses v. Payne, 555 F.3d 742, 758–59 (9th Cir.
2009); see also Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (“[T]he
Supreme Court has not decided any case either squarely address[ing] the
discretionary exclusion of evidence and the right to present a complete
7
Our now-vacated panel opinion made much of the fact that a police officer
overheard this statement while listening to only Lucio’s side of the conversation with her
sister, and that the officer “did not create a log of Lucio’s alleged statements until nearly
sixteen months after he interacted with Lucio—the month before trial.” Lucio, 783 F.
App’x at 324 n.6. But far from supporting a Crane claim, these propositions disprove it.
Crane guarantees Lucio the procedural opportunity to present her defense. The trial court
gave Lucio the procedural opportunity—and her trial counsel vigorously exercised it—to
cross-examine the officer about what he overheard Lucio say and the length of time
between that conversation and the officer’s report. ROA.14992–93. And as noted above,
the trial court afforded Lucio the opportunity—which she again vigorously exercised—to
present her sister’s side of the phone call. All of this proves that the State did not
categorically bar Lucio, as in Crane, from presenting any evidence to undermine her
inculpatory statement.
27
Case: 16-70027 Document: 00515739449 Page: 28 Date Filed: 02/09/2021
No. 16-70027
defense or establish[ing] a controlling legal standard for evaluating such
exclusions.” (quotation omitted) (alterations in original)).
And it’s not just the Ninth Circuit. Many of our sister circuits,
reviewing state prisoners’ applications under § 2254(d)(1), have upheld state
courts’ wide latitude to make discretionary evidentiary decisions. See, e.g.,
Grant v. Royal, 886 F.3d 874, 959–60 (10th Cir. 2018) (rejecting state
prisoner’s habeas application under the relitigation bar because Crane did not
implicate the “discretionary application of evidentiary rules”); Troy v. Sec’y,
Fla. Dep’t of Corr., 763 F.3d 1305, 1307, 1315 (11th Cir. 2014) (rejecting state
prisoner’s habeas application under the relitigation bar because Crane does
not deprive state courts of the “gatekeeping role” to make discretionary
evidentiary decisions); Gagne v. Booker, 680 F.3d 493, 516 (6th Cir. 2012) (en
banc) (rejecting state prisoner’s habeas application under the relitigation bar
because, consistent with Crane, “a trial court may even exclude competent
reliable evidence . . . central to the defendant’s claim of innocence, so long as
there exists a valid state justification” (quotation omitted)); Rucker v. Norris,
563 F.3d 766, 770 (8th Cir. 2009) (rejecting state prisoner’s habeas
application under the relitigation bar because “Crane proscribed only the
‘wholesale exclusion’ of evidence pertaining to the credibility of a
confession”).
Take for example the Sixth Circuit’s decision in Loza v. Mitchell, 766
F.3d 466 (6th Cir. 2014). It assessed an Ohio court’s exclusion of a clinical
psychologist that the defendant sought to use “to help explain his
confession.” Id. at 481. The Sixth Circuit held the prisoner could not
surmount the relitigation bar because the state court did not apply a
“mechanistic, per se” rule but instead made an “individual determination”
about the appropriateness of the testimony based on the specific facts of the
case. Id. at 485 (quotations omitted). Importantly, the defendant was given
the opportunity to present “other evidence bearing on the credibility of his
28
Case: 16-70027 Document: 00515739449 Page: 29 Date Filed: 02/09/2021
No. 16-70027
confession.” Ibid. And the jury had the opportunity to watch the video of the
defendant’s confession to see for itself the “tone and manner of the
interrogation, the number of officers present, the physical characteristics of
the room, and the length of the interrogation.” Ibid. (quotation omitted).
Although more evidence like the clinical psychologist’s opinion would have
been helpful, the Sixth Circuit found it reasonable to “conclude[ ] that Crane
did not require this evidence to be admitted.” Id. at 486 (emphasis in
original).
We refuse to create a circuit split. As previously discussed, the Court
of Criminal Appeals did not affirm any “blanket exclusion” of evidence
regarding Lucio’s confession. Instead, it considered her two proffered
experts on an individualized basis and found their opinions to be inadmissible
as a matter of state law. The jury hearing Lucio’s case had ample opportunity
to assess the credibility of her various statements—it could watch the video
of the interrogation, it could listen to her sister’s testimony, and it could
compare that testimony with the police officer’s. Thus, even if we assume
arguendo that a discretionary evidentiary ruling could violate Crane, Lucio
has not proven beyond any fair-minded disagreement that the state court’s
decision on her direct-appeal record rises to that level. Accordingly, the
Court of Criminal Appeals’ decision was not an unreasonable application of
the clearly established federal law in Crane.
Nor does the state court’s decision become unreasonable, as Lucio
argues, because of Pinkerman’s post-trial, collateral-review affidavit. The
Supreme Court has strictly instructed that our review is “limited to the
record that was before the state court that adjudicated the claim on the merits.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (emphasis added). To that end,
“the record under review is limited to the record in existence at that same
time.” Id. at 182. Since the Pinkerman affidavit did not exist at the time the
Court of Criminal Appeals evaluated Lucio’s Crane claim on direct appeal,
29
Case: 16-70027 Document: 00515739449 Page: 30 Date Filed: 02/09/2021
No. 16-70027
the record before that court didn’t include the affidavit. Therefore, we may
not consider the affidavit in reviewing that court’s direct appeal decision.
B.
We next consider the complete-defense claim that Lucio exhausted in
her state habeas application. We first identify the claim. Then we describe
the clearly established law as articulated by the Supreme Court. Then we
evaluate the relevant state-court decision under AEDPA’s relitigation bar.
1.
Lucio adamantly insisted that her state habeas claim did not involve
Crane. ROA.8029 n.36. She presumably did so to avoid the state procedural
bar on re-raising claims in state habeas after raising them on direct appeal.
See, e.g., Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006)
(“[H]abeas relief is not available to one who has already litigated his claim at
trial, in post-trial motions, or on direct appeal.”). So we take Lucio at her
word that the state habeas claim does not implicate Crane.
We also assume that Lucio does not intend to challenge the state
courts’ application of state-law evidentiary rules. It’s well-settled that such
state-law challenges form “no part of a federal court’s habeas review of a
state conviction. We have stated many times that federal habeas corpus relief
does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991)
(quotation omitted). And that obviates much of Lucio’s state habeas claim.
The three principal cases cited in that application all involve direct appeals
of mine-run evidentiary challenges. See ROA.8032–33 (citing United States v.
Hall, 93 F.3d 1337 (7th Cir. 1996), United States v. Cohen, 510 F.3d 1114 (9th
Cir. 2007), and an unpublished, intermediate state-court decision in Kaps v.
State, No. 05-97-00328-CR, 1998 WL 209060 (Tex. App.—Dallas Apr. 30,
1998, no pet.)). These precedents illustrate that state-law evidentiary claims
are cognizable on direct appeal. But they are not cognizable in federal habeas.
30
Case: 16-70027 Document: 00515739449 Page: 31 Date Filed: 02/09/2021
No. 16-70027
See McGuire, 502 U.S. at 67. So we do not construe Lucio’s claim to implicate
the state courts’ application of state evidence law. See Lucio, 2016 U.S. Dist.
LEXIS 195659, at *65 (“Lucio’s attempt to dress up this state evidence law
claim as a constitutional claim is unconvincing.”).
What remains unclear is what Lucio’s state habeas claim does
implicate. Our now-vacated panel decision in this case said that “Lucio’s
argument to the state habeas court flagged her ‘complete defense’ argument
as a ‘constitutional’ issue and cited a Texas case that relied exclusively on
the Federal Constitution.” Lucio, 783 F. App’x at 319 (citing Wiley v. State,
74 S.W.3d 399, 405–07 (Tex. Crim. App. 2002), and Wiley v. State, No. 03-
99-00047-CR, 2000 WL 1124975, at *1 (Tex. App.—Austin Aug. 10, 2000),
aff’d, 74 S.W.3d 399 (Tex. 2002)). We disagree that “flagging” a state-court
case that in turn cites the U.S. Constitution is sufficient to exhaust a federal
claim under 28 U.S.C. § 2254(b)(1). See, e.g., Williams, 568 U.S. at 299(holding “a fleeting reference to a provision of the Federal Constitution or
federal precedent” is insufficient to exhaust a federal claim because “a state
court may not regard [it] as sufficient to raise a separate federal claim”). And
Wiley itself did not purport to apply Crane, Chambers, or any U.S. Supreme
Court precedent whatsoever.
The most charitable interpretation of Lucio’s state habeas claim is
that the exclusion of expert-opinion testimony from Villanueva and
Pinkerman infringed her constitutional right to present a complete defense
because it precluded Lucio from presenting evidence “regarding the weight
to be given the State’s evidence of ongoing abuse,” ROA.8034, depriving her
of the opportunity to prove that she was “[un]likely to have engaged in
ongoing abuse of Mariah,” ROA.8029 n.36. This claim does not attack the
circumstances of Lucio’s custodial interrogation as in Crane. Rather, Lucio’s
objection is that the exclusion of the experts’ opinions made her trial unfair
because it precluded her from proving that she did not beat her child to death
31
Case: 16-70027 Document: 00515739449 Page: 32 Date Filed: 02/09/2021
No. 16-70027
or commit ongoing abuse of Mariah, even though she admitted to committing
abuse. And the state habeas court’s contrary conclusion, she says, is contrary
to or an unreasonable application of Chambers v. Mississippi.
2.
Again, we explain the Supreme Court’s decision in Chambers before
considering whether the state court acted contrary to or unreasonably applied
that precedent.
The State prosecuted Leon Chambers for murdering a police officer
“in the small town of Woodville in southern Mississippi” in 1969. Chambers,
410 U.S. at 285. Another man, named McDonald, confessed in a sworn
written statement to murdering the police officer. Id. at 287. Still, Mississippi
brought charges against Chambers, not McDonald. At trial, Chambers called
McDonald to the stand and entered McDonald’s written confession into
evidence. Id. at 291. On cross-examination, the State elicited testimony from
McDonald repudiating the confession. Ibid. After the State’s cross-
examination, Chambers moved to examine McDonald as a hostile witness.
Ibid. But the state court denied his request based on an idiosyncratic state-
law rule called the “voucher rule”—which prevented Chambers from
impeaching his own witness on the theory that “a party who calls a witness
‘vouches for his credibility.’” Id. at 295 (quoting Clark v. Lansford, 191 So.2d
123, 125 (Miss. 1966)).
The Supreme Court noted that the voucher rule has been
“condemned as archaic, irrational, and potentially destructive of the truth‐
gathering process.” Id. at 296 n.8. And it emphasized that Mississippi did not
even attempt “to defend the [voucher] rule or explain its underlying
rationale.” Id. at 297. The Supreme Court therefore held that the “voucher
rule” violated Chambers’s rights to confront and cross‐examine witnesses
like McDonald.
32
Case: 16-70027 Document: 00515739449 Page: 33 Date Filed: 02/09/2021
No. 16-70027
The state habeas court’s adjudication of Lucio’s complete-defense
claim is not “contrary to” Chambers. 28 U.S.C. § 2254(d)(1). During our en
banc Q&A, Lucio recognized that the trial court excluded Villanueva and
Pinkerman pursuant to ordinary rules of evidence concerning the
admissibility of expert opinions—not pursuant to some idiosyncratic,
arbitrary, archaic, and indefensible rule that prohibited her from impeaching
her own witness. This significant distinction is far more than sufficient to bar
a “contrary to” claim.
Nor is the state habeas court’s decision an “unreasonable
application” of Chambers. Ibid. The Supreme Court has instructed us that
Chambers—like its other complete-defense cases—involved an idiosyncratic
state rule of evidence that was “arbitrary,” “did not rationally serve any
discernible purpose,” and “could not be rationally defended.” Jackson, 569
U.S. at 509 (discussing Holmes, 547 U.S. at 331; Rock v. Arkansas, 483 U.S.
44, 61 (1987); Chambers, 410 U.S. at 302–303; and Washington v. Texas, 388
U.S. 14, 22 (1967)). The Supreme Court has never applied its complete-
defense cases to discretionary evidentiary decisions under rules that are
themselves constitutional, like the rules of evidence involving the
admissibility of expert opinions here. Thus, to hold that the state habeas
court unreasonably applied these cases, we’d have to (1) extend them or
(2) frame them “at such a high level of generality” that we’d “transform
even the most imaginative extension of existing case law into ‘clearly
established Federal law, as determined by the Supreme Court.’” Id. at 512
(quoting 28 U.S.C. § 2254(d)(1)). The relitigation bar precludes that.
3.
Our panel decision in this case reached the contrary result by taking
the facts from Lucio’s state habeas application, mixing them with the law
from her direct appeal, and using the resulting combination to condemn the
33
Case: 16-70027 Document: 00515739449 Page: 34 Date Filed: 02/09/2021
No. 16-70027
evidentiary decision made at trial. Specifically, the panel combined the facts
in the Pinkerman affidavit (from state habeas) with the Crane claim (from
direct appeal) to hold the exclusion of Pinkerman’s proffer (at trial) was
arbitrary and “complete[ly] irrational[ ].” Lucio, 783 F. App’x at 323. The
panel held that Crane gave Lucio the constitutional right to “take[] away” or
“undermine[ ]” her custodial-interrogation statements; that without those
statements, “the State’s case [would have been] much more tenuous”; and
that “Pinkerman’s opinion was that Lucio was susceptible to taking blame
for something that was not her fault and that this behavior was manifested in
the interrogation video,” thereby “cast[ing] doubt on the State’s key
evidence.” Ibid.AEDPA prohibits whipsawing the state courts in this way. See 28
U.S.C. § 2254(d); cf. Wainwright v. Sykes, 433 U.S. 72, 89 (1977) (rejecting
habeas-by-“sandbagging”). This is the entirety of what Pinkerman proffered
at trial:
On the basis of my review of information, consultation with
additional experts, and the evaluation that I have done with the
defendant Mrs. Lucio, I was going to testify about the
characteristics and makeup of her psychological functioning. I
was also going to address how her demeanor, both immediately
after the incident and during the interrogation, may be
understood by understanding and appreciating the
psychological elements and previous history and background
that she has lived through. I was also going to address the
notion of how difficult it might have been for her to step into
some of the treatment, even though it was minimally offered.
And those are the highlights.
ROA.15301. As the state courts concluded, this proffer provides zero
information about what facts or opinions Pinkerman was prepared to offer. It
certainly did not say—as our panel decision concluded—“that Lucio was
34
Case: 16-70027 Document: 00515739449 Page: 35 Date Filed: 02/09/2021
No. 16-70027
susceptible to taking blame for something that was not her fault and that this
behavior was manifested in the interrogation video.” Lucio, 783 F. App’x at
323. To the contrary, Pinkerman provided no basis upon which the state
courts could have concluded that his testimony would have assisted the jury
in understanding why Lucio made the statements that she did, why her
demeanor was what it was, or whether she murdered her child. If AEDPA’s
anti-sandbagging rules mean anything, they mean that Lucio and Pinkerman
cannot hold back the substance of the proffered testimony with the hope of
using it as a trump card later.
The whipsawing embraced by our panel decision is particularly
striking because we do not need to guess what Pinkerman would’ve said if
he’d been allowed to testify in the guilt phase of the trial. That’s because two
days before he was first called to testify and make his proffer, he authored an
expert report that detailed his testimony. ROA.15301 (Pinkerman’s guilt-
phase proffer, dated July 7, 2008); ROA.5387 (Pinkerman’s expert report,
dated July 5, 2008). The expert report contained extensive psychological
evaluations of Lucio. It also described Pinkerman’s findings from watching
the interrogation video—including that Lucio had a “constrained”
demeanor, a “flat” affect, and that “she tunes out to the male investigator.”
ROA.5394. The report recounted Lucio’s custodial statement: “Several
hours after Mariah’s death, [Lucio] said: ‘I’m responsible for it.’” ROA.5395
(emphasis added). And it recounted Lucio’s various other inculpatory
admissions of abuse against her daughter. E.g., ROA.5395 (recounting
Lucio’s admissions that she got “frustrated” with Mariah, “spanked” her,
and “When I saw the bruises, I hated myself for what I did.”). At no point
did Pinkerman’s report come close even to hinting that any of these
statements were false. At no point did Pinkerman’s report come close even
to hinting “that Lucio was susceptible to taking blame for something that was
not her fault and that this behavior was manifested in the interrogation
35
Case: 16-70027 Document: 00515739449 Page: 36 Date Filed: 02/09/2021
No. 16-70027
video.” Lucio, 783 F. App’x at 323. And at no point did Pinkerman’s report
say anything at all about battered woman syndrome.
We also don’t have to guess about what Pinkerman would have said at
trial because he was allowed to testify during the punishment phase. Defense
counsel asked Pinkerman multiple questions about Lucio’s interrogation
video to elicit testimony about the circumstances of the offense and Lucio’s
moral culpability. E.g., ROA.5131–34; see Tex. Code Crim. Proc. art.
37.071, § 2(e)(1) (requiring the punishment-phase jury to consider, inter alia,
“the circumstances of the offense” and “the personal moral culpability of
the defendant”). And again, Pinkerman did not come close even to
suggesting “that Lucio was susceptible to taking blame for something that
was not her fault and that this behavior was manifested in the interrogation
video.” Lucio, 783 F. App’x at 323. In fact, Pinkerman repeatedly
equivocated regarding battered woman syndrome:
Q. Well, do you feel that this defendant has battered
woman’s syndrome?
A. I can’t answer, yes or no.
Q. Why not?
A. Because my answer would be in the middle.
ROA.5169. When pressed to explain the equivocation, Pinkerman stated that
“[b]attered woman syndrome isn’t a DSM-4 diagnosis.” ROA.5170.
Pinkerman radically shifted his story in the state habeas proceeding.
That’s the first and only time he offered any opinion about the circumstances
of Lucio’s custodial interrogation or battered woman syndrome. And he did
it in a state habeas application that said Lucio was not challenging the
circumstances of her custodial interrogation or the voluntariness of anything
she said during that interrogation. The state courts are entitled to adjudicate
36
Case: 16-70027 Document: 00515739449 Page: 37 Date Filed: 02/09/2021
No. 16-70027
the claim that Lucio brought at the time she brought it and in the way she
brought it. See Henry, 513 U.S. at 366. And we cannot agree with the panel
that the state trial court’s decision to exclude the proffered testimony was
“complete[ly] irrational[],” Lucio, 783 F. App’x at 323; cf. Jackson, 569 U.S.
at 509, based on an affidavit that wasn’t even written until many years after
the trial and was first presented in a state habeas application that disclaimed
the panel’s legal theory, see Pinholster, 563 U.S. at 181 (“[T]he scope of the
record for a § 2254(d)(1) inquiry . . . . is limited to the record that was before
the state court that adjudicated the claim on the merits.”).
Villanueva fares no better. As Lucio conceded in her opening en banc
brief, all of Villanueva’s testimony was premised on her comparison of
Lucio’s body language in pictures that predated the murder to her body
language after it. And the state courts had ample reasons under the Texas
Daubert standard to exclude such guilt-phase testimony based on
Villanueva’s concession that she had no specialized training, no certification,
and no generally accepted science to support interpreting Lucio’s body
language. ROA.4694–95. In fact, when Villanueva testified at the punishment
phase, she conceded that she “was retained to do mitigation. . . . I was not
instructed at all to make judgments about the innocence or guilt, sir.”
ROA.5057 (emphasis added). Moreover, even if Villanueva were a qualified
body-language expert and were retained to render opinions about Lucio’s
guilt, the Texas Rules of Evidence would bar her from offering an opinion on
Lucio’s credibility. See Yount, 872 S.W.2d at 708–09. It was therefore
reasonable for the state courts to exclude Villanueva from the guilt phase of
the trial. Even our now-vacated panel decision did not find error in that
result. See Lucio, 783 F. App’x at 321. 8
8
Our panel decision noted “the exclusion of Villanueva’s testimony raises
concerns about the fairness of the trial” because Officer Escalon testified about Lucio’s
37
Case: 16-70027 Document: 00515739449 Page: 38 Date Filed: 02/09/2021
No. 16-70027
C.
Finally, Lucio argues that the state habeas court’s decision was based
on “an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Because
Lucio is challenging a state conviction, “a determination of a factual issue
made by a State court shall be presumed to be correct.” Id. § 2254(e)(1).
Furthermore, the “applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” Ibid. Thus,
while the “general standard” for evaluating a state court’s findings of fact is
reasonableness, § 2254(e)(1) requires a state prisoner to show that the state
court’s specific factual determination in her case is unreasonable by clear and
convincing evidence. Valdez v. Cockrell, 274 F.3d 941, 951 n.17 (5th Cir.
2001); see also Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011). We cannot
reject a factual finding merely because we would have made a different one.
See Kately v. Cain, 704 F.3d 356, 361 (5th Cir. 2013).
body language during the interrogation. Lucio, 783 F. App’x at 321 n.1. That’s apples and
oranges. Officer Escalon did not purport to offer an expert opinion; he was describing his
personal experiences and impressions while interrogating Lucio. See Osbourn v. State, 92
S.W.3d 531, 538–39 (Tex. Crim. App. 2002) (explaining that a police officer’s “lay opinion
about something she personally perceived,” even when informed by an officer’s training
and experience, is distinct from expert testimony). And to the extent Escalon purported to
offer inadmissible expert opinion, Lucio’s trial lawyers had every right to object. They did
not. See ROA.4410-11; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003)
(explaining that “to preserve error, an objection must be timely, specific, pursued to an
adverse ruling, and, with two [inapplicable] exceptions, contemporaneous—that is, made
each time inadmissible evidence is offered”). They also had every right to cross-examine
Escalon on the point. Again, they did not. And even if Lucio’s counsel allowed inadmissible
evidence to come in by failing to object, that would do nothing to qualify Villanueva as an
expert on body language under Texas’s Daubert standard. See ROA.4700.
38
Case: 16-70027 Document: 00515739449 Page: 39 Date Filed: 02/09/2021
No. 16-70027
Lucio argues that the state habeas court made an unreasonable factual
determination concerning the admissibility of Pinkerman’s opinion. The
state habeas court held that Pinkerman’s proffered opinion “had no
relevance to the question of [Lucio’s] guilt or innocence.” ROA.10091. Lucio
argues that this was error—either under Texas Rule of Evidence 402 or
“Texas relevance law” generally. But it is well established that a “federal
court lacks authority to rule that a state court incorrectly interpreted its own
law.” Charles v. Thaler, 629 F.3d 494, 500–01 (5th Cir. 2011); see McGuire,
502 U.S. at 67. It is “not our function as a federal appellate court in a habeas
proceeding to review a state’s interpretation of its own law.” Schaetzle v.
Cockrell, 343 F.3d 440, 449 (5th Cir. 2003) (quoting Weeks v. Scott, 55 F.3d
1059, 1063 (5th Cir. 1995)). Because Lucio fails to identify any factual
problems with the state habeas court’s decision concerning Pinkerman’s
opinion, she has failed to make a claim that’s cognizable in federal habeas,
much less one that can push aside the relitigation bar in § 2254(d)(2). To the
extent Lucio’s argument can be construed as raising a legal claim under
federal law, we have already rejected it for the reasons discussed in Parts III.A
and III.B.
Our panel decision in this case relied heavily on the affidavit that
Pinkerman submitted to the state habeas court. But the whole point of that
affidavit was to aver facts that Pinkerman discussed with Lucio’s trial counsel
and that trial counsel failed to proffer at trial. Recall that at trial, Pinkerman
did not offer to prove that Lucio made false statements. See supra at 5 & n.2.
Instead, he made a vague offer to prove “how her demeanor . . . may be
understood by understanding and appreciating the psychological elements
and previous history and background that she has lived through.”
ROA.15301. It’s precisely because trial counsel did not solicit a better proffer
that Pinkerman accused him of ineffective assistance. Thus, according to the
Pinkerman affidavit, the trial court did not violate her constitutional rights—
39
Case: 16-70027 Document: 00515739449 Page: 40 Date Filed: 02/09/2021
No. 16-70027
her trial counsel did. Lucio cannot now fault the state courts for failing to
adjudicate a complete-defense claim based on facts that the defense team
failed to present.
As for Villanueva, Lucio argues that the state habeas court
unreasonably determined that she “proffered nothing to indicate that she had
any sort of specialized experience, knowledge[,] or training in the areas of
interpreting body language and patterns of behavior during police
interviews.” ROA.10091. In her expert-admissibility hearing, Villanueva
testified on direct examination that she had a master’s degree in social work
and was licensed to diagnose and treat mental disorders. ROA.4692. On
cross-examination, she was asked to identify “one treatise or one book” on
the “specialty” of “detect[ing] human thought process through physical
conduct.” ROA.4694–95. Villanueva conceded, “I’m not a specialist in that
area.” ROA.4695. Villanueva’s testimony provided a reasonable basis for the
state habeas court to find that she lacked special expertise in “interpreting
body language and patterns of behavior” in the specific context of “police
interviews.” Cf. Yount, 872 S.W.2d at 710 (“Psychologists and psychiatrists
are not, and do not claim to be, experts at discerning truth.” (quoting State
v. Moran, 728 P.2d 248, 255 (Ariz. 1986))). Furthermore, to the extent
Lucio’s argument challenges either (1) the state habeas court’s application of
Texas Rule of Evidence 702 or (2) the relevancy of this evidence under the
Federal Constitution, it suffers from the same defects as Lucio’s arguments
concerning Pinkerman’s opinion.
Finally, Lucio challenges the state habeas court’s determination that
her “complaint about [the] exclusion of her mitigation experts from the guilt-
innocence portion of the trial is nearly identical to issues nine and ten raised
on direct appeal.” ROA.10091. “The maxim is well established in this circuit
that a party who fails to make an argument before either the district court or
the original panel waives it for purposes of en banc consideration.” Miller v.
40
Case: 16-70027 Document: 00515739449 Page: 41 Date Filed: 02/09/2021
No. 16-70027
Tex. Tech Univ. Health Scis. Ctr., 421 F.3d 342, 349 (5th Cir. 2005) (en banc).
Because Lucio failed to raise this argument before the original panel, we hold
that it is forfeited. 9
IV.
The various dissenting opinions contradict AEDPA, Supreme Court
precedent, and the record in this case. Indeed, the dissents even contradict
one another. If the dissenters cannot agree amongst themselves, they cannot
expect our court to reach the level of certitude necessary to grant habeas
relief. Cf. Richter, 562 U.S. at 103 (“As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” (emphasis
added)). Four of the dissenters’ arguments merit additional responses.
A.
First, the dissenters spill much ink relitigating the facts. For example,
Judge Haynes emphasizes that “Lucio had trouble taking care of her many
children.” Post, at 79 (Haynes, J., dissenting). Judges Higginson and
Higginbotham suggest Texas’s foster-care system is the real culprit. Id. at 110
n.1 (Higginson, J., dissenting); id. at 63–69 (Higginbotham, J., dissenting). Or
perhaps two-year-old Mariah killed herself. Id. at 80, 101 (Haynes, J.,
dissenting). Judges Haynes and Higginson suggest that Officer Escalon
9
Lucio also argues that the “state court’s process for determining the facts” was
“itself unreasonable.” As Lucio acknowledges, that argument is foreclosed by circuit
precedent. See Valdez, 274 F.3d at 951 (holding “that a full and fair hearing is not a
precondition to according § 2254(e)(1)’s presumption of correctness to state habeas court
findings of fact nor to applying § 2254(d)’s standards of review”). We decline Lucio’s
invitation to overturn Valdez.
41
Case: 16-70027 Document: 00515739449 Page: 42 Date Filed: 02/09/2021
No. 16-70027
badgered Lucio during the interrogation. Id. at 80–82 (Haynes, J.,
dissenting); id. at 113 n.4 (Higginson, J., dissenting). And all the dissenters
have much to say about how they’d weigh Pinkerman’s testimony—
notwithstanding the stark differences between what Pinkerman says today
and what he proffered at trial, and notwithstanding the equally stark
differences between the roles of federal judges and state jurors. See id. at 83,
88–90 (Haynes, J., dissenting); id. at 75–76 (Elrod, J., dissenting); id. at 111
(Higginson, J., dissenting); id. at 68 (Higginbotham, J., dissenting). Judge
Elrod captures the dissenters’ gestalt by saying Lucio confessed to beating to
death her child and then framing the question presented as: “But did she?”
Id. at 70.
AEDPA and Supreme Court precedent squarely foreclose this entire
enterprise. Take for example Cavazos v. Smith, 565 U.S. 1 (2011) (per
curiam). A California jury convicted Shirley Ree Smith of shaking to death
her 7-week-old grandson. Id. at 2–5. At trial, the State called three experts
who testified about the horrific injuries Smith inflicted on the baby. Id. at 3–
5. The defense called two experts who testified that the baby “died from old
trauma,” or perhaps the real culprit was sudden infant death syndrome. Id.
at 5. The Ninth Circuit reweighed this evidence, found the State’s evidence
insufficient, and granted relief under AEDPA. Id. at 6–7.
The Supreme Court summarily reversed. As to the evidence the jury
heard, it was the jury’s province—not the federal court’s—to weigh it. See
id. at 2 (“Because rational people can sometimes disagree, . . . judges will
sometimes encounter convictions that they believe to be mistaken, but that
they must nonetheless uphold. The Court of Appeals in this case substituted
its judgment for that of a California jury . . . .”). And as to evidence the jury
did not hear—because Smith developed it after trial—that too failed to justify
relief under AEDPA:
42
Case: 16-70027 Document: 00515739449 Page: 43 Date Filed: 02/09/2021
No. 16-70027
The dissent’s review of the evidence presented to the jury over
seven days is precisely the sort of reweighing of facts that is
precluded by Jackson v. Virginia, 443 U.S. 307, 324 (1979), and
precisely the sort of second-guessing of a state court decision
applying Jackson that is precluded by AEDPA, 28 U.S.C.
§ 2254(d). The dissent’s views on how ‘adamantly’ experts
would testify today as opposed to at the time of trial are of
course pure speculation, as would be any views on how a jury
would react to less adamant testimony.
Id. at 8 n.* (quoting dissenting opinion by Justice Ginsburg). Exactly the same
could be said about the dissents’ reweighing of the evidence submitted to the
jury (the conditions of Lucio’s home, Officer Escalon’s interrogation tactics,
&c.) and their speculation about evidence not submitted to the jury (from
Pinkerman’s post-trial affidavit).
And even if AEDPA allowed the dissenters to redo the jury’s job, the
dissenters could not cherry-pick the facts. For example, one dissenter tells us
that Lucio had “issues with . . . income and housing” and that she “could
not pay her rent and was about to lose her apartment.” Post, at 65
(Higginbotham, J., dissenting). The dissent omits, however, that Lucio’s
own expert attributed those financial troubles to Lucio’s cocaine addiction.
Villanueva testified that Lucio received approximately $5,000 every month
in food stamps. ROA.15637–38. Yet her refrigerator was completely empty.
ROA.15637–38. That’s because—again, according to Lucio’s own expert—
Lucio and Mr. Alvarez sold the food stamps and spent the money on cocaine.
ROA.15636. Then they made the children survive on one free meal a day at
Loaves and Fishes. ROA.15638.
43
Case: 16-70027 Document: 00515739449 Page: 44 Date Filed: 02/09/2021
No. 16-70027
It’s unclear what the dissenters hope to achieve from their
counterfactual narratives. But whatever the purpose, the effort is foreclosed
by AEDPA, Supreme Court precedent, and the record. 10
B.
Next, the dissenters repeatedly accuse us of “sua sponte” raising
procedural arguments that the State waived. See post, at 78, 90–95 (Haynes,
J., dissenting); id. at 71 n.1 (Elrod, J., dissenting); id. at 111 & n.2 (Higginson,
J., dissenting). For example, some dissenters criticize us for holding that
Lucio “procedural[ly] default[ed]” her claims. Id. at 90–93, 94 n.9 (Haynes,
J., dissenting). Other dissenters accuse us of holding Lucio failed to
“exhaust[]” her claims. Id. at 71 n.1 (Elrod, J., dissenting). These accusations
are quite odd. We mention “default” only once above, and only as a
description of the Court of Criminal Appeals’ direct-appeal decision. See
supra at 19. And we hold that Lucio did exhaust her claims. See supra at 20 &
10
Amongst the most troubling of the dissents’ factual inaccuracies is their
collective assertion that Lucio offered Pinkerman and Villanueva to “‘answer the one
question every rational juror needs answered: If [Lucio] is innocent, why did [s]he
previously admit h[er] guilt?’” Post, at 104 (Haynes, J., dissenting) (quoting Crane, 476
U.S. at 689); see also id. at 73, 75–77 (Elrod, J., dissenting); id. at 110–11 (Higginson, J.,
dissenting); id. at 64 n.1 (Higginbotham, J., dissenting). The dissenters cannot cite a single
page of the record that suggests Lucio ever tried to justify admitting Pinkerman and
Villanueva for that purpose. To the contrary, Lucio’s trial lawyers made the strategic
decision that it was better to deny that Lucio ever admitted her guilt rather than try to
explain it away. As one of Lucio’s lawyers told the jury at closing: “She confessed to what?
She confessed to bruising that child from head to foot. She confessed to neglect. She didn’t
confess to murder.” ROA.4789. Lucio’s lawyers could’ve changed that strategy or even
made inconsistent alternative arguments when proffering Pinkerman and Villanueva
outside the presence of the jury. But the defense decided to maintain its no-confession
theory to the very end. AEDPA prevents us from second-guessing that trial strategy. See
Pinholster, 563 U.S. at 190 (holding that federal courts apply “doubly deferential” review
to the strategic choices of counsel (quotation omitted)); accord Knowles v. Mirzayance, 556
U.S. 111, 123 (2009).
44
Case: 16-70027 Document: 00515739449 Page: 45 Date Filed: 02/09/2021
No. 16-70027
n.5; post, at 95–96 (Haynes, J., dissenting) (agreeing with our exhaustion
holding). Our sua sponte procedural holdings are nil.
All we’ve held is that Lucio has changed her complete-defense claim
over time. That is an undisputed proposition. Lucio herself recognized it in
her state habeas application. ROA.8029 n.36. Lucio conceded it in the district
court. ROA.159. Both sides recognized it before our court. E.g., Director’s
Opening En Banc Q&A 1–8; Lucio’s Opening En Banc Q&A 1–11. And
because Lucio changed her argument over time, we must analyze each claim
as it existed at the time Lucio presented it to the state courts. See Henry, 513
U.S. at 366. That is hornbook law.
The dissenters appear to believe that a state prisoner can raise
different claims at different times with different facts in the state court, then
smush them all together into a single claim in federal court. This belief has
no basis in law. Consider for example the Supreme Court’s canonical
decision in Rose v. Lundy, 455 U.S. 509 (1982). In that case, the state prisoner
exhausted a prosecutorial-misconduct claim in state court. He based that
claim on five comments the prosecutor made at trial. Id. at 511 & n.3. When
Lundy got to federal court, however, he attempted to broaden his claim to
include additional prosecutorial statements suggesting “that the State’s
evidence was uncontradicted.” Id. at 511. The federal district court allowed
Lundy to lump together his separate claims into a single prosecutorial-
misconduct claim and then considered them in the context of the trial “taken
as a whole.” Ibid. The Supreme Court reversed and held that state prisoners
must “seek full relief first from the state courts, thus giving those courts the
first opportunity to review all claims of constitutional error.” Id. at 518–19
(emphases added). The Court noted that this rule “reduces piecemeal
litigation” by forcing prisoners to present the state courts with an entire claim
and allowing the state courts to adjudicate it. Id. at 520 (emphasis in original);
45
Case: 16-70027 Document: 00515739449 Page: 46 Date Filed: 02/09/2021
No. 16-70027
see also Boerckel, 526 U.S. at 845 (holding prisoners must give state courts “a
full and fair opportunity to resolve federal constitutional claims”).
This eliminates the dissenters’ various procedural objections. As in
Lundy, Lucio certainly exhausted something. As in Lundy, the State concedes
that here. As in Lundy, we can only consider the claim as Lucio exhausted it.
And just as Lundy precludes a prisoner from smushing together separate
prosecutorial-misconduct claims to create a new one that the state never
considered, it also precludes Lucio from smushing together separate
complete-defense claims to create a new one that amalgamates her factual
and legal contentions at trial, on direct appeal, and in state habeas. See also
Pinholster, 563 U.S. at 181–82 (holding the relitigation bar’s “backward-
looking language requires an examination of the state-court decision at the
time it was made”). 11
It’s no answer to say that the Texas courts were adjudicating the same
complete-defense claim all along. Post, at 83, 88–90 (Haynes, J., dissenting);
id. at 111 (Higginson, J., dissenting). That’s for two reasons.
First, Lucio’s claims are quite different—as she herself concedes. At
trial, Lucio did not give the trial court the slightest hint that admission of the
11
Two of the dissenters suggest that Pinholster requires us to mix together the
Pinkerman affidavit (from state habeas) and the Crane claim (from Lucio’s direct appeal).
See post, at 92–93 (Haynes, J., dissenting); id. at 76 n.5 (Elrod, J., dissenting). Not so.
Pinholster held “that review under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.” 563 U.S. at 181. At the time the state
courts adjudicated Lucio’s Crane claim on direct appeal, the Pinkerman affidavit did not
even exist. Nothing in Pinholster required the direct-appeal court to predict what Lucio and
Pinkerman would file in the future. And when Lucio and Pinkerman eventually did file the
affidavit during her state habeas proceedings, nothing in Pinholster required the state habeas
court to go back in time and re-adjudicate the Crane claim that Lucio already raised,
especially given Lucio’s express disclaimer of a Crane claim in her state habeas application.
See Pinholster, 563 U.S. at 181–82; ROA 8029 n.36.
46
Case: 16-70027 Document: 00515739449 Page: 47 Date Filed: 02/09/2021
No. 16-70027
Pinkerman-Villanueva testimony was compelled by the Due Process Clause,
Crane, or anything in federal law. The trial court repeatedly asked Lucio’s
trial lawyer to explain the basis for admitting the testimony. Counsel never
explained why the testimony mattered; never said anything about Lucio’s
constitutional right to present a complete defense; never said anything about
the jury’s role in evaluating the credibility of Lucio’s custodial statements;
and never said anything that could come close to putting the trial court on
notice that the question involved anything other than state evidentiary law. 12
It was not until her direct appeal that Lucio first invoked federal law, and even
then she had to reimagine her trial proffer to do it. See Lucio, 351 S.W.3d at
900 (holding “[Lucio’s] claim on appeal as to what Villanueva’s testimony
would have been does not comport with Villanueva’s proffered testimony at
trial”); id. at 902 (holding “[Lucio’s] claim on appeal as to what Pinkerman’s
testimony would have been does not comport with Pinkerman’s proffered
testimony at trial”). And her claims at trial and on direct appeal differed again
from her claim in state habeas, which added Pinkerman’s affidavit but
disclaimed any reliance on Crane. Cases like Henry and Lundy squarely
foreclose Lucio from arguing one thing in state court and another broader
thing in federal court. That’s not a “sua sponte” procedural holding; that’s
application of AEDPA to the different claims that the state courts
adjudicated on the merits at the various times they adjudicated them.
12
The dissenters make much of the trial court’s apparent absence from the
courtroom during trial counsel’s bill of particulars. See post, at 83, 89 (Haynes, J.,
dissenting). But they cite nothing to suggest the trial court’s apparent absence violates any
provision of state or federal law or any precedent from any state or federal court. And if the
trial court was absent, that makes defense counsel’s bill of particulars all the more
indefensible. By hypothesis, Lucio’s trial lawyer and Pinkerman could have put anything
they wanted in the record—unpoliced by an apparently absent trial judge. And still they
failed to say anything at all about Crane, the Due Process Clause, the complete-defense
right, or anything in federal law.
47
Case: 16-70027 Document: 00515739449 Page: 48 Date Filed: 02/09/2021
No. 16-70027
Second, if the dissenters were right that Lucio did offer the exact same
argument at all phases of her state-court proceedings, that would trigger a
variety of procedural obstacles. As noted above, Texas has well-established
procedural rules that prohibit prisoners from raising the same claim twice.
See supra at 30 (citing Ex parte Brown, 205 S.W.3d at 546). And if Lucio
violated that procedural rule by doing what the dissenters think she did, she
would run headlong into the procedural-default doctrine. See, e.g., Coleman
v. Thompson, 501 U.S. 722, 750–51 (1991). We have refrained from applying
that procedural bar only to be accused of applying it anyway.
C.
Next, the dissenters offer competing theories of Crane and AEDPA.
Some dissenters think AEDPA does not apply to Lucio’s Crane claim, so our
review is de novo. See post, at 78 n.3, 95–96 & n.10 (Haynes, J., dissenting).
Others think AEDPA’s relitigation bar applies but that Lucio can overcome
it because the state court’s decision runs “contrary to” Crane. See id. at 71
(Elrod, J., dissenting); 28 U.S.C. § 2254(d)(1). Still others think Lucio can
overcome the bar because the state court “unreasonably applied” Crane. See
post, at 78 (Haynes, J., dissenting); 28 U.S.C. § 2254(d)(1). The dissenters
agree, however, that Lucio raised a “Crane claim” in her state habeas
application—notwithstanding the fact that she expressly disclaimed any
reliance on Crane in that very application. See ROA.8029 n.36. The
dissenters do not offer a single citation to justify that novel habeas theory.
1.
Let’s start with the dissenters’ argument for de novo review. Those
who defend the panel’s application of that standard contend that “the state
habeas court failed to adjudicate Lucio’s complete defense claim on the
merits because it erroneously determined that Lucio raised a state evidentiary
48
Case: 16-70027 Document: 00515739449 Page: 49 Date Filed: 02/09/2021
No. 16-70027
challenge and rejected that claim based on state evidentiary standards.” Post,
at 96 n.10 (Haynes, J., dissenting).
Not so. Lucio argued in her state habeas application that the trial court
violated her right to a complete defense because “the evidence at issue here
was not irrelevant to the issue of [her] guilt or innocence.” ROA.8032. Lucio
herself characterized the claim as one of state evidentiary law. The state
habeas court addressed that argument head-on, finding no error in the
exclusion of Pinkerman’s proffered testimony because it “had no relevance
to the question of [Lucio’s] guilt or innocence.” ROA.10091. We struggle to
see how resolving an issue in the exact same terms presented can constitute
a failure to adjudicate it.
The principles of comity and federalism that undergird the entirety of
federal habeas for state prisoners dating back to Reconstruction require
closer attention to the state-court litigation. So does the party-presentation
principle that features so prominently in the principal dissent. See post, at 94
(Haynes, J., dissenting) (describing “the Supreme Court’s admonition in
Sineneng-Smith” as warning courts not to “step in on [their] own initiative”
and “redo” the litigation).
2.
Next, consider the dissenters’ “contrary to” argument. Judge Elrod
reads Crane to clearly establish the “bedrock rule” that juries “must be
allowed to hear competent, reliable evidence bearing on the credibility of a
confession when such evidence is central to the defendant’s claim of
innocence.” Post, at 74 (quotation omitted). She then says the state court’s
decision was “contrary” to this “bedrock rule.” See id. at 76. She concludes
that this case and Crane should come out the same way because they involve
materially indistinguishable facts. See id. at 74–75 & n.3.
49
Case: 16-70027 Document: 00515739449 Page: 50 Date Filed: 02/09/2021
No. 16-70027
That analysis falters at every step. Crane does not establish—much
less clearly establish—a universal, freestanding right to introduce competent
and reliable evidence challenging a confession’s credibility. The Supreme
Court has repeatedly so held. See Jackson, 569 U.S. at 509–10; Egelhoff, 518
U.S. at 53; accord supra at 23–24. Rather, Crane holds that the wholesale
“exclusion of this kind of exculpatory evidence” is constitutionally
problematic “[i]n the absence of any valid state justification.” Crane, 476
U.S. at 690. That’s why the entire dispute in Crane hinged on the adequacy
of Kentucky’s justification for its blanket exclusion. See supra at 23–24. What
was the justification? “[E]stablished Kentucky procedure” made “a trial
court’s pretrial voluntariness determination . . . conclusive.” Crane, 476 U.S.
at 686. Crane held these two things—a blanket evidentiary exclusion justified
only by a “conclusive” pretrial determination of voluntariness—violate the
Due Process Clause.
None of the state-court decisions in this case were “contrary to”
Crane’s holding. Texas did not impose a categorical prohibition on evidence;
it did not establish a procedure for excluding evidence through “conclusive”
pretrial rulings; and it justified the trial court’s decision as a mine-run,
discretionary evidentiary decision in the face of a vacuous proffer by defense
counsel. That’s far afield from Crane.
It’s no answer to say the state court “failed to even identify the correct
legal principle.” Post, at 72 (Elrod, J., dissenting) (emphasis in original). The
Supreme Court has repeatedly explained that a state court need not cite any
legal principle at all. See Richter, 562 U.S. at 98 (“By its terms § 2254(d) bars
relitigation of any claim ‘adjudicated on the merits’ in state court, subject
only to the exceptions in §§ 2254(d)(1) and (2). There is no text in the statute
requiring a statement of reasons.”); ibid. (“As every Court of Appeals to
consider the issue has recognized, determining whether a state court’s
decision resulted from an unreasonable legal or factual conclusion does not
50
Case: 16-70027 Document: 00515739449 Page: 51 Date Filed: 02/09/2021
No. 16-70027
require that there be an opinion from the state court explaining the state
court’s reasoning.”). And where the state court offers an explanation, it
“need not cite or even be aware of our cases under § 2254(d).” Ibid. (citing
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).
It’s also no answer to declare that this case and Crane involve
“materially indistinguishable facts.” Post, at 74 (Elrod, J., dissenting). It is
true that “here, as in Crane, the trial court pointed to a rule of evidence to
find the testimony inadmissible.” Id. at 75. But at that level of generality,
every state-law evidentiary ruling in a criminal case implicates Crane. Contra
McGuire, 502 U.S. at 67. That’s why the Supreme Court has warned us not
to “fram[e] [its] precedents at such a high level of generality.” Jackson, 569
U.S. at 512; accord post, at 61 (Southwick, J., concurring). In fact, the Court
summarily reversed our sister circuit for doing exactly what the dissenters
propose here: “characterizing the cases as recognizing a broad right to
present evidence bearing on . . . credibility.” Jackson, 569 U.S. at 512
(quotation omitted). 13
13
Jackson notwithstanding, Judge Elrod objects to our “materially
indistinguishable” analysis. She criticizes our “suggest[ion]” that “if the facts are not
exactly the same, the ‘contrary to’ exception automatically fails.” Post, at 75 n.3. Of course,
that’s not what we say. We agree with Judge Elrod that AEDPA’s “contrary to” prong can
be satisfied through “imposition of a contradictory standard” or “a ‘diametrically
different’ conclusion on ‘materially indistinguishable’ facts.” Ibid. (quoting Terry
Williams, 529 U.S. at 405); see supra at 24–25. But we disagree that Terry Williams or any
other Supreme Court precedent supports a “contrary to” argument in this case. As the
Terry Williams Court itself explained, “[i]t is difficult . . . to describe . . . a run-of-the-mill
state-court decision as diametrically different from, opposite in character or nature from,
or mutually opposed to . . . our clearly established precedent.” 529 U.S. at 406 (quotations
omitted). And a run-of-the-mill state-court evidentiary decision is exactly what we have
here. See supra at 26–29, 49. “Although the state-court decision may be contrary to the
[dissenters’] conception of how [Crane] ought to be applied in th[is] particular case, the
decision is not ‘mutually opposed’ to [Crane] itself.” Terry Williams, 529 U.S. at 406.
51
Case: 16-70027 Document: 00515739449 Page: 52 Date Filed: 02/09/2021
No. 16-70027
3.
The dissenters’ final Crane theory is that the state courts
unreasonably applied that decision.
Judge Haynes contends that this case is like Crane because in both
cases a state court “excluded testimony . . . [a]s irrelevant.” Post, at 103. It’s
true that Crane held that a state court cannot use a pretrial voluntariness
ruling to justify the blanket exclusion of exculpatory evidence as
“irrelevant.” 476 U.S. at 687. But this case involves neither a pretrial
voluntariness ruling nor a blanket exclusion of anything. Instead, the trial
court admitted the type of evidence that would have been excluded in Crane
when proffered by Lucio’s sister. See supra at 26–27. That proves the State
in this case did not have a blanket evidentiary prohibition, unlike in Crane.
And it proves that the trial court excluded Pinkerman and Villanueva by
applying a discretionary, non-categorical evidentiary rule, unlike in Crane.
Next, Judge Haynes argues that Crane applies to discretionary
evidentiary decisions because the Supreme Court has not expressly held to
the contrary. See post, at 104 (“[N]either Chambers nor Crane holds that a
defendant’s right to present a complete defense applies only when a state
court excludes evidence based on categorical evidentiary rules.”). But that
gets the AEDPA relitigation inquiry backwards. Our task is not to determine
whether Supreme Court precedent possibly permits Lucio to argue what she
argued, but whether that precedent positively precludes the state court from
holding what it held. See 28 U.S.C. § 2254(d); Woods v. Etherton, 136 S. Ct.
1149, 1152 (2016) (per curiam). The absence of precedent commands the
denial of relief to a state prisoner, not the grant of it.
Next, Judge Haynes insists that Crane applies to discretionary
evidentiary decisions because the Supreme Court has so held. Judge Haynes
acknowledges, as she must, that Crane limited its holding to “the blanket
52
Case: 16-70027 Document: 00515739449 Page: 53 Date Filed: 02/09/2021
No. 16-70027
exclusion of the proffered testimony about the circumstances of petitioner’s
confession”—but she suggests we should ignore that limitation because it’s
only “one line” in the Court’s opinion. Post, at 105 (emphasis added by Judge
Haynes) (quoting Crane, 476 U.S. at 690). Of course, it is not true that
Crane’s limitations come from “one line” in the opinion. 14 And even if it was,
Crane’s holding remains binding on us in all events.
It’s even more troubling to interpret Montana v. Egelhoff as extending
Crane from blanket exclusions to discretionary ones. See id. at 105–06. In
Egelhoff, the Montana Supreme Court interpreted the Due Process Clause
and Crane to establish “the right to present and have considered by the jury
all relevant evidence to rebut the State’s evidence on all elements of the
offense charged.” 518 U.S. at 41–42 (emphasis omitted) (quotation omitted).
The Supreme Court emphatically reversed. See id. at 56. We are aware of no
authority for turning the Supreme Court’s rejection of one prisoner’s claim
into clearly established law that supports a second prisoner’s claim. Cf. Nerio
v. Evans, 974 F.3d 571, 575 (5th Cir. 2020) (holding a case rejecting one
Fourth Amendment claim does not clearly establish the law for another
Fourth Amendment claim).
Next, Judge Haynes asserts that Crane applies because the state
court’s discretionary ruling was not actually discretionary. See post, at 106.
The theory seems to be that because Texas’s relevance rule prohibits
14
Crane is replete with references to the distinction between discretionary and
categorical evidentiary rulings. See 476 U.S. at 689 (“We acknowledge . . . our traditional
reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial
courts.”); id. at 690 (“[W]e have never questioned the power of States to exclude evidence
through the application of evidentiary rules that themselves serve the interests of fairness
and reliability . . . .”); id. at 691 (“[S]ince . . . Kentucky . . . has [not] advanced any rational
justification for the wholesale exclusion of this body of potentially exculpatory evidence,
the decision below must be reversed.”).
53
Case: 16-70027 Document: 00515739449 Page: 54 Date Filed: 02/09/2021
No. 16-70027
irrelevant evidence in absolute terms, state courts necessarily act
“mechanistically” and with “no discretion” when they apply it. Ibid. Not so.
Court decisions are “discretionary” when they “involv[e] an exercise of
judgment and choice.” Discretionary, Black’s Law Dictionary (11th
ed. 2019). Both judgment and choice obviously abound when it comes to
relevance determinations. Crane itself recognizes that trial judges are “called
upon to make dozens, sometimes hundreds, of decisions concerning the
[relevance] of evidence” in a given case. 476 U.S. at 689. Crane further
recognizes that federal law gives judges “wide latitude” in making those
decisions. Ibid. (quotation omitted). And state law does too. See Brown v.
State, 96 S.W.3d 508, 511 (Tex. App.—Austin 2002, no pet.) (“Questions of
relevance should be left largely to the trial court, relying on its own
observations and experience, and will not be reversed absent an abuse of
discretion.” (quotation omitted)); see also post, at 85, 103, 106 (Haynes, J.,
dissenting) (noting that the state habeas court reviewed the trial court’s
evidentiary ruling for abuse of discretion). We refuse to interpret the Due
Process Clause to mean otherwise.
In her last effort to liken this case to Crane, Judge Haynes admits that
the cases are distinguishable. See post, at 88. Judge Haynes seizes on the
statement in Crane that “evidence surrounding the making of a confession
bears on its credibility as well as its voluntariness.” 476 U.S. at 688 (emphases
added) (quotation omitted); see post, at 88, 97. From this statement, Judge
Haynes concludes that Lucio can disclaim Crane’s voluntariness holding—as
she did in her state habeas petition—while nonetheless relying on its
credibility holding to support her complete-defense claim. See post, at 88, 97.
AEDPA prohibits this argument too. On direct appeal, Lucio
characterized Crane as a case about the voluntariness of confessions. See
ROA.10841; post, at 88 (Haynes, J., dissenting). She recognized that Crane
applied the voluntariness requirement to police-created circumstances like
54
Case: 16-70027 Document: 00515739449 Page: 55 Date Filed: 02/09/2021
No. 16-70027
“how long the questioning lasted” and “how many policemen were there.”
ROA.10841. So she invited the Court of Criminal Appeals to extend Crane’s
reasoning to a new form of involuntary interrogation statements—namely,
those affected by battered woman syndrome. She did not, however, base her
direct-appeal Crane claim on the theory that battered woman syndrome made
her statements less credible, or that it made her less likely to have committed
capital murder. That’s why the Court of Criminal Appeals resolved Lucio’s
Crane claim in terms of voluntariness alone: she hadn’t argued anything else.
See supra at 10.
In state habeas, Lucio’s understanding of Crane remained unchanged.
She cited Crane only once—and only to disclaim any reliance on it. After all,
Lucio continued to conceptualize Crane as a voluntariness case that
restricted a trial court’s ability to exclude “evidence regarding the
circumstances under which [a] confession [i]s taken.” ROA. 8029 n.36. And
because Lucio had changed her defense strategy from challenging
voluntariness to challenging “whether [she] was likely to have engaged in
ongoing abuse of Mariah” in the first place, she no longer needed Crane.
ROA.8029 n.36. So, if we take Lucio at her word, she was not trying to
introduce expert testimony to “answer the one question every rational juror
needs answered: If [Lucio] is innocent, why did [s]he previously admit h[er]
guilt?” Contra post, at 79, 104 (Haynes, J., dissenting); post, at 70, 73–74
(Elrod, J., dissenting). Rather than contesting the credibility of her
statements, Lucio contended the Constitution compelled the admission of
Pinkerman’s testimony because it “was relevant to . . . demonstrating that
[she] did not have the propensity to commit violence against Mariah.”
ROA.8033–34. Some might wish that Lucio litigated the case differently. But
we are not free to condemn the state court for addressing Lucio’s claims as
she presented them. See also supra at 44 n.10.
55
Case: 16-70027 Document: 00515739449 Page: 56 Date Filed: 02/09/2021
No. 16-70027
D.
Finally, the dissenters point to Scrimo v. Lee, 935 F.3d 103 (2d Cir.
2019), and Fieldman v. Brannon, 969 F.3d 792 (7th Cir. 2020). See post, at
107–08 (Haynes, J., dissenting). Neither helps the dissenters.
Scrimo held that a state court violates AEDPA when it “fails to extend
a principle of clearly established law to situations which that principle should
have, in reason, governed.” 935 F.3d at 112 (quotation omitted); see also id.
at 114 (reiterating the failure-to-extend principle). Then Scrimo held the state
court unreasonably failed to extend Crane by excluding certain witness
testimony about drug deals. See id. at 108–10, 120. This is unhelpful to the
dissenters for three reasons. First, no member of our court agrees with the
Second Circuit’s unreasonable-failure-to-extend reading of AEDPA. And
that’s for good reason—because the Supreme Court has squarely and
expressly repudiated it. See White, 572 U.S. at 426 (rejecting “the
unreasonable-refusal-to-extend rule on which respondent relies”).
Second, far from supporting the dissenters, Scrimo holds “‘[a] court
does not unreasonably apply federal law in failing to guess a theory of
relevance that was not argued at trial.’” 935 F.3d at 113 (quoting Fuller v.
Gorczyk, 273 F.3d 212, 222 (2d Cir. 2001)); see also Corby v. Artus, 699 F.3d
159, 168 (2d Cir. 2012) (“The state trial judge was not required to read
between the lines of counsel’s motion to divine a previously unasserted legal
theory . . . .” (cited and quoted in Scrimo, 935 F.3d at 113)). The fact that
Scrimo’s lawyer apparently articulated a Crane-based challenge to the
exclusion of testimony in his trial does nothing to help Lucio, whose lawyer
did not.
Third, when it came time to tackle specifics, the Second Circuit
produced a rule that looks nothing like the rules the dissenters (or we) set
forth here. Compare Scrimo, 935 F.3d at 115 (“If the evidentiary ruling was
56
Case: 16-70027 Document: 00515739449 Page: 57 Date Filed: 02/09/2021
No. 16-70027
correct pursuant to a state evidentiary rule, . . . [w]e consider whether the
evidentiary rule is arbitrary or disproportionate to the purposes it is designed
to serve. On the other hand, if the potentially exculpatory evidence was
erroneously excluded, we must look to whether the omitted evidence
evaluated in the context of the entire record creates a reasonable doubt that
did not otherwise exist.” (quotations omitted)), with post, at 99 (Haynes, J.,
dissenting) (“[A] state court violates a defendant’s right to present a
complete defense if (1) the excluded evidence was critical to the defense, and
(2) the state court failed to provide a rational justification for its exclusion.”
(citations omitted)). The dissenters cannot claim to embrace Scrimo because
they reject all three of these holdings.
They fare no better under Fieldman. There, the Seventh Circuit held
that “the state trial court’s exclusion of Fieldman’s testimony was a decision
contrary to” Crane. 969 F.3d at 800. Or perhaps it didn’t. See post, at 107
n.20 (Haynes, J., dissenting) (“[A]lthough the court in Fieldman wrote that
the state trial court’s adjudication was ‘contrary to’ clearly established law,
the holding was in fact based under the ‘unreasonable application’ prong.”).
We take no position as to whether the dissenters misunderstand Fieldman or
whether Fieldman misunderstands itself. Either way, Fieldman turned on the
state court’s exclusion of the defendant’s own testimony when he took the
stand at trial. See 969 F.3d at 801. It’s well-settled—outside of Crane—that
trial courts cannot impose such limits on a defendant’s own testimony. See,
e.g., Rock, 483 U.S. at 49. It’s also irrelevant to this case.
* * *
The judgment of the district court is AFFIRMED.
57
Case: 16-70027 Document: 00515739449 Page: 58 Date Filed: 02/09/2021
No. 16-70027
Leslie H. Southwick, Circuit Judge, joined by Costa and Willett,
Circuit Judges, concurring:
I agree we should deny relief despite the difficult issue of the exclusion
of testimony that might have cast doubt on the credibility of Lucio’s
confession. That exclusion was the key evidentiary ruling at trial. Able
colleagues in dissent have shown the factual imperative that jurors hear this
testimony. Nonetheless, I cannot accept the legal reasoning of the dissenting
opinions. Instead, I conclude that current, clearly established Supreme
Court authority falls short of permitting us to reject the state habeas court’s
consideration of that issue.
This separate opinion is offered despite the analysis contained in the
erudite principal opinion for the court. In a much more thorough manner
than here, it explains the denial of relief. I am unable to join all that is there
and wish to explain my more limited reasons to affirm.
The dissenters express well their view that there was expert testimony
that, if jurors had only heard it, could have impacted the verdict. We are all,
though, working within the constraints of AEDPA. Its premise is that
someone who has received a criminal conviction in state court has an initial
means within the state-court system to challenge the validity of the
conviction, then has a much more constrained means of challenging the state-
court decision in federal court.
Fundamentally for me, what is at issue in the present appeal is whether
a Supreme Court decision with language helpful to Lucio’s claims, relied on
by the dissenters but explained in other terms by this court’s principal
opinion, permits us to conclude that the state court erred in rejecting this
claim and then to correct the error.
The precedent, of course, is Crane v. Kentucky, 476 U.S. 683 (1986).
Its relevance is to the exclusion of the expert testimony of Dr. John
58
Case: 16-70027 Document: 00515739449 Page: 59 Date Filed: 02/09/2021
No. 16-70027
Pinkerman and, less importantly, of Ms. Norma Villanueva. It is now argued
that they would have explained for jurors why someone like this defendant,
after hours of interrogation, would have falsely admitted to killing someone.
Because Lucio’s confession admitted to the essentials of the indictment, it
was imperative that some doubt about the confession be created. The Crane
decision certainly is helpful on that claim, most explicitly when it stated that
a state court cannot be “permitted to exclude competent, reliable evidence
bearing on the credibility of a confession when such evidence is central to the
defendant’s claim of innocence.” Id. at 690. Interpreting Crane as applied to
our facts, both to what happened at trial and the proceedings since, is the
difficult part of this appeal.
Exhaustion of the claim is one issue. A state prisoner must have
“exhausted the remedies available in the courts of the State” on a claim
before we may consider it. 28 U.S.C. § 2254(b)(1)(A). It seems the
dissenters are correct that the State conceded that the issue is preserved.
Regardless, in my view, exhaustion is not outcome-determinative.
The claim is that the state court unconstitutionally prevented the
admission of reliable evidence bearing on the credibility of a confession, and
that this evidence was central to the defendant’s claim of innocence. A
constitutional right to its introduction is said to arise under Crane, a decision
predating the rulings in this case. Thus, the state court allegedly reached “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.” § 2254(d)(1). To preview the conclusion of the analysis that
follows, I state here that the interpretation of Crane that is necessary for relief
in this case is not clearly established.
The principal opinion for the court already well explains that Crane
reviewed a decision by a state’s supreme court that analyzed for the first time
59
Case: 16-70027 Document: 00515739449 Page: 60 Date Filed: 02/09/2021
No. 16-70027
what a new rule of state procedure meant as to juror consideration of
confessions. See KY. R. CRIM. P. 9.78 (repealed 2014). The state trial-
court judge determined prior to trial that the confession was voluntary; at
trial, the court excluded evidence relating to voluntariness as not being
relevant to the jury’s function. Crane v. Commonwealth, 690 S.W.2d 753,
753–54 (Ky. 1985), rev’d, 476 U.S. 683 (1986). The Kentucky Supreme
Court agreed with excluding evidence as to voluntariness because the new
procedural rule left it solely to the trial judge to decide that issue, while jurors
could consider other challenges. Id. at 754.
The Court held there were three flaws in Kentucky’s evidentiary rule:
(1) it found no support in Supreme Court cases, (2) it was based on a
misconception of the role of confessions at trial, and (3) “under the
circumstances of this case, . . . [it] deprived petitioner of his fundamental
constitutional right to a fair opportunity to present a defense.” Crane, 476
U.S. at 687. The Court quoted a precedent that “evidence surrounding the
making of a confession bears on its credibility,” not just on “its
voluntariness.” Id. at 688 (quoting Jackson v. Denno, 378 U.S. 368, 386 n.13
(1964)).
The Court then identified a near consensus in the states as well as
under federal rules to allow all evidence about a confession to be submitted
to jurors regardless of a pretrial failure to suppress. Still, “even a consensus
as broad as this one is not inevitably congruent with the dictates of the
Constitution.” Id. at 689. Important to my analysis of the opinion, the Court
recognized that state trial judges need to make countless evidentiary
decisions in a trial, and evidentiary rules may be applied that “serve the
interests of fairness and reliability.” Id. The facts in Crane easily permitted
the Court to decide that this “blanket exclusion . . . deprived [Crane] of a fair
trial.” Id.
60
Case: 16-70027 Document: 00515739449 Page: 61 Date Filed: 02/09/2021
No. 16-70027
The Supreme Court did not choose among different possible
constitutional sources for its holding. It held that what Kentucky was doing
violated this defendant’s right for “a meaningful opportunity to present a
complete defense.” Id. at 690 (quoting California v. Trombetta, 467 U.S. 479,
485 (1984)). There was “no new ground” being broken in saying that the
“opportunity to be heard” is fundamental to due process, and a component
of that is to permit the introduction of “competent, reliable evidence bearing
on the credibility of a confession when such evidence is central to the
defendant’s claim of innocence.” Id.One possible explanation of what was “clearly established” by Crane,
even if not with clarity, is that the decision invalidated the application of any
evidentiary rule that creates a “blanket” bar to a category of evidence and in
the specific case prevented a defendant from presenting a meaningful
defense. I agree with that sense of the Court’s opinion. Another possibility
is that a federal court may grant relief based on an everyday evidentiary
ruling, such as the one about relevance in this case, when that ruling
prevented a defendant from introducing evidence that can be characterized
as central to the defense. Based on Crane itself and on other caselaw, my view
is that the opinion does not apply to a simple, discretionary, even if errant,
evidentiary decision by a state-court judge. To make every evidentiary ruling
a potential issue of constitutional dimension is beyond my understanding of
Crane.
Of particular importance to my conclusion about Crane, the Supreme
Court has emphasized — in this precise area of limits on examination of
witnesses — that lower courts must be careful in defining “clearly
established law.” To conclude that its precedent supports a “broad right to
present ‘evidence bearing on [a witness’] credibility,’” the Court held, was
framing “clearly established Federal law” at too “high [a] level of
generality.” Nevada v. Jackson, 569 U.S. 505, 512 (2013) (first alteration in
61
Case: 16-70027 Document: 00515739449 Page: 62 Date Filed: 02/09/2021
No. 16-70027
original). I find no Supreme Court opinion holding that an error in the
discretionary application of a general evidentiary standard is a constitutional
violation.
Related precedents often have addressed a rule governing some
evidentiary category, starting with Chambers v. Mississippi, 410 U.S. 284,
302–03 (1973), which concerned a bar to any evidence that ran afoul of the
common-law voucher rule; then Rock v. Arkansas, 483 U.S. 44, 62 (1987), in
which hypnotically refreshed testimony was inadmissible; later, United States
v. Scheffer, 523 U.S. 303, 305 (1998), which concerned a military evidentiary
rule barring polygraph results; and Holmes v. South Carolina, 547 U.S. 319,
331 (2006), which involved a prohibition of any evidence of third-party guilt.
In summary, I conclude that Crane overrides any blanket evidentiary
rule that prevented introduction in the particular case of reliable, competent
evidence central to the defense. For Lucio to succeed, Crane must do more.
Perhaps the Supreme Court will interpret Crane more broadly, but I cannot,
in light of what I have expressed here, conclude that Crane clearly established
law helpful to Lucio.
My joining the refusal to allow relief in this case comes from the
interplay of my interpretation of the limitations that AEDPA places on
federal courts and my analysis of the limitations of Crane. This case, though,
is a clear example that justice to a defendant may necessitate a more
comprehensive review of state-court evidentiary rulings than is presently
permissible under law that is established with sufficient clarity.
62
Case: 16-70027 Document: 00515739449 Page: 63 Date Filed: 02/09/2021
No. 16-70027
Patrick E. Higginbotham, Circuit Judge, joining Judge Haynes’s
dissent:
Dancing with words cannot mask the reality that we execute few with
means and by metrics flowing from the pens of judges faithfully drawing upon
fealty to an abstraction of our “federalism,” one that screens the
performance of poorly funded state judicial systems—themselves victims of
political subscription to the death penalty while refusing to fund it. As the
Court majority upholds the ending of one life at the hand of the state—
Melissa Lucio’s, now on death row for twelve years—it perversely eases the
slide to the end of the death penalty. It does so with a hawking, adversarial
draw upon the jurisprudence of capital punishment with springs at every
turn. This with a prosecution deeply flawed from its inception and leaving
our hand as a failure at every level of government, shadowed by a threadbare
narrative leaving backstage Melissa’s story, including the role in her life of
Texas’s Department of Family and Protective Services, for good or naught.
To these eyes, it need not and should not have happened, as the thoughtful
dissenting opinions explain. I here add a few lines to bring to the fore
Melissa’s life and her history with DFPS, specifically Child Protective
Services, a history that frames this case.
I.
Melissa’s father abandoned his wife and six children, leaving
Melissa’s mother as the family’s sole provider. Melissa’s mother was drawn
to dalliances with men who did not contribute to the family’s wellbeing, so
care for Melissa and her siblings often devolved to these men while their
mother struggled for their living. At age six, Melissa suffered sexual abuse at
the hands of one of her mother’s live-in lovers. This continued, with her
mother’s acquiescence, until Melissa was eight years old. Abuse would
remain a feature of Melissa’s relationships with the men closest to her. At
age sixteen, she dropped out of high school to marry Guadalupe Lucio and
63
Case: 16-70027 Document: 00515739449 Page: 64 Date Filed: 02/09/2021
No. 16-70027
bore him five children by the time she turned 24. Guadalupe was a physically
and emotionally abusive alcoholic, who abandoned Melissa and his children
in 1994. So too was his successor Robert Alvarez, who, among other reported
incidents, publicly punched Melissa. Yet on the night Mariah died, after
hours of interrogation, it was Robert, not a lawyer, who Melissa asked Ranger
Escalante to see. 1
CPS’s involvement with Melissa began in 1995, when the agency
charged her with “neglectful supervision” but took no action. By 1998 at the
latest, CPS was aware that Robert in service of himself had introduced
Melissa to cocaine. Between 1999 and 2000, CPS learned that with the birth
of Gabriel, both mother and child tested positive for the drug. CPS records
reflect that in 2000, Melissa’s children told investigators that she, Robert,
and another adult male in the household were “using drugs.” CPS conducted
no investigation or drug testing in connection with the 2000 report and left
the children in Melissa’s care.
CPS recorded two drug-related incidents with Melissa in November
and December of 2001, as well as two apparently separate incidents of
“physical neglect.” Again, CPS performed no drug tests and made no inquiry
concerning the nature or quantity of drugs involved. In 2002, CPS recorded
a charge of neglectful supervision against Melissa, prompted by reports that
her young son had been seen in the street “chasing cars” and that several of
1
It is telling that at 3 a.m., after being denied the opportunity to see Robert, Melissa
said to Escalante “I don’t know what you want me to say. I’m responsible for it,” before
making a series of admissions that the State relied on as a confession of responsibility for
Mariah’s death. At Escalante’s prompting, Melissa conceded that she spanked and pinched
Mariah at times, without ever admitting to striking the cranial blows that proved fatal. But
overlooking the equivocal nature of her confession, Melissa was denied the opportunity to
explain why she would have taken responsibility for Mariah’s death if she did not inflict the
fatal injuries.
64
Case: 16-70027 Document: 00515739449 Page: 65 Date Filed: 02/09/2021
No. 16-70027
her daughters were engaged in inappropriate sexual activity. In 2003, CPS
was informed that another of Melissa’s children, Sara, tested positive for
cocaine at birth. CPS recorded additional charges of neglectful supervision
and physical neglect in 2004, just prior to Mariah’s birth; CPS closed those
cases without taking any action. Mariah tested positive for cocaine shortly
after her birth at Melissa’s home in September 2004.
CPS records indicate that Melissa was directed to undergo substance
abuse counseling and parenting courses, but the records reflect that she
seldom remained with these programs. Case notes consistently reflect issues
with Melissa’s income and housing; CPS documented that the family was
homeless at least once. Case notes also reflect CPS’s awareness of a
consistent set of behavioral problems for the Lucio children, including
physical aggression to the point of violence and sexual misbehavior. On more
than one occasion, there was evidence that the older children had beaten their
younger siblings, but CPS made little, if any, inquiry into these incidents.
CPS removed Melissa’s children from her care for a period spanning
September 2004 to November 2006. In December 2006, with many of
Melissa’s children just returned to her from foster care, CPS’s intervention
was required again because Melissa could not pay her rent and was about to
lose her apartment. CPS conducted a drug test—Melissa was negative—and
provided her with rent support. CPS had no recorded visits with Melissa in
January or February 2007 prior to Mariah’s death.
These facts compel the observation that the tragedy of Mariah’s death
unfolded against the depressingly familiar background of the State’s struggle
with CPS’s systemic failures, now documented in this Court’s recent
65
Case: 16-70027 Document: 00515739449 Page: 66 Date Filed: 02/09/2021
No. 16-70027
opinions. 2 We there observed that DFPS, and by extension CPS, have
persisted in a state of “organizational and administrative chaos” for decades
resulting in an “epidemic of physical and sexual abuse” among the thousands
of children in its care; 3 that “[w]here children have reported abuse or neglect
to the agency, investigations are inadequate;” that DFPS sports a 75% error
rate in its investigations of abuse; 4 that “DFPS’s inability to prevent abuse is
exacerbated by its incompetence in responding to incidents once they have
occurred.” 5
As of 2019, there were roughly 51,000 children in DFPS’s legal care,
with several thousand more throughout Texas receiving family preservation
services. 6 Its “caseworkers handle, on average, 28 children’s cases at a time,
with caseworkers at the upper end of the distribution handling 40, sometimes
60.” 7 By the State’s own reckoning, these caseloads greatly exceed what is
practicable for any individual caseworker. 8 As we previously recognized,
2
See M.D. by Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237, 260–68 (5th Cir.
2018); M. D. by next friend Stukenberg v. Abbott (Stukenberg II), 929 F.3d 272, 281–93 (5th
Cir. 2019) (Higginbotham, J. concurring in part and dissenting in part).
3
Stukenberg II, 929 F.3d at 284 (Higginbotham, J. concurring in part and dissenting
in part).
4
Stukenberg I, 907 F.3d at 292.
5
Id. at 291.
6
See CPS Conservatorship: Children in DFPS Legal Responsibility, Texas Dep’t
of Fam. & Protective Servs.,
https://www.dfps.state.tx.us/About_DFPS/Data_Book/Child_Protective_Services/Co
nservatorship/Children_in_Conservatorship.asp.
7
Stukenberg I, 907 F.3d at 290.
8
“DFPS produced a Work Measurement Study, which concluded that ‘DFPS
caseworkers expended an average of 9.7 hours per month on case profiles most often
associated with PMC children, and that these workers had an average of 137.9 hours per
month to spend on their casework.’ Dividing the average time available (137.9) by the
average time per case (9.7), each PMC caseworker could handle a caseload of 14
66
Case: 16-70027 Document: 00515739449 Page: 67 Date Filed: 02/09/2021
No. 16-70027
“high caseloads [] are a direct cause of high turnover rates,” and “DFPS
experiences extraordinary turnover among caseworkers.” 9 By conservative
estimates, “16% of caseworkers leave in their first six months, 25% in their
first year, and 43% in their first two years.” 10 The high attrition rates among
caseworkers in turn “exacerbate the caseload problem.” 11 With evidence
that these problems have been presented to the State “repeatedly over the
past two decades,” this Court determined “that the State is deliberately
indifferent to the risks posed by its policies and practices” to the children in
its care. 12
In its long superintendence of Melissa, DFPS never recorded or
expressed concern that she physically abused any of the children in her care.
To its credit, despite the difficulties of managing this large enterprise, 13 it
recognized that Melissa’s troubles centered on her inability to escape a
succession of relationships with dominating and abusive men who to their
own ends, encouraged her use of cocaine, a stimulant. That reality is strong
footing for Melissa’s claimed denial of the opportunity to present a complete
defense: that she only tried to accept the blame for the acts of others, a
children. On the basis of the DFPS Study, the Special Masters recommended that the
district court order DFPS to implement a caseload standard in the range of 14 to 17 PMC
cases per caseworker.” Stukenberg I, 907 F.3d at 301.
9
Id. at 260, 291.
10
Id. at 291.
11
Id. at 260.
12
Id.
13
DFPS is a participant in a form of cooperative federalism through which the
agency receives well over $700 million in federal funding, annually, representing roughly
half of the agency’s yearly budget. Stukenberg II, 929 F.3d at 290 (Higginbotham, J.
concurring in part and dissenting in part) (“[R]oughly half of the State’s child-welfare
agency spending [is] covered by federal funds, over $730 million in fiscal year 2016.”).
67
Case: 16-70027 Document: 00515739449 Page: 68 Date Filed: 02/09/2021
No. 16-70027
phenomenon of personality produced by her own lifetime of abuse in a world
of abject poverty.
II.
This is not the story writ large. It is the story drawn from the trial
record—the factual matrix against which the now assailed proffers of counsel
and Dr Pinkerton were made. Their words take their full meaning—not as an
excised, freestanding abstraction—but as they were laced into the narrative
fabric. Only with a walk away from the developed facts of the full record can
the denial of Melissa’s sole defense be shrunk into an “evidentiary ruling”
with its attending judicial discretion, one that, if rejected, it is then said would
bring a cascade of federal reviews of state court rulings in defiance of
federalism. But, of course, the walk away elides the reality that even the nigh
routine matters of the constitutional order must have their factual footing.
The footing here for Melissa’s claim that she was denied a complete
defense cannot be brushed aside with an assertion that the trial court and
hence the courts that followed were not put on notice. Facts matter. In this
morality play of citizen decisions of life or death, the jury represents the
people, but they did not hear her defense. 14 The trial court ruled that
14
The defense of false confession has for decades played a prominent role in
exonerations. See Samuel Gross and Maurice Possley, For 50 Years, You’ve Had “The Right
to Remain Silent” So why do so many suspects confess to crimes they didn’t commit?, The
Marshall Project (June 12, 2016),
https://www.themarshallproject.org/2016/06/12/for-50-years-you-ve-had-the-right-to-
remain-silent. It is not an esoteric creation of the defense bar, but a widely recognized
phenomenon. See, e.g., Richard Leo, False Confessions: Causes, Consequences, and
Implications, 37, J. Am. Acad. Psychiatry & L. (September 2009),
http://jaapl.org/content/37/3/332. The State adopted one of the recommended responses
to this problem by taping the interrogation. But it ignored the recommendation that
extended accusatorial tactics be banned.
68
Case: 16-70027 Document: 00515739449 Page: 69 Date Filed: 02/09/2021
No. 16-70027
Melissa’s proposed defense was irrelevant to the question of her guilt or
innocence, a ruling that amounted to a complete rejection of her defense, one
not based on any deficiency in its presentation. For all the years that CPS
looked over her shoulder it never found physical abuse; this child did not die
of neglect, but of violent blows to her head so powerful as to produce fatal
subdural bleeding. Whether these injuries could have been from a fall down
the stairs or by a stronger hand than Melissa’s was disputed. The jury was
entitled to hear her defense that it was not Melissa who struck the blow. And
as Melissa well knew, the death of a child in her custody meant the automatic
removal of all children from her custody, leaving her without support. It is
plain that, with a fair reading of this record, the Court steps on no sovereign
interest of the state, as explained by the Supreme Court in Crane.
69
Case: 16-70027 Document: 00515739449 Page: 70 Date Filed: 02/09/2021
No. 16-70027
JENNIFER WALKER ELROD, Circuit Judge, joined by HIGGINSON, Circuit
Judge, dissenting:
Melissa Lucio is not without culpability. Her young daughter, Mariah,
endured a shockingly violent life, suffering horrific abuse that Lucio either
perpetrated or tolerated. After Mariah’s death, a Texas jury convicted Lucio
of capital murder, and Lucio was sentenced to death.
Lucio now sits on death row. Twelve jurors representing a cross-
section of Cameron County concluded that Lucio killed her child, almost
certainly because Lucio—five hours into interrogation on the night Mariah
died—acceded to the interrogator’s pressing that she “did it.”
But did she? At trial, Lucio was barred from offering evidence to
explain why she would confess if she were innocent.
In America, the vilest offenders—including abusers and murderers of
children—are entitled to every protection that the Constitution guarantees.
The Sixth Amendment has been called “the heartland of constitutional
criminal procedure,” enshrining three clusters of rights so that criminal
trials—designed to pursue truth and protect innocence—are speedy, public,
and fair. See Akhil R. Amar, Sixth Amendment First Principles, 84 Geo. L.J.
641, 641–43 (1996). And the Supreme Court has unanimously held that the
right to be heard, an indispensable element of a fair trial, forbids the State
from excluding, categorically, “competent, reliable evidence bearing on the
credibility of a confession when such evidence is central to the defendant’s
claim of innocence.” Crane v. Kentucky, 476 U.S. 683, 690 (1986). With
confessions, content cannot be divorced from context.
That’s the lone issue in this case: Should a capital defendant be
allowed to explain to a jury how to square her adamant profession of
innocence today with her apparent confession of guilt yesterday?
70
Case: 16-70027 Document: 00515739449 Page: 71 Date Filed: 02/09/2021
No. 16-70027
* * *
Lucio exhausted her complete-defense claim in the state court, 1 which
rejected the claim on the merits. Thus, under AEDPA, we may only grant
habeas relief if that rejection was “contrary to” or “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). The principal dissent
turns on the latter (“unreasonable application”), and I agree. I would go even
further and say the adjudication was “contrary to” that law.
When is a state court decision a collision versus a misapplication?
• A decision is “contrary to” clearly established Federal law “if
the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 413 (2000) (emphasis added).
• A decision is an “unreasonable application” of Federal law “if
the state court identifies the correct governing legal principle
1
The plurality opinion makes much of how Lucio phrased her claims throughout
the various pleading stages. But as my fellow dissenters have emphasized, the State
affirmatively waived any exhaustion arguments by (1) expressly stating before the district
court that “Lucio raised this claim in state habeas proceedings,” (2) analyzing and arguing
against the merits of Lucio’s complete-defense claim (applying the same Supreme Court
cases that Lucio now asks us to consider), and (3) expressly raising an exhaustion defense
against some of Lucio’s claims but not the complete-defense claim. See Carty v. Thaler, 583
F.3d 244, 256 (5th Cir. 2009) (explaining that a waiver of exhaustion must be express but
that AEDPA “does not require ‘magic words’ ” ); id. (finding express waiver of exhaustion
on appeal where the State argued in the district court that one claim—not at issue on
appeal—was not exhausted but did not raise the same argument with respect to other
claims). “Clearly,” the State “considered exhaustion as a defense and chose not to exercise
that defense.” Id.71
Case: 16-70027 Document: 00515739449 Page: 72 Date Filed: 02/09/2021
No. 16-70027
from [the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” Id.In my view, the state court failed to even identify the correct legal
principle, let alone apply it, reasonably or otherwise. 2
I
As all agree, Crane v. Kentucky, 476 U.S. 683 (1986), is our North Star.
I recap the facts at length to underscore exactly what the Supreme Court
considered and what it did not. And to make clear that today’s case is about
applying Crane, not extending it.
In Crane, the petitioner moved to suppress his confession to murder.
Id. at 684–85. The trial court determined that the confession was made
voluntarily and denied the motion. Id. at 685. Then, at trial, petitioner sought
to introduce testimony regarding the physical and psychological environment
in which the State obtained the confession for the purpose of demonstrating
that the confession was “unworthy of belief.” Id. The trial court determined
that this testimony pertained exclusively to the issue of whether his
confession was voluntary—which, under a Kentucky evidentiary rule, could
not be re-adjudicated—and deemed it inadmissible. Id. at 686. The Court
heard the case to determine “whether the exclusion of testimony about the
circumstances of the confession violated petitioner’s rights under the Sixth
and Fourteenth Amendments to the Federal Constitution”—the
“constitutional right to a fair opportunity to present a defense.” Id. at 686–
87.
2
The state court rejected Lucio’s complete-defense argument because, the court
reasoned, her claim was “nearly identical to [the issues] raised on direct appeal,” and the
trial court did not abuse its discretion in excluding Dr. Pinkerman’s testimony.
72
Case: 16-70027 Document: 00515739449 Page: 73 Date Filed: 02/09/2021
No. 16-70027
The Court began by explaining the importance of the right to
challenge the credibility of a confession. It noted that “the Court has never
questioned that evidence surrounding the making of a confession bears on its
credibility” and that “the defendant[ has a] traditional prerogative to
challenge the confession’s reliability during the course of the trial.” Id. at 688(internal quotation and emphasis omitted). See also Lego v. Twomey, 404 U.S.
477, 485–86 (1972) (“A defendant has been as free since Jackson[ v. Denno,
378 U.S. 368 (1964),] as he was before to familiarize a jury with circumstances
that attend the taking of his confession, including facts bearing upon its
weight and voluntariness.”). That’s why the Court “has expressly assumed
that evidence about the manner in which a confession was secured will often
be germane to its probative weight, a matter that is exclusively for the jury to
assess.” Crane, 476 U.S. at 688.
The relevance of this evidence is not limited to assessing a
confession’s voluntariness; the circumstances surrounding a defendant’s
incriminating statements “can also be of substantial relevance to the ultimate
factual issue of the defendant’s guilt or innocence.” Id. at 688–89. There is a
simple reason for this. As the Court explained, a confession does not
necessarily mean guilt: “as with any other part of the prosecutor’s case, a
confession may be . . . unworthy of belief.” Id. at 689 (internal quotation
omitted). Thus, the Court stressed, if the defendant is barred from
presenting testimony regarding the circumstances of his confession, he is
“stripped of the power to describe to the jury the circumstances that
prompted his confession, [and] the defendant is effectively disabled from
answering the one question every rational juror needs answered: If the
defendant is innocent, why did he previously admit his guilt?” Id.The Court went on to acknowledge that it has a general “reluctance
to impose constitutional constraints on ordinary evidentiary rulings by state
trial courts,” and it emphasized that it had “never questioned the power of
73
Case: 16-70027 Document: 00515739449 Page: 74 Date Filed: 02/09/2021
No. 16-70027
States to exclude evidence through the application of evidentiary rules that
themselves serve the interests of fairness and reliability.” Id. at 689–90
(emphasis added) (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)).
But given the facts of the case, it had “little trouble concluding” that the
“blanket exclusion of the proffered testimony about the circumstances of
petitioner’s confession deprived him of a fair trial.” Id. at 690.
As the unanimous Crane Court put it, “the Constitution guarantees
criminal defendants ‘a meaningful opportunity to present a complete
defense.’” Id. (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
And it added this admonition: “That opportunity would be an empty one if
the State were permitted to exclude competent, reliable evidence bearing on
the credibility of a confession when such evidence is central to the
defendant’s claim of innocence.” Id. Therefore, the Court held, “[i]n the
absence of any valid state justification, exclusion of this kind of exculpatory
evidence deprives a defendant of the basic right to have the prosecutor’s case
encounter and survive the crucible of meaningful adversarial testing.” Id. at
690–91 (citation omitted).
So that’s the bedrock rule we’re applying: The jury must be allowed
to hear “competent, reliable evidence bearing on the credibility of a
confession when such evidence is central to the defendant’s claim of
innocence.” Id. at 690. And that’s the bedrock rule Lucio argues the state
court contravened.
II
In my judgment, the state court flouted Crane when it rejected Lucio’s
complete-defense claim by excluding Dr. Pinkerman’s testimony as having
“no relevance to the question of [Lucio’s] guilt or innocence.” In Crane, on
materially indistinguishable facts, the Supreme Court expressly foreclosed
74
Case: 16-70027 Document: 00515739449 Page: 75 Date Filed: 02/09/2021
No. 16-70027
this conclusion. 3 Here, as in Crane, the State’s case relied principally on the
defendant’s inculpatory statements to argue that she committed the crime. 4
If the confession was false, then the State’s case crumbles. Also here, as in
Crane, the trial court pointed to a rule of evidence to find the testimony
inadmissible. The Crane Court unanimously held that trial courts commit
constitutional error when they make such a determination.
The rule again: A trial court cannot reject “competent, reliable
evidence bearing on the credibility of a confession when such evidence is
central to the defendant’s claim of innocence.” Crane, 476 U.S. at 690. There
is no question that Dr. Pinkerman’s proffered testimony was “reliable” and
“competent”—neither party, nor the court, challenged his qualifications.
And Dr. Pinkerman’s testimony regarding the credibility of Lucio’s
supposed confession is central to her defense. Lucio sought to argue that she
only confessed to causing Mariah’s injuries because she suffers from
Battered Woman Syndrome and often takes blame for things that are not her
fault, particularly when under the control of a male figure (here, Officer
3
Williams, 529 U.S. at 406 (explaining the key inquiry is whether the facts are
“materially indistinguishable”); cf. Panetti v. Quarterman, 551 U.S. 930, 953 (2007)
(“AEDPA does not require state and federal courts to wait for some nearly identical factual
pattern before a legal rule must be applied.” (citation omitted)). The plurality opinion
suggests that if the facts are not exactly the same, the “contrary to” exception automatically
fails, even though there are two ways in which the “contrary to” prong can be satisfied:
imposition of a contradictory standard (as occurred here) or a “diametrically different”
conclusion on “materially indistinguishable” facts (which also occurred here). See
Williams, 529 U.S. at 405.
4
For instance, the State’s closing argument stressed that it is “unbelievable” that
Lucio caused Mariah’s other injuries—to which Lucio had confessed—but that she never
hit Mariah in the head. Because Lucio confessed to otherwise harming Mariah, the State
argued, “the inference is clear that she caused [the head] injuries because it’s consistent.
It’s consistent with her behavior. It’s consistent with her pattern of conduct towards this
child.” Lucio must have delivered the final blow.
75
Case: 16-70027 Document: 00515739449 Page: 76 Date Filed: 02/09/2021
No. 16-70027
Escalon). 5 Without Lucio’s confession, the State had no direct evidence that
she hit Mariah in the head, causing the fatal injury. The rule in Crane is clear;
yet the state court declined to apply it.
Federal habeas relief isn’t for correcting run-of-the-mill state law
errors. But it is for correcting a state court’s evidentiary ruling that violates a
defendant’s weighty interest in meaningfully presenting to the jury her
version of the facts, particularly the circumstances surrounding her
“confession,” the State’s strongest piece of evidence.
Crane’s holding clearly established that a court may not exclude
reliable testimony regarding the credibility of a confession where that
evidence is central to the defendant’s innocence claim. Dr. Pinkerman’s
proffered testimony was reliable. It spoke to the credibility of Lucio’s
confession. And the credibility (or lack thereof) of Lucio’s confession was
central to her claim of innocence. She had a constitutionally enshrined right
to present her complete defense. And without her expert, she was
categorically denied the ability to scientifically explain about how Battered
Woman Syndrome played a role in her supposed confession.
5
The plurality opinion notes that Dr. Pinkerman’s affidavit concerning the
circumstances of Lucio’s interrogation and her experience with Battered Woman
Syndrome was not presented during the original proffer at trial. See Pl. Op. at 29, 39. But,
as the principal dissent explains, that affidavit is not precluded from our review. The State
conceded as much in its response to our en banc questions, stating “Cullen v. Pinholster,
563 U.S. 170, 180 (2011), indicates that this Court may also consider Dr. Pinkerman’s 2010
affidavit because it was part of the record in the state court.” In Cullen, the Supreme Court
held that our review “is limited to the record that was before the state court that
adjudicated the claim on the merits.” 563 U.S. at 181. Here, we are asking whether the
state-court adjudication of Lucio’s complete-defense claim was contrary to clearly
established law; therefore, we must review “the record in existence at that same time i.e.,
the record before the state court.” Id. at 182 (emphasis added). That record included Dr.
Pinkerman’s affidavit.
76
Case: 16-70027 Document: 00515739449 Page: 77 Date Filed: 02/09/2021
No. 16-70027
* * *
Mariah suffered appalling abuse, including at the hands of her mother.
Lucio is not without blame. But neither is she without rights. And the Sixth
Amendment protects Lucio’s right to put on her defense.
Sound criminal procedure must adhere to sacred first principles. The
Supreme Court is rightly exacting in death penalty cases, and Lucio has a
constitutional right to present a complete defense. In my view, the state court
disregarded clearly established federal standards and ignored materially
indistinguishable Supreme Court precedent.
With great respect, I dissent.
77
Case: 16-70027 Document: 00515739449 Page: 78 Date Filed: 02/09/2021
No. 16-70027
HAYNES, Circuit Judge, joined by HIGGINBOTHAM, STEWART,
DENNIS, ELROD, GRAVES, and HIGGINSON, Circuit Judges, dissenting:
Is the conclusion that evidence refuting the core of the State’s case
against the defendant is irrelevant an unreasonable application of clearly
established Supreme Court precedent? Yes. Period. That is the crux of why
the district court erred in rejecting Lucio’s complete defense claim.
Unfortunately, the plurality opinion 1 drives down numerous
backroads untraversed by the parties, basing its affirmance largely on issues
that were never raised by either party and necessitating a lengthier response
in this opinion. The plurality opinion makes procedural arguments on the
State’s behalf that the State clearly (and intentionally) waived, ignoring the
Supreme Court’s recent reminder that we are “passive instruments of
government” that should “decide only questions presented by the parties.”
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (internal
quotation marks and citation omitted). In addressing only those issues
properly before us, I conclude that the state habeas court’s adjudication of
Lucio’s complete defense claim with regard to expert witness Pinkerman 2
involved an unreasonable application of Crane v. Kentucky, 476 U.S. 683(1986), and Chambers v. Mississippi, 410 U.S. 284 (1973). 3 Pinkerman’s
1
It is ironic that the plurality opinion claims that the dissenting opinions disagree
with each other when, in fact, the exact same number of judges join this dissenting opinion
(7) as join the plurality opinion (7).
2
As the plurality opinion states, Lucio also challenges the trial court’s refusal to
allow a different expert, Norma Villanueva, to testify. Because of my conclusions regarding
Pinkerman, it is not necessary to examine whether the state habeas court’s adjudication of
Lucio’s complete defense as it relates to Villanueva involved an unreasonable application
of Crane and Chambers.
3
I address this case applying AEDPA deference because the majority of our en banc
court (several members of our court who conclude that Lucio should prevail as well as those
in the plurality opinion) have determined that the state habeas court did adjudicate the
merits of Lucio’s complete defense claim. I, however, continue to subscribe to the panel
78
Case: 16-70027 Document: 00515739449 Page: 79 Date Filed: 02/09/2021
No. 16-70027
testimony would have explained Lucio’s tendency to take blame for
everything that goes on in the family and refuted the State’s core “evidence”
of Lucio’s guilt: her interrogation statement characterized by the State as her
“confession.” The testimony thus would have “answer[ed] the one question
every rational juror need[ed] answered” before determining Lucio’s
innocence: “If [Lucio] is innocent, why did [s]he previously admit h[er]
guilt?” Crane, 476 U.S. at 689. The state trial court erroneously excluded
the testimony as irrelevant, and the state habeas court in turn unreasonably
applied Supreme Court precedent in concluding that the exclusion did not
violate Lucio’s right to present a complete defense. For these reasons, I
respectfully dissent from the plurality opinion’s judgment, and I would
reverse the district court’s order denying Lucio’s federal habeas claim and
remand for the district court to grant Lucio relief.
I. Background
A. Factual Background 4
Lucio lived in an apartment accessed by a steep exterior staircase with
her husband, Robert Alvarez, and nine of her children. See Lucio v. State, 351
S.W.3d 878, 880 & n.1 (Tex. Crim. App. 2011). Lucio had trouble taking care
of her many children: Lucio’s older children were “aggressive to the point
opinion’s conclusion that Lucio’s complete defense claim merits de novo review because
she exhausted her claim in state court and the state court failed to adjudicate her claim on
the merits. Under de novo review, the state trial court denied Lucio of her right to present
a complete defense when it prevented Pinkerman from testifying. Some judges joining in
this dissent join in this footnote; some do not. But, under either standard of review, the
result is the same: the district court erred in denying Lucio federal habeas relief.
4
This opinion does not engage in “relitigating” facts or “weighing evidence.”
Plurality Op. Section IV.A. The reason to include a recitation of the facts is to understand
why the absence of evidence is critical here. The jury was deprived of key evidence to weigh:
that is the point.
79
Case: 16-70027 Document: 00515739449 Page: 80 Date Filed: 02/09/2021
No. 16-70027
of becoming violent,” and Lucio had difficulty disciplining her children.
Mariah, Lucio’s youngest, developed behavioral issues; she would hit her
head when having tantrums. A few months later, paramedics responded to a
call to Lucio’s home and found Mariah dead, “face up on the floor” and with
Lucio, Robert, and a number of children nearby. Lucio told the paramedics
that Mariah “fell down the stairs,” and Lucio was taken in by police for
questioning.
Lucio’s interrogation on the night her daughter was found dead was
not as straightforward as the plurality opinion suggests. See Plurality. Op. at
3. Her interrogation was over five hours long, lasting from before 10:00 p.m.
to after 3:00 a.m. For the first three hours, Lucio maintained that, although
she sometimes spanked her children, she did not hit or abuse Mariah, and she
did not know who caused Mariah’s injuries. She also described Mariah’s
physical condition leading up to her death: Mariah was “sick” on the
Saturday that she died and the Friday before, but Lucio did not take Mariah
to the doctor. Mariah would not eat, and her breathing was heavy. She slept
all day Saturday, and she would lock her teeth together when Lucio would try
to feed her.
More than three hours after the interrogation began, after 1:00 a.m.,
Texas Ranger Victor Escalon entered the room and told Lucio—in a long,
mostly one-person exchange—that the officers needed her story and that
everyone would understand if she had hurt her daughter. At that point, Lucio
told Escalon that she wanted a cigarette and wished to talk to her husband.
Escalon told her that she could do those things after he took her statement.
Escalon then asked Lucio, repeatedly, to tell him “everything.”
Lucio eventually told Escalon that she “would spank [Mariah], but
[Lucio] didn’t think [she] would spank her, to where . . . to where it got to
this point.” Escalon prompted Lucio for more detail, but she responded, “I
80
Case: 16-70027 Document: 00515739449 Page: 81 Date Filed: 02/09/2021
No. 16-70027
don’t know what you want me to say. I’m responsible for it.” At Escalon’s
suggestion, Lucio agreed that the spanking was “all over [Mariah’s] body.”
She maintained that she was not angry at Mariah but was “frustrated” by the
other kids who were “very hyper,” making it difficult to take care of them
all. She also stated that she bit Mariah one day while tickling her; she did not
know why she did it. While making these statements, Lucio continued to
maintain that she had not hit Mariah in the head and had only spanked her.
Lucio also stated that no one else was responsible for Mariah’s injuries
and that she was the only one who spanked her.
As the interrogation progressed, Escalon identified specific bruising
on Mariah and asked Lucio to tell him how it happened. Lucio usually
responded that she did not know how the bruises occurred and often said she
that did not hit Mariah in particular spots. When Escalon insisted that Lucio
was responsible for specific bruises, she responded, “I guess I did it.” She
suggested that some of Mariah’s other injuries, like scratches, could have
been caused by her other daughters. For some of the bruises, Lucio said she
was the one who caused them, and said she would sometimes spank Mariah
when she woke up other kids.
Escalon then had Lucio take a break at 1:22 a.m. After the break,
officers took DNA samples from Lucio, then took another break.
At 3:00 a.m., Escalon resumed the interrogation. He brought in a doll
to have Lucio show him how she bit and spanked Mariah. When Lucio was
showing Escalon how she bit Mariah, Escalon asked if she was angry at
Mariah. She said no, explained that she was frustrated with the other kids,
and described how she bit Mariah after she finished brushing Mariah’s hair.
When asked why she bit Mariah, Lucio said, “I just did it.” Escalon then
asked Lucio to show how she spanked Mariah. When she demonstrated,
Escalon told her, “Well do it real hard like . . . like you would do it.” When
81
Case: 16-70027 Document: 00515739449 Page: 82 Date Filed: 02/09/2021
No. 16-70027
she said that her demonstration was how hard she spanked Mariah, Escalon
himself performed what he thought was a hard spank and had Lucio
demonstrate again. He identified several sets of bruises and had her spank
the doll in those areas to demonstrate how she would have spanked Mariah.
At Lucio’s trial for capital murder, the State’s theory of the case
depended on two critical points. First, the State sought to prove that
Mariah’s death was caused by a fatal blow to the head that could not have
been sustained from Mariah falling down the stairs, using a forensic
pathologist who testified that a fall would not have caused the injuries in
question.
Second, the State used Lucio’s “confession” to support the
conclusion that she killed Mariah. The State introduced the videos of
Lucio’s interrogation the first day of trial; the state court admitted the videos
into evidence and they were immediately played for the jury. The State later
put Escalon on the stand, and he testified about Lucio’s demeanor during the
interrogation. Escalon described Lucio’s demeanor as indicating that she
was saying, “I did it.” During its closing argument, the State characterized
Lucio’s admission as a “confession” that proved beyond a reasonable doubt
that Lucio killed Mariah. The State emphasized that Lucio “did make the
statement and the statement that she made was the true and correct
statement at the end. She admitted it. She admitted that she caused all of
the injuries to that child.” The State also highlighted Lucio’s demeanor
during the interrogation, rhetorically asking why she would look or act a
certain way if all she did “was physically beat the child, but didn’t cause the
death.” It also referenced Escalon’s testimony that Lucio’s demeanor
indicated she was “hiding the truth.”
Lucio tried to defend against both points. First, she called a
neurosurgeon who testified that the blunt force trauma causing Mariah’s
82
Case: 16-70027 Document: 00515739449 Page: 83 Date Filed: 02/09/2021
No. 16-70027
death could have resulted from falling down stairs. During closing
arguments, Lucio’s counsel argued that the State failed to overcome
reasonable doubt because evidence indicated that Mariah’s fatal injury could
have resulted from falling down stairs.
Second, Lucio wanted to present two expert witnesses to testify that
her supposed confession was not trustworthy, but the state trial court did not
let them testify. One of the experts was Dr. John Pinkerman, a psychologist
who would have testified about Lucio’s psychological issues that cause her to
take “blame for everything that goes on in the family.” 5 He formed his
opinion after reviewing the interrogation tapes, meeting with Lucio on four
occasions, reviewing her history, and administering various psychological
tests to her. The state trial court prevented Pinkerman from testifying, not
due to any lack of qualifications as an expert but because the judge considered
the testimony irrelevant because Lucio “denied ever having anything to do
with the killing of the child.” The state trial court permitted Pinkerman to
submit a bill of particulars, but the judge left the courtroom after swearing
Pinkerman in, not waiting to listen to Pinkerman’s proffer.
Beyond her medical expert and the two excluded experts, Lucio called
one defense witness and recalled one of the State’s witnesses. Lucio’s
defense witness was her sister, Sonia Chavez, who testified that Lucio “never
disciplined her children.” The recalled witness was Joanne Estrada, a child
protective services worker. Estrada was asked about whether she had
reviewed documents that showed that Mariah had tantrums while in foster
care and had hit her head on the floor. Estrada testified that she had not come
5
The other expert was Norma Villanueva, a licensed social worker with graduate
education, who would have testified about why Lucio “would have given police [officers]
information . . . that was not correct” to show that Lucio “admits to things that she didn’t
do.”
83
Case: 16-70027 Document: 00515739449 Page: 84 Date Filed: 02/09/2021
No. 16-70027
across anything in Lucio’s file that showed she was “physically abusive to
any of the children.” Lucio presented no other witnesses.
In closing argument, the State, citing only Lucio’s interrogation
statements as evidence, contended that Lucio must have killed Mariah
because she abused her. It argued that “there [wa]s no reasonable doubt that
[Lucio] killed that little girl” because the jury had “[h]er confession.”
Ultimately, Lucio was convicted and sentenced to death.
B. Subsequent Appeals & Petitions For Post-Conviction Relief
Lucio appealed her conviction, raising several points of error, but the
Texas Court of Criminal Appeals affirmed. Lucio, 351 S.W.3d at 910. On
appeal, the State’s argument continued to rely on Lucio’s interrogation. In
responding to Lucio’s sufficiency of the evidence challenge, the State argued
that a “jury could have reasonably concluded that [Lucio] was responsible
for delivering the fatal blow to Mariah’s head, as she had the opportunity to
do so, and she had admitted to a pattern of abuse that had continued for some two
months.” Id. at 894–95 (emphasis added) (cleaned up). The Texas Court of
Criminal Appeals accepted that argument. Id. at 895.
Lucio also claimed that the trial court’s exclusion of Pinkerman’s
testimony violated her “constitutional right to present evidence before the
jury as to the circumstances under which [a] confession is taken.” She cited
Crane for the proposition that a jury is “entitled to know about the
circumstances under which [a] statement was given . . . so that [it] could
assess the voluntariness of the statement.” The Texas Court of Criminal
Appeals rejected Lucio’s challenge for two reasons: (1) Lucio’s “claim on
appeal as to what Pinkerman’s testimony would have been d[id] not comport
with what the trial attorney claimed . . . he was offering it for,” and
(2) Pinkerman’s proffered testimony “had little, if any, relevance to a jury’s
voluntariness determination under state law.” Id. at 902.
84
Case: 16-70027 Document: 00515739449 Page: 85 Date Filed: 02/09/2021
No. 16-70027
After Lucio lost on direct appeal, she sought state habeas relief. As
with her direct appeal, she raised several arguments, including the argument
that Pinkerman’s testimony should have been admitted. This time, though,
she distinguished her argument as going “to the core of the case—whether
[Lucio] was likely to have engaged in ongoing abuse of Mariah.” She stated
that the issue was the deprivation of “the constitutional right to present a
complete defense,” and cited a state law case that relied on the U.S.
Constitution for that right. Lucio also argued that her trial counsel provided
ineffective assistance of counsel (“IAC”). Her habeas application offered a
post-trial affidavit from Pinkerman as support. The state habeas court
rejected all of Lucio’s claims. It concluded that her complete defense claim
was “nearly identical to [the issues] raised on direct appeal,” and the
additional evidence she presented did not demonstrate that she was entitled
to relief. The state habeas court also concluded that the trial court “did not
abuse its discretion in excluding” Pinkerman’s testimony. His testimony,
the state habeas court reasoned, “had no relevance to the question of
[Lucio’s] guilt or innocence.”
Lucio appealed the state habeas court’s decision. The Texas Court of
Criminal Appeals adopted the habeas court’s findings of fact and conclusions
of law. It noted that some of the issues Lucio raised were procedurally barred,
but it did not list her complete defense claim among them.
Lucio then petitioned for federal habeas relief under 28 U.S.C. § 2254in federal district court and reasserted the complete defense claim she had
raised before the state habeas court. The district court rejected the claim. It
considered Pinkerman’s testimony to be “only tangentially related to the
question of Lucio’s guilt or innocence” and noted that the “evidence that
anyone but Lucio inflicted the fatal injuries is tenuous at best.”
85
Case: 16-70027 Document: 00515739449 Page: 86 Date Filed: 02/09/2021
No. 16-70027
Lucio filed a timely notice of appeal, and we granted her a Certificate
of Appealability (“COA”) on her complete defense claim. See Lucio v. Davis,
783 F. App’x 313, 319 (5th Cir. 2019) (per curiam). A panel of this court
reversed the district court’s order denying her habeas petition on those
grounds. Id. at 325. We granted en banc rehearing. Lucio v. Davis, 947 F.3d
331 (5th Cir. 2020) (mem.).
II. The Issue Presented on Appeal
The issue on appeal is whether the district court erred in its
adjudication of Lucio’s complete defense claim. Before addressing the
merits, I first explain what Lucio’s complete defense claim is and explain
why, contrary to the plurality opinion’s contention, there are no other issues
on appeal.
A. Lucio’s Complete Defense Claim
Lucio’s complete defense claim is that her “right to present a
complete defense [wa]s violated by the exclusion of [Pinkerman’s testimony]
pursuant to a state evidentiary rule that categorically and arbitrarily prohibits
[her] from offering otherwise relevant, reliable evidence that is vital to h[er]
defense.” She cites Wiley v. State, 74 S.W.3d 399, 406–07 (Tex. Crim. App.
2002), to support her claim. Lucio claims that Pinkerman would have
testified to Lucio’s abuse and tendency to take blame for everything. She
claims that Pinkerman’s testimony would have attacked a key part of the
State’s case—that she physically abused Mariah—and was therefore vital to
her defense. In other words, Lucio argues that the state trial court “stripped
[her] of the power to describe to the jury the circumstances that prompted
h[er] confession” and “effectively disabled” her from challenging the
trustworthiness of her custodial confession that was on “every rational
juror[’s]” mind when they decided her guilt. See Crane, 476 U.S. at 689.
86
Case: 16-70027 Document: 00515739449 Page: 87 Date Filed: 02/09/2021
No. 16-70027
Lucio’s complete defense claim has not changed since Lucio first
raised it in state habeas court. 6 She argues that, if the state habeas court
adjudicated her complete defense on the merits, then the state habeas court’s
holding was “an unreasonable application of the substantially similar
decisions of Chambers and Crane.” 7
The plurality opinion contends that Lucio’s mere “flagging” of Wiley,
which cites the U.S. Constitution, is insufficient to raise a federal claim and,
therefore, is nothing more than an invitation for us to second-guess the state
court on the rules of evidence. Plurality Op. at 31. But Lucio did much more
than cite Wiley: she clearly stated that “[t]he trial court deprived [her] of the
constitutional right to present a complete defense”—which Texas does not
appear to recognize or reject—and she did not mention state evidentiary
6
The plurality opinion states that it “is an undisputed proposition” that Lucio
changed her complete defense claim over time. Plurality Op. at 45. The record proves that
proposition false. Lucio’s complete defense claim—first raised in state habeas court—has
not changed. In state habeas court, Lucio argued that the state trial court deprived her “of
the constitutional right to present a complete defense when it excluded the testimony of
defense experts during the guilt/innocence phase of trial.” In her federal habeas petition
in district court, Lucio argued the same: that the state trial court violated her right to
present a complete defense when it “Excluded the Testimony of Her Defense Experts
During the Guilt/innocence Phase of Trial.” In her request for a COA from us, Lucio
alleged that it was “debatable that [she] was deprived of her due process right to present a
defense when the trial court excluded the testimony of defense expert witnesses at the
guilt/innocence phase of the trial.” In her panel briefing, Lucio claimed that the trial court
violated her right to present a complete defense because Pinkerman’s testimony would
have challenged the credibility of her incriminating statement. She made the same claim in
her en banc briefing. This case is therefore distinguishable from Rose v. Lundy, 455 U.S.
509 (1982), which the plurality opinion cites for the proposition that defendants cannot
“attempt[] to broaden [a state court] claim” in federal court; Lucio has repeatedly made
the same claim, over and over, in every post-conviction setting. See Plurality Op. at 45.
7
Lucio also argues that the state habeas court’s adjudication was contrary to
Chambers, Crane, and Green v. Georgia, 442 U.S. 95 (1979) (per curiam), and based on an
unreasonable determination of the facts. Because the relevance determination turns on the
facts as set forth herein, I do not address this issue separately.
87
Case: 16-70027 Document: 00515739449 Page: 88 Date Filed: 02/09/2021
No. 16-70027
rules or standards to support her claim. Thus, Lucio does not ask us to act as
a state court examining state evidentiary rules. Indeed, the State agrees that
this complete defense claim is the issue before us today.
The plurality opinion also contends that “Lucio adamantly insisted
that her state habeas claim did not involve Crane” and thus her complete
defense claim cannot implicate the case, either. Plurality Op. at 30. As
explained above, Lucio cited Crane in her direct appeal for the proposition
that a jury is “entitled to know about the circumstances under which [a]
statement was given . . . so that [it] could assess the voluntariness of the
statement.” In state habeas proceedings, Lucio clarified that her state habeas
complete defense claim did not concern the voluntariness of her confession,
which was her point on direct appeal. But this distinction does not mean that
we cannot consider Crane when assessing Lucio’s complete defense claim; a
case can support multiple, different arguments.
To see why this one does, it is worth taking a look at the case itself. In
Crane, the Supreme Court reiterated that due process “requires that a jury
not hear a confession unless . . . it was freely and voluntarily given.” 476 U.S.
at 687–88 (internal quotation marks, alteration, and citation omitted). That
due process requirement was relevant to Lucio’s argument on direct appeal.
But the Crane Court also held that “the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense.” 476
U.S. at 690 (internal quotation marks and citation omitted). That point
supports Lucio’s state habeas claim. The reality that this second aspect of
Crane is at play here appears to shock only the plurality opinion; again, the
State understands that Lucio’s complete defense claim may implicate the
case.
Lastly, the plurality opinion contends that Lucio whipsawed the state
courts with her complete defense claim because Pinkerman never proffered
88
Case: 16-70027 Document: 00515739449 Page: 89 Date Filed: 02/09/2021
No. 16-70027
at trial about the credibility of Lucio’s interrogation statements. Plurality Op.
at 34–35. But how could he have done so? The trial judge chose to leave and
not hear the proffer, having already concluded that Pinkerman’s testimony
was “irrelevant” regardless.
The plurality opinion tries to nuance its whipsawing point by
highlighting that Pinkerman signed an expert report before he was called to
testify and the report never “hint[ed] that any of [Lucio’s interrogation]
statements were false.” Plurality Op. at 35. But the whole point of
Pinkerman’s testimony was to contextualize Lucio’s statements as potentially
influenced by Escalon’s questioning: the report observed that “[i]n times of
significant stress, [Lucio] withdraws into simpler, concrete, unrealistic and
constricted functioning marked by passivity, denial, acquiescence and
resignation[,]” which is likely attributable to her experience with abuse. In
that regard, the report noted that Lucio “tune[d] out” Escalon when he
“raise[d] his voice” but then “eventually respond[ed] with resignation.”
The report thus corresponds to the reason why Lucio’s trial counsel sought
to introduce Pinkerman: it tended to show that Lucio would “take[] blame
for everything that goes on in the family,” including potentially covering for
her husband, other children, or Mariah herself.
The plurality opinion further contends that Pinkerman’s mitigation
testimony failed “to hint[] that any of [Lucio’s] statements were false.”
Plurality Op. at 35. Mitigation testimony comes after a jury has decided on a
defendant’s guilt. So, of course, Pinkerman’s mitigation testimony did not
concern Lucio’s innocence (i.e., that Lucio likely made false statements in
her interrogation). Indeed, when asked by the State whether he was testifying
89
Case: 16-70027 Document: 00515739449 Page: 90 Date Filed: 02/09/2021
No. 16-70027
that Lucio did not harm her child, Pinkerman responded that he was not
“address[ing] the causation.” 8 There was no whipsawing.
In sum, the question we have been asked to answer is whether the state
trial court violated Lucio’s constitutional right to present a complete defense
when it excluded Pinkerman’s testimony about her propensity to take blame
for everything from the guilt/innocence stage. To the extent that we evaluate
this question under AEDPA deference, the question becomes whether the
state habeas court’s exclusion of Pinkerman’s testimony about her
propensity to take blame for everything was an unreasonable application of
Crane and Chambers.
B. Issues Raised Sua Sponte by the Plurality Opinion
The plurality opinion bases its affirmance on the complete defense
issue largely on four issues that were never raised by either party. The State
has waived all four arguments and so our court should not consider them.
First, the plurality opinion contends that Lucio defaulted on her claim
because she failed to raise it to the state trial court. See Plurality Op. at 18–
19. In particular, it asserts that Pinkerman’s bill of particulars was lacking in
detail about the psychological pressure Lucio felt when she made her
interrogation statements. See Plurality Op. at 19. On direct appeal, when
Lucio made no IAC claim, the State argued this point. It argued that
Pinkerman’s proffer was “broad and general,” referring to only “the
8
Specifically, the State asked: “were you under the understanding that someone
else harmed her and all she did was failed to protect her?” Pinkerman responded: “No.
Again, I didn’t address the causation. What I’m trying to think that any mother would have
looked to that pattern of abuse—and in a normal situation, a normal mother would have
protected the child.”
90
Case: 16-70027 Document: 00515739449 Page: 91 Date Filed: 02/09/2021
No. 16-70027
characteristics and makeup of [Lucio’s] psychological functioning” and her
demeanor.
But the State intentionally waived this procedural default in state
habeas court. Why? Well, in those proceedings, Lucio raised an IAC claim
that her trial counsel had provided ineffective assistance by failing to
adequately utilize Pinkerman; Lucio claimed that Pinkerman “could have
assisted trial counsel in developing evidence that [her] history provided ‘little
support for the idea that [she] physically abused her children’ to support the
defense theory during guilt/innocence.” The State clearly made a strategic
call not to reassert any failures in Pinkerman’s bill of particulars because
doing so would effectively concede the legitimacy of Lucio’s IAC claim. The
State instead went in a different direction, arguing that Pinkerman’s bill of
particulars “indicated that he would testify as to . . . how there was little
support in the ‘historical record’ for the idea that [Lucio] physically abused
her children, that she suffered from battered woman syndrome, and the
meaning of her demeanor after the incident and during questioning.” Given
the switch in argument, it is plain that the State has waived its procedural
default argument in these federal habeas proceedings.
Second, the plurality opinion contends that, to the extent that Lucio’s
direct appeal claim is “nearly identical” to Lucio’s complete defense claim,
Lucio’s complete defense claim is procedurally barred because Lucio failed
to raise her claim in state trial court. See Plurality Op. at 13, 19. But the State
also waived this procedural default. If, as the plurality opinion contends,
Lucio’s complete defense claim from state habeas is the same as her claim on
direct appeal, see Plurality Op. at 19, then the State’s response in state habeas
proceedings to Lucio’s complete defense claim could have been one
sentence: As the Texas Court of Criminal Appeals held, Lucio’s complete
defense claim is procedurally barred because she failed to raise it in state trial
91
Case: 16-70027 Document: 00515739449 Page: 92 Date Filed: 02/09/2021
No. 16-70027
court. The State’s response was nothing of the sort, and the State has never
brought the issue up in any later proceeding.
Third, the plurality opinion contends that Lucio’s claim is
procedurally barred because the state habeas court held that she had
attempted to raise the same argument from direct appeal in her state habeas
proceeding. See Plurality Op. at 13, 20. But the state habeas court did not
come to that conclusion. What it did was observe that Lucio’s complete
defense claim was “nearly identical” to her direct appeal claim and that it
thus did not have to relitigate it. But, because “additional evidence,” here,
Pinkerman’s affidavit, “may warrant relief even when the issue was raised on
direct appeal,” the state habeas court did not rely on a procedural bar.
Consistent with that reading, the Texas Court of Criminal Appeals, in
adopting the state habeas court’s findings and conclusions, determined that
the state habeas court did not hold Lucio’s complete defense claim as
procedurally barred. What’s more, the State has waived this putative
procedural bar, too. Indeed, the State (which drafted this exact finding of
fact and conclusion of law on this point for the state habeas trial court) has
explicitly argued to the contrary, stating in its en banc brief: “The state court
did not deny Lucio’s complete-defense claim on procedural grounds.”
Fourth, the plurality opinion states that Pinkerman’s post-trial
affidavit cannot be considered because it was not before the Texas Court of
Criminal Appeals on direct appeal. See Plurality Op. at 29–30. Not only did
the State again waive this argument, but it did so expressly and unequivocally
in response to our court’s direct question. In response to our en banc Q&A—
“whether we may also consider Dr. Pinkerman’s 2010 affidavit . . . in
deciding whether exclusion of his guilt phase testimony was an unreasonable
application of clearly established Supreme Court precedent”—the State
answered, “Yes, . . . Cullen v. Pinholster, 563 U.S. 170, 180 (2011), indicates
92
Case: 16-70027 Document: 00515739449 Page: 93 Date Filed: 02/09/2021
No. 16-70027
that this Court may also consider Dr. Pinkerman’s 2010 affidavit because it
was part of the record in the state court.”
Even if the State had not clearly waived these arguments (which, as
discussed, it did), the plurality opinion errs in making these four procedural
holdings sua sponte. As the Supreme Court recently reminded the circuit
courts: “In our adversarial system of adjudication, we follow the principle of
party presentation.” Sineneng-Smith, 140 S. Ct. at 1579 (citation omitted).
Thus, “in both civil and criminal cases, in the first instance and on appeal
. . . , we rely on the parties to frame the issues for decision and assign to courts
the role of neutral arbiter of matters the parties present.” Id. (quotation
omitted). Departures from this principle are usually only warranted in
criminal cases when doing so would “protect a pro se litigant’s rights.” Id.
(quotation omitted). This is not one of those cases; Texas is the largest state
in our circuit and our second-biggest litigant. Its Attorney General’s office is
chock-full of excellent attorneys who do nothing but habeas work. This court
should not be making arguments on the State’s behalf, especially in a capital
case.
If the Supreme Court’s admonition were not enough, our precedent
also restrains us from doing so in this very context. When dealing with
procedural bars, we have held that “even if we do have discretion in some
circumstances to apply the procedural bar where the state has waived the
defense[,] . . . we will not exercise such discretion” when:
(1) “the habeas petitioner has [not] been given notice that
procedural default will be an issue for consideration,” and
(2) “the petitioner has [not] had a reasonable opportunity to argue
against the application of the bar;” or
(3) “the state intentionally waived the defense.”
93
Case: 16-70027 Document: 00515739449 Page: 94 Date Filed: 02/09/2021
No. 16-70027
Fisher v. Texas, 169 F.3d 295, 301–02 (5th Cir. 1999). 9 Here, deciding Lucio’s
fate on procedural bars that the State never raised denies Lucio notice and a
reasonable opportunity respond. Further, the State intentionally waived
three of these procedural default arguments.
The issue with the plurality opinion’s sua sponte holdings is not
merely academic: had the State taken a different tactic in the state habeas
proceeding and beyond, then Lucio would have had an excellent IAC claim.
Instead, the state habeas court denied that claim, as did the federal district
court, and we denied a COA. If we are going to ignore the Supreme Court’s
admonition in Sineneng-Smith, step in on our own initiative, and decide to
redo the State’s strategic decisions to make the focus on whether the trial
attorney properly presented a bill of particulars, well, then, we need to start
over on the IAC issue too. If Lucio is to be executed because her lawyer did
not make a perfect bill of particulars, that certainly sounds like she suffered
ineffective assistance and prejudice.
Rather than decide this case on procedural arguments that the State
itself has waived and that Lucio had no idea we would raise on our own, I
9
Indeed, we have yet to apply a procedural bar sua sponte in a habeas case when
the petitioner lacked notice and a reasonable opportunity to respond or when the State
intentionally waived the defense. See, e.g., Fisher, 169 F.3d at 302 (declining to apply a
procedural bar sua sponte because petitioner lacked notice and had no reasonable
opportunity to respond). But see, e.g., Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)
(applying a procedural bar sua sponte because petitioner was given notice and an
opportunity to respond and the State did not intentionally waive the defense); Smith v.
Johnson, 216 F.3d 521, 524 (5th Cir. 2000) (per curiam) (concluding that it was appropriate
to apply a procedural bar sua sponte because petitioner had notice and an opportunity to
respond and the State did not intentionally waive the bar); Magouirk v. Phillips, 144 F.3d
348, 360 (5th Cir. 1998) (holding that the federal district court did not abuse its discretion
in raising a procedural default sua sponte because petitioner had notice and a reasonable
opportunity to respond and the State did not intentionally waive the defense). The plurality
opinion does not explain why we should reject this clear precedent as to when it is
appropriate to raise procedural default issues sua sponte.
94
Case: 16-70027 Document: 00515739449 Page: 95 Date Filed: 02/09/2021
No. 16-70027
respectfully submit that we should address the one issue that is actually
before us—Lucio’s complete defense claim raised in state habeas court—
based on the entire state record. Accordingly, I proceed to address the merits
of Lucio’s complete defense claim.
III. Discussion
To prevail on her complete defense claim, Lucio must satisfy the
statutory requirements of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). Under AEDPA, we review Lucio’s complete defense
claim de novo if (1) Lucio exhausted her claim in state court, 28 U.S.C.
§ 2254(b), and (2) the state court failed to adjudicate that claim on the merits,
28 U.S.C. § 2254(d). See also Johnson v. Williams, 568 U.S. 289, 303 (2013).
If the petitioner failed to present a federal claim in state court, then the claim
is dismissed. If the petitioner did present a federal claim in state court and
the state court adjudicated the claim on the merits, then AEDPA’s
deferential standard under § 2254(d) applies.
Under § 2254(d), relief will not be granted unless the state court’s
adjudication of the federal claim was “contrary to . . . clearly established
Federal law, as determined by the Supreme Court,” “an unreasonable
application of” that law, or “was based in an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1), (2).
The plurality opinion holds that AEDPA deference applies, see
Plurality Op. at 21, and that Lucio’s complete defense claim fails to satisfy
§ 2554(d), Plurality Op. at 21–41. As mentioned above, several of the judges
joining in this dissenting opinion concur in the now-vacated panel’s
viewpoint that the state habeas court failed to adjudicate Lucio’s complete
95
Case: 16-70027 Document: 00515739449 Page: 96 Date Filed: 02/09/2021
No. 16-70027
defense on the merits. 10 However, because the majority of the en banc court
has ruled that Lucio’s complete defense claim has been exhausted and
adjudicated on the merits, I address her claim under AEDPA deference. 11
Even under AEDPA’s deferential standard of review, however, the state
habeas court’s adjudication of Lucio’s complete defense claim “involved an
unreasonable application of” Crane and Chambers. See 28 U.S.C.
§ 2554(d)(1). First, I will summarize those cases, and then I will discuss why
the state court’s determination is an unreasonable application of those key
precedents.
A. Crane
In Crane, the Supreme Court recognized that “the Constitution
guarantees criminal defendants a meaningful opportunity to present a
complete defense,” and held that such an “opportunity would be an empty
one if the State were permitted to exclude competent, reliable evidence
bearing on the credibility of a confession when such evidence is central to the
defendant’s claim of innocence.” 476 U.S. at 690 (internal quotation marks
and citations omitted). The Court thus concluded that the state court’s
10
Those of us who adhere to this viewpoint would, absent the en banc conclusion
to the contrary, conclude that the state habeas court failed to adjudicate Lucio’s complete
defense claim on the merits because it erroneously determined that Lucio raised a state
evidentiary challenge and rejected that claim based on state evidentiary standards. There
is a rebuttable presumption that state courts have rejected a claim on the merits if a written
order is silent regarding a claim. See Williams, 568 U.S. at 300–01. But Lucio rebuts this
presumption because the state evidentiary standard is “less protective” than the federal
standard for a complete defense claim. Id. at 301; see Wiley, 74 S.W.3d at 405 (recognizing
that a complete defense claim asserts that the exclusion of “otherwise relevant, reliable
evidence” precluded the defendant from presenting a defense).
11
Granted, if the state habeas court’s decision on Lucio’s complete defense claim
was error under AEDPA deference, then it was also error under de novo review. Thus,
there is nothing inconsistent, as the plurality opinion contends, about applying arguendo a
more deferential standard of review when Lucio should prevail either way.
96
Case: 16-70027 Document: 00515739449 Page: 97 Date Filed: 02/09/2021
No. 16-70027
exclusion of testimony related to the “environment” in which the police
secured the defendant’s confession violated the defendant’s right to present
a complete defense. Id. at 691.
The underlying proceedings in the case bring the issue into focus. In
particular, the state court had excluded the testimony because it “related
solely to [the] voluntariness” of the defendant’s confession and state
evidence rules prohibited relitigation of a trial court’s pretrial voluntariness
determination. See id. at 686–87 (citation omitted). Given its voluntariness
holding, the state court further held that the testimony “did not relate to the
credibility of the confession.” Crane v. Kentucky, 690 S.W.2d 753, 755 (Ky.
1985).
The Supreme Court disagreed with the state court’s separation of
those concepts, taking issue with its holding “that evidence bearing on the
voluntariness of a confession and evidence bearing on its credibility f[e]ll in
conceptually distinct and mutually exclusive categories.” Crane, 476 U.S. at
687. It reiterated its precedent that “evidence surrounding the making of a
confession bears on its credibility as well as its voluntariness.” Id. at 688(internal quotation marks and citation omitted). The Court thereby held that
evidence on the circumstances of Crane’s confession was particularly
relevant because Crane’s “entire defense was that there was no physical
evidence to link him to the crime and that, for a variety of reasons, his earlier
admission of guilt was not to be believed.” Id. at 691. Therefore, the Court
concluded it was “plain that introducing evidence of the physical
circumstances that yielded the confession was all but indispensable to any
chance” of Crane’s defense succeeding. Id. The evidence would help
answer “the one question every rational juror needs answered: If the
defendant is innocent, why did he previously admit his guilt?” Id. at 689. In
other words, the Court held that the evidence was indispensable to Crane’s
defense.
97
Case: 16-70027 Document: 00515739449 Page: 98 Date Filed: 02/09/2021
No. 16-70027
Further, in holding that the state court violated Crane’s right to
present a complete defense, the Court determined that it was not a case
where the state court excluded the evidence for “fairness [or] reliability”
issues. Id. at 690. The state court failed to “advance[] any rational
justification for the wholesale exclusion of this body of potentially
exculpatory evidence.” Id. at 691.
B. Chambers
In Chambers, the Supreme Court held that the exclusion of hearsay
evidence under a state hearsay rule and the refusal to allow the defendant to
cross-examine a key witness under a state voucher rule violated the
defendant’s right to present a complete defense. 410 U.S. at 302–03.
The facts of the case illustrate the contours of its rule. Chambers and
three of his friends (James Williams, Berkley Turner, and Gable McDonald)
were involved in a shooting, for which Chambers was convicted of murder.
Id. at 285–87. At his trial, Chambers sought to prove that he did not shoot
the victim but that McDonald did. Id. at 289. Chambers called McDonald
as a witness to testify that McDonald had written a confession stating that he
shot the victim. Id. at 291. On cross-examination, the State elicited from
McDonald that he repudiated his prior confession. Id. When Chambers
attempted to examine McDonald as an adverse witness, the state court
denied Chambers’s request under the state “voucher” rule that prevented
him from impeaching his own witness. Id. at 291, 295. To challenge
McDonald’s renunciation of his prior confession, Chambers then sought to
introduce testimony from three witnesses to whom McDonald had admitted
shooting the victim. Id. at 292. All three witnesses were prevented from
testifying under state hearsay rules. Id. at 292–93, 295.
In sum, Chambers was prevented from presenting evidence that
McDonald shot the victim. Id. at 294. Such evidence, the Court held, was
98
Case: 16-70027 Document: 00515739449 Page: 99 Date Filed: 02/09/2021
No. 16-70027
“critical to Chambers’ defense.” Id. at 302. The Court also held that the
state court’s reason for its evidentiary decisions were irrational, taking issue
first with the voucher rule in its entirety as an “archaic, irrational” rule that
was “potentially destructive of the truth-gathering process.” Id. at 296 n.8.
The state court’s application of the hearsay rules was also irrational: the
hearsay statements, the Court concluded, were “well within the basic
rationale of the exception for declarations against interest” and therefore had
a “considerable assurance of their reliability.” Id. at 300, 302. Because the
evidence was vital to Chambers’s defense and the state court’s reasons for
excluding the testimony were irrational, the Supreme Court held that the
state court violated Chambers’s right to present a complete defense.
C. Application of Crane and Chambers to Lucio
“A state court’s decision constitutes an unreasonable application of
clearly established federal law if it is ‘objectively unreasonable.’” Gray v.
Epps, 616 F.3d 436, 439 (5th Cir. 2010) (citing Williams v. Taylor, 529 U.S.
362, 409 (2000)). “The court may grant relief under the ‘unreasonable
application’ clause if the state court correctly identifies the governing legal
principle from our decisions but unreasonably applies it to the facts of the
particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002) (citation omitted).
Lucio satisfies this high threshold.
The Supreme Court in Crane and Chambers made clear that a state
court violates a defendant’s right to present a complete defense if (1) the
excluded evidence was critical to the defense, Crane, 476 U.S. at 689, 691;
Chambers, 410 U.S. at 302, and (2) the state court failed to provide a rational
justification for its exclusion, Crane, 476 U.S. at 689, 690–91; Chambers, 410
U.S. at 296 & n.8, 302. Here, Pinkerman’s testimony was critical to Lucio’s
defense because it was the centerpiece of her attempt to challenge the
trustworthiness of her interrogation statement. Moreover, the state trial
99
Case: 16-70027 Document: 00515739449 Page: 100 Date Filed: 02/09/2021
No. 16-70027
court provided no reason why the testimony was irrelevant and all indications
are to the contrary, making its exclusion irrational.
1. Pinkerman’s Testimony Critical to Lucio’s Defense
Pinkerman would have testified that Lucio “takes blame for
everything that goes on in the family. . . [and] for everything that goes on in
the house.” That tendency had implications for her interrogation: it was
Pinkerman’s “professional opinion [that Lucio’s] psychological
characteristics increase[d] the likelihood she would acquiesce while
providing her confession.” In other words, Pinkerman would have testified
that Lucio’s interrogation statement, including her abuse of Mariah, posed
“serious questions” about its validity.
Pinkerman’s excluded testimony was indispensable to Lucio’s
defense because it rebutted the State’s most critical evidence of Lucio’s guilt:
Lucio’s interrogation statement. 12 The State presented no physical evidence
or witness testimony establishing that Lucio abused Mariah or any of her
children, let alone killed Mariah. Instead, it used Lucio’s interrogation
statement as its crucial source of proving she committed the act. In closing
argument, the State contended that Lucio must have killed Mariah because
she abused her. The only evidence it cited in closing to establish that Lucio
abused her was Lucio’s “confession.” On appeal, when the State argued that
12
The plurality opinion suggests that the State had Lucio’s phone call to her sister
as additional evidence of her guilt. See Plurality Op. at 12. But that was not part of the
State’s argument at trial. See supra Section I.A. Indeed, the State made no mention of
Lucio’s conversations with her sister in its closing argument. As Lucio’s trial counsel
noted: “This whole case revolve[d] around th[e] video.”
The State also argues that Pinkerman’s testimony was not indispensable because
Lucio could have presented “fact witnesses to testify about her body language, her
propensity to take blame, or any other issue.” But that is exactly what Pinkerman sought
to testify about and, as explained below, the state habeas court provided no rational
justification for excluding Pinkerman’s testimony.
100
Case: 16-70027 Document: 00515739449 Page: 101 Date Filed: 02/09/2021
No. 16-70027
the evidence was sufficient to convict Lucio, it again relied on the assertion
that Lucio “admitted to a pattern of abuse.” See Lucio, 351 S.W.3d at 894–
95. In short, the interrogation statement played a pivotal role in the State’s
case.
If the interrogation statement is taken away—or its validity is
undermined—then the State’s case becomes much more tenuous,
demonstrating both its criticality and the irrationality of excluding
Pinkerman’s contextualizing testimony as “irrelevant.” 13 A reasonable juror
would have much less reason to assume that Lucio—rather than her husband,
other children, or Mariah herself—caused Mariah’s injuries. To the extent
that there was evidence beyond Lucio’s statement that implicated her—such
as opportunity based upon being Mariah’s primary caretaker—it pales in
comparison to the force of an alleged confession. Thus, as critical as that
evidence was to the State, explaining why it could not be trusted was just as
critical to Lucio’s defense. 14
13
The State’s best alternate evidence is a statement from a police officer that, after
Lucio’s arrest and while the officer was driving, Lucio used the phone to call her sister.
According to the officer, Lucio told her sister, “Don’t blame, Robert. This was me. I did
it. So don’t blame Robert.” But this phone statement could well have stemmed from
Lucio’s tendency to take blame for everything in the family, which the excluded expert
evidence was intended to addressed. Further, this evidence does not come close to the
power of Lucio’s interrogation statements, which went unchecked. The officer’s
statement is also subject to attack. For example, he did not create a log of the incident until
the month before trial, nearly sixteen months after Lucio allegedly made the statement.
The statement also lacks context, which makes it less reliable.
14
The plurality opinion claims that “the trial court permitted Lucio’s sister to
testify about Lucio’s . . . tendency to take the blame for things she did not do,” but provides
no support for this claim. Plurality Op. at 26. Nor could it; Lucio’s sister said nothing at
all about Lucio’s tendency to take the blame for anything.
In addition, the plurality opinion and the State argue that Pinkerman’s testimony
was not vital to Lucio’s defense because Pinkerman’s testimony at the mitigation stage
never hinted that Lucio’s statements could not be trusted. Plurality Op. at 35–36. But, as
explained supra Section II.A., Pinkerman’s mitigation testimony holds no bearing on
101
Case: 16-70027 Document: 00515739449 Page: 102 Date Filed: 02/09/2021
No. 16-70027
In sum, the indispensability of Pinkerman’s testimony to Lucio’s
defense is on par with the excluded evidence at issue in Crane and Chambers.
Like Crane’s excluded evidence, Pinkerman’s testimony related to the
credibility of Lucio’s confession. See Crane, 476 U.S. at 688. Like
Chambers’s excluded evidence, Lucio had no other means to present
evidence to refute the State’s reliance on her interrogation statement.
Chambers, 410 U.S. at 294. Thus, Pinkerman’s testimony was “all but
indispensable to any chance of [Lucio’s] succeeding.” 15 Crane, 476 U.S. at
691. Moreover, as in Crane, the credibility of Lucio’s “confession” was the
focus of the jury’s question as to her guilt. See id. at 689. Without
Pinkerman’s testimony as to why Lucio would have confessed to abusing her
daughter if she did not actually do so, the “question every rational juror
need[ed] answered”—if she was innocent, why did she say all those things
during her interrogation?—was left unaddressed. Id. Consequently,
Pinkerman’s excluded testimony was vital for Lucio’s defense.
2. State Trial Court’s Unreasonable Application
The exclusion of Pinkerman’s testimony bears hallmark signs of
irrationality such that the state court’s ruling was an unreasonable
application of Supreme Court precedent. The state habeas court excluded
Pinkerman’s testimony on relevance grounds. 16 It concluded
Lucio’s tendency to take blame for everything because the jury had already determined that
Lucio was guilty.
15
As explained above, Lucio’s sister did not testify regarding Lucio’s tendency to
take blame for everything. See supra n.14.
16
The State asserts that the state habeas court rejected Pinkerman’s testimony as
unreliable and as failing to qualify as an expert testimony under Texas Rule of Evidence
702. The state habeas court made no determination about the reliability of Pinkerman’s
testimony, nor did it make a determination about Pinkerman’s qualification as an expert to
testify.
102
Case: 16-70027 Document: 00515739449 Page: 103 Date Filed: 02/09/2021
No. 16-70027
that Pinkerman’s “testimony as to [Lucio’s] psychological functioning,
including how there was little support in the ‘historical record’ for the idea
that [she] physically abused her children, that she suffered from battered
woman syndrome, and the meaning of her demeanor after the incident and
during questioning had no relevance to the question of [her] guilt or
innocence.” It thus held that the state trial court did not “abuse its
discretion” in excluding Pinkerman’s testimony. That is the entirety of the
state habeas court’s reasoning on the matter. In other words, Pinkerman’s
testimony was indispensable to Lucio’s defense, as explained above, and the
state habeas court provided no reason why Pinkerman’s testimony was
irrelevant as to the credibility of Lucio’s confession.
The plurality opinion contends that the Supreme Court’s holding in
Crane does not permit a defendant to admit evidence that a state court
excluded through a state evidence rule that “serve[s] the interests of fairness
and reliability.” See Plurality Op. at 23 (quoting Crane, 476 U.S. at 689).
Indeed, that is true. But, like the state court in Crane, the state habeas court
here did not exclude Pinkerman’s testimony based on any rational
application of a state evidence rule, even assuming the rule itself serves an
interest of fairness or reliability. 17 See Crane, 476 U.S. at 690–91. Rather, the
state habeas court held that the state trial court did not abuse its discretion in
excluding Pinkerman’s testimony because it was irrelevant and had no
bearing on Lucio’s guilt. That is essentially what happened in Crane, where
the state court had held that the excluded testimony about the
“environment” surrounding the defendant’s confession was irrelevant
because it had no bearing on the confession’s credibility. See id. at 687–88.
But the Supreme Court did not defer to the state court’s holding on that
17
There was no Daubert-like inquiry into the reliability of Pinkerman as an expert
witness. Only Villanueva’s reliability was questioned.
103
Case: 16-70027 Document: 00515739449 Page: 104 Date Filed: 02/09/2021
No. 16-70027
point. It independently determined that the excluded testimony bore on the
credibility of the defendant’s confession and was relevant to the defense’s
theory that his confession could not be trusted. See id. at 688–89. In
determining whether the state habeas court’s exclusion of Pinkerman’s
testimony was an unreasonable application of Crane, then, we must also
determine whether his testimony was relevant and vital to Lucio’s defense.
As explained above, Pinkerman’s testimony was clearly relevant and vital to
Lucio’s defense. It would have “answer[ed] the one question every rational
juror needs answered: If [Lucio] is innocent, why did [s]he previously admit
h[er] guilt?” See id. at 689. Thus, the state habeas court’s exclusion of the
testimony as irrelevant was unreasonable and served no fairness or reliability
interest.
The plurality opinion also contends that the state habeas court did not
unreasonably apply Crane or Chambers because those cases concerned
categorical, not discretionary, evidence rules. Plurality Op. 26–27, 33. In
that regard, the plurality opinion claims that we would create a circuit split
because five circuit courts have observed that Crane did not implicate
discretionary evidence rules. Plurality Op. at 27–29.
But neither Chambers nor Crane holds that a defendant’s right to
present a complete defense applies only when a state court excludes evidence
based on categorical evidentiary rules. See Crane, 476 U.S. at 690 (holding
that an opportunity to present a complete defense “would be an empty one
if the State were permitted to exclude competent, reliable evidence bearing
on the credibility of a confession when such evidence is central to the
defendant’s claim of innocence”); Chambers, 410 U.S. at 302 (making no
limitation that its holdingthat the exclusion of critical evidence violated the
defendant’s right to present a complete defenseapplied to only categorical
evidence rules). The only support for the plurality opinion’s narrow
104
Case: 16-70027 Document: 00515739449 Page: 105 Date Filed: 02/09/2021
No. 16-70027
interpretation of Chambers and Crane comes from (a) one line in Crane,
which states “that the blanket exclusion of the proffered testimony about the
circumstances of petitioner’s confession deprived him of a fair trial,” Crane,
476 U.S. at 690 (emphasis added); and (b) the fact that the evidentiary rules
at issue in those cases were categorical and non-discretionary. However, as
the plurality opinion recognizes, the Supreme Court has since explained that
the core “principle” of Crane is unrelated to either of those two points:
rather, Crane establishes that the right to present a complete defense is
violated when a state trial court excludes competent, reliable evidence
without providing a valid reason. Montana v. Egelhoff, 518 U.S. 37, 53 (1996);
accord Plurality Op. at 23–24. Further, the fact that the evidentiary rules at
issue in Crane and Chambers were categorical would only matter if we were
debating whether the state habeas court’s adjudication was “contrary to”
Supreme Court precedent, but that is not the situation here, as we are only
analyzing its application of that precedent. See Boyer v. Vannoy, 863 F.3d 428,
441 (5th Cir. 2017) (explaining when a state court’s decision is contrary to
clearly established federal law); Panetti v. Quarterman, 551 U.S. 930, 953
(2007) (stating that an “unreasonable application” under AEDPA deference
includes an unreasonable application of “even a general standard”).
The clearly established, general principle that we are evaluating today
is straightforward: whether Lucio’s right to present a complete defense was
violated when the state trial court excluded Pinkerman’s testimony without
providing a valid reason. See Egelhoff, 518 U.S. at 53; see also supra Section
III.C. The answer, as articulated above, is “Yes.” In Crane, the Supreme
Court held that the defendant’s right to present a complete defense was
violated because the state court’s “sole rationale for the exclusion (that the
evidence did not relate to the credibility of the confession) was wrong.” See
Egelhoff, 518 U.S. at 53 (internal quotation marks and citation omitted). Same
here. The state trial court’s “sole rationale for the exclusion” of
105
Case: 16-70027 Document: 00515739449 Page: 106 Date Filed: 02/09/2021
No. 16-70027
Pinkerman’s testimony (that the evidence was irrelevant to Lucio’s
innocence) was irrational and wrong. Thus, in the words of the plurality
opinion, Supreme Court precedent “positively precludes the state court
from holding what it held.” See Plurality Op. at 52.
Moreover, even if the plurality opinion is right and Crane and
Chambers apply only to categorical rules, just such a categorical rule was
applied here: to the extent that the state habeas court determined that the
state trial court did not abuse its discretion in excluding Pinkerman’s
testimony under Texas Rule of Evidence 402, 18 that rule provides trial courts
no discretion to admit or exclude irrelevant evidence. See Tex. R. Evid.
402 (“Irrelevant evidence is not admissible.”); cf. Moses v. Payne, 555 F.3d
742, 758 (9th Cir. 2009) (holding that a California expert testimony rule
differed from the categorical evidence rules at issue in Crane and Chambers
because the California rule “d[id] not require a trial court to exclude
evidence”). In that regard then, using the plurality opinion’s reading of the
state court’s decision, the state trial court “mechanistically” applied the
state’s less protective relevant evidence rule “to defeat the ends of justice.” 19
See Chambers, 410 U.S. at 302.
Lastly, the plurality opinion’s fear of creating a circuit split is
unfounded. See Plurality Op. at 27–29. The plurality opinion cites the Sixth,
Eighth, Ninth, Tenth, and Eleventh circuits as holding that a state court’s
18
The state trial court’s reason for excluding Pinkerman’s testimony did not
specify the evidentiary rule it applied, stating only: “I am having a hard time figuring out
how [Pinkerman’s testimony] goes to the guilt or innocence.” But, the plurality opinion
contends that the state trial court applied Texas’s relevance rule, Rule 402, see Plurality
Op. at 18, and this opinion does as well for argument sake.
19
Although the plurality opinion observes that the question of relevance is
discretionary, once relevancy is determined, I note that the exclusion of that evidence (if
deemed irrelevant) is not.
106
Case: 16-70027 Document: 00515739449 Page: 107 Date Filed: 02/09/2021
No. 16-70027
conclusion that an application of a discretionary rule does not violate a
defendant’s right to present a complete defense is not an unreasonable
application of Crane. However, only the Ninth Circuit did what the plurality
opinion says it did. See Moses, 555 F.3d at 758–59 (holding that “the state
appellate court’s determination that the trial court’s exercise of discretion to
exclude expert testimony under [a state expert testimony rule] did not violate
Moses’s constitutional rights” was not an unreasonable application of Crane
because Crane did not “squarely address . . . a court’s exercise of discretion
to exclude expert testimony”). The Sixth Circuit independently determined
that the excluded evidence at issue was not probative, that is, not critical to
the defense, see Gange v. Booker, 680 F.3d 493, 515–16 (6th Cir. 2012) (en
banc), and determined that the state court provided a rational justification for
excluding the evidence, see Loza v. Mitchell, 766 F.3d 466, 485–86 (6th Cir.
2014) (observing that the state trial court explained why the excluded
evidence was not vital to the defense). Similarly, the Eighth, Tenth, and
Eleventh Circuits held that the excluded evidence was not vital to the
defense. Rucker v. Norris, 563 F.3d 766, 770 (8th Cir. 2009) (the excluded
evidence was cumulative); Grant v. Royal, 886 F.3d 874, 957, 960 (10th Cir.
2018) (same); Troy v. Sec’y, Fla. Dep’t of Corr., 763 F.3d 1305, 1316 (11th Cir.
2014) (the excluded evidence provided “entirely speculative” testimony).
Recently, the Seventh Circuit held that a state trial court’s exclusion of the
defendant’s testimony as irrelevant (the same reason the state trial court gave
for excluding Pinkerman’s testimony) was an unreasonable application of
Crane because the testimony was critical to the defense and its exclusion was
arbitrary. Fieldman v. Brannon, 969 F.3d 792, 802–09 (7th Cir. 2020). 20
20
In explaining the requirements to obtain relief under AEDPA deference, the
Seventh Circuit summarized and applied the legal standard for the “unreasonable
application” prong under § 2254(d)(1). See Fieldman, 969 F.3d at 802, 809 (summarizing
Panetti, 551 U.S. at 953). Thus, although the court in Fieldman wrote that the state trial
107
Case: 16-70027 Document: 00515739449 Page: 108 Date Filed: 02/09/2021
No. 16-70027
Rather than support the plurality opinion’s circuit-split thesis, these cases
actually contradict its argument that Crane prohibits courts from
independently determining whether excluded evidence is relevant and vital
to the defense as part of deciding the complete defense question. See
Plurality Op. at 27–29.
The plurality opinion is also wrong that, if we applied Crane and
Chambers to a discretionary rule (which, again, this opinion does not), we
would create a circuit split by disagreeing with the Ninth Circuit. The Second
Circuit has held that a state court unreasonably applied Crane on evidence
subject to a trial court’s discretion. See Scrimo v. Lee, 935 F.3d 103, 112, 115
(2d Cir. 2019) (holding that the state trial court’s exclusion of witness
testimony as extrinsic evidence on a collateral matter, a discretionary rule,
was an unreasonable application of Crane and Chambers). 21 We have as well.
See Kittelson v. Dretke, 426 F.3d 306, 310, 319–21 (5th Cir. 2005) (per curiam)
(holding that a state trial court’s discretionary limitation on cross-
examination was an unreasonable application of complete defense
precedents). Therefore, even if this case concerned a “discretionary
evidence rule” (which it does not), our holding that the state habeas court
unreasonably applied Crane and Chambers would not create a circuit split—
the Ninth Circuit has already done so with a decision inconsistent with seven
other circuits, including ours.
court’s adjudication was “contrary to” clearly established law, the holding was in fact
based under the “unreasonable application” prong.
21
The plurality opinion contends that Scrimo does not support our position, but the
plurality opinion misses the point. See Plurality Op. at 56–57. I identify Scrimo for the
proposition that this opinion’s position—that an unreasonable application of Crane is not
limited to evidence subject to categorical evidence rules—would not create a circuit split.
108
Case: 16-70027 Document: 00515739449 Page: 109 Date Filed: 02/09/2021
No. 16-70027
IV. Conclusion
Pinkerman’s testimony on Lucio’s susceptibility to take blame for
everything was critical to refuting the State’s primary evidence of her guilt:
Lucio’s interrogation statements. The state habeas court’s rejection of
Lucio’s complete defense claim as irrelevant was irrational and an
unreasonable application of Crane and Chambers. I would thus reverse the
district court’s order and remand for the district court to grant Lucio relief.
Accordingly, I respectfully dissent from the decision to affirm.
109
Case: 16-70027 Document: 00515739449 Page: 110 Date Filed: 02/09/2021
No. 16-70027
Stephen A. Higginson, Circuit Judge, joined by Stewart and
Elrod, Circuit Judges, dissenting:
If we are to accept the death penalty as a practice, the Supreme Court
has been exactingly clear that it is applied only to those whose cases leave no
doubt that they are deserving of the ultimate punishment.
I write separately for emphasis, an opportunity made possible by the
comprehensiveness of Judge Haynes’s opinion, which I gratefully join, albeit
with the caveat kindly noted in her third footnote. My emphasis is about what
this case is, and what it is not.
It is a death penalty case with one issue, namely Ms. Lucio’s effort to
respond to the government’s insistence at trial that she confessed five hours
into interrogation to killing her child. 1 Legally, it is a case whose resolution
should be controlled by the Supreme Court’s unanimous ruling in Crane v.
Kentucky that the due process clause’s guarantee of an opportunity to be
heard “would be an empty one if the State were permitted to exclude
competent, reliable evidence bearing on the credibility of a confession when
such evidence is central to the defendant’s claim of innocence.” Crane v.
Kentucky, 476 U.S. 683, 690 (1986); Fieldman v. Brannon, 969 F.3d 792, 2020
WL 4670875 (7th Cir. Aug. 12, 2020).
1
Ms. Lucio’s comments arose out of the reality that Mariah was also a victim of
Texas’s broken foster care system. The Texas Department of Family Protective Services
(“DFPS”) removed all of Ms. Lucio’s children from her care in September, and then
returned them, including Mariah, two months later; Mariah died in February. See
Stukenburg v. Abbott, 907 F.3d 237, 256–68 (5th Cir. 2018) (finding that the State was
deliberately indifferent to the substantial risk that children in the Texas foster care system
would be exposed to serious harm such as physical, sexual, and psychological abuse given
that it was “aware of the systemic deficiencies plaguing its monitoring and oversight
practices” and did not “take[] any steps at all” to address them).
110
Case: 16-70027 Document: 00515739449 Page: 111 Date Filed: 02/09/2021
No. 16-70027
Indeed, we are controlled by the Supreme Court’s verbatim
vindication of the constitutional imperative that a capital defendant’s answer
must be heard as to why, during government interrogation, without counsel
present, she incriminated herself. Crane, 476 U.S. at 689 (“[S]tripped of the
power to describe to the jury the circumstances that prompted his confession,
the defendant is effectively disabled from answering the one question every
rational juror needs answered: If the defendant is innocent, why did he
previously admit his guilt?”).
On the other hand, what this case is not is a criminal prosecution where
the execution should proceed because, contrary even to Texas’s arguments,
we say constitutional error was forfeited, waived, shifted, or, in the words of
the court, “radically shifted,” causing injury to “whipsaw[ed]” and
“sandbagg[ed]” state courts. 2 From the first, Ms. Lucio only had one answer
to the prosecutor’s insistence that she was guilty because she said she was.
Yet the trial court excluded that answer on a ground so indefensible that
neither the plurality nor Texas defends it, namely that Ms. Lucio “denied
ever having anything to do with the killing of the child,” making evidence
about the circumstances of her confession irrelevant. Even if that reason for
exclusion were not counterfactual, under Crane, “the physical and
psychological environment that yielded [Ms. Lucio’s] confession” is of
2
Notably, Texas agreed before the district court that the issue was preserved,
conceding that “Lucio raised [her claim that Villanueva and Pinkerman were improperly
excluded] in state habeas proceedings.” Even in its most recent briefing to our full court,
Texas stated that “Lucio’s state habeas application presented a specific complete-defense
claim: The trial court violated her right to present a complete defense when it excluded her
expert testimony as irrelevant because ‘the evidence at issue here was not irrelevant to the
issue of [her] guilt or innocence.’” Unmistakably, therefore, it is our court, and only at the
en banc stage, that erects procedural bars against a capital defendant’s constitutional claim
being considered on the merits. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579
(2020) (reiterating the importance of “party presentation” and emphasizing that courts
should function as “essentially passive instruments of government” (citation omitted)).
111
Case: 16-70027 Document: 00515739449 Page: 112 Date Filed: 02/09/2021
No. 16-70027
“substantial relevance to the ultimate factual issue of [Ms. Lucio’s] guilt or
innocence,” especially because the State rested its case on that very
confession. Id.; Fieldman, 2020 WL 4670875, at *8.
Furthermore, this is not a case about “extending” Crane’s imperative
that a capital defendant’s answer to self-incrimination during interrogation is
inherently relevant information for the jury to consider. Very specifically, it
is not about constitutionalizing expert opinion testimony admissibility. As the
facts of Crane demonstrate, fact testimony or other evidence about Ms.
Lucio’s circumstances bearing on the credibility of her confession, situational
and dispositional, could have taken the place of the proposed expert
testimony offered. Crane, 476 U.S. at 688 (“‘[E]vidence surrounding the
making of a confession bears on its credibility’ as well as its voluntariness.”
(quoting Jackson v. Denno, 378 U.S. 368, 386 (1964))). The fundamental
problem is not the form of evidence excluded, but that the trial judge applied
an indefensible “blanket exclusion” of Pinkerman’s testimony by deeming it
irrelevant without providing any “rational justification” for its exclusion. Id.at 690–91. Stated otherwise, the trial judge never reached any issue relating
to the admissibility of Pinkerman’s testimony as expert opinion. The
exclusion of Ms. Lucio’s evidence was a threshold irrelevancy one. 3
Fieldman, 2020 WL 4670875, at *11.
A battered woman was convicted of capital murder because, in a case
lacking direct evidence, prosecutors told the jury that, five hours into
interrogation, in the middle of the night after the discovery of her dead child,
Ms. Lucio accepted a seasoned interrogator’s suggestion that she was
responsible, ultimately agreeing with him that she “did it.” The jury’s best
3
By contrast, the trial judge did consider Villanueva’s testimony and determined
that she was not qualified as an expert. Right or wrong, we must defer to that ruling.
112
Case: 16-70027 Document: 00515739449 Page: 113 Date Filed: 02/09/2021
No. 16-70027
proof of guilt was Ms. Lucio’s eventual capitulation blaming herself. 4 That
may be appropriate inference and argument, but what violates our
4
As Judge Haynes highlights, Ms. Lucio for hours proclaimed her innocence.
About three hours into the interrogation, however, responding to suggestive questions and
after viewing dozens of photographs of the child, she acquiesced:
Texas Ranger: Explain it [t]o us. Ok?
Ms. Lucio: I mean I would spank her, but I didn’t think I would spank
her, to where . . . to where it got to this point.
Texas Ranger: Cause you were mad?
Ms. Lucio: No. I mean I never took out my anger on my kids. I never
did.
Texas Ranger: Ok. Frustration? [Melissa nods head no]. Melissa. I’m
being straight with you. And I need you to be completely
honest with me. ok? It’s just you and I. ok? I’m meeting
you halfway. ok? . . . Ok? . . . it’s ok. . . . You did it? Who
did it?
Ms. Lucio: I did.
Texas Ranger: Ok. You did? Did the world stop moving? No. . . . It’s for
your own good. . . . You’re doing good. You’re doing
good. Start from the beginning and break it down for me.
Just let it out. I wanna hear your said. Layed it all out. And
then I’ll come back with questions. Explain this well this
is anybody else responsible?
Ms. Lucio: No.
Texas Ranger: Or am I talking to the right person? [Melissa nods head
Yes]. Ok. Perfect. Tell me. Melissa tell me. Let’s do this
together. ok? Let’s get it over with. Say yeah. We can get
it over with and move on. Ok Melissa? Let’s just get it
over with.
Ms. Lucio: I don’t know what you want me to say. I’m responsible for
it.
About thirty minutes later, and after viewing more photographs of her dead child, Ms.
Lucio acquiesced again:
113
Case: 16-70027 Document: 00515739449 Page: 114 Date Filed: 02/09/2021
No. 16-70027
Constitution and disregards binding, bedrock Supreme Court law, is the
government’s simultaneous, successful effort excluding Ms. Lucio’s one
answer to why she might capitulate, namely that a lifetime of abuse had made
her acquiescent, desirous to please and to accept responsibility, and to avoid
confrontation. 5
Texas Ranger: What about all these [inaudible] spots? On her vagina?
Ms. Lucio: uh uh. I never did that.
Texas Ranger: Who did?
Ms. Lucio: [shaking head no]
Texas Ranger: Your husband?
Ms. Lucio: No.
Texas Ranger: Why don’t you wanna tell me? Why don’t you wanna tell
me?
Ms. Lucio: I didn’t do that and my husband didn’t do that. Must been
he would touched her when he would spank her.
Texas Ranger: The who did it?
Ms. Lucio: [Melissa shakes head no]
Texas Ranger: Just tell me Melissa. . . . I can move on to the next. Get
this picture out of your face. How did this happen? We
know this is you …. You did this.
Ms. Lucio: I guess I did it. I guess I did it.
Texas Ranger: How?
Ms. Lucio: I don’t know.
Texas Ranger: You would hit her there?
Ms. Lucio: No. I never hit her there.
Finally, at about 3:00 a.m.—five hours into the interrogation—Ms. Lucio uttered the
phrase seized on by the government to convict her, remarking “I just did it” in the context
of a series of questions about whether she bit Mariah.
5
Notably again, Texas does not dispute that Pinkerman’s detailed affidavit given
after trial is in the state record and therefore is properly before us in reviewing whether the
district court’s ruling was violative of Crane. This affidavit further clarifies Pinkerman’s
114
Case: 16-70027 Document: 00515739449 Page: 115 Date Filed: 02/09/2021
No. 16-70027
This case squarely implicates Crane and we do no harm—whipsaw no
court—when we vindicate binding Supreme Court law that a defendant,
especially a capital defendant—here a battered woman and mother—must be
heard to answer why she acquiesced and told her interrogator, “I just did it.”
testimony that “in [his] professional opinion her psychological characteristics increase the
likelihood that she would acquiesce while providing her confession” due to being isolated
for 5 hours, “repeatedly interrogated by male police officers in close quarters, not provided
a place or opportunity to rest nor provided food or water.” Pinkerman also would testify to
Ms. Lucio’s behavior based on her “emotional and physically abusive relationships with
males,” including being “very capable of making self-sacrifice in providing a false
confession in order to avoid investigation of her children,” several of whom had “bad
behavioral disorders marked by severe aggression against the[ir] siblings,” including
Mariah. Pinkerman’s proffer therefore interlocks with interrogation techniques used against
Ms. Lucio where the interrogator targeted Ms. Lucio’s desire for male approval. For
example, at 1:22 a.m., so hours into interrogation, the interrogator offered to “to let [Ms.
Lucio’s] hair down” and “put it in a pony tail” and then left the room. After he returned,
Ms. Lucio uttered her “I just did it” confession at about 3:00 a.m.
115