No. 14IN THE
Supreme Court of the United States
CHRISTOPHER CHUBASCO WILKINS,
Petitioner,
v.
WILLIAM STEPHENS,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT CERTIORARI
SETH P. WAXMAN
BROOK HOPKINS
Counsel of Record
WILMER CUTLER PICKERING
CATHERINE M.A. CARROLL
HALE AND DORR LLP
WILMER CUTLER PICKERING
60 State Street
HALE AND DORR LLP
Boston, MA 02109
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
HILARY SHEARD
seth.waxman@wilmerhale.com
LAW OFFICE OF
HILARY SHEARD
7301 Burnet Road #102-328
Austin, TX 78757
CAPITAL CASE
QUESTIONS PRESENTED
Christopher Wilkins, an indigent death-row prisoner, was represented in Texas habeas proceedings by an
attorney who was about to go work for the same office
that had prosecuted Wilkins. That attorney refused to
raise and failed to investigate any ineffective-assistance
claim, despite several red flags indicating trial counsel’s
deficient performance. Wilkins therefore sought to investigate and develop his ineffective-assistance claims
in federal court, but the district court ordered him not
to raise any unexhausted claims and denied Wilkins’s
request for funding. The Fifth Circuit affirmed the denial of funding and denied a certificate of appealability.
The questions presented are:
1. Whether the Fifth Circuit erred in holding that
a capital habeas petitioner may not obtain funding under 18 U.S.C. § 3599(f) to investigate and develop a
claim of ineffective assistance of trial counsel if the
claim has been procedurally defaulted, regardless of
whether the petitioner can establish cause for the default under Martinez v. Ryan, 132 S. Ct. 1309 (2012), at
least where the petitioner has not already demonstrated the merits of the claim.
2. Whether, in a capital habeas case where the petitioner has had no opportunity or funding to investigate or develop his procedurally defaulted ineffectiveassistance claim, a federal court may deny relief and
deny a certificate of appealability based on a premature
determination that the claim lacks merit.
(i)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............................................ i
TABLE OF AUTHORITIES .........................................vii
OPINIONS BELOW .......................................................... 1
JURISDICTION ................................................................. 2
STATUTORY PROVISIONS........................................... 2
STATEMENT ..................................................................... 2
A. Wilkins’s Trial And Sentencing .......................... 4
B. Direct Appeal......................................................... 7
C. State Habeas Proceedings ................................... 8
D. District Court Proceedings.................................. 9
E. The Court Of Appeals’ Decision........................ 16
REASONS FOR GRANTING THE PETITION ...........18
I.
THE COURT SHOULD GRANT REVIEW TO
CORRECT THE FIFTH CIRCUIT’S OUTLIER
RULE THAT FUNDING IS UNAVAILABLE
UNDER § 3599(f) FOR PROCEDURALLY
DEFAULTED CLAIMS ................................................. 18
A. The Fifth Circuit’s Rule Conflicts With
§ 3599 And Frustrates This Court’s
Precedent ............................................................. 19
B. Courts In The Fifth Circuit Are Alone
In Applying This Rule And Are Doing
So With Increased Frequency .......................... 22
C. Wilkins’s Request For Funds Should
Have Been Granted ............................................ 24
(iii)
iv
TABLE OF CONTENTS—Continued
Page
II. THE COURT SHOULD GRANT REVIEW TO
CLARIFY
THAT
AN
INEFFECTIVEASSISTANCE CLAIM CANNOT BE REJECTED
ON ITS MERITS BEFORE THE PETITIONER
HAS HAD ANY MEANINGFUL OPPORTUNITY
TO INVESTIGATE AND DEVELOP THAT
CLAIM ........................................................................... 26
A. The Fifth Circuit’s Premature Rejection Of Undeveloped IneffectiveAssistance Claims On Their Merits
Frustrates The Purposes Of Martinez ............ 27
B. The Fifth Circuit’s Approach Contravenes Miller-El ................................................... 30
CONCLUSION ................................................................. 34
APPENDIX A: Opinion of the United States
Court of Appeals for the Fifth Circuit
denying certificate of appealability and affirming denial of funding, Mar. 25, 2014 .................. 1a
APPENDIX B: Order of the United States
District Court for the Northern District of
Texas denying petition, No. 12-cv-270,
Jan. 29, 2013 .............................................................. 33a
APPENDIX C: Order of the United States
District Court for the Northern District of
Texas denying funding, No. 12-cv-270,
June 19, 2012 ............................................................. 73a
v
TABLE OF CONTENTS—Continued
Page
APPENDIX D: Transcript of Telephone Conference, United States District Court for the
Northern District of Texas, No, 11-cv-72,
Feb. 24, 2011 .............................................................. 75a
APPENDIX E: Order of the United States
District Court for the Northern District of
Texas interpreting motion to abate as motion to withdraw the motion for appointment of counsel and dismissing case without prejudice, No. 11-cv-72, Mar. 8, 2011 .............. 79a
APPENDIX F: Order of the United States
District Court for the Northern District of
Texas fixing schedule for filing of habeas
papers, No. 12-cv-270, May 2, 2012 ........................ 81a
APPENDIX G: Order of the United States
District Court for the Northern District of
Texas denying motion for scheduling order,
No. 12-cv-270, May 3, 2012 ...................................... 83a
APPENDIX H: Order of the United States
District Court for the Northern District
of Texas denying stay pending Trevino,
No. 12-cv-270, Nov. 30, 2012 ................................. 91a
APPENDIX I: Order of the United States
District Court for the Northern District of
Texas denying motion to vacate, alter, or
amend and denying certificate of appealability, No. 12-cv-270, Mar. 15, 2013 ........................ 93a
APPENDIX J: Order of the United States
Court of Appeals for the Fifth Circuit
denying rehearing, June 10, 2014 ........................... 95a
vi
TABLE OF CONTENTS—Continued
Page
APPENDIX K: Statutory Provisions
18 U.S.C. § 3599 ........................................................ 97a
28 U.S.C. § 2253 ........................................................ 98a
vii
TABLE OF AUTHORITIES
CASES
Page(s)
Clark v. Johnson, 202 F.3d 760 (5th Cir. 2000) ................ 20
Clabourne v. Ryan, 745 F.3d 362
(9th Cir. 2014).............................................................. 33
Crutsinger v. Stephens, 2014 WL 3805464
(5th Cir. Aug. 4, 2014) ............................... 23, 28, 29, 33
Detrich v. Ryan, 740 F.3d 1237 (9th Cir.
2013), cert. denied, 134 S. Ct. 2662
(2014) ............................................................................ 33
Dickens v. Ryan, 740 F.3d 1302
(9th Cir. 2014).............................................................. 30
Ex Parte Wilkins, 2011 WL 334213
(Tex. Crim. App. Feb. 2, 2011) ................................... 9
Fuller v. Johnson, 114 F.3d 491 (5th Cir.
1997) ............................................................................. 20
Gutierrez v. Quarterman, 201 F. App’x 196
(5th Cir. 2006).............................................................. 18
Harbison v. Bell, 556 U.S. 180 (2009) ....................... 17, 21
Mamou v. Stephens, 2014 WL 4274088
(S.D. Tex. Aug. 28, 2014) ........................................... 24
Martinez v. Ryan, 132 S. Ct. 1309 (2012) ................ passim
McFarland v. Scott, 512 U.S. 849 (1994)........... 18, 19, 20, 21
Miller-El v. Cockrell, 537 U.S. 322 (2003) ...... 27, 30, 32, 31
Newbury v. Stephens, 756 F.3d 850
(5th Cir. 2014).............................................................. 29
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Ngabirano v. Wengler, 2014 WL 517494
(D. Idaho Feb. 7, 2014) ............................................... 33
Porter v. McCollum, 558 U.S. 30 (2009)......................... 18
Reed v. Stephens, 739 F.3d 753, 773-774
(5th Cir. 2014), petition for cert. filed,
No. 13-1509 (U.S. June 17, 2014) .............................. 32
Riley v. Dretke, 362 F.3d 302 (5th Cir. 2004).........18, 20, 22
Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013)............. 29, 30
Sells v. Stephens, 536 F. App’x 483
(5th Cir. 2013), cert. denied, 134 S. Ct.
1786 (2014) ....................................................... 18, 23, 24
Slack v. McDaniel, 529 U.S. 473 (2000).............. 26, 31, 32
Snodgrass v. Angelozzi, 545 F. App’x 698
(9th Cir. 2013).............................................................. 30
Strickland v. Washington, 466 U.S. 668
(1984) ...................................................................... 18, 25
Trevino v. Thaler, 133 S. Ct. 1911 (2013) .............. passim
United States v. Green, 882 F.2d 999
(5th Cir. 1989).............................................................. 15
Weber v. Sinclair, 2014 WL 1671508
(W.D. Wash. Apr. 28, 2014) ....................................... 33
Wiggins v. Smith, 539 U.S. 510 (2003) ...................... 18, 25
Wilkins v. State, 2010 WL 4117677
(Tex. Crim. App. Oct. 20, 2010),
cert. denied, 131 S. Ct. 2901 (2011) ......................... 7, 8
Woodward v. Epps, 580 F.3d 318 (5th Cir. 2009) ............. 20
ix
TABLE OF AUTHORITIES—Continued
Page(s)
DOCKETED CASES
Allen v. Stephens, No. 11-cv-1676
(S.D. Tex.) .............................................................. 24, 29
Thompson v. Stephens, No. 13-cv-1900
(S.D. Tex.) .................................................................... 24
STATUTORY PROVISIONS
18 U.S.C.
§ 3599 .......................................................2, 13, 19, 20, 21
§ 3599(a)(2) .............................................................. 9, 20
§ 3599(f) ............................... 3, 4, 12, 17, 18, 19, 22, 23, 26
28 U.S.C. § 1254(1) ............................................................... 1
Anti-Terrorism and Effective Death Penalty
Act, 28 U.S.C.
§ 2253 ........................................................................ 1, 32
§ 2253(c) ....................................................................... 31
§ 2254(b)(1)(B) ............................................................. 21
§ 2254(b)(3) .................................................................. 21
§ 2254(d) ....................................................................... 10
Tex. Code Crim. Proc. art. 11.071
§ 3(a) ............................................................................... 8
§ 4 .................................................................................... 8
OTHER AUTHORITIES
Dix, George E., & John M. Schmolesky,
Texas Practice: Criminal Practice and
Procedure (3d ed. 2011) ............................................... 8
x
TABLE OF AUTHORITIES—Continued
Page(s)
Hertz, Randy, & James S. Liebman, Federal
Habeas Corpus Practice And Procedure
(6th ed. 2011) ................................................................ 30
State Bar of Texas, Guidelines and
Standards for Texas Capital Counsel,
69 Tex. Bar J. 966 (2006) ............................................. 8
IN THE
Supreme Court of the United States
No. 14CHRISTOPHER CHUBASCO WILKINS,
Petitioner,
v.
WILLIAM STEPHENS,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Christopher Wilkins respectfully petitions for a
writ of certiorari to review the judgment of the United
States Court of Appeals for the Fifth Circuit in this
case.
OPINIONS BELOW
The opinion of the court of appeals denying a certificate of appealability and affirming the denial of funding (App. 1a-32a) is unpublished but is available at 560
F. App’x 299. The opinion of the district court denying
the petition for habeas corpus (App. 33a-71a) is un-
2
published but is available at 2013 WL 335998. The district court’s order denying petitioner’s request for
funds (App. 73a-74a) is unreported.
JURISDICTION
The court of appeals entered judgment on March 25,
2014, and denied a timely rehearing petition on June 10,
2014. App. 95a-96a. This Court has jurisdiction under
28 U.S.C. § 1254(1).
STATUTORY PROVISIONS
Provisions of 18 U.S.C. § 3599 and 28 U.S.C. § 2253
are reproduced in the Appendix. App. 97a-99a.
STATEMENT
Christopher Wilkins was convicted of capital murder in Texas in 2008 and sentenced to death. Because
the district court would not appoint counsel for Wilkins’s federal habeas proceedings unless Wilkins
agreed to a severely truncated filing deadline, Wilkins
had no counsel for those proceedings until an attorney
agreed to represent him pro bono just ten weeks before
his federal habeas petition was due. Through an unfunded preliminary investigation, pro bono counsel uncovered several red flags indicating that trial counsel’s
performance was constitutionally deficient. Among
other things, trial counsel had conducted only an anemic mitigation investigation, failed to pursue leads that
emerged in that investigation, and failed to prepare for
other issues that were sure to arise at trial. Pro bono
counsel also learned that Wilkins’s state habeas attorney—acting in disregard of his statutory and professional obligations and contrary to Wilkins’s specific instructions—had refused to raise and failed to investigate any ineffective-assistance claim.
3
Although Wilkins’s ineffective-assistance claims
had been procedurally defaulted, Wilkins’s pro bono
federal habeas counsel asserted those claims as best
she could despite her limited opportunity to investigate—first by applying for funds under 18 U.S.C.
§ 3599(f), and then in Wilkins’s federal habeas petition.
She argued that an appropriate investigation would
likely demonstrate not only the merits of the underlying claims, but also cause for the procedural default under Martinez v. Ryan, 132 S. Ct. 1309 (2012). Martinez
held that inadequate representation at an “initialreview collateral proceeding”—such as a Texas habeas
proceeding—can establish cause to excuse the default
of a substantial claim of ineffective assistance of trial
counsel. Id. at 1315-1320; see also Trevino v. Thaler,
133 S. Ct. 1911 (2013) (applying Martinez to Texas cases). This Court adopted that equitable exception to the
procedural-default rule “[t]o protect prisoners with a
potentially legitimate claim of ineffective assistance of
trial counsel,” recognizing that without such an exception, “no court will review the prisoner’s claims.” Martinez, 132 S. Ct at 1315, 1316. As the Court explained in
Trevino, “significant unfairness” would result from
“depriv[ing] the defendant of any opportunity at all for
review of an ineffective-assistance-of-trial-counsel
claim.” 133 S. Ct. at 1919, 1921.
The Fifth Circuit made an end-run around this
Court’s decisions by affirming the denial of Wilkins’s
request for funds in light of the procedural default and
then holding that Wilkins could not establish cause for
the default or obtain relief on the merits because he had
not produced sufficient evidence to substantiate his ineffective-assistance claims—i.e., the very evidence he
needed the funds to obtain. Under the Fifth Circuit’s
circular analysis, a capital habeas petitioner cannot se-
4
cure resources to develop an ineffective-assistance
claim unless the petitioner can already demonstrate the
claim’s merit. That reasoning finds no support in the
text of § 3599(f) and makes little sense in those cases
where the reason Martinez might apply is because
state habeas counsel never conducted a reasonable investigation. Yet federal courts within the Fifth Circuit—apparently alone among the federal courts—have
taken this approach with increased frequency. This
Court should grant review to correct the Fifth Circuit’s
improper approach and allow Wilkins, for the first time,
to conduct a meaningful investigation of his ineffectiveassistance claims and ensure that they receive proper
consideration.
A. Wilkins’s Trial And Sentencing
Christopher Wilkins was arrested for the October
2005 murders of Mike Silva and Willie Freeman in Fort
Worth, Texas. The prosecution’s evidence indicated
that Freeman tricked Wilkins into buying gravel for
$20 that Freeman passed off as cocaine. App. 2a. According to the prosecution, Wilkins thereafter decided
to kill Freeman. Wilkins told Freeman he had a stash
of guns and drugs across town, and Silva agreed to
drive the two men to retrieve them. App. 2a-3a. During that trip, Wilkins shot Freeman in the back of the
head and shot Silva three times as he tried to escape.
App. 3a.
Wilkins was arrested about a week later and made
statements to Detective Cheryl Johnson confessing to
numerous murders and suggesting that he might plead
guilty. 28 RR 136-149, 164-169, 180-182.1
1
The trial transcript (“Reporter’s Record”) is cited as “RR”
by volume and page.
5
In December 2005, the trial court appointed Wessley Ball to represent Wilkins, assisted by Warren St.
John. Wilkins was tried in early 2008. Ball presented
no evidence or witnesses at the guilt phase. His sole
defense theory, pursued through cross-examination of
Detective Johnson, was that Wilkins tended to make
false confessions. 26 RR 36-41; 29 RR 140-145. Although Johnson conceded that police could not verify
most of Wilkins’s confessions, 28 RR 136-149, 164-165,
she testified that she did not believe Wilkins had lied
about all of them, id. at 165. On March 4, 2008, the jury
convicted Wilkins of capital murder. App. 34a.
At sentencing, the prosecution called 24 witnesses
to describe prior crimes and acts of violence committed
by Wilkins. 30 RR 10 through 33 RR 96. These included the shooting of Ball’s former client, Gilbert Vallejo.
Although witnesses could not identify Wilkins as Vallejo’s assailant, 32 RR 58-60, and fingerprints from Vallejo’s murder could not be linked to Wilkins, 33 RR 20-21,
a firearms examiner testified that projectiles from the
Silva-Freeman and Vallejo murders appeared to have
been fired from the same weapon, 32 RR 87-88. The
prosecution also called a sheriff’s deputy to testify
about Wilkins’s striking tattoos, which the deputy
claimed were insignia of the “Confederate Hammerskin” gang. 34 RR 50-81. And the prosecution called
three corrections officers to testify about Wilkins’s behavior in jail, including an incident in which he obtained
and swallowed a handcuff key. Id. at 83-163.
In defense, Ball called five of Wilkins’s immediate
family members, who testified that Wilkins had a fairly
stable childhood, despite a mostly absentee father, but
that he had been influenced by “drugs and the wrong
people.” 33 RR 176; see id. at 98-188. Five corrections
officers also indicated, in less than an hour of testimony,
6
that Wilkins was generally compliant. 34 RR 163-200.
Ball’s only expert witness was a former prison warden—whom Ball had hired the day before trial, 26 RR
10-13—to testify about the conditions in which Wilkins
would be confined if sentenced to life in prison. 35 RR
92-144. She testified—erroneously, and to Wilkins’s
considerable detriment—that Wilkins could achieve a
less restrictive security status, potentially allowing him
to work or live outside the main prison buildings, after
only ten years. Id. at 103-108; cf. Petition Ex. 38, at
237; Petition Ex. 39, at 245-246.2
Wilkins also testified. 35 RR 10-91. He admitted to
shooting Freeman and Silva and took responsibility for
his actions, stating “[i]t doesn’t have anything to do
with [my family]. … I make bad decisions. I know
they’re bad decisions when I’m making them, I make
them anyway.” Id. at 13, 26-27. Wilkins also admitted
to Vallejo’s murder and admitted that he had confessed
falsely to other crimes. Id. at 28-36. Wilkins explained
that he “th[ought] subconsciously [he’d] been trying to
kill [him]self or get [him]self killed” since his relationship with the mother of his three children ended. Id. at
59. When asked if it was his idea to plead not guilty,
Wilkins replied, “No, absolutely not.” Id. at 16; see also
id. at 14-15. But, Wilkins asserted, his lawyers “didn’t
want [him] to” plead guilty and “convinced” him to go
to trial. Id. at 16. Wilkins concluded: “[A]t this point,
really, it doesn’t matter what I want. … [I]t’s no big
deal, no big deal. Just do whatever you do.” Id. at 61.
On March 11, 2008, the jury returned its sentencing
verdict, finding that Wilkins “would commit criminal
2
Exhibits to Wilkins’s Petition for Habeas Corpus, Dkt. 30,
No. 12-cv-270 (N.D. Tex. May 22, 2012) (“Petition”) are cited as
“Petition Ex.”
7
acts of violence that would constitute a continuing
threat to society” and that there were not sufficient
mitigating circumstances to warrant a sentence of life
imprisonment without parole rather than death. App.
36a. The court imposed the death sentence. Id.
B. Direct Appeal
After sentencing, the trial court appointed Ball as
Wilkins’s appellate counsel. App. 36a-37a. Wilkins later learned, however, that Ball’s previous representation of Vallejo presented a potential conflict of interest.
Although Ball had earlier informed Wilkins of his relationship with Vallejo, Ball had not explained the legal
consequences of the potential conflict or informed the
trial court. MSO Ex. K at 6-16.3 In January 2009, Wilkins sought to have Ball removed, and the Texas Court
of Criminal Appeals remanded for a hearing. The trial
court found no conflict of interest, but accepted Ball’s
offer to withdraw and substituted David Richards as
appellate counsel. Id. at 22-24, 27-28.
Consistent with Texas law and practice, see Trevino, 133 S. Ct. at 1918-1920, Richards raised no ineffective-assistance claims, limiting his appeal to recordbased issues and constitutional challenges to Texas’s
death-penalty scheme. Wilkins v. State, 2010 WL
4117677 (Tex. Crim. App. Oct. 20, 2010). The Court of
Criminal Appeals affirmed Wilkins’s conviction and
sentence. Id. Richards submitted a petition for certiorari to this Court, but failed to attach the required in
forma pauperis affidavit, and his petition was never
docketed. See Petition Ex. 1. Wilkins separately filed a
3
Exhibits to Wilkins’s Motion for Scheduling Order, Dkt. 10,
No. 12-cv-270 (N.D. Tex. May 1, 2012) (“MSO”) are cited as “MSO
Ex.”
8
pro se petition for certiorari attempting to raise claims
of ineffective assistance of counsel, MSO Ex. XX, which
this Court denied. Wilkins v. Texas, 131 S. Ct. 2901
(2011).
C. State Habeas Proceedings
Pursuant to Texas law, Wilkins’s state habeas application proceeded simultaneously with his direct appeal. See Tex. Code Crim. Proc. art. 11.071 § 4; 43B Dix
& Schmolesky, Texas Practice § 58.64 (3d ed. 2011).
The trial court appointed Jack Strickland as Wilkins’s
state habeas counsel. App. 37a.
Strickland was obligated to conduct an extrarecord investigation into potential collateral claims, including ineffective assistance of trial counsel. Tex.
Code Crim. Proc. art. 11.071 § 3(a) (requiring “expeditious[]” investigation, “before and after the appellate
record is filed,” of the factual and legal basis for potential claims); see also State Bar of Texas, Guidelines and
Standards for Texas Capital Counsel, 69 Tex. Bar J.
966, 976 (2006). And, as Wilkins detailed in several pro
se filings, Wilkins repeatedly asked Strickland to pursue claims that he had been denied the effective assistance of counsel. See, e.g., MSO Ex. I. Strickland did
no such thing. He waited a year before hiring an investigator and did not collect the appellate record until
nearly six months after it had become available. MSO
Ex. E at 126; MSO Ex. F at 130. And although Strickland secured funding for a mitigation specialist and a
psychologist, he never retained anyone to fill those
roles. MSO Ex. H at 167. Strickland’s investigator did
not interview any witnesses until May 29, 2010, ten
days before Strickland filed the habeas application.
MSO Ex. G at 154-156.
9
Strickland’s state habeas application raised 18
claims. MSO Ex. A. Each claim either rested on the
trial record or challenged the constitutionality of Texas’s death-penalty system. Id. None reflected any extra-record investigation, and none raised any ineffective-assistance issue. Id.
In late 2010, while his habeas application was pending, Wilkins learned that Strickland had accepted a job
with the same District Attorney’s office that had prosecuted Wilkins. Strickland had previously worked there,
and it was announced publicly in May 2010—one month
before Strickland filed Wilkins’s habeas application—
that Strickland would be returning. MSO Ex. N. Yet
Strickland never told Wilkins he had accepted employment with Wilkins’s adversary, and he did not withdraw from Wilkins’s case until February 2011—after he
returned to the District Attorney’s office, and after habeas relief had been denied. MSO Ex. O. When Wilkins learned of the conflict, he tried to raise the issue in
the Court of Criminal Appeals, MSO Ex. UU at 538,
but received no response.
In February 2011, on the trial court’s recommendation, the Court of Criminal Appeals denied Wilkins’s
habeas application. Ex Parte Wilkins, 2011 WL 334213.
D. District Court Proceedings
1. Because Strickland had returned to the District
Attorney’s office, a new attorney, John Stickels, moved
for appointment as Wilkins’s federal habeas counsel
under 18 U.S.C. § 3599(a)(2). See Mot. for Appointment, Dkt. 2, No. 11-cv-72 (N.D. Tex. Feb. 8, 2011).
Before ruling on the motion, District Judge
McBryde held a telephone conference with Wilkins and
Stickels to explain his practice with respect to ap-
10
pointment of counsel in habeas proceedings. “If we go
forward now,” the court explained, “I’ll sign an order
that requires the … petition for writ be filed within 45
days, and we move pretty fast. We rule on them real
fast because I think that’s the proper thing to do[.]”
App. 76a. At that point, this Court had not yet denied
certiorari on direct review of Wilkins’s conviction and
sentence, so the one-year period under 28 U.S.C.
§ 2244(d) for filing a federal habeas petition had not yet
begun to run. Forced to choose between having counsel appointed right away or having the full year in
which to prepare his claims, Wilkins opted for more
time. Id. Stickels acquiesced to the court’s 45-day rule
(App. 77a), withdrew his motion (App. 79a-80a), and
took no further action on Wilkins’s behalf.
2. Wilkins derived little benefit from the time he
gained. Without counsel, progress on his case halted
for one year. Finally, on March 9, 2012—just ten weeks
before Wilkins’s federal habeas petition was due—
Wilkins obtained pro bono counsel. Using her own resources, Wilkins’s new attorney, Hilary Sheard, tried to
investigate potential claims, including ineffective assistance of counsel.
Based largely on her review of case files and billing
records submitted by Wilkins’s state-court attorneys,
Sheard discovered that the feeble mitigation case Ball
had presented at sentencing reflected an investigation
that was abandoned soon after it began and resumed
only on the eve of trial. Ball waited three months after
his appointment to hire an investigator. 1 CR 14-16.4
That investigator apparently did no work on the case,
4
The “Clerk’s Record” of trial-court docket entries are cited
as “CR” by volume and page.
11
but Ball did not replace him until two days before jury
selection began. Id. at 212-214. Similarly, although
Ball had hired a mitigation specialist in 2006, Ball let
that investigation languish and did not even learn until
shortly before trial that the mitigation specialist had
been ill and “unable to work going on almost a year.”
Petition Exs. 5-6.
To the extent Ball’s limited investigation revealed
any leads, Sheard learned, he failed to pursue or present them. For example, Ball hired Dr. Kelly Goodness
to evaluate Wilkins’s mental functioning. Goodness
learned that Wilkins had been exposed to LSD as a
child and suffered from “a number of cognitive deficits
indicative of some form of brain pathology.” Petition
Ex. 28, at 178. Goodness also reviewed a 1983 psychological assessment indicating that Wilkins had abused
drugs since the age of eight and that he had sustained
several head injuries and other factors conducive to
brain damage. Petition Ex. 26, at 165-171; Petition Ex.
27, at 174-175; Petition Ex. 28, at 178-179. Goodness
accordingly recommended a full neuropsychological investigation, explaining that, “[t]he question is not
whether or not Mr. Wilkins has some neuropsychological deficits—he does.” Petition Ex. 28, at 178. Ball
never followed up on Goodness’s recommendation and
presented no mental health evidence to the jury.
Apart from the mitigation issue, Sheard also
learned that Ball permitted his prison-classification expert to testify, prejudicially, that Wilkins could achieve
a relatively low level of security ten years into a life
sentence when in fact he could not. Supra p. 6. And
Ball failed to prepare to address the topic of Wilkins’s
striking tattoos, even though they had attracted media
attention after Wilkins’s arrest, Petition Ex. 17. Ball
could have sought an expert to testify about prisoners’
12
propensity to acquire gang tattoos to intimidate potential assailants in prison or other psychological explanations. Instead, Ball waited until the end of the sentencing phase of trial to seek a continuance to obtain the
services of a “symbologist” to “interpret[]” the tattoos.
34 RR 47-49. The continuance was denied. Id. at 49.
3. On May 1, 2012, Sheard entered a notice of appearance and filed a motion on Wilkins’s behalf for a
scheduling order that would allow for filing and
amendment of the habeas petition after proper development of the claims. MSO at 3-42. Sheard also moved
for leave to file an ex parte request for investigative
funds under § 3599(f). Id. at 42-56. The motion recounted the numerous red flags Sheard had uncovered
concerning Ball’s deficient performance and Strickland’s refusal to investigate or raise any ineffectiveassistance claims. In support of the motion, Sheard
submitted three volumes of exhibits documenting those
deficiencies. She acknowledged that the ineffectiveassistance-of-trial-counsel claims were procedurally
barred because Strickland had failed to raise them in
the state habeas proceeding. Citing this Court’s decision in Martinez, 132 S. Ct. at 1315-1320, however,
Sheard argued that Wilkins could likely overcome the
procedural default if given the time and resources he
needed to demonstrate the inadequacy of his trial and
state habeas counsel and resulting prejudice. MSO at
34-42.
The next day, the district court entered a scheduling order that ignored Sheard’s motion and ordered
Sheard to include in Wilkins’s habeas petition only
13
those claims that had been exhausted in state court.
App. 81a-82a.5
On May 25, 2012, the district court denied leave to
submit the funding request ex parte, and Sheard filed
an unsealed application stating Wilkins’s specific need
for funds. See Application, Dkt. 34, No. 12-cv-270 (N.D.
Tex. May 25, 2012). In the application and supporting
appendix, Sheard set out a detailed plan for conducting
the investigation that Strickland failed to do. Id. at 418. Sheard requested funding for 300 hours of work by
an investigator and 500 hours of work by a mitigation
specialist. Id. at 9, 13. Sheard also sought funding for a
neuropsychological evaluation and an expert in prison
classification who could explain the inaccuracies in the
testimony Ball elicited at sentencing. Id. at 14-15, 17-18.
On June 19, 2012, the court denied Wilkins’s request for investigative and expert funds in its entirety.
App. 73a-74a. The court stated it was “unable to find
that the requested investigative, expert, and other services” were “reasonably necessary,” as required under
§ 3599. App. 73a.
4. On May 22, 2012, while the funding application
remained pending, Sheard filed Wilkins’s federal habeas petition. In it, Sheard presented the ineffectiveassistance claims as best she could given the lack of
time and funds to obtain the necessary extra-record evidence. Sheard submitted 52 exhibits and nearly 200
pages of briefing raising the several red flags she had
uncovered in her short, unfunded review. Among other
issues, Sheard addressed Ball’s minimal mitigation in5
On May 3, 2012, the district court entered a further order
finding no basis in Sheard’s motion for entry of any schedule other
than the one the court had already issued. App. 83a-84a.
14
vestigation, his failure to obtain the neuropsychological
evaluation recommended by Dr. Goodness, his introduction of erroneous testimony that led the jury to believe Wilkins could eventually move to less restrictive
confinement, and his failure to prepare any response to
the prosecution’s evidence about Wilkins’s tattoos. See
Petition at 24-92.6
Sheard again acknowledged that Wilkins’s ineffective-assistance claims had been defaulted. But she argued that Martinez potentially applied to excuse the
default, explaining that Strickland had labored under a
conflict of interest and categorically refused to raise
and failed to investigate any ineffective-assistance
claims. Petition at 3-15. Sheard accordingly renewed
the requests for funding and an opportunity to demonstrate cause and prejudice and develop through full investigation and an evidentiary hearing the claims
Strickland had ignored. Id. at 191-193.7
5. On January 29, 2013, without holding an evidentiary hearing, the district court denied relief. App.
33a-71a. The court first reaffirmed its earlier ruling
denying funds, holding that Wilkins was not entitled to
any funding because he “failed to provide in his motion
for additional funds any meaningful specificity as to the
precise information he would expect to develop.” App.
45a.
6
Among other claims, Sheard also challenged Ball’s potential
conflict of interest arising from his prior representation of Vallejo,
Ball’s insistence that Wilkins plead not guilty, and Ball’s failure to
question Wilkins’s competence to stand trial. Petition at 92-101,
105-127.
7
On November 7, 2012, Sheard moved to stay adjudication of
Wilkins’s petition pending this Court’s decision in Trevino. The
district court denied the stay. App. 91a-92a.
15
The court then rejected Wilkins’s ineffectiveassistance claims as procedurally defaulted. Relying on
Fifth Circuit precedent that has since been overruled,
the court held that Martinez did not apply in Texas
cases. App. 55a. The court held in the alternative that
even if Martinez did apply, Wilkins had not shown that
his state habeas counsel was inadequate. App. 55a-56a.
The court found that Strickland had “vigorous[ly]”
briefed 18 claims of error and that Wilkins had made
only “conclusory” and “factually unsupported” attacks
on Strickland’s performance. App. 56a.
The district court also held that even if Wilkins
could establish cause and prejudice, Wilkins’s ineffective-assistance claims were “meritless.” App. 56a-69a.
In doing so, the court faulted Wilkins for failing to provide the very evidentiary support his request for funding was designed to produce, holding that a petitioner
alleging an unreasonable failure to investigate must
show “‘with specificity what the investigation would
have revealed and how it would have altered the outcome of the trial.’” App. 57a (quoting United States v.
Green, 882 F.2d 999, 1003 (5th Cir. 1989)). Applying
that rule, the court dismissed as “conclusory” Wilkins’s
claim that trial counsel was deficient in failing to investigate and present mitigation evidence because Wilkins
“failed to provide any evidence as to what his trial
counsel would have discovered by further investigation.” App. 59a; see also, e.g., App. 66a (“[Wilkins] fails
to provide any evidence as to what his trial counsel
should have discovered”).
On March 5, 2013, the court denied Wilkins’s motion to vacate or amend the judgment without explanation and denied a certificate of appealability. App. 93a94a.
16
E. The Court Of Appeals’ Decision
On March 25, 2014, the U.S. Court of Appeals for
the Fifth Circuit affirmed the denial of funds and denied a COA. App. 1a-32a. The court acknowledged
that under Trevino, the Martinez exception applies in
Texas cases. App. 11a. The court accordingly found
the district court’s procedural ruling to be debatable.
Id. And the court “assum[ed] arguendo” that Strickland “was deficient for failing to bring the [ineffectiveassistance] claims during state habeas proceedings.”
App. 30a. The court nevertheless denied a COA on the
ground that Wilkins had “failed to state any substantial
[ineffective-assistance] claims.” App. 12a.
Like the district court—and despite the evidence
Sheard had submitted below—the Fifth Circuit characterized Wilkins’s allegations as “conclusory,” faulting
him for failing to present the extra-record evidence of
deficiency and prejudice he had never had the opportunity to obtain. App. 15a-16a; see also, e.g., App. 22a
(“[n]o evidence was presented” to show reasonable
probability of different result); App. 25a (“Wilkins offered no support to the district court that his actions
are the result of brain damage and mental health problems or that he was unable to consult with counsel or
understand the proceedings.”); id. (“Based on the lack
of probative evidence …, we cannot say that reasonable
jurists would find the district court’s decision debatable
or wrong.”). The court acknowledged Sheard’s argument that “the impact of Ball’s unreasonable pretrial
mitigation investigation can only be known ‘if the federal habeas courts provide the means to investigate and
present the case that should have been developed prior
to trial,’” but the court rejected that argument as a
“conclusory allegation[].” App. 15a-16a. The court
therefore concluded that Wilkins could not establish
17
cause for his procedural default because “none of the
underlying [ineffective-assistance] claims are ‘substantial’ as required by Martinez” and concluded that Wilkins was not entitled to a COA because he had “failed
to establish both prongs of an ineffective assistance
claim under Strickland.” App. 30a.
The court of appeals also upheld the denial of funds.
App. 30a-31a.8 Under circuit precedent, the court stated, the “reasonably necessary” standard of § 3599(f) required Wilkins to demonstrate a “‘substantial need’” for
the requested assistance. App. 30a. That standard, the
court asserted, could not be met when, among other
things, a petitioner “fail[s] to supplement his funding
request with a viable constitutional claim that is not
procedurally barred” or “when the sought after assistance would only support a meritless claim.” App. 30a31a (internal quotation marks omitted). Applying that
standard, the court stated that “Wilkins offered little to
no evidence that the investigative avenues counsel proposed to take hold any significant chance for success.”
App. 31a. “Our precedent is clear,” the court held,
“that a habeas petitioner is not entitled to investigative
funds under these circumstances.” Id.
On June 10, 2014, the court of appeals denied rehearing. App. 95a-96a.
8
Under Fifth Circuit precedent, “no COA is necessary to appeal the district court’s denial of funds to a habeas petitioner.”
App. 6a; cf. Harbison v. Bell, 556 U.S. 180, 183 (2009).
18
REASONS FOR GRANTING THE PETITION
I.
THE COURT SHOULD GRANT REVIEW TO CORRECT
THE FIFTH CIRCUIT’S OUTLIER RULE THAT FUNDING
IS UNAVAILABLE UNDER § 3599(f) FOR PROCEDURALLY
DEFAULTED CLAIMS
This Court has repeatedly recognized that developing an ineffective-assistance claim can require significant time and resources. See, e.g., Martinez v. Ryan,
132 S. Ct. 1309, 1317-1318 (2012); Trevino v. Thaler, 133
S. Ct. 1911, 1921 (2013). That is particularly true of a
claim based on trial counsel’s failure to conduct a reasonable mitigation investigation. To substantiate such
a claim, a prisoner must conduct the investigation trial
counsel should have performed and show that the evidence counsel failed to discover could have led the jury
to return a different sentence. See Wiggins v. Smith,
539 U.S. 510, 534-536 (2003); Strickland v. Washington,
466 U.S. 668, 690-691, 694 (1984); see also Porter v.
McCollum, 558 U.S. 30, 41 (2009) (to assess prejudice,
court considers “‘the totality of the available mitigation
evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding’” (emphasis added)).
To facilitate such investigations, Congress created
a statutory right for capital habeas petitioners to receive federal funds for “reasonably necessary” investigative and expert services. 18 U.S.C. § 3599(f); see
McFarland v. Scott, 512 U.S. 849, 854-856 (1994) (interpreting predecessor to § 3599(f)). The Fifth Circuit has
held, however, that a habeas petitioner is not entitled
to such funds “when his claim is procedurally barred
from review.” Riley v. Dretke, 362 F.3d 302, 307 (5th
Cir. 2004); see also Sells v. Stephens, 536 F. App’x 483,
499 (5th Cir. 2013), cert. denied, 134 S. Ct. 1786 (2014);
Gutierrez v. Quarterman, 201 F. App’x 196, 208-209
19
(5th Cir. 2006) (per curiam). The court of appeals applied that precedent here to affirm the denial of Wilkins’s request for funding on the ground that Wilkins’s
ineffective-assistance claim was procedurally barred
and Wilkins had “offered little to no evidence that the
investigative avenues counsel proposed to take hold
any significant chance for success.” App. 30a-31a.
The Fifth Circuit’s rule that funding is unavailable
for procedurally defaulted claims—at least where the
petitioner cannot already demonstrate the claim’s merits—departs from the terms of § 3599(f) and conflicts
with this Court’s decision in McFarland. Moreover,
when applied in cases where a prisoner has had no opportunity to develop evidentiary support sufficient to
prove the underlying claim or establish cause for the
default, the Fifth Circuit’s rule perpetuates the “significant unfairness” this Court’s decisions in Martinez and
Trevino were intended to prevent. Trevino, 133 S. Ct.
at 1919. No other circuit applies such a rule. This
Court should grant review to bring the Fifth Circuit in
line with this Court’s precedent and to preserve the
role of Martinez in “protect[ing] prisoners with a potentially legitimate claim of ineffective assistance of
trial counsel.” 132 S. Ct. at 1315.
A. The Fifth Circuit’s Rule Conflicts With § 3599
And Frustrates This Court’s Precedent
Section 3599(f) provides that
[u]pon a finding that investigative, expert, or
other services are reasonably necessary for the
representation of the defendant, whether in
connection with issues relating to guilt or the
sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf
20
of the defendant and, if so authorized, shall order the payment of fees and expenses therefor.
See also 18 U.S.C. § 3599(a)(2) (indigent capital habeas
petitioner “shall be entitled to” the furnishing of “investigative, expert, or other reasonably necessary services”).
The Fifth Circuit construes the statute’s “reasonably necessary” standard to require petitioners to
“demonstrate ‘a substantial need’ for the requested assistance.” Riley, 362 F.3d at 307 (quoting Clark v.
Johnson, 202 F.3d 760, 768 (5th Cir. 2000)); Fuller v.
Johnson, 114 F.3d 491, 502 (5th Cir. 1997)); see Clark,
202 F.3d at 769 (affirming denial of funds where petitioner did not show the requested assistance was “substantially necessary”); cf. Woodward v. Epps, 580 F.3d
318, 334 (5th Cir. 2009) (affirming denial of funds “in
light of” holding that petitioner was not entitled to habeas relief). And, as noted, it has held that “[a] petitioner cannot show a substantial need when his claim is
procedurally barred from review,” Riley, 362 F.3d at
307; supra pp. 18-19—at least where the petitioner has
not already demonstrated the merits of his claim (App.
30a-31a).
Nothing in the text of § 3599 supports the limitations the Fifth Circuit has imposed. Subject to the district court’s sound discretion, that statute “entitles capital defendants to a variety of expert and investigative
services” simply “upon a showing of necessity.”
McFarland, 512 U.S. at 855. It does not categorically
preclude funding for investigation of procedurally defaulted claims, and it does not require that a petitioner
demonstrate the merits of his claim before obtaining
funding—particularly under a rigorous “significant
chance for success” standard. App. 31a. To the contra-
21
ry, in McFarland, this Court emphasized that the purpose of funding is to assist the prisoner in “research[ing] and identif[ying]” his “possible claims and
their factual bases.” Id. at 855 (emphasis added). Requiring an indigent capital prisoner to proceed without
such assistance until after he had filed his habeas petition, the Court reasoned, would expose the petitioner
to a “substantial risk that his habeas claims never
would be heard on the merits.” Id. at 856. Here, the
Fifth Circuit’s rule precluding funding for defaulted
claims when the petitioner cannot already establish
their likely merit poses precisely the same risk.
Related provisions of the Anti-Terrorism and Effective Death Penalty Act similarly lend no support to
the Fifth Circuit’s rule that “reasonably necessary”
funds are unavailable for a procedurally defaulted
claim. To the contrary, AEDPA contemplates that habeas petitioners can sometimes raise defaulted claims
and receive consideration of those claims on the merits.
For example, AEDPA identifies circumstances in
which a petitioner may assert unexhausted claims, 28
U.S.C. § 2254(b)(1)(B), or in which a court may decide a
defaulted claim on the merits if the State waives objection, see id. § 2254(b)(3). This Court has likewise recognized exceptions allowing a petitioner to raise defaulted claims. E.g., Martinez, 132 S. Ct. at 1316. And
it has recognized that federally funded counsel appointed under § 3599 may assist a petitioner in litigating
such claims. Harbison v. Bell, 556 U.S. 180, 190 n.7
(2009). Given that petitioners may thus pursue and
courts may consider defaulted claims on their merits in
some circumstances, the statutory scheme cannot sensibly be understood to categorically preclude funding to
develop such claims.
22
The Fifth Circuit reasoned that because Wilkins
had defaulted on his ineffective-assistance claims and
adduced only limited extra-record evidence to support
them, Wilkins could not show a “significant chance for
success.” App. 31a. But denying funds on this basis
deprives this Court’s decisions in Martinez and Trevino
of force. Those decisions contemplate that a deathsentenced prisoner with a potentially meritorious claim
that he was denied the effective assistance of his trial
counsel should have a meaningful opportunity to develop and present that claim and receive consideration on
the merits. Trevino, 133 S. Ct. at 1918-1921; Martinez,
132 S. Ct. at 1315-1318. And they recognize an exception to the procedural-default rule that applies in many
cases precisely because the ineffective-assistance-oftrial-counsel claims were never previously investigated
due to state habeas counsel’s own ineffectiveness. If, as
the Fifth Circuit held (App. 31a), investigative funds
are unavailable for procedurally defaulted claims unless
a petitioner can already demonstrate a “significant
chance for success,” then few indigent prisoners in such
circumstances could ever obtain the funds necessary to
establish cause under Martinez unless they happen to
have benefited from some other source of funding or
support. That result cannot be what this Court intended in Martinez and Trevino.
B. Courts In The Fifth Circuit Are Alone In
Applying This Rule And Are Doing So With
Increased Frequency
By denying funding under § 3599(f) “when [a] claim
is procedurally barred from review,” Riley, 362 F.3d at
307, the Fifth Circuit has erected a barrier to meaningful consideration of defaulted ineffective-assistance
23
claims that courts within that circuit have applied repeatedly since this Court’s decision in Martinez.
The court of appeals’ decision in Crutsinger v. Stephens, 2014 WL 3805464 (5th Cir. Aug. 4, 2014) (per curiam), illustrates the Fifth Circuit’s restrictive approach in cases that implicate Martinez. There, the district court denied Crutsinger’s request for funding on
the ground that his ineffective-assistance claim was
procedurally defaulted. Id. at *1. On appeal from the
denial of habeas relief, Crutsinger sought reexamination of the funding denial under Martinez and Trevino,
arguing that his state habeas counsel’s ineffectiveness
could excuse the default but that he needed an opportunity to demonstrate that he met the Martinez standard. Id. at *7-8. The Fifth Circuit rejected his argument, declaring that Martinez “does not … alter our
rule that a prisoner cannot show a substantial need for
funds when his claim is procedurally barred from review.” Id. at *8. “Without both a showing under
Strickland that state habeas counsel was ineffective
and a demonstration that the underlying [ineffective
assistance] claim ‘has some merit,’” the court reasoned,
“Martinez offers no relief from a potential procedural
default.” Id. And because Crutsinger could not yet
make both of those showings, he was not entitled to the
funding that might have enabled him to do so. Id.
Similarly, in Sells, the Fifth Circuit affirmed the
denial of Sells’s request for funds to develop an ineffective-assistance claim. 536 F. App’x at 498-499. As in
Crutsinger and in this case, the court asserted that a
petitioner may not obtain funds under § 3599(f) to investigate a procedurally defaulted claim, and it applied
that rule to reject Sells’s appeal based on the court’s
determination that Sells had failed to adduce sufficient
evidence to establish cause and prejudice excusing the
24
default. Id. at 499; see also id. at 493-495. District
courts have followed suit. See, e.g., Mamou v. Stephens, 2014 WL 4274088, at *1-5 (S.D. Tex. Aug. 28,
2014) (denying funding based in part on procedural default and petitioner’s failure to show he could overcome
procedural bar); Order 4-7, Dkt. 24, Thompson v. Stephens, No. 13-cv-1900 (S.D. Tex. May 2, 2014) (denying
funds to investigate ineffective-assistance claim under
circuit precedent precluding funds for procedurally defaulted claims where petitioner had not yet “described
in detail what mitigating evidence trial counsel investigated, which witnesses testified at trial, and what information did not come before the jury”); see also Order 2, Dkt. 5, Allen v. Stephens, No. 11-cv-1676 (S.D.
Tex. June 3, 2011) (denying funds because the petitioner “ha[d] not yet shown” that he could overcome procedural default).
In contrast, we have found no decisions outside the
Fifth Circuit denying a request for funds to investigate
a potentially meritorious ineffective-assistance claim on
the ground that the petitioner had defaulted the claim
or could not yet “establish both prongs” of the Strickland test. App. 30a.
C. Wilkins’s Request For Funds Should Have
Been Granted
Under a proper standard, the district court should
have granted Wilkins’s request for funds.
Even
Sheard’s shoestring examination showed deficiencies in
Ball’s performance as trial counsel sufficient to raise a
“substantial” claim of ineffectiveness. Supra pp. 10-12,
13-14; see also Martinez, 132 S. Ct. at 1318-1319 (a
“substantial” claim is one that has “some merit” and is
not “wholly without factual support”). Additional funding was reasonably necessary to demonstrate a sub-
25
stantial claim that Ball’s performance resulted in prejudice sufficient to meet the Strickland standard, which
required Wilkins to conduct the reasonable investigation Ball should have conducted and show that the evidence Ball failed to discover might have led to a different verdict. Strickland, 466 U.S. at 690-691, 694; see
also Wiggins, 539 U.S. at 534-536.
As the district court acknowledged (App. 45a n.1),
Sheard submitted a comprehensive plan in support of
the funding request detailing her intended avenues of
investigation and the evidence she hoped to develop—
evidence that was never pursued by state habeas counsel and thus could not be marshaled in support of the
request. See supra p. 13. For example, given Ball’s decision to ignore Dr. Goodness’s recommendation to obtain a neuropsychological evaluation, Sheard requested
funding for a neuropsychologist to conduct such an examination. Application 13-15, Dkt. 34, No. 12-cv-270
(N.D. Tex. May 25, 2012). And given the red flags for
abuse, drug use, and brain damage in Wilkins’s past,
Sheard sought resources to conduct the mitigation investigation Ball had not pursued in order to develop the
extent to which Wilkins was prejudiced by Ball’s apparently deficient investigation. Id. at 9-13.
The district court deemed the requested funds not
“reasonably necessary” for Wilkins’s representation.
App. 73a. But the funds’ “necess[ity]” was made evident by the court’s own opinion rejecting Wilkins’s
claims on the merits, which cited the absence of the
very proof Wilkins would have used the requested
funding to obtain. App. 55a-69a. And when the Fifth
Circuit affirmed the denial of Wilkins’s request for
funds—faulting him for failing to provide the very evidentiary support he sought funding to develop (App.
11a-30a)—it foreclosed Wilkins’s last and only oppor-
26
tunity to develop the record necessary to support his
potentially meritorious ineffective-assistance claims.
This Court should reverse the denial of funds and reject
the Fifth Circuit’s improper analysis.
II. THE COURT SHOULD GRANT REVIEW TO CLARIFY
THAT AN INEFFECTIVE-ASSISTANCE CLAIM CANNOT
BE REJECTED ON ITS MERITS BEFORE THE PETITIONER
HAS HAD ANY MEANINGFUL OPPORTUNITY TO INVESTIGATE A ND D EVELOP T HAT C LAIM
Despite severe limitations of time and resources,
Sheard submitted a nearly 200-page habeas petition—
supported by 52 exhibits—that identified numerous deficiencies of trial counsel. Those deficiencies included
Ball’s unreasonably incomplete mitigation investigation
and his failure to present any mental-health or similar
evidence relevant to the jury’s evaluation of Wilkins’s
moral culpability. Although Wilkins needed funding for
investigative and expert services to substantiate those
claims, this showing was more than sufficient to raise
doubts about the constitutional adequacy of counsel’s
performance. At a minimum, Wilkins’s ineffectiveassistance claims “deserve[d] encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotation marks omitted). The Fifth
Circuit nonetheless denied Wilkins’s request for a COA
and rejected his reliance on Martinez, citing his failure
to adduce the very evidence that Wilkins had no opportunity or funding to obtain. See App. 9a-30a; supra pp.
16-17.9
9
As noted, denial of funds was not the only way in which the
lower courts frustrated Wilkins’s ability to develop his ineffective-assistance claims. Judge McBryde’s idiosyncratic 45-day
rule denied Wilkins the year of appointed counsel’s assistance
that § 3599(f) and AEDPA’s one-year limitations period contem-
27
That analysis warrants this Court’s review. Where
a prisoner has had no funding or opportunity to investigate an ineffective-assistance-of-trial-counsel claim that
has been procedurally defaulted because of state habeas counsel’s own failure to develop it, a federal court
should not deny relief or deny a COA on the ground
that the prisoner has not yet established the claim’s ultimate merit. The Fifth Circuit did just that in this
case, concluding that Wilkins was not entitled to a COA
and could not show cause under Martinez because he
had “failed to establish both prongs of an ineffective assistance claim under Strickland.” App. 30a. That analysis frustrates the purpose of Martinez and Trevino. It
also contravenes this Court’s specific instruction in Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), that AEDPA “does not require,” but in fact “forbids,” “full consideration of the factual or legal bases” of a claim at the
COA stage. Like the Fifth Circuit’s affirmance of the
denial of funding, its premature scrutiny of Wilkins’s
embryonic ineffective-assistance claim contravenes this
Court’s precedent.
A. The Fifth Circuit’s Premature Rejection Of
Undeveloped Ineffective-Assistance Claims
On Their Merits Frustrates The Purposes Of
Martinez
Although the court of appeals “assum[ed] arguendo
that state habeas counsel … was deficient” for failing to
raise Wilkins’s ineffective-assistance claims, it concludplate. Supra pp. 9-10. By the time Sheard undertook to represent
Wilkins pro bono, she had only ten weeks in which to investigate
possible claims and prepare the petition. The district court denied
Sheard’s motion for a scheduling order that would have permitted
proper development of Wilkins’s claims. App. 83a-84a. And the
court denied her request for a stay pending Trevino. App. 91a-92a.
28
ed that Wilkins could not show that his claims were
“‘substantial,’” as required by Martinez and necessary
to obtain a COA, because he had “failed to establish
both prongs of an ineffective assistance claim under
Strickland.” App. 30a. Reaching that judgment prematurely in a case where the petitioner has had no opportunity to develop his ineffective-assistance claim defeats the purpose of Martinez.
As this Court explained, the equitable exception
recognized in Martinez serves to “protect prisoners
with a potentially legitimate claim” of ineffective assistance of trial counsel from being denied an opportunity
to develop that claim and receive full judicial consideration of its merits. 132 S. Ct. at 1315 (emphasis added).
In many cases, Martinez will apply precisely because
no professionally reasonable investigation of the ineffective-assistance claim was ever conducted. Where
that is so, the court of appeals’ holding that an indigent
prisoner cannot establish cause under Martinez or obtain a COA unless he can already “establish both
prongs” of the Strickland test renders Martinez and
Trevino meaningless unless the petitioner happens to
benefit from the assistance of pro bono federal counsel
with significant investigative resources.
Underscoring this conflict with Martinez, in several
recent cases, courts within the Fifth Circuit have prevented ineffective-assistance claims from receiving full
consideration by prejudging the claims’ merits before
they were ever investigated or developed.
In
Crutsinger, for example, when the petitioner raised a
defaulted ineffective-assistance claim that the district
court had denied funding to develop, the prosecution
waived the procedural bar and the district court simply
rejected the claim on its merits, holding that
Crutsinger had not satisfied the Strickland standard.
29
2014 WL 3805464, at *1-2. The Fifth Circuit denied a
COA, agreeing that Crutsinger failed to show what additional investigation “would reveal.” Id. at *5.
Similarly, in Newbury v. Stephens, 756 F.3d 850,
852 (5th Cir. 2014), the Fifth Circuit denied a COA on
ineffective-assistance claims the petitioner had received limited funding to investigate. Citing Martinez
and Trevino, Newbury argued that the district court
erred in rejecting his claims before he had an opportunity to develop them. Id. at 868. But the Fifth Circuit declined to remand because “the district court, in
its alternative holding, rejected his constitutional
claims on the merits,” and that decision was not reasonably debatable in light of Newbury’s failure to come
forward with the record he needed the funding to produce. Id. at 871; see id. at 871-874. In Allen, the district court similarly rejected Allen’s ineffectiveassistance claim as defaulted, holding that Allen could
not satisfy the Martinez requirements and, in the alternative, rejecting his claim on its merits. Order 2933, Dkt. 34, No. 11-cv-1676 (S.D. Tex. Apr. 1, 2014).
The court acknowledged that it had previously denied
Allen’s request for funding to develop the claim, but
concluded that the denial of funding was correct in light
of the procedural default. Id.
In contrast, other circuits give meaning to Martinez by providing habeas petitioners some opportunity
to prove cause and prejudice and develop their defaulted ineffective-assistance claims before rejecting them
on their merits. For example, in Sasser v. Hobbs, 735
F.3d 833 (8th Cir. 2013), an Arkansas case, the district
court rejected Sasser’s ineffective-assistance claims as
procedurally barred. This Court subsequently decided
Trevino, and the Eighth Circuit applied the reasoning
of that case to hold that Martinez applies in Arkansas.
30
Id. at 851-853. In light of that holding, the Eighth Circuit held that Sasser was entitled to an evidentiary
hearing to develop his claims and remanded with instructions to give Sasser “an opportunity to present
evidence related to [the defaulted] claims.” Id. at 853854.
The Ninth Circuit has similarly recognized that
courts should allow petitioners whose ineffectiveassistance claims might fall within the Martinez exception an opportunity to develop those claims before rejecting them on the merits. See, e.g., Dickens v. Ryan,
740 F.3d 1302, 1321 (9th Cir. 2014) (en banc) (petitioner
was entitled on remand in light of Martinez “to present
evidence” of cause, prejudice, and the substantiality of
his claim); Snodgrass v. Angelozzi, 545 F. App’x 698,
700 (9th Cir. 2013) (in case where ineffective-assistance
claim was rejected as defaulted before Martinez, “prudential course” is to remand to district court). This approach is consistent with the ordinary practice of courts
considering cause and prejudice, which often turns on
factual questions unlikely to have been addressed in
state court. See 2 Hertz & Liebman, Federal Habeas
Corpus Practice And Procedure § 26.3[e] (6th ed. 2011).
The Fifth Circuit’s contrary practice, however, ignores
the key purpose of Martinez and Trevino of “ensur[ing]
that proper consideration [i]s given to a substantial
claim,” Martinez, 132 S. Ct. at 1318, after a petitioner
has had a “meaningful opportunity” to present it, Trevino, 133 S. Ct. at 1921.
B. The Fifth Circuit’s Approach Contravenes
Miller-El
In Martinez, this Court limited the equitable exception to the procedural-default rule to cases in which
the petitioner’s ineffective-assistance claim is “substan-
31
tial.” 132 S. Ct. at 1318. In doing so, however, the
Court lent no support to the Fifth Circuit’s practice of
scuttling ineffective-assistance claims on their merits
before the petitioner has had a chance to substantiate
them. To the contrary, the Court defined that substantiality requirement to mean only that “the claim has
some merit.” Id. It explained that an insubstantial
claim is one that is “wholly without factual support.”
Id. at 1319. And it cited the standard for granting a
COA under 28 U.S.C. § 2253(c), id. at 1318-1319, under
which a petitioner need only show that “reasonable jurists could debate whether (or, for that matter, agree
that) the [claim] should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further,” Slack,
529 U.S. at 484 (internal quotation marks omitted).
In this case, the Fifth Circuit applied Martinez and
the COA standard to require much more than “substantiality.” Although the court recited the low threshold of “reasonable debatability” in analyzing Wilkins’s
entitlement to a COA (e.g., App. 5a-6a), its deconstruction of the evidence supporting each of Wilkins’s individual ineffective-assistance claim confirms that the
court in fact applied a much stricter degree of scrutiny.
App. 13a-30a. The Fifth Circuit effectively required
Wilkins to produce evidence “establish[ing]” his ultimate entitlement to relief under Strickland, as it candidly concluded at the end of its analysis. App. 30a.
And because Wilkins could not establish his entitlement
to relief without having had time or resources to fully
develop his claims, the court denied relief. Id.; supra
pp. 16-17.
That analysis defies this Court’s command in Miller-El that the “threshold” COA inquiry “does not require full consideration of the factual or legal bases ad-
32
duced in support of the claims. In fact, the statute forbids it.” 537 U.S. at 336. “When a court of appeals
sidesteps this process by first deciding the merits of an
appeal, and then justifying its denial of a COA based on
its adjudication of the actual merits,” the Court explained, “it is in essence deciding an appeal without jurisdiction.” Id. at 336-337. The Court continued:
[O]ur opinion in Slack held that a COA does not
require a showing that the appeal will succeed.
Accordingly, a court of appeals should not decline the application for a COA merely because
it believes the applicant will not demonstrate
an entitlement to relief. The holding in Slack
would mean very little if appellate review were
denied because the prisoner did not convince a
judge, or, for that matter, three judges, that he
or she would prevail. It is consistent with
§ 2253 that a COA will issue in some instances
where there is no certainty of ultimate relief.
After all, when a COA is sought, the whole
premise is that the prisoner has already failed
in that endeavor.
Id. at 337 (internal quotation marks omitted). Here,
the Fifth Circuit denied a COA precisely because it did
not believe Wilkins had “demonstrate[d] an entitlement
to relief.” Id. And it applied that inappropriately high
standard before Wilkins’s counsel was afforded the time
and resources to investigate and present his complete
claim.10
10
This approach mirrored the court of appeals’ analysis in
other recent cases. See, e.g., Reed v. Stephens, 739 F.3d 753, 773778 (5th Cir. 2014), petition for cert. filed, No. 13-1509 (U.S. June
17, 2014) (declining to remand in light of Trevino and denying a
COA on the merits where “compari[son] [of] the affidavits Reed
33
An erroneous application of the COA standard
might not frequently warrant this Court’s review.
Here, however, the Fifth Circuit’s improper approach
threatens significant harm when combined with that
court’s propensity to judge the merits of a defaulted
ineffective-assistance claim before that claim has been
fully developed, supra Part II.A, and to then invoke
that premature judgment as a basis to deny the funding
petitioners often need to demonstrate a claim’s merit in
the first place, supra Part I. As this Court recognized
in Martinez, “[t]he right to the effective assistance of
counsel at trial is a bedrock principle in our justice system.” 132 S. Ct. at 1317. “A prisoner’s inability to present a claim of trial error” is therefore “of particular
concern when the claim is one of ineffective assistance
of counsel,” id., and the exception adopted in Martinez
and applied in Trevino exists to guard against that concern, see Trevino, 133 S. Ct. at 1917, 1920-1921. Here,
present[ed] and the testimony … presented at trial” indicated that
Reed’s ineffective-assistance claim lacked merit); Crutsinger, 2014
WL 3805464, at *3-5 (denying a COA because “evidence supports
the district court’s determination” denying the ineffectiveassistance claim).
Outside the Fifth Circuit, the precise relationship between
Martinez’s “substantiality” requirement and the prejudice elements of Strickland and the “cause and prejudice” standard has
generated some confusion. See, e.g., Clabourne v. Ryan, 745 F.3d
362, 375-378 (9th Cir. 2014); compare Detrich v. Ryan, 740 F.3d
1237, 1243-1246 (9th Cir. 2013) (en banc) (opinion of Fletcher, J.),
with id. at 1260-1262 (Nguyen, J., concurring in result), and id. at
1265 n.3 (Graber, J., dissenting), cert. denied, 134 S. Ct. 2662
(2014). Yet courts consistently recognize that the substantiality
standard does not call for a court to “pass[] judgment on the merits
of the petitioner’s [ineffective-assistance] claim.” Weber v. Sinclair, 2014 WL 1671508, at *7 (W.D. Wash. Apr. 28, 2014); Ngabirano v. Wengler, 2014 WL 517494, at *8 (D. Idaho Feb. 7, 2014)
(“The first Martinez prong is not the same as a merits review[.]”).
34
the Fifth Circuit thwarted this Court’s decisions in
Martinez and Trevino by cutting Wilkins’s ineffectiveassistance claims off at the pass, under an inappropriately stringent standard, before he had any meaningful
opportunity to develop them or to have those claims
considered by any court. This Court should intervene
to correct the Fifth Circuit’s departure from this
Court’s rulings and to ensure that habeas petitioners
receive the meaningful opportunity to develop potentially meritorious ineffective-assistance claims that this
Court’s precedents contemplate.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
BROOK HOPKINS
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
HILARY SHEARD
LAW OFFICE OF
HILARY SHEARD
7301 Burnet Road #102-328
Austin, TX 78757
SEPTEMBER 2014
SETH P. WAXMAN
Counsel of Record
CATHERINE M.A. CARROLL
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
seth.waxman@wilmerhale.com
APPENDIX
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-70014
CHRISTOPHER CHUBASCO WILKINS,
Petitioner-Appellant,
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent-Appellee.
March 25, 2014
[560 F. App’x 299]
*
*
*
[301]
Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Christopher Chubasco Wilkins (“Wilkins”) seeks a
certificate of appealability (“COA”) to prosecute his application for habeas corpus challenging the constitutionality of his Texas state court death sentence. Wil*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2a
kins was denied relief on direct appeal, in his initial
state habeas corpus proceedings, and finally by the district court. For the reasons set out below, we now
DENY Wilkins’s motion for a COA and AFFIRM the
district court’s denial of additional funding.
I.
The facts underlying Wilkins’s conviction are not in
dispute. The Court of Criminal Appeals of Texas
(“TCCA”) set forth the facts leading to Wilkins’s capital
murder conviction as follows:
[Petitioner] gave statements to authorities that
described his murders of Willie Freeman and
Mike Silva. Freeman was a homeless man who
lived in Fort Worth. Silva lived outside Fort
Worth, but traveled into the city to purchase
drugs. Freeman would show Silva where to
buy drugs, and Silva would share his purchases
with Freeman.
In October 2005, [petitioner] left a halfway
house in Houston, stole a truck, and drove to
Fort Worth.
[Petitioner] happened upon
Freeman, who offered to sell him some drugs.
But Freeman and his supplier tricked [petitioner] into buying a piece of gravel instead of a
rock of cocaine. The men took $20 from [petitioner] and laughed at him. So [petitioner] decided to kill Freeman.
Over the next few weeks, Freeman and [petitioner] used drugs together. Freeman apologized for stealing from [petitioner] and gave
him some drugs to make up for it.
On October 27, 2005, [petitioner] told Freeman
that he had some guns and drugs stashed on
3a
the west side of Fort Worth. Silva agreed to
drive Freeman and [petitioner] in Silva’s vehicle. From the back seat, [petitioner] directed
Silva to an area on the west side of Fort Worth.
When they arrived at a deserted stretch of
road, [petitioner] shot Freeman in the back of
the head. Silva stopped the vehicle and tried to
escape, but he got caught in his seatbelt.
[Petitioner] shot him once in the neck and twice
in the head. [Petitioner] then climbed into the
driver’s seat and began driving with Silva’s
body hanging outside of the vehicle, still entangled in his [302] seatbelt. [Petitioner] finally
cut the seatbelt to remove Silva, and dumped
the victims’ bodies in a ditch at the side of the
road.
About a week later, after two high-speed police
chases, Silva’s vehicle was recovered, and [petitioner] was apprehended.1
Wilkins was subsequently indicted for the murders
of Freeman and Silva. In March 2008, a jury found
Wilkins guilty of the murders and sentenced him to
death. The TCCA affirmed his conviction and sentence
on direct appeal.2 The United States Supreme Court
denied certiorari.3 While his direct appeal was pending
before the TCCA, Wilkins filed a state application for a
writ of habeas corpus in the trial court, raising eighteen
claims for relief. The trial court, in its findings of fact
1
Wilkins v. State, No. 75,858, 2010 WL 4117677, at *1 (Tex.
Crim. App. Oct. 20, 2010).
2
See id.
3
See Wilkins v. Texas, 131 S. Ct. 2901.
4a
and conclusions of law, recommended to the TCCA that
relief be denied. Based on the trial court’s findings and
conclusions, the TCCA denied Wilkins’s application for
relief.4
Wilkins filed his federal petition for habeas corpus
in May 2012. Three weeks prior to filing his petition,
Wilkins submitted an ex parte motion to the district
court, seeking nearly $92,000 in funding to pay for a
fact investigator, a mitigation specialist, a neuropsychologist, and a prison expert to help develop his claims
for relief. The district court denied the motion, stating
that the funding was not “reasonably necessary for the
representation of petitioner in this 28 U.S.C. § 2254
proceeding.”
Wilkins alleged twenty-one grounds for relief in his
federal habeas petition, all of which were denied by the
district court. The district court denied his first eleven
claims as procedurally defaulted under Coleman v.
Thompson5 because Wilkins failed to exhaust those
claims in state court.6 Wilkins now asks this court for a
4
See Ex parte Wilkins, No. 75,229-01, 2011 WL 334213 (Tex.
Crim. App. Feb. 2, 2011).
5
6
501 U.S. 722.
The district court also found, alternatively, that Wilkins’s
unexhausted claims for relief numbers 1-7 and 10, all of which alleged ineffective assistance of trial counsel, would fail on the merits should the Supreme Court decide that its holding in Martinez v.
Ryan, 132 S. Ct. 1309 (2012), which carved out an exception to the
rule in Coleman, also applied to cases arising out of Texas courts.
At the time the district court issued its order denying Wilkins’s
petition for relief, the Supreme Court had granted a writ of certiorari in Trevino v. Thaler, 133 S. Ct. 524 (2012), to address the question of whether the exception to the procedural bar created in
Martinez applies to cases arising out of Texas state courts. Subsequently, the Supreme Court issued its opinion in Trevino an-
5a
certificate of appealability as to eight of his claims for
ineffective assistance of trial counsel which the district
court denied as procedurally defaulted.7
II.
Before a federal habeas petitioner can appeal the
district court’s denial of his petition, he must first obtain a certificate of appealability (“COA”).8 To obtain a
COA, the petitioner must make “a substantial showing
of the denial of a constitutional [303] right.”9 “Where a
district court has rejected the constitutional claims on
the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.”10 However, when the district court denies a
habeas petition on procedural grounds, a COA should
only issue if “the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling.”11
swering that question in the affirmative. See 133 S. Ct. 1911
(2013).
7
Wilkins takes no appeal of the district court’s denial of his
other claims for relief.
8
See 28 U.S.C. § 2253(c).
9
See id. § 2253(c)(2).
10
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
11
Id. (emphasis added).
6a
In reviewing Wilkins’s request for a COA, we conduct only a threshold inquiry into the merits of the
claims he raised in his underlying habeas petition.12
“This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of
the claims. In fact, the statute forbids it.”13 In death
penalty cases, “any doubts as to whether a COA should
issue must be resolved in [the petitioner’s] favor.”14
Because no COA is necessary to appeal the district
court’s denial of funds to a habeas petitioner, we review
that portion of the district court’s order for abuse of
discretion.15
III.
Wilkins argues that the district court erred in
denying habeas relief on his unexhausted claims; he asserts that he demonstrated cause and prejudice that
excused his failure to exhaust and seeks a COA to challenge that determination.
Relying on Maples v. Thomas,16 he argues first that
his state habeas counsel Jack Strickland essentially
abandoned him by failing to pursue valid claims for relief.
He argues next that he demonstrated cause to excuse his failure to raise a number of ineffective assis-
12
See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
13
Id.
14
Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (alteration in original) (citation and internal quotation marks omitted).
15
See Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005).
16
132 S. Ct. 912 (2012).
7a
tance of trial counsel (“IATC”) claims, pursuant to
Martinez v. Ryan17 and Trevino v. Thaler.18
A state prisoner’s claims for habeas corpus relief
may not be entertained by a federal court “when (1) ‘a
state court [has] declined to address [those] claims because the prisoner had failed to meet a state procedural
requirement,’ and (2) ‘the state judgment rests on independent and adequate state procedural grounds.’”19
However, “[a] prisoner may obtain federal review of a
defaulted claim by showing cause for the default and
prejudice from a violation of federal law.”20 There is no
dispute [304] that the Texas Code of Criminal Procedure’s bar on successive state court applications for habeas relief is an independent and adequate state
ground.21
A. Maples Claim
Wilkins first argues he has cause to excuse his procedural bar under Maples v. Thomas because his state
habeas counsel, Jack Strickland (“Strickland”), abandoned him during state habeas proceedings.
A federal habeas petitioner is ordinarily bound by
his attorney’s negligence because the attorney and the
17
132 S. Ct. 1309 (2012).
18
133 S. Ct. 1911 (2013).
19
Walker v. Martin, 131 S. Ct. 1120, 1127 (2011) (first alteration in original) (quoting Coleman, 501 U.S. at 729-30).
20
Martinez, 132 S. Ct. at 1316 (citing Coleman, 501 U.S. at
750).
21
See Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a); see also
Balentine v. Thaler, 626 F.3d 842, 857 (5th Cir. 2010) (recognizing
that Section 5 is an independent and adequate state law ground for
rejecting a claim).
8a
client have an agency relationship under which the
principal is bound by the actions of the agent.22 However, an attorney who “abandons his client without notice … sever[s] the principal-agent relationship” and
“no longer acts, or fails to act, as the client’s representative.”23 In Maples, the Supreme Court held that
this sort of complete attorney abandonment can constitute the kind of “extraordinary circumstances” necessary to supply cause for a procedural default.24
In Maples, the petitioner’s pro bono counsel, two
attorneys in a large New York law firm, left the firm
months before the state procedural default occurred,
and, unbeknownst to the petitioner, no other lawyer
was serving as the petitioner’s agent in any meaningful
sense of the word.25 Consequently, the petitioner was
“left without any functioning attorney of record.”26 The
petitioner failed to timely appeal the denial of his state
post-conviction petition in state court because he was
not notified of the denial until the time to appeal had
lapsed.27
The instant case and Maples are distinguishable.
Wilkins asserts he was abandoned by Strickland be22
See Coleman, 501 U.S. at 753 (“Attorney ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner’s
agent when acting, or failing to act, in furtherance of the litigation,
and the petitioner must ‘bear the risk of attorney error. ” (citation
omitted)).
23
Maples, 132 S. Ct. at 922–23 (citation omitted).
24
Id. at 924.
25
See id. at 924-27.
26
Id. at 927.
27
Id. at 920.
9a
cause Strickland worked under multiple conflicts of interest arising out of professional relationships with
counsel at trial and direct appeal, as well as the court.
As a result of these conflicts, Wilkins argues Strickland
refused to investigate and raise any IATC claims, and
failed to hire a psychologist or mitigation specialist,
contrary to Wilkins’s desires.28 We have previously
noted that counsel’s failure to raise all issues a petitioner would like to argue does not amount to abandonment.29 Moreover, the record indicates that, unlike
counsel in Maples, Strickland never missed a filing
deadline and filed a lengthy petition which raised
eighteen points of error on Wilkins’s behalf. The record
reflects that Strickland actively represented petitioner
and, unlike counsel in Maples, did not abandon his client. Maples has no application in this case.
[305]
B. Martinez-Trevino Claims
Next, Wilkins argues that Strickland’s performance
as state habeas counsel was ineffective because he
failed to raise any IATC claims, constituting cause to
excuse Wilkins’s procedural default for failure to exhaust those claims under Martinez v. Ryan and Trevino
v. Thaler.30
28
Wilkins brought this claim before the district court, which
quickly rejected his argument in a footnote, stating that “ Maples
simply would not apply to this case even if petitioner’s state habeas counsel had not performed properly.”
29
30
See Ibarra v. Thaler, 691 F.3d 677, 685 n.1 (5th Cir. 2012).
Wilkins alleges eight IATC claims in his petition: 1) that
trial counsel failed to conduct an adequate pretrial mitigation investigation; 2) that he was denied his right to unconflicted counsel;
3) that he was denied counsel at a critical stage of the proceeding;
10a
In Martinez, the Supreme Court held that a petitioner may establish cause to excuse a procedural default as to an IATC claim by showing that (1) his state
habeas counsel was constitutionally deficient in failing
to include an IATC claim in his first state habeas application; and (2) the underlying IATC claim is “substantial.”31 For a claim to be “substantial,” a “prisoner must
demonstrate that the claim has some merit.”32 Conversely, an “insubstantial” IATC claim is one that “does
not have any merit” or that is “wholly without factual
support.”33 The Martinez Court reasoned that when
inmates can only raise IATC claims under Strickland v.
Washington34 on state habeas review, a state habeas
attorney’s deficient performance may forgive a federal
procedural bar.35 Subsequently, this court held in Ibarra v. Thaler that Martinez did not apply to federal habeas cases arising from Texas convictions and that
Texas inmates were “not entitled to the benefit of Martinez for … ineffectiveness claims” because Texas inmates are not limited to raising Strickland claims in
4) that counsel was ineffective for proceeding to trial even though
Wilkins desired to plead guilty; 5) that counsel was ineffective for
failing to raise the issue of Wilkins’s competency to stand trial; 6)
that counsel failed to conduct a reasonable pretrial investigation;
7) that counsel was ineffective for failing to strike certain members
of the jury venire who were biased; and 8) that counsel was ineffective for failing to object to “excessive and prejudicial” security
measures imposed by the court during the sentencing phase of trial.
31
132 S. Ct. at 1318.
32
Id.
33
Id. at 1319.
34
466 U.S. 668 (1984).
35
Martinez, 132 S. Ct. at 1320.
11a
initial collateral review proceedings.36 In Trevino, the
Supreme Court decided that Martinez does apply to
cases which originated in Texas courts because “the
Texas procedural system—as a matter of its structure,
design, and operation—does not offer most defendants
a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal.”37
The district court issued its order denying Wilkins’s petition for habeas relief before the Supreme
Court handed down its decision in Trevino. It denied
Wilkins’s IATC claims as procedurally barred because,
at the time, this court’s opinion in Ibarra controlled. In
that case we determined that Martinez did not apply to
petitions challenging Texas convictions. However, the
district court also acknowledged the pendency of Trevino in the Supreme Court, and made the alternative
holding that, even if Martinez did apply to Wilkins’s
claims for ineffective assistance, such claims would
nevertheless fail on their merits. The district court’s
reliance on Ibarra is therefore incorrect following Trevino, and its procedural ruling is, at the very least, debatable. However, to obtain a COA Wilkins must still
demonstrate [306] that reasonable jurists would debate
“whether the petition states a valid claim of the denial
of a constitutional right.”38 This in turn required Wilkins to make a substantial showing that he was denied
effective assistance of trial counsel under Strickland.
36
687 F.3d 222, 227 (5th Cir. 2012).
37
133 S. Ct. at 1921.
38
Reed v. Stephens, 739 F.3d 753, 774 (5th Cir. 2014) (quoting
Slack v. McDaniel, 529 U.S. 473, 478, 484 (2000) (internal quotation
marks omitted)).
12a
Ineffective assistance of counsel claims are governed by the standard laid out in Strickland. “First,
the defendant must show that counsel’s performance
was deficient.”39 “Second, the defendant must show
that the deficient performance prejudiced the defense.”40 To show deficient performance, “the defendant must show that counsel’s representation fell below
an objective standard of reasonableness.”41 To demonstrate prejudice, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”42 “Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that
renders the result unreliable.”43
Concluding that Wilkins has failed to state any substantial IATC claims, we deny a COA. We address
each of his eight claims below.44
39
Strickland, 466 U.S. at 687.
40
Id.
41
Id. at 688.
42
Id. at 694.
43
Id. at 687.
44
Wilkins makes a ninth claim arising out of the trial court’s
issuance of supplementary jury instructions without notifying him
or his trial counsel, or reconvening the court. He styles this claim
as ineffective assistance of counsel. But it is properly framed as a
claim for the denial of his right to a public trial under the Sixth
Amendment. Such a claim does not fall within the scope of Martinez or Trevino and is therefore procedurally barred.
13a
1.
Failure to conduct reasonable pretrial mitigation investigation
Wilkins asserts his trial counsel, Wes Ball (“Ball”),
was ineffective because he failed to investigate and
present a constitutional sentencing case. In particular,
Wilkins contends that Ball abandoned early attempts at
investigation only to resume them once it was too late;
that Ball failed to ensure that the jury had a “true picture of the security measures” Wilkins would be subjected to if he were sentenced to life in prison; that Ball
failed to “exclude, contest or mitigate the evidence”
concerning Wilkins’s tattoos; and finally that Ball failed
to investigate the evidence of extraneous offenses the
State introduced at sentencing.
To prevail on an IATC claim, a petitioner “who alleges failure to investigate on the part of his counsel
must allege with specificity what the investigation
would have revealed and how it would have altered the
outcome of the trial.”45 “In any [IATC claim], a particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.”46
Our assessment [307] of trial counsel’s investigation
turns upon our “objective review of [his] performance,
measured for ‘reasonableness under prevailing professional norms,’ which includes a context-dependent consideration of the challenged conduct as seen ‘from counsel's perspective at the time.’”47
45
United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
46
Strickland, 466 U.S. at 691.
47
Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688-89).
14a
The record shows that Ball first obtained the assistance of an investigator, Bruce Cummings (“Cummings”), in February 2006 and gave him “authority to
investigate and seek tangible and testimonial evidence
from all witnesses having knowledge or not regarding
the accusations that may be presented in [Wilkins’s]
case.” In March 2006, Ball enlisted the help of mitigation specialist Melissa Robinson (“Robinson”). Wilkins
claims that both Cummings and Robinson “soon ceased
work,” as demonstrated by the fact that Cummings did
not submit billing for his work performed in the case.
The district court noted that Robinson was replaced
due to health problems. In January 2008, Ball replaced
Cummings when he hired Cliff Ginn and Doug Lamberson to work as investigators. Ball also hired Dr. Kelly
Goodness (“Dr. Goodness”) to act as both a mitigation
specialist and psychologist.
The district court found that the record showed
Ginn, Lamberson, and Dr. Goodness “worked diligently
at mitigation investigation,” and that there was “substantial evidence that trial counsel caused timely and
reasonable investigation to be conducted,” including the
fact that Ball called nine witnesses on Wilkins’s behalf
during the punishment phase of trial. The record supports this finding.
Wilkins disagrees, characterizing the investigation
as abandoned too early and resumed too late. Wilkins
claims he provided Ball with over eighty names of family, friends, and other persons with knowledge of his
personal history, and that Ball chose to interview only a
small number of them. Wilkins also contends Ball failed
to locate and examine basic records of his personal history, as well as interview persons other than his mother about Wilkins’s childhood. According to Wilkins, if
Ball had conducted a proper investigation, a “different
15a
picture of his childhood might well have emerged.”
However, Dr. Goodness’s investigation uncovered
many of these details: she noted Wilkins’s issues with
drug use as a youth and reported that he felt “neglected and rejected by his family.” Dr. Goodness concluded, “The lack of any sort [of] treatment or rehabilitation
efforts is remarkable.” Wilkins also asserts that Ball’s
mitigation investigation was unreasonable because he
failed to allow Dr. Goodness to perform further examinations into Wilkins’s mental health issues, despite Dr.
Goodness’s conclusion that Wilkins had “neuropsychological deficits … in several areas.” Wilkins further argues it was unreasonable for Ball to rely on Wilkins’s
“self-reported information without taking into account
his impulsive and self-destructive tendencies.”
In addition, Wilkins claims Ball was ineffective at
the punishment phase for “fail[ing] to ensure the jury
had a true picture of the security measures to which
[Wilkins] would be subject if sentenced to life,” for failing to “exclude, contest or mitigate the evidence concerning [Wilkins’s] tattoos,” and for failing to investigate the evidence the state introduced at sentencing.
The district court determined that Wilkins’s claim
of an unreasonable mitigation investigation amounted
to “conclusory allegations” which were insufficient to
show that he suffered any prejudice at the sentencing
[308] phase of his trial. We agree. Wilkins makes numerous allegations of deficient performance, but fails to
show how the performance created a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”48
He claims the impact of Ball’s unreasonable pretrial
48
Strickland, 466 U.S. at 694.
16a
mitigation investigation can only be known “if the federal habeas courts provide the means to investigate and
present the case that should have been developed prior
to trial.” Concerning the evidence of Wilkins’s tattoos,
he states that Ball should have filed a motion in
limine,49 and that the prejudice he suffered as a result
of the evidence being introduced “may be great.” Finally, he claims that the prejudicial effects of Ball’s deficient performance concerning the security measures
and the evidence of extraneous offenses require “further development upon remand” with “sufficient means
to develop relevant facts.” None of these conclusory
allegations are sufficient to merit relief under Strickland.50 Wilkins fails to persuade us that reasonable jurists would find the district court’s assessment of his
IATC claim for inadequate pretrial mitigation investigation debatable or wrong.51
2.
Denial of the right to unconflicted counsel
Wilkins next argues that he was denied the right to
unconflicted counsel at trial because Ball had previously represented Gilbert Vallejo (“Vallejo”) in probation
revocation proceedings two decades earlier. Sometime
before trial, Wilkins confessed to police that he had
murdered Vallejo two days before killing Freeman and
49
The record shows that Ball did object to the introduction of
the evidence of Wilkins’s tattoos.
50
See 466 U.S. at 693-94. (“It is not enough for the defendant
to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel
would meet that test, and not every error that conceivably could
have influenced the out-come undermines the reliability of the result of the proceeding.”) (citation omitted).
51
See Slack, 529 U.S. at 484.
17a
Silva. Wilkins contends his confession to murdering
Ball’s former client was false. The evidence of the confession was excluded at trial, but the state was permitted to introduce this evidence during the sentencing
phase. Wilkins did not raise this issue at trial. He originally raised this issue with the TCCA prior to his direct appeal, and the TCCA remanded the case to the
trial court to investigate. After holding a hearing at
which both Ball and Wilkins testified, the trial court
concluded that Ball had no conflict of interest despite
his representation of Vallejo twenty years earlier.
Nevertheless, the trial court allowed Ball to withdraw
as appellate counsel and substituted another attorney.
Cuyler v. Sullivan establishes the controlling law
regarding ineffective assistance of counsel based on
conflict of interest: “In order to establish a violation of
the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict
of interest adversely affected his lawyer’s performance.”52 Therefore, we must determine whether Wilkins offered proof that (1) trial counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely impacted his lawyer’s performance.53 “[U]ntil a defendant shows [309] that his
counsel actively represented conflicting interests, he
has not established the constitutional predicate for his
claim of ineffective assistance.”54
Although Cuyler involved concurrent representation, this court “has not definitively embraced the theo52
446 U.S. 335, 349-50 (1980).
53
Id. at 348-49 (citation omitted).
54
Id. at 350.
18a
ry that there is any real and inviolate substantive difference between conflicts of interest arising in the context of successive, as opposed to concurrent, representations.”55 In the case of successive representation, a
non-hypothetical conflict exists only “when defense
counsel is compelled to compromise his or her duty of
loyalty or zealous advocacy to the accused by choosing
between or blending the divergent or competing interests of a former or current client.”56 This determination depends on a number of factors, “including …
whether the attorney has confidential information that
is helpful to one client but harmful to another; whether
and how closely the subject matter of the multiple representations is related; how close in time the multiple
representations are related; and whether the prior representation has been unambiguously terminated.”57
We are satisfied that the conflict here remained
“purely hypothetical.”58 Ball represented Vallejo in an
unrelated probation revocation proceeding twenty
years prior to his representation of Wilkins. The representation of Vallejo had been unequivocally terminated; the facts and issues of the prior representation
had no relation to Ball’s representation of Wilkins. No
evidence was produced by Wilkins to show that Ball
even remembered representing Vallejo. The burden
lies with Wilkins to show that “there was some plausible alternative defense strategy that could have been
55
Perillo v. Johnson, 205 F.3d 775, 798 (5th Cir. 2000).
56
Id. at 781.
57
United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005)
(citing Perillo, 205 F.3d at 798-99).
58
2008).
See United States v. Burns, 526 F.3d 852, 857 (5th Cir.
19a
pursued, but was not, because of the actual conflict.”59
Wilkins has not carried this burden, and fails to demonstrate that reasonable jurists would find the district
court’s assessment of this claim debatable or wrong.60
3.
Denial of the right to counsel at a critical stage
of the proceeding
For his third claim, Wilkins asserts that he was de
facto without counsel during the conflict hearing regarding Ball’s relationship with Gilbert Vallejo as a result of Ball’s conflict of interest. According to Wilkins,
this amounted to a denial of his right to counsel at a
critical stage of the proceeding in violation of his Sixth
Amendment right to counsel.
The Sixth Amendment provides in part that “[i]n
all criminal prosecutions, the accused shall enjoy the
right … to have the Assistance of Counsel for his defence.”61 “An accused’s right to be represented by
counsel is a fundamental component of our criminal justice system.”62 “The mere presence of counsel is insufficient; a defendant is not represented by the counsel as
guaranteed under the Sixth Amendment [310] simply
because an attorney is standing next to him during a
hearing.”63
59
Infante, 404 F.3d at 393 (citing Perillo, 205 F.3d at 807).
60
See Slack, 529 U.S. at 484.
61
U.S. Const. amend. VI.
62
United States v. Cronic, 466 U.S. 648, 653 (1984).
63
United States v. Robles, 445 F. App’x 771, 776-77 (5th Cir.
2011) (citing Avery v. Alabama, 308 U.S. 444, 446 (1940)) (“[T]he
denial of opportunity for appointed counsel to confer, to consult
with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal
20a
“It is well settled that [the Sixth Amendment]
means that a defendant is entitled to be represented by
counsel at all critical stages of a criminal proceeding
against him; critical stages of a criminal proceeding are
those stages of the proceeding at which the substantial
rights of a defendant may be affected.”64 In determining whether the presence of counsel is required at a
particular stage, we focus on whether there has been a
“denial of such significance that it makes the adversary
process itself unreliable.”65 This court has held that a
critical stage of a criminal proceeding is a stage at
which “the substantial rights of [a defendant] may be
affected.”66
Ordinarily, a defendant asserting a violation of his
Sixth Amendment right to counsel is required to
demonstrate that counsel’s performance was deficient
and that he suffered prejudice as a result.67 However,
there are exceptions in three situations that involve
circumstances “so likely to prejudice the accused that
the cost of litigating their effect in a particular case is
unjustified.”68 They are: (1) “the complete denial of
counsel,” (2) where “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing,”
compliance with the Constitution’s requirement that an accused be
given the assistance of counsel.”).
64
United States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991)
(citations omitted).
65
United States v. Russell, 205 F.3d 768, 771 (5th Cir. 2000)
(citing Cronic, 466 U.S. at 659).
66
McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011) (citation
and internal quotation marks omitted).
67
Strickland, 466 U.S. at 685-87.
68
Cronic, 466 U.S. at 658.
21a
and (3) where “surrounding circumstances ma[k]e it …
unlikely that any lawyer could provide effective assistance.”69
Wilkins asserts he was completely denied counsel
at the conflict hearing in violation of his Sixth Amendment rights. However, we have already determined
that Ball did not have any actual conflict of interest in
his representation of Wilkins. Therefore, Wilkins was
not deprived of counsel during the conflict hearing.
4.
Involuntary not guilty plea
Wilkins next argues Ball was ineffective for proceeding to trial despite Wilkins’s desire to plead guilty.
One of the most important duties of an attorney representing a criminal defendant is advising the defendant
about whether he should plead guilty.70 An attorney
fulfills this obligation by informing the defendant about
the relevant circumstances and likely consequences of a
plea.71 A defendant cannot make an intelligent choice
about whether to accept a plea offer unless he fully understands the risks of proceeding to trial.72
Wilkins claims his plea of not guilty was not voluntary, and that he went to trial [311] only at the insistence of Ball for Ball’s benefit. Wilkins claims Ball
wanted to proceed to trial to “rack up” his billable
hours, despite the fact that the “prospect of success at
the time of [Wilkins’s] plea was slender.” According to
Wilkins, the not guilty plea did not reflect his voluntary
69
Id. at 659, 661.
70
Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965).
71
Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995).
72
Id. at 1171.
22a
and intelligent choice and was made only for the financial benefit of Ball. In support of his claim, Wilkins
cites to portions of his testimony during sentencing,
when he stated “I’ve been trying to tell those people
from out of the gate that, look, I’m guilty, okay so now
what? Let’s … get on over there and get this over with
sooner rather than later.” When asked if pleading not
guilty had been his idea, he responded “No, absolutely
not.… Well, these guys over here, they convinced me
[to plead not guilty] .…” Wilkins continued to say he
thought Ball wanted to continue to trial in order to accumulate billable hours. Wilkins claims that the “likely
consequence” of Ball’s conduct was the death sentence
Wilkins received.
Our cases which consider claims of an involuntary
not guilty plea require a petitioner to show that, by
pleading guilty, he would have received a lower sentence,73 or to show, in addition to deficient performance,
a “reasonable probability that … the result of the proceeding would have been different.”74
No evidence was presented that the state offered
any deal or concession in return for a guilty plea.
Therefore, even assuming Wilkins has made out a claim
for deficient performance, he has not shown a reasonable probability the result of the proceeding would have
been different. Like the defendant in United States v.
Faubion, Wilkins fails to demonstrate how he was
harmed by going to trial instead of pleading guilty.75
73
See United States v. Faubion, 19 F.3d 226, 229-30 (5th Cir.
1994).
74
See United States v. Herrera, 412 F.3d 577, 580 (5th Cir.
2005).
75
See 19 F.3d at 229-30.
23a
Wilkins has thus failed to satisfy the second prong of
Strickland, that he was prejudiced by Ball’s insistence
on entering a not guilty plea. We therefore find no
showing that reasonable jurists would find the district
court’s assessment of this claim debatable or wrong.76
5.
Incompetency to enter a plea or stand trial
Wilkins contends that Ball was ineffective for failing to raise the issue of incompetency. Wilkins argues
he was incompetent to stand trial because he “lacked
both the ability to make meaningful use of counsel’s advice, and a rational understanding of the gravity of the
proceedings against him.”
This court has observed that “[d]ue process prohibits the prosecution of a defendant who is not competent
to stand trial.”77 The Supreme Court has held that “the
standard for competence to stand trial is whether the
defendant has ‘sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding’ and has ‘a rational as well as factual understanding of the proceedings against him.’”78 Habeas
petitioners claiming incompetency need to bear this
“threshold burden of proof which must be satisfied before the habeas court has a duty to investigate the constitutional challenge [312] further.”79 To obtain habeas
relief based on incompetency, Wilkins must show that
the facts are “sufficient to positively, unequivocally and
76
See Slack, 529 U.S. at 484, 120 S. Ct. 1595.
77
Dunn v. Johnson, 162 F.3d 302, 305 (5th Cir. 1998).
78
Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 125
L.Ed.2d 321 (1993) (quoting Dusky v. United States, 362 U.S. 402,
403, 80 S. Ct. 788, 4 L.Ed.2d 824 (1960)).
79
Bruce v. Estelle, 536 F.2d 1051, 105859 (5th Cir. 1976).
24a
clearly generate a real, substantial and legitimate
doubt as to the mental capacity of the petitioner to
meaningfully participate and cooperate with counsel
during a criminal trial.”80 Once Wilkins has “presented
enough probative evidence to raise a substantial doubt
as to his competency at the time of trial, he must then
prove that incompetency by a preponderance of the evidence.”81
In support of this claim, Wilkins points to a series
of “bad decisions” he made, including: at least one extremely dangerous escape attempt; false confessions to
offenses which never occurred; talking with law enforcement against the wishes of his lawyers; proceeding
to trial despite his desire to plead guilty so he could
“give his attorneys more billable hours”; and, rather
than fighting for his life at the punishment stage, Wilkins told the jury “Just do whatever you do.” In addition, Wilkins claims the record indicates many factors
suggesting brain damage, and quotes a report submitted by Dr. Goodness, a psychologist, which stated,
“Significant impulsivity and attention problems were
noted with his having great difficulty focusing on whatever the task was, he had difficulty screening out ancillary noises in the jail, and his mind often wandered.”
Wilkins cites to jail records which he says indicate he is
“paranoid and schizophrenic,” although those same records indicate that this claim is unsubstantiated because
it was not possible to take Wilkins’s medical history because he became “too defensive to answer questions.”
Wilkins also makes the unsubstantiated claim that the
80
81
Id. at 1058-59.
Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998) (citations omitted).
25a
records in his case “indicate many factors suggesting
brain damage.” According to Wilkins, these facts suggest mental health issues, and Ball, despite being fully
aware of all the facts, was deficient for failing to raise
the issue of incompetency to stand trial. Wilkins now
asks this court for the opportunity to develop evidence
concerning his mental status at the time of trial and
Ball’s deficient decisionmaking.
The district court rejected Wilkins’s assertion that
Ball was ineffective when he failed to raise the issue of
competency to stand trial. Based on the lack of probative evidence tending to show incompetence, we cannot
say that reasonable jurists would find the district
court’s decision debatable or wrong.82 Wilkins has displayed a pattern of bad decisions, as well as erratic behavior, inappropriate jocularity, and an indifferent attitude during the guilt and sentencing phases of his proceedings. But Wilkins offered no support to the district
court that his actions are the result of brain damage
and mental health problems or that he was unable to
consult with counsel or understand the proceedings.
These facts are not enough to raise a debatable issue
that he was incompetent to stand trial.
6.
Failure to conduct reasonable pretrial investigation
Wilkins asserts Ball was ineffective because he
failed to conduct a reasonable pretrial investigation and
preparation for the guilt phase of the trial. In support
of his argument, Wilkins claims that Ball expended “little effort to investigate the merits beyond one crime
scene visit, speaking to the medical examiners and inspecting [313] the physical evidence a few days before
82
See Slack, 529 U.S. at 484.
26a
trial began.” As to the investigators hired by Ball,
Wilkins claims they likewise “did little concerning the
merits beyond visiting the crime scenes, made some inquiries there, served subpoenas, and tried to locate, or
actually interviewed four witnesses from the State’s
witness list.” Wilkins now seeks the time and resources to conduct an independent investigation so he
can raise “legitimate issues” concerning the State’s
case.
Like his IATC claim for unreasonable pretrial mitigation investigation, Wilkins has failed to show any
prejudice resulting from Ball’s purportedly deficient
performance in conducting the pretrial investigation.
Thus, this claim lacks merit because Wilkins has failed
to show a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.”83 We therefore find that
Wilkins has failed to demonstrate that reasonable jurists would find the district court’s denial of this claim
debatable or wrong.84
7.
Failure to strike members of the jury venire
Wilkins next argues Ball was ineffective for failing
to strike two members of the jury venire who were
“unable to render an impartial decision.” Specifically,
Wilkins argues that Ball was ineffective for accepting
juror Robert Lee Evans (“Evans”) because Evans had
a family member who was a prosecutor, had encountered the prosecutor in Wilkins’s case in social settings,
and was “predisposed to sentence [Wilkins] to death
because of the subject matter of his tattoos.” In addi83
See Strickland, 466 U.S. at 6942.
84
See Slack, 529 U.S. at 484.
27a
tion, Wilkins claims Ball was ineffective for accepting
juror Brandy Medford (“Medford”), who Wilkins claims
“had been exposed to unauthorized information about
[Wilkins’s] case, was impaired in her ability to follow
the law, and who was related to a member of the court
personnel.”
“In conducting the deficient performance analysis
in the context of counsel’s failure to strike an allegedly
partial juror, a court first evaluates whether the juror
at issue was actually biased.”85 “The issue of juror bias
is a factual finding.”86 Determining bias focuses on a
juror’s own indication that she has “such fixed opinions
that [she] could not judge impartially [the petitioner’s]
guilt,”87 and whether “her views would prevent or substantially impair the performance of his or her duties as
a juror in accordance with his or her instructions and
oath.”88
We agree with the district court that Wilkins has
not provided evidence that either juror at issue was actually biased. The familial and social relationships
pointed to by Wilkins are insufficient to carry his burden. Thus, Ball’s failure to object to the inclusion of the
two jurors does not constitute deficient performance
within the meaning of Strickland. Wilkins has thus
failed to demonstrate that reasonable jurists would find
85
Seigfried v. Greer, 372 F. App’x 536, 539 (5th Cir. 2010) (per
curiam) (citing Virgil v. Dretke, 446 F.3d 598, 608-10 (5th Cir.
2006)).
86
Id. (citing Virgil, 446 F.3d at 610 n. 52).
87
Patton v. Yount, 467 U.S. 1025, 1035 (1984).
88
United States v. Scott, 159 F.3d 916, 925 (5th Cir. 1998) (citations omitted).
28a
the district court’s assessment of this claim debatable
or wrong.89
[314]
8.
Failure to object to excessive and prejudicial
security measures during the sentencing phase
of trial
In his last Martinez claim, Wilkins argues Ball was
ineffective because he failed to object to excessive and
prejudicial security measures adopted by the trial court
during the sentencing phase of trial. Namely, Wilkins
claims there was an excessive number of guards in
close proximity to him while he testified at the sentencing phase, and that the use of a taser belt as a restraint
with a guard holding the remote nearby and visible to
the jury impaired his defense. Wilkins argues this was
a prejudicial violation to which Ball should have objected, but did not.
The Supreme Court “has stressed the ‘acute need’
for reliable decisionmaking when the death penalty is
at issue.” 90 “The appearance of the offender during the
penalty phase in shackles … almost inevitably implies
to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community—often a statutory aggravator and nearly always a
relevant factor in jury decisionmaking, even where the
State does not specifically argue the point.”91 Thus, it
“inevitably undermines” a jury’s ability to weigh with
accuracy all relevant considerations when it determines
89
See Slack, 529 U.S. at 484.
90
Deck v. Missouri, 544 U.S. 622, 632 (2005) (quoting Monge
v. California, 524 U.S. 721, 732 (1998)).
91
Id. at 633.
29a
whether a defendant deserves death.92 Accordingly,
the Court has concluded that “courts cannot routinely
place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a
capital proceeding.”93 However, a trial judge is permitted “in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling.”94
The record in the instant case makes clear that
Wilkins had attempted escape multiple times: he broke
both ankles after falling thirty feet from the outer wall
of a prison basketball court; at one point, he was discovered to have swallowed a handcuff key; one of the
key events which led to his encounter with murder victims Freeman and Silva was an escape from a Texas
halfway house. The record also indicates a history and
propensity for violence. We therefore conclude that
any objection made by Ball likely would have been futile, as the trial court was well within its discretion to
impose increased security measures during the penalty
phase given Wilkins’s personal history, and the record
does not demonstrate that the presence of the taser
belt was open and obvious to the jury. Thus, his claim
that Ball was ineffective for failing to object fails to satisfy the prejudice prong of Strickland. We see no reason to find that reasonable jurists would find the district court’s denial of this claim debatable or wrong.95
92
Id.
93
Id.
94
Id.
95
See Slack, 529 U.S. at 484.
30a
Conclusion as to IATC claims
In summary, Wilkins has failed to establish cause
for his procedural default under Martinez. Even assuming arguendo that state habeas counsel, Jack
Strickland, was deficient for failing to bring the claims
during state habeas proceedings, none of the underlying IATC claims are “substantial” as required by Martinez.96 Because Wilkins, in each of his eight claims for
[315] relief, has failed to establish both prongs of an ineffective assistance claim under Strickland, we deny
his petition for COA.
IV.
Finally, Wilkins argues that the district court
abused its discretion in denying him funding to pay for
expert and investigative assistance in developing the
merits of his IATC claims, and that the district court’s
refusal to order that Wilkins’s entire legal files be returned to him was an abuse of discretion.
Under the relevant statute, a district court “may
authorize … [and] order the payment of fees and expenses” for “investigative, expert, or other services”
upon a finding that they “are reasonably necessary for
the representation of the defendant.”97 This court construes “reasonably necessary” to mean that a petitioner
must demonstrate “a substantial need” for the requested assistance.98 However, the denial of such funding
“has been upheld ‘when a petitioner has (a) failed to
96
See 132 S. Ct. at 1318.
97
18 U.S.C. § 3599(f).
98
Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004) (quoting
Clark v. Johnson, 202 F.3d 760, 768 (5th Cir. 2000)) (internal quotation marks omitted).
31a
supplement his funding request with a viable constitutional claim that is not procedurally barred, or (b) when
the sought after assistance would only support a meritless claim, or (c) when the sought after assistance
would only supplement prior evidence.’”99 Wilkins offered little to no evidence that the investigative avenues counsel proposed to take hold any significant
chance for success. Our precedent is clear that a habeas petitioner is not entitled to investigative funds under
these circumstances, and the district court did not
abuse its discretion in so holding.
Likewise, the district court did not abuse its discretion when it failed to order that Wilkins’s entire legal
files be returned to him. The record demonstrates that,
after both parties filed motions concerning the disclosure of the files, the district court held a hearing during
which the parties agreed to “continue to negotiate
terms of disclosure” of the material. Thereafter, the
district court dismissed both motions as moot. No subsequent motions were filed on this issue which would
have allowed the district court to take action; it was only raised later as grounds for relief in Wilkins’s habeas
petition. The district court denied relief. It stated that,
during the hearing on the disclosure issue, Wilkins’s
federal habeas counsel “virtually admitted” this claim
lacked substance, and that “[n]othing alleged in the petition causes the [district] court to conclude that [Wilkins’s] federal habeas counsel has not received all parts
of his state court counsels’ files relevant to his federal
habeas petition.” The district court did not abuse its
discretion in failing to order disclosure of files under
these circumstances.
99
Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009) (quoting Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005)).
32a
V.
For the reasons stated above, we find that Wilkins
has failed to demonstrate that reasonable jurists would
find the district court’s assessment of his claims under
Maples and Martinez debatable or wrong. The district
court’s judgment denying additional funding is AFFIRMED and Wilkins’s motion for a COA is DENIED.
33a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS,
FORT WORTH DIVISION
No. 12-cv-270
CHRISTOPHER CHUBASCO WILKINS,
Petitioner,
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent.
January 29, 2013
[2013 WL 335998]
*
*
*
MEMORANDUM OPINION AND ORDER
JOHN McBRYDE, District Judge
[1] Before the court for decision is the petition of
Christopher C. Wilkins (“petitioner”) for a writ of habeas corpus pursuant to the authority of 28 U.S.C.
§ 2254. After having considered such petition, the answer thereto of respondent, Rick Thaler, Director,
Texas Department of Criminal Justice, Correctional
Institutions Division, petitioner’s reply, the state trial,
appeal, and habeas records, and applicable legal author-
34a
ities, the court has concluded that the relief sought by
such petition should be denied.
I.
Background and Procedural History
Petitioner was charged by an indictment filed February 7, 2006, with intentionally or knowingly causing
the October 28, 2005 death of Willie Freeman by shooting him with a firearm, and during the same criminal
transaction causing the death of Mike Silva by shooting
him with a firearm. Wes Ball (“Ball”) had been appointed on December 2, 2005, to represent petitioner, in
accordance with article 26.052(e) of the Texas Code of
Criminal Procedure. Upon motion filed by Ball, Bruce
Cummings was appointed in February 2006 as an investigator “with authority to investigate and seek tangible and testimonial evidence from all witnesses having knowledge or not regarding the accusations that
may be presented in [petitioner’s] case.” Clerk’s R.,
Vol. 1 at 16. Warren St. John (“St. John”) was appointed on February 16, 2008, as second chair attorney for
petitioner, pursuant to the authority of article
26.052(e). Clifford W. Ginn, a licensed private investigator, was appointed on January 8, 2008, for the purpose of investigating the accusations made against petitioner and “to investigate and seek tangible or testamentary evidence from any and all witnesses regarding
the accusations made against [petitioner], except for
the privileged material or work product of the State.”
Id. at 214.
The trial of petitioner commenced February 27,
2008. On March 4, 2008, the jury returned its verdict at
the guilt/innocence stage of his trial, finding petitioner
guilty of the offense of capital murder, as charged in the
indictment. As related by the Court of Criminal Ap-
35a
peals of Texas in its October 20, 2010 unpublished opinion affirming petitioner’s conviction and sentence, the
trial evidence that led to the capital murder conviction
was as follows:
[Petitioner] gave statements to authorities
that described his murders of Willie Freeman
and Mike Silva. Freeman was a homeless man
who lived in Fort Worth. Silva lived outside
Fort Worth, but traveled into the city to purchase drugs. Freeman would show Silva where
to buy drugs, and Silva would share his purchases with Freeman.
In October 2005, [petitioner] left a halfway
house in Houston, stole a truck, and drove to
Fort Worth.
[Petitioner] happened upon
Freeman, who offered to sell him some drugs.
But Freeman and his supplier tricked [petitioner] into buying a piece of gravel instead of a
rock of cocaine. The men took $20 from [petitioner] and laughed at him. So [petitioner] decided to kill Freeman.
[2]
Over the next few weeks, Freeman and
[petitioner] used drugs together. Freeman
apologized for stealing from [petitioner] and
gave him some drugs to make up for it.
On October 27, 2005, [petitioner] told
Freeman that he had some guns and drugs
stashed on the west side of Fort Worth. Silva
agreed to drive Freeman and [petitioner] in
Silva’s vehicle. From the back seat, [petitioner] directed Silva to an area on the west side of
Fort Worth. When they arrived at a deserted
36a
stretch of road, [petitioner] shot Freeman in
the back of the head. Silva stopped the vehicle
and tried to escape, but he got caught in his
seatbelt. [Petitioner] shot him once in the neck
and twice in the head.
[Petitioner] then
climbed into the driver’s seat and began driving with Silva’s body hanging outside of the
vehicle, still entangled in his seatbelt. [Petitioner] finally cut the seatbelt to remove Silva,
and dumped the victims’ bodies in a ditch at the
side of the road.
About a week later, after two high-speed
police chases, Silva’s vehicle was recovered,
and [petitioner] was apprehended.
Wilkins v. Texas, No. AP-75,878, Oct. 20, 2010 Op. at 2-3.
The punishment phase of petitioner’s trial commenced March 4, 2008. On March 11, 2008, the jury
unanimously found, in response to special issues in the
form prescribed by sections 2(b)(1) and (e) (1) of article
37.071 of the Texas Code of Criminal Procedure, (1) beyond a reasonable doubt that there was a probability
that petitioner would commit criminal acts of violence
that would constitute a continuing threat to society,
and (2) that it could not find that, taking into consideration all of the evidence, including the circumstances of
the offense, petitioner’s character and background, and
the personal moral culpability of petitioner, there was a
sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment without
parole rather than a death sentence be imposed. The
trial judge signed a Capital Judgment on March 12,
2008, imposing a death penalty on petitioner.
Ball was appointed as counsel for petitioner on his
direct appeal to the Texas Court of Criminal Appeals.
37a
The trial judge made findings on April 4, 2008, under
article 26.052(k) of the Texas Code of Criminal Procedure, in reference to Ball’s appointment. By its opinion
issued October 20, 2010, the Texas Court of Criminal
Appeals affirmed the trial court’s Capital Judgment
imposing the death sentence on petitioner. Petitioner
then unsuccessfully petitioned the United States Supreme Court for writ of certiorari. Wilkins v. Texas,
131 S. Ct. 2901 (2011).
On March 13, 2008, the trial court appointed Jack
Strickland (“Strickland”) pursuant to article 11.071 of
the Texas Code of Criminal Procedure to represent petitioner for state writ of habeas corpus purposes. While
his direct appeal was pending, petitioner, acting
through Strickland, filed a state application for writ of
habeas corpus in the trial court, raising eighteen
grounds for relief. The State responded. The trial
court adopted the State’s proposed findings of fact and
conclusions of law, recommending to the Texas Court of
Criminal Appeals that the relief sought by petitioner be
denied. Based on those findings and conclusions, as
well as its own review of the record, the Texas Court of
Criminal Appeals denied petitioner’s requested relief.
[3] Petitioner filed on May 22, 2012, the petition for
habeas corpus that is now before the court for decision.
Respondent answered on September 6, 2012, and petitioner replied to the answer on October 10, 2012.
II.
Claims for Relief Asserted by Petitioner
The twenty-one claims for relief asserted by petitioner in the habeas petition under consideration are as
follows:
38a
Claim for Relief Number 1
Petitioner’s counsel failed to conform to prevailing professional norms with regard to the
sentencing phase of trial because they failed to
conduct a reasonable pretrial mitigation investigation, thereby violating Petitioner’s rights
under the Sixth, Eighth and Fourteenth
Amendments.
….
Claim for Relief Number 2
Petitioner was denied the right to unconflicted
counsel at trial, because trial counsel had previously represented the victim of an extraneous
homicide, thereby violating Petitioner’s Sixth
Amendment right to effective assistance of
counsel.
….
Claim for Relief Number 3
Petitioner was denied the right to counsel at a
critical stage of the proceedings, because he
was functionally without counsel during a hearing on whether his trial counsel had labored
under a conflict of interests, having previously
represented the victim of an extraneous homicide of which evidence was introduced by the
State, thereby violating Petitioner’s Sixth
Amendment right to the assistance of counsel.
Claim for Relief Number 4
(A) Petitioner’s plea of not guilty was not voluntary: he had expressed his wish to plead
guilty to counsel, but at counsel’s insistence
the trial on the merits went forward,
39a
thereby violating Petitioner’s Sixth
Amendment right to the effective assistance of counsel and to due process of law
under the Fourteenth Amendment.
(B) Petitioner’s plea of not guilty was not voluntary:
counsel knew that Petitioner
wished to plead guilty but insisted on the
trial going ahead because it would benefit
counsel to do so, thereby violating Petitioner’s Sixth Amendment right to the assistance of unconflicted counsel and to due
process of law under the Fourteenth
Amendment.
….
Claim for Relief Number 5
(A) Petitioner was not competent to enter a
plea or to stand trial since he lacked the
ability to protect his own interests, was
self-destructive and was incapable of making a reasoned choice between legal strategies and options; being subjected to trial
while incompetent violated Petitioner’s
right to due process of law under the Fourteenth Amendment.
(B) Petitioner was not competent to enter a
plea or to stand trial since he lacked the
ability to protect his own interests, was
self-destructive and incapable of making a
reasoned choice between legal strategies
and options; counsel’s decision to continue
to trial while Petitioner was incompetent
violated Petitioner’s Sixth Amendment
right to the effective assistance of counsel
40a
and to due process of law under the Fourteenth Amendment.
[4]
….
Claim for Relief Number 6
Petitioner’s counsel failed to conform to prevailing professional norms with regard to the
trial on the merits because they failed to conduct reasonable pretrial preparation and investigation, thereby violating Petitioner’s rights
under the Sixth, Eighth and Fourteenth
Amendments.
….
Claim for Relief Number 7
Petitioner’s counsel failed to conform to prevailing professional norms because they failed
to strike two venire persons who would be unable to render an impartial verdict or sentence,
thereby violating Petitioner’s rights under the
Sixth, Eighth and Fourteenth Amendments.
….
Claim for Relief Number 8
Petitioner was denied the right to a public trial,
to be present during the course of his own trial,
and denied the right to counsel at a critical
stage of the proceedings, when the trial court
issued supplementary jury instructions in response to notes from the jury without notifying
Petitioner or counsel or reconvening the court,
thereby violating Petitioner’s rights under the
Sixth and Fourteenth Amendment.
41a
….
Claim for Relief Number 9
The presentation of factually inaccurate testimony violated Petitioner’s right to Due Process
under the Eighth and Fourteenth Amendments
to the United States Constitution.
….
Claim for Relief Number 10
Petitioner’s counsel failed to conform to prevailing professional norms with regard to the
sentencing phase of trial because they failed to
object to excessive and prejudicial security
measures adopted by the trial court, which
were not justified by any essential state interest specific to Petitioner, in violation of Petitioner’s rights under the Fifth, Sixth, Eighth
and Fourteenth Amendments.
….
Claim for Relief Number 11
The jury instruction that mitigating evidence
must reduce “moral blameworthiness” violates
the Eighth Amendment by precluding consideration of evidence regarding a defendant’s
character and background that a juror could
find to be mitigating.
….
Claim for Relief Number 12
Petitioner was denied the right to present evidence in his own defense when the trial court
excluded evidence of a confession to an extraneous murder, thereby violating Petitioner’s
42a
right under the Sixth and Fourteenth Amendments to a meaningful opportunity to present a
defense.
….
Claim for Relief Number 13
Petitioner’s challenge to the admission of one of
his statements to law enforcement was erroneously denied; the State had failed to meet its
burden of showing a voluntary waiver of counsel, thereby violating Petitioner’s rights under
the Fifth Amendment.
….
Claim for Relief Number 14
Petitioner’s challenges to two potential jurors
were erroneously denied even though one
would have automatically found Petitioner to
be a future danger and the other would have
placed a burden on Petitioner to present evidence in his defense, thereby violating Petitioner’s rights under the Sixth, Eighth and
Fourteenth Amendments.
[5]
….
Claim for Relief Number 15
Petitioner’s rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated by the failure of Texas
law to require grand juries to pass on the death
penalty eligibility factors in this case.
….
43a
Claim for Relief Number 16
Petitioner’s rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the
United States Constitution were violated because the jury was misled by instructions concerning the so-called “10-12 rule” in the Texas
death penalty statute.
….
Claim for Relief Number 17
Petitioner’s rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the
United States Constitution were violated because the Texas death penalty scheme fails to
instruct the jury that if a single juror “holds
out” for life the defendant will receive a sentence of life imprisonment by operation of law.
….
Claim for Relief Number 18
Petitioner’s rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the
United States Constitution were violated because the Texas death penalty scheme does not
place the burden of proof on the state on the
mitigation special issue.
….
Claim for Relief Number 19
Petitioner’s rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the
United States Constitution were violated because the Texas death penalty scheme fails to
instruct the jurors that a “Yes” answer to the
44a
mitigation evidence special issue is required
unless the jurors determined that the aggravating evidence outweighs the mitigating evidence.
….
Claim for Relief Number 20
Petitioner’s rights under the Eighth and Fourteenth Amendments to the United States Constitution were violated because the Texas
death penalty scheme fails to require the jury
to consider mitigation in answering special issue
two.
….
Claim for Relief Number 21
Petitioner’s rights under the Eighth and Fourteenth Amendments to the United States Constitution were violated because the Texas
death penalty scheme fails to adequately define
“mitigating circumstances.”
Pet. at 24, 92, 101, 105, 118, 127, 136, 141, 148, 151, 154,
162, 165, 166, 174, 177, 181, 183, 187, 189, and 190.
III.
Petitioner’s Implied Complaints About Earlier Rulings
of This Court
Over the years, the typical grounds for federal habeas relief have evolved from primarily complaints
about state trial court conduct, then mainly to complaints about the conduct of trial counsel, and then to
criticism of the adequacy of the petitioner’s state habeas counsel. The petition under consideration goes a
step further with what are, in effect, complaints about
previous rulings of this court in this habeas action that
45a
petitioner maintains have prevented him from adequately presenting his petition.
Petitioner starts at the bottom of page 5, going
through most of page 6, of his petition with an implicit
criticism of this court’s failure to grant a motion he filed
before he filed his petition, requesting almost
$92,000.00 of government funds to pay for expert and
investigative assistance.1 After having considered the
motion and respondent’s response thereto, the court
denied the motion by order signed June 19, 2012, on the
ground that the court was “unable to find that the requested investigative, expert, and other services for
which petitioner has sought funding are reasonably
necessary for the representation of petitioner in this 28
U.S.C. § 2254 proceeding.” June 19, 2012 Order. Petitioner failed to provide in his motion for additional
funds any meaningful specificity as to the precise information he would expect to develop through any such
assistance or any plausible interpretation of any part of
22 U.S.C. § 2254 that would have authorized an order of
1
In a document petitioner filed on May 25, 2012, he detailed
the funds he was seeking and the uses he proposed to make of
them as follows:
Fact Investigator
Gilberto ‘Gil’ Torrez/Taurus Investigations
$30,000
Mitigation Specialist
Gulf Region Advocacy Center
$37,500
Neuropsychologist
Dr. Dale G. Watson
$22,035
Prison Classification and Conditions Expert
Frank AuBuchon
GRAND TOTAL:
$ 2,250
$91.785
Appl. filed by Pet’r on May 25, 2012 at 18.
46a
the kind requested by petitioner. This court remains
convinced that it was correct in denying petitioner’s
request for virtually unlimited money to start his criminal proceedings all over again.
[6] Next, on pages 6-10 of his petition, petitioner
complains that he still has not received the files of his
former state court counsel to be used by his current
habeas counsel in the preparation of his federal petition. Implicit in petitioner’s presentation on this issue
is a criticism of this court for not granting motions he
filed May 1, 2012, titled “Motion for Order to Preserve
Evidence and Directing Release of Client’s Legal Files”
and on May 14, 2012, titled “Motion for Order to Release Petitioner’s Files to His Current Counsel,” respectively. The court took seriously the contention that
petitioner’s state court counsel was refusing to turn
over to his federal habeas counsel needed file material;
and, the court, after having received a written response
from state court counsel, conducted a hearing by telephone on May 31, 2012. At that hearing, the court
learned that petitioner’s claims that his federal habeas
attorney was being denied files of his state court counsel lacked substance. His federal habeas counsel virtually admitted as much during the hearing. The court
denied petitioner’s motions because, based on what the
court learned during the telephone conference hearing,
the issue was moot. That was the last this court heard
of that matter until receipt of the petition now under
consideration. Nothing alleged in the petition causes
the court to conclude that petitioner’s federal habeas
counsel has not received all parts of his state court
counsels’ files relevant to his federal habeas petition.
Petitioner’s federal habeas counsel does not make
clear in his petition the true goal of his current complaints that he needed more money for an expert and
47a
investigative assistance and that he still has not received all of state court counsels’ files other than to
suggest that the existence of those complaints could, if
all else fails, provide petitioner an avenue for further
complaint. See Pet. at 3, 6, 10, 136, 192. Petitioner has
presented nothing to cause this court to think that it
erred in its orders denying additional funding and ruling moot petitioner’s claim that he had not received his
legal files from state court counsel. To whatever extent
petitioner might be seeking relief because of either of
those rulings, id. at 192, such relief is being denied.
IV.
Standards Applicable to Petitioner’s Claims for Relief
A. General Standards
In pertinent part, 28 U.S.C. § 2254 provides that
the only ground for relief thereunder is that the petitioner “is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). A petition brought under § 2254
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States; or
[7]
(2) resulted in a decision that was based on
an unreasonable determination of the facts
48a
in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
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 of the United
States 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, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the
case. Williams, 529 U.S. at 407-08.
In a § 2254 proceeding such as this, “a determination of a factual issue made by a State court shall be
presumed to be correct” and the petitioner “shall have
the burden of rebutting the presumption of correctness
by clear and convincing evidence.”
28 U.S.C. §
2254(e)(1). A federal court may assume the state court
applied correct standards of federal law to the facts,
unless there is evidence that an incorrect standard was
applied. Townsend v. Sain, 372 U.S. 293, 314 (1963)2;
Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir.
2002).
B. Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to
the effective assistance of counsel at trial. U.S. CONST.
2
The standards of Townsend v. Sain have been incorporated
into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n.2
(5th Cir. 1981).
49a
amends. VI, XIV; Strickland v. Washington, 466 U.S.
668, 685-86 (1984). An ineffective assistance claim is
governed by the familiar standards set forth in Strickland. In order to prevail on an ineffective assistance of
counsel ground, petitioner must show, first, that his
counsel’s performance was deficient, i.e., that his counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed to petitioner by the
Sixth Amendment, and, second, that the deficient performance prejudiced her defense, i.e., that his counsel’s
errors were so serious as to deprive him of a fair trial, a
trial whose result is reliable. Id. at 687. The proper
standard for measuring the attorney’s performance is
that of reasonably effective assistance. Id.
Both prongs of the Strickland test must be met to
demonstrate ineffective assistance. Id. at 687. To establish the first prong, petitioner must overcome a
strong presumption that her counsel’s conduct falls
within the wide range of reasonable professional assistance or sound trial strategy. Id. at 689. It is not
enough to show that some, or even most, defense lawyers would have handled the case differently. Green v.
Lynaugh, 868 F.2d 176, 178 (5th Cir. 1989). For the
second prong, petitioner must show that his counsel’s
errors were so serious as to “deprive [him] of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S.
at 687.
[8] Where a petitioner’s ineffective assistance
claims have been reviewed on their merits and denied
by the state courts, federal habeas relief will be granted only if the state courts’ decision was contrary to or
involved an unreasonable application of the standards
set forth in Strickland. See Bell v. Cone, 535 U.S. 685,
698-99 (2002); Santellan v. Dretke, 271 F.3d 190, 198
(5th Cir. 2001).
50a
V.
Petitioner’s Unexhausted Claims for Relief
A. Petitioner is Barred from Asserting His Unexhausted Claims
Petitioner acknowledges that he failed to exhaust
his state court remedies with regard to his claims for
relief 1 through 11 by not presenting them to the Texas
Court of Criminal Appeals for review either on direct
appeal or during his state habeas proceedings. Reply
at 1-2. With specified exceptions, 28 U.S.C. § 2254(b)(1)
prohibits the grant of an application for writ of habeas
corpus on behalf of a person in custody pursuant to a
judgment of a state court unless he has first exhausted
the remedies available to him in the courts of that
state.3 In Whitehead v. Johnson, 157 F.3d 384, 387 (5th
Cir. 1998), the Fifth Circuit explained:
A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all
claims in state court prior to requesting federal
collateral relief. A federal habeas petition
should be dismissed if state remedies have not
3
Section 2254(b)(1) of title 28 provides as follows:
(b)(1) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted unless it appears
that—
(A) the applicant has exhausted the remedies
available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
51a
been exhausted as to all of the federal court
claims.
The exhaustion requirement is satisfied
when the substance of the federal habeas claim
has been fairly-presented to the highest state
court. In Texas, the highest state court for
criminal matters is the Texas Court of Criminal
Appeals. A federal court claim must be the
“substantial equivalent” of one presented to the
state courts if it is to satisfy the “fairly presented” requirement.
(footnotes omitted).
However, because the exhaustion requirement refers only to remedies still available at the time of the
federal petition, it is satisfied “if it is clear that the habeas petitioner’s claims are now procedurally barred
under state law.” Gray v. Netherland, 518 U.S. 152, 161
(1996) (internal citations omitted) (quoting Castille v.
Peoples, 489 U.S. 346, 351 (1989)); Graham v. Johnson,
94 F.3d 958, 969 (5th Cir. 1996) (“exhaustion is not required if it would plainly be futile”). This is the exception upon which petitioner relies to satisfy the exhaustion requirement as to his first eleven claims. If petitioner were now to return to state court and attempt to
exhaust his first eleven claims for relief, he would be
barred from raising those claims in a successive state
court application by reasons of the provisions of section
5(a) of article 11.071 of the Texas Code of Criminal Procedure.4
4
Section 5(a) of article 11.071 of the Texas Code of Criminal
Procedure reads as follows:
(a) If a subsequent application for a writ of habeas
corpus is filed after filing an initial application, a court
52a
Nevertheless, such a claim is subject to denial in
federal court as procedurally defaulted. Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991). In Coleman,
the court explained:
[9]
This Court will not review a question of
federal law decided by a state court if the decision of that court rests on a state law ground
that is independent of the federal question and
adequate to support the judgment.
* * * * *
We have applied the independent and adequate state ground doctrine not only in our own
may not consider the merits of or grant relief based on
the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been
and could not have been presented in a timely initial application or in a previously considered application filed
under this article or Article 11.07 because the factual or
legal basis for the claim was unavailable on the date the
applicant filed the previous application;
(2) by a preponderance of the evidence, but for a
violation of the United States Constitution no rational
juror could have found the applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror
would have answered in the state’s favor one or more of
the special issues that were submitted to the jury in the
applicant’s trial under Article 37.071, 37.0711, or 37.072.
Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a). Petitioner has not
attempted to show that any of the section 5(a) exceptions would
allow state court review of any of his first eleven claims for relief.
53a
review of state court judgments, but in deciding whether federal district courts should address the claims of state prisoners in habeas
corpus actions. The doctrine applies to bar federal habeas when a state court declined to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural
requirement. In these cases, the state judgment rests on independent and adequate state
procedural grounds.
Id.
Just as in Gray, “the procedural bar which gives
rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence,
and thus prevents federal habeas corpus review of the
defaulted claims, unless petitioner can demonstrate
cause and prejudice for the default.” 518 U.S. at 162.
See also Nichols v. Scott, 69 F.3d 1255, 1280 (5th Cir.
1995) (barring claim on basis that claim would be
barred in state court if it were presented there).
The showing petitioner is required to make at this
time is that he has cause5 for his state court procedural
default and has suffered actual prejudice as a result of
the alleged violation of federal law or that the failure of
this court to consider his claims will result in a fundamental miscarriage of justice. In Coleman, the Supreme Court explained:
In all cases in which a state prisoner has
defaulted his federal claims in state court pur5
To establish “cause,” petitioner must show that “some objective factor external to the d-fense” prevented him from raising
the claim on direct appeal. United States v. Guerra, 94 F.3d 989,
993 (5th Cir. 1996).
54a
suant to an independent and adequate state
procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice.
501 U.S. at 750.
Petitioner seeks to avoid a procedural bar from
federal habeas review of his claims one through eleven
by reliance on the holding of the Supreme Court in
Martinez v. Ryan, 132 S. Ct. 1309 (2012), arguing that
his state habeas counsel’s alleged inadequacies constitute, under the Martinez holding, cause to excuse petitioner’s procedural default.
The Court held in Martinez that, under the Martinez facts and applicable Arizona state law,
“[i]nadequate assistance of counsel at initial review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at
trial,” Martinez, 132 S. Ct. at 1315. The Court limited
the effect of its holding by stating that the rule in
Coleman, 501 U.S. at 755, that attorney negligence in
post-conviction proceedings does not establish cause
“remains true except as to initial-review collateral proceedings for claims of ineffective assistance of counsel
at trial,” Martinez, 132 S. Ct. at 1319-21.
[10] Among the reasons why Martinez does not
provide comfort to petitioner are the holdings of the
Fifth Circuit that Martinez does not apply to a case
governed by Texas law. Ibarra v. Thaler, 687 F.3d 222,
227 (5th Cir. 2012); Adams v. Thaler, 679 F.3d 312, 317
n.4 (5th Cir. 2012).
55a
B. Even if Martinez Applied, It Would Not Benefit
Petitioner
Even if the court were to assume, arguendo, that
Martinez applies to petitioner’s unexhausted claims for
relief, nevertheless he would be limited out of those to
his claims for relief numbers 1 through 7 and 10, which
are the ones alleging directly or indirectly ineffectiveassistance-of-counsel against his trial counsel. Because
of the possibility that the Supreme Court will disagree
with the Fifth Circuit on applicability of the Martinez
principle to Texas,6 the court is further addressing petitioner’s unexhausted claims l through 7 and 10. But
first, the court addresses the contention of petitioner
that his state habeas counsel was inadequate.
1.
Petitioner Has Made No Showing That His
State Habeas Counsel Was Not Adequate
For petitioner to successfully invoke Martinez, if it
were to be applicable in Texas, he would be required to
show that Strickland did not provide him adequate assistance of counsel during petitioner’s state habeas proceeding.
Petitioner’s conclusory complaint is that Strickland
had conflicts of interest that prevented him from pursuing, and even caused him to hinder, the proper litigation of petitioner’s claims in his state habeas petition.
6
The Supreme Court has granted a writ of certiorari in Trevino v. Thaler, No. 11-10189, 133 S. Ct. 524 (Oct. 29, 2012), to address the question of whether the exception to procedural bar created in Martinez v. Ryan, 132 S. Ct. 1309 (2012), applies to cases
arising out of the Texas state courts. The Court has also stayed
executions in cases presenting the same issue, but has not acted on
the petitions for writ of certiorari in those cases. See Balentine v.
Thaler, No. 12-5906 (12A173), 133 S. Ct. 90 (Aug. 22, 2012); Havnes
v. Thaler, No. 12-6760 (12A369), 133 S. Ct. 498 (Oct. 18, 2012).
56a
Pet. at 11-13. Not only does the state habeas record not
support petitioner’s conclusory assertions of deficient
performance, the record demonstrates that Strickland
urged, and fully briefed, eighteen grounds for relief in
petitioner’s state habeas petition. State Habeas R. at
3-98. The mere fact that Strickland did not raise an allegation or allegations that petitioner now contends he
should have raised does not render Strickland’s assistance ineffective under the Strickland standards. See
Smith v. Robbins, 528 U.S. 259, 285 (2000); Jones v.
Barnes, 463 U.S. 745, 751-53 (1983); Engle v. Isaac, 456
U.S. 107, 134 (1982). Petitioner’s conclusory, argumentative, and factually unsupported attacks on the professional reputation and performance of petitioner’s state
habeas counsel do not begin to satisfy the Martinez
standard; moreover, the state habeas record affirmatively demonstrates that Strickland provided petitioner
proper, indeed vigorous, state habeas representation.
Thus, even if petitioner had the benefit of Martinez, he
could not establish cause that would excuse his unexhausted claims from being procedurally defaulted.
2.
Petitioner’s Unexhausted Ineffective Trial
Counsel Claims Would Be Found to Be Without Merit in Any Event
Even if the court were to further assume, arguendo, the correctness of petitioner’s contentions as to the
quality of his state habeas representation, he still would
not be entitled to be excused of his procedural bar because the unexhausted claims of ineffective trial counsel are meritless. As well as overcoming the hurdle of
establishing cause under Martinez, petitioner would
also have to show the merits of his underlying claims in
order to overcome a procedural default. Martinez, 132
S. Ct. at 1318-19. Petitioner has failed to make such a
57a
showing as to any of his unexhausted claims that includes an assertion of ineffective trial counsel.
a.
Claims for Relief 1 and 10
[11] Petitioner’s claims 1 and 10 bear on the effectiveness of his trial counsel at the punishment phase of
his trial. Claim for relief 1 is directed to the adequacy
of trial counsel’s pretrial mitigation investigation, and
claim number 10 complains of trial counsel’s conduct in
relation to security measures adopted by the trial court
during the punishment phase. Petitioner fails in his petition to demonstrate that trial counsel’s performance
was constitutionally ineffective as to either of those
matters or that any alleged deficiency had any prejudicial effect on the outcome of the punishment phase.
For petitioner to establish that his trial counsel was
ineffective by virtue of a failure to investigate, he must
do more than merely allege a failure to investigate—he
must show, inter alia, “with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.” United States v. Green
882 F.2d 999, 1003 (5th Cir. 1989). Strategic choices
made by counsel after thorough investigation of law
and facts cannot normally be challenged; and, even
strategic choices made after an investigation that might
be characterized as incomplete are reasonable to the
extent that professional judgments, reasonably exercised, support the limitations on investigation. Strickland, 466 U.S. at 699. Trial counsel was not required to
investigate every conceivable line of mitigating evidence, no matter how unlikely the investigation would
assist petitioner at sentencing; nor is trial counsel required to present mitigating evidence at sentencing in
every case. Wiggins v. Smith, 539 U.S. 510, 533 (2003).
For a conscious and informed decision on trial tactics
58a
and strategy to form the basis for a claim of ineffective
assistance of counsel, the petitioner must show that the
strategy was so poor that it robbed him of any opportunity for a fair trial. Smith v. Cockrell, 311 F.3d 661,
668 (5th Cir. 2002). Of course, trial counsel’s decision to
pursue one course rather than another is not to be
judged in hindsight; and, the fact that a particular
strategy proved to be unsuccessful does not establish
that counsel’s assistance was ineffective. Gray v. Lucas,
677 F.2d 1086, 1094 (5th Cir. 1982).
Trial counsel sought and obtained the assistance of
an investigator, Bruce Cummings, in February 2006
“with authority to investigate and seek tangible and
testimonial evidence from all witnesses having
knowledge or not regarding the accusations that may
be presented in [petitioner’s] case”. Clerk’s R., Vol. 1
at 16. Around March 2006, trial counsel obtained the
services of mitigation specialist Melissa Robinson. Pet.
Ex.’s 5, 13.
When Cummings and Robinson were replaced
(Robinson due to health problems, Pet. Ex. 6), trial
counsel obtained the services of two investigators in
January 2008, Cliff Ginn and Doug Lamberson, as replacement for Cummings, and hired Dr. Kelly Goodness
to act as both a mitigation specialist and a forensic psychologist. Clerk’s R ., Vol. 1 212-14, Pet. Ex.’s 11-16, 19,
20, 24 at 2-3, 25, 28. The record shows that Ginn, Lamberson, and Goodness worked diligently at mitigation
investigation. Pet. Ex.’s 11-16, 19, 20, 24 at 2-3, 25, 28.
Not only does the record contain substantial evidence
that trial counsel caused timely and reasonable investigation to be conducted, the record shows that nine witnesses were called on petitioner’s behalf at the punishment hearing.
59a
[12] Petitioner has provided no evidence that any
of the experts employed by petitioner’s trial counsel did
not properly perform the services for which they were
hired. Petitioner’s conclusory allegations complaining
of the conduct of trial counsel in advance of and at the
punishment phase of his trial simply are not sufficient
to show that petitioner suffered prejudice by reason of
any failure on the part of trial counsel in relation to investigation leading to the sentencing process. Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (Mere conclusory allegations do not raise a constitutional issue in a
habeas case); Ross v. Estelle, 694 F.2d 1008, 1011 (5th
Cir. 1993). Having failed to provide any evidence as to
what his trial counsel would have discovered by further
investigation, or that the investigation done by trial
counsel was, in fact, inadequate, petitioner cannot overcome the strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance, Strickland, 466 U.S. at 687, 689, nor can petitioner show that more, or a different, investigation
would have altered the outcome.
The complaint petitioner makes by his tenth claim
for relief is that his trial counsel did not object to “excessive and prejudicial security measures adopted by
the trial court, which were not justified by any essential state interest specific to [him].” Pet. at 151-53. He
asserts that the “excessive number of guards,” one of
which was holding the control to a taser belt worn by
petitioner, was a prejudicial violation to which petitioner’s trial counsel should have, but did not, object. Id.
Petitioner provides no reference to anything in the
state court record that would support his recitations
concerning the security measures of which he complains; and, the court’s independent search has not
turned up anything in the record supporting petition-
60a
er’s factual assertions relative to what he considers to
be excessive security measures. Thus, if for no other
reason, his tenth claim for relief should be denied as being unsupported factually by anything in the record to
which petitioner has called this court’s attention.
The court would add that even if the record did
provide factual support for petitioner’s tenth claim for
relief, petitioner has provided no factual or legal basis
for a conclusion that an objection by his trial counsel to
those security measures would have been effective.
The case law suggests that any such objection probably
would have been futile. See Deck v. Missouri, 544 U.S.
622, 633 (2005); United States v. Joseph, 333 F.3d 587,
591 (5th Cir. 2003) (citing United States v. Hope, 102
F.3d 114, 117 (5th Cir. 1996)). The trial court record
makes clear that petitioner had a propensity for violence and had before attempted an escape. Thus, his
trial counsel would have gained nothing by an objection
to security measures of the kind petitioner describes.
Moreover, petitioner presents nothing showing
that his trial counsel’s failure to object to the security
measures somehow affected the outcome of petitioner’s
trial. Pure speculation that it might have is not sufficient to satisfy the prejudice prong of Strickland. Consequently, his ineffective assistance claim as to the security measures fails for the additional reason that it
does not satisfy either prong of the Strickland test.
b. Claim for Relief 2
[13] Petitioner’s second claim for relief has to do
with an alleged conflict of interest that petitioner
claims one of his trial counsel had because, twenty
years earlier, the trial counsel had represented a third
murder victim of petitioner in connection with a bur-
61a
glary charge.7 Petitioner originally raised that issue
with the Texas Court of Criminal Appeals prior to his
direct appeal proceedings in a “Motion to Fire Direct
Appeal Attorney,” and the Court of Criminal Appeals
remanded the case to the trial court to investigate.
Wilkins v. State, No. AP-75,878, Per Curiam Order
dated February 11, 2009. After conducting a hearing at
which trial counsel and petitioner both testified, Rep.’s
R. of Mar. 9, 2009, Hr’g at 6-32, the trial court concluded that trial counsel had no conflict of interest notwithstanding his representation of the third murder victim
twenty years earlier, id. at 27. Nevertheless, the trial
court allowed trial counsel to withdraw as direct appeal
counsel and replaced him with another attorney. Id. at
27-28. Petitioner did not request relief on this claim either on direct appeal or during his state habeas proceeding.
For petitioner to establish that he was denied effective assistance of counsel because of counsel’s conflict of interest, he was required to prove that (1) counsel actively represented conflicting interests, and (2)
that an actual conflict of interest adversely impacted
his lawyer’s performance. Cuyler v. Sullivan, 446 U.S.
335, 348-49 (1980); Ramirez v. Dretke, 396 F.3d 646, 649
(5th Cir. 2005). If a petitioner fails to make such a
showing, he has failed to establish the constitutional
predicate for his claim of ineffective assistance of counsel. Cuyler, 446 U.S. at 350; see also Mickens v. Taylor,
535 U.S. 162, 175-76 (2002).
7
At the punishment phase of petitioner’s trial, there was evidence, including petitioner’s confession, that petitioner murdered
the other victim two days prior to committing the murders for
which he was tried.
62a
Here, petitioner could not possibly demonstrate
that trial counsel actively represented conflicting interests since the murder victim he had represented was
deceased and had not been represented by trial counsel
in twenty years. Pet. Ex. 24 at 4. Nor has any evidence been adduced by petitioner that his trial counsel
had any relationship with the murder victim’s family or
that he even remembered representing the murder victim. Id. Finally, there is no suggestion in anything adduced by petitioner that, even if trial counsel’s representation of the murder victim could be considered a
conflicting interest, it adversely affected his legal representation of petitioner.
Petitioner’s second claim for relief would be without merit even if he were permitted to pursue it.
c.
Claim for Relief 3
Petitioner’s third claim for relief relates to the
same unindicted murder that was the subject of his
second claim for relief. The complaint this time is that
petitioner was de facto without counsel during the
hearing that was convened to ascertain whether trial
counsel had a conflict of interest affecting the adequacy
of his representation of petitioner. As is true of his
second claim conflict-of-interest allegation, petitioner
never raised the allegation under discussion either on
direct appeal or during his state habeas proceeding.
This claim is without merit because the pre-appeal
hearing about which petitioner complains was not at a
critical stage.
[14] While the Sixth Amendment provides that in
all criminal prosecutions, the accused enjoys the right
to have the assistance of counsel for his defense, it is
settled that the Amendment means that “a defendant is
entitled to be represented by counsel at all critical
63a
stages of a criminal proceeding against him.” Mempa v.
Rhay, 389 U.S. 128, 134 (1967); see also United States v.
Taylor, 933 F.2d 307, 312 (5th Cir. 1991). The Supreme
Court has made clear that a “critical stage” in the proceedings is only one at which “rights are preserved or
lost.” White v. Maryland, 373 U.S. 59, 60 (1963). Fifth
Circuit law is that critical stages of a criminal proceeding are those stages of a proceeding at which “the substantial rights of a defendant may be affected.” McAfee
v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011); Burdine v.
Johnson, 262 F.3d 336, 347 (5th Cir. 2001). At the hearing of which petitioner complains, no substantial rights
were affected, and no rights were “preserved or lost.”
Wright, 373 U.S. at 60. The goal of the hearing was
solely to determine whether petitioner’s trial counsel
should continue representing him on direct appeal. See
Wilkins v. State, No. AP-75,878, Per Curiam Order
dated February 11, 2009.
Moreover, petitioner hardly has basis to complain
of his representation at the hearing because he ended
up receiving what he was seeking—new counsel on his
appeal. Petitioner cannot legitimately claim that anything happened that would render “the adversary process itself unreliable.” United States v. Russell, 205
F.3d at 768, 771 (5th Cir. 2000).
Petitioner’s third claim would fail for lack of merit
even if it could be urged notwithstanding its lack of exhaustion.
d. Claim for Relief 4
By his fourth claim for relief, petitioner advances
the somewhat absurd contention that his plea of not
guilty was not voluntary and that his trial counsel knew
that he wished to plead guilty but insisted on going
forward with a trial so that the attorneys would benefit
64a
financially from the trial. The court does not need to
devote significant time or space to this claim. No harm
came to petitioner from having gone to trial notwithstanding a wish to plead guilty, if he had such a wish,
because the end result was the same—the jury found
him guilty of capital murder, just as he would have
been found guilty of capital murder if he had pleaded
guilty. Therefore, this claim for relief would be without
merit even if it could be asserted.
e.
Claim for Relief 5
Petitioner’s fifth claim for relief asserts that he was
not competent to enter a plea or to stand trial because
he “lacked the ability to protect his own interests, was
self-destructive and incapable of making a reasoned
choice between legal strategies and options.” Pet. at
118. Yet, not the slightest probative evidence has been
presented, or suggested, in support of such a contention. His reference to what he refers to as bad decisions he made prior to the trial and to two reports indicating he had some neuropsychological deficits does not
satisfy the burden he had “to positively, unequivocally,
and clearly generate a real, substantial and legitimate
doubt as to his mental competency at the time of trial.”
Dunn v. Johnson, 162 F.3d 302, 306 (5th Cir. 1998) (internal quotations omitted). See also Carter v. Johnson,
131 F.3d 452, 460 (5th Cir. 1997). Petitioner’s threshold
burden to successfully urge such a ground is “extremely heavy.” Miller-El v. Johnson, 261 F.3d 445, 454 (5th
Cir. 2001), rev’d on other grounds, 537 U.S. 322 (2003);
Johnson v. Estelle, 704 F.2d 232, 238 (5th Cir. 1983).
Not only must petitioner present enough probative evidence to raise a substantial doubt as to his competency
at the time of trial, he must then prove his incompetency by a preponderance of the evidence. Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998).
65a
[15] The two-part test for competence is (1) whether the defendant has “a rational as well as factual understanding of the proceedings against him” and (2)
whether the defendant “has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding.” Indiana v. Edwards, 554 U.S.
164, 170 (2008) (citing Dusky v. United States, 362 U.S.
402 (1960) (emphasis in original).
If the evidence before the trial court presents a bona fide doubt as to a defendant’s competency, procedural due process requires the trial court to hold a
competency hearing before proceeding with trial. Pate
v. Robinson, 383 U.S. 375, 385 (1966). A bona fide
doubt is a real, substantial, and legitimate doubt.
Pedrero v. Wainwright, 590 F.2d 1383, 1388 (5th Cir.
1979). A habeas petitioner carries the burden of showing by clear and convincing evidence that a Pate violation occurred at the state criminal proceeding. On collateral review, the test is “whether, in light of what was
then known [by the state trial court], the failure to
make further inquiry into [petitioner’s] competence to
stand trial, denied him a fair trial.” Drope v. Missouri,
420 U.S. 162, 174-75 (1975).
Petitioner does not adduce any evidence to indicate
that either a Dusky or a Pate violation occurred in petitioner’s case. The mere fact that a defendant made
poor decisions does not make him incompetent to stand
trial. If it did, almost any defendant could avoid prosecution simply by pointing to all the bad decisions he
made during his life. While petitioner’s behavior prior
to and during trial demonstrated a blatant disregard
for authority and of the proceedings against him, his
behavior cannot be said to constitute proof of his inability to understand the proceedings or consult with his
attorneys.
66a
Even if it could be raised, petitioner’s claim number
5 would be without merit.
f.
Claims for Relief 6 and 7
Petitioner’s sixth and seventh claims contend that
his trial counsel was ineffective at the guilt/innocence
phase of his trial. The sixth claim makes the broad assertion that his counsel failed to conduct a reasonable
pretrial preparation and investigation, and his seventh
claim attributes ineffectiveness to his counsel for not
striking two venirepersons who petitioner now contends were unable to render an impartial verdict or
sentence. In addition to the procedural bar previously
discussed, these claims must fail because petitioner
does not demonstrate how counsel’s alleged inaction
resulted in a deprivation of the right to effective assistance of counsel under the Strickland standard.
As to the general failure to prepare and investigate
for trial claim, petitioner virtually admits that his petition is deficient, contending that he “is not currently in
a position to allege any specific claim” due to reasons
beyond his control. Pet. at 135-36. He fails to provide
any evidence as to what his trial counsel should have
discovered, and he fails to demonstrate that the investigation done by his trial counsel was in fact deficient.
Jordan v. Dretke, 416 F.3d 363, 371 (5th Cir. 2005) (confirming that the burden of affirmatively proving prejudice rests with the petitioner and that the state does
not have the burden to disprove prejudice). Petitioner
has not overcome the strong presumption that counsel’s
pretrial conduct came within the wide range of reasonable professional assistance, nor has he provided evidence that the result of his proceeding would have been
different absent any alleged deficiency. Consequently,
he cannot satisfy either prong of Strickland.
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[16] Similarly, petitioner has failed to make any
showing that his trial counsel’s performance was deficient in respect to non-use of peremptory challenges on
the two jurors to which he refers in his seventh claim.
He has failed to offer any proof that “counsel’s representation fell below an objective standard of reasonableness under then-prevailing professional standards.”
Richards v. Ouarterman, 566 F.3d 553, 564 (5th Cir.
2009) (internal quotation marks and citations omitted).
For a court to determine whether trial counsel’s failure
to strike a particular juror constitutes deficient performance, the court must first evaluate whether the juror at issue was actually biased. Virgil v. Dretke, 446
F.3d 598, 608-10 (5th Cir. 2006); see also Seigfried v.
Greer, 372 F. App’x 536, 539 (5th Cir. 2010) (unpublished). The determination of a potential juror’s bias centers on a juror’s own indication that he has “such
fixed opinions that he cannot judge impartially respondent’s guilt.” Patton v. Yount, 467 U.S. 1025, 1035
(1984). Failing such a showing, a petitioner cannot
demonstrate that he was denied his Sixth Amendment
right to a fair and impartial jury. See Smith v. Phillips,
455 U.S. 209, 215 (1985). Petitioner has failed to make
the required showings as to either of the jurors about
which he has complained.
C. Conclusion as to Petitioner’s Unexhausted Claims
for Relief
None of petitioner’s unexhausted claims for relief
can be pursued in this federal habeas action unless petitioner can demonstrate cause and prejudice for his procedural default as to the claim. He does not contend
that the failure of this court to consider his unexhausted claims would result in a fundamental miscarriage of
justice. Rather, he pitches his plea for consideration of
his unexhausted claims on his theory that state habeas
68a
counsel was inadequate, that Martinez applies in Texas
so that the inadequacy of state habeas counsel satisfies
the cause feature of his cause and prejudice prerequisites, and that he was prejudiced by his state habeas
counsel’s failures to raise in his state habeas application
his claims for relief 1 through 11. Petitioner’s theory
for avoiding the bar related to his unexhausted claims
is faulty in multiple respects.
First, the Fifth Circuit has held that Martinez does
not apply to a federal habeas petition arising from a
Texas conviction. Therefore, Martinez does not provide
the “cause” that is so essential to petitioner’s theory.
Second, even if Martinez did apply, petitioner has failed
to show that Strickland, his state habeas counsel, did
not provide him adequate representation in the prosecution of his state habeas application. Third, even if
Martinez were assumed to be applicable in Texas and
Strickland’s state habeas representation were assumed
to have been inadequate, Martinez would provide cause
only as to the unexhausted claims that assert ineffective assistance of trial counsel, which would be limited
to his claims for relief 1 through 7 and 10; and, petitioner’s claims for relief 1 through 7 and 10 are not shown
by petitioner to have merit, with the consequence that
he would have failed to carry his burden of establishing
prejudice even if he had satisfied the cause feature of
his cause and prejudice burden.8 Thus, for multiple
8
The court is not addressing further petitioner’s unexhausted
claims for relief 8, 9, and 11, none of which remotely involve a contention of ineffective assistance by trial counsel, other than to note
that the court’s review of those claims causes the court to conclude
that even if they legitimately could be presented in this federal
habeas petition, they would be without merit. The court has considered, and rejects, petitioner’s argument (which assumes applicability of Martinez ) that Maples v. Thomas, 132 S. Ct. 912
69a
reasons, petitioner must be denied any relief based on
his unexhausted claims for relief.
VI.
Petitioner’s Exhausted Claims for Relief
[17] Petitioner devotes only 28 pages of his 193page petition to discussion of his exhausted claims for
relief 12 through 21. In petitioner’s reply to respondent’s answer to the petition, petitioner, in effect, argues
that none of the exhausted claims for relief has merit.
Reply at 4-5. His lack of merit contentions as to the
unexhausted claims are summed up in his reply with
the statement that “[t]he state habeas application as
filed therefore stood literally no chance of success.”
Reply at 5. That petitioner does not take the exhausted
claims for relief seriously, and is not asking this court to
do so, is further evidenced by the fact that he makes no
further mention of any of them in his 101-page reply to
respondent’s answer, even though respondent included
in its answer a response to each of those claims. Given
petitioner’s lack of interest in his claims 12 through 21,
the court is not devoting in this memorandum opinion
significant space to a discussion of those claims. The
court starts with a reminder that a petition under § 2254
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim—
(2012), provides an avenue for this court to consider petitioner’s
unexhausted claims even though they do not urge ineffective assistance of trial counsel. The court concludes that petitioner is in error in making such a contention because Maples simply would not
apply to this case even if petitioner’s state habeas counsel had not
performed properly.
70a
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States; or
(2) 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.
28 U.S.C. § 2254(d). Petitioner has not shown that any
of the state court’s adjudications of petitioner’s claims
for relief 12 through 21 resulted in a decision that (1)
“was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or (2)
“was based on an unreasonable determination of the
facts in light of the evidence presented in the State
court proceeding.” Id. Therefore, all of petitioner’s exhausted claims must be denied.
VII.
Conclusion and Order
For the reasons given above, all relief petitioner
seeks by his petition must be denied. Petitioner has
provided nothing to support the relief he seeks by parts
(a), (b), (c), and (d) on page 192 of his petition. Nor has
he provided a valid basis for granting any of his claims
for relief. Therefore,
The court ORDERS that all relief sought by the
Petition for Writ of Habeas Corpus by a Person Sentenced to Death filed by petitioner on May 22, 2012, be,
and is hereby, denied.
SIGNED January 29, 2013.
71a
/s/ John McBryde
JOHN McBRYDE
United States District Judge
73a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS,
FORT WORTH DIVISION
No. 12-cv-270
CHRISTOPHER CHUBASCO WILKINS,
Petitioner,
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent.
ORDER
After having considered the application of petitioner, Christopher Chubasco Wilkins, for authorization of
funds for expert and investigative assistance filed May
25, 2012, the response thereto of respondent, Rick Thaler, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, filed June 8, 2012,
and petitioner’s reply filed June 18, 2012, the court concludes that it is unable to find that the requested investigative, expert, and other services for which petitioner
has sought funding are reasonably necessary for the
representation of petitioner in this 28 U.S.C. § 2254
proceeding. Therefore
The court ORDERS that such application be, and is
hereby, denied.
74a
SIGNED June 19, 2012.
/s/ John McBryde
JOHN McBRYDE
United States District Judge
75a
APPENDIX D
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS,
FORT WORTH DIVISION
No. 11-cv-72
CHRISTOPHER CHUBASCO WILKINS,
Plaintiff,
v.
RICK THALER, DIRECTOR, TDCJ-CID,
Defendant.
February 24, 2011
TRANSCRIPT OF TELEPHONE CONFERENCE
BEFORE THE HONORABLE JOHN McBRYDE
UNITED STATE DISTRICT COURT JUDGE
*
*
*
[4]
THE COURT: Okay. We set this up because Mr.
Stickels sent me a letter a few days ago—and it shows
he sent a copy to Mr. Wilkins and to Mr. Greenwell—
saying that Mr. Greenwell (sic) wants to wait a while
before he actually files a federal petition for Writ of
Habeas Corpus and was willing to have this telephone
conversation, rather than to come to Fort Worth for a
hearing, and I appreciate that, Mr. Wilkins. I think that
saves us all some time, your willingness to do that.
76a
Tell me, Mr. Stickels, what conversation you’ve had
with Mr. Wilkins about the time element of the filing of
his writ?
MR. STICKELS: I discussed with Mr. Wilkins the
fact that he has a one-year time period from the date
his conviction becomes final, either by the Supreme
Court denying the Writ of Certiorari, or the Court of
Criminal Appeals denying his Writ of Habeas Corpus,
and that would be about 12 months from now.
I told Mr. Wilkins the Court’s procedure about [5]
entering a scheduling order with some pretty close
deadlines, more than the—I told him that he could wait
for about eight, nine months, and then we could request
an attorney be appointed and that way he would save
that time on his federal writ.
Those are the facts I discussed with him.
THE COURT: Okay. You understand what he’s
talking about, Mr. Wilkins?
MR. WILKINS: Yes, sir, I believe I do.
THE COURT: If we go forward now, I’ll sign an
order that requires the writ be filed—or the petition for
writ be filed within 45 days, and we move pretty fast.
We rule on them real fast because I think that’s the
proper thing to do, which means that there could be a
ruling in maybe two or three months.
But if you wait, as Mr. Stickels suggests, until closer to the end of that one-year period, then it just gives
you that much more time.
Is that what you want to do?
MR. WILKINS: Yes, sir.
77a
THE COURT: Okay. Mr. Stickels, for us to accomplish that, you’ll need to file a motion to dismiss—you’ll
either need to file a document withdrawing the motion
you have already filed—actually you filed a motion and
brief for appointment of counsel. I think probably [6]
what you need to do is file a motion asking that that be
dismissed.
MR. STICKELS: Yes, sir, I will get that done.
79a
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS,
FORT WORTH DIVISION
No. 11-cv-72
CHRISTOPHER CHUBASCO WILKINS,
Petitioner,
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent.
ORDER
The above-captioned action was initiated by the filing on February 7, 2011, of a motion for a appointment
of counsel by petitioner, Christopher Chubasco Wilkins,
acting through John W. Stickels (“Stickels”). On March
8, 2011, petitioner, acting through Stickels, filed a motion to abate, without prejudice, his request for appointment of counsel. Taking into account discussions
had during a telephone conference conducted February
24, 2011, with petitioner, Stickels, and counsel for respondent on the line, the court is interpreting the motion to abate as a motion to withdraw the motion for
appointment of counsel filed February 7, 2011. Such a
withdrawal terminates the above-captioned action.
Therefore,
80a
The court ORDERS that such motion and the
above-captioned action be, and are hereby, dismissed
without prejudice.
The court assumes that the petitioner has in mind
that he will renew in a timely manner his attempts to
seek relief under 28 U.S.C. § 2254. If he does, and if he
wishes at that time to be represented by a courtappointed attorney, he should bear in mind that he
must, in addition to seeking court-appointed counsel,
provide proof of his eligibility for counsel appointed by
the court to represent him in a § 2254 proceeding.
SIGNED March 8, 2011
/s/ John McBryde
JOHN McBRYDE
United States District Judge
81a
APPENDIX F
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS,
FORT WORTH DIVISION
No. 12-cv-270
CHRISTOPHER CHUBASCO WILKINS,
Petitioner,
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent.
ORDER FIXING SCHEDULE FOR FILING
OF HABEAS PAPERS
The above-captioned action was initiated by the filing of several papers by petitioner, Christopher Chubasco Wilkins, acting through his attorney, Hilary
Sheard (“Sheard”), on May 1, 2012, including petitioner’s motion to proceed in forma pauperis for the purpose of a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, which has been granted, and an entry
of appearance by Sheard informing the court that she
has entered an appearance on behalf of petitioner for
the purpose of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Consistent with the court’s
normal practices in § 2254 death penalty habeas cases,
The court ORDERS that:
82a
(1) Petitioner file, by June 22, 2012, his 28 U.S.C.
§ 2254 petition for writ of habeas corpus, presenting
therein only grounds that have been exhausted in the
state court,
(2) Respondent file his response1 to such petition
within 30 days after the filing of such petition;
(3) If petitioner desires to reply to respondent’s
response, he shall do so within fifteen days after the filing of such response.
*
*
*
SIGNED May 2, 2012
/s/ John McBryde
JOHN McBRYDE
United States District Judge
1
Respondent is cautioned not to file a motion for summary
judgment in response to the petition, as such a motion does not fit
into the scheme of review of petitions filed under 28 U.S.C. § 2254.
The court considers the proceeding to be more in the nature of an
appeal; that is, there is a petition and a response. See Rules 2 and
5 of the Rules Governing § 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254.
83a
APPENDIX G
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS,
FORT WORTH DIVISION
No. 12-cv-270
CHRISTOPHER CHUBASCO WILKINS,
Petitioner,
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent.
ORDER
On May 1, 2012, petitioner, Christopher Chubasco
Wilkins, acting through his attorney, Hilary Sheard,
filed a document titled:
PETITIONER CHRISTOPHER CHUBASCO WILKINS’
MOTION FOR, AND BRIEF IN SUPPORT OF MOTION:
(1) FOR A SCHEDULING ORDER THAT GIVES EFFECT TO
MARTINEZ v. RYAN, 132 S. CT. 1309 (2012) AND MAPLES v.
THOMAS, 132 S. CT. 92 (2012), AND
(2)
FOR LEAVE TO FILE AN EX PARTE SEALED REQUEST
FOR NECESSARY FUNDS FOR EXPERT AND INVESTIGATIVE
ASSISTANCE.
The court has not been persuaded that there is any
reason for the entry of a scheduling order other than
84a
the one the court already has issued. Therefore, the
request for a scheduling order is being denied.
Before making a decision on petitioner’s request for
leave to file an ex parte sealed request for necessary
funds for expert investigative assistance, the court is
requiring a response from respondent as to that feature
of petitioner’s motion. For the reasons given below, the
court tentatively has concluded that an ex parte filing of
such motion should not be permitted.
As this court explained in United States v. Raybould:
The public has a common-law right to inspect and copy judicial records. Nixon v.
Warner Communications, Inc., 435 U.S. 589,
597 (1978); S.E.C. v. Van Waeyenberghe, 990
F.2d 845, 848 (5th Cir. 1993). This access to judicial records is not absolute, but a district
court’s discretion to seal the record of a proceeding “is to be exercised charily.” Van Waeyenberghe, 990 F.2d at 848 (quoting Federal
Sav. & Loan Ins. Corp. v. Blain, 808 F.2d 395,
399 (5th Cir. 1987)). Public access to judicial
records “serves to promote trustworthiness of
the judicial process, to curb judicial abuses, and
to provide the public with a more complete understanding of the judicial system, including a
better perception of its fairness.” Id. at 849
(quoting Littlejohn v. Bic Corp., 851 F.2d 673,
678 (3d Cir. 1988)).
This common-law rule has been referred to
as a “strong common law presumption in favor
of public access to court proceedings and records.” Brown & Williamson Tobacco Corp. v.
F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983), cert.
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denied, 465 U.S. 1100 (1984). In Brown & Williamson, the Court said about the common-law
rule (as well as the right under the First
Amendment of the Constitution of the United
States to have access to judicial proceedings)
that information contained in court documents
“often provide[s] important, sometimes the only, bases or explanations for a court’s decision.”
Id. at 1177. “Without access to the proceedings, the public cannot analyze and critique the
reasoning of the court.” Id. at 1178.
In Richmond Newspapers, Inc. v. Virginia,
the Supreme Court explained that “a presumption of openness inheres in the very nature of a
criminal trial under our system of justice.” 448
U.S. 555, 573 (1980) (plurality opinion). Among
the guarantees of the First Amendment is the
right of the public to attend criminal trials,
without which “important aspects of freedom of
speech and ‘of the press could be eviscerated.’”
Id. at 580 (quoting Branzberg v. Hayes, 408
U.S. 665, 681 (1972)). In Globe Newspaper Co.
v. Superior Court, the Supreme Court explained that “[u]nderlying the First Amendment right of access to criminal trials is the
common understanding that ‘a major purpose
of that Amendment was to protect the free discussion of governmental affairs.’” 457 U.S. 596,
604 (1982) (quoting Mills v. Alabama, 384 U.S.
214, 218 (1966)). Public criminal proceedings
ensure that “judge and prosecutor carry out
their duties responsibly.” Waller v. Georgia,
467 U.S. 39, 46 (1984).
The right to openness in criminal proceedings may give way in certain cases to other
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rights or interests, such as the government’s
interest in inhibiting disclosure of sensitive information; but, “[s]uch circumstances will be
rare, however, and the balance of interests
must be struck with special care.” Id. at 45.
“The knowledge that every criminal trial is
subject to contemporaneous review in the forum of public opinion is an effective restraint
on possible abuse of judicial power”; and,
“[w]ithout publicity, all other checks are insufficient: in comparison of publicity, all other
checks are of small account.” In re Oliver, 333
U.S. 257, 270-71 (1948).
Openness in judicial proceedings “gives assurance that established procedures are being
followed and that deviations will become
known,” enhancing “both the basic fairness of
the criminal trial and the appearance of fairness so essential to public confidence in the system.” Press-Enterprise Co. v. Superior Court
of Cal., 464 U.S. 501, 508 (1984). The Supreme
Court explained, in the context of a criminal jury proceeding, what sometimes is referred to as
?community therapeutic value,” saying:
Criminal acts, especially violent crimes,
often provoke public concern, even outrage and hostility; this in turn generates a community urge to retaliate and
desire to have justice done. See T.
Reik, The Compulsion to Confess 288295, 408 (1959). Whether this is viewed
as retribution or otherwise is irrelevant. When the public is aware that
the law is being enforced and the criminal justice system is functioning, an
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outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this
outlet and frustrate the broad public
interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing
that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected. See
United States v. Hasting, 461 U.S. 499,
507 (1983); Morris v. Slappy, 461 U.S.
1, 14-15 (1983).
“People in an open society do not
demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers [Inc.
v. Virginia, 448 U.S. 555,] 572 [ (1980)].
Id. at 508-09. The Supreme Court added that
“[c]losed proceedings, although not absolutely
precluded, must be rare and only for cause
shown that outweighs the value of openness.”
Id. (footnote omitted).
For the presumption of openness in criminal proceedings to be overcome, an overriding
interest must be shown, and any order denying
openness must be “based on findings that closure is essential to preserve higher values and
is narrowly tailored to serve that interest.” Id.
at 510. After having recognized the First
Amendment right of access to the records of
criminal proceedings, the Fifth Circuit concluded in United States v. Edwards that “if closure
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of a presumptively open proceeding is to withstand a first amendment challenge … the court
[must] make specific, on-the-record, factfindings demonstrating that a substantial probability exists that an interest of a higher value will
be prejudiced and that no reasonable alternatives to closure will adequately protect that interest.” 823 F. 2d 111, 119 (5th Cir. 1987), cert.
denied, 485 U.S. 934 (1988).
130 F. Supp. 2d 829, 831-833 (N.D. Tex. 2000). See, also,
United States v. Holy Land Found. for Relief & Dev.,
624 F.3d 685, 690 (5th Cir. 2010) (“Public confidence [in
our judicial system] cannot long be maintained where
important judicial decisions are made behind closed
doors and then announced in conclusive terms to the
public, with the record supporting the court’s decision
sealed from public view.”).
The taxpaying public has a vital interest in knowing the uses to be made of public funds in the protection
of the interests of criminal defendants, including those
who are trying to avoid execution of a sentence of
death. In this case, petitioner, by his proposed ex parte
application, is seeking almost $92,000 for appointment
of what petitioner describes as persons having the expertise needed to delve into matters that petitioner apparently maintains could form the basis for the presentation of grounds for habeas relief in a federal petition,
perhaps in disregard of the legal principles establishing
the constraints of a federal petition for writ of habeas
corpus filed under 28 U.S.C. § 2254, including the prohibition against raising unexhausted grounds in a federal petition for habeas corpus under § 2254.
Not only does the public have an interest in learning of the requests petitioner is making in his proposed
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ex parte application, respondent presumably has an interest in the sense that he would prefer that unlimited
federal resources not be made available to petitioner
and his pro bono counsel for multiple fishing expeditions in an attempt to come up with what might be presented as exceptions to the § 2254 constraints, thus
subjecting respondent to the inconvenience and expense of responding to what could well be frivolous
claims. The court would benefit from an informed response by respondent.
The tentative conclusion of the court that petitioner’s request for an ex parte filing and presentation of
his application for funding should be denied takes into
consideration the court’s obligation, as trustee of the
public’s funds, to see that excessive and unnecessary
payments out of public funds are not authorized. See
United States v. Nichols, 184 F.3d 1169, 1171-72 (10th
Cir. 1999). The statute pursuant to which payment of
“[f]ees and expenses for investigative, expert, and other reasonably necessary services” is authorized provides that such fees and expenses “shall not exceed
$7,500 in any case, unless payment in excess of that limit is certified by the court as necessary to provide full
compensation for services of an unusual character or
duration, and the amount of the excess payment is approved by the chief judge of the circuit.” 18 U.S.C.
§ 3599(g)(2). The court does not think it can make such
a certification in this action.
When a defense attorney submits a voucher requesting compensation and reimbursement for expenses, “that attorney is making a direct claim upon the limited resources of the U.S. Treasury.” United States v.
Smith, 76 F. Supp. 2d 767, 768 (S.D. Tex. 1999). Therefore, the court “has an inherent obligation to scrutinize
those requests, make necessary adjustments, and thus
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safeguard these taxpayer provided funds.” Id. Payment should not be approved for unproductive time.
United States v. Cook, 628 F. Supp. 38, 42 (D. Colo.
1985). A response by respondent to the request for
funds would assist the court in the performance of the
court’s duty of oversight.
Moreover, the statute that authorizes payment by
the government of investigative, expert, or other services that are reasonably necessary for the representation of the defendant expressly provides that “[n]o ex
parte proceeding, communication, or request may be
considered pursuant to this section unless a proper
showing is made concerning the need for confidentiality.” 18 U.S.C. § 3559(f). The court is not satisfied that
such a showing has been made by petitioner.
Therefore,
The court ORDERS that all relief sought by such
motion be, and is hereby, denied except as to the request for leave to file an ex parte sealed request for
necessary funds for expert and investigative assistance;
and
The court further ORDERS that respondent file by
May 17, 2012, a response to petitioner’s request for
leave to file an ex parte sealed request for necessary
funds for expert and investigative assistance.
SIGNED May 3, 2012
/s/ John McBryde
JOHN McBRYDE
United States District Judge
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APPENDIX H
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS,
FORT WORTH DIVISION
No. 12-cv-270
CHRISTOPHER CHUBASCO WILKINS,
Petitioner,
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent.
ORDER
After having considered the motion filed by petitioner, Christopher Chubasco Wilkins, on November 7,
2012, to stay adjudication of petitioner’s petition for
writ of habeas corpus pending decision of the United
States Supreme Court in Trevino v. Thaler, the opposition thereto of respondent, Rick Thaler, Director, Texas
Department of Criminal Justice, Correctional Institutions Division, petitioner’s reply, and pertinent legal
authorities, the court has concluded that such motion
should be, and is hereby, denied.
THE COURT SO ORDERS.
SIGNED November 30, 2012
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/s/ John McBryde
JOHN McBRYDE
United States District Judge
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APPENDIX I
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS,
FORT WORTH DIVISION
No. 12-cv-270
CHRISTOPHER CHUBASCO WILKINS,
Petitioner,
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent.
ORDER
After having considered the motion filed by petitioner, Christopher Chubasco Wilkins, on February 25,
2013, to vacate, alter, or amend judgment denying petition for writ of habeas corpus, the response thereto of
respondent Rick Thaler, Director, Texas Department
of Criminal Justice, Correctional Institutions Division,
and pertinent parts of the record, the court has concluded that such motion should be denied. Therefore,
The court ORDERS that such motion be, and is
hereby, denied.
As to the request made by petitioner in the prayer
of his motion that the court grant him a certificate of
appealability,
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The court further ORDERS that a certificate of
appealability be, and is hereby, denied as petitioner has
failed to make a substantial showing of the denial of a
constitutional right.
SIGNED March 5, 2013
/s/ John McBryde
JOHN McBRYDE
United States District Judge
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APPENDIX J
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-70014
CHRISTOPHER CHUBASCO WILKINS,
Petitioner-Appellant,
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
June 10, 2014
ON PETITION FOR REHEARING AND
REHEARING EN BANC
(Opinion 3/25/14, 5 Cir., ______, ______, F.3d _______)
Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:
(X)
The Petition for Rehearing is DENIED and no
member of this panel nor judge in regular active service on the court having requested that
the court be polled on Rehearing En Banc,
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(FED R. APP. P. AND 5TH CIR. R. 35) the Petition for Rehearing En Banc is also DENIED.
*
*
ENTERED FOR THE COURT:
/s/ [illegible]
UNITED STATES CIRCUIT JUDGE
*
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APPENDIX K
18 U.S.C. § 3599—Counsel for financially unable
defendants
(a) …
(2) In any post conviction proceeding under section
2254 or 2255 of title 28, United States Code, seeking to
vacate or set aside a death sentence, any defendant
who is or becomes financially unable to obtain adequate
representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing
of such other services in accordance with subsections
(b) through (f).
*
*
*
(f) Upon a finding that investigative, expert, or
other services are reasonably necessary for the representation of the defendant, whether in connection with
issues relating to guilt or the sentence, the court may
authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized,
shall order the payment of fees and expenses therefor
under subsection (g). No ex parte proceeding, communication, or request may be considered pursuant to this
section unless a proper showing is made concerning the
need for confidentiality. Any such proceeding, communication, or request shall be transcribed and made a
part of the record available for appellate review.
(g)(1) Compensation shall be paid to attorneys appointed under this subsection at a rate of not more than
$125 per hour for in-court and out-of-court time. The
Judicial Conference is authorized to raise the maximum
for hourly payment specified in the paragraph up to the
aggregate of the overall average percentages of the ad-
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justments in the rates of pay for the General Schedule
made pursuant to section 5305 of title 5 on or after such
date. After the rates are raised under the preceding
sentence, such hourly range may be raised at intervals
of not less than one year, up to the aggregate of the
overall average percentages of such adjustments made
since the last raise under this paragraph.
(2) Fees and expenses paid for investigative, expert, and other reasonably necessary services authorized under subsection (f) shall not exceed $7,500 in any
case, unless payment in excess of that limit is certified
by the court, or by the United States magistrate judge,
if the services were rendered in connection with the
case disposed of entirely before such magistrate judge,
as necessary to provide fair compensation for services
of an unusual character or duration, and the amount of
the excess payment is approved by the chief judge of
the circuit. The chief judge of the circuit may delegate
such approval authority to an active or senior circuit
judge.
(3) The amounts paid under this paragraph for
services in any case shall be disclosed to the public, after
the disposition of the petition.
28 U.S.C. § 2253—Appeal
*
*
*
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to
the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out
of process issued by a State court; or
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(B) the final order in a proceeding under section
2255.
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph
(1) shall indicate which specific issue or issues satisfy
the showing required by paragraph (2).