Donald Newbury v. William Stephens, Director
2014 U.S. App. LEXIS 12467
| 5th Cir. | 2014Background
- Donald Newbury (one of the "Texas Seven") was convicted of capital murder for the killing of Officer Aubrey Hawkins; jury answered special issues requiring death. The Texas Court of Criminal Appeals affirmed on direct appeal.
- At trial defense presented six mitigation witnesses (family members and a prison expert); trial counsel had an ex parte appointment of a neuropsychologist who did not testify. The jury heard evidence of Newbury’s violent criminal history and prison escape activity.
- State habeas claimed trial counsel was ineffective for failing to investigate and present school, medical, and 1974 counseling records; the state habeas court and the TCCA denied relief, finding counsel’s investigation reasonable and the records cumulative or double‑edged.
- In federal habeas Newbury presented additional mitigation evidence via a mitigation specialist’s report and affidavits; district court funded a mitigation specialist ($7,500) but denied extra funds for a clinical psychologist and held the new evidence procedurally barred or, alternatively, without merit.
- This Court initially denied a COA, the Supreme Court remanded in light of Martinez v. Ryan and later Trevino v. Thaler; on remand the Fifth Circuit reexamined whether Martinez/Trevino required excusing procedural default or additional factual development and whether Newbury’s IATC claim is substantial under Strickland.
- The Fifth Circuit concluded the district court erred procedurally to the extent it held state habeas counsel’s ineffectiveness could never constitute cause, but nonetheless denied a COA because reasonable jurists would not debate the district court’s alternative merits ruling that Newbury failed Strickland’s deficient‑performance and prejudice prongs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Martinez/Trevino permit Newbury to overcome procedural default and present new mitigation evidence in federal habeas | Newbury: state habeas counsel was ineffective for not developing/raising the expanded mitigation, so Martinez/Trevino excuse default and require federal consideration (and funding) for further development | State: TCCA adjudicated an IATC claim on the merits; Pinholster/AEDPA limit federal review to state‑court record; Martinez/Trevino do not require additional evidentiary development or funding | Court: Martinez/Trevino apply to Texas but Newbury already received the relief Martinez affords (federal merits review). No remand for more development necessary; COA denied because merits fail under Strickland |
| Whether the district court abused discretion by denying additional funds for a clinical psychologist under 18 U.S.C. § 3599(g) | Newbury: psychologist funds necessary to explain mitigating significance of psychological diagnoses and rebut State’s future‑dangerousness case | State: district court provided full statutory mitigation funding and did not abuse discretion; Martinez/Trevino do not mandate pre‑petition funding for expert development | Court: No abuse of discretion in denying additional funds; district court acted within § 3599(g) and precedent |
| Whether trial counsel rendered constitutionally ineffective assistance by failing to discover/introduce school, medical, counseling, and additional mitigation evidence | Newbury: omitted records and expert proof would have shown learning disabilities, PTSD, attachment disorder, sensory issues, depressive neurosis and more mitigating facts | State: trial counsel reasonably investigated, presented extensive mitigation testimony; many records were cumulative or double‑edged and some destroyed; omitted evidence would not have altered outcome | Court: Reasonable jurists would not debate that counsel’s performance was adequate and that Newbury failed to show prejudice under Strickland given overwhelming evidence of future dangerousness and moral culpability |
| Whether the new evidence presented first in federal court makes Newbury’s IATC claim "substantial" under Martinez (i.e., has some merit) | Newbury: the additional evidence (affidavits, mitigation report, photos) demonstrates a non‑trivial IATC claim deserving merits review and development | State: the new evidence is cumulative, contains damaging material, and would not create reasonable probability of a different result; Pinholster limits review to state‑court record for claims adjudicated on the merits | Court: Even considering the new evidence, reasonable jurists would not debate the district court’s conclusion that the IATC claim lacks merit; Martinez’s “some merit” threshold not met sufficiently to grant COA |
Key Cases Cited
- Martinez v. Ryan, 566 U.S. 1 (2012) (equitable rule allowing cause to excuse procedural default where state habeas counsel was ineffective and underlying IATC claim is substantial)
- Trevino v. Thaler, 569 U.S. 413 (2013) (applies Martinez to Texas because state procedural framework prevents adequate IATC presentation on direct appeal)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (limits federal habeas review under § 2254(d)(1) to the state‑court record that adjudicated the claim)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance: deficient performance and prejudice)
- Harrington v. Richter, 562 U.S. 86 (2011) (prejudice requires a substantial—not merely conceivable—likelihood of a different result)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standards for issuing a certificate of appealability)
- Miller‑El v. Cockrell, 537 U.S. 322 (2003) (COA standard: jurists of reason could disagree with district court’s merits resolution)