Kerry Allen v. William Stephens, Director
805 F.3d 617
5th Cir.2015Background
- Kerry Allen was convicted in Texas of capital murder (death of a child) and sentenced to death; direct appeal and state habeas relief were denied.
- Allen filed a federal §2254 petition raising five claims: Apprendi challenge to the mitigation special issue; disparate county funding leads to arbitrary death-penalty administration; Mills/12-10 jury instruction challenge; denial of removal for cause of a juror; and ineffective assistance of trial counsel for failing to subpoena mitigating witnesses.
- Allen sought funding under 18 U.S.C. §3599(f) to investigate and obtain expert assistance to develop the IATC (ineffective-assistance-of-trial-counsel) claim; the district court denied funding and denied habeas relief.
- The Texas courts adjudicated several claims on the merits; the remaining IATC claim was unexhausted in state court and potentially subject to the Martinez/Trevino equitable exception.
- The Fifth Circuit evaluated (1) whether reasonable jurists could debate the district court’s rulings (COA standard) and (2) whether the district court abused its discretion in denying §3599 funding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Apprendi/Ring challenge to Texas mitigation special issue | Allen: jury must find aggravating facts beyond a reasonable doubt when considering mitigation; Texas scheme violates Apprendi/Ring | State: Texas fixes eligibility at guilt phase; mitigation question reduces sentence and does not increase statutory maximum; precedent forecloses claim | Denied COA; Fifth Circuit follows precedent rejecting Apprendi/Ring challenge to Texas mitigation special issue |
| Disparate county funding → arbitrary Eighth/Fourteenth violation | Allen: richer counties (e.g., Harris) more often pursue death due to resources; system results in geographic arbitrariness | State: no Supreme Court authority striking system for disparate county resources; differences in resources are a legitimate factor; state remedies (AG capital litigation) available | Denied COA; state-court decision not an unreasonable application of Supreme Court precedent |
| Mills/12-10 rule (jury unanimity confusion) | Allen: 12-10 rule and instructions may mislead jurors into thinking unanimity required for mitigation, violating Mills | State: instructions properly explained jurors need not agree on particular mitigating evidence; Fifth Circuit precedent upholds 12-10 rule | Denied COA; claim foreclosed by binding Fifth Circuit precedent |
| Denial of cause challenge / procedural default of juror-bias claim | Allen: trial court erred in refusing to strike a prospective juror for cause; forced to use peremptory on other juror and lost strike to remove biased seated juror | State: Allen did not contemporaneously identify the seated juror as objectionable; Texas contemporaneous-objection rule bars review; use of peremptory to remove prospective juror does not itself violate Sixth Amendment | Denied COA; claim procedurally defaulted and not debatable under Martinez standard |
| IATC for failing to subpoena mitigating witnesses; motion for §3599 funding | Allen: counsel should have subpoenaed family witnesses who would corroborate childhood abuse; needs funding to investigate and locate those witnesses | State: trial strategy to rely on interviews/assumed cooperation was reasonable; petitioner failed to show deficient performance or that funding would cure that deficiency; Martinez/Trevino do not mandate funding for procedurally barred claims | Denied COA on IATC; district court did not abuse discretion in denying §3599 funding |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be found by a jury beyond a reasonable doubt)
- Ring v. Arizona, 536 U.S. 584 (2002) (applying Apprendi to capital sentencing where judge, not jury, found aggravators)
- Martinez v. Ryan, 566 U.S. 1 (2012) (ineffective assistance of state habeas counsel can establish cause for procedural default of IATC claims)
- Trevino v. Thaler, 569 U.S. 413 (2013) (extends Martinez to certain Texas cases where state procedural realities impede IATC claims on direct appeal)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance: performance and prejudice)
- Mills v. Maryland, 486 U.S. 367 (1988) (prohibits instructions that lead jurors to believe mitigating evidence must be found unanimously)
- Gregg v. Georgia, 428 U.S. 153 (1976) (upheld guided capital-sentencing scheme; condemned arbitrary imposition of death)
- McCleskey v. Kemp, 481 U.S. 279 (1987) (refused to infer constitutional violation from statistical disparities absent proof of a system operating arbitrarily)
- Scheanette v. Quarterman, 482 F.3d 815 (5th Cir. 2007) (Fifth Circuit holding that Texas mitigation special-issue scheme does not violate Apprendi/Ring)
- Granados v. Quarterman, 455 F.3d 529 (5th Cir. 2006) (explaining that Texas determines eligibility during guilt phase; mitigation reduces sentence)
- Brown v. Stephens, 762 F.3d 454 (5th Cir. 2014) (standard and review for §3599 funding requests)