Stephen Barbee v. Lorie Davis, Director
660 F. App'x 293
| 5th Cir. | 2016Background
- Defendant Stephen Barbee was convicted in Texas of capital murder (victims: pregnant ex-girlfriend and her 7-year-old son) and sentenced to death; direct appeals and state habeas were denied; federal habeas was denied by the district court and he appealed for a COA.
- Key prosecution evidence: an unrecorded "bathroom" confession to a detective, recorded admissions to his wife, flight from a deputy while muddy near the victim vehicle, and leading police to the burial site.
- Barbee raised multiple ineffective-assistance and due-process claims in state and federal proceedings, including: (1) counsel had a conflict of interest tied to frequent court appointments from the trial judge; (2) counsel conceded guilt to the jury during closing without Barbee’s permission; (3) counsel performed ineffectively at punishment by presenting certain witnesses and failing to develop/offer mitigating evidence (head injuries, hydrocodone use, lay character testimony); and (4) the court relied on extra-record material when denying a motion to alter judgment.
- The state habeas process included two applications, an evidentiary hearing limited to a conflict claim, and the TCCA adopted state-court findings denying relief (some claims dismissed as abusive). The district court denied federal habeas relief and a COA; Barbee appealed.
- The Fifth Circuit GRANTED a COA only for the claim that trial counsel confessed guilt in closing argument (claim 2). The court DENIED a COA for the conflict-of-interest claim, the punishment-phase IATC claims, and held the district court did not abuse its discretion by citing limited extra-record evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conflict of interest (counsel appointed frequently by trial judge) | Ray’s heavy appointment business from Judge Gill created an actual conflict that led counsel to rush plea/offer weak defense, omit investigation, and concede guilt | No agreement or pressure from Judge Gill; counsel performed extensive work, retained experts, and made reasonable tactical choices | COA DENIED — reasonable jurists would not debate the state court’s finding of no actual conflict adversely affecting counsel |
| Counsel conceded guilt in closing without permission | Counsel admitted guilt to jury in closing and abandoned Barbee at guilt phase; IATC per Strickland | State: counsel’s strategy was defensible; record disputed; merits require fuller review | COA GRANTED — court allowed supplemental briefing on the claim (only claim granted) |
| Punishment-phase IATC (a) presenting prison consultant Evans; (b) failing to present mitigation and lay future-danger testimony; (c) not offering head-injury/drug evidence | (a) Evans’s testimony highlighted prison violence and risk, arguably favoring death; (b) counsel failed to develop available mitigating witnesses and failed to ask them about future danger; (c) counsel declined to present head-injury/hydrocodone evidence that could mitigate culpability | Counsel exercised reasonable tactical judgment: Evans fit a life-in-prison theme; counsel avoided opening damaging cross-examination of lay witnesses and triggering State expert exams; mitigation evidence was weak or risky and experts did not show disabling brain injury | COA DENIED for (a),(b),(c) — reasonable jurists would not debate district court’s denial; state and district courts reasonably found counsel’s choices strategic and non-prejudicial |
| District court reliance on extra-record evidence in motion to alter | Use of web material about a declarant (Tina Church) violated due process and deprived Barbee of a fair hearing | District court relied minimally; Barbee characterized Church as "disinterested" inviting inquiry; any misstep was harmless | Court held no abuse of discretion; COA denied on this ground |
Key Cases Cited
- Slack v. McDaniel, 529 U.S. 473 (standard for COA where district court rejected claims on the merits)
- Miller-El v. Cockrell, 537 U.S. 322 (threshold COA inquiry and assessment of debatable constitutional claims)
- Reed v. Stephens, 739 F.3d 753 (5th Cir.) (description of limited COA merits review)
- Ramirez v. Dretke, 398 F.3d 691 (5th Cir.) (death-penalty COA doubts resolved in petitioner’s favor)
- Cuyler v. Sullivan, 446 U.S. 335 (conflict-of-interest framework requiring actual conflict causing adverse effect)
- Strickland v. Washington, 466 U.S. 668 (performance and prejudice standards for IATC)
- Schlup v. Delo, 513 U.S. 298 (actual-innocence gateway standard)
- House v. Bell, 547 U.S. 518 (consideration of all evidence—old and new—for Schlup analysis)
- Martinez v. Ryan, 132 S. Ct. 1309 (cause to excuse procedural default for IATC when initial state habeas counsel was ineffective)
- Cullen v. Pinholster, 131 S. Ct. 1388 (limits on Strickland-based claims; reasonableness standard)
- Harrington v. Richter, 131 S. Ct. 770 (deference to counsel and high Strickland prejudice burden)