Case Information
*1 Before H IGGINBOTHAM , S MITH , and Charles Raby applies for a certificate of ap-
C LEMENT , Circuit Judges. pealability (“COA”) pursuant to 28 U.S.C.
J ERRY E. S MITH , Circuit Judge: [*]
*2 § 2254. We deny the request. Although Raby originally cited thirteen
grounds for habeas corpus relief, he now seeks I. a COA based on the following: (1) ineffective In June 1994, a jury convicted Raby of the assistance of counsel at the punishment phase; capital murder of seventy-two-year-old Edna (2) improper prosecutorial comments Franklin, who “had been severely beaten[,] re- regarding Raby’s silence surrounding his peatedly stabbed[,] and undressed . . . below arrest; (3) ineffective assistance of trial counsel the waist.” Raby v. Stone , 970 S.W.2d 1 during the guilt phase of the trial; (4) (Tex. Crim. App. 1998). Although Raby insufficient evidence; (5) the alleged pleaded not guilty, the state introduced a unconstitutionality of Texas law in not signed statement in which he admitted to allowing an intoxication defense; and (6) not attacking Franklin and to the general being able to inform the jury about his future circumstances surrounding the crime. During parole eligibility in a life sentence. The district the punishment phase, prosecution and defense court dismissed all of Raby’s claims on a witnesses testified to aggravating and motion for summary judgment. mitigating factors, respectively. The jury
answered that Raby posed a future danger and The first two grounds were dismissed be- that sufficient mitigating evidence was not cause Raby had failed to exhaust his options in presented. Raby was sentenced to death. state proceedings. The third ground was dis-
missed based on procedural defaults and an II. application of Strickland v. Washington , 466 U.S. 668 (1984). The district court dismissed kidnapping, burglary, robbery, aggravated sexual course of committing or attempting to commit person intentionally commits the murder in the defined under Section 19.02(b)(1) and . . . (2) the person commits an offense if he commits murder as . § 19.03(a)(2) (“A A ODE NN ENAL P . EX T C stating the precise opposite of what Raby that Franklin was killed during the commission or attempted commission of a robbery or sexual assault.” The district court cited valid Supreme Court and Fifth Circuit precedent evidence “was nearly compelling in showing the fourth ground after determining that the claimed in his fifth ground. Finally, the court assault, arson, or obstruction or retaliation.”).
cited Green v. Johnson The statement read, in part: (5th Cir. 1998), to dispel Raby’s argument that he had the constitutional right to inform the I went to a little store and bought some wine jury as to his parole eligibility under a life . . . . I drank the wine . . . . I knocked on the door. I did not hear anyone answer. I just went
inside . . . . I wa lked into the kitchen and
grabbed Edna. Edna’s back was to me and I
just grabbed her. I remember struggling with
her and I was on top of her. I know I had my
Montana v. Egelhoff
, 518 U.S. 37 (1996);
knife but I do not remember taking it out. We
Goodwin v. Johnson
,
sentence. insufficiency claim has the primary problem
that Raby confessed, fully, to attacking III. Franklin. The crime scene contains sufficient A. evidence to suggest that either a sexual assault “[U]ntil a COA has been issued federal or a robbery was attempted.
courts of appeals lack jurisdiction to rule on
the merits of appeals from habeas petitioners.”
If one ignores the procedural bar of his
Miller-El v. Cockrell
,
(quoting Slack v. McDaniel , 529 U.S. 473,
484 (2000) (citations omitted)). Raby listed a variety of ways in which
counsel allegedly erred. Perhaps the most sig- B. nificant alleged error occurred when counsel As discussed in part IV, infra , the district conceded that Raby entered Franklin’s house court validly dismissed Raby’s first three through a door rather than a window. Raby grounds because he failed to exhaust them at felt that his counsel premised this approach on the state level. Assuming, arguendo , that such a mistaken belief that entering through a door a procedural bar can be circumvented, none of would preclude a finding of burglary. Raby’s substantive claims warrants a COA.
Even assuming, arguendo , that such a tac- The district court correctly dismissed Ra- tical decision was ineffective assistance, there by’s fourth, fifth, and sixth grounds. All three was no prejudice, because Raby cannot show are foreclosed by relevant authorities. In addi- that his attorney’s malfeasance brought about tion to the cases cited previously, the his conviction. He signed a confession to ev-
ery aspect of the relevant charge, with the exception of the explicit act of stabbing. Even The district court, and this court, in Green , during his attempt to exclude the statement, he distinguished a Texas life sentence from a South admitted, in the words of the district court, Carolina life sentence, as referenced in Simmons v. “that his confession was knowing, voluntary, South Carolina , 512 U.S. 154 (1994). In Sim- and true. Counsel were not deficient for mons , the Court held that a defendant had the right choosing not to falsely argue that the to inform the jury of the fact that a life sentence would not carry the right of parole. The jury, con-
sequently, would have two options to remove a potentially dangerous individual from society. The Raby also alleges that one of his counsel, Texas system, however, does not afford a life Fosher, “was impaired by debilitating pain and sentence without the possibility of parole. Thus, medication use during trial” to such an extent that the Simmons right does not apply to a defendant Fosher could not remember any elements of the such as Raby. direct appeal.
confession was involuntary or untrue.” Thus, In Cotton , we granted a COA on the Raby’s signed statement precludes a finding of prosecution’s referring to the defendant as an prejudice during the guilt phase. expert who could have refuted a co-
conspirator’s testimony, but we promptly The statement similarly blocks Raby’s dispatched of the point on grounds of harmless second ground, whereby he claims that the error. In Raby’s situation, the prosecution’s prosecution improperly commented on his comment did not paint the defendant in a more silence surrounding his arrest. The prosecutor negative light than in Cotton , and the stated: harmlessness is similarly obvious.
[Is] it any wonder that a person who would Consequently, given the manner in which attack a helpless, fragile, arthritic little old Cotton disposed of a similar prosecutorial lady and stab her as many times as he did, comment, reasonable jurists could not debate brutalize her, slit her throat, ripped her the outcome of this issue. Finally, even clothes off, ripped her panties, anyone who assuming that the procedural default could be would do something so cowardly, is it any excused, we should not grant a COA based on wonder that when he runs, that he is silent the substance of the first claim, as discussed in after he runs? He doesn’t go to the police. part IV, infra .
He isn’t filled with remorse. When he gets
the call that the police are coming, when he IV.
gets that call from his mother, he flees, in- Given the weight of his signed confession, dicating guilty knowledge. Is it any wonder Raby’s strongest argument focuses on the pun- that that type of coward would not fess up ishment phase of his trial. The district court to all the details of his confession to the barred this ground based on Raby’s failure to police? Of course not. exhaust his state remedies, as required by 28
U.S.C. § 2254(b)(1)(B)(i). Raby attempts to Even if one ignores the procedural bar excuse his procedural default by invoking invoked by the district court, disregards the § 2254(b)(1)(B)(ii), which provides an fact that Raby’s counsel apparently did not exception to the regular exhaustion object to the prosecutor’s comment, and requirement where “circumstances exist that assumes that the prosecution improperly render [state] process ineffective to protect the commented on Raby’s silence, any possible rights of the applicant.” Raby claims that his error was harmless. [7] state-appointed state habeas counsel, James
Keegan, actively interfered with his attempts to pursue his habeas claims. Raby lists eleven The procedural bar discussion appears in part IV, infra .
*5 ways in which Keegan allegedly “thwarted” his by calling “notorious state expert Walter Qui- attempts to present habeas claims in state jano, who . . . prejudicially labeled Raby a court. [9] An unresponsive, insensitive ‘psychopath.’” lawyer does not excuse a procedural default
under § 2254 (b)(1)(B)(ii). The facts in
Counsel’s performance does not satisfy
Martinez
are similar to those presented here, in
Washington
’s requirements for ineffective as-
regard to Raby’s claims regarding Keegan. sistance. Raby’s trial counsel called witnesses
Thus,
Martinez
forecloses debate on the use of
to testify “to his troubled upbringing, including
alleged ineffectiveness of state habeas counsel
his mother’s mental problems, his commitment
to circumvent
the state exhaustion
to foster care and institutions, and episodes of
requirement.
physical abuse.”
Raby v. Stone
,
3 (Tex. Crim. App. 1998). Additional V. witnesses testified “that [defendant] had a Raby claims that his drug-addicted counsel peaceful disposition and that his problems dur- failed to provide him with effective assistance. ing incarceration had been provoked by jail- Specifically, Raby asserts that his attorney ers.” Id . Thus, counsel did not underperform failed to investigate his case adequately and in attempting to mitigate Raby’s sentence. points to eighteen mitigating factors that such
an investigation would have uncovered. He Although the decision to call Quijano did also asserts that his lawyer egregiously erred not help Raby, “judicial scrutiny of counsel's
performance must be highly deferential, and
courts must indulge in a strong presumption
that counsel's conduct falls within the wide
habeas proceedings and precluding him from
range of reasonable professional assistance.”
otherwise asserting those claims.”
Hopkins
,
ishment phase and apparently (though wrong- See Martinez v. Johnson ly) thought that his testimony would help es- n.10 (5th Cir. 1991) (“[U]nder these facts, failure tablish that the Texas prison system would to provide ‘competent’ counsel for a state habeas contain any future dangerousness on Raby’s petition does not fall under the general catch-all part. No COA is justified on this issue. exception provided in 28 U.S.C. § 2254(b)(1)(B)-
(ii).”). The application for COA is DENIED. Id. at 238 n.9 (“(1) Rhodes did not respond to any of Martinez’s letters, nor did he accept or
return any of Martinez’s phone calls; (2) Rhodes
did not hire an investigator or an expert to develop
extra-record evidence; (3) Rhodes did not send
Martinez any of the copies of documents he filed
on his client’s behalf.”).
Notes
[*] determined that this opinion should not be pub-
[*] Pursuant to 5 TH C IR. R. 47.5, the court has lished and is not precedent except under the limited (continued...) circumstances set forth in 5 TH C IR . R. 47.5.4.
[7] See Cotton v. Cockrell
[7] (5th Cir. 2003) (“Given the overwhelming evidence fendant’s] guilt.”). of guilt and the court’s cautionary instruction to the
[8] Raby claims that “the CCA blocked his access jury, we conclude that the prosecution’s statement had no substantial and injurious effect or influence to the courts by appointing a lawyer who refused to in the determination of [de investigate and raise meritorious claims in the state (continued...) (continued...)