220 F. App'x 270 | 5th Cir. | 2007
February 26, 2007 Charles R. Fulbruge III Clerk m 05-70051 _______________ T ONY R OACH ,
Petitioner-Appellant , VERSUS N ATHANIEL Q UARTERMAN , D IRECTOR , T EXAS D EPARTMENT OF C RIMINAL J USTICE , C ORRECTIONAL I NSTITUTIONS D IVISION ,
Respondent-Appellee _________________________ Appeal from the United States District Court for the Northern District of Texas m 2:02-CV-0042 ______________________________ Before S MITH , G ARZA , and P RADO
Circuit Judges. Tony Roach was convicted of capital mur- der and sentenced to death. The district court denied habeas corpus relief and declined to is- sue a certificate of appealability (“COA”). Roach petitions this court for a COA on ten J ERRY E. S MITH , Circuit Judge:
issues. We deny a COA. fact and conclusions of law, recommending denial of relief; the Court of Criminal Appeals denied relief based on the trial court’s findings and its own review.
In June 1998 firefighters found the body of Ronnie “Kitten” Hewitt inside her burning apartment in Amarillo, Texas. Though the fire burned her body, it was determined that she died from asphyxiation from being choked by a belt found tightened around her neck; she likely had been sexually assaulted; and some- one set fire to her house using aerosol hair spray.
Roach’s application for COA was filed pur- suant to 28 U.S.C. § 2253 (1996), which “permits the issuance of a COA only where a petitioner has made a substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). For that requisite showing, a petitioner must show that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different man- ner or that the issues presented were ‘adequate to deserve encouragement to proceed fur- ther.’” Id. (quoting Slack v. McDaniel , 529 U.S. 473, 483 (2000)). We conduct only a threshold inquiry into the merits of Roach’s claims, not a full consideration of the factual and legal basis of those claims. Id. Because Roach was sentenced to death, “any doubts as to whether a COA should issue must be re- solved in [his] favor.” Hernandez v. Johnson , 213 F.3d 243, 248 (5th Cir. 2000). Later that month, police officers in Oklaho- ma questioned Roach about an unrelated crime, and during the questioning Roach con- fessed to killing a woman named Kitten in Am- arillo. He signed a written confession in which he stated that he entered Hewitt’s apartment through a window, confronted her, and choked her with his arm and then with a belt until she died. Then, he raped her vaginally and anally and took money, a knife, a beer, and some rings. Finally, he described using hair spray to set the apartment on fire. A knife identified as Hewitt’s and two of her rings were retrieved from pawn shops in Amarillo and in Guymon, Oklahoma, along with pawn slips signed by Roach. Semen was present in vaginal and anal swabs. Roach was excluded as the contributor of the vaginal swab, but the DNA profile of the contributor of the semen found in the anal swab matched his DNA in ten different areas; such a profile would occur in only one in six billion Cauca- sians, Blacks, or Hispanics.
The federal district court is required to de- fer to the state court’s adjudication of ques- tions of law and mixed questions of law and fact unless the court’s decision “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A decision is con- trary to clearly established Federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor , 529 U.S. 362, 413 (2000). A jury convicted Roach of capital murder, and he was sentenced to death. The Texas Court of Criminal Appeals affirmed. In re- sponse to a state application for writ of habeas corpus, a state trial court entered findings of Also, the district court must defer to the state court’s factual findings unless they “re- sulted in a decision that was based on an un- reasonable determination of the facts in light of the evidence presented in the State court pro- ceeding.” 28 U.S.C. § 2254(d)(2). In the dis- trict court, “a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Roach’s case considered the evidence required by Woodson . Texas does not have an auto- matic sentencing provision like the provision in Woodson , and jurors were required to consider the evidence Woodson requires.
Roach posits that his execution under Tex- as’s capital clemency procedures would violate his Eighth and Fourteenth Amendment rights. The procedure is deficient, he asserts, because the Texas Governor and Board of Pardons and Paroles seriously consider only actual inno- cence for commutation of a death sentence. Roach requests a COA on ten issues. We address each in turn.
Roach argues, citing Ohio Adult Parole Au- thority v. Woodard , 523 U.S. 272 (1998), that the Supreme Court has held that minimal due process safeguards apply to clemency proceed- ings. Woodard suggests, he points out, that judicial intervention might be “warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbi- trarily denied a prisoner any access to its clem- ency process.” Id. at 289 (O’Connor, J., concurring).
Roach contends that his execution would constitute punishment on the basis of the na- ture of the offense alone with no consideration of his character, in violation of Woodson v. North Carolina , 428 U.S. 280, 304 (1976). In Woodson the Court struck down a statute that mandated an automatic death sentence for those convicted of first-degree murder, be- cause the statute failed to require a consider- ation of the defendant’s character and record and the circumstances of the offense. Id. at 303-04.
Texas’s clemency procedure is defective, Roach contends, because only actual inno- cence is seriously considered, so inmates do not have meaningful clemency review. Texas has granted clemency only based on judicial expediency and never based on an inmate’s request. The district court noted that Texas’s death penalty laws differ from those in Woodson The jury was required to consider all the evi- dence presented at Roach’s trial, including the evidence on the issues Woodson mentions SS the circumstances of the offense and the de- fendant’s background and character. More- over, the jury was required to consider the probability Roach would commit future acts of violence.
The district court deferred to the state court’s conclusion that Texas’s clemency pro- cedures do not violate the Eighth or Four- teenth Amendments, holding that Roach mere- ly pointed out aspects of the clemency process with which he disagreed SS he did not provide evidence that he would be denied access to the No reasonable jurists could debate the dis- the jurors in trict court’s conclusion that process or evidence that the decision will be made arbitrarily. Futher, the district court pointed out, we have held that Texas’s clem- ency procedures do not violate due process. The Texas clemency procedures, the Faulder court concluded, do not resemble flipping a coin. Id. at 344. and because and Congress has not incorporat- ed it into domestic law. Beazley v. Johnson , 242 F.3d 248, 267 (5th Cir. 2001). 2 Reason- able jurists could not debate the district court’s conclusion that Roach has failed to establish that Texas’s clemency process violates the ICCPR. Given Woodard ’s description of the char- acteristics of the sort of arbitrary clemency procedure that would require judicial interven- tion, and in light of Faulder , no reasonable jur- ist could debate whether the district court erred in deferring to the state court. Because we have already established that reasonable jurists would not find Texas’s clem- ency review defective, Roach’s claim that execution without meaningful clemency/com- mutation review violates customary interna- tional law also fails for this same reason.
Roach urges that Texas’s clemency process violates the International Covenant on Civil and Political Rights (“ICCPR”), which the United States ratified in 1992. He contends that Texas lacks a meaningful clemency pro- cess as required by the sixth article of the ICCPR. Also, he suggests execution without a meaningful clemency process violates cus- tomary international law. Roach also argues that Texas’s unstruc- tured sentencing scheme is unconstitutional because it does not permit meaningful appel- late review. Roach claims he has a right for appellate review of the legal and factual suffi- ciency of the jury’s findings relating to Texas’s mitigation special issue.
In response, the district court deferred to the state habeas court’s determination that the Eight and Fourteenth Amendments do not re- quire an appellate court to reweigh punishment evidence. Reasonable jurists could not debate this conclusion. As the district court pointed out, the Supreme Court has not stated that re- view of mitigation evidence is constitutionally required. In contrast, the Court has stated that juries may evaluate mitigation evidence 3 and The district court found that when the Sen- ate ratified the ICCPR, it stated that articles one through twenty-seven were not self-exe- cuting, so Congress must incorporate those provisions into domestic law to make the cov- enant effective. Because Congress has not done so, the ICCPR is not binding law, and Roach’s appeal to its provisions fails. Along with the First and Sixth Circuits, we have previously concluded that ICCPR was not U.S. law because it is not self-executing 2 See also Buell v. Mitchell , 274 F.3d 337, 371- 72 (6th Cir. 2001); Igartua de la Rosa v. United States , 32 F.3d 8, 10 n.1 (1st Cir. 1994) (per curi- am).
proof beyond a reasonable doubt. 7 Roach’s argument confuses proving the elements of an offense beyond a reasonable doubt, which is required by In re Winship , 397 U.S. 358 (1970), with the contents of the elements themselves. Because Texas’s issue regarding future dangerousness must be proven beyond a reasonable doubt, reasonable jurists could not debate the district court’s opinion. that appellate review of the proportionality of a death sentence is not required where a stat- ute properlychannels a sentencer’s discretion. Moreover, we have rejected challenges to Tex- as’s appellate review of the special mitigation issue, holding it does not violate the Fourth or Eight Amendments and that it does not vio- late due process. In light of these precedents, no reasonable jurist could debate the district court’s decision.
We have already held that the burden of proof is not shifted to the defendant in Texas’s special issue, see Hughes v. Johnson , 191 F.3d 607, 625-26 (5th Cir. 1999), so reasonable jur- ists would not debate Roach’s objection on this ground. Similarly, we have held that a de- fendant’s argument that Texas’s special issue chilled the defendant’s ability to present rel- evant mitigating evidence is meritless. See Woods v. Johnson , 75 F.3d 1017, 1033 (5th Cir. 1996). Finally, the district court recited the long line of our cases holding that the terms included in the punishment special issue are constitutionally sufficient. 8 None of Roach’s objections to Texas’s special issue would cause reasonable jurists to debate the district court’s decision.
Roach avers that Texas’s special issue re- lating to the future dangerousness of the de- fendant is unconstitutional because it requires only proof of a probability of future danger- ousness and not proof beyond a reasonable doubt of future dangerousness, puts the bur- den of proof on the defendant, chilled Roach’s ability to present relevant mitigating evidence, and insufficiently guides the jury in making its determination. First, contrary to Roach’s con- tention, Texas’s special issue does require
pointed out that we have previously rejected this argument as meritless. See Alexander v. Johnson , 211 F.3d 895, 897, n.5 (5th Cir. 2000). In Alexander we explained as follows: Graham v. Collins , 506 U.S. 461, 476 (1993)). This jury instruction “does not unconstitutionally ‘preclude[ ] [the jury] from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the de- fendant proffers as a basis for a sentence less than death’” Id. (quoting Lockett v. Ohio , 438 U.S. 586, 604 (1978)). Roach’s potential for rehabilitation falls within the evidence this jury instruction permits the jury to consider based on our caselaw; no reasonable jurists could de- bate the district court’s decision to rely on this precedent.
In addition to be being barred by Teague , Alexander’s substantive argument is merit- less. The Supreme Court recently rejected the theory that a district court’s failure to instruct the jury as to the consequences of deadlock gives rise to an Eighth Amend- ment violation. See Jones v. United States , 527 U.S. 373 (1999). Furthermore, the Fifth Circuit has expressly rejected the con- tention that Texas’s 10-12 Rule prevents jurors from considering mitigating circum- stances. See Jacobs v. Scott , 31 F.3d 1319, 1328-29 (5th Cir.1994).
Roach alleges that Texas’s capital murder and death penalty statutes violate the Estab- lishment Clause of the First Amendment be- cause the statutes did not have a secular pur- pose, and the preeminent purpose of the stat- utes is religious. As evidence, he points to the primary sponsor’s purely religious arguments in favor of the bill and the inability of the spon- sors to articulate a reasonable secular purpose. Id. at 897 n.5. Because we have previously rejected Roach’s contention, no reasonable jurist could debate the district court’s conclu- sion.
Roach claims that his right to have a jury consider all evidence relevant to mitigation of the death sentence was violated because the definition of mitigating circumstances limited the jury’s consideration to evidence that might reduce Roach’s culpability of the crime, ex- cluding the potential for rehabilitation. The district court, citing to the trial transcript, not- ed that jurors were instructed to consider all evidence submitted to them in both phases of the trial and were told to consider mitigating evidence “to be evidence that a juror might re- gard as reducing the defendant’s moral blame- worthiness.”
The district court, however, noted that the primary sponsor of the bill asserted religious arguments only in response to an opponent’s religious arguments about the bill. The district court further noted that Roach presented evi- dence about the purpose of the bill only from the closing arguments for the bill. These few arguments, the district court reasoned, do not demonstrate the actual purpose of the bill. No reasonable jurist could debate the con- clusion that Roach has failed to show that Texas’s death penalty statutes violate the First Amendment. Roach presents only evidence from a small part of the legislative process, and the evidence merely demonstrates the sponsor used a religious argument to refute an oppo- This definition encompasses “‘virtually any mitigating evidence.’” Beazley v. Johnson 242 F.3d 248, 260 (5th Cir. 2001) (quoting nent’s religious argument, not to state the pur- pose of the statute. Moreover, as Roach’s brief highlights, the primary sponsor invited prosecutors to testify about the effect of the death penaltyon deterrence and incapacitation. That testimony stated secular purposes for the death penalty. Roach has not demonstrated that his attorney’s failure to allow him to testify constituted inef- fective assistance of counsel, because Roach failed to prove he was prejudiced as required by Strickland v. Washington , 466 U.S. 668 (1984). We have previously held that a defen- dant failed to meet Washington ’s prejudice standard, despite the fact his attorney prevent- ed him from testifying against his wishes, be- cause there was no reasonable probability that the defendant would not have received the death penalty if he had testified. See United States v. Mullins , 315 F.3d 449, 456 (5th Cir. 2001). Because of the defendant’s extensive criminal history and drug use, about which the government could cross-examine him, there was no reasonable probability that the jury would believe the defendant’s testimony in- stead of the arresting officers’. Id. Here, the district court reasoned, that there was no rea- sonable probability that Roach’s testimony would alter the outcome because of Roach’s criminal history, which included a prior murder and the brutal nature of this crime. “While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” Edwards v. Aguil- lard , 482 U.S. 578, 586-87 (1987). Here, where secular reasons for the statute were pro- vided and no evidence demonstrates a religious purpose, no reasonable jurists could debate the district court’s conclusion that Texas’s death penalty statutes do not offend the First Amendment.
Roach claims he was unconstitutionally de- prived of his right to testify in mitigation of his punishment. He informed his attorney he wanted to testify, Roach alleges, but his attor- ney told him he would not be called to testify.
No reasonable jurists could debate that the district court erred in deferring to the state ha- beas court’s finding SS Roach presented no evi- dence that the state court’s determination was unreasonable. Also, even if the district court accepted Roach’s account, no reasonable jurist could debate the conclusion that Roach’s tes- timony would have altered the outcome, given our analogous reasoning in Mullins and Roach’s criminal history and particular crime in this case. The district court rejected this claim for two reasons. First, the state habeas court de- termined that Roach did not ever express a de- sire to testify and that his attorney informed him of his right to testify. Without evidence contradicting these fact findings, the district court deferred to the state court’s finding. The state court had Roach’s affidavit, assert- ing he informed his attorney of his desire to testify, as well as his attorney’s affidavit, stat- ing she informed him of his right to testify and that he never told her he wanted to do so. From this evidence, the state court made its factual finding.
Roach argues that because of a conflict of interest, he received ineffective assistance of counsel, violating his Sixth and Fourteenth Amendment rights. He states that his attorney accepted employment with the prosecutor’s Second, the district court reasoned that office that was prosecuting Roach while she was still representing Roach on direct appeal. Roach fails to point to any adverse effects of the alleged conflict, such as points of error that should have been argued or additional ar- guments that were omitted from the points of error raised. He contends his attorney devoted less time to his brief than she could otherwise have devoted, but he fails to suggest any harm from this lack of time. We require a petitioner to show “some plausible defense strategy or tactic might have been pursued but was not, because of the conflict of interest.” 12 Without any showing of harm, reasonable jurists could not debate the district court’s conclusion that Roach has failed to establish this ineffective assistance of counsel claim. Roach’s attorney accepted employment with the prosecutor’s office beginning Janu- ary 1, 2000, but she filed a brief on Roach’s behalf on February 2, 2000. In an affidavit to the state habeas court, she explained that she completed Roach’s brief before going to work at the prosecutor’s office but merely filed the brief after starting work there. The affidavit also explained that the lawyer did not perform any work in the prosecutor’s office related to Roach and did not communicate any confiden- tial material to the prosecutor’s office. An- other attorney began representing Roach and filed a supplemental brief on his behalf with the Court of Criminal Appeals in May 2000, rais- ing three additional points of error.
The request for COA is DENIED. The district court found that the state habe- as court’s conclusions SS that no actual conflict of interest existed and that Roach did not prove he suffered harm SS not to be an unrea- sonable application of federal law. We do not address whether an actual conflict existed, be- cause reasonable jurists could not debate the conclusion that Roach failed to prove harm.
11 (...continued) 668, 694 (1984), and Beets v. Scott , 65 F.3d 1258, 1271-72 (5th Cir.1995) (en banc)). Though the district court analyzed the harm of Roach’s at- torney’s conflict under Cuyler ’s requirement that the conflict adversely affected his lawyer’s perfor- mance, Washington ’s requirement that the conflict prejudiced Roach’s defense is more onerous than Cuyler ’s requirement. Because Roach failed under Cuyler ’s standard, he also fails under Washing- ton ’s more exacting standard. Thus, though the district court erred in applying Cuyler instead of Washington , Roach’s argument is unavailing.