He then
ordered the manager's wife, Hye Kyong Kim, to retrieve her dying
husband's wallet and car keys from his pants pocket and ordered
her to empty the cash register. He then ordered her into her
vehicle and fled with her.
Watts sexually assaulted Mrs. Kim in
her car, then took her to his mother-in-law's apartment, where he
again raped and sodomized her and allowed his roommate, Terrance
Bolden, to rape her. Watts also forced Mrs. Kim to ingest
narcotics and attempted to insert his pistol into her vagina. Mrs.
Kim survived the ordeal and testified against Watts at his trial.
Watts was captured about three hours after the shootings, after he
attempted to flee by ramming two police cars. At the time of his
arrest he was still carrying the Tec-22 pistol which was matched
to slugs removed from the victims. Upon arrest, Watts gave a
complete confession, admitting the murders. Bolden was convicted
of aggravated sexual assault and sentenced to 14 years in prison.
Holding Mrs. Kim at gunpoint, Watts ordered her
into the Kims’ vehicle and fled the scene with her. For several
hours, Watts sadistically tortured and sexually assaulted Mrs. Kim
both in the vehicle and later in his mother-in-law’s apartment –
at one point allowing his roommate to rape her. Watts himself
repeatedly sodomized Mrs. Kim, forced her to ingest narcotics, and
attempted to rape her with the Tec-22 pistol. Acting on a phoned
in tip from a neighbor who had seen a TV story about the murders
and the missing vehicle, San Antonio Police captured Watts only
after he unsuccessfully attempted to escape by ramming the Kims’
vehicle into two police cruisers.
Kim's wife survived and testified against Watts
at his capital murder trial in 2003, identifying him as the gunman
and her attacker. At his trial, defense lawyers didn't deny Watts
was responsible for the slayings but tried to show he didn't
intend to kill the victims and was high on drugs.
In his written confession, Watts told police he
shot the three because they were yelling at him. "I did what I had
to do," he wrote. "I needed fast money, because that's what I'm
used to." When the execution date was set, Watts was removed from
the courtroom twice because of epithet laced tirades to the judge.
Watts v. Quarterman, 448 F.Supp.2d
786 (W.D.Tex. 2006) (Habeas).
Background: Petitioner sought writ of habeas
corpus, challenging his capital murder conviction and death
sentence.
Holdings: The District Court, Orlando F. Garcia,
J., held that:
(1) petitioner procedurally defaulted on
federal habeas claims asserting violation of Eighth Amendment
right to present mitigating evidence at penalty phase;
(2) petitioner procedurally defaulted on federal habeas claim
asserting violation of First Amendment right to freedom of
association; and
(3) prosecutor's closing argument at penalty phase did not make
the trial fundamentally unfair. Petition denied.
MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA, District Judge.
Petitioner Kevin Michael Watts, also known as
Kevin Vann, filed this federal habeas corpus action pursuant to
Title 28 U.S.C. Section 2254 challenging his February, 2003, Bexar
County capital murder conviction and sentence of death. For the
reasons set forth below, petitioner is entitled to neither federal
habeas corpus relief nor a Certificate of Appealability from this
Court.
I. Statement of the Case
A. Petitioner's Offense
The essential facts surrounding petitioner's
capital offense have never been in dispute. Petitioner executed a
pair of detailed, written statements shortly after his arrest and
has never presented any state or federal court with any evidence
controverting same.FN1
FN1. Two versions of petitioner's original,
written, post-arrest, statement or confession were admitted into
evidence and read verbatim into the record during the guilt-innocence
phase of petitioner's capital murder trial. A redacted or edited
version was admitted as State Exhibit No. 2 and recounted
petitioner's robbery of the Sam Won Gardens restaurant, his fatal
shooting of three persons inside the restaurant, his kidnaping of
a fourth person from the restaurant, and the circumstances
surrounding petitioner's arrest several hours later. Statement of
Facts from petitioner's trial (henceforth “S.F. Trial”), Volume 18
of 26, testimony of Barney Whitson, at pp. 63-68. A copy of State
Exhibit No. 2 appears in S.F. Trial, Volume 24 of 26.The full,
unedited, version of petitioner's original statement was admitted
into evidence as State Exhibit No. 2-A and read into the record
during the punishment phase of petitioner's trial. S.F. Trial,
Volume 22 of 26, testimony of Barney Whitson, at pp. 18-19. A copy
of State Exhibit No. 2-A appears in S.F. Trial, Volume 25 of 26.
In addition, petitioner gave law enforcement
officers a second written statement shortly after he executed his
first statement. This second statement was admitted and read
verbatim into evidence during the punishment phase of petitioner's
capital trial as State Exhibit No. 101. S.F. Trial, Volume 22 of
26, testimony of Barney Whitson, at pp. 22-27. A copy of State
Exhibit No. 101 appears in S.F. Trial, Volume 26 of 26.
Furthermore, the surviving victim and
eyewitness to petitioner's armed robbery and fatal shooting of
three people testified at petitioner's trial in a manner wholly
consistent with petitioner's written confessions.
More specifically, Hye Kyong Kim, the widow of Sam Won Gardens
restaurant manager Hak Po Kim, testified without contradiction at
the guilt-innocence phase of petitioner's capital trial that, on
the morning of March 1, 2002, (1) petitioner entered the
restaurant, fired a shot, and directed her and her husband at
gunpoint to move to the kitchen area, (2) petitioner then directed
the Kims and two restaurant employees, Yuan Tzu “Tina” Banks and
Chae Sun “Gina” Shook, to face a wall and kneel, (3) Mrs. Kim then
heard three shots, turned, and saw three bodies on the floor, (4)
petitioner then forced her to follow him, open the cash register,
and give petitioner all the money in the register, (5) petitioner
directed Mrs. Kim to retrieve the keys to her husband's vehicle
from his pocket, (6) when petitioner demanded more money, Mrs. Kim
also retrieved her husband's wallet as well as his keys and gave
same to petitioner, and (7) petitioner forced her into her
husband's vehicle and fled the scene in their vehicle.FN2
FN2. S.F. Trial, Volume 20 of 26, testimony of
Hye Kyong Kim, at pp. 132-41, 186-89, 191-95, 197, 220-22. Mrs.
Kim also testified petitioner threatened her during their flight
from the restaurant, struck her in the face with his fist, and
fired the gun inside the vehicle. Id., at pp. 195, 202-03, 208-09.
A produce delivery truck driver testified at
petitioner's trial that, on the morning in question (1) he
observed a black male shove a female into the Kims' vehicle and
flee the scene and (2) he entered the unusually silent restaurant
and observed two bodies on the floor. FN3. S.F. Trial, Volume 18
of 26, testimony of Jesse Rios, at pp. 77-114.
Several San Antonio Police Officers testified
regarding the circumstances surrounding petitioner's arrest on the
afternoon of March 1, 2002, specifically about (1) the
petitioner's unsuccessful attempt to flee from police by smashing
the Kims' stolen vehicle into two police vehicles before
petitioner drove into a wall, rendering the Kims' vehicle
inoperable, (2) Mrs. Kim's distraught condition as she fled the
damaged stolen vehicle, and (3) the handgun and cash police found
inside petitioner's jacket once petitioner had been arrested. FN4
FN4. Several San Antonio Police officers
testified (1) petitioner drove the Kims' stolen vehicle at a rapid
rate of speed toward the exit of an apartment complex in North San
Antonio, (2) the petitioner appeared wide-eyed when he saw police
officers in full uniform, (3) petitioner drove the Kims' stolen
vehicle, a silver Toyota 4Runner, into the side of a uniformed
officer's unmarked vehicle, hopped a curb, struck a second, marked,
police cruiser, and then slammed into the wall of an apartment
building, at which point the Kims' vehicle was no longer operable,
(4) a search of petitioner produced a TEC-22 handgun tied to the
petitioner's neck and shoulder inside the petitioner's jacket, as
well as several rolls of cash, and (5) Mrs. Kim appeared to be
distraught as she fled the damaged vehicle. S.F. trial, Volume 19
of 26, testimony of Andy Hernandez, at pp. 41-60; testimony of
David Payne, at pp. 85-98; testimony of Robert Rosales, at pp.
138-51; Volume 20 of 26, testimony of James Holguin, at pp.
27-41.A latent fingerprint examiner also testified fingerprints
found inside the Kims' stolen 4Runner matched petitioner's. S.F.
trial, Volume 20 of 26, testimony of Ray Frausto, at pp. 116-22.
Autopsies revealed that each of the three
persons shot inside the restaurant died as a result of a single
gunshot wound to the back of the head.FN5
FN5. The medical examiner who conducted the
autopsies of the three victims testified without contradiction
during the guilt-innocence phase of petitioner's trial that (1)
each of the three victims died as a result of a single gunshot
wound to the back of the head, (2) in each case, the fatal bullet
wound tracked from back to front and downward through the skull
and brain, with the bullet coming to rest inside the base of the
skull, and (3) all three fatal gunshot wounds were consistent with
a shot having been fired from above and behind the victim's head.
S.F. Trial, Volume 19 of 26, testimony of Randall Frost, at pp.
13-26.
Ballistics tests established the handgun
petitioner was carrying at the time of his arrest fired each of
the fatal shots.FN6
FN6. A firearms examiner testified (1) that
four cartridge casings found inside the restaurant were all fired
by the same handgun police found tied around petitioner's neck and
shoulder at the time of his arrest and (2) the three bullets
removed during the autopsies of the three victims were all fired
by the same weapon, i.e., the one petitioner had tied to his neck
and shoulder at the time of his arrest. S.F. Trial, Volume 20 of
26, testimony of Edard William Love, Jr., at pp. 84-94.
B. Indictment
On May 21, 2002, a Bexar County grand jury
returned a one-Count indictment in cause no. 2002-CR-3470 charging
petitioner with having fatally shot Hak Po Kim (1) while in the
course of the same criminal transaction in which petitioner
fatally shot Yuan Tzu Banks and (2) while in the course of
committing and attempting to commit the robbery of Hak Po Kim,
Yuan Tzu Banks, Chae Sun Shook, and Hye Hyong Kim.FN7
FN7. Transcript of pleadings, motions, and
other documents filed in petitioner's state trial court proceeding
(henceforth “Trial Transcript”), Volume 1 of 2, at p. 141.
C. Guilt-Innocence Phase of Trial
The guilt-innocence phase of petitioner's trial
began on February 10, 2003. On February 13, 2003, after hearing
the evidence summarized above and deliberating less than three
hours, the jury returned its verdict, finding petitioner guilty of
capital murder.FN8
FN8. Petitioner's jury began its deliberations
at the guilt-innocence phase of trial not earlier than 1:40 p.m.
on February 13, 2003 and returned its guilty verdict not later
than 4:10 p.m. the same date. S.F. Trial, Volume 21 of 26, at p.
128; Trial Transcript, at pp. 75-89.
D. Punishment Phase of Trial
The punishment phase of petitioner's trial
commenced on February 14, 2003.
1. The Prosecution's Case
During the punishment phase of petitioner's
trial, the prosecution presented (1) a host of documentary
evidence and testimony from law enforcement officers regarding
numerous instances of criminal conduct by petitioner FN9 and (2)
testimony from correctional officers concerning numerous instances
of violent or disruptive conduct by petitioner while in detention
awaiting trial for capital murder.FN10
FN9. More specifically, a fingerprint examiner
testified petitioner's fingerprints matched those found on not
less than eleven judgments of conviction in various misdemeanor
criminal proceedings, including the offenses of evading arrest,
criminal mischief, possession of marijuana, failure to identify (two
counts), criminal trespass (three counts), driving while
intoxicated, resisting arrest, and assault causing bodily injury (two
counts). S.F. Trial, Volume 22 of 26, testimony of Richard
Contreras, at pp. 10-16.A juvenile probation officer testified
petitioner had received a probated sentence in 1997 for unlawfully
carrying a weapon. S.F. trial, Volume 23 of 26, testimony of Eddie
Ortiz, at pp. 7-9.
A San Antonio Police officer testified about an
incident on July 21, 2001 in which (1) he responded to a call from
a woman named Marquketa Rector, whose face was lacerated and
covered in blood and who identified petitioner as the person who
had beaten her in the face, (2) he arrested petitioner, (3)
thereafter, while emergency medical personnel treated Ms. rector's
injuries, Tiffany Prince, who identified herself as petitioner's
common law wife, approached him and informed him that petitioner
had also assaulted her by striking her repeatedly in the face.
S.F. Trial, Volume 23 of 26, testimony of Montrose Butler, at pp.
124-29.
Another San Antonio Police officer testified
about an incident on February 8, 2002 during which petitioner
identified himself as a member of a street gang. S.F. Trial,
Volume 23 of 26, testimony of Ricardo Vijil, at pp. 133-34.
Yet another San Antonio Police officer
testified about an incident on December 15, 1998 during which
petitioner violently resisted arrest, fought with the officer, and
caused the officer to sustain a severely lacerated leg which
required several sutures to close. S.F. Trial, Volume 23 of 26,
testimony of Randy Geary, at pp. 101-23.
FN10. More specifically, several correctional
officer at the Bexar County Adult Detention Center testified
concerning incidents (1) on March 6, 2002, during which petitioner
exchanged punches with an Hispanic inmate, (2) on July 1, 2002,
during which petitioner became argumentative, assumed a physically
threatening, combative, posture, verbally abused, and threatened a
guard, (3) on October 13, 2002, during which petitioner had a
physical altercation with an Hispanic inmate in the rec yard which
necessitated both inmates being sent to the infirmary, and (4) on
November 14, 2002, during which petitioner and another Black
inmate were involved in a fight with two Hispanic inmates. S.F.
Trial, Volume 23 of 26, testimony of Carlos Soto, at pp. 30-34;
testimony of Jack Farmer, at pp. 64-69; testimony of William
Wadsworth, at pp. 55-58; testimony of Christopher LeBlanc, at pp.
46-49.
The prosecution also introduced a letter
petitioner had written while in custody awaiting trial for capital
murder, in which petitioner made several ethnic slurs against
Hispanics and Anglos and indicated his desire to join a Black
prison gang.FN11
FN11. The letter in question was admitted into
evidence during the punishment phase of petitioner's trial as
State Exhibit No. 105-A. S.F. Trial, Volume 23 of 26, testimony of
Mark Wells, at pp. 79-81 & 95. A copy of State Exhibit No. 105-A
appears in S.F. Trial, Volume 26 of 26.Significantly, the only
objection petitioner's raised to the admission of this letter
consisted of an argument that BCADC officials had illegally seized
the letter. At no point did petitioner's trial counsel raise any
complaint that admission of the letter violated petitioner's First
Amendment rights. S.F. Trial, Volume 23 of 26, at pp. 82-95.
Petitioner's kidnap victim, Hye Kyong Kim,
returned to the stand at the punishment phase of petitioner's
capital trial and testified that, after petitioner fled the
restaurant with her in her husband's vehicle, petitioner (1) tied
her hands to a headrest, (2) drove around for several hours, (3)
forced her to remove her shoes and pants, (4) repeatedly sprinkled
cocaine on his penis and forced her to perform fellatio on him,
(5) threatened to insert the barrel of his gun inside her vagina,
(6) snorted cocaine with a rolled-up ten or twenty dollar bill,
(7) unsuccessfully attempted to have sex with her on several
occasions, (8) sprinkled cocaine on her vagina and licked it off,
(9) gave her a beer to drink, (10) blindfolded her and took her to
an apartment complex where he locked her in a closet, directed her
to remove her underwear, and later directed her to put on a dirty
pair of underwear, (11) removed her from the closet and again
directed her to fellate him multiple times, (12) after again
unsuccessfully attempting to sexually assault her, took a shower,
and gave another occupant of the apartment permission to rape her,
(13) made her count the money he had taken from the restaurant,
and (14) again blindfolded her before returning her to the stolen
vehicle just before police apprehended him. FN12. S.F. Trial,
Volume 22 of 26, testimony of Hye Kyong Kim, at pp. 51-60.
2. The Defense's Case
The defense introduced testimony from
petitioner's cousins and mother-in-law to the effect that (1)
petitioner had developed a drug problem while living with his
mother in California and, at age fourteen, moved to live with an
aunt in San Antonio, (2) petitioner was a loving, friendly, giving,
kind-hearted person, (3) the handgun which petitioner told police
officer was his really belonged to one of his cousins, (4) another
of petitioner's cousins was actually the person who had assaulted
Marquketa Rector, not petitioner, (4) his conduct on March 1, 2002
was aberrational, (5) the night before the murders, petitioner
consumed massive quantities of alcohol and cocaine, and multiple
pills of Ecstasy, Valium, and Xanax, and (6) petitioner was a good
father to his daughter.FN13
FN13. S.F. Trial, Volume 23 of 26, testimony of
Sonia Watts, at pp. 170-225; testimony of Ronald Melvin Watts, at
pp. 226-47; testimony of Alicia Prince, at pp. 247-54.
Petitioner's common law wife testified on
direct examination that (1) she had known petitioner for two years
and seven months, (2) she had only known petitioner to use drugs
during the two months immediately prior to petitioner's capital
offense, (3) when petitioner was high on drugs he was a very
different person than he was otherwise, (4) she spoke with
petitioner on the phone the night before the murders and could
tell petitioner was high on something, and (5) while petitioner
once pushed her in the face, petitioner was normally a nice,
loving, person.FN14 On cross-examination, however, she admitted
(1) petitioner had a drug problem at least as early as July, 2001,
(2) petitioner failed to take advantage of the drug-treatment
programs available to him while he was in custody prior to March,
2002, and (3) petitioner had been in a street gang in California
before he came to live in Texas.FN15
FN14. S.F. Trial, Volume 24 of 26, testimony of
Tiffany Prince, at pp. 73-86. FN15. Id., at pp. 91-103.
The defense then introduced the testimony of a
licensed social worker and chemical dependency counselor who
described herself as a “mitigation specialist” and who testified
she had interviewed petitioner and his family and reviewed
petitioner's school, jail, medical, and psychiatric records and
opined that (1) petitioner had experienced many negative
influences during his developmental years and (2) petitioner was
probably in the midst of a substance-induced psychosis or
delusional state at the time of his capital offense.FN16
Significantly, the state trial court repeatedly sustained the
prosecution's hearsay objections whenever defense counsel
attempted to elicit testimony from this witness concerning the
contents of petitioner's school, medical, or jail records and
concerning the contents of her discussions with petitioner's
family and friends.FN17
FN16. S.F. Trial, Volume 24 of 26, testimony of
Linda Mockeridge, at pp. 113-32. FN17. Id., at pp. 122-23, 128-29,
132.
3. The Verdict
After deliberating less than three hours, the
jury returned its verdict at the punishment phase of petitioner's
capital trial, unanimously finding (1) there was a probability the
petitioner would commit criminal acts of violence that would
constitute a continuing threat to society and (2) taking into
consideration all the evidence, including the circumstances of the
offense and the defendant's character, background, and personal
moral culpability, there were insufficient mitigating
circumstances to warrant that a sentence of life imprisonment,
rather than a death sentence, be imposed on petitioner.FN18
FN18. Petitioner's jury retired to deliberate
at the punishment phase of petitioner's trial at 3:35 p.m. on
February 19, 2003 and returned its verdict at approximately 5:50
p.m. that same date. Trial Transcript, Volume 1 of 2, at pp.
102-03; S.F. Trial, Volume 24 of 26, at pp. 198-206.
E. Direct Appeal
In an unpublished, per curiam opinion issued
December 15, 2004, the Texas Court of Criminal Appeals affirmed
petitioner's conviction and sentence on direct appeal.FN19
Petitioner did not thereafter seek certiorari review of his
conviction and sentence by the United States Supreme Court.
FN19. Watts v. State, AP-74,593 (Tex.Crim.App.
December 15, 2004).As points of error on direct appeal, petitioner
argued (1) the state trial court abused its discretion when it (a)
admitted evidence during the punishment phase of petitioner's
trial indicating petitioner's desire to join a black racist prison
gang and (b) permitted the prosecution to make a racist jury
argument referring to same, (2) petitioner's sentence was grossly
disproportionate to petitioner's crimes, and (3) the death
sentence violates the Eighth Amendment. The Texas Court of
Criminal Appeals held (1) petitioner failed to properly preserve
his complaints about the admission of petitioner's letter
indicating petitioner's desire for membership in a black prison
gang and the prosecution's closing argument referring to same by
failing to timely object to same on constitutional grounds, i.e.,
the grounds urged on appeal, (2) there is no right to a
proportionality review of a capital sentence, and (3) petitioner's
conclusory Eighth Amendment claim was without merit.
F. State Habeas Corpus Proceeding
Petitioner filed his first state habeas corpus
application on May 3, 2004, asserting three claims for relief
therein.FN20 On October 14, 2004, the state responded to
petitioner's first state habeas corpus application. FN21 On
October 25, 2004 petitioner filed a “supplemental” state habeas
corpus application in which, for the first time, he asserted
claims that his trial and appellate counsel had rendered
ineffective assistance by failing to timely object to, and present
points of error on direct appeal complaining about, the state
trial court's rulings on the admissibility of Ms. Mockeridge's
expert testimony.FN22
FN20. Transcript of pleadings, motions, and
other documents filed in petitioner's first state habeas corpus
action, i.e., App. No. 62-250-01 & 62,650-02 (henceforth “State
Habeas Transcript”), at pp. 1-34.Petitioner's first state habeas
corpus application asserted three claims for relief, to wit,
arguments that (1) the state trial court erred when it “severely
limited” the testimony of petitioner's mitigation expert, (2) the
state trial court erred when it permitted the prosecution to
introduce evidence showing petitioner's desire to join a black
racist prison gang, and (3) the prosecution improperly used its
evidence of petitioner's desire to join a black prison gang in a
racist manner during closing argument.
FN21. State Habeas Transcript, at pp. 79-99.The
state argued that (1) the state trial court had not, in fact,
restricted Ms. Mockeridge's expert testimony but, rather, had
permitted her to express the same opinions before the jury that
she expressed during the hearing on the admissibility of her
testimony and petitioner's trial counsel failed to preserve any
error concerning the trial court's rulings on Ms. Mockeridge's
status as an expert witness by failing to make a timely proffer of
any additional testimony she could have given at petitioner's
trial and failing to challenge the trial court's ruling on direct
appeal, (2) petitioner's trial counsel likewise failed to preserve
any alleged constitutional error in the admission of petitioner's
vitriolic letter from prison or to the prosecution's closing jury
argument at the punishment phase of petitioner's trial by failing
to make a timely objection on constitutional grounds to same, and
(3) petitioner's grounds for state habeas relief, at best, raised
only harmless error. FN22. State Habeas Transcript, at pp. 35-46.
In an Order issued November 23, 2004, the state
habeas trial court (1) found the trial court had ruled that Ms.
Mockeridge, while not specifically determined to be an expert on
mitigation, would be permitted to testify as an expert, (2) found
the trial court sustained the prosecution's hearsay objection to
Ms. Mockeridge's summary chart, (3) found Ms. Mockeridge was
permitted to testify regarding the nature of the documents and
other evidence she had reviewed while developing her psycho-social
history of petitioner but was not allowed to testify as to the
specific contents of those hearsay documents and conversations,
(4) found Ms. Mockeridge was permitted to express her opinions
that numerous negative factors impacted on petitioner's childhood
development and that petitioner was probably “in the midst of a
substance [-]induced psychosis” at the time of his offense, (5)
found any confusion in the trial court's rulings regarding Ms.
Mockeridge's testimony excluded only hearsay testimony on her part
and not any expression of her expert opinions, (6) found
petitioner never complained to the trial court that its rulings
had impacted on petitioner's constitutional right to present
mitigating evidence, (7) concluded petitioner had procedurally
defaulted on his constitutional complaint regarding the trial
court's rulings on Ms. Mockeridge's testimony by failing to timely
make a bill of exceptions regarding same and failing to present
those complaints on direct appeal, (8) alternatively concluded
there was no error in the trial court's rulings on the proper
scope of Ms. Mockeridge's testimony, (9) found petitioner's trial
counsel first raised the issue of gang membership at trial, (10)
found no evidence was admitted identifying either the Longview
Crips, i.e., the California street gang to which petitioner
admitted once having been a member, or the Black Gorilla Family,
i.e., the prison gang to which petitioner wrote he planned to seek
membership, were “racist” gangs, (11) found petitioner made no
constitutional objection to the admission of any evidence showing
petitioner was either a member of the Longview Crips or hoped one
day to be a member of the Black Gorilla Family, (12) found
petitioner made no constitutional objection to the prosecution's
wholly proper summary of the evidence before the jury during
closing argument at the punishment phase of petitioner's trial,
and (13) concluded petitioner procedurally defaulted on his
constitutional complaints about the admission of State Exhibit No.
105-A and the prosecution's closing argument by failing to make
timely objections on constitutional grounds thereto. FN23. State
Habeas Transcript, at pp. 180-204.
In an Order issued July 11, 2005, the state
habeas trial court ruled petitioner's “supplemental” application
was untimely and did not qualify under applicable state law as a
“successive” application. FN24. State Habeas Transcript, at pp.
169-71.
In an unpublished, per curiam, Order issued
October 19, 2005, the Texas Court of Criminal Appeals (1) adopted
the trial court's findings and conclusions concerning petitioner's
initial three claims, (2) denied all relief requested in
petitioner's initial state habeas corpus application, and (3)
dismissed petitioner's “supplemental” state habeas application as
a successive application under the Texas writ-abuse statute. FN25.
Ex parte Kevin Watts, WR-62,650-01 & WR-62,650-02 (Tex.Crim.App.
October 19, 2005).
G. Petitioner's Federal Habeas Corpus
Proceeding
Petitioner filed his federal habeas corpus
petition on December 29, 2005, alleging in his petition (1) the
state trial court violated his Eighth Amendment right to present
mitigating evidence when it restricted the trial testimony of its
mitigation expert, Ms. Mockeridge, by not permitting her to
testify “as a mitigation expert,” (2) the trial court violated
petitioner's First Amendment rights and the Supreme Court's
holding in Dawson v. Delaware by permitting the prosecution to
admit evidence showing petitioner's desire for membership in a
black prison gang, and (3) the prosecution violated petitioner's
Fifth and Fourteenth Amendment rights when it used evidence of
petitioner's gang affiliation “in a racist manner' during closing
arguments at the punishment phase of trial”. FN26. Petitioner's
Petition for Writ of Habeas Corpus, filed December 29, 2005,
Docket entry no. 6 (henceforth “Petition”).
On May 18, 2006, respondent filed his answer,
arguing in pertinent part that (1) petitioner had procedurally
defaulted on his complaints regarding the trial court's rulings on
the admissibility of Ms. Mockeridge's testimony by failing to
contemporaneously object thereto, timely make a bill of exceptions,
or raise same on direct appeal, (2) the state trial court
committed no constitutional error in its rulings regarding Ms.
Mockeridge's testimony or the admissibility of the hearsay
contained in her report and summary chart, (3) petitioner
procedurally defaulted on his constitutional complaints regarding
the admission of petitioner's letter regarding his hoped-for
prison gang membership by failing to make a contemporaneous
constitutional objection thereto, (4) the trial court committed no
constitutional error when it admitted petitioner's letter, (5)
petitioner procedurally defaulted on his constitutional complaints
concerning the prosecution's punishment-phase closing argument by
failing to raise any timely objection thereto, and (6) any error
in the state trial court's failure to sua sponte correct the
prosecution during closing argument did not rise above harmless
error. FN27. Docket entry no. 12.
On June 13, 2006, petitioner filed a reply to
respondent's answer in which petitioner argued (1) respondent's
arguments effectively eliminated the need for petitioner to allege
and prove ineffective assistance by petitioner's trial counsel,
(2) the state trial court effectively prevented petitioner from
presenting mitigating evidence showing the details of petitioner's
neglected and deprived childhood, and (3) the “illiterate
gibberish” contained in petitioner's letter from jail was
erroneously construed by the prosecution during closing argument
as threatening in nature. FN28. Docket entry no. 16.
* * *
III. Exclusion of Mitigating Evidence Claim
A. The Claim
In his first claim herein, petitioner argues
the state trial court violated his Eighth Amendment right to
present mitigating evidence when it restricted the trial testimony
of its mitigation expert, Ms. Mockeridge, by not permitting her to
testify “as a mitigation expert” about numerous events which
negatively impacted petitioner's childhood development, including
the fact the petitioner (1) was sexually abused by a male baby-sitter,
(2) engaged in gang activities and drug use from an early age, and
(3) experienced a very disruptive family life. FN29. Petition,
docket entry no. 6, at pp. 8-17.
More specifically, petitioner argues that, but
for the trial court's rulings, Ms. Mockeridge could have testified
that, in her opinion, (1) petitioner's health and emotional
development were at risk from his early youth, (2) petitioner felt
abandoned and lacked a sense of trust, (3) as a child, petitioner
was preoccupied and oriented to a survival mode, (4) persons
raised in survival mode lack good coping skills, (5) as a result
of having been victimized by a sexual predator, petitioner
developed trust and abandonment issues and a need to belong and to
have safety, which, in turn led to petitioner becoming involved
with gangs by age eight, (6) petitioner began abusing drugs at age
ten, (7) petitioner had genetic loading with a positive family
history of drugs and alcohol, (8) petitioner developed insecure,
isolated, unhealthy relationships, (9) petitioner was failure-oriented,
possessed low self-concept, and felt hopeless, (10) petitioner
learned inappropriate responses, behaviors, and beliefs, (11)
petitioner's life view was one of hopelessness, lack of coping
skills, poor judgment, and impaired decision-making ability, (12)
petitioner had a distorted sense of reality and identity, low
tolerance, no sense of direction or purpose, and inappropriate
responses, (13) petitioner is emotionally damaged, disabled, and
dysfunctional, uses illegal drugs to self-medicate to calm himself,
and (14) petitioner was probably in a psychotic state at the time
of the murders. FN30. Affidavit of Linda Mockeridge, attached as
Exhibit L to Petition, docket entry no. 6. Petitioner presented
the same affidavit to the state courts during his state habeas
corpus proceeding. State Habeas Transcript, at pp. 30-32.
B. State Court Disposition
During the punishment phase of petitioner's
capital trial, the trial court held a hearing outside the presence
of the jury during which Ms. Mockeridge testified concerning (1)
her training and experience as a master's level social worker,
licensed chemical dependency counselor, psychotherapist, and
“mitigation specialist,” (2) the extent of her efforts to
investigate petitioner's background and to develop a psycho-social
history of petitioner, (3) her opinion that petitioner was
probably in a psychotic state at the time of his capital
offense.FN31
After hearing extensive argument from the
parties regarding whether “mitigation science” was a legitimate
field of scientific inquiry for which Ms. Mockeridge qualified as
an “expert,” the state trial judge (1) ruled “in an abundance of
caution” that he would permit Ms. Mockeridge to testify as an
expert but was not specifically finding her to be an expert as to
“mitigation science” per se, (2) ruled inadmissible a summary
chart prepared by Ms. Mockeridge which contained hearsay, and (3)
advised the parties he would address the prosecution's concerns
about Ms. Mockeridge's apparent plans to relate to the jury wholly
hearsay information she had obtained from other sources on a
question-by-question basis.FN32
FN31. S.F. Trial, Volume 24 of 26, testimony of
Linda Mockeridge, at pp. 5-56. FN32. S.F. Trial, Volume 24 of 26,
at pp. 57-72.
Thereafter, petitioner called Ms. Mockeridge as
a witness and she testified she had interviewed petitioner and his
family and reviewed petitioner's school, jail, medical, and
psychiatric records and opined that (1) petitioner had experienced
many negative influences during his developmental years and (2)
petitioner was probably in the midst of a substance-induced
psychosis or delusional state at the time of his capital
offense.FN33 The state trial court repeatedly sustained the
prosecution's hearsay objections whenever defense counsel
attempted to elicit testimony from Ms. Mockeridge concerning the
contents of petitioner's school, medical, or jail records and
concerning the contents of her discussions with petitioner's
family and friends. FN34
On cross-examination, Ms. Mockeridge admitted
(1) she was unaware of the legal definition of “mitigating
evidence” until the date of petitioner's trial, (2) a “mitigation
specialist” does basically the same thing as a social worker,
i.e., investigate a person's background for the purpose of
developing a psycho-social history of that person, and (3) she had
not reviewed any of the police reports or other evidence relating
to petitioner's capital offense. FN35
FN33. S.F. Trial, Volume 24 of 26, testimony of
Linda Mockeridge, at pp. 113-32. FN34. Id., at pp. 122-23, 128-29,
132. FN35. Id., at pp. 134-51.
Petitioner's trial counsel made no effort
whatsoever to elicit any opinion testimony from Ms. Mockeridge
along the lines of that contained in the affidavit petitioner
later presented to the state habeas court and to this Court, i.e.,
addressing her opinions concerning the impact of the many negative
influences occurring during petitioner's childhood on petitioner's
psychological and social development.
More specifically, petitioner made no effort at
trial to elicit testimony from Ms. Mockeridge with regard to her
opinions that petitioner (1) felt abandoned and lacked a sense of
trust, (2) as a child, was preoccupied and oriented to a survival
mode, (3) lacked good coping skills, (4) had trust and abandonment
issues and the needs to belong and for safety, (5) developed
insecure, isolated, unhealthy relationships, (6) was failure-oriented,
possessed low self-concept, and felt hopeless, (7) learned
inappropriate responses, behaviors, and beliefs, (8) had a life
view characterized by hopelessness, lack of coping skills, poor
judgment, and impaired decision-making ability, (9) had a
distorted sense of reality and identity, low tolerance, no sense
of direction or purpose, and inappropriate responses, and (10) was
emotionally damaged, disabled, and dysfunctional, and used illegal
drugs to self-medicate to calm himself.
Petitioner's trial counsel likewise made no
effort to introduce properly authenticated copies of petitioner's
relevant school, medical, jail, and other records relied upon by
Ms. Mockeridge in the course of developing her psycho-social
history of petitioner. Likewise, petitioner's trial counsel made
no effort to introduce any testimony from petitioner's family,
friends, or others possessing personal knowledge regarding the
circumstances of petitioner's allegedly difficult childhood.
Instead, petitioner's trial counsel attempted, unsuccessfully, to
employ Ms. Mockeridge's status as an “expert” witness to
circumvent the Hearsay Rule and introduce rank hearsay information
about petitioner's childhood through her trial testimony.
The state trial court sustained the
prosecution's hearsay objections to these attempts, as well as the
prosecution's hearsay objections to Ms. Mockridge's written report
and a summary chart detailing the information she had acquired
while developing her psycho-social history of petitioner. In sum,
while the state trial court permitted Ms. Mockeridge to express
some of her expert opinions regarding the negative influences
affecting petitioner's development and petitioner's likely mental
condition at the time of his offense, the state trial court
excluded any and all hearsay testimony by Ms. Mockeridge detailing
precisely what information she had relied upon in arriving at her
opinions.
For unknown reasons, petitioner's trial counsel
made no effort to introduce in admissible form any of the
underlying evidence relied upon by Ms. Mockeridge in the course of
developing her expert opinions. For instance, petitioner's trial
counsel made no effort to secure and introduce certified, or
otherwise properly authenticated, copies of the petitioner's birth,
school, medical, mental health, juvenile, residency, or jail
records relied upon by Ms. Mockeridge in formulating her expert
opinions. Likewise, petitioner's trial counsel called no witnesses
possessing personal knowledge regarding the details of
petitioner's allegedly deprived childhood relied upon by Ms.
Mockeridge in developing her psycho-social history of petitioner.
Petitioner's trial counsel voiced no objection
to any of the trial court's evidentiary rulings concerning Ms.
Mockeridge. Petitioner's trial counsel made no proffer of
additional opinion testimony from Ms. Mockeridge along the lines
of that contained in her affidavit now before this Court. After
the jury began its deliberations at the punishment phase of
petitioner's capital trial, petitioner did move for the admission
of Ms. Mockeridge's written report, as well as her summary chart,
and the trial court admitted both for purposes of the record.
FN36. S.F. Trial, Volume 24 of 26, at pp. 199-201.
Petitioner raised no point of error on direct
appeal complaining about the trial court's rulings with regard to
Ms. Mockedridge's testimony, report, or chart.
In his original state habeas corpus application,
however, he complained for the first time that the trial court's
rulings regarding Ms. Mockeridge's testimony had effectively
precluded petitioner from presenting “mitigating” evidence to his
capital sentencing jury. FN37. State Habeas Transcript, at pp.
12-21.
The state habeas trial court (1) found the
trial court had ruled that Ms. Mockeridge, while not specifically
determined to be an expert on mitigation, would be permitted to
testify as an expert, (2) found the trial court sustained the
prosecution's hearsay objection to Ms. Mockeridge's summary chart,
(3) found Ms. Mockeridge was permitted to testify regarding the
nature of the documents and other evidence she had reviewed while
developing her psycho-social history of petitioner but was not
allowed to testify as to the specific contents of those hearsay
documents and conversations, (4) found Ms. Mockeridge was
permitted to express her opinions that numerous negative factors
impacted on petitioner's childhood development and that petitioner
was probably “in the midst of a substance[-]induced psychosis” at
the time of his offense, (5) found any confusion in the trial
court's rulings regarding Ms. Mockeridge's testimony excluded only
hearsay testimony on her part and not any expression of her expert
opinions, (6) found petitioner never complained to the trial court
that its rulings had impacted on petitioner's constitutional right
to present mitigating evidence, (7) concluded petitioner had
procedurally defaulted on his constitutional complaint regarding
the trial court's rulings on Ms. Mockeridge's testimony by failing
to timely make a bill of exceptions regarding same and failing to
present those complaints on direct appeal, (8) alternatively
concluded there was no error in the trial court's rulings on the
proper scope of Ms. Mockeridge's testimony.FN38 The Texas Court of
Criminal Appeals subsequently adopted the trial court's findings
and conclusions when it denied state habeas corpus relief. Ex
parte Kevin Watts, WR-62,650-01 & WR-62,650-02 (Tex.Crim.App.
October 17, 2005). FN38. State Habeas Transcript, at pp. 184-94.
C. Procedural Default
Respondent correctly points out that petitioner
procedurally defaulted on his complaints concerning the trial
court's rulings on Ms. Mockeridge's testimony by failing to timely
object on constitutional grounds to same and, thereafter, failing
to raise points of error on direct appeal challenging the trial
court's rulings.
1. Failure to Make a Contemporaneous
Objection
Petitioner's failure to contemporaneous object
to the state trial court's allegedly “limiting” rulings regarding
the admissibility of Ms. Mockeridge's testimony, written report,
and summary chart constitutes a form of procedural default, which
serves as a barrier to federal habeas review of this claim. See
Johnson v. Cain, 215 F.3d 489, 495 (5th Cir.2000) (holding a
federal district court may raise the issue of procedural default
sua sponte); Magouirk v. Phillips, 144 F.3d 348, 358 (5th
Cir.1998)(holding the same).
In point of fact, petitioner failed to make any
proffer at trial, and likewise failed to obtain a state trial
court ruling specifically addressing the admissibility, of the
additional opinion testimony contained in Ms. Mockeridge's
affidavit now before this Court. Simply put, the state trial court
never had an opportunity to address specifically the admissibility
of Ms. Mockeridge's additional opinion testimony, proffered for
the first time in her affidavit which accompanied petitioner's
initial state habeas corpus application.
Procedural default occurs where (1) a state
court clearly and expressly bases its dismissal of a claim on a
state procedural rule, and that procedural rule provides an
independent and adequate ground for the dismissal, or (2) the
petitioner fails to exhaust all available state remedies, and the
state court to which he would be required to petition would now
find the claims procedurally barred. Coleman v. Thompson, 501 U.S.
722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991).
In either instance, the petitioner is deemed to
have forfeited his federal habeas claim. O'Sullivan v. Boerckel,
526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999).
Procedural defaults only bar federal habeas review when the state
procedural rule which forms the basis for the procedural default
was “firmly established and regularly followed” by the time it was
applied to preclude state judicial review of the merits of a
federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424,
111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991).
Petitioner alleges no facts, and cites this
Court to no Texas case law, showing the Texas courts have
inconsistently applied the contemporaneous objection rule in
similar contexts, i.e., with regard to alleged errors in the
admission of evidence. More specifically, petitioner identifies no
instances in which the Texas Court of Criminal Appeals has
entertained the merits of a claim challenging the
constitutionality of a state trial court's ruling on the
admissibility of potentially mitigating evidence at the punishment
phase of a capital trial when raised for the first time in a state
habeas corpus application.
The Fifth Circuit has long recognized a federal
habeas petitioner's failure to comply with the Texas
contemporaneous objection rule as an adequate and independent
state procedural barrier to federal habeas review. See Rowell v.
Dretke, 398 F.3d 370, 375-75 (5th Cir.2005) (holding a defendant's
failure to timely object to alleged errors in a jury charge
determined by a Texas appellate court to be a violation of the
Texas contemporaneous objection rule barred federal habeas relief
of the alleged erroneous jury charge under the procedural default
doctrine), cert. denied, 546 U.S. 848, 126 S.Ct. 103, 163 L.Ed.2d
117 (2005); Graves v. Cockrell, 351 F.3d 143, 152 (5th Cir.2003)
(Texas contemporaneous objection rule is an adequate and
independent state ground and failure to comply with this rule
procedurally bars federal habeas review), cert. denied, 541 U.S.
1057, 124 S.Ct. 2160, 158 L.Ed.2d 757 (2004); Cotton v. Cockrell,
343 F.3d 746, 754 (5th Cir.2003) (holding violation of the Texas
contemporaneous objection rule is an adequate and independent
barrier to federal habeas review), cert. denied, 540 U.S. 1186,
124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Dowthitt v. Johnson, 230
F.3d 733, 752 (5th Cir.2000)(holding the Texas contemporaneous
objection rule is strictly or regularly and evenhandedly applied
in the vast majority of cases and, therefore, an adequate state
bar), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156
(2001); Barrientes v. Johnson, 221 F.3d 741, 779 (5th Cir.2000)(failure
to timely object waives error in jury instructions unless the
error is so prejudicial no instruction could cure the error), cert.
denied, 531 U.S. 1134, 121 S.Ct. 902, 148 L.Ed.2d 948 (2001);
Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.1998) (Texas courts
strictly and regularly apply the Texas contemporaneous objection
rule which is an adequate state procedural rule), cert. denied,
523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Sharp v.
Johnson, 107 F.3d 282, 285-86 (5th Cir.1997) (holding the Texas
contemporaneous objection rule is an independent and adequate
state ground upon which to base a procedural bar to federal review);
Rogers v. Scott, 70 F.3d 340, 342 (5th Cir.1995)(holding a federal
habeas petitioner's failure to comply with the Texas
contemporaneous objection rule also bars federal habeas review of
a claim absent cause and prejudice or a fundamental miscarriage of
justice), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d
176 (1996); Nichols v. Scott, 69 F.3d 1255, 1278 n. 44 (5th
Cir.1995) (holding the same), cert. denied, 518 U.S. 1022, 116
S.Ct. 2559, 135 L.Ed.2d 1076 (1996); Amos v. Scott, 61 F.3d 333,
338-45 (5th Cir.1995)(holding the same), cert. denied, 516 U.S.
1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995).
More importantly, the Fifth Circuit has
recognized the efficacy of the Texas contemporaneous objection
rule as a barrier to federal habeas review was “firmly established”
for federal procedural default purposes long before the date
petitioner filed his brief on direct appeal. See Hogue v. Johnson,
131 F.3d 466, 487 (5th Cir.1997) (holding the Texas
contemporaneous objection rule was already well established 35
years ago and recognized as an adequate state procedural barrier
to federal habeas review at least twenty years ago), cert. denied,
523 U.S. 1014, 118 S.Ct. 1297, 140 L.Ed.2d 334 (1998); Rogers v.
Scott, 70 F.3d at 342 (recognizing the Texas contemporaneous
objection rule foreclosed federal habeas review); Amos v. Scott,
61 F.3d at 343-44 (holding Texas appellate courts consistently
apply the contemporaneous objection rule in the vast majority of
cases and, thereby, strictly and regularly apply same).
Petitioner's trial counsel wholly failed to
present the trial court with any opportunity to rule on the
admissibility of Ms. Mockeridge's additional opinion testimony,
i.e., that contained in her affidavit now before this Court.
Petitioner failed to obtain a state trial court ruling regarding
the admissibility of the vast bulk of Ms. Mockeridge's recently-proffered
opinion testimony and failed to object to any ruling by the trial
court purporting to limit the scope of Ms. Mockeridge's opinion
testimony. For those reasons, petitioner procedurally defaulted on
his first claim for federal habeas relief herein.
2. Failure to Raise Claim on Direct Appeal
Likewise, the Fifth Circuit has long recognized
the efficacy of the Texas procedural rule requiring presentation
of claims about allegedly erroneous trial court rulings on direct
appeal. Petitioner identifies no instances in which the Texas
Court of Criminal Appeals has entertained the merits of a federal
constitutional claim about a state trial court's allegedly
erroneous evidentiary ruling when that claim was raised for the
first time in a state habeas corpus application.
More importantly, the Fifth Circuit has
recognized that the same procedural default rule relied upon by
the Texas Court of Criminal Appeals in its adopted findings and
conclusions denying petitioner state habeas corpus relief was
“firmly established” for federal procedural default purposes
before the date the Texas Court of Criminal Appeals disposed of
petitioner's direct appeal. See Busby v. Dretke, 359 F.3d 708, 719
(5th Cir.2004), (holding the Texas Court of Criminal Appeals'
opinion in Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Crim.App.1996)
modified on motion for rehearing on February 2, 1998, to recognize
this new procedural default rule, “firmly entrenched” that
procedural default rule on that date), cert. denied, 541 U.S.
1087, 124 S.Ct. 2812, 159 L.Ed.2d 249 (2004); Finley v. Johnson,
243 F.3d 215, 219 (5th Cir.2001) (holding a federal habeas
petitioner procedurally defaulted on an unexhausted newly
discovered evidence theory supporting a Brady claim by failing to
raise same on direct appeal); Soria v. Johnson, 207 F.3d 232, 249
(5th Cir.2000) (holding a federal habeas petitioner procedurally
defaulted on a fair cross-section complaint by failing to raise it
in a direct appeal that became final in 1997), cert. denied, 530
U.S. 1286, 121 S.Ct. 2, 147 L.Ed.2d 1027 (2000).
At the time petitioner filed his appellant's
brief the law in Texas, as established on rehearing in Ex parte
Gardner, required a convicted criminal defendant to present any
and all claims then available as points of error on direct appeal.
Id. For unknown reasons, petitioner's appellate counsel failed to
assert petitioner's complaint regarding the trial court's rulings
on Ms. Mockeridge's testimony as a point of error on direct
appeal. Thus, petitioner has procedurally defaulted on this claim
in this Court.
Petitioner has twice procedurally defaulted on
his federal claim arising from the trial court's allegedly
restrictive or limiting rulings on Ms. Mockeridge's testimony.
3. Exceptions Inapplicable
Petitioner's failures to make a timely
constitutional objection to the state trial court's allegedly
“restrictive” or “limiting” rulings on the admissibility of Ms.
Mockeridge's punishment-phase testimony or to raise points of
error complaining about same on direct appeal bar federal habeas
review of petitioner's constitutional challenge to those rulings
unless petitioner can satisfy one of the two exceptions to the
procedural default doctrine.
The Supreme Court has recognized exceptions to
the doctrine of procedural default where a federal habeas corpus
petitioner can show “cause and actual prejudice” for his default
or that failure to address the merits of his procedurally
defaulted claim will work a “fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v.
Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308
(1989). To establish “cause,” a petitioner must show either that
some objective external factor impeded the defense counsel's
ability to comply with the state's procedural rules or that
petitioner's trial or appellate counsel rendered ineffective
assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at
2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645,
91 L.Ed.2d 397 (1986) (holding that proof of ineffective
assistance by counsel satisfies the “cause” prong of the exception
to the procedural default doctrine).
While a showing of ineffective assistance can
satisfy the “cause” prong of the “cause and actual prejudice”
exception to the procedural default doctrine, petitioner does not
allege any specific facts in this Court establishing that his
trial counsel's failure to assert a constitutional challenge to
the trial court's rulings on Ms. Mockerdige's testimony or his
appellate counsel's failure to present points of error on direct
appeal complaining about same satisfy either prong of the
Strickland v. Washington test for ineffective assistance.
In order to satisfy the “miscarriage of justice”
test, the petitioner must supplement his constitutional claim with
a colorable showing of factual innocence. Sawyer v. Whitley, 505
U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). In
the context of the punishment phase of a capital trial, the
Supreme Court has held that a showing of “actual innocence” is
made when a petitioner shows by clear and convincing evidence that,
but for constitutional error, no reasonable juror would have found
petitioner eligible for the death penalty under applicable state
law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. at 2523.
The Supreme Court explained in Sawyer v.
Whitley this “actual innocence” requirement focuses on those
elements which render a defendant eligible for the death penalty
and not on additional mitigating evidence that was prevented from
being introduced as a result of a claimed constitutional error.
Sawyer v. Whitley, 505 U.S. at 347, 112 S.Ct. at 2523. Petitioner
has alleged no specific facts satisfying this “factual innocence”
standard. At the punishment phase of petitioner's capital trial,
Ms. Mockeridge made the jury aware of the fact there had been many
negative influences on petitioner's childhood development.FN39
Petitioner's cousins informed the jury the petitioner was involved
with gangs and drugs by the time he arrived in Texas at age
fourteen.FN40 Thus, Ms. Mockeridge's additional opinion testimony,
proffered in her affidavit, offers little in the way of additional
substantive evidence regarding petitioner's background or moral
culpability for his capital offense sufficient to have earned
petitioner a life sentence.
FN39. S.F. Trial, Volume 24 of 26, testimony of
Linda Mockeridge, at pp. 130-31. FN40. S.F. Trial, Volume 23 of
26, testimony of Sonia Watts, at pp. 171-72, 205; testimony of
Ronald Melvin Watts, at pp. 227-28.
Given the record now before this Court which
establishes the heinous nature of petitioner's offense,
petitioner's equally remorseless conduct toward Hye Kyong Kim in
the hours after his capital offense, and petitioner's complete
failure to express any genuine remorse personally or to make a
sincere personal expression of contrition for his murderous
conduct before the jury, petitioner has failed to establish by
“clear and convincing evidence” that, but for the trial court's
allegedly erroneous evidentiary rulings, no reasonable jury could
have found him eligible for the death sentence.
In short, the evidence of petitioner's long
history of violent behavior, propensity for future criminal
conduct, and utter lack of remorse for his criminal misbehavior
was overwhelming. Even considering petitioner's additional opinion
testimony from Ms. Mockeridge, in the absence of any scintilla of
evidence showing the petitioner ever personally expressed remorse
for his capital offense before his capital sentencing jury, there
is not even a remote possibility, much less clear and convincing
evidence, that, but for the absence of Ms. Mockeridge's additional
opinion testimony, a rational jury could have found petitioner
ineligible for the death penalty. Because petitioner has failed to
satisfy the “actual innocence” test, he is not entitled to relief
from his procedural defaults under the fundamental miscarriage of
justice exception to the procedural default doctrine.
D. No Merits
Federal habeas corpus relief will not issue to
correct errors of state constitutional, statutory, or procedural
law, unless a federal issue is also presented. Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385
(1991)(holding complaints regarding the admission of evidence
under California law did not present grounds for federal habeas
relief absent a showing that admission of the evidence in question
violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110
S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990) (recognizing that federal
habeas relief will not issue for errors of state law); Pulley v.
Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29
(1984)(holding a federal court may not issue the writ on the basis
of a perceived error of state law).
In the course of reviewing state criminal
convictions in federal habeas corpus proceedings, a federal court
does not sit as a super-state appellate court. Estelle v. McGuire,
502 U.S. at 67-68, 112 S.Ct. at 480; Lewis v. Jeffers, 497 U.S. at
780, 110 S.Ct. at 3102; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct.
at 874. “When a federal district court reviews a state prisoner's
habeas petition pursuant to 28 U.S.C. § 2254 it must decide
whether the petitioner is ‘in custody in violation of the
Constitution or laws or treaties of the United States.’ The court
does not review a judgment, but the lawfulness of the petitioner's
custody simpliciter.” Coleman v. Thompson, 501 U.S. at 730, 111
S.Ct. at 2554.
A federal court may grant habeas relief based
on an erroneous state court evidentiary ruling only if the ruling
violates a specific federal constitutional right or is so
egregious it renders the petitioner's trial fundamentally unfair.
Brown v. Dretke, 419 F.3d 365, 376 (5th Cir.2005), cert. denied,
546 U.S. 1217, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006); Wilkerson
v. Cain, 233 F.3d 886, 890 (5th Cir.2000); Johnson v. Puckett, 176
F.3d 809, 820 (5th Cir.1999). The failure to admit evidence
amounts to a due process violation only when the omitted evidence
is a crucial, critical, highly significant factor in the context
of the entire trial. Johnson v. Puckett, 176 F.3d at 821.
Thus, the question before this Court is not
whether the state trial court properly applied state evidentiary
rules but, rather, whether petitioner's federal constitutional
rights were violated by any ruling made by the trial court in
admitting or excluding evidence actually proffered for admission
during petitioner's trial. See Bigby v. Dretke, 402 F.3d 551, 563
(5th Cir.2005) (holding federal habeas review of a state court's
evidentiary ruling focuses exclusively on whether the ruling
violated the federal Constitution), cert. denied, --- U.S. ----,
126 U.S. 239, 163 L.Ed.2d 221 (2005).
None of the many Supreme Court opinions cited
by petitioner in support of his first claim for relief herein
holds that the Eighth Amendment abrogates state evidentiary rules,
including the Hearsay Rule. On the contrary, the Fifth Circuit has
upheld against a due process challenge a state trial court's
exclusion during the punishment phase of a capital trial of an
expert's proffered hearsay testimony regarding out-of-court
statements made to the expert by the defendant. See McGinnis v.
Johnson, 181 F.3d 686, 693 (5th Cir.1999) (holding there was no
due process violation where the state trial court permitted the
expert to testify as to his opinions about the petitioner's state
of mind during and after the crime arising from petitioner's
statements to the expert but excluded the petitioner's statements
to the expert), cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145
L.Ed.2d 829 (2000).
The Fifth Circuit's holding in McGinnis
controls the disposition of petitioner's initial claim for relief
herein. Petitioner's trial court (1) permitted Ms. Mockeridge to
opine regarding her beliefs that (a) petitioner had been
negatively impacted by numerous factors during his childhood and
(b) petitioner was likely suffering from substance-induced
psychosis at the time of his capital offense but (2) refused to
permit Ms. Mockeridge to testify regarding hearsay statements made
to her by petitioner and others or about hearsay information
contained in documents petitioner never proffered for admission in
properly authenticated form.
The state trial court's rulings concerning Ms.
Mockeridge's testimony did not render petitioner's trial
fundamentally unfair. Petitioner's trial counsel made no effort
whatsoever to elicit any opinion testimony from Ms. Mockeridge
along the lines of that contained in her affidavit now before this
Court. More specifically, petitioner made no effort at his trial
to present the jury with opinion testimony by Ms. Mockeridge
regarding the impact of the many negative influences on
petitioner's development on petitioner's character.
For instance, Ms. Mockeridge opines in her
affidavit that petitioner suffered from (1) feelings of
hopelessness, abandonment, and isolation, (2) a pathological need
for belonging, (3) a lack of coping skills, (4) an inability to
engage in appropriate behavior, (5) emotional damage, and (6) a
preoccupation with survival behavior. However, petitioner's trial
counsel made no effort to elicit similar testimony from Ms.
Mockeridge during the punishment phase of petitioner's trial.
Petitioner cannot fault the state trial court for what was
apparently the wholesale deficient performance of his trial
counsel in failing to either (1) attempt to elicit similar
testimony or (2) obtain a clarifying ruling from the trial court
regarding the admissibility of such testimony. It is disingenuous
for petitioner to make no effort to secure a specific trial court
ruling on the admissibility of particular opinion testimony and
then to complain the trial court's allegedly ambiguous rulings on
hearsay matters somehow dissuaded petitioner from even offering
that same opinion testimony.
When viewed in the context of petitioner's
entire trial, there was nothing crucial, critical, or highly
significant about any of the additional opinion testimony from Ms.
Mockeridge petitioner now claims he was somehow prevented from
eliciting from that witness during the punishment phase of his
capital trial. It is significant that the trial court's only
rulings excluding testimony by Ms. Mockeridge addressed efforts by
petitioner's trial counsel to do an end-run around the Hearsay
Rule by having Ms. Mockeridge testify as to information which she
either (1) was told by petitioner or his family or (2) read in
wholly hearsay documents which had never been proffered for
admission into evidence at petitioner's trial. The state trial
court cannot reasonably be faulted for enforcing the Texas Hearsay
Rule. Nor can the state trial court be faulted for “excluding” Ms.
Mockeridge's opinion testimony where (1) the trial court permitted
her to testify fully concerning her opinion of the petitioner's
mental state at the time of his offense and (2) the petitioner
made no effort at trial to offer additional opinion testimony from
Ms. Mockeridge concerning the other matters set forth in her post-trial
affidavit. While petitioner correctly argues the Eighth Amendment
ensures a capital defendant the opportunity to present relevant
mitigating evidence, nothing in the federal Constitution abrogates
state evidentiary rules. See McGinnis v. Johnson, 181 F.3d at 693
(holding there was no violation of due process where a defense
expert was permitted to testify at the punishment phase of a
capital trial regarding his opinion of the defendant's mental
state at the time of the offense but was precluded from testifying
regarding the specific contents of hearsay statements made by the
defendant which helped form the basis for the expert's opinion).
E. Conclusions
Petitioner procedurally defaulted on his
initial claim for federal habeas relief herein by failing to
timely object to, or otherwise properly preserve for state
appellate review, his complaint about the trial court's allegedly
limiting rulings regarding Ms. Mockeridge's testimony. In fact,
petitioner made no effort to obtain a ruling from the trial court
on the admissibility of the vast majority of Ms. Mockeridge's
opinion testimony which petitioner now claims he was somehow
precluded from introducing at trial.
Furthermore, petitioner procedurally defaulted
a second time on this same claim of allegedly erroneous trial
court evidentiary rulings by failing to raise his complaints on
direct appeal. Petitioner has alleged no specific facts sufficient
to overcome either of his two, separate, procedural defaults on
his first federal habeas claim. The state habeas court's
alternative conclusion that petitioner's federal constitutional
rights were not violated by the trial court's evidentiary rulings
is consistent with the Fifth Circuit's squarely-on-point holding
in McGinnis.
Under such circumstances, the state habeas
court's alternative ruling that there was no federal
constitutional error arising from the trial court's rulings on the
admissibility of Ms. Mockeridge's testimony, written report, and
summary chart was neither contrary to, nor involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, nor an
unreasonable determination of the facts in light of the evidence
presented in the petitioner's state habeas corpus proceeding.
IV. Dawson v. Delaware Claim
A. The Claim
In his second claim herein, petitioner argues
his First Amendment rights, as recognized by the Supreme Court in
Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309
(1992), were violated when the trial court admitted the letter
petitioner wrote to his cousin from jail while awaiting trial for
capital murder, which contained several ethnic slurs and indicated
petitioner's desire to assault others and join a prison gang
identified therein by petitioner as the “Black Gorilla Family,”
i.e., State Exhibit No. 105-A. FN41. Petition, docket entry no. 6,
at pp. 17-18.
B. State Court Disposition
When the prosecution offered State Exhibit no.
105-A at trial, the only objections petitioner's trial counsel
raised were arguments that jail personnel had unlawfully tampered
with, examined, and seized petitioner's private
correspondence.FN42 At no time did petitioner's trial counsel
raise an objection that the admission of State Exhibit no. 105-A
violated petitioner's First Amendment right to association
recognized by the Supreme Court's holding in Dawson v. Delaware.
FN42. S.F. Trial, Volume 23 of 26, testimony of Mark Wells, at pp.
81-94.
In his first point of error on direct appeal,
petitioner argued the state trial court violated the Supreme
Court's holding in Dawson v. Delaware when it admitted evidence of
petitioner's desire for membership in “a black racist prison gang.”
The Texas Court of Criminal Appeals (1) found petitioner never
objected at trial to the admission of State Exhibit no. 105-A on
Dawson or First Amendment grounds, (2) found petitioner's trial
objections to the admission of State Exhibit no. 105-A and to
related testimony made no mention of gang membership, and (3)
concluded petitioner failed to properly preserve for state
appellate review any federal constitutional objection to the
admission of State Exhibit no. 105-A or any trial testimony
concerning same. FN43. Watts v. State, AP-74,593 (Tex.Crim.App.
December 15, 2004). A copy of this unpublished opinion is attached
to Petitioner's Petition herein at exhibit B.
In his initial state habeas corpus application,
petitioner again urged his complaint that the admission of State
Exhibit no. 105-A violated his federal constitutional right to
association.FN44 The state habeas trial court (1) found
petitioner's trial counsel first raised the issue of gang
membership at trial, (2) found there was no dispute that
petitioner had admitted to having been a member of the Longview
Crips street gang, (3) found no evidence was admitted identifying
either the Longview Crips, i.e., the California street gang to
which petitioner admitted once having been a member, or the Black
Gorilla Family, i.e., the prison gang to which petitioner wrote he
planned to seek membership, as “racist” gangs, (4) found
petitioner made no constitutional objection to the admission of
any evidence showing petitioner was either a member of the
Longview Crips or hoped to one day be a member of the Black
Gorilla Family, (5) concluded the Texas Court of Criminal Appeals
had held on direct appeal that petitioner procedurally defaulted
on this same constitutional claim by failing to timely object at
trial to the admission of State Exhibit no. 105-A on the same
ground as that now urged by petitioner, and (6) alternatively
concluded no constitutional error arose from the admission of
State Exhibit no. 105-A.FN45
FN44. State Habeas Transcript, at pp. 21-23.
FN45. State Habeas Transcript, at pp. 196-202.
C. Procedural Default
Respondent correctly argues that petitioner has
procedurally defaulted on this claim by failing to timely object
at trial to the admission of State Exhibit no. 105-A on the same
federal constitutional ground petitioner initially urged on direct
appeal and now urges before this Court.
Generally speaking, Texas law requires an
objection to coincide with a point of error on direct appeal. See,
e.g., Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App.2003), (defendant
failed to preserve complaint regarding the admission of victim-impact
evidence by objecting thereto only on the ground that the witness
was unqualified to render an opinion regarding the impact of the
crime on the victim's personality); Ibarra v. State, 11 S.W.3d
189, 196-97 (Tex.Crim.App.1999) (holding a hearsay objection did
not preserve for appellate review a complaint that the testimony
in question was irrelevant), cert. denied, 531 U.S. 828, 121 S.Ct.
79, 148 L.Ed.2d 41 (2000).
The Texas Court of Criminal Appeals'
determination on direct appeal, as well as the state habeas
court's similar determination, that petitioner's trial counsel's
objections to the petitioner's allegedly improperly-seized
correspondence failed to properly preserve petitioner's
constitutional complaint about the admission of State Exhibit no.
105-A appear to be straight-forward applications of this “firmly
established and regularly followed” principle of state criminal
procedure.
By failing to present the trial court with a
contemporaneous objection to the admission of State Exhibit no.
105-A which mirrored the First Amendment complaints petitioner
subsequently presented on direct appeal and in his state habeas
corpus proceeding, petitioner procedurally defaulted on his Dawson
v. Delaware claim in this federal habeas corpus proceeding.
D. No Merits
In Dawson v. Delaware, the Supreme Court
specifically held that it is proper for a capital sentencing jury
to consider evidence of the defendant's racial intolerance and
subversive advocacy where such evidence is relevant to the issues
before the jury. Dawson v. Delaware, 503 U.S. at 164-65, 112 S.Ct.
at 1097. The particular evidence in that case, i.e., Dawson's
membership in the Aryan Brotherhood, was unaccompanied by any
showing Dawson's capital offense was racially motivated or in
anyway endorsed by the Aryan Brotherhood and was not relevant to
rebut any mitigating evidence proffered by the defense; therefore,
the Supreme Court concluded, the evidence was irrelevant to any
issue before the sentencing jury. Id., 503 U.S. at 166-67, 112
S.Ct. at 1098-99.
The Supreme Court took great pains in Dawson,
however, to explain the Constitution does not erect a per se
barrier to the admission of evidence concerning one's beliefs and
associations at sentencing simply because those beliefs and
associations are protected by the Constitution. Id., 503 U.S. at
165, 112 S.Ct. at 1097. The constitutional flaw in the
prosecution's reliance on Dawson's membership in the Aryan
Brotherhood, the Supreme Court explained, was the prosecution's
failure to introduce other evidence tying Dawson's membership to
any of the considerations before the sentencing jury. Id., 503 U.S.
at 166-67, 112 S.Ct. at 1097-98.
In contrast to the circumstances of Dawson,
evidence of petitioner's intense racial animus against Hispanics
and Anglos was relevant to rebut the defense's contention that
petitioner's assaults on Hispanic inmates and threats against
Anglo guards while petitioner was in pretrial detention were all
instances of self-defense undertaken by petitioner as a result of
petitioner's fear of assault by inmates who were acting at the
behest of the Mexican Mafia prison gang.
Furthermore, as correctly pointed out by
respondent, unlike in Dawson, the record from petitioner's trial
was bereft of any evidence identifying the “Black Gorilla Family”
referenced in petitioner's epithet-laced letter as a “racist”
organization. In fact, there was no evidence introduced at
petitioner's trial identifying any of the racial tenets or
policies of that organization or of the street gang (the “Longview
Crips”) to which petitioner admitted to having been a member. In
sum, State Exhibit no. 105-A's evidence of petitioner's racial
animus toward Hispanics and Anglos was relevant to rebut
petitioner's contention that his lengthy record of violence during
his pretrial detention was solely the product of petitioner's fear
of assault by Mexican Mafia prison gang members.
Moreover, the erroneous admission of
prejudicial evidence can justify federal habeas corpus relief only
if it is material in the sense that it is a crucial, critical, or
highly significant factor to the outcome of the trial. Givens v.
Cockrell, 265 F.3d 306, 308 (5th Cir., 2001); Jackson v. Johnson,
194 F.3d 641, 656 (5th Cir.1999), cert. denied, 529 U.S. 1027, 120
S.Ct. 1437, 146 L.Ed.2d 326 (2000); Little v. Johnson, 162 F.3d
855, 862 (5th Cir., 1998), cert. denied, 526 U.S. 1118, 119 S.Ct.
1768, 143 L.Ed.2d 798 (1999). Petitioner's mention of his desire
to join the “Black Gorilla Family” upon his arrival in prison was
only one small fragment of a racial-epithet-strewn letter
petitioner wrote to his cousin while awaiting trial for capital
murder and was unaccompanied by any evidence identifying the
“Black Gorilla Family” as an organization which harbored or
promoted racial animus toward other ethnic groups.
The evidence before the jury during the
punishment phase of petitioner's capital trial consisted of (1)
the horrific details of petitioner's capital offense (including
the fact he shot three people execution-style before demanding any
money), (2) the equally abhorrent details of petitioner's hours-long,
cocaine-fueled, sexual rampage against his kidnap victim, (3) the
uncontroverted eyewitness testimony of multiple law enforcement
officers regarding petitioner's efforts to ram the stolen vehicle
he was driving into multiple police vehicles during petitioner's
unsuccessful attempt to flee with his kidnap victim, (4) multiple
eyewitness accounts of petitioner's alcohol, cocaine, and
prescription medication binge the night before his capital offense,
(5) accounts of petitioner's physical assaults on other jail
inmates while awaiting trial, (6) accounts of petitioner's history
of physical assaults upon a law enforcement officer and a pair of
women, including his own common law spouse, and (7) a complete and
total absence of any evidence showing petitioner had ever
personally expressed sincere remorse or genuine contrition for his
capital offense before his capital sentencing jury. Under such
circumstances, the admission of State Exhibit no. 105-A and its
vague reference to the “Black Gorilla Family” was neither a
crucial, critical, nor highly significant factor in the outcome of
the punishment phase of petitioner's capital trial.
Finally, the Supreme Court left open in Dawson
the question of whether the admission of evidence of Dawson's gang
membership might have been harmless error. Having independently
reviewed the entire record from petitioner's trial, this Court
concludes the admission of State Exhibit no. 105-A had no
“substantial and injurious effect or influence” in determining the
jury's verdict at the punishment phase of petitioner's capital
trial. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct.
1710, 1722, 123 L.Ed.2d 353 (1993)(holding the test for harmless
error in a federal habeas corpus action brought by a state
prisoner is “whether the error had substantial and injurious
effect or influence in determining the jury's verdict”).
E. Conclusions
Petitioner procedurally defaulted on his Dawson
v. Delaware complaint regarding the admission of petitioner's
racial epithet-strewn letter to his cousin by failing to make a
contemporaneous objection at trial raising this same
constitutional claim. The state habeas court's alternative holding
that no federal constitutional violation resulted from the
admission of State Exhibit no. 105-A was neither contrary to, nor
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States, nor an unreasonable determination of the facts in light of
the evidence presented in the petitioner's state habeas corpus
proceeding.
V. Improper Prosecutorial Argument
A. The Claim
In his third and final claim for federal habeas
relief herein, petitioner argues the prosecution improperly
“stirred the racism pot” by referring to petitioner's letter and
desire to join the “Black Gorilla Family” prison gang. FN46.
Petition, docket entry no. 6, at pp. 19-22.
B. State Court Disposition
During closing argument at the punishment phase
of petitioner's capital trial, the prosecution argued in part
without objection from petitioner's trial counsel that (1)
petitioner was an admitted gang member and (2) petitioner's
expressed desire to join a prison gang indicated petitioner posed
a threat of future dangerousness while incarcerated, as did the
multiple racist references in petitioner's letter. FN47. S.F.
Trial, Volume 24 of 26, at pp. 161-63, 166, 191, 196.
On direct appeal, the Texas Court of Criminal
Appeals held petitioner procedurally defaulted, i.e., failed to
preserve error, on his complaints about the prosecution's
references to petitioner's gang membership during punishment-phase
closing argument by failing to timely object thereto.FN48 During
petitioner's state habeas corpus proceeding, the state habeas
trial court reached the same conclusion when petitioner re-urged
his complaints about the prosecution's closing punishment-phase
jury argument and concluded, alternatively, the prosecution's
closing arguments were proper summations of the evidence then
before the jury.FN49
FN48. Watts v. State, AP-74,593 (Tex.Crim.App.
December 15, 2004), slip op. at p. 3. FN49. State Habeas
Transcript, at pp. 202-03.
C. Procedural Default
Respondent correctly points out petitioner's
failure to contemporaneously object to the prosecution's closing
argument constitutes a procedural default which bars federal
habeas review of same. The Fifth Circuit has recognized the
efficacy of the Texas contemporaneous objection rule as a barrier
to federal habeas review as “firmly established” for federal
procedural default purposes long before the date of petitioner's
trial. See Hogue v. Johnson, 131 F.3d at 487 (holding the Texas
contemporaneous objection rule was already well established 35
years ago and recognized as an adequate state procedural barrier
to federal habeas review at least twenty years ago); Rogers v.
Scott, 70 F.3d at 342 (recognizing the Texas contemporaneous
objection rule foreclosed federal habeas review); Amos v. Scott,
61 F.3d at 343-44 (holding Texas appellate courts consistently
apply the contemporaneous objection rule in the vast majority of
cases and, thereby, strictly and regularly apply same).
D. No Merit
Under Texas law, proper closing argument by the
prosecution in criminal trials fall into four general areas: (1)
summation of the evidence; (2) reasonable deduction from the
evidence; (3) answer to argument of opposing counsel; and (4)
pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000),
cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349
(2001); Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App.1999),
cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000);
Hathorn v. State, 848 S.W.2d 101, 117 (Tex.Crim.App.1992), cert.
denied, 509 U.S. 932, 113 S.Ct. 3062, 125 L.Ed.2d 744 (1993). See
also Buxton v. Collins, 925 F.2d 816, 825 (5th Cir.1991)(recognizing
the four proper areas for prosecutorial jury argument are
summation of the evidence, reasonable inference from the evidence,
answers to opposing counsel's argument, and pleas for law
enforcement), cert. denied, 498 U.S. 1128, 111 S.Ct. 1095, 112
L.Ed.2d 1197 (1991).
An improper prosecutorial argument which does
not implicate a specific constitutional provision is not
cognizable on collateral review unless the defendant shows an
abridgment of due process, i.e., the improper argument rendered
the proceeding fundamentally unfair. Darden v. Wainwright, 477 U.S.
168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986)(“it is not
enough that the prosecutors' remarks were undesirable or even
universally condemned. The relevant inquiry is whether the
prosecutors' comments so infected the trial with unfairness as to
make the resulting conviction a denial of due process”); Harris v.
Cockrell, 313 F.3d 238, 245 (5th Cir.2002)(holding prosecutorial
remarks are a sufficient ground for habeas relief only if they are
so prejudicial they render the trial fundamentally unfair and such
unfairness exists only if the prosecutor's remarks evince either
persistent and pronounced misconduct or the evidence was so
insubstantial that, in probability, but for the remarks no
conviction would have occurred), cert. denied, 540 U.S. 1218, 124
S.Ct. 1503, 158 L.Ed.2d 152 (2004); Dowthitt v. Johnson, 230 F.3d
733, 755 (5th Cir.2000)(holding (1) the relevant question is
whether the prosecutor's comments so infected the trial with
unfairness as to make the resulting conviction a denial of due
process and (2) the prosecutor is permitted to argue to the jury
those inferences and conclusions the prosecutor wishes the jury to
draw from the evidence so long as those inferences are grounded
upon evidence), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149
L.Ed.2d 156 (2001); Barrientes v. Johnson, 221 F.3d 741, 753 (5th
Cir.2000)(holding (1) federal habeas review of allegedly improper
prosecutorial statements made during the punishment phase of a
capital trial focuses on whether the remarks so infected the
punishment phase as to make the resulting sentence a denial of due
process and (2) a trial is fundamentally unfair only if there is a
reasonable probability the verdict might have been different had
the trial been properly conducted), cert. dism'd, 531 U.S. 1134,
121 S.Ct. 902, 148 L.Ed.2d 948 (2001).
Improper jury argument by the state does not
present a claim of constitutional magnitude in a federal habeas
action unless it is so prejudicial that the state court trial was
rendered fundamentally unfair within the meaning of the Due
Process Clause of the Fourteenth Amendment. Id. To establish that
a prosecutor's remarks are so inflammatory, the petitioner must
demonstrate the misconduct is persistent and pronounced or the
evidence of guilt was so insubstantial the conviction would not
have occurred but for the improper remarks. Harris v. Cockrell,
313 F.3d at 245; Turner v. Johnson, 106 F.3d 1178, 1188 (5th
Cir.1997); Nichols v. Scott, 69 F.3d 1255, 1278 (5th Cir.1995)(wholly
apart from the issue of procedural bar, failure to object to an
argument is an indication it was not perceived as having a
substantial adverse effect or would not naturally and necessarily
be understood as advancing improper considerations)( citing Milton
v. Procunier, 744 F.2d 1091, 1095 (5th Cir.1984), cert. denied,
471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985)), cert.
denied, 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076 (1996);
Buxton v. Collins, 925 F.2d at 825 (recognizing the four proper
areas for prosecutorial jury argument are summation of the
evidence, reasonable inference from the evidence, answers to
opposing counsel's argument, and pleas for law enforcement).
“A prosecutor's improper argument will, in
itself, exceed constitutional limitations in only the most
egregious cases.” Harris v. Cockrell, 313 F.3d at 245 n. 12;
Ortega v. McCotter, 808 F.2d 406, 410 (5th Cir.1987), quoting
Menzies v. Procunier, 743 F.2d 281, 288-89 (5th Cir.1984). The
burden is on the habeas petitioner to show a reasonable
probability that, but for the prosecutor's remarks, the result of
the trial would have been different. Nichols v. Scott, 69 F.3d at
1278.
The prosecutor's allegedly objectionable
arguments did not so infect petitioner's trial was to render same
fundamental unfair. The state habeas court reasonably concluded
the prosecutor's comments were fair summations of, and drew
reasonable, fair, legitimate inferences from, the evidence then
before the jury. There was overwhelming evidence favoring the
prosecution on both of petitioner's capital sentencing special
issues.
In addition to the heinous details of
petitioner's capital offense and torture of his kidnap victim, the
jury had before it at the punishment phase of petitioner's trial
unchallenged testimony establishing the petitioner (1)
aggressively attempted to flee from police when they encircled the
stolen vehicle he was driving, (2) had a long history of violent
behavior, both while in detention and on the street, and (3) had a
drug-abuse problem of long duration for which petitioner had
sought no treatment during his previous incarcerations and periods
on probation. Under such circumstances, the prosecutors' passing
references to the petitioner's use of racial epithets and
expression of his desire to join a prison gang did not render
petitioner's trial fundamentally unfair.
E. Conclusions
Petitioner procedurally defaulted on his
complaints about the prosecution's punishment-phase closing
argument by failing to contemporaneously object thereto. The state
habeas court's alternative conclusion that no federal
constitutional violation resulted from the prosecutor's closing
jury arguments was neither contrary to, nor involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, nor an
unreasonable determination of the facts in light of the evidence
presented in the petitioner's state habeas corpus proceeding.
VI. Certificate of Appealability
The AEDPA converted the “certificate of
probable cause” previously required as a prerequisite to an appeal
from the denial of a petition for federal habeas corpus relief
into a “Certificate of Appealability” (“CoA”). See Hill v. Johnson,
114 F.3d 78, 80 (5th Cir.1997)(recognizing the “substantial
showing” requirement for a CoA under the AEDPA is merely a change
in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d
43, 45 (5th Cir.1997)(holding the standard for obtaining a CoA is
the same as for a CPC). The CoA requirement supersedes the
previous requirement for a certificate of probable cause to appeal
for federal habeas corpus petitions filed after the effective date
of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th
Cir.1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1578, 143 L.Ed.2d
673 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th
Cir.1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041,
118 S.Ct. 1342, 140 L.Ed.2d 502 (1998).
Under the AEDPA, before a petitioner may appeal
the denial of a habeas corpus petition filed under Section 2254,
the petitioner must obtain a CoA. Miller-El v. Cockrell, 537 U.S.
322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); 28
U.S.C. § 2253(c)(2). Likewise, under the AEDPA, appellate review
of a habeas petition is limited to the issues on which a CoA is
granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th
Cir.2002)(holding a CoA is granted on an issue-by-issue basis,
thereby limiting appellate review to those issues); Jones v. Cain,
227 F.3d 228, 230 n. 2 (5th Cir.2000)(holding the same); Lackey v.
Johnson, 116 F.3d 149, 151 (5th Cir.1997)(holding the scope of
appellate review of denial of a habeas petition limited to the
issues on which CoA has been granted). In other words, a CoA is
granted or denied on an issue-by-issue basis, thereby limiting
appellate review to those issues on which CoA is granted alone.
Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson,
116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson,
114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th
Cir.1997); 28 U.S.C. § 2253(c)(3).
A CoA will not be granted unless the petitioner
makes a substantial showing of the denial of a constitutional
right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 2569,
159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336,
123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct.
1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S.
880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make
such a showing, the petitioner need not show he will prevail on
the merits but, rather, must demonstrate that reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented are adequate to deserve encouragement to
proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at
2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039;
Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v.
Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court
is authorized to address the propriety of granting a CoA sua
sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000).
The showing necessary to obtain a CoA on a
particular claim is dependent upon the manner in which the
District Court has disposed of a claim. If this Court rejects a
prisoner's constitutional claim on the merits, the petitioner must
demonstrate reasonable jurists could find the court's assessment
of the constitutional claim to be debatable or wrong. “[W]here a
district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Miller-El v. Cockrell,
537 U.S. at 338, 123 S.Ct. at 1040 ( quoting Slack v. McDaniel,
529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542
U.S. at 282, 124 S.Ct. at 2569.
In a case in which the petitioner wishes to
challenge on appeal this Court's dismissal of a claim for a reason
not of constitutional dimension, such as procedural default,
limitations, or lack of exhaustion, the petitioner must show
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
whether this Court was correct in its procedural ruling. See Slack
v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a
district court denies a habeas claim on procedural grounds,
without reaching the underlying constitutional claim, a CoA may
issue only when the petitioner shows that reasonable jurists would
find it debatable whether (1) the claim is a valid assertion of
the denial of a constitutional right and (2) the district court's
procedural ruling was correct).
In death penalty cases, any doubt as to whether
a CoA should issue must be resolved in the petitioner's favor.
Cardenas v. Dretke, 405 F.3d 244, 248 (5th Cir.2005), cert. denied,
--- U.S. ----, 126 S.Ct. 2986, 165 L.Ed.2d 987 (2006); Miller v.
Dretke, 404 F.3d 908, 913 (5th Cir.2005); Martinez v. Dretke, 404
F.3d 878, 884 (5th Cir.2005), cert. denied, 546 U.S. 980, 126 S.Ct.
550, 163 L.Ed.2d 466 (2005); Bigby v. Dretke, 402 F.3d 551, 557
(5th Cir.2005), cert. denied, 546 U.S. 900, 126 S.Ct. 239, 163
L.Ed.2d 221 (2005); Matchett v. Dretke, 380 F.3d 844, 848 (5th
Cir.2004), cert. denied, 543 U.S. 1124, 125 S.Ct. 1067, 160 L.Ed.2d
1074 (2005).
Petitioner procedurally defaulted on all three
of his claims herein by failing to contemporaneously object on the
same federal constitutional grounds petitioner urges herein to
either (1) the trial court's rulings regarding the admissibility
of Ms. Mockeridge's testimony, report, or chart, (2) the admission
of State Exhibit no. 105-A, or (3) the prosecution's closing
punishment-phase jury arguments. There can be no genuine dispute
among reasonable jurists as to the nature of petitioner's
procedural default on each of his claims herein.
Furthermore, there can be no disagreement among
reasonable jurists as to the utter lack of merit underlying each
of petitioner's federal constitutional claims herein. Nothing
other than the deficient performance of petitioner's trial counsel
prevented petitioner from introducing the additional opinion
testimony of Ms. Mockeridge which petitioner contends he was
precluded from presenting at trial. This Court's independent
review of the record from petitioner's trial leads to the
inescapable conclusion the state trial judge invited petitioner to
present expert testimony from Ms. Mockeridge and announced a
desire to exclude only that testimony which was barred by the
Hearsay Rule. If petitioner's trial counsel had any question as to
the precise parameters of the state trial court's rulings, said
counsel could either have requested further clarification from the
trial court or proceeded to seek to elicit additional expert
opinion testimony from Ms. Mockeridge and, thereby, obtained
specific rulings from the trial court regarding the admissibility
of same. By failing to undertake either course of action, and
ignoring the issue completely on direct appeal, petitioner
procedurally defaulted a second time on his complaints regarding
the trial court's rulings on Ms. Mockeridge's opinion testimony.
There can be no disagreement among reasonable jurists that the
trial court's exclusion of hearsay testimony by Ms. Mockeridge was
a reasonable application of clearly established federal law. See
McGinnis v. Johnson, 181 F.3d at 693 (holding there was no
violation of due process where a defense expert was permitted to
testify at the punishment phase of a capital trial regarding his
opinion of the defendant's mental state at the time of the offense
but was precluded from testifying regarding the specific contents
of hearsay statements made by the defendant which helped form the
basis for the expert's opinion).
Finally, reasonable jurists cannot disagree
regarding the utter lack of arguable merit underlying petitioner's
complaints about (1) the admission, without federal constitutional
objection, of State Exhibit no. 105-A and (2) the prosecution's
objection-less, punishment-phase, closing arguments. Neither the
admission of petitioner's epithet-strewn letter nor the
prosecution's allusions thereto during closing argument violated
any specific federal constitutional right possessed by petitioner
nor rendered the punishment phase of petitioner's trial
fundamentally unfair.
In view of the overwhelming evidence
demonstrating petitioner's propensity for future violence while
incarcerated, the horrific details of petitioner's offense, and
extraordinarily weak mitigating evidence presented by petitioner
at trial, the admission of evidence showing petitioner's professed
desire for future gang membership and the prosecution's fleeting
references to same during closing argument were but a pair of
droplets of water in an ocean of aggravating evidence presented by
the prosecution. Neither of those events played any crucial,
critical, or highly significant factor in the outcome of
petitioner's capital trial. The heinous details of petitioner's
crimes and petitioner's complete refusal to personally express any
genuine remorse or sincere contrition for his capital offense
virtually dictated the jury's answers to the petitioner's capital
sentencing special issues. Reasonable jurists could not disagree
with regard to the foregoing conclusions. Therefore, petitioner is
not entitled to a CoA with regard to any of his claims for relief
herein.
Accordingly, it is hereby ORDERED that: 1. All
relief requested in petitioner's pleadings herein FN50 is DENIED.
FN50. Docket entry nos. 6 & 16. 2. Petitioner is DENIED a
Certificate of Appealability on all of his claims for relief
herein. 3. All other pending motions are DISMISSED AS MOOT. 4. The
Clerk shall prepare and enter a Judgment in conformity with this
Memorandum Opinion and Order.
