United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
Erica Yvonne Sheppard is a Texas death row inmate. This case
is before the Court on Sheppard's Amended Petition for
Writ of Habeas Corpus [Doc. # 28], and Respondent Lorie
Davis' Motion for Summary Judgment [Doc. # 46]
(“Motion”). Having carefully considered the
Amended Petition, the Summary Judgment Motion, Sheppard's
Reply to the Motion, all the arguments and authorities
submitted by counsel, and the entire record, the Court is of
the opinion that Davis' Motion must be
granted, and Sheppard's Amended Petition
for Writ of Habeas Corpus should be denied.
The Court grants a certificate of appealability on certain
aspects of Sheppard's ineffective assistance of counsel
claim regarding the punishment phase of her trial.
was convicted of capital murder and sentenced to death on
March 3, 1995, for murdering Marilyn Sage Meagher during the
course of robbing Meagher. On June 30, 1993, Meagher's
daughter discovered her mother's body in a spare bedroom
of an apartment she shared with her mother in Houston, Texas.
20 Tr. at 18-19, 39-42. When law enforcement arrived at the
scene, they found Meagher's body under a pile of bed
linens, with a plastic dry cleaning bag wrapped around her
head. There were three knives and a broken statue nearby.
Id. at 95-102. Police recovered a finger and palm
print, subsequently matched to Sheppard's left hand, from
the door leading to the spare bedroom. Id. at
autopsy revealed a number of stab wounds on Meagher's
body, several of them very deep. 21 Tr. at 177-78, 185-87.
Injuries to Meagher's head were consistent with a statue
being slammed into her head with “a great deal of
force.” Id. at 187.
after the murder, Korey Jordan contacted the police. 20 Tr.
at 114. Jordan was friends with Sheppard's brother,
Jonathan. He was at Jonathan's apartment in the same
complex as Meagher's the day before the murder. There, he
heard Sheppard and James Dickerson talk about robbing or
carjacking someone. 21 Tr. at 90-98.
testified that, when Dickerson complained that he needed
money, Sheppard replied “let's go back to the old
theme.” Id. at 96. Dickerson stated: “If
taking a life is what I have to do to get some money, then
that's what I have to do.” Sheppard responded that
she'd “rather catch a . . . skinny white woman
walking between her car and her apartment with no
children.” Id. at 98-99. Dickerson got two
knives from Jonathan's kitchen, one of which looked like
a knife recovered from the crime scene, and talked to
Sheppard about the best clothes to wear for committing the
crime. Id. at 99-101. They left Jonathan's
apartment wearing dark clothes. Id. at 101-02.
after the murder, police found Meagher's vehicle in Bay
City, Texas. 20 Tr. at 117. A witness testified that he saw
both Sheppard and Dickerson use the vehicle on the same
evening that Meagher's body was found. 21 Tr. at 12-17.
Police recovered Dickerson's fingerprint from the
vehicle. 20 Tr. at 177-78.
following day, police arrested Sheppard and Dickerson in a
motel room in Bay City. 21 Tr. at 39-42. They recovered a
knife similar to one found near Meagher's body from a
drawer containing women's clothing in the motel room.
Id. at 46-47. Sheppard subsequently confessed to the
murder. Id. at 142-43.
the penalty phase of Sheppard's trial, the State
introduced evidence that Sheppard unsuccessfully attempted to
“jack” another female victim the night before the
Meagher murder, 25 Tr. at 7, 10, 19, 40-42, and that Sheppard
also admitted to a friend that she would “jack”
cars and sell the parts, id. at 64-65. The state
also presented evidence that Sheppard participated in a
drive-by shooting with Jerry Bryant, Jr.
(“Bryant”), the father of Sheppard's youngest
child, on November 17, 1991. Id. at 75-114. Sheppard
drove the car. Id. at 78-79.
State further presented evidence that Sheppard had a poor
reputation for being peaceful and law abiding in her
hometown. Id. at 124, 131. Two witnesses who were
housed with Sheppard during her pretrial detention testified
that Sheppard drew attention to news coverage of the Meagher
murder “like she was bragging.” Id. at
137-38, 161. The State presented evidence that Sheppard spoke
callously about the murder, id. at 138-39,
threatened to harm a fellow inmate, and asked how she could
fake her way into a section of the jail reserved for inmates
with mental disorders, id. at 141-44.
family testified about the impact her death had on them. Her
son testified that he felt like he was robbed of 20 or 30
years with his mother. He sought help from a psychologist to
cope with his mother's murder. Id. at 169-72.
Meagher's sister also testified about the impact of the
murder on her and her children. Id. at 176-79.
defense case during the punishment phase, Sheppard presented
documents and testimony from the Director of the Matagorda
County Women's Crisis Center, an organization that
provides shelter for abused women and children, that she
stayed at the Center. 26 Tr. at 31-33. The documents show
that she went to the Center due to domestic abuse, and that
Center staff referred her to a legal aid attorney for
assistance in obtaining a protective order and a divorce.
Id. at DX 2-B. She presented similar evidence from
Covenant House, an emergency shelter for runaway and homeless
youth, that she spent time there. Id. at 35-37.
first stayed at Covenant House when she was 16 years old. She
had a young child at that time. The Houston Police Department
referred her to Covenant House due to conflict between
Sheppard and her mother. She stayed at Covenant House a
second time when she was 17 years old. Id. at DX
also called psychiatrist Priscilla Ray, M.D. Dr. Ray
presented a clinical evaluation based on a two-hour interview
of Sheppard. DX4-B, at 1. Defense counsel asked Dr. Ray to
evaluate Sheppard for competency to stand trial, sanity, and
her susceptibility to influence by men who were in a position
to abuse her. Am. Pet., App. 24, at 2. Dr. Ray's clinical
conclusions focused on Sheppard's competency to stand
trial rather than development of mitigation evidence. DX
4-B. at 5. Dr. Ray testified that Sheppard suffered
from depression, which was only partially treated. She opined
that there was a genetic component to Sheppard's
depression based on her family history. 26 Tr. at 41-42. Dr.
Ray also testified that Sheppard seemed remorseful for the
murder. Id. at 45. Based on Sheppard's mental
status, her history, the nature of her crime, and general
relevant statistics, Dr. Ray opined that Sheppard was
unlikely to engage in future acts of violence, either in
prison or in society. Id. at 43-46. Dr. Ray
testified that Sheppard was more of a follower than a leader,
and would be less likely to commit acts of violence if not in
“a situation in which a man is likely to be abusive or
possibly may be abusive and has some sway over her.”
Id. at 60-61.
Ray's expert report was also admitted into evidence. The
report stated that Sheppard was raised by her maternal
grandmother, that both her mother and her grandmother had
significant health problems, that her parents divorced when
she was young and her father was not a frequent presence in
her life, and that she has a brother, a half brother, and a
step brother. DX 4-B. Dr. Ray did not testify to these facts
or elaborate. Dr. Ray's report revealed that Sheppard
dropped out of school in tenth grade because she was
pregnant. She eventually obtained a GED and attended school
to become a medical assistant. She dropped out because
Bryant, her boyfriend at the time, wanted her at home.
Id. Sheppard reported being sexually abused as a
child by a friend of her mother's. Sheppard reported the
abuse to her mother, but her mother did not believe her. She
also reported being raped by a stranger when she was a
teenager, and being abused by Bryant, the father of her third
child. Id. The abuse by Bryant included striking
Sheppard and threatening to kill her. Id. Sheppard
also told Dr. Ray her version of the events regarding
Meagher's murder. She denied agreeing to harm anyone the
day before the murder, and claimed that she told Dickerson,
who was Sheppard's brother's romantic partner,
see 22 Tr. at 15, to get a job if he needed money.
She further claimed that Dickerson threatened to kill her and
her baby if she didn't help him with the robbery-murder,
that she acted under duress, and that Dickerson planted the
knife in her clothing drawer at the motel. DX 4-B.
also called as a witness Patrice Green, a lifelong friend.
Green testified that Sheppard attended church regularly, had
three children, and worked for Green's husband, a Justice
of the Peace. 26 Tr. at 70-73.
grandmother, Annie Smith, testified that she was
Sheppard's primary caregiver during Sheppard's youth,
and that Sheppard lived with Smith more than with her own
mother. Smith testified that Sheppard lived with her for most
of the first 20 years of her life. Id. at 75-77. She
also testified briefly that Bryant abused Sheppard. Sheppard
moved away from her grandmother to try to evade Bryant.
jury found that there was a probability that Sheppard would
commit future acts of criminal violence posing a danger to
society, that she caused, intended to cause, or intended for
another to cause Meagher's death, and that the mitigating
evidence was insufficient to warrant a life sentence. 28 Tr.
at 5-7. Accordingly, the trial court sentenced Sheppard to
Texas Court of Criminal Appeals (“TCCA”) affirmed
Sheppard's conviction and sentence. Sheppard v.
State, No. AP-72, 127 (Tex. Crim. App. June 18, 1997).
Sheppard did not seek certiorari from the Supreme
Court of the United States.
filed a state application for a writ of habeas corpus raising
40 claims for relief, including numerous claims of
ineffective assistance of counsel. See 1 SHCR at
3-10.The state habeas court held an evidentiary
hearing on Sheppard's ineffective assistance of counsel
claims, which included testimony and an affidavit by Hazel
Bolden, Sheppard's second chair trial counsel, opining
that lead counsel Charles A. Brown did a poor job
representing Sheppard. 2 WH at 220-26. The trial court
entered extensive written findings of fact and conclusions of
law, see 5 SHCR at 1310-71, and recommended granting
relief on Sheppard's claim that trial counsel rendered
at the punishment phase of applicant's trial in failing
to present or fully develop evidence regarding the
applicant's background and failure to present testimony
expert or otherwise that would allow the jury to understand
the implications of the applicant's background including
physical abuse sexual abuse or domestic violence for
consideration in determining the answer to the special
Id. at 1338.
TCCA denied Sheppard's application for a writ of habeas
corpus, rejecting the trial court's recommendation to
grant relief on the ineffective assistance of counsel claim.
Ex Parte Sheppard, No. WR-78132-01, 2013 WL 5568434
(Tex. Crim. App. Oct. 9, 2013) (per curiam). On May
19, 2014, the Supreme Court denied Sheppard's petition
for a writ of certiorari. Sheppard v.
Texas, 134 S.Ct. 2288 (2014).
filed her initial federal petition for a writ of habeas
corpus on March 18, 2014. She amended her petition on April
17, 2015. Before the Court is Respondent's Motion for
Summary Judgment filed June 24, 2016, along with her Amended
Answer to the Amended Petition. Sheppard responded to the
Motion on September 7, 2016, and Respondent replied on
November 7, 2016.
APPLICABLE LEGAL STANDARDS
The Anti-Terrorism and Effective Death Penalty
federal petition for habeas corpus relief is governed by the
applicable provisions of the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”). See Woodford v.
Garceau, 538 U.S. 202, 205-08 (2003); Lindh v.
Murphy, 521 U.S. 320, 335-36 (1997). Under the AEDPA,
federal habeas relief based upon claims that were adjudicated
on the merits by the state courts cannot be granted unless
the state court's decision (1) “was contrary to, or
involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United
States” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §
2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002);
Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir.
questions of law or mixed questions of law and fact
adjudicated on the merits in state court, this Court may
grant habeas relief under 28 U.S.C. § 2254(d)(1) only if
the state court decision “was contrary to, or involved
an unreasonable application of, clearly established [Supreme
Court precedent].” See Kittelson v. Dretke,
426 F.3d 306, 318 (5th Cir. 2005). Under the “contrary
to” clause, this Court may afford habeas relief only if
“‘the state court arrives at a conclusion
opposite to that reached by . . . [the Supreme Court] on a
question of law or if the state court decides a case
differently than . . . [the Supreme Court] has on a set of
materially indistinguishable facts.'” Dowthitt
v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000)
(quoting Williams v. Taylor, 529 U.S. 362');">529 U.S. 362, 406
“unreasonable application” standard permits
federal habeas relief only if a state court decision
“identifies the correct governing legal rule from [the
Supreme Court] cases but unreasonably applies it to the facts
of the particular state prisoner's case.”
Williams, 529 U.S. at 406. “In applying this
standard, we must decide (1) what was the decision of the
state courts with regard to the questions before us and (2)
whether there is any established federal law, as explicated
by the Supreme Court, with which the state court decision
conflicts.” Hoover v. Johnson, 193 F.3d 366,
368 (5th Cir. 1999). A federal court's “focus on
the ‘unreasonable application' test under Section
2254(d) should be on the ultimate legal conclusion that the
state court reached and not on whether the state court
considered and discussed every angle of the evidence.”
Neal v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001),
aff'd, 286 F.3d 230 (5th Cir. 2002) (en banc);
see also Pape v. Thaler, 645 F.3d 281, 292-93 (5th
Cir. 2011). The focus for a federal court under the
“unreasonable application” prong is
“whether the state court's determination is
‘at least minimally consistent with the facts and
circumstances of the case.'” Id. (quoting
Neal, 239 F.3d at 696, and Hennon v.
Cooper, 109 F.3d 330, 335 (7th Cir. 1997)); see also
Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001)
(“Even though we cannot reverse a decision merely
because we would reach a different outcome, we must reverse
when we conclude that the state court decision applies the
correct legal rule to a given set of facts in a manner that
is so patently incorrect as to be
AEDPA precludes federal habeas relief on factual issues
unless the state court's adjudication of the merits was
based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding.
See 28 U.S.C. § 2254(d)(2); Martinez v.
Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011). The
state court's factual determinations are presumed correct
unless rebutted by “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see also
Jackson v. Anderson, 112 F.3d 823, 824-25 (5th Cir.
Court may only consider the factual record that was before
the state court in determining the reasonableness of that
court's findings and conclusions. Cullen v.
Pinholster, 563 U.S. 170 (2011). Review is “highly
deferential, ” Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam), and the unreasonableness
standard is “difficult [for a petitioner] to
meet.” Harrington v. Richter, 562 U.S. 86, 102
Summary Judgment Standard in Habeas Corpus
ordinary civil cases, a district court considering a motion
for summary judgment is required to construe the facts of the
case in the light most favorable to the non-moving party.
See Anderson v. Liberty Lobby, 477 U.S. 242, 255
(1986) (The “evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor”). “As a general principle, Rule 56 of
the Federal Rules of Civil Procedure, relating to summary
judgment, applies with equal force in the context of habeas
corpus cases.” Clark v. Johnson, 202 F.3d 760,
764 (5th Cir. 2000). This principle is limited, however; Rule
56 applies insofar as it is consistent with established
habeas practice and procedure. See Smith v.
Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (citing Rule
11 of the Rules Governing Section 2254 Cases). Therefore,
§ 2254(e)(1) - which mandates that findings of fact made
by a state court are “presumed to be correct” -
overrides the ordinary summary judgment rule that all
disputed facts must be construed in the light most favorable
to the nonmoving party. See id. Unless the
petitioner can “rebut[ ] the presumption of correctness
by clear and convincing evidence” regarding the state
court's findings of fact, those findings must be accepted
as correct. See id. Thus, the Court may not construe
the facts in the state petitioner's favor where the
prisoner's factual allegations have been adversely
resolved by express or implicit findings of the state courts,
and the prisoner fails to demonstrate by clear and convincing
evidence that the presumption of correctness in 28 U.S.C.
§ 2254(e)(1) should not apply. See Marshall v.
Lonberger, 459 U.S. 422, 432 (1983); Sumner v.
Mata, 449 U.S. 539, 547 (1981); Emery v.
Johnson, 940 F.Supp. 1046, 1051 (S.D. Tex. 1996),
aff'd, 139 F.3d 191 (5th Cir. 1997).
petition raises seven broad claims for relief with numerous
subparts. Respondent groups the claims and identifies 19,
including subclaims in the pending Amended Petition. This
includes five broad claims of ineffective assistance of
counsel. Sheppard responds that she intends to raise only one
overriding claim of ineffective assistance of counsel at the
punishment phase of her trial consisting of several instances
in which counsel's conduct fell below prevailing
professional norms, see Reply to Mot. for Sum. Jmt.
[Doc. # 49], at 28, as well as several claims of ineffective
assistance of counsel during the guilt-innocence phase and on
appeal. The Court examines each specific instance raised by
Sheppard, and considers whether counsel's acts and
omissions, singly or in combination, amounted to
constitutionally ineffective assistance of counsel. They are
addressed in turn.
Ineffective Assistance of Counsel
contends that she received ineffective assistance of counsel
at both the guilt-innocence and punishment phases of her
trial. To prevail on a claim for ineffective assistance of
counsel, Petitioner “must show that . . . counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed by the Sixth Amendment,
” and “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). To prove “prejudice”under the
Strickland test, there must be a showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Id. at 687.
order to prevail on the first prong of the
Strickland test, the “deficient
performance” prong, Petitioner must demonstrate that
counsel's representation fell below an objective standard
of reasonableness. Id. at 687-88. Reasonableness is
measured against prevailing professional norms, and must be
viewed under the totality of the circumstances, avoiding the
distorting effects of hindsight. In the context of a capital
sentencing proceeding, “the question is whether there
is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.” Strickland, 465 U.S. at 695. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at
694. As the Fifth Circuit succinctly framed this concept:
“Is this additional mitigating evidence so compelling
that there is a reasonable probability at least one juror
could reasonably have determined that . . . death was not an
appropriate sentence?” Neal v. Puckett, 239
F.3d 683, 692 (5th Cir. 2001). This requires a
“substantial, not just conceivable, likelihood of a
different result.” Cullen v. Pinholster, 563
U.S. 170, 189 (2011)(quotation marks omitted).
of counsel's performance is deferential, and counsel
enjoy a strong presumption that their conduct is within the
“wide range” of the bounds of professional norms.
Strickland, 466 U.S. at 689; Id. at 688-90.
A petitioner's burden is to show “that counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. To
make this determination, a reviewing court must
“consider all the relevant evidence that the
jury would have had before it if [Sheppard] had pursued [a]
different path-not just the mitigation evidence [Sheppard]
could have presented, but also the . . . evidence that almost
certainly would have come in with it.” Wong v.
Belmontes, 558 U.S. 15, 20 (2009).
Supreme Court has explained, in any event, that when a state
court has adjudicated a claim of ineffective assistance of
counsel on the merits, the petitioner bears an especially
Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult. The standards created by
Strickland and § 2254(d) are both “highly
deferential, ” [Strickland, 466 U.S.] at 689,
104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333,
n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two
apply in tandem, review is “doubly” so,
Knowles [v. Mirzayance], 556 U.S., at 123,
129 S.Ct. , at 1420. The Strickland standard
is a general one, so the range of reasonable applications is
substantial. 556 U.S., at 123, 129 S.Ct., at 1420. Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011). As
the Fifth Circuit has explained:
That a federal habeas court would reach a different
conclusion is not enough, standing alone, to merit relief
under AEDPA's high standard. See [Williams
v. Taylor, 529 U.S. 362');">529 U.S. 362, ] 411, 120 S.Ct. 1495');">120 S.Ct. 1495 [(2000)].
As the Supreme Court recently reiterated, “even a
strong case for relief does not mean the state court's
contrary conclusion was unreasonable.”
Richter, [562 U.S. at 102].
Trottie v. Stephens, 720 F.3d 231, 240-41 (5th Cir.
2013). If the Court finds that counsel rendered deficient
performance, the cumulative effect of any deficiencies may be
sufficient to satisfy Strickland's prejudice
prong, even if no particular instance of deficient
performance is enough, by itself, to constitute
Strickland prejudice. See, e.g.,
Moore v. Johnson, 194 F.3d 586, 619 (5th Cir. 1999).
argues that trial counsel failed to investigate and to
present adequate evidence on both the future dangerousness
and the mitigation special issues. The Court has considered all
Sheppard's contentions in connection with whether
counsel's performance was deficient and whether any
deficiencies caused prejudice in connection with each special
issue. Sheppard's arguments on each special issue overlap
substantially. The Court therefore focuses on arguments
regarding mitigation first and addresses future dangerousness
Mitigation Special Issue
first argues that counsel rendered ineffective assistance
under Strickland by failing to investigate and
develop meaningful mitigation evidence and, accordingly,
failing to make an adequate mitigation presentation to the
jury. The Court concludes that it is a close question whether
the TCCA was unreasonable in finding that counsel was not
deficient and that there was no prejudice to Sheppard, but
concludes that Sheppard has not met her heavy burden under
Sheppard acknowledges that counsel retained an investigator,
but contends that neither lead nor the other counsel followed
up on useful information the investigator discovered.
E.g., Am. Pet. at 50. Sheppard asserts, with
virtually uncontested evidentiary support, that her trial
counsel was aware before trial that: she was physically and
verbally threatened by Dickerson on the day of the murder;
she had been sexually abused as a child, and that her mother
did not believe her allegations of sexual abuse; she was
physically abused by Bryant, the father of her third child;
and she had a family history of depression, among other
difficulties she faced. She complains that counsel was
grossly ineffective because they failed to develop available
evidence concerning the implications of her substantial
childhood difficulties. Had counsel followed up with
interviews of many family members, people with knowledge of
her stays at the women's shelters, and experts to
evaluate her to assess the impact of these experiences, these
witnesses could have educated the jury about the effect of
these numerous negative experiences on her, and thus enabled
the jury to evaluate them for mitigation.
Sheppard acknowledges, some information about these issues
was presented through the expert report and testimony of Dr.
Priscilla Ray, a psychiatrist. She argues, however, that the
testimony was far too limited, in part because Dr. Ray's
assignment from trial counsel Brown was merely to focus on
competency and sanity, and to determine whether she was
likely to be influenced by men who were in a position to
abuse her, see Pet. Resp., at 76 et seq.,
an unreasonably narrow assignment under the circumstances of
this case. Sheppard contends that she and Dr. Ray talked for
only two hours, and Dr. Ray's report was a mere five
pages. Further, the report presented matters in
“skeletal fashion.” Sheppard argues that counsel
should have called as witnesses Sheppard herself, her mother,
and/or her brother to present more detailed testimony on
these matters. Lead trial counsel Brown also admitted at the
state habeas hearing that he did not ask Dr. Ray or
Sheppard's grandmother, Annie Smith, about Sheppard's
history of abuse, pregnancies and abortions, or any personal
or family history of mental illness. 2 WH at 160-62.
further contends that counsel should have, but did not,
retain a mitigation expert, a social worker, a neurologist, a
neuropsychologist, and experts on child abuse, spousal abuse,
trauma, and post-traumatic stress disorder
(“PTSD”). She complains, as noted, that Brown
failed to give the one expert he had retained, psychiatrist
Dr. Ray, sufficiently broad instructions to enable her to
address subjects pertinent to mitigation (and future
dangerousness). See Pet. Resp., at 76-82. Sheppard
now presents expert opinion evidence that, had Dr. Ray or
other experts been retained prior to trial, they would have
been able to testify to the jury that she has below average
intelligence, which results in faulty social judgment and a
compromised ability to exercise judgment in demanding, novel,
or unclear situations. Sheppard also exhibits symptoms of
organic brain dysfunction. Am. Pet., App. 25. She also
presents expert opinion evidence that she suffers from PTSD,
major depression, and dissociative disorder as a result of
repeated instances of physical, emotional, and sexual abuse,
Am. Pet., App. 26, and poses a low risk of committing future
acts of violence, Am. Pet., App. 6.
arguments amount to a weighty failure to investigate claim.
“[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation.” Wiggins v. Smith, 539 U.S.
510, 521 (2003) (internal quotation marks and alteration
omitted) (quoting Strickland, 466 U.S. at 690-91).
When assessing the reasonableness of an attorney's
investigation, a court must “consider not only the
quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney
to investigate further.” Id. at 527. To
establish that an attorney was ineffective for failure to
investigate, a petitioner must allege with specificity what
the investigation would have revealed and how it would have
changed the outcome of the trial. See United States v.
Green, 882 F.2d 999, 1003 (5th Cir. 1989).
Habeas Ruling on Ineffective Assistance of Counsel on
state habeas trial court recommended granting relief on
Sheppard's claim that counsel failed to investigate and
develop mitigating evidence to present at the penalty phase,
Id. at 1338. That court, while concluding that Brown
provided effective counsel during the guilt-innocence phase,
trial counsel provided ineffective assistance at the
punishment phase of [Sheppard]'s trial in failing to
present or fully develop evidence regarding [Sheppard]'s
background and failing to present testimony expert or
otherwise that would allow the jury to understand the
implications of [Sheppard]'s background including
physical abuse, sexual abuse or domestic violence for
consideration in determining the answer to the special
issues. The Court finds that this failure resulted in a
violation of [Sheppard]'s constitutional rights.
5 SHCR at 1337-38.
TCCA disagreed and denied relief. Ex Parte Sheppard,
2013 WL 5568434 at *1. The TCCA held that counsel presented
several witnesses who testified about Sheppard's
background and presented records from the Matagorda
Women's Crisis Center and Covenant House. The Court noted
that defense counsel also presented Dr. Ray's testimony
and expert report. Therefore, the TCCA held, the evidence
Sheppard faults counsel for not presenting was cumulative of
the evidence that was presented. Id. at **1-2. As
explained hereafter, this Court disagrees with the TCCA's
conclusion. However, under applicable Fifth Circuit
authority, the Court concludes the Fifth Circuit would not
find the TCCA was unreasonable.
Association Guidelines. Sheppard cites numerous
authorities and materials to argue that counsel had a
well-established duty to investigate her life and mental
health history, and develop and present mitigation evidence.
See Am. Pet. at 28-49 (citing ABA and Texas State
Guidelines, as well as CLE materials issued before
Sheppard's trial, and other authorities discussing
relevant standards). She contends that counsel's
investigation did not comply with the relevant American Bar
Association Guidelines, or the 1994 State Bar of Texas
Guidelines for capital case representation. This is true.
However, the Fifth Circuit has taken the position in an
unpublished ruling that the ABA Guidelines are not
The ABA Guidelines do not control our assessment. The Supreme
Court has explained that “the Federal Constitution
imposes one general requirement: that counsel make
objectively reasonable choices.” Bobby v. Van
Hook, 130 S.Ct. 13, 17 (2009) (quotation marks and
citation omitted). “The question is whether an
attorney's representation amounted to incompetence under
‘prevailing professional norms, ' not whether it
deviated from best practices or most common custom.”
Premo v. Moore, 131 S.Ct. 733, 740 (2011) (quoting
Strickland, 466 U.S. at 690). We look for guidance
about the norms in the relevant state as they existed at the
time of the trial. See Wiggins v. Smith, 539 U.S.
510, 524 (2003). . . . The Guidelines are helpful only if
they “reflect prevailing norms of practice.”
Van Hook, 130 S.Ct. at 17 n.1 (quotation marks and
citation omitted). The Guidelines also “must not be so
detailed that they would interfere with the constitutionally
protected independence of counsel and restrict the wide
latitude counsel must have in making tactical
decisions.” Id. (quotation marks and citation
omitted). Whether a counsel's decisions are legitimate
will depend on the circumstances. Id. at 16.
Ayestas v. Thaler, 462 F. App'x 474, 479 (5th
Cir. 2012), vacated on other grds., 133 S.Ct. 2764
(2013). It is assumed that the same conclusion would apply to
the 1994 State Bar of Texas Guidelines. This is an issue for
further appellate consideration.
postconviction proceedings, Sheppard presented important
evidence from witnesses who observed her suffer abuse at the
hands of her mother and her boyfriend, people who knew
Sheppard as a youth and could testify to her character,
background, and difficult life circumstances. Sheppard
identifies numerous such witnesses who could have testified
on her behalf during the punishment phase, but who were never
called. See, e.g., Pet. Resp. at 32-33.
of Trial Counsel's Performance.
on the habeas and trial records, it appears that Brown
engaged in not insubstantial preparation for Sheppard's
trial, but failed to do all that was appropriate. The TCCA
rejected the state habeas court's recommendation to grant
Sheppard's ineffective assistance of counsel claim in
investigating and presenting evidence in mitigation at the
punishment phase. Ex Parte Sheppard, 2013 WL 5568434
at **1-2. The TCCA's conclusions are highly questionable
in light of the trial and habeas records presented.
state habeas record established that the state trial court
held a live hearing at which Brown testified. He explained
that, at the time of Sheppard's trial, he had about 13
years experience as a criminal lawyer after graduation from
Texas Southern University Law School. Charles Brown
Affidavit, Am. Pet, App. 1, ¶ 2. He perceived the case
to be a “high profile one in which the prosecution and
court were under an extraordinarily [sic] level of pressure
to obtain a conviction and death sentence.”
Id., ¶ 11. While he had tried one capital murder
case before Sheppard's, he did so as second chair.
Id., ¶ 8. He testified at the state habeas
hearing that he had tried between 10 and 20 murder cases, and
“a lot” of first degree felony cases. 2 WH at
Brown's request, the trial court appointed two other
attorneys to assist him with Sheppard's defense.
Id. at 29-30. Brown, however, states he was
dissatisfied with the second-chair attorney, Hazel Bolden, an
eight year attorney, as too inexperienced to be of value and
gave her little to do. See Brown Aff, ¶¶
14-15, 17, 40-42; see Hazel Bolden Affidavit, Am.
Pet., App. 2; 2 WH at 199-205. The third attorney appointed
by the trial court was appointed 17 months after Brown, days
after jury selection had begun and “did not begin
participating in the defense until the day that trial
began.” Brown Aff, ¶¶ 5, 15. Thus,
there was uncontradicted evidence before the state habeas
court that all the attorneys were inexperienced in capital
defense and largely if not totally unprepared on many
matters. Neither Bolden nor Woldy met with the investigator
appointed by the court or any witnesses for Sheppard.
Id., ¶ 17; Bolden Aff, ¶¶
7-40. Bolden states she was not aware of
the Dickerson trial and did not attend it, did not interview
any witnesses or potential witnesses, and was not aware of
Brown doing so. Bolden Aff, ¶¶ 38. There
is no evidence Brown gave these attorneys assignments to
assist or work with the investigator. Brown essentially
functioned as solo counsel for Sheppard in her capital trial.
Brown's investigation and preparation for trial, Brown
met with Sheppard 15 or 20 times before the trial began. 2 WH
at 48. He spoke to Sheppard's mother and grandmother, to
Bryant, and to a counselor at Covenant House. He also
reviewed the 15-page report of interviews conducted by his
investigator. Brown Aff., ¶ 16; 2 SHCR at
512-13. However, Brown did not interview any of the potential
witnesses identified by his client or the investigator before
the trial. Brown Aff, ¶¶ 19-39. He states
he reviewed the state's file and attended Dickerson's
capital murder trial, which was held before Sheppard's. 2
WH at 101-104. He also spoke to Dickerson's attorneys. 2
WH at 104.
the state habeas proceedings, Brown gave some explanation for
various trial decisions. He testified that he was aware of
Sheppard's claim that Dickerson coerced her into
participating in the robbery-murder, but also explained that
he was aware of facts undermining this assertion. He noted
that Sheppard did not mention duress to the police, that she
went swimming with Dickerson at the motel after the murder,
and that she spoke to Bryant outside of Dickerson's
presence at the motel. Id. at 136-39. He also
testified that he was aware of other issues mentioned in Dr.
Ray's report. Id. at 44-45, 56-59.
testified that, based on his personal observation, he did not
believe that Sheppard's brother Jonathan wanted to help
her at the time of the trial. Id. at 101-02. He did
not mention why he reached this conclusion. See
Affidavit of Jonathan Sheppard, Am. Pet., App. 16.
noted that Sheppard's mother spoke to the media
frequently and he was concerned that he would not be able to
control her if she testified. Id. at 121. Brown
subpoenaed Bryant, but Bryant did not want to testify after
being told he could face criminal liability and should seek
advice of counsel. He stated that other potential witnesses
refused to talk to the defense team. Id. at
in his affidavit executed in 1998, acknowledged errors in his
trial strategy, such as not calling Sheppard to testify (in
the guilt and punishment phases of the trial) to establish
her state of mind concerning Dickerson's threats, and not
calling other witnesses including her grandmother, Annie
Smith, Sherry Brown, and Maybeline Fisher, if not Jerry
Bryant, Jr., counselors of Covenant House and the Matagorda
Women's Crisis Center, and experts witnesses to elaborate
on the impact of child and spousal abuse. Brown Aff,
¶¶ 53, 54.
state habeas court found that Brown consulted with Sheppard,
reviewed the prosecution file, reviewed Sheppard's
extraneous offenses, consulted with Dr. Ray to develop
mitigation evidence, investigated potential defensive
theories including duress, interviewed potential witnesses,
obtained relevant records, observed Dickerson's trial,
and consulted with Dickerson's counsel. SHCR at 1336-37.
The state habeas trial court found that Brown's strategy
was to portray Dickerson as the main actor and to seek mercy
for Sheppard based on her gender and background. Id.
at 1337. While the state court found that Brown had a
coherent strategy, it did not address why Brown did not go
further to find witnesses to support the defense and why he
did not utilize his co-counsel, Bolden, to work with their
investigator to meet with and obtain some potential
additional witnesses for mitigation at trial.
noted, Sheppard relies on criticisms lodged by second chair
counsel Hazel Bolden's affidavit and testimony that she
thought Brown did a poor job representing Sheppard. 2 WH at
220-26; Am. Pet., App. 2. The state habeas court acknowledged
this affidavit, but found co-counsel Bolden's criticisms
unpersuasive because they were based on “a hindsight
evaluation of trial counsel's representation . . .,
” and because Bolden never informed the trial court of
any concerns over Brown's representation. SHCR at
the punishment phase, Brown presented evidence to the jury
through Dr. Ray and four lay witnesses: Patricia Birdwell,
who authenticated records from the Matagorda County
Women's Center, explained the Center's services, and
testified that Sheppard was admitted to the Center, 26 Tr. at
31-34; Ronda Robinson of Covenant House, who authenticated
documents, explained Covenant House's services, and
testified that Sheppard was admitted to Covenant House,
id. at 35-37; Patrice Green, who testified that she
knew Sheppard since Sheppard was a baby, and that Sheppard
worked for Green's husband, id. at
70-74; and Annie L. Smith, Sheppard's
grandmother, who testified that Sheppard lived with her for
much of Sheppard's life, and that Sheppard was abused by
Jerry Bryant, Jr., id. at 75-78. These witnesses
presented the basic mitigating facts concerning
Sheppard's life, namely, that Sheppard was the product of
a broken marriage, had little contact with her father, and
was largely raised by her grandmother. These witnesses
mentioned also that Sheppard's mother was not supportive
and did not believe her allegations of childhood sexual
abuse, and that Sheppard ran away from home as a teenager and
sought shelter at Covenant House. The jury learned that
Sheppard later was in an abusive relationship with Bryant,
the father of one of her children, and that she sought
assistance from a Crisis Center for abused women. The jury
knew that she had three children with three different men.
They knew that she dropped out of school but eventually
earned a GED, and held several jobs.
presented some evidence through Dr. Ray that Sheppard
suffered from depression, and had a family history of
depression. Id. at 42. The defense presented her
theory that Dickerson committed the murder, and that
Dickerson threatened to harm Sheppard and her baby if she did
not participate. There was no evidence that Sheppard was
violent while in pretrial detention, and Dr. Ray stated that
Sheppard was statistically unlikely to be violent if
sentenced to life imprisonment. See Id. at 43-46.
contends that counsel could have presented much more
first-hand available, detailed, descriptive evidence of her
life history, see, e.g., Am. Pet., at 29-32, which
cumulatively was severely deficient performance (and also,
especially considered cumulatively, establish
Strickland prejudice, see pgs. 25-26,
infra). Sheppard argues, for example, that Brown
failed to interview her or her grandmother about her social
history, see Id. at 30, 32. She points out there was
first-hand testimony of her childhood sexual and other
physical abuse, her strained relationship with her mother and
her largely absent father, her mother's abusive partners,
her unstable childhood living arrangements, her pregnancies
and abusive relationships, and other relevant facets of her
life. Id. at 30-32, and Appendices, passim.
Sheppard urges that counsel should have called as witnesses,
at a minimum, Sheppard herself, her mother, her grandmother,
and her brother, Jonathan. She relies primarily on her own
affidavit, and affidavits by her mother and grandmother, for
these points. See Am. Pet., Apps. 8, 9,
identifies strategic reasons for defense counsel's
decision not to call these family witnesses. Defense counsel
was concerned about his ability to control Sheppard's
mother while testifying, in light of her comments to the
media. The trial judge also had admonished Sheppard's
mother to stop harassing witnesses. 22 Tr. at 5-7.
counsel testified at the hearing that he made a strategic
decision not to call Sheppard's brother, Jonathan, based
on his observation of Jonathan during Dickerson's trial.
There was no explanation, however, whether Brown considered
whether Jonathan's testimony at the Dickerson trial were
entirely different from those to be covered at the punishment
phase of Sheppard's trial, such as matters regarding
contends that defense counsel's choice not to call
Sheppard at the punishment phase was understandable because
she personally faced potentially damaging cross-examination
if she testified. The state court found this persuasive,
although it is entirely unclear what testimony or evidence
Brown or the state habeas court or TCCA thought would be
elicited that the prosecution did not already intend to use
there is no explanation why Brown did not interview
Sheppard's grandmother, Annie Smith, in great detail. She
was called to testify at trial but gave superficial testimony
on Sheppard's childhood and other experiences.
because defense counsel articulated strategic, albeit
superficial, reasons for not calling the family witnesses now
identified by Sheppard, the TCCA's ruling that these
decisions did not amount to deficient performance under
Strickland has some foundation. Thus, under Fifth
Circuit precedent, the conclusion is not sufficiently
incorrect to be deemed legally unreasonable.
argues also that counsel should have called as witnesses
Aaron Green, a Justice of the Peace for Matagorda County, who
was Sheppard's former employer and knew Sheppard's
grandmother and Bryant. Sheppard contends that he could have
testified to Sheppard's temperament and work ethic, to
her susceptibility to being manipulated, and to Bryant's
abusive personality and evidence that he abused Sheppard.
Aaron Green Affidavit, Am. Pet., App. 18. Sheppard also
argues that Kelly Garcia, a fellow inmate at the Harris
County jail, could have testified that Sheppard participated
in Bible study and was religious, and that she was concerned
for her family. Garcia asserts that Sheppard claimed she was
coerced into participating in the murder, and was remorseful.
Am. Pet., App. 13. Emma Brooks, a family friend, could also
have testified to Sheppard's faith and peaceful nature,
Am. Pet, App. 19, as could have Tangela Price-Sells, a cousin
of Sheppard's half-brother, Am. Pet., App. 20, and Lloyd
Jackson, a deacon at Mother Zion Missionary Baptist Church in
Bay City, Am. Pet., App. 21. Other potential witnesses
include a Harris County jail chaplain, Am. Pet, App. 10,
representatives of from Covenant House and the Matagorda
County Women's Crisis Center, Am. Pet, App. 12,
Bryant's ex-mother-in-law, Am. Pet, App. 17, and the
Director of a Women's Crisis Center (who could have
testified concerning Sheppard's history of abuse), Am.
Pet, App. 11. Sheppard contends that her brother, Jonathan,
would have aided presentation of the mitigation evidence
because he could have testified to physical and sexual abuse
that he and Sheppard suffered as children, that their mother
did not believe their claims of abuse by a babysitter, and to
the emotional deprivation and turmoil they experienced due to
their unstable family life. See Am. Pet, App. 16.
Finally, Sheppard urges that Brown should have called Tommi
Eanes, a longtime romantic partner of Sheppard's mother,
who could have testified to Sheppard's difficult
relationship with her mother, including verbal abuse,
corporal punishment, and verbal threats of harm. She also
could have testified to Sheppard's non-violent nature.
Am. Pet, App. 23. Brown testified at the state writ hearing
that he did not know who Aaron Green, Emma Brooks, Tangela
Price-Sells, Lloyd Jackson, or Isabel Rodriguez (Jerry
Bryant, Jr.'s ex-mother in law) were, nor did he attempt
to interview any of them. 2 WH at 62-63; see Brown
Aff, ¶¶ 19-39 . The state habeas trial
court found that Brown's failure to develop and present
mitigating evidence was deficient. SHCR at 1348.
also complains that counsel was ineffective for failing to
call additional experts. While implicitly acknowledging that
Dr. Ray's report contained information concerning her
life history, Sheppard contends that Dr. Ray's evaluation
was cursory. There is no dispute that Brown asked Dr. Ray
only to evaluate Sheppard for sanity, competency to stand
trial, and susceptibility to being influenced by men who were
in a position to abuse her. Dr. Ray was not asked to offer a
psychiatric diagnosis, particularly whether Sheppard suffers
from PTSD. Sheppard contends that the limited scope of Dr.
Ray's evaluation was unjustified. Sheppard also argues
that additional expert testimony likely would have bolstered
her case that she was susceptible to coercion or duress, and
therefore less culpable. She elaborates that, even if there
was a strategic reason not to rely on a duress defense in the
guilt-innocence phase,  there was no ...