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Sheppard v. Davis

United States District Court, S.D. Texas, Houston Division

March 29, 2017

ERICA YVONNE SHEPPARD, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. BACKGROUND

         Sheppard 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.[1] 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 197-206.

         An 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.

         The day 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.

         Jordan 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.

         The day 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.

         The 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.

         During 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.

         The 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.

         Meagher's 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.

         In the 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] 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.

         Sheppard 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 3-B.

         Sheppard 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.

         Dr. 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.

         Sheppard 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.

         Sheppard's 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. Id.

         The 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 death.

         The 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.

         Sheppard 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.[3]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.[4] 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 ineffective assistance

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 issues.

Id. at 1338.

         The 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).

         Sheppard 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.

         II. APPLICABLE LEGAL STANDARDS

         A. The Anti-Terrorism and Effective Death Penalty Act

         This 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. 2012).

         For 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 (2000).

         The “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 ‘unreasonable.'”)

         The 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. 1997).

         This 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 (2011).

         B. Summary Judgment Standard in Habeas Corpus Proceedings

         In 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).

         III. ANALYSIS

         Sheppard's 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.

         A. Ineffective Assistance of Counsel

         Sheppard 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.

         In 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).

         Review 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).

         The 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 heavy burden.

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. [1411], 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).

         1. Punishment Phase

         Sheppard argues that trial counsel failed to investigate and to present adequate evidence on both the future dangerousness and the mitigation special issues.[5] 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 thereafter.

         a. Mitigation Special Issue

         I. Performance Prong

         Sheppard 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 the AEDPA.

         Overview. 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.

         As 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.

         Sheppard 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.

         Sheppard's 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).

         State Habeas Ruling on Ineffective Assistance of Counsel on Mitigation Issue.

         The 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, found that

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.

         The 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.

         Bar 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 controlling.

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.

         During 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.

         Analysis of Trial Counsel's Performance.

         Based 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.

         The 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.[6] 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 94-96.

         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.[7] 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.

         Regarding 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.

         During 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.

         Brown 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.

         Brown 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.[8] He stated that other potential witnesses refused to talk to the defense team. Id. at 116-25.[9]

         Brown, 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.

         The 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.

         As 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 1335-36.[10]

         During 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[11]; 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.

         Brown 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.

         Sheppard 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, 14.[12]

         Respondent 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.

         Defense 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 Sheppard's childhood.

         Respondent 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 against her.

         Furthermore, 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.

         In sum, 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.

         Sheppard 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.

         Sheppard 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, [13] there was no ...


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