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Slater v. Davis

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

March 30, 2017

LORIE DAVIS, Respondent.



         In 1996, a Texas jury convicted Paul Wayne Slater of capital murder and he was sentenced to death. After unsuccessfully availing himself of state appellate and post-conviction remedies, Slater filed a federal petition for a writ of habeas corpus. (Docket Entry No. 21). Respondent Lorie Davis has moved for summary judgment. (Docket Entry No. 30). The issue now before the Court is whether Slater has shown an entitlement to relief under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). Having considered the record, the pleadings, and the law, the Court grants the summary judgment motion and denies Slater's federal habeas petition. The Court will not issue a Certificate of Appealability.

         I. Background

         A. The Crime and the Trial

         On July 19, 1995, Eric Washington left Wharton, Texas with $3, 000 to buy six ounces of crack cocaine. After picking up Roddrick Martin and Glenn Andrews, Washington drove to a carwash in southwest Houston. Washington parked his car near the vacuum cleaner. A short time later a Cadillac with two men inside circled the carwash and pulled into a wash bay. Martin and Andrews got into the backseat of the Cadillac. Within minutes, Martin and Andrews had been shot and Washington had fled the scene.

         Fire department personnel responded to a call about gunfire, finding Martin and Andrews lying in the car wash bay. Both men had been shot several times. Andrews was pronounced dead at the scene and Martin died en route to the hospital. Responders found two small stacks of bills totaling $200 lying on the ground near Martin.

         On August 9 1995, the police stopped a Cadillac driven by teenager Julius Woods. A subsequent search revealed trace evidence of blood inside the car. A bullet strike marred an interior panel. Over a month later, Slater showed up at the police station with his aunt. Slater provided the police a videotaped statement in which he admitted that he and Woods met the victims to engage in a drug deal. Slater also admitted that he shot the victims. In his statement, however, Slater disclaimed any intent to rob or kill the victims. Slater said that, as he was sitting in the front passenger seat at the carwash, one of the men in the back drew a weapon. Slater claimed that he then grabbed his own 9mm pistol and started shooting. Slater said that Woods never fired any shots. He also said that Washington, who had been waiting in the other vehicle, also started firing a weapon and that one of his bullets may have hit the victims. Slater claimed that, before driving away, he left the victim's guns and a bag of cash at the carwash.

         The State of Texas charged Slater with committing capital murder during the course of a robbery. Clerk's Record at 6.[1] The prosecution elected to proceed under Texas' law of parties which allowed for Slater's capital-murder conviction as a party "if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Clerk's Record at 65; see Tex. Penal Code Ann. §§7.01, 7.02.

         Slater retained attorney Charles Freeman to represent him at trial. Slater's confession served as the backbone of his defense. The defense portrayed the crime as a drug deal gone bad, with Slater reflexively shooting when the buyers brandished weapons. As the Court will discuss later, while initially intending to focus the defense on both the lack of a robbery and self-defense, decisions made by Freeman and by Slater shaped the manner in which the jury could consider Slater's confession. In the end, the defense attempted to convince jurors that Slater accurately described the crime in his police statement.

         The State also relied on Slater's confession to the crime, supplemented with evidence contradicting the self-serving elements of his narrative. The State emphasized Washington's eyewitness testimony which differed in important aspects from the account given by Slater. Washington testified that the drug buyers did not have weapons. Washington testified that Martin was carrying money in the front of his shorts, though the police never recovered any on his body. Washington saw one occupant of the Cadillac get out and open the trunk. At that point, Washington became momentarily distracted until he heard gunshots. Washington looked up to see the driver of the Cadillac firing a pistol into the back seat. The passenger was outside the car also, firing into an open back door.

         Forensic evidence confirmed the portions of Washington's testimony that differed from Slater's police statement. Bullets recovered from the autopsies were from two different weapons, disputing Slater's statement that Woods did not fire a gun. The trajectory of bullet strikes and the victims' wounds refuted Slater's description of having shot from the passenger seat. No weapons were found in the carwash.[2]

         The jury found Slater guilty of capital murder.

         After a Texas jury has convicted a capital defendant, state law determines his sentence through answers to special issue questions. In this case, the trial court's instructions required the jury to decide (1) whether Slater would be a future societal danger, (2) whether Slater actually caused the death of Martin or intended that a human life would be taken, [3] and (3) whether sufficient circumstances mitigated against the imposition of a death sentence. Clerk's Record at 441 -42. The State presented testimony that Slater would be a future societal danger based on his commission of four extraneous crimes: (1) Slater participated in the delivery of crack cocaine to an undercover narcotics officer in February of 1991; (2) Slater shot a teenager in the buttocks for no apparent reason and then pointed his gun at the pastor during a church youth activity in February of 1991; (3) during a traffic stop in 1994, police found Slater seated near masks, a loaded machine gun, and a loaded pistol; and (4) Slater pawned items stolen during a burglary in 1995. A jail officer opined that, after reviewing jail records which included offenses Slater committed in custody such as assaulting other inmates and refusing to obey orders, Slater would be a future danger while incarcerated.

         The defense called only one punishment-phase witness, Slater's mother Barbara Wiley. Wiley provided only brief testimony which focused on her son's low IQ (63) and his low academic functioning. Wiley described how, at age five, Slater ran out into the street and a car hit him. The resultant head injury required surgery and changed his educational development.

         After the arguments by the parties, the jury answered Texas' special issue questions in a manner requiring the imposition of a death sentence. The trial court sentenced Slater to death.

         B. State Appellate and Post-Conviction Review

         Brian W. Wice represented Slater on direct appeal and filed an appellate brief raising thirty-four points of error. In an opinion dated April 15, 1998, the Court of Criminal Appeals affirmed Slater's conviction and sentence. Slater v. State, No. 72, 623 (Tex. Crim. App. Apr. 15, 1998) ("Opinion on Direct Appeal").

         The trial court appointed Cynthia J. Cline to represent Slater on state habeas review. In 1998, Slater filed a state habeas application raising sixteen grounds for relief. State habeas review moved sluggishly. The State did not file a reply until 2002. When nothing happened in the case for several years, the Court of Criminal Appeals requested a status update in 2008. The trial court then took the case under advisement until the State filed a supplemental response in 2012. In August 2012, the Court of Criminal Appeals sent a notice to the lower court requiring the resolution of all claims within 120 days. The parties submitted proposed findings and conclusions. On March 5, 2014, the state habeas court entered findings of fact and conclusions of law recommending that the Court of Criminal Appeals deny habeas relief. State Habeas Record at 1073-1117.[4] The Court of Criminal Appeals adopted the lower court's findings and conclusion and, based on its own review of the record, denied relief. Ex parte Slater, No. WR-78, 134-01, 2014 WL 6989189, at *1 (Tex. Crim. App. Dec. 10, 2014).

         C. Federal Petition

         Federal review followed. Slater filed a federal petition for a writ of habeas corpus raising the following grounds for relief:

1. Trial counsel provided ineffective assistance at the guilt-innocence stage of trial by not requesting a jury instruction on the lesser-included offense of murder.
2. Trial counsel provided ineffective assistance at the punishment stage of trial by not investigating and presenting evidence of Slater's organic brain impairment and learning disabilities.
3. Trial counsel performed deficiently in the punishment phase closing argument.[5]
4. Appellate counsel should have raised a challenge to the trial court's instructions on extraneous offenses.
5. The death penalty violates the constitutional prohibition against cruel and unusual punishment.

         Respondent has filed a motion for summary judgment. (Docket Entry No. 30). Respondent argues that Slater raises three of his claims in a procedurally deficient manner and that none of his claims merit habeas corpus relief. Slater has filed a response. (Docket Entry No. 35). This matter is ripe for adjudication.

         II. Legal Standards

         Federal habeas review is secondary to the state court process and is limited in scope. The States "possess primary authority for defining and enforcing criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights." Engle v. Isaac, 456 U.S. 107, 128 (1982). How an inmate has litigated his claims in state court determines the course of federal habeas adjudication. Under 28 U.S.C. § 2254(b)(1), "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State[.]" Exhaustion "reflects a policy of federal-state comity designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (internal citations and quotations omitted).[6] Federal habeas courts only possess authority to deny any claim that an inmate has not exhausted through the state court process. See 28 U.S.C. § 2254(b)(2).

         As a corollary to exhaustion, the procedural-bar doctrine requires inmates to litigate their claims in compliance with state procedural law. See Dretke v. Haley, 541 U.S. 386, 392 (2004); Lambrixv. Singletary, 520 U.S. 518, 523 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991). "Procedural default... occurs when a prisoner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004) (quotation omitted). When state remedies are rendered unavailable by petitioner's own procedural default, a federal court "will forego the needless 'judicial ping-pong' and hold the claim procedurally barred from habeas review." Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995) (quoting Steel v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993)). A federal court may review an inmate's unexhausted or procedurally barred claims only if he shows: (1) cause and actual prejudice or (2) that "a constitutional violation has 'probably resulted' in the conviction of one who is 'actually innocent[.]'" Haley, 541 U.S. at 393 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).

         If the inmate has presented his federal constitutional claims to the state courts in a procedurally proper manner, and the state courts have adjudicated the merits, AEDP A allows federal review but provides deference to the state court judgment. "[F]ocus[ing] on what a state court knew and did, " Cullen v. Pinholster, 563 U.S. 170, 182 (2011), a habeas petitioner "has the burden under AEDPA to prove that he is entitled to relief, " Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000), to show that the state court's adjudication of the alleged constitutional error "was 'contrary to, or involved an unreasonable application of, clearly established Federal law.'" Berghuis v. Thompkins, 560 U.S. 370, 380 (2010) (quoting 28 U.S.C. § 2254(d)(1)); see also Thaler v. Haynes, 559 U.S. 43, 47 (2010); Bell v. Cone, 535 U.S. 685, 698 (2002); Early v. Packer, 537 U.S. 3, 7-8 (2002); Williams v. Taylor, 529 U.S. 362, 413 (2000).[7] A federal habeas court must presume the underlying factual determinations of the state court to be correct, unless the inmate "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 341 (2003); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004) ("As a federal habeas court, we are bound by the state habeas court's factual findings, both implicit and explicit.").

         A petitioner's compliance with AEDPA does not alone create an entitlement to habeas relief. No Supreme Court case "ha[s] suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]" Horn v. Banks, 536 U.S. 266, 272 (2002); see also Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003) (finding that 28 U.S.C. § 2254(d) "does not require federal habeas courts to grant relief reflexively"). Judicial doctrines, such as the harmless-error doctrine and the non-retroactivity principle, bridle federal habeas relief. See Thacker v. Dretke, 396 F.3d 607, 612 n.2 (5th Cir. 2005). A trial error cannot require habeas relief unless it "ha[d] a 'substantial and injurious effect or influence in determining thejury's verdict.'" Robertson, 324 F.3d at 304 (quoting Brechtv. Abrahamson, 507 U.S. 619, 629 (\993)); see also Aleman v. Sternes, 320 F.3d 687, 690-91 (7th Cir. 2003) ("Nothing in the AEDPA suggests that it is appropriate to issue writs of habeas corpus even though any error of federal law that may have occurred did not affect the outcome."). Also, under the jurisprudence flowing from Teague v. Lane, 489 U.S. 288 (1989), a habeas court cannot grant relief if it would require the creation and retroactive application of new constitutional law. See Horn, 536 U.S. at 272.

         Respondent has moved for summary judgment. Summary judgment is proper when the record shows "that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "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). A district court considering a motion for summary judgment usually construes disputed facts in a light most favorable to the nonmoving party, but must also view the evidence through "the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). The general summary judgment standards hold to the extent they do not conflict with AEDPA and other habeas law. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.2002) (Rule 56 "applies only to the extent that it does not conflict with the habeas rules"), overruled on other grounds by Tennardv. Dretke, 542 U.S. 274 (2004).

         III. Analysis

         Slater raises five grounds for relief in his federal habeas petition. Slater raises claims three, four, and five for the first time on federal habeas review. A procedural bar precludes consideration of any unexhausted grounds for relief. See Coleman, 501 U.S. at 736 n. 1.[8] Slater argues that he can show cause and actual prejudice to overcome the procedural bar of those claims. As discussed below, Slater has not shown any basis to forgive the procedural deficiencies in his unexhausted claims. Alternatively, the Court finds that Slater has not shown that any of his claims merit federal habeas relief.

         A. Lesser-Included Instruction on Murder (Claim One)

         Slater argues that Freeman provided deficient performance by failing to request an instruction that would allow jurors to convict him of a crime other than capital murder. Slater bases his lesser-included-offense-instruction claim on the version of the crime he provided in his police statement. The prosecution admitted Slater's videotaped confession into evidence and played it for the jury. Tr. Vol. 16 at 22, 112-13; State's Exhibit 39A. In his statement, Slater told the police that, after he took cocaine from the trunk and showed it to the buyers, one of them brandished a gun. Slater began shooting and then drove away without taking any money.

         Slater's confession raised two potential defenses. First, the evidence raised a question of whether Slater killed during the course of a robbery. Slater argues that his police statement "negated the robbery element of capital murder and raised fact issues as to whether he was committing a robbery" (Docket Entry No. 21 at 25). Second, Slater's statement allowed the defense to argue that the murders were an act of self-defense. While Slater's police statement provided details to substantiate those defenses, Freeman anticipated that Slater would take the stand and provide jurors his account of the murders. Relying on the construction of events found in his police statement, Slater argues that Freeman should have requested a lesser-included-offense instruction on simple murder.

         Because Slater exhausted this claim on state habeas review, AEDPA guides this Court's review. Slater must not only meet his burden of showing that Freeman provided deficient representation, he must also show that the state habeas court's rejection of this claim was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).

         1. Ineffective-Assistance-of-Counsel Standard

         Courts evaluate an attorney's efforts under the standard from Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a criminal defendant's Sixth Amendment rights are "denied when a defense attorney's performance falls below an objective standard of reasonableness and thereby prejudices the defense." Yarborough v. Gentry, 540 U.S. 1, 3 (2003) (emphasis added); see also Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 520 (2003).

         Counsel's performance is constitutionally deficient if it falls below "an objective standard of reasonableness." Strickland, 466 U.S. at 688. "[J]udicial scrutiny of counsel's performance must be highly deferential, " and every effort must be made to eliminate "the distorting effects of hindsight." Id. at 689. An ineffective-assistance claim focuses on "counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct[, ]" because otherwise "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence." Id. The law honors an attorney's "conscious and informed decision on trial tactics and strategy, " allowing for federal relief only when "it is so ill chosen that it permeates the entire trial with obvious unfairness." Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). The prejudice element requires the movant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

         While "[s]urmounting Strickland's high bar is never an easy task, " a habeas petitioner's duty to "[e]stablish[] that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). "The standards created by Strickland and § 2254(d) are both highly deferential, ... and when the two apply in tandem, review is doubly so." Richter, 562 U.S. at 105 (citation omitted); see also Knowles v. Mirzayance, 556 U.S. 111, 123(2009).

         2.Trial Counsel's Strategy and Slater's Choices

         Because the State of Texas charged Slater with capital murder, the prosecution needed to prove that he committed murder, as defined by TEX. Penal Code § 19.02(b)(1), and intentionally did so "in the course of committing or attempting to commit. . . robbery." Tex. Penal Code § 19.03(a)(2). Freeman faced difficult choices when forming a defense for his client. As Slater concedes, "[t]he evidence was undisputed that petitioner caused Martin's death individually or as a party." (Docket Entry No. 21 at 31). Slater's statement to police provided the best hope for crafting a successful defense. Slater's police statement drove counsel's choices about the theories which would underlie the trial defense, but those choices came with consequences. The strictures of federal and state law channeled the decisions Freeman would make in fashioning Slater's police statement into a defense.

         As mandated by Beckv. Alabama, 447 U.S. 625 (1980), Texas allows defendants to request jury instructions on lesser-included offenses to capital murder, including simple murder. The Court of Criminal Appeals has "consistently held that an accused is entitled to an instruction on every defensive issue raised by the evidence. This is true regardless of whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of this evidence." Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). Requesting a lesser-included-offense instruction on simple murder would have provided an option for jurors who believed that the State had not proven the robbery component of capital murder but disbelieved his self-defense argument. Still, that strategy anticipated a conviction for simple murder.

         To that end, the defense could also request a jury instruction on the justification of self-defense. From the beginning of trial proceedings, Freeman indicated that a main focus of the defense's case would be a claim of self-defense. Tr. Vol. 3 at 46-47. The trial court initially prepared "three pages worth of instructions on "the law of self-defense." Tr. Vol. 17 at 9. The jury, however, could only acquit Slater in that circumstance if the jury found both that he had not committed robbery and that he acted in self-defense. As will be discussed below, the trial court refused to deliver an instruction on self-defense unless the defense requested a lesser-included-offense instruction on simple murder.

         Another choice, however, presented itself to the defense. The defense could allow the jury charge to go forward without any lesser-included instructions, and hope that the jury would acquit on capital murder because no predicate robbery had occurred. This choice would be risky and limited the defense's options, particularly because the trial court early in the case told counsel that self-defense would not be a justification unless Slater requested a lesser-included instruction on simple murder. Tr. Vol. 4 at 149-50.

         After both parties rested, Freeman had a private conversation with Slater before the parties finished discussing the jury charge in this case. The transcript indicates that Slater and his attorney had a long discussion, but provides few details about its content:

Trial Court: All right. Mr. Freeman, according to the clock on the wall, you and Mr. Slater have had an opportunity to visit for about 35 minutes. Insofar as your discussion is concerned-obviously I don't know what it is or what it was-but is there anything further insofar as the charge is concerned that has evolved from your discussion?
Freeman: I mean, we have been fully discussing it, your Honor. We had not quite reached a-we reached a tentative decision, but I was not satisfied that it was an informed decision on his part. Tentative decision was to not change my initial statement to the Court.
Trial Court: You are the lawyer.
Freeman: The reason I'm saying that it's not informed is I'm not certain he understands the consequences of that decision. ...

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