United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
H. BENNETT UNITED STATES DISTRICT JUDGE
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
The Crime and the Trial
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.
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.
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.
State of Texas charged Slater with committing capital murder
during the course of a robbery. Clerk's Record at
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,
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.
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.
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
jury found Slater guilty of capital murder.
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,  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.
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
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
State Appellate and Post-Conviction Review
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").
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. 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).
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
3. Trial counsel performed deficiently in the punishment
phase closing argument.
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.
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
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). 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).
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
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). 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
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.
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
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.
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.
Lesser-Included Instruction on Murder (Claim One)
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
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.
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).
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).
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.
"[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.
Counsel's Strategy and Slater's Choices
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
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.
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.
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.
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. ...