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Robertson v. Davis

United States District Court, N.D. Texas, Dallas Division

March 30, 2017

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Petitioner Mark Robertson has filed an amended application for a writ of habeas corpus under 28 U.S.C. § 2254 (“Amended Petition”) (docket entry 47), asserting claims that his trial counsel provided ineffective assistance and that his due process rights were violated by the presentation of false or inaccurate evidence in the punishment stage of his trial. The application is DENIED.


         In 1991, Robertson was convicted of capital murder and sentenced to death for the 1989 robbery and murder of Edna Brau in Dallas County, Texas. See State v. Robertson, No. F89-85961-NL (Crim. Dist. Ct. No. 5, Dallas Co., Tex. Feb. 11, 1991). Clerk's Record (“CR”) (docket entry 27) at 321-25. His conviction and sentence were affirmed on direct appeal. See Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 853 (1994). The state court then set an execution date, but withdrew it to allow Robertson to file his application for a post-conviction writ of habeas corpus in state court, and then for the state court to give full consideration to it. The state district court sitting in review of the habeas petition (“State Habeas Court”) recommended that post-conviction habeas relief be denied. See Ex parte Robertson, No. W89-85961-NL-(A) (Crim. Dist. Ct. No. 5, Dallas County, Tex. June 26, 1998). These findings and recommendation were adopted by the Texas Court of Criminal Appeals (“CCA”). See Ex parte Robertson, Writ No. 30, 077-01 (Tex. Crim. App. Nov. 18, 1998). Robertson then filed an application for habeas relief in federal court, which was also denied. See Robertson v. Johnson, 3:98-CV-2768-G (N.D. Tex. May 15, 2000), COA denied sub nom. Robertson v. Johnson, 234 F.3d 890 (5th Cir. 2000), vacated and remanded, 533 U.S. 901 (2001), en banc denial of relief sub nom. Robertson v. Cockrell, 325 F.3d 243 (5th Cir. 2003). Following the conclusion of Robertson's original state and federal post-conviction review, the state court again set his execution for August 20, 2003. On August 12, 2003, Robertson filed a subsequent application for writ of habeas corpus and motion to stay his execution in the CCA, which authorized the subsequent application and granted the stay of execution. See Ex parte Robertson, No. 30, 077-02 (Tex. Crim. App. Aug. 19, 2003) (docket entry 27-36 at 275-276). Following the remand, the CCA adopted the trial court's findings that Robertson had presented mitigating evidence for which, under Penry v. Lynaugh, 492 U.S. 302 (1989), there had to be an adequate means for the jury to consider beyond the limits of the special issues, that Robertson had requested such a means, and that, when presented with the nullification instruction, Robertson objected that it still did not give the jury a proper means to consider his mitigating evidence. See Ex parte Robertson, No. AP-74, 720, 2008 WL 748373 (Tex. Crim. App. Mar. 12, 2008). The CCA granted relief, reversed the sentence, and remanded for a new trial on punishment. See id.

         On retrial with the new special issues, the jury again answered them in a manner that required imposition of a death sentence. See State Clerk's Record of Second Punishment Trial (“SCR”) (docket entry 27-42) at 197-99, 210-11. The CCA affirmed the new death sentence. See Robertson v. State, No. AP-71, 224, 2011 WL 1161381 (Tex. Crim. App. Mar. 9, 2011), cert. denied, 565 U.S. 1095 (2011). On state post-conviction habeas review, Robertson presented one claim to the state district court on habeas review: that trial counsel provided ineffective assistance for failing to investigate and present mitigating evidence. The state habeas court conducted an evidentiary hearing and entered findings, conclusions and a recommendation to deny relief. See State Clerk's Habeas Record following Second Punishment Trial (“SHR”) (docket entry 28-27) at 1126-99. The CCA adopted the findings “except for paragraphs 1, 2, and 3, which indicate that the allegation is procedurally barred, ” and denied relief. Ex parte Robertson, No. WR-30, 077-03, 2013 WL 135667, at *1 (Tex. Crim. App. Jan. 9, 2013).


         At the retrial, the prosecution entered into evidence multiple confessions that Robertson gave that he had shot his friend, Sean Hill, while they were fishing, then murdered Hill's grandmother, Edna Brau, stole her purse and jewelry and Hill's drugs and left in Brau's car. The CCA quoted from Robertson's written confession.

On Saturday night around 9 PM I decided to walk over to Sean's house on Hathaway where he lived with his grandmother. When I got there, Sean was in his room watching T.V. We sat around watched TV and did some pot and crank. We then decided to go fishing out in the backyard. We were using one stick with a string and a hook. We would trade off, I think we caught some seven catfishes. While we were fishing, I think we were kneeling. I pulled my gun out of my pants and shot Sean once in the head. After I shot him, Sean fell in the water. I then ran in the house through Sean's bedroom and into the bathroom where I splashed some water over my face. I then walked into the den where Mrs. Hill, Sean's grandmother, was watching TV and I shot her once. I unplugged the TV because it was playing and so was the radio in the bedroom.
I looked through her bedroom drawers and found her purse on the make-up counter. I saw some costume jewelry but left it alone. I did take a wristwatch which I later threw away in a garbage can but I don't remember where. I then ran into Sean's room and took his crank which was left on the bed. I then drove off in Mrs. Hill's car. I went on home and then went to Showtime on Greenville and Lover's where I wiped it all down and left it there. I then walked back home. Next day while listening to the evening news I heard about their bodies being found. I couldn't sleep for the next couple of days so I figured that I would just leave. I walked back to the parking lot at Showtime where I got in the car and decided to drive to Las Vegas where my parents used to bring me. I had left the car in the parking lot. I threw the purse away in a dumpster at the Village Apts. I think that I left on Tuesday sometime around 4 PM. I drove all the way to Albuquerque, N. Mexico where I spent the night and the following day I drove to Vegas. I was staying at the SuLinda Motel in Vegas. I met Nikki two or three days later at the Circus-Circus. I used my roommate's money to get to Vegas. He had some $700.00 in cash in his room. I think that Mrs. Hill's purse had some $37.00 in cash which I took. These past few days I didn't know what to do and when I got arrested I felt relieved for the most part because I didn't have to run anymore.

Robertson, 871 S.W.2d at 704-05. The state court findings regarding these confessions are entitled to deference under 28 U.S.C. 2254(e).


         Before this court, Robertson makes two claims for federal habeas relief: (1) that trial counsel failed to adequately investigate and develop mitigating evidence Amended Petition at 15-50, and (2) that his death sentence was based on materially inaccurate evidence, Amended Petition at 51-62. Respondent Lorie Davis asserts that Robertson's first claim is unexhausted and procedurally barred by the Texas abuse-of-the-writ doctrine, Answer (docket entry 50) at 2, 48-61, and that both claims lack merit. Answer at 61-71. Robertson agrees that his first claim is unexhausted but argues that it comes within the exception to the procedural bar created in Martinez v. Ryan, 566 U.S. 1 (2012), as applied to Texas in Trevino v. Thaler, 133 S.Ct. 1911 (2013). Amended Petition at 38-50; Reply (docket entry 51) at 4-7.


         Federal habeas review of these claims is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), setting forth preliminary requirements that must be satisfied before reaching the merits of a claim made in these proceedings.

         A. Exhaustion

         Under the AEDPA, a federal court may not grant habeas relief on any claim that the state prisoner has not exhausted in the state corrective process available to protect his rights. See 28 U.S.C. § 2254(b)(1)(A); Harrington v. Richter, 562 U.S. 86, 103 (2011). The federal court may, however, deny relief on the merits notwithstanding any failure to exhaust. See 28 U.S.C. § 2254(b)(2); Miller v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005), cert. denied, 549 U.S. 838 (2006).

         B. State-Court Procedural Determinations

         If the state court denies the claim on state procedural grounds, a federal court will not reach the merits of those claims if it determines that the state law grounds are independent of the federal claim and adequate to bar federal review. See Sawyer v. Whitley, 505 U.S. 333, 338 (1992). The same rule would apply “if the petitioner failed to exhaust 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.” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), modified by Martinez v. Ryan, 566 U.S. 1 (2012); Woodfox v. Cain, 609 F.3d 774, 793 (5th Cir. 2010).

         If, however, the state procedural determination is based on state grounds that were inadequate to bar federal habeas review, or if the habeas petitioner shows that an exception to the bar applies, the federal court must resolve the claim without the deference AEDPA otherwise requires. See Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir.), cert. denied, 531 U.S. 849 (2000); Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998); Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999) (“the AEDPA deference scheme outlined in 28 U.S.C. § 2254(d) does not apply” to claims not adjudicated on the merits by the state court); Woodfox, 609 F.3d at 794 (the AEDPA deferential standard would not apply to a procedural decision of the state court).

         C. State-Court Merits Determinations

         If the state court denies the claim on the merits, a federal court may not grant relief unless it first determines that the state court unreasonably adjudicated the claim, as defined in § 2254(d):

An 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --
(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.


         In the context of the § 2254(d) analysis, “adjudicated on the merits” is a term of art referring to a state court's disposition of a case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). This provision does not authorize habeas relief, but restricts this court's power to grant relief to state prisoners by barring the relitigation of claims in federal court that were not unreasonably denied by the state courts. The AEDPA limits, rather than expands, the availability of habeas relief. See Fry v. Pliler, 551 U.S. 112, 119 (2007); Williams v. Taylor, 529 U.S. 362, 412 (2000). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Richter, 562 U.S. at 98. “This is a ‘difficult to meet, ' and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court rulings be given the benefit of the doubt.'” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal citations omitted) (quoting Richter, 562 U.S. at 102, and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

         Under the “contrary to” clause, a federal court is not prohibited from granting federal habeas relief if the state court either arrives at a conclusion contrary to that reached by the United States Supreme Court on a question of law or decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. See Williams, 529 U.S. at 412-13; Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.), cert. denied, 531 U.S. 1002 (2000). Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. The Supreme Court has repeatedly reaffirmed the high and difficult standard that must be met.

“‘[C]learly established Federal law'” for purposes of § 2254(d)(1) includes only “‘the holdings, as opposed to the dicta, of this Court's decisions.'” And an “unreasonable application of” those holdings must be “‘objectively unreasonable, '” not merely wrong; even “clear error” will not suffice. Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”

White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (citations omitted).

         Federal habeas relief is not available on a claim adjudicated on the merits by the state court, unless the record before the state court satisfies § 2254(d). “[E]vidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.” Pinholster, 563 U.S. at 185. The evidence required under § 2254(d)(2) must show that the state-court adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”


         In his first claim, Robertson complains that he was denied the effective assistance of counsel in the punishment retrial because his appointed counsel failed to conduct an adequate mitigation investigation. Amended Petition at 15-50. Specifically, Robertson asserts that his counsel “unreasonably narrowed the scope of, and prematurely ceased, the [mitigation] investigation despite red flags that signaled further investigation needed to be done into [Robertson's] mental state at the time of the offense, into maternal and paternal genetic-and-environmental influences, and into [Robertson's] early childhood.” Amended Petition at 15.

         Respondent asserts that this claim was not presented to the state court and is, therefore, unexhausted and now procedurally barred. Answer at 48-52. Robertson agrees that this claim was not presented to the state court, but argues that it comes within the exception to the procedural bar created in Martinez. Amended Petition at 38-50; Reply at 5-7. Respondent argues that the claim does not fall within the exception to the procedural bar created in Martinez because it is insubstantial and state habeas counsel was not ineffective. Answer at 52-61. In the alternative, Respondent asserts that the claim lacks merit. Answer at 61-62.

         A. State Court Action

         In the post-conviction habeas application filed in state court, Robertson presented one claim, that his “Sixth Amendment right to counsel was violated when he received ineffective assistance of counsel as a result of his legal team's failure to adequately investigate and present mitigation evidence as required by Wiggins v. Smith, 123 S.Ct. 2547 (2003) and Lewis v. Dretke, 355 F.3d 364 (5th Cir. 2003).” SHR (docket entry 28-27) at 8. The state court described the claim:

In his sole ground for relief, Robertson complains trial counsel Richard Franklin and Robbie McClung failed to adequately investigate and present mitigation evidence, specifically that they were ineffective for (a) failing to follow mitigation expert Dr. Kelly Goodness' advice to present certain themes at trial (Application at 25-27); (b) failing to call psychologist Dr. Mark Vigen as a witness at trial (Application at 27-29); (c) failing to depose Robertson's friend Doris Jordi prior to trial and present the deposition to the jury (Application at 29-30); and (d) failing to obtain a copy of Robertson's 2001 clemency petition from former counsel Randy Schaffer's file. (Application at 30-31.) In support of his claims of ineffectiveness Robertson cites Wiggins v. Smith, 539 U.S. 510, 536 (2003) and Lewis v. Dretke, 355 F.3d 364 (5th Cir. 2003).

         SHR at 1150 (citing State Habeas Application at 6, 16-17). The state habeas court conducted an evidentiary hearing on this claim from January 23-26, 2012, Vol. 1-5, State Habeas Reporter's Record (“SHRR”) (docket entry 28-22), and resolved disputed factual findings against Robertson in denying relief.

         While the state habeas court concluded that the claim was procedurally barred because it could have been but was not presented in his direct appeal, the CCA did not adopt that finding. Instead, the CCA adopted the state habeas court's alternative findings that denied this claim on its merits. See Ex parte Robertson, No. WR-30077-03, 2013 WL 135667 at *1.

         The adopted findings included details of the pretrial appointment of “highly qualified death penalty counsel” for the trial and appellate purposes that included trial assistance “to formulate and execute an effective trial strategy for mitigation.” SHR (docket entry 28-25) at 1155-57. The state court found that trial counsel put on a comprehensive mitigation case that “covered Robertson's life span and painted a picture of a person who suffered as an abused, parentless child, who turned to drugs as a result, and who ultimately thrived in the highly structured environment of TDCJ.” SHR (docket entry 28-25) at 1186.

182. The Court finds the defense team hired or consulted with the following experts in preparing Robertson's mitigation case: forensic psychologist Kristi Compton; forensic psychologist and prison consultant Mark Vigen; clinical psychologist and substance abuse expert Ari Kalechstein; psychologist and mitigation expert Kelly Goodness; prison expert S.O. Woods; former Texas Department of Criminal Justice employee Larry Fitzgerald; and future dangerousness expert Jon Sorenson. (Franklin Affidavit, p. 1; WR3: 54-55, 68-69, 81, 112-113).
185. The Court finds the defense team hired Dr. Goodness as a mitigation consultant. (Tatum Affidavit, p. 1; Franklin Affidavit, pp. 2). The Court finds Dr. Goodness worked closely with the defense team, investigated Robertson's background, and suggested salient potentially mitigating factors. (Tatum Affidavit, p. 1). The Court finds ...

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