from the United States District Court for the Southern
District of Texas
GRAVES, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge.
Thomas Bartlett Whitaker appeals the district court's
grant of summary judgment on his federal habeas claims.
Whitaker v. Stephens, 2015 WL 1282182 (S.D. Tex.
2015). Based on our review of the briefs, the applicable law,
oral argument before us, and the full record, we AFFIRM the
judgment of the district court denying relief on
Whitaker's due process claim for the reasons stated in
its forty-nine page opinion entered on March 20, 2015. We
deny Whitaker's request for a certificate of
appealability alleging ineffective assistance of counsel
because he fails to show the district court's resolution
of that claim against him is debatable among reasoned
jurists. 28 U.S.C. § 2253(c). And we write separately to
elaborate analysis of the prosecutorial misconduct issue for
which the district court granted Whitaker a certificate of
district court noted, there is no dispute about the facts of
Whitaker's crime, which the Texas Court of Criminal
Appeals ("TCCA") summarized as follows:
The evidence shows that [Mr. Whitaker] led his family to
believe that he was enrolled in college and was about to
graduate. None of this was true. On December 10, 2003, [Mr.
Whitaker] and his father, mother and younger brother went out
to dinner to celebrate [Mr.Whitaker]'s
"graduation." When they arrived home, [Mr.
Whitaker]'s roommate ([Christopher] Brashear) was inside,
and he shot and killed [Mr. Whitaker]'s mother and
brother and wounded [Mr. Whitaker]'s father as they
entered the home. [Mr. Whitaker] knew that Brashear was
waiting inside the home intending to murder [Mr.
Whitaker]'s entire family. He knew that another
individual ([Steven] Champagne) was waiting outside in a
getaway car. Since at least 2000, [Mr. Whitaker] had planned
with several other individuals, at different times, to murder
his family. He made at least one unsuccessful attempt to
murder his family prior to December 10, 2003. His motive was
In June 2004, as the police investigation focused on [Mr.
Whitaker], [Mr. Whitaker] stole $10, 000 from his father and
fled to Mexico where he was apprehended about 15 months
At the punishment phase, [Mr. Whitaker]'s mitigation case
was, among other things, that [Mr. Whitaker] was sorry and
that neither his father nor members of his mother's side
of the family wanted him to be sentenced to death and that
these family members had to bear the ordeal of a trial
because the State would not accept [Mr. Whitaker]'s offer
to plead guilty in exchange for ... two consecutive life
sentences. Emphasizing that the State did not seek the death
penalty against the shooter (Brashear), the defense also
seemed to suggest that the prosecution unfairly sought the
death penalty against [Mr. Whitaker] over issues related to
[a] proffer [of guilt made during plea negotiations].
Whitaker v. Stephens, 2015 WL 1282182, *1 (quoting
Whitaker v. State, 286 S.W.3d 355, 357-58 (Tex.
Crim. App. 2009) (footnotes omitted)).
jury convicted Whitaker of capital murder on March 5, 2007,
and he was sentenced to death. The TCCA affirmed on direct
appeal. Whitaker v. State, 286 S.W.3d 355.
Subsequently, the state trial court and the TCCA denied state
habeas claims. See Ex parte Whitaker, No.
WR-73421-01, 2010 WL 2617806 (Tex Crim. App. June 30, 2010).
Whitaker then filed his original federal habeas petition,
which he amended once, on October 14, 2011. As noted, the
district court granted summary judgment in favor of
Respondent-Appellee Lorie Davis, denying Whitaker a COA on
all claims except for his claim of prosecutorial misconduct.
assertion of prosecutorial misconduct relates to references
at trial and during Whitaker's penalty phase to a plea
discussion proffer. The question is whether the TCCA decision
denying relief on this ground was contrary to, or an
unreasonable application of, clearly established federal law
under 28 U.S.C. § 2254(d)(1).
The Plea ...