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Whitaker v. Davis

United States Court of Appeals, Fifth Circuit

April 4, 2017

THOMAS BARTLETT WHITAKER, Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

         Appeal from the United States District Court for the Southern District of Texas

          Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge.

         Petitioner-Appellant 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 appealability ("COA").

         As the 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 money.
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 later.
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)).

         A Texas 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.

         Whitaker's 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).

         I. Relevant Background

         A. The Plea ...


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