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Green v. Stephens

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

May 10, 2017

TRAVIS DWIGHT GREEN, Petitioner,
v.
WILLIAM STEPHENS, et al, Respondents.

          MEMORANDUM & ORDER

          KEITH P. ELLISON UNITED STATES DISTRICT JUDGE

         On March 29, 2016, this Court dismissed with prejudice all but one of the claims for relief raised in Petitioner Travis Dwight Green's First Amended Petition for a Writ of Habeas Corpus. The Court found that an evidentiary hearing will be needed to adjudicate the remaining claim that Mr. Green was incompetent to stand trial, (Doc. No. 55.)

         Respondent has filed a motion for reconsideration of this Court's ruling that Mr. Green's incompetency claim requires an evidentiary hearing. (Doc. No. 57.) Mr. Green filed a response and a cross-motion for reconsideration of the Court's rulings on his first, fifth, and sixth claims for relief, arguing that the denial of relief “rests on manifestly erroneous findings of fact or manifestly erroneous legal rulings.” (Doc. No. 64.) Respondent responded to the cross-motion (Doc. No. 68), and Mr. Green replied. (Doc. No. 70.)

         I. BACKGROUND

         The factual background of the case is set out in detail in this Court's March 29, 2016 Memorandum and Order. In brief, Mr. Green was convicted of capital murder and sentenced to death for the rape and murder of Kristin Loesch. Prior to trial, Mr. Green waived his right to a lawyer. After the jury returned a verdict of guilty, Mr. Green withdrew his waiver. On the day that the punishment phase of his trial was set to begin, his stand-by counsel was appointed as full-fledged counsel. The claims at issue in these cross-motions pertain to Mr. Green's contentions that he received ineffective assistance of counsel at the penalty phase of his trial, that his lawyers were ineffective in raising his incompetence to stand trial and his incompetence to invoke his right to self-representation at trial, and that he was actually incompetent to stand trial.

         II. LEGAL STANDARD

         The Federal Rules of Civil Procedure do not specifically provide for motions for reconsideration. See Shepherd v. Int'l Paper Co., 372 F.3d 326, 328 n. 1 (5th Cir. 2004). Courts typically consider motions for reconsideration under Rule 59(e). A motion under Rule 59(e) must “clearly establish either a manifest error of law or fact or must present newly discovered evidence.” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Motions under Rule 59(e) “cannot be used to raise arguments which could, and should, have been made before the judgment issued.” Id. In considering a motion for reconsideration, a court “must strike the proper balance between two competing imperatives: (1) finality, and (2) the need to render just decisions on the basis of all the facts.” Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993).

         III. ANALYSIS

         In his first claim for relief, Mr. Green argued that he received ineffective assistance of counsel at the punishment phase of his trial because counsel failed to investigate and present mitigating evidence. In his fourth claim, on which the Court ruled that an evidentiary hearing is required, Mr. Green argues that he was incompetent to stand trial. In his fifth claim, Mr. Green argues that counsel failed to bring evidence of Mr. Green's incompetence to stand trial to the trial court's attention. In his sixth claim, Mr. Green contends that counsel's failure to contest the knowing nature of his waiver of counsel deprived Mr. Green of his Sixth Amendment right to counsel.

         The Court found that Mr. Green's first, fifth, and sixth claims were unexhausted and procedurally defaulted. The Court also rejected Mr. Green's argument that ineffective assistance by his state habeas counsel provided cause for his procedural defaults. (Doc. No. 55 at 6-14.) Mr. Green seeks reconsideration of these findings, alleging multiple grounds of manifest error and manifest injustice committed by the Court. Upon consideration of these arguments, the Court finds that it previously erred in holding that ineffective assistance of state habeas counsel did not provide cause for Mr. Green's procedural defaults. Accordingly, the Court considers Mr. Green's first, fifth, and sixth claims, and finds that an evidentiary hearing is required in order to adjudicate Mr. Green's first claim for relief, regarding the ineffective assistance of his punishment phase counsel.

         A. First Claim: Ineffective Assistance of Counsel-Punishment Phase

         Federal habeas corpus proceedings are a historic and critical method for preventing individuals from being held in custody in violation of the United States Constitution. Trevino v. Thaler, 133 S.Ct. 1911, 1917 (2013). Yet, in considering petitions for writ of habeas corpus, federal courts are “guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). “These rules include the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Id. In order to preclude federal review, a state court's procedural rule denying a claim must be a “nonfederal ground adequate to support the judgment.” Id. This is known as an “adequate and independent state ground.” Additionally, the rule must be “firmly established and consistently followed.” Id. The doctrine of procedural default is not without exceptions. A federal court may hear an incarcerated person's defaulted claim if he can show “cause” for the default and “prejudice” resulting from the alleged constitutional violation. Id.

         Texas prohibits successive writs challenging the same conviction except in narrow circumstances, none of which Mr. Green claims to meet. Tex. Code Crim. Proc. Ann. Art. 11.071 § 5(a). This prohibition has already been found to be an “adequate and independent state ground, ” and it is firmly established and consistently followed. Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006) (“Texas's abuse of the writ doctrine is a valid state procedural bar foreclosing federal habeas review”). Thus, this Court can only hear Mr. Green's ineffective assistance of counsel claim if he can show “cause” to excuse the default.

         Mr. Green argues that he has shown cause for the default because his state habeas counsel was ineffective and failed to raise his trial-level ineffectiveness claim during state habeas proceedings. “Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 10. In Texas, state habeas review is the first meaningful opportunity to present a claim of ineffective assistance of trial counsel. Trevino v. Thaler, 133 S.Ct. 1911, 1919 (2013). This is because “Texas procedure makes it ‘virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim' on direct review.” Id. (quoting Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000)). Thus, if Mr. Green can show that his state habeas counsel was ineffective in failing to raise an ineffective assistance of trial counsel claim, he can show cause for his procedural default, and this Court can review his ineffective assistance of trial counsel claim-a claim that has yet to be reviewed by any court.

         To prevail on a claim for ineffective assistance of counsel, Mr. Green must first show that counsel “made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Matthews v. Davis, 665 F. App'x 315, 317 (5th Cir. 2016) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In order to prevail on the first prong of the Strickland test, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. Reasonableness is measured against prevailing professional norms, and must be viewed under the totality of the circumstances. Id. Although the American Bar Association Standards for the Appointment and Performance of Counsel in Death Penalty Cases do not establish binding rules, they have long been accepted by the Supreme Court as “guides to determining what is reasonable.” Wiggins v. Smith, 539 U.S. 510, 524 (2003). Review of counsel's performance is deferential. In the context of a capital sentencing proceeding, “the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         The issues in this case concern state habeas counsel's limited investigation into potential claims on appeal-including an ineffective assistance of trial counsel claim-and trial counsel's limited investigation into mitigating evidence. “[T]he crux of [Mr. Green]'s claim is not that his trial counsel made an informed decision not to present certain evidence following a constitutionally sufficient investigation, but that his trial counsel failed to conduct such an investigation in the first place. [Mr. Green] argues that the state trial counsel's failure to investigate would have been obvious to his state habeas counsel as well.Trevino v. Davis, 829 F.3d 328, 348 (5th Cir. 2016). Counsel has a “duty to investigate.” Wiggins, 539 U.S. at 522. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690-691. In light of these standards, this Court's principal concern in deciding whether Mr. Green's counsel were ineffective “is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [Mr. Green's] background was itself reasonable.” Wiggins, 539 U.S. at 522-23.

         Mr. Green was represented by Ken McLean in his state habeas corpus proceeding. Mr. McLean filed a twelve-page Application for Writ of Habeas Corpus, alleging seven claims for relief. (Doc. No. 64 at 9.) Of these seven, three claims had already been raised and rejected on direct appeal. Regarding the four claims that had not been briefed, Mr. McLean promised to develop facts and law and brief them “with all deliberate speed.” (Id.) Mr. McLean never briefed those claims. Instead, six years later, Mr. McLean filed a “Statement of Counsel” informing the court that he “cannot in good faith file Proposed Findings of Fact and Conclusions of Law requesting that the Trial Court recommend to the Texas Court of Criminal ...


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