United States District Court, S.D. Texas, Houston Division
MEMORANDUM & ORDER
P. ELLISON UNITED STATES DISTRICT JUDGE
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.)
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.
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.
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).
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.
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.
First Claim: Ineffective Assistance of Counsel-Punishment
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.
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.
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.
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.
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.
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 ...