United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
O'CONNOR, UNITED STATES DISTRICT JUDGE
John Hummel (“Petitioner”) petitions the Court
for a writ of habeas corpus, contending that his conviction
and death sentence are unconstitutional because (1) he was
denied effective assistance of counsel at trial; (2) he was
denied effective assistance of counsel on direct appeal; (3)
the jury instruction is unconstitutional; and (4) the Texas
death penalty statute is unconstitutional. Having reviewed
the record, briefs, exhibits, and oral argument of the
parties, the Court concludes that Petitioner is not entitled
to relief under the standards prescribed by the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”), DENIES the petition,
and DISMISSES this action with
28, 2011, a jury in Texas state court convicted Petitioner of
capital murder. 4 Clerk's Record (“CR”) 747-50.
After receiving jury answers to special issues on future
dangerousness and mitigation, the trial court sentenced
Petitioner to death. Id. The Texas Court of Criminal
Appeals (“CCA”) affirmed the conviction on direct
appeal. Hummel v. State, No. AP-76, 596, 2013 WL
6123283, *1-4 (Tex. Crim. App. 2013), cert. denied
135 S.Ct. 52 (2014). While direct appeal was pending,
Petitioner filed a state habeas petition in Texas state
court. 1 Sate Habeas Clerk's Record
(“SHCR”) 2-468. The trial judge in the habeas
proceeding-who had also presided over the trial-entered
findings of fact and conclusions of law recommending denial
of relief. 4 SHCR 1398-1534. The CCA denied habeas relief.
Ex parte Hummel, No. WR-81, 578-01, 2016 WL 537608
(Tex. Crim. App. 2016), cert. denied 137 S.Ct. 63
(2016). Petitioner timely filed a federal habeas petition in
this Court on February 4, 2017. Petition, ECF No. 12.
Respondent filed its Response on July 6, 2017, Resp., ECF No.
26, and Petitioner filed a Reply on August 2, 2017. Reply,
ECF No. 29. On December 18, 2018, the Court held a hearing on
this matter to allow the parties to present anything in
support of their respective positions. Electronic Minute
Entry, ECF No. 37.
Facts of Petitioner's Crime and Capture
Court adopts the following recitation of facts from the
CCA's opinion on direct appeal:
In Fall 2009, [Petitioner] resided in a house on Little
School Road in Kennedale with his pregnant wife, Joy Hummel;
their five-year-old daughter, Jodi Hummel; and
[Petitioner's] father-in-law, Clyde Bedford. [Petitioner]
worked as an overnight security guard at Walls Hospital in
Cleburne, and he often stopped at an E-Z Mart convenience
store in Joshua on his way to and from work. He met Kristie
Freeze, who worked as a clerk at the E-Z Mart, and he called
and texted her numerous times between October and December
2009. Freeze testified that [Petitioner] told her that he was
married, but he was not in love with his wife. Freeze also
informed [Petitioner] that she was divorcing her husband and
dating someone else. Although Freeze initially told
[Petitioner] that they could only be friends, they sent each
other sexually explicit text messages and eventually had
sexual intercourse on December 10. [Petitioner] informed
Freeze that his wife was pregnant a few days later. Freeze
instructed [Petitioner] not to contact her anymore, but he
continued to call and text her. On December 16, Freeze told
[Petitioner] that her divorce had become final.
Lorie Lewallen, a cook who worked the night shift at the
Huddle House restaurant near the E-Z Mart, testified that
[Petitioner] regularly came into the restaurant on his way to
and from work in December 2009. He usually wore his work
uniform, sat in a booth that faced Lewallen, and talked to
her while she cooked. However, when [Petitioner] was there on
the night of December 16, he sat facing away from Lewallen,
wore “street clothes, ” and “reeked of
cologne.” Lewallen testified that [Petitioner] was
unusually quiet and seemed “like something was on his
mind” that night.
Freeze testified that she permitted [Petitioner] to visit her
and her young daughter at their apartment in Joshua on the
evening of December 17. [Petitioner] arrived after dark
wearing his security-guard uniform and stayed for about
In the early morning hours of December 18, emergency
personnel responded to a fire at [Petitioner's] home. A
passerby noticed that the house was on fire shortly after
12:00 a.m. and called 9-1-1. When police officer Joshua
Worthy arrived at the scene approximately fifteen minutes
later, he kicked open the front door and was unable to see
anything but smoke and flames inside the house. He yelled to
determine if anyone was inside, but no one responded. He also
noticed that the back door to the residence was open.
Firefighters later extinguished the blaze and discovered the
burned bodies of Joy, Jodi, and Bedford, each inside of his
or her bedrooms. Jodi and Bedford were found in their beds.
Joy was located on the floor, with blood-soaked clothing
nearby. Agent Steven Steele of the Bureau of Alcohol,
Tobacco, Firearms and Explosives (“ATF”)
investigated the scene and observed that Joy had injuries to
her hands and upper body that appeared to be caused by some
means other than the fire.
[Petitioner] approached Officer Worthy outside the house at
around 4:30 a.m. He asked Worthy what had happened and
“if everyone had made it out[.]” Worthy replied
that he did not know, and he accompanied [Petitioner] to his
minivan that was parked in a church parking lot across the
street. Worthy and [Petitioner] conversed while [Petitioner]
sat in his minivan and smoked a cigarette. [Petitioner] told
Worthy that he lived in the house with his pregnant wife,
daughter, and father-in-law. Worthy testified that
[Petitioner] placed his “head down in his hands”
a few times during their conversation, but he
“wasn't crying” and was just “basically
sitting there.” When Captain Darrell Hull walked over
to them and asked [Petitioner] what he had been doing that
evening, he replied that he had gone to Walmart to check
prices for Christmas presents. [Petitioner] continued to ask
“if everybody had made it out[, ]” and the
officers again responded that they did not know.
Hull testified that [Petitioner] agreed to follow him to the
Kennedale Police Department in his own minivan, and they
arrived around 5:15 or 5:30 a.m. Hull took [Petitioner] to a
room and asked [Petitioner] to write a statement explaining
what happened. He left [Petitioner] alone in the room to
write his statement and began recording [Petitioner]. Hull
testified that [Petitioner] signed a witness statement that
So I left my home around 9:00 p.m. I drove down to Joshua to
visit a friend but [he] was not home. I drove around for a
while to wait and see if he would come home, but he
didn't. I stopped and got gas, drove around some more.
Then I began to visit Walmarts to price things for Christmas.
I came home a little after 5:00 a.m. and found it burned
down, and firemen and police were still there.
[Petitioner] also provided written consent for police to
search his house and van.
During the interview with Detective Jason Charbonnet,
Sergeant Eric Carlson, and Agent Steele, Steele noticed what
appeared to be blood on [Petitioner's] pants. Steele
testified that [Petitioner] agreed to give him the clothes
[Petitioner] was wearing in exchange for clothes provided by
another officer. When [Petitioner] changed clothes, Steele
observed blood on the bottom of his sock and scratch marks on
[Petitioner] thereafter left the police department and went
to the office of his employer, Champion Security, in
Arlington. He arrived at 8:00 a.m. He attended a meeting,
then picked up his paycheck before leaving the office at
11:00 a.m. Co-workers who spoke to [Petitioner] that morning
were unaware that anything unusual had happened until people
began calling and asking for him later that day.
[Petitioner's] co-workers and his friends from church
were unable to reach him on his cell phone. Later, a
concerned friend went to the police department to file a
missing-person report on [Petitioner].
Steele and other arson investigators ultimately determined
that the fire at [Petitioner's] home was an
“incendiary fire, ” and they ruled out accidental
causes. Steele testified that there were three separate and
distinct fires, or “areas of origin, ” within the
house. Shiping Bao, the Deputy Medical Examiner who performed
Joy's autopsy, testified that Joy was pregnant with a
fourteen to fifteen week old fetus when she died. Joy had a
total of thirty-five stab wounds, including ten to her chest,
two to her abdomen, one to her right thigh, seven to her
neck, and fifteen to her back. She suffered damage to her
internal organs, including her heart, lungs, and liver. She
had incised wounds on her hands that appeared to be defensive
in nature. She also had six lacerations on her skull, which
indicated that she had been struck multiple times with a hard
object. Bao concluded that the cause of Joy's death was
multiple stab wounds and the manner of her death was
homicide. The lack of soot in her airways and the lack of
carbon monoxide in her blood indicated that she was dead
before the fire. Deputy Medical Examiner Gary Sisler
testified that both Bedford and Jodi suffered extensive skull
fractures. Sisler determined that the cause of their deaths
was blunt-force injury, the lack of soot in their airways
indicated that they were dead before the fire, and the manner
of their deaths was homicide.
On December 20, Customs and Border Protection Officer
(“CBP”) Jorge Bernal encountered [Petitioner] at
the United States port of entry between Tijuana, Mexico, and
San Ysidro, California. Bernal testified that [Petitioner]
approached his booth on foot and presented himself for entry
into the United States at 5:48 a.m. When Bernal entered
[Petitioner's] name and date of birth into the computer
system, an “armed and dangerous” notification
“popped up on [the] screen.” [Petitioner] was
handcuffed and taken to the Port Enforcement Team for further
investigation. He was later transported to the San Diego
That night, Kennedale officers Carlson and Charbonnet and
Investigator James Rizy of the Tarrant County District
Attorney's Office arrived at the San Diego County Jail.
They mirandized [Petitioner], conducted a videotaped
interview with him, and obtained consent to search his
minivan in San Ysidro and his hotel room in Oceanside,
California. [Petitioner] confessed his involvement in the
instant offense both orally and in writing. Rizy testified
that [Petitioner's] written statement read:
I left the house at 9:00 p.m. Thursday[, ] December,
12/17/2009, in my uniform. Stopped at a store to get some
cigarettes off of Mansfield Highway. Went to Joshua to visit
Kristie. Sat in her living room to watch TV. I left her house
and went and got gas. I then went home, killed my family, set
the house on fire, drove around and looked around for a place
to dump the weapons.
Then I drove back to Burleson to go to that Walmart. Then
just drove around and stopped at various other [w]almarts to
be seen on camera until it was time for me to go home. I knew
I could not tell y'all I was working because y'all
would check. I then went to the police station in Kennedale
and lied to detectives about knowing what happened.
On 12/18 of ‘09, after being released by detectives, I
realized they had enough evidence to prove I did [those]
horrible . . . things. So I went to my work office to pick up
my check and cashed it. I then proceeded to drive to
California late Saturday night. I arrived in Oceanside,
California, and met a man. We drove down to Tijuana.
Returning to U.S., border patrol checked my ID and found out
I had [a] warrant. I'm glad that I got caught so I could
tell the truth about what happened.
I remember standing there holding the kitchen knife
contemplating on whether or not to kill my wife for about 30
minutes. I stabbed her in the neck. She screamed. The knife
broke. She began to try and fight back. I grabbed the
baseball bat and hit her in the head repeatedly until she
fell on the ground. Then I grabbed some of my other knives
and swords [and] began stabbing her.
I then killed my father-in-law and daughter by striking them
in the head with a baseball bat. Then I set the fires.
Officers collected video that confirmed [Petitioner's]
presence at Huddle House on December 16 and E-Z Mart on
December 17. They also obtained video that confirmed
[Petitioner's] presence at Walmart stores in Burleson,
Grand Prairie, and Arlington on December 18. Store receipts
indicated that [Petitioner] was present at the Burleson
Walmart at 1:46 a.m. and the Grand Prairie Walmart at 4:33
In the early morning hours of December 21, officers searched
a dumpster at an auto parts store in Arlington, Texas, and
found a number of weapons including an aluminum baseball bat,
a large sword and sheath, a small sword and sheath, a dagger,
and a kitchen knife. The small sword, dagger, and kitchen
knife were contained in a white plastic trash bag, and the
handle of the dagger appeared to be broken. DNA testing was
performed on these weapons and on [Petitioner's] clothing
that he gave to officers at the Kennedale Police Department.
[Petitioner's] socks and pants had areas that tested
positive for blood. Joy's DNA profile matched DNA
profiles from [Petitioner's] socks and pants, as well as
the large sword, dagger, and kitchen knife. Bedford's DNA
profile was the same as DNA profiles that were obtained from
[Petitioner's] pants and the white plastic trash bag.
Jodi's DNA profile was the same as a DNA profile obtained
from an area on the aluminum baseball bat that tested
presumptively positive for blood. The DNA profile obtained
from the dagger handle and the large sword sheath was the
same as [Petitioner's] DNA profile. Neither [Petitioner]
nor Joy could be excluded as contributors to a DNA mixture
that was obtained from the small sword.
Hummel, 2013 WL 6123283, at *1-4.
State's Evidence of Petitioner's Sexual Deviancy and
Illegal Drug Use
punishment phase of trial, the State presented evidence of
Petitioner's sexual deviancy and illegal drug use. Prior
to the murder, on December 18, 2009, Petitioner's
employer counseled him regarding infractions he had committed
while on the job, including watching television instead of
working and using doctors' equipment and computers
without authorization. 42 Reporter's Record
(“RR”) 9-11. Specifically, Petitioner accessed 2,
338 pornographic images during his unauthorized computer use.
Id. at 98-99, 105-06, 144; 43 RR 33. Petitioner also
used the website horneymatches.com to solicit women to meet
him for sexual encounters at the hospital while he was
on-duty. 43 RR 30-32. Petitioner admitted to these
infractions. 42 RR 12.
prior to the murder, in the fall of 2009, Petitioner
repeatedly contacted Gretchen Bow, a dancer at the Showtime
club, met her at the club, and each time payed her at least
$100 to perform for him individually. Id. at 112-13,
120. Petitioner frequently asked Bow to visit him at the
hospital while he was working so that they could “smoke
weed and [do] other things.” Id. at 114-15.
the murder, Petitioner fled from Texas, checked into the
Coast Inn in Oceanside, California, and went to the
gentlemen's club next door. 41 RR 17-18. Outside the
hotel, he met Scott Matejka. Id. at 19; 42 RR 27.
Matejka was carrying crack-cocaine, and he and Petitioner
smoked it together. Id. at 29; 42 RR 29. Matejka and
Petitioner then traveled together to Tijuana in search of
marijuana. Id. at 29; 42 RR 31-32. While in Mexico,
Petitioner and Matejka visited another gentlemen's club.
42 RR 33. Petitioner later told investigators that he had
drugs in his pockets when he attempted to cross the border
back into California, and that he had swallowed some of it
and discarded the rest in the bathroom. 41 RR 29-30.
State's Evidence of Petitioner's Substandard Military
punishment phase of trial, the State also presented evidence
of Petitioner's substandard military service. Lieutenant
Colonel (“LTC”) Michael John Doughtery testified
that Petitioner was an intelligence clerk under his command.
45 RR 8, 18. LTC Doughtery described Petitioner as a
“pretty average, marginally effective” Marine.
Id. at 11. LTC Doughtery said that he periodically
counseled Petitioner, warning him about the “inordinate
amount” of off-duty hours he spent going to strip
clubs, drinking, and spending time with unvirtuous people.
Id. at 11-12, 23. LTC Doughtery described Petitioner
as a good-natured and happy-go-lucky type of person who would
become silent and tense the muscles in his face when he was
frustrated or angry. Id. at 13.
Doughtery testified that, according the Petitioner's
records, military officials caught Petitioner smoking during
an operation in violation of Marine Corps policy.
Id. at 14-15. LTC Doughtery explained that the
Marine Corps awards good conduct medals to members who serve
three uninterrupted years without any non-judicial
punishments. Id. at 15. Petitioner served in the
Marine Corps for more than three years, id. at 20,
but never received this medal. Id. at 15. LTC
Doughtery said that, although Petitioner received a Coast
Guard Meritorious Unit Commendation, an Armed Forces
Expeditionary medal, a Humanitarian Service medal, and a Sea
Service Deployment Ribbon, each award was for the unit and
not for Petitioner specifically. Id. at 15-17, 27.
LTC Doughtery also testified that Petitioner's rifle
marksman badge was the lowest qualification for marksmanship
necessary for a Marine to pass basic training. Id.
cross-examination, LTC Doughtery testified that Petitioner
was an intelligence specialist with a Top Secret Sensitive
Compartment and Information security clearance. Id.
at 22, 29. Petitioner was a good mechanic and was able to use
electronics, but if his superiors tasked him with something
he was not interested in, he required maximum guidance or
supervision to ensure completion. Id. at 22-23. LTC
Doughtery also testified that Petitioner received several
infractions for failure to maintain his weight and failure to
pass a physical fitness exam, but did not receive any
judicial or nonjudicial punishments while under his command.
Id. at 26, 30.
(“CPT”) Sergio Ricardo Santos, an intelligence
officer who took over command of Petitioner, testified that
Petitioner was “not [a] very impressive Marine.”
Id. at 34-35. CPT Santos said that Petitioner did
not appear to be within weight standards and did not pass the
physical fitness exam. Id. at 34-35. While under CPT
Santos's command, Petitioner had an unauthorized absence
of under 20 hours. Id. at 35. Petitioner was unhappy
and decided to drive his car toward the Carolinas.
Id. at 46. After his car broke down, one of his
fellow Marines found him and picked him up. Id. CPT
Santos had to revoke Petitioner's security clearance
after his unauthorized leave because his superiors no longer
found him trustworthy. Id. at 36. Petitioner's
superiors also docked his pay by $282 as a nonjudicial
punishment for the infraction. Id. at 44-45. CPT
Santos also testified that Petitioner lied to his superiors
about whether he was cleaning his room, had pressed his
uniform, or had conducted other duties, a pattern of
dishonesty that called his integrity into question.
Id. at 38. CPT Santos said that Petitioner
eventually began disobeying “the simplest of
orders.” Id. at 39.
cross-examination, CPT Santos testified that, at some point,
Petitioner's superiors promoted him to Lance Corporal,
and he remained at that rank until he was honorably
discharged. Id. at 43-44.
State's Evidence Concerning Petitioner's
punishment phase of trial, the State also presented evidence
about Petitioner's victims. Melody Anderson was a friend
of Petitioner's family. 44 RR 6-7. Anderson testified
that Joy and Petitioner had financial problems. Id.
at 8-9. Joy was responsible for the finances in the family,
and after Petitioner hurt his back and contracted Crohn's
disease-causing him to become unemployed-Joy obtained her
certification as a massage therapist so that she could work
to provide for the family. Id. at 9-10. Anderson
observed that Jodi, Petitioner's daughter, loved her
father “a lot” and was affectionate with him.
Id. at 14. Anderson testified that Petitioner and
Joy still struggled financially even after Petitioner began
working as a security guard. Id. at 15.
W. King was a volunteer at the Kennendale Senior Center,
where Joy would drop off her father Eddie every weekday.
Id. at 18-20. King testified that he would drop off
Eddie at home at the end of the day in time for Eddie to pick
up his granddaughter Jodi from the bus. Id. at
21-22. King said that Eddie had “a very high
spirit” and that everybody at the senior center loved
him. Id. at 25.
Gail Lee was the Director of the Kennedale Senior Center.
Id. at 28. Lee testified that when she discovered
that Eddie's house had been burned she informed the
members of the senior center. Id. at 29-31. Several
people cried and everyone was upset. Id. at 31. Lee
described Eddie as a “fantastic guy” who laughed
all the time and talked to everyone he met. Id. at
State's Evidence of Petitioner's Attempted
State also presented evidence that Petitioner previously
attempted to murder his family. Two weeks prior to the
murders, while working as a security guard at the hospital,
Petitioner accessed a doctor's computer without
permission and researched articles on the effects and
symptoms of rat poison on humans. 42 RR 149-50; 43 RR 36-39.
He then attempted to poison his family by putting d-CON rat
poison into the spaghetti sauce for their dinner. 41 RR 11,
14. This attempted murder failed when his family noticed that
the food had turned green, concluded that it had spoiled, and
threw it away. Id. at 14-16.
Defense Lay Witness Testimony
punishment phase of trial, Petitioner's trial counsel
called nine lay witnesses who testified on his behalf.
Haila Scoggins, Petitioner's Special Education
Scoggins was Petitioner's special education teacher at
Jonesville High School in South Carolina. 43 RR 52-53.
Scoggins testified that Petitioner remained in her special
education classes for all four years of his high school
education. Id. at 53-54. Scoggins said that
Petitioner had a learning disability in writing, had severe
dyslexia, wrote phonetically, and was a horrible speller.
Id. at 56. She described Petitioner as quiet,
pleasant, cooperative, and responsible. Id. at 60.
She never had to discipline him and never saw him get in a
fight with other students. Id. at 61. Scoggins said
that Petitioner enjoyed playing Dungeons and Dragons.
Id. at 65. She believed that Petitioner could have
attended college if he had received accommodations for his
learning disability. Id. at 66.
Tommy Jeffrey Stribble, Director of Special Services
Jeffrey Stribble is the Director of Special Services for
Union County Schools in South Carolina. Id. at 75.
Stribble testified that, according to Petitioner's school
records, Petitioner failed the fourth grade and failed the
writing portion of his exit exams three times, only passing
on his fourth attempt after the school changed the scoring
rubric for him. Id. at 86, 88-89. The records
further indicated that Petitioner graduated high school with
a 2.515 grade point average. Id. at 91. Stribble
also testified that Petitioner participated in ROTC, received
a second-place award in an art contest, was absent sixteen
days during his second grade year, and was tardy ten times
during his fourth grade year-the same year he had to repeat.
Id. at 92-94.
Mark Pack, Friend of Petitioner's Family
Pack is a family friend of Petitioner's. Id. at
103. He knew Petitioner since he was nine or ten years old
and frequently ate Sunday dinner with Petitioner's family
for fifteen or sixteen years. Id. at 104-05. Mark
described Petitioner as “an isolated person” who
kept to himself and played single-player video games.
Id. at 109-10. He also described Petitioner as a
slow learner. Id. at 119-20. Mark never saw
Petitioner become violent with anybody. Id. at
113-14. Mark said that when Petitioner became frustrated or
mad, Petitioner would “ball up, ” hold everything
in, and turn “beet red.” Id. at 114.
testified that Petitioner's mother would do anything for
him and his siblings- including pick him up from school and
deliver food to him-but would not do the same for Petitioner
or her daughter. Id. at 110. One time Mark witnessed
Petitioner's dad physically punish Petitioner when he was
twelve or thirteen years old by pushing him off a six- or
seven-foot tractor. Id. at 111-12.
Christy Gregory Pack, Friend of Petitioner's
Gregory Pack is Mark Pack's wife. Id. at 122.
She first met Petitioner at church. Id. at 124.
Christy testified that, whenever she and her husband would go
over to Petitioner's house for Sunday dinners, Petitioner
would be very quiet and stay in his bedroom playing video
games. Id. at 126. Christy said that
Petitioner's mother was “very generous” with
the Pack family but “very strict” with her own
children. Id. at 127.
Linda Jean Petty Pack, Friend of Petitioner's
Jean Petty Pack is Mark Pack's mother and was a good
friend of Petitioner's mother, Jackie, for about ten
years. Id. at 135, 137. Linda testified that Jackie
was strict with her kids- stricter than her husband was-and
told Linda that she spanked her children. Id. at
138. Linda never saw Petitioner talk back or disobey his
parents, and she saw that both Petitioner and his sister were
quick to obey their parents. Id. at 139-40. Linda
testified that Jackie treated the Pack children better than
she treated her own children, withholding money from her
children but treating the Pack children to expensive gifts.
Id. at 140, 142, 145.
Derrick Joe Parris, Petitioner's Childhood
Joe Parris is Linda Pack's nephew and was a good friend
of Petitioner when they were children. Id. at
150-51. Parris and Petitioner played Nintendo games together
as kids. Id. at 155. When Parris visited
Petitioner's house, Parris witnessed Petitioner's
father hit Petitioner twice-one time with a belt and another
time with a broomstick. Id. at 152-54. Parris also
saw Petitioner's father “smack” Parris's
mother on her buttocks, which caused friction between their
families. Id. at 155. Parris said that Petitioner
was nicknamed “Bacon” at school because he
smelled like bacon when he arrived at school. Id. at
156-57. Parris also said that Petitioner was always behind in
school. Id. at 159.
Petitioner came back from the military, he took Parris to
bars and strip clubs, even though Parris was seventeen years
old. Id. at 157-58. Parris said that Petitioner
would get “a little too attached” to the girls
dancing in the strip club and become infatuated with any
dancer that showed him interest. Id. at 158-59.
Parris also testified that he never knew of Petitioner being
violent with anybody. Id. at 160. Parris was
surprised when Petitioner joined the Marines because
Petitioner was overweight and not athletic. Id. at
161. Parris and his friends laughed when Petitioner told them
that he was an intelligence analyst in the Marines because
they “knew that [Petitioner] was stupid.”
Id. at 161. Parris never knew of Petitioner using
drugs until after he left the Marine Corps. Id. at
Stephanie Bennett, Petitioner's Former High School
Bennett was Petitioner's former high school girlfriend.
Id. at 172-73. Bennett testified that they dated a
little less than a year and that both she and Petitioner were
a little shy. Id. at 174-75. Bennett broke up with
Petitioner when he began to speak to her about getting
married after high school. Id. at 176-77. Bennett
never knew of Petitioner being violent towards anybody, and
she testified that Petitioner always treated her
appropriately. Id. at 174, 178.
Letti Bandit Hubertz, Petitioner's Former
Bandit Hubertz, a homeless woman, was Petitioner's
girlfriend in San Diego. Id. at 187-89. Hubertz and
Petitioner started dating a month before Petitioner finished
serving in the Marine Corps. Id. at 189. At the
time, Hubertz had one child and was pregnant with the child
of another man. Id. at 189-90. When Petitioner left
the Marine Corps, he moved with Hubertz to South Carolina to
start a family there. Id. at 190-91. When they
arrived in South Carolina they lived with Petitioner's
parents, and Petitioner began working with his dad at Kohler.
Id. at 191-92. Hubertz testified that Petitioner
always treated her with respect, showed great concern and
care for her while she was pregnant, and was never abusive
towards her in any way. Id. at 192-93. Petitioner
and Hubertz eventually moved into their own two-bedroom
trailer shortly before Hubertz gave birth. Id. at
193-94. Hubertz gave her baby Petitioner's last name.
Id. at 194.
testified that she thought her relationship with Petitioner
was progressing well, until one day, Petitioner's sister
Neata showed up at their trailer crying and gave Hubertz a
letter purportedly from Petitioner, in which he said that he
was not ready to be a father and had left to Texas.
Id. at 195. Neata told Hubertz that she had
purchased a bus ticket for her and her son to return back to
California, and that they had one hour to pack and leave.
Id. at 196. When Hubertz arrived at the bus station
and inspected the tickets, she realized that Neata had
purchased the ticket two weeks earlier. Id. at 196.
Hubertz testified that she never knew of Petitioner
frequenting bars or strip clubs or using drugs. Id.
at 199. Hubertz attempted to contact Petitioner after she got
to California, but Petitioner repeatedly hung up on her.
Id. at 199.
Neata Woody, Petitioner's Sister
Woody is Petitioner's sister. Id. at 208. Neata
testified that she took care of Petitioner instead of their
mother, because their mother told her to, even though their
mother did not work outside the home. Id. at 211.
Neata testified that their parents were never affectionate
with them. Id. at 211. While both parents
disciplined them-mostly with a belt-their mother was the
primary disciplinarian in the family. Id. at 213-14,
218. Their parents frequently left Neata and Petitioner alone
in the house, even before elementary school. Id. at
215. Once when their parents left them alone, Neata was so
frightened that she called the telephone operator.
Id. at 218. Neata also testified that, when she was
seventeen, she saw a woman who was not her mother performing
oral sex on her father. Id. at 252. Petitioner was
in the same room with her, apparently sleeping, when she
witnessed the adultery. Id. at 252. Neata and
Petitioner were allowed to have friends visit them only if
their parents approved. Id. at 219. Neata concluded
that their parents were abusive towards her and Petitioner.
Id. at 221.
testified that Petitioner's peers called him
“Bacon” at school because the smoke from the
wood-burning stove at home caused him to smell like bacon.
Id. at 223. Neata also testified that she spoke with
Petitioner about his relationship with Hubertz, and that he
agreed to allow her to send Hubertz away. Id. at
227. Neata also testified that Petitioner joined the Marine
Corps when he was 22 years old. Id. at 225.
Petitioner was in the Marine Corps for four years.
Id. at 231. After Petitioner left the Marine Corps,
Petitioner's doctor diagnosed him with colitis and
conducted surgery on him to remove some of his intestines.
Id. at 230. Petitioner wore a colostomy bag for a
period after the surgery. Id. at 230. Neata also
testified that Petitioner and his wife had financial
problems. Id. at 231. Neata said that, although she
saw Petitioner get angry, she never saw him become violent
toward anybody. Id. at 232. Neata said that
Petitioner was nice to Joy and “wonderful” with
his daughter Jodi. Id. at 253.
Defense Expert Witness Testimony
punishment phase of trial, trial counsel also called two
expert witnesses who testified on Petitioner's behalf.
Frank G. Aubuchon, Prison Classification Expert
G. Aubuchon is a prison consultant with previous experience
working in prisons. 44 RR 34-38. Aubuchon testified that,
based on his review of Petitioner's military, medical,
criminal, and jail classification records, he believed that a
prison would classify Petitioner as a general population
Level 3 inmate, which is the minimum level a
life-sentenced-without-parole inmate could receive.
Id. at 64, 67, 69-70. Aubuchon relied on the
following observations in arriving at his conclusion: other
than his crime, Petitioner was a “very unremarkable
person”; he lacked a criminal record; he received an
honorable discharge from the Marine Corps; and he had no
disciplinary issues while in jail. Id. at 70, 113.
Aubuchon believed that Petitioner would make a good
adjustment to life in prison because he had behaved well
during the year he spent incarcerated in Tarrant County Jail,
and because he behaved well in the military, a similarly
structured environment. Id. at 73. Aubuchon did not
know that Petitioner went absent without leave while serving
in the Marine Corps. Id. at 74.
Dr. Antoinette Rose McGarrahan, Forensic
Antoinette Rose McGarrahan is a forensic psychologist with a
specialty in neuropsychology. Id. at 118. Dr.
McGarrahan conducted a complete neuropsychological evaluation
and personality and emotional evaluation of Petitioner.
Id. at 121. The combined evaluations took eleven
hours. Id. Dr. McGarrahan used twenty to thirty
different tests and instruments in her evaluation.
Id. at 122. Dr. McGarrahan also reviewed numerous
records, including Petitioner's military, medical,
school, and Tarrant County Jail records, as well as his
video-recorded statements, and various cards, letters, and
correspondence that Neata sent to Petitioner. Id. at
122-23. Dr. McGarrahan also interviewed Neata for two and a
half hours by phone and spoke with Jackie, Petitioner's
mother, for one hour. Id. at 123. Dr. McGarrahan
reviewed Jackie's medical records and subsequently
reviewed psychological test data obtained by the State's
expert, Dr. Randy Price. Id. at 123-24. Dr.
McGarrahan also performed a clinical interview of Petitioner,
asking about his social history and the details of the
offense. Id. at 124.
McGarrahan found that Petitioner suffered from a learning
disability impairing his ability to express himself in
writing, but that his IQ was in the average to high-average
range. Id. at 125. Dr. McGarrahan said that
Petitioner did not suffer from any severe mental disorders,
although Petitioner did show some signs of mild depression
and anxiety. Id. at 126. Dr. McGarrahan concluded
that Petitioner may have suffered from a combination of
personality disorders, including narcissistic, antisocial,
schizoid, and borderline disorders. Id. at 126-27.
McGarrahan testified that, while genetic and environmental
factors affected Petitioner's personality, environmental
factors played a major role in his personality development.
Id. at 133, 135. Dr. McGarrahan concluded that,
based on her discussions with Petitioner's mother and
sister, and a review of the records, Petitioner's mother
was inconsistent, not nurturing, unaffectionate, and
neglectful. Id. at 133, 135. Dr. McGarrahan
testified that an individual's ability to learn
relational reciprocity and to form human attachments is a
direct result of the involvement of the primary caregiver
from an early age. Id. at 134. Dr. McGarrahan
believed that Petitioner's mother, in neglecting her
duties as Petitioner's primary caregiver, was a major
contributing factor to his personality disorders.
Id. at 135.
McGarrahan testified that, while Petitioner felt emotions, he
was unable to express them because of his mother's
control over him. Id. at 136-37. Dr. McGarrahan
believed that thirty years of repressed emotions caused
Petitioner to experience a “flood of emotional
rage” that caused him to commit the murders.
Id. at 138. Dr. McGarrahan explained that, even
though Petitioner had the ability to know that his decision
to kill was wrong, the flood of emotions caused him to act on
pure emotion without thinking. Id. at 138-39, 156.
Dr. McGarrahan believed that Petitioner acted unemotional in
his interviews because, once the flood of emotions ended, he
returned to a state of “expressionless difficulty [at]
showing what he's feeling and what he's
experiencing.” Id. at 139-40. When Dr.
McGarrahan asked Petitioner why he committed the crime, he
explained to her that he had been ruminating on all the
wrongs done to him over his lifetime and that this rumination
built up into an explosive rage. Id. at 141.
Petitioner told Dr. McGarrahan that his wife and
father-in-law were consistently critical of his state of
unemployment, his inability to work around the house, and his
medical problems. Id. at 142.
also spoke with Dr. McGarrahan about how he rapidly became
infatuated with Kristie Freeze, despite knowing that she did
not reciprocate his feelings. Id. at 142-43. Dr.
McGarrahan explained that Petitioner had previously behaved
this way whenever a woman would appear to show any interest
in him. Id. at 143-44. Although Petitioner sought
out relationships, he was unable to form and maintain close
relationships with anyone, whether romantic or familial.
Id. at 144. Dr. McGarrahan believed that
Petitioner's personality disorders, rooted in his
childhood experiences, played a significant role in his
commission of the offense. Id. at 145. Dr.
McGarrahan did testify, however, that Petitioner planned the
murders. Id. at 152. She said that Petitioner is the
same person today that he was on December 17, 2009, with the
same personality disorders. Id. at 155.
Dr. McGarrahan testified that Petitioner has done fairly well
in structured environments and has received several
commendations for his service in the military. Id.
at 159-60. Moreover, when Petitioner once left his military
post without permission, he did not receive a judicial
punishment; instead, his superiors settled the case
administratively by docking his pay. Id. at 160.
Petitioner also admitted to Dr. McGarrahan that he was wrong
in committing the murders. Id. at 162.
Antiterrorism and Effective Death Penalty Act
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254, a federal court
may not issue a writ of habeas corpus for a defendant
convicted in state court,
unless it is shown that the earlier state court's
decision “was contrary to” federal law then
clearly established in the holdings of [the Supreme] Court,
or that it “involved an unreasonable application
of” such law, or that it “was based on an
unreasonable determination of the facts” in light of
the record before the state court.
Harrington v. Richter, 562 U.S. 86, 100 (2011)
(quoting 28 U.S.C. § 2254(d)). “This is a
‘difficult to meet' and ‘highly deferential
standard for evaluating state-court rulings, which demands
that state-court decisions be given the benefit of the
doubt.'” Cullen v. Pinholster, 563 U.S.
170, 181 (2011) (citations omitted).
court decision is “contrary” to clearly
established federal law if the state court “applies a
rule that contradicts the governing law set forth in [the
Supreme Court's] cases, ” or “confronts a set
of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrives at a
result different from [that] precedent.” Williams
v. Taylor, 529 U.S. 362, 405-06 (2000).
unreasonable application of federal law is different
from an incorrect application of federal law.”
Williams, 529 U.S. at 410 (emphasis in original). To
constitute an unreasonable application, the state court
decision must “appl[y] clearly established federal law
erroneously or incorrectly” in a way that is also
“objectively unreasonable.” Id. at
409-10. A state court decision is objectively unreasonable if
no “fairminded jurist” could agree with its
reasoning. Harrington, 562 U.S. at 102.
“[E]valuating whether a rule application was
unreasonable requires considering the rule's specificity.
The more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations.”
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
‘unreasonable application' test under Section
2254(d) should be on the ultimate legal conclusion that the
state court reached and not on whether the state court
considered and discussed every angle of the evidence.”
Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002)
(en banc). “Even though a thorough and well-reasoned
state court opinion may be more likely to be correct and to
withstand judicial review, it simply does not follow that
‘the criterion of a reasonable determination is whether
it is well reasoned.'” Id.
bears repeating that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Harrington, 562 U.S. at 102.
“If this standard is difficult to meet, that is because
it was meant to be . . . Section 2254(d) reflects the view
that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems, ' not
a substitute for ordinary error correction through
appeal.” Id. at 102-03 (citations omitted).
determining whether a state court decision was contrary to,
or involved an unreasonable application of, clearly
established Federal law, the reviewing court is
“limited to the record that was before the state court
that adjudicated the claim on the merits.”
Cullen, 563 U.S. at 181.
also grants federal habeas relief for state court decisions
that were “based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2).
“[A] determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1). “The presumption of correctness not only
applies to explicit findings of fact, but it also applies to
those unarticulated findings which are necessary to the state
court's conclusions of mixed law and fact.”
Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir.
2001). “The presumption is especially strong when the
state habeas court and the trial court are one in the
same.” Clark v. Johnson, 202 F.3d 760, 764
(5th Cir. 2000). “The standard is demanding but not
insatiable . . . .” Miller-El v. Dretke, 545
U.S. 231, 240 (2005).
the Fifth Circuit has held that “a full and fair
hearing [in state court] is not a precondition to . . .
applying § 2254(d)'s standards of review.”
Valdez, 274 F.3d at 951. AEDPA amended the previous
version of 28 U.S.C. § 2254, and “[t]hese
amendments jettisoned all references to a ‘full and
fair hearing' . . . leav[ing] no room for judicial
imposition of a full and fair hearing prerequisite.”
Id. at 949-50.
Ineffective Assistance of Trial Counsel
convicted defendant claims in a habeas petition that trial
counsel's assistance was so defective as to require
reversal of a conviction or death sentence, this Court
reviews their ineffective-assistance-of-trial-counsel (IATC)
claim under the two-part test in Strickland v.
Washington, 466 U.S. 668 (1984). See Cullen,
563 U.S. at 189 (“There is no dispute that the clearly
established federal law here is Strickland v.
“the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687.
Second, “the defendant 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.” Id. “Unless a defendant makes
both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process
that renders the result unreliable.” Id. If
one prong of Strickland is dispositive, the court
need not address the other. See Id. at 697.
Whether Trial Counsel's Performance was
prove deficient performance, the defendant has the burden of
showing “that counsel's representation fell below
an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. “Judicial
scrutiny of counsel's performance must be highly
deferential.” Id. at 689. “[A] court
must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial
strategy.'” Id. “A fair assessment
of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time.” Id. Moreover, “‘American
Bar Association standards and the like' are ‘only
guides' to what reasonableness means, not its
definition.” Bobby v. Van Hook, 558 U.S. 4, 8
Court “must be particularly wary of ‘argument[s]
[that] essentially come[ ] down to a matter of degrees. Did
counsel investigate enough? Did counsel present enough
mitigating evidence? Those questions are even less
susceptible to judicial second-guessing.” Dowthitt
v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000)
(alterations in original); see also Strickland, 466
U.S. at 680 (“[T]he amount of pretrial investigation
that is reasonable defies precise measurement.”
(quotation marks omitted)). “Counsel's decision not
to present cumulative testimony does not constitute
ineffective assistance.” Coble v. Quarterman,
496 F.3d 430, 436 (5th Cir. 2007); see also Waters v.
Thomas, 46 F.3d 1506, 1513-14, 1518 (11th Cir. 1995)
(“It is common practice for petitioners attacking their
death sentences to submit affidavits from witnesses who say
they could have supplied additional mitigating circumstance
evidence, had they been called, or, if they were called, had
they been asked the right questions. . . . [But t]he test for
ineffectiveness is not whether counsel could have done more;
perfection is not required.”). Moreover, IATC
“does not consist of the hiring of an expert who,
though qualified, was not qualified enough. The selection of
an expert witness is a paradigmatic example of the type of
‘strategic choic[e]' that, when made ‘after
thorough investigation of [the] law and facts, ' is
‘virtually unchallengeable.'” Hinton v.
Alabama, 134 S.Ct. 1081, 1089 (2014) (quoting
Strickland, 466 U.S. at 690).
Whether Trial Counsel's Deficient Performance
defendant [must] affirmatively prove prejudice.”
Strickland, 466 U.S. at 693. To establish prejudice,
it is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.”
Id. The defendant must demonstrate “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694; see also
Harrington, 562 U.S. at 112 (“The likelihood of a
different result must be substantial, not just
conceivable.”). “When a defendant challenges a
death sentence . . . the question is whether there is a
reasonable probability that, absent the errors, the
sentencer- including an appellate court, to the extent it
independently reweighs the evidence-would have concluded that
the balance of aggravating and mitigating circumstances did
not warrant death.” Strickland, 466 U.S. at
695. “[T]he court must decide whether the additional
mitigating evidence was so compelling that there was a
reasonable probability that at least one juror could have
determined that because of the defendant's reduced moral
culpability, death was not an appropriate sentence.”
Kunkle v. Dretke, 352 F.3d 980, 991 (5th Cir. 2003)
(quotation marks omitted).
Standard of Review for IATC Under AEDPA
Strickland's high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371
(2010). But when IATC claims are reviewed on habeas under the
already deferential standard of review in § 2254(d),
“a state court has even more latitude to reasonably
determine that a defendant has not satisfied
[Strickland's already highly deferential]
standard.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009). “The standards created by
Strickland and § 2254(d) are both ‘highly
deferential, ' and when the two apply in tandem, review
is ‘doubly' so.” Harrington, 562
U.S. at 105 (citations omitted); see also Knowles,
556 U.S. 111, 123 (noting that IATC claims on habeas are
subject to “doubly deferential judicial review”).
Ineffective Assistance of Appellate Counsel
convicted defendant claims in a habeas petition that
appellate counsel's assistance on direct appeal was so
defective as to require reversal of a conviction or death
sentence, this Court reviews their
ineffective-assistance-of-appellate-counsel (IAAC) claim
under the two-part test in Strickland. See Busby
v. Dretke, 359 F.3d 708, 714 (5th Cir. 2004); see
also Evitts v. Lucey, 469 U.S. 387, 395-96 (1985)
(holding that Strickland applies to appellate
counsel on direct appeal).
Whether Appellate Counsel's Performance was
is not deficient for not raising every non-frivolous issue on
appeal.” United States v. Phillips, 210 F.3d
345, 348 (5th Cir. 2000). Counsel “rather may select
from among them in order to maximize the likelihood of
success on appeal.” Smith v. Robbins, 528 U.S.
259, 288 (2000). “It is not only reasonable but
effective for counsel on appeal to winnow out weaker
arguments and focus on a few key issues.” Mayo v.
Lynaugh, 882 F.2d 134, 139 (5th Cir. 1989). “A
brief that raises every colorable issue runs the risk of
burying good arguments . . . .” Jones v.
Barnes, 463 U.S. 745, 753 (1983).
to be deficient, the decision not to raise an issue must fall
‘below an objective standard of
reasonableness.'” Phillips, 210 F.3d at
348 (quoting Strickland, 466 U.S. at 688).
“This reasonableness standard requires counsel
‘to research relevant facts and law, or make an
informed decision that certain avenues will not prove
fruitful. Solid, meritorious arguments based on directly
controlling precedent should be discovered and brought to the
court's attention.'” Id. (quoting
United States v. Williamson, 183 F.3d 458, 462-63
(5th Cir. 1999)).
Such directly controlling precedent is rare. Often, factual
differences will make authority easily distinguishable,
whether persuasively or not. In such cases, it is not
necessarily providing ineffective assistance of counsel to
fail to construct an argument that may or may not succeed.
But failure to raise a discrete, purely legal issue, where