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Hummel v. Davis

United States District Court, N.D. Texas, Fort Worth Division

January 3, 2018

JOHN HUMMEL, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          REED O'CONNOR, UNITED STATES DISTRICT JUDGE

         Petitioner 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 prejudice.

         I. BACKGROUND

         On June 28, 2011, a jury in Texas state court convicted Petitioner of capital murder. 4 Clerk's Record[1] (“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[2] (“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.

         A. Facts of Petitioner's Crime and Capture

         The 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 thirty minutes.
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 read,
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 his back.
[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 County Jail.
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 a.m.
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.

         B. State's Evidence of Petitioner's Sexual Deviancy and Illegal Drug Use

         At the 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[3] (“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.

         Also 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.

         After 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.

         C. State's Evidence of Petitioner's Substandard Military Service

         At the 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.

         LTC 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. at 17.

         On 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.

         Captain (“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.

         On 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.

         D. State's Evidence Concerning Petitioner's Victims

         At the 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.

         Philip 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.

         Cindy 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 32-33.

         E. State's Evidence of Petitioner's Attempted Murder

         The 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.

         F. Defense Lay Witness Testimony

         At the punishment phase of trial, Petitioner's trial counsel called nine lay witnesses who testified on his behalf.

         1. Haila Scoggins, Petitioner's Special Education Teacher

         Haila 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.

         2. Tommy Jeffrey Stribble, Director of Special Services

         Tommy 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.

         3. Mark Pack, Friend of Petitioner's Family

         Mark 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.

         Mark 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.

         4. Christy Gregory Pack, Friend of Petitioner's Family

         Christy 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.

         5. Linda Jean Petty Pack, Friend of Petitioner's Mother

         Linda 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.

         6. Derrick Joe Parris, Petitioner's Childhood Friend

         Derrick 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.

         When 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 169.

         7. Stephanie Bennett, Petitioner's Former High School Girlfriend

         Stephanie 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.

         8. Letti Bandit Hubertz, Petitioner's Former Girlfriend

         Letti 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.

         Hubertz 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.

         9. Neata Woody, Petitioner's Sister

         Neata 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.

         Neata 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.

         G. Defense Expert Witness Testimony

         At the punishment phase of trial, trial counsel also called two expert witnesses who testified on Petitioner's behalf.

         1. Frank G. Aubuchon, Prison Classification Expert

         Frank 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.

         2. Dr. Antoinette Rose McGarrahan, Forensic Neuropsychologist

         Dr. 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.

         Dr. 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.

         Dr. 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.

         Dr. 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.

         Petitioner 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.

         Finally, 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.

         II. LEGAL STANDARDS

         A. Antiterrorism and Effective Death Penalty Act

         Under 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).

         A state 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).

         “[A]n 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).

         “[T]he ‘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.

         “It 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).

         In 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.

         AEDPA 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).

         Finally, 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.

         B. Ineffective Assistance of Trial Counsel

         If a 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. Washington.”).

         First, “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.

         1. Whether Trial Counsel's Performance was Deficient

         To 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 (2009).

         The 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).

         2. Whether Trial Counsel's Deficient Performance Prejudiced Defendant

         “[T]he 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).

         3. Standard of Review for IATC Under AEDPA

         “Surmounting 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”).

         C. Ineffective Assistance of Appellate Counsel

         If a 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).

         1. Whether Appellate Counsel's Performance was Deficient

         “Counsel 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).

         “Instead, 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 ...

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