from the United States District Court for the Eastern
District of Texas
KING, SOUTHWICK, and HAYNES, Circuit Judges.
William King was convicted and sentenced to death by a Texas
jury for the capital murder of James Byrd. After his direct
appeal and state habeas applications failed, King sought
federal habeas relief. The district court denied King's
petition. This court then granted a certificate of
appealability on one claim: that King's trial counsel was
constitutionally ineffective in presenting the case for
King's innocence. We agree with the district court that
this claim fails on its merits, and thus we AFFIRM.
case concerns a high-profile murder in the small town of
Jasper, Texas. Early Sunday morning, June 7, 1998, Jasper
police discovered the dismembered body of James Byrd, a black
man. His torso, legs, and left arm were found on Huff Creek
Road in front of a church. The rest of Byrd was found a mile
and a half up the road. A forensic pathologist would later
testify that Byrd's injuries-cuts and scrapes around his
ankles and abrasions covering most of his body-were
consistent with having his ankles wrapped together with a
chain and being dragged by a vehicle. Byrd's death and
dismemberment were caused, according to the pathologist, when
he was slung into a culvert on the side of the road.
Byrd's remains, police followed a blood trail up a
logging road. The trail ended at a grassy area where a fight
appeared to have occurred. At the grassy area, police found a
variety of items, including a cigarette lighter engraved with
the words "KKK" and "Possum, " three
cigarette butts, a can of "fix-a-flat, " a CD, a
pack of Marlboros, beer bottles, a button from Byrd's
shirt, Byrd's baseball cap, and a wrench inscribed with
the name "Berry."
asked around Jasper to see if anyone saw Byrd on the night he
was killed. A lifelong acquaintance of Byrd said he saw Byrd
at a party on Saturday night, June 6. Byrd had left the party
around 1:30 or 2:00 in the morning, walking alone towards his
home. Another acquaintance drove past Byrd, who was walking
down the road away from the party. At around 2:30 a.m., after
the acquaintance had made it home, he saw Byrd pass, riding
in the back of a primer-grey pickup truck. Three white men
were in the cab of the truck.
Monday, a day after Byrd's body was discovered, police
stopped a primer-gray pickup for a traffic violation. Its
driver was Shawn Berry. In the truck, police found a tool set
which matched the wrench found at the grassy area. Berry was
arrested. Dried blood spatters under the truck and on one of
the tires were discovered and then DNA tested. The DNA
matched Byrd's. A substance consistent with fix-a-flat
was found inside one of the truck's tires. In the
truck's bed, police found a rust stain in a chain
searched Berry's apartment, which he shared with Lawrence
Russell Brewer and John William King. They seized the
roommates' drawings, writings, clothes, and footwear.
Among the items seized were two pairs of "Rugged
Outback" sandals, one size 9.5 and another size 10. The
size-10 sandals were found in King's room, under his
dresser, and next to his photo album. They were stained with
Byrd's blood. An FBI forensic examiner, who compared the
sandals to footprints at the grassy area, found that either
the size-9.5 or -10 sandals could have created some of the
prints. Another FBI agent took foot measurements of various
suspects. King's feet were size 9.5, Shawn Berry's
were 9, Brewer's were 7, and Lewis Berry's, Shawn
Berry's brother who stayed sometimes at the apartment,
three cigarette butts found in the grassy area were DNA
tested. DNA from one butt revealed King as a major
contributor, excluded Shawn Berry and Brewer as contributors,
and did not exclude Byrd as a minor contributor. A minor
contributor, an FBI investigator would explain at trial,
deposits a small amount of DNA-say, by taking a single drag
off a cigarette.
physical evidence came to light linking King to the grassy
area and the killing. The "Possum" lighter was
King's (Possum was King's nickname in prison). Police
also uncovered a 24-foot logging chain which matched the rust
stains in the bed of Shawn Berry's truck. The chain was
found in a covered hole in the woods behind the house of a
mutual friend of the roommates. The mutual friend, Tommy
Faulk, testified that on June 7, the day Byrd's body was
found, King and Brewer showed up unannounced at Faulk's
house. They came in Berry's truck. They parked on the
side of Faulk's house facing the woods, entered through
the back door, stayed for a brief time, and then
left. The chain was found the next day in the
woods behind Faulk's house.
Shawn Berry, and Brewer were charged with capital murder and
separately tried. At King's trial, the State introduced
all the previously mentioned physical evidence, as well as
evidence showing King's violent hatred of black people.
During his first stint in prison (which ended about a year
before Byrd was killed), King was the "exalted
cyclops" of the Confederate Knights of America (CKA), a
white-supremacist gang. King's drawings displayed scenes
of racial lynching. Several witnesses testified that King
would not go to a black person's house and would leave a
party if a black person showed up. King also had several
prison tattoos. Among them were a burning cross, a
Confederate battle flag, "SS" lightning bolts, a
figure in a Ku Klux Klan robe, "KKK, " a swastika,
"Aryan Pride, " and a black man hanging by a noose
from a tree.
State also put on evidence of King's larger ambitions.
The State introduced King's writings, which indicated
that King wished to start a CKA chapter in Jasper. The
writings also indicated that King was planning for something
big on July 4 (a little less than a month after the killing
occurred). In prison, King spoke with other inmates about his
goal of starting a race war, and about initiating new members
to his cause by having them kidnap and murder black people.
He wrote a letter to a friend about his desire to make a name
for himself when he got out of prison. A gang expert, who
reviewed King's writings, said that King's use of
persuasive language showed he sought to recruit others to his
cause. The expert also testified that where Byrd's body
was ultimately left-on a road in front of a church rather
than in the surrounding woods-demonstrated that the crime was
meant to spread terror and gain credibility.
did not testify at his trial. But his version of events was
introduced by the State through a letter he sent from jail to
the Dallas Morning News. In that letter, King professed his
innocence. He explained that his Possum lighter had been
misplaced a week or so before he was arrested. He also
presented his account of the night, pinning the murder on
Shawn Berry and implying that the murder was the result of a
steroid deal gone wrong. He admitted that he, Shawn Berry,
and Brewer were drinking and driving around in Berry's
truck on the night of the killing, but explained that he and
Brewer had told Berry to drop them off at the apartment.
Heading home, Berry spotted Byrd walking on the side of the
road. Berry and Byrd, according to King, knew each other from
county jail, and Byrd had sold Berry steroids in the past.
After a brief exchange, Byrd hopped in the truck behind the
cab. Berry explained that Byrd would ride along because the
two of them "had business to discuss later." The
party took a detour to a grocery store before heading home.
At the store, Berry asked Brewer for some cash "to
replenish his juice, steroid supply." Brewer obliged
him, and the group got back in the truck, this time with
Berry and Byrd up front so that they could chat about the
deal, and Brewer and King in the back. Berry dropped Brewer
and King off at the apartment and then left with Byrd.
State poked two holes in this story. First, the State adduced
testimony from Lewis Berry and Keisha Atkins, King's
friend, that contrary to King's story that he lost the
Possum lighter a week before, he had the lighter on the night
of the killing. Lewis Berry explained that King had lost his
lighter, but that it had been returned to him before the
night of the killing. Second, the State put on evidence that
Brewer's shoe was stained with Byrd's blood,
undermining King's claim that both he and Brewer were
dropped off earlier.
State also put on a note King had tried to smuggle to Brewer
while both men sat in jail. A portion of the note reads as
As for the clothes they took from the apt. I do know that one
pair of shoes they took were Shawn's dress boots with
blood on them, as well as pants with blood on them. As far as
the clothes I had on, I don't think any blood was on my
pants or sweat shirt, but I think my sandals may have had
some dark brown substance on the bottom of them.
. . . Seriously, though, Bro, regardless of the outcome of
this, we have made history and shall die proudly remembered
if need be. . . . Much Aryan love, respect, and honor, my
brother in arms. . . . Possum.
State also introduced a wall scratching from King's cell:
"Shawn Berry is a snitch ass traitor." King was
aware at the time that Shawn Berry had spoken to police about
the circumstances of Byrd's murder.
trial counsel,  C. Haden Cribbs and Brack Jones, gave no
opening statement, cross-examined most State witnesses, and
called three witnesses. The defense attacked the State's
case in a few ways. The State needed to show that the murder
occurred in the course of a kidnapping to prove the
capital-murder charge, see Tex. Penal Code Ann.
§ 19.03(a)(2), so the defense attacked the kidnapping
theory to save King from the death penalty. The defense also
attacked the State's racial-motive theory by challenging
the admission of evidence of King's racial animus and
calling witnesses to testify that his racism was a method of
self-preservation in prison. The defense put on evidence that
King behaved normally following the murder. And the defense
attacked the State's physical evidence, which we will
return to later.
arguments did not convince the jury, as King was convicted of
capital murder and subsequently sentenced to death.
Meanwhile, Berry got a life sentence, see Berry v.
State, No. 09-00-061CR, 2001 WL 726273, at *1 (Tex.
App.-Beaumont June 27, 2001, pet. ref'd), and Brewer was
sentenced to death, see Brewer v. Quarterman, 466
F.3d 344, 345 (5th Cir. 2006).
King was sentenced to death, he received a new lawyer for
post-trial proceedings. That new lawyer moved for a new
trial, raising an ineffective assistance claim. King swore in
an attached affidavit that he told his trial counsel that he
"had an alibi, that [he] had been dropped off in town
and that there was an eyewitness to this, but [his] attorney
failed to investigate this claim and failed to locate the
eyewitness." King's motion was denied. King then
attacked his sentence and conviction on direct appeal to the
Texas Court of Criminal Appeals (TCCA), once again raising
the argument that trial counsel failed him by not
investigating his alibi. The TCCA rejected this claim and
affirmed King's sentence and conviction. See King v.
State, 29 S.W.3d 556, 558 (Tex. Crim. App. 2000).
King's direct appeal was pending, he was appointed state
habeas counsel. This new lawyer filed a state habeas
application, claiming that King was denied effective
assistance for two reasons relevant here. The application
argued that trial counsel was ineffective in failing to
properly investigate and present an alibi defense and in
failing to raise an insanity defense. In response to
King's application, the State submitted an affidavit from
Cribbs stating that he looked into the alibi but found
nothing to support it. Cribbs also stated that his attempts
to find evidence relevant to an insanity plea were rebuffed,
as friends and family did not want to testify on King's
behalf. Finding both claims meritless, the state habeas court
recommended the denial of relief. The TCCA agreed and denied
King's application without written order.
moved on to federal court with a new lawyer and new
evidence.He raised 21 claims for relief, including the one
relevant to this appeal-his claim that he received
ineffective assistance of trial counsel in presenting the
case for his innocence (his "IATC-innocence
claim"). The district court granted summary judgment for
the State on several of King's claims, and stayed the
case to give King time to exhaust his remaining claims with
the state courts. King's return to state court was not
fruitful. The TCCA dismissed his second application as an
abuse of the writ, "without considering the merits of
the claims." Ex parte King, No. WR-49, 391-02,
2012 WL 3996836, at *1 (Tex. Crim. App. Sept. 12, 2012) (per
curiam) (not designated for publication).
came back to federal court and filed an amended petition. The
district court denied King's motions for discovery and an
evidentiary hearing, and eventually his whole petition. With
respect to King's IATC-innocence claim, the court found
it subject to a procedural bar, one that King failed to
overcome under Martinez v. Ryan, 566 U.S. 1 (2012),
and Trevino v. Thaler, 569 U.S. 413 (2013), or by
showing actual innocence. Alternatively, the court found his
granted King a certificate of appealability (COA) on his
IATC-innocence claim, but qualified the grant in one respect.
King v. Davis, 703 Fed.Appx. 320, 331-32 (5th Cir.
2017) (per curiam). We noted that "to the extent that
King is arguing in support of this claim that his trial
counsel was ineffective in searching for an alibi witness, we
decline to issue a COA with respect to that aspect of the
claim." See id. at 332 n.13. King presented
this argument to the state courts, and they reasonably