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Hebert v. Rogers

United States Court of Appeals, Fifth Circuit

May 10, 2018

AMY HEBERT, Petitioner - Appellant

          Appeal from the United States District Court for the Eastern District of Louisiana

          Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit Judges.


         This habeas case is about a woman who, awaking in the night to an alleged voice telling her to kill her children, grabbed several kitchen knives and repeatedly stabbed her young children, leaving them to bleed to death. Upon being charged with first degree murder, she pled not guilty by reason of insanity. The jury found her guilty but did not sentence her to death. After exhausting all forms of direct or collateral relief in Louisiana, Amy Hebert filed a petition for habeas relief in federal court. The district court denied relief but granted a certificate of appealability. Hebert raises two issues before us: (1) defense counsel provided ineffective assistance by failing to object to the State's allegedly discriminatory peremptory strikes; and (2) a rational jury could not have found that Hebert was sane at the time of the killings. We affirm.

         Facts and Proceedings

         Amy Hebert had two children, a nine-year old girl named Camille and a seven-year old boy named Braxton. In 2005, Hebert and her husband, Chad, separated. In 2006, they divorced after she learned about Chad's affair with a woman from work, Kimberly. Over the next year, Chad's relationship with Kimberly became more serious, and they started to plan a wedding, which was set for 2008. The children also had been developing a closer relationship with Kimberly, a fact that Hebert observed and resented. Chad began building a new home, where both children would have their own room.

         In the late summer of 2007, Hebert stabbed both of her children to death at their home in Matthews, Louisiana. Both children suffered dozens of stabs wounds in the chest, back, and scalp, and ultimately bled to death. After killing both children, Hebert placed their bodies in her bed. She then killed the family dog, made a pot of coffee, wrote two notes, and attempted to take her own life. She slashed her wrists until she exposed her tendons; punctured her lungs, collapsing them; and inflicted cuts to her legs, skull, neck, and eyelids. Then, Hebert lay down in her bed to die beside her children.

         Hebert's former father-in-law discovered this grisly scene the next morning, and he summoned the police. When the authorities arrived and entered the master bedroom, Hebert lifted a large knife and yelled, "Get the f--- out." The police subdued her with a taser. The authorities' attempts to resuscitate the children were unsuccessful. Hebert was taken to the hospital.

         The police discovered the two notes that Hebert had written. The first note was addressed to Chad. It stated:

Monday 8-20-07
You wanted your own life. You got it. I'll be damned if you get the kids, too. Your ambition & greed for money won out over your love for your family. The hell you put us through & I do mean all of us because you don't know what the kids used to go through because of course you weren't here. This is no kind of life for them to live. I sure hope you two lying alduttering [sic] home wrecking whores can have more kids because you can't have these. Actually I hope you can't because then you'll only produce more lying homewrecking adultering [sic] whores like yourselves. Maybe you can buy some with all of your money you will make from this house & the life insurance benefits you'll get from the kids.

         The second note, which was addressed to Hebert's former mother-in-law, stated:

Monday 8-20-07
You run from the very thing you support! Monica pairs up with a married man, becomes a kept woman & your response is maybe she is in love with him-so that makes it okay? How stupid! Your sons have affairs bring these whores home & you welcome them all in. I guess its okay for them to hurt the family as long as it is not you. Well when you started delivering my kids to that whore, Kimberly, that was the last straw! To all my friends thanks for all the help & support you tried to give me. I love you all, Sorry Daddy, Celeste & Renee I love you all too.

         Upon her arrival at the hospital, Hebert received treatment for her physical wounds along with mental treatment from Dr. Alexandra Phillips, a psychiatrist. Initially, Hebert was unresponsive. A few days after the children's deaths, Hebert informed Dr. Phillips that she had been hearing "the words of Satan for a long time." In response to a question from Dr. Phillips, Hebert said that "Satan was in the room and was laughing at her." Hebert then proceeded to scream, and Dr. Phillips concluded that Hebert was "completely psychotic" and prescribed anti-psychotic medicine for her.

         The State of Louisiana charged Hebert with first-degree murder of her children. Hebert pled not guilty by reason of insanity. A trial was held in Lafourche Parish, Louisiana.

         The jury venire comprised 200 people, 112 of whom were women. Both parties received 12 peremptory strikes and two alternate juror peremptory strikes. Before the final jury was selected, 23 women and 10 men were randomly selected to sit on the jury. The court struck four men for cause or hardship, and Hebert used four peremptory strikes on men, which left just two men on the panel. The State used 11 peremptory strikes and one alternate peremptory strike against women. Hebert's counsel did not object. The final jury included 10 women and two men, together with three men and one woman as alternate jurors.

         The jury heard testimony from six experts during the guilt phase of the trial. The defense called four experts: Dr. Alexandra Phillips, Dr. David Self, Dr. Glenn Ahava, and Dr. Phillip Resnick. Dr. Phillips prescribed anti-psychotic medication for Hebert after concluding that she was "completely psychotic" when she claimed that she saw and heard Satan in the hospital room. Dr. Resnick opined that Hebert was psychotic[1] when she killed her children because she was having auditory hallucinations in which she heard the voice of Satan commanding her to kill the children and then commit suicide to keep the family together. The voice, according to Hebert, then instructed her to write the notes left at the scene of the crime. Dr. Ahava, an expert in forensic psychology, testified that Hebert was psychotic and likely could not distinguish right from wrong on the day of the offense based on her history of mental health problems and the excessive number of stabs wounds on the children. Dr. Self, an expert in forensic psychiatry, diagnosed Hebert as suffering from major depression with recurrent and severe psychosis. He further concluded that Hebert must have been psychotic because "only the most psychotic people attack their own eyes."

         In response, the State called two rebuttal experts: Dr. Rafael Salcedo and Dr. George Seiden. Dr. Salcedo, an expert in clinical and forensic psychology, conceded at trial that Hebert suffered from a psychotic disorder but concluded that Hebert was still able to distinguish right from wrong. In reaching this conclusion, Dr. Salcedo relied on Hebert's notes, which he opined revealed the logical mental process of someone seeking revenge through a retribution killing. Dr. Seiden, an expert in general and forensic psychiatry, opined that Hebert was capable of telling right from wrong because there was no evidence that Hebert exhibited psychosis before killing her children. He also relied on the notes as evidence of Hebert's mental state, and he opined that the line "Sorry Daddy, Celeste & Renee" showed Hebert understood the wrongfulness of her actions.

         The jury returned a verdict of guilty. The jury was unable to reach a unanimous verdict on the death penalty, and the court sentenced Hebert to life imprisonment. Hebert filed a direct appeal to the Louisiana First Circuit Court of Appeals, which affirmed her conviction and sentence. Hebert then unsuccessfully pursued habeas relief in state court. In response to a claim that its peremptory strikes discriminated against women, the State provided gender-neutral reasons for using its peremptory strikes. After exhausting all other avenues of relief, Hebert filed a habeas corpus petition in the United States District Court for the Eastern District of Louisiana. The district court denied her petition for relief, but it granted a COA on all issues raised. Hebert timely appealed.

         Standard of Review

         The Antiterrorism and Effective Death Penalty Act ("AEDPA") prohibits a federal court from granting habeas relief unless the decision of the state court "(1) . . . was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) . . . was 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). A state court's decision is contrary to clearly established precedent if the rule it applies "contradicts the governing law set forth in the [Supreme Court's] cases, " or if the state court confronts facts that are materially indistinguishable from a decision of the Supreme Court yet reaches a different result. Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (quoting Wallace v. Quarterman, 516 F.3d 351, 354 (5th Cir. 2008)). A state court commits an unreasonable application of Supreme Court precedent if it identifies the correct legal rule but unreasonably applies that rule to the facts. Id. (citing Williams v. Taylor, 529 U.S. 362, 407 (2007)).

         "Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Harrington v. Richter, 562 U.S. 86, 98 (2011). A state court's decision does not even "require awareness of [the Supreme Court's] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002).

         In an appeal from the denial of habeas relief, we review legal conclusions de novo and factual findings for clear error. Perez v. Cain, 529 F.3d 588, 593 (5th Cir. 2008). We presume the state court's factual findings are correct unless rebutted by the petitioner with clear and convincing evidence. Wooten, 598 F.3d at 218.


         I. Ineffective Assistance of Counsel

         Hebert argues that her counsel provided ineffective assistance because he failed to object to the State's use of its peremptory strikes against qualified female venire members in a manner that she alleges was discriminatory. We apply the legal standard articulated in Strickland v. Washington when evaluating the effectiveness of Hebert's trial counsel. 466 U.S. 668 (1984). Under Strickland, a petitioner must prove both deficient performance and prejudice. 466 U.S. at 697. To prove deficient performance, petitioner must show that her counsel's performance "fell below an objective standard of reasonableness." Id. at 688. For prejudice, petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The issue is whether defense counsel's representation "amounted to ...

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