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Green v. Davis

United States District Court, N.D. Texas, Dallas Division

September 27, 2019

GARY GREEN, TDCJ No. 999561, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent,

          MEMORANDUM OPINION AND ORDER

          BARBARA M.G. LYNN, CHIEF JUDGE

         Petitioner Gary Green ("Petitioner") filed this federal habeas corpus action pursuant to 28 U.S.C. § 2254, challenging his 2010 Dallas County conviction for capital murder and sentence of death. For the reasons discussed below, Petitioner is not entitled to federal habeas corpus relief or a Certificate of Appealability.

         I. Background[1]

         On September 21, 2009, after Petitioner wrote a letter to his wife Lovetta Armstead, expressing his anger with her and explaining his plan to murder her and her three children, and then to take his own life. He then fatally stabbed Lovetta, and asphyxiated and drowned her six-year-old daughter, Jazzmen Montgomery. Petitioner cleaned himself, changed clothes, and went to church to pick up Lovetta's sons, Petitioner drove the two boys home, where he stabbed nine- year old Jarrett Armstead in the stomach and attempted to stab twelve-year-old Jerome Armstead. The boys convinced Petitioner not to kill them. After Petitioner left the scene in their mother's vehicle, the boys went next door to alert a neighbor. Jarrett received emergency medical treatment and survived his wound. Jarrett and Jerome testified at trial that Petitioner confessed to them that he killed their mother and sister. Petitioner turned himself in to authorities and gave a videotaped confession, which was admitted into evidence at trial as State Exhibit 91. He confessed he stabbed Lovetta about thirty times and drowned Jazzmen.

         On October 30, 2009, a Dallas County grand jury indicted Petitioner in cause no. F09-59380-S, on a single count of capital murder - that he intentionally and knowingly caused the death of Lovetta Armstead by fatally stabbing her with a knife during the same criminal transaction in which he intentionally and knowingly caused the death of Jazzmen Montgomery by asphyxia and drowning.[2]

         A. Guilt - Innocence Phase

         The guilt-innocence phase of Petitioner's capital murder trial commenced on October 26, 2010.

         1, Jerome and Jarrett Armstead's Testimony

         In addition to viewing Petitioner's videotaped confession, the jury heard the testimony of Jarrett and Jerome Armstead. Jerome testified that on the evening of the murders, Petitioner entered the church dressed in a black dress shirt, black slacks, and black dress shoes, and waited for them. Petitioner told them their mother was out clubbing with her friend, and that their sister was staying with their grandmother. Jerome noticed nothing unusual about Petitioner's behavior. When they arrived at home, Petitioner informed them that he had spoken with their mother, and she did not want him to take them to their grandmother's home. Petitioner told Jerome to take a shower or a bath. Jerome went to take a bath, and Jarrett went to their bedroom. While in the bath tub, Jerome heard Jarrett screaming, "help, he's trying to kill me." Jerome got out of the tub and grabbed his clothes. Petitioner entered the bathroom, holding the screaming Jarrett by the collar. Jerome jumped back into the tub. Petitioner threw Jarrett on to the toilet and said, "give me some reasons why I shouldn't kill y'all." Jarrett said, "we're too young to die." Petitioner then stabbed Jarrett and told him to shut up. Petitioner tried to stab Jerome but missed. Petitioner then said, "come on, I got to show y'all something." Holding a knife to Jarrett's neck, Petitioner said he would not kill them and led them to their mother's room, where he unlocked their mother's bedroom door and opened it. When they saw their mother lying on the floor, not breathing, both boys fell to their knees crying. The boys glanced in the bathroom and saw their sister's body lying against the tub with her hands duct taped behind her back and blood all over the bathroom. Their sister did not appear to be breathing. Petitioner told Jarrett to get him some clothes and instructed Jerome to get some pills on the dresser. Petitioner threw their mother's cell phone on the bed and told them to call the police once he left. When Jerome attempted to dial the phone, Petitioner ordered him to wait until he left. Petitioner said he had killed their mother and sister, and that he loved their mother to death. Petitioner made both boys give him a hug before he left. Just before he drove away, Petitioner said he was going to kill himself. The boys ran next door to alert the neighbor. Jarrett Armstead's trial testimony largely mirrored that of his older brother. 46 Tr. 98-148.

         2. The Medical Examiners' Testimony

         The jury heard testimony from the medical examiners who performed the autopsies on Lovetta and Jazzmen. Dr. Jill Urban, the forensic pathologist who performed the autopsy on Lovetta, testified that Lovetta suffered thirty stab wounds. Her body also showed signs of asphyxia, including a bruise to the side of the neck that could have been made by fingers, petechiae to the surface of the eye, and hemorrhage around the cartilage in the larynx. The manner of Lovetta's death was homicide, and the cause of her death was the thirty stab wounds, none of which would have been fatal individually. Dr. Urban opined that the stab wounds would have been sufficient to cause death without Lovetta's other injuries. 47 Tr. 97-109.

         Dr. Meredith Lann, who performed the autopsy on Jazzmen, testified Jazzmen's ankles and wrists were bound with duct tape, and there was adhesive residue on Jazzmen's left cheek. There was a hemorrhage to the top of Jazzmen's skull. Petechiae were present in the eyelids, overlying the thymus (lower neck), the lining of the lungs, and the epiglottis, A small tear and small scrapes were present on the lower left lip. There was a small hemorrhage of the deep muscle on the right side of the neck as well as a hemorrhage in the back left shoulder muscles. Jazzmen's lungs showed signs of pulmonary edema, which the medical examiner testified was likely from a lack of oxygen. A pink frothy substance was present in the nose and mouth, suggesting pulmonary edema and a reaction to hypoxia. A telephone cord was also wrapped around the ankles and tied in a knot. Dr. Lann opined that Jazzmen was asphyxiated to death, her death was not instantaneous, and her injuries were consistent with Petitioner's confession. 47 Tr. 110-22.

         3. Other Prosecution Witnesses' Testimony

         Lovetta's mother, Margarita Brooks, identified both her daughter's handwriting and Petitioner's handwriting on the notes they wrote and apparently exchanged on the day of the murders. 46 Tr. 36-59. The neighbor to whose home Jarrett and Jerome went after Petitioner left the scene, Latasha Bradfield, testified she went next door and observed Lovetta's and Jazzmen's bloodied bodies. 46 Tr. 59-99. Dr. Joseph Martinez, an emergency room physician who treated Petitioner for his injuries after he turned himself in, testified that Petitioner confessed that he had stabbed his wife with a kitchen knife. 46 Tr. 89-98. The police detective who took Petitioner's videotaped confession testified he gave Petitioner Miranda warnings before taking the statement, and he identified the video recording of Petitioner's confession that was admitted into evidence and played in open court for the jury. 47 Tr. 25-77. Several other law enforcement officers who either processed the crime scene or accompanied Petitioner to the hospital to obtain medical treatment for the superficial injuries he sustained in his confrontation with Lovetta testified as to what they observed at the crime scene or following Petitioner's arrest. The defense presented no witnesses.

         4, The Verdict

         On October 28, 2010, the jury returned its verdict, finding Petitioner guilty of capital murder as charged in the indictment.[3] 48 Tr. 33-34.

         B. Punishment Phase

         The punishment phase of Petitioner's capital murder trial commenced on November 1, 2010.

         1. The Prosecution's Evidence

         The prosecution introduced evidence showing Petitioner had pleaded guilty in Dallas County in 1989 to a charge of aggravated assault and in 1990 to a charge of aggravated robbery. 49 Tr. 6-8 (State Exhibits 140-41). A Dallas police officer who arrested Petitioner in 1989 for possession with intent to distribute crack cocaine testified about his pursuit and arrest of Petitioner. 49 Tr. 24-30. The victim of Petitioner's 1989 aggravated assault testified regarding the circumstances of the assault and her injuries, which required her to be hospitalized for a week. 49 Tr. 30-54. A Texas Department of Criminal Justice ("TDCJ") Parole Division case worker testified he interviewed Petitioner in prison in 1992; during that interview, Petitioner stated he sold crack cocaine for about six months to see if he could get away with it, and committed an armed robbery of the grocery store where he had been employed as an act of revenge for his termination. 49 Tr. 76-84. Belinda Lacy, a former correctional officer at a TDCJ facility where Petitioner was incarcerated, testified Petitioner married her and then abandoned her shortly after she helped convince state parole officials to release him. 49 Tr. 103-16. Shulonda Ransom, the mother of two of Petitioner's children, testified to Petitioner's propensity to anger easily and to choke her to the point of unconsciousness. 49 Tr. 121-36. A former correctional officer testified about an incident during Petitioner's incarceration in which Petitioner threw a food tray and struck him. 50 Tr. 6-24. Petitioner's former supervisor at the grocery store that Petitioner robbed testified regarding the extreme violence, including firing shots and kicking open an office door, that Petitioner and his accomplice employed during the robbery. 49 Tr. 85-102. A TDCJ warden testified as an expert regarding the TDCJ's prisoner classification system and the opportunities for violence among the TDCJ inmate population. 50 Tr. 25-60, 86-92. Jarrett and Jerome Armstead, Lovetta's mother, and Jazzmen Montgomery's biological father all furnished victim impact testimony. 50 Tr. 114-24.

         2. The Defense's Evidence

         The defense presented an extensive case in mitigation.

         a. Petitioner's Aunt's Testimony

         Petitioner's aunt, Shirley Coleman, testified extensively regarding the history of mental illness in Petitioner's family and his background. Petitioner's maternal grandmother, Bertha Curry, had lifelong mental health problems for which she took medication, and she engaged in frequent episodes of bizarre behavior, including faking pregnancies and miscarriages. Petitioner's mother Mary was the oldest child in her family, not an attentive parent, and had been hospitalized twice for nervous breakdowns. Petitioner's daughter has mental health issues, specifically Attention Deficit Disorder, for which she receives medical treatment. A substantial number of Petitioner's relatives had mental illnesses, including an uncle who murdered his wife and then took his own life. Ms. Coleman described Petitioner's father Thomas Carter ("Carter"), who spent time in military prison, as physically and emotionally abusive toward both Petitioner and Petitioner's mother. Carter choked Petitioner's mother in front of Petitioner. Multiple members of Petitioner's extended family had been victims of homicide. She believed that Petitioner acted like a normal kid in high school, but after returning home from his first prison stint, he behaved differently. He brought a wife with him, had no friends, and would often burst out laughing for no apparent reason. Petitioner once told her he was involved in a robbery other than the one at the grocery store where he had once worked. 51 Tr. 6-34, 44-51.

         b. Petitioner's Former Romantic Partner's Testimony

         Lenelle Williams testified about her relationship with Petitioner. She met Petitioner around December 2003, and they eventually began a romantic relationship. They shared an apartment for two years while Petitioner was working. During that time, Petitioner helped to look after her grandchildren. Petitioner was not a drinker, preferred to be alone, and often watched television and listened to the radio. Petitioner often spoke when there was no one else in the room with him, spoke about vampires as if they actually existed, and claimed to hear rats she could not hear. Petitioner had a car and was good to her throughout their period of cohabitation. She moved to Arlington to help her son with babysitting, and continued to talk with Petitioner on the phone, but they had little face-to-face contact after that. They continued to speak on the phone even after Petitioner became involved with Lovetta. Petitioner worked for a florist and at Walmart. Petitioner stayed with her on occasion when he was having problems with Lovetta. Petitioner called Lenelle shortly before the murders and told her he was feeling stressed. When she heard of Lovetta's murder, she was shocked, thinking "that is not Gary." 51 Tr. 52-71, 81-91.

         c. Petitioner's Mother's Testimony

         Petitioner's mother, Mary Sampson, described Petitioner's childhood in the South Oak Cliff area of Dallas as chaotic and marked by multiple bizarre incidents. 51 Tr. 92-159. Petitioner stayed to himself while growing up. His grades in school were not good but she was satisfied with them. Petitioner was age seven when she married Leon Sampson ("Sampson"), to whom she has been married for thirty-one years, Sampson took Petitioner to job sites, but Petitioner was unwilling to help do the remodeling work Sampson did. Petitioner was not good at housework or yardwork. In middle school, Petitioner once went on to the roof of a school building and threatened to jump off, but his aunt talked him down, From that point on, Petitioner constantly said that he was stressed and that no one understood him. Petitioner would not sit with his back toward a door and kept a baseball bat in his room. He felt as if people were talking about him. Petitioner once claimed that someone had broken into the house while he was in the shower. Petitioner dropped out of school in the eleventh grade. His daughter, who was seven at the time of trial, was constantly in trouble at school, and played by herself.

         Mrs. Sampson testified she was shocked when Petitioner was put on probation for dealing drugs and then assaulting his girlfriend. He became even more withdrawn after he left the penitentiary the first time. He was later arrested for robbing a grocery store. Petitioner married Belinda Lacy when he got out of prison, but they remained together less than a year. He chainsmoked and often said he was stressed. Petitioner was involved in at least three romantic relationships after prison, including with Lenelle Williams, Lovetta, and Shulonda - the mother of two of his children. Shortly before the murders, Petitioner called his mother from Timberlawn mental hospital to inform her that he had checked himself into that facility because he was at the end of his rope. He told her he wanted to go to sleep and never wake up, He remained at Timberlawn for five days, until Lovetta came and picked him up. She and Petitioner's younger brother, Nysasno, spoke on the phone with Petitioner after the murders, and they later went to the location where he was staying, and convinced him to turn himself in. She has seen remorse in Petitioner, who told her he has seen Lovetta sitting at the foot of his bed talking to him.

         Mrs. Sampson explained that her sister was treated for mental problems, one of her brothers killed his wife and then committed suicide, and her mother sees doctors and takes medication for mental health issues. Mrs. Sampson had a nervous breakdown while pregnant with Nysasno, after her brother committed suicide, and she has been prescribed Valium.

         Mrs. Sampson testified that Carter, the father of both her sons, was physically abusive, kicking her in the stomach and blackening her eye while she was pregnant with Nysasno. She left Carter in 1978-79. Carter once attempted to get Petitioner to fight another child. Petitioner witnessed Carter being violent toward Mrs. Sampson. Petitioner was age two when Carter went to the Fort Leavenworth penitentiary, where he died. Carter was out of the house by the time Nysasno was born.

         On cross-examination, Mrs. Sampson testified Petitioner was arrested for aggravated robbery less than four months after getting out of prison for assaulting his former girlfriend, Jennifer. She did not write State Exhibit 160 (a letter addressed to state parole officials urging Petitioner's release, purportedly from her), and she believes that document is in Petitioner's handwriting. While she only knows that her sister has been treated for mental health issues, she believes other relatives have been to mental hospitals. She believes her own mother's mental health is normal. During her prior testimony before the grand jury, she testified Petitioner had no mental issues growing up, was not mentally retarded, and had never told her that he had been sexually abused.

         d. Petitioner's Grandmother's Testimony

         Petitioner's maternal grandmother, Bertha Curry, also testified extensively regarding his childhood and background. 51 Tr. 160-93. Carter beat both Petitioner and Petitioner's mother "all the time"; he was a violent person who kicked Petitioner's mother while she was pregnant with Petitioner's younger brother. Petitioner was "real young" when Carter was out of the picture.

         As a child, Petitioner once grabbed and bit the head off a snake, but when she attempted to tell Petitioner's mother about the incident, Petitioner's mother did not want to hear about it and insisted nothing was wrong with Petitioner. Mrs. Curry has been taking anxiety medication and antidepressants for many years. One of her daughters, a sister of Petitioner's mother, was sent to a psychiatric hospital. Her stepson killed his wife and himself.

         Petitioner was never a normal child. From an early age, Petitioner said that he did not want to live because the devil was after him. As a child, Petitioner often cried and did not want to be with friends because he was afraid that they would make fun of him. He reached the ninth or tenth grade in school, had a lot of friends growing up, but preferred to play by himself. After Petitioner got out of prison the first time, he was never happy and often talked of suicide. He had jobs at a grocery store and a warehouse when he got out of prison, but never held those jobs more than a year. Petitioner began withdrawing from her around 2007-08, and seemed nervous and unfocused on normal things. She last saw Petitioner in December 2008, when he was with Lovetta and her three children. Petitioner was capable of being kind and had relationships with Jennifer, Shulonda, and Belinda. Mrs. Curry believes Petitioner's crimes do not reflect his true personality.

         e. School Psychologist's Testimony

         Dr. Kellie Gray-Smith, a licensed school psychologist who reviewed Petitioner's school records, testified regarding Petitioner's poor academic performance and related subjects. 51 Tr. 204-33. She testified that members of the African-American community tend to seek out mental health treatment less often than members of other groups because of a lack of awareness, misperceptions, distrust of mental health professionals, distrust of medical treatment, perceptions that mental illnesses are merely bad behavior, and fears that students labeled as mentally ill will be stigmatized and denied opportunities later in life. Genetic factors also contribute to many mental illnesses, and where heredity links a family to mental illness, some behaviors are not recognized as pathological or problematic. She stated early intervention is critical in treating mental illness and that special education programs address disabilities and emotional and behavioral problems.

         Dr. Gray-Smith testified that Petitioner's school records show he was not successful academically, and his pattern of academic failure was chronic, pervasive, and alarming. She was unable to explain the absence of any record showing Petitioner had been evaluated for special education services. Petitioner performed in the lowest ten percent academically across many grade levels and displayed poor social skills. Dr. Gray-Smith testified that, if compensatory skills are not learned in childhood, the inability to relate to others leads to isolation, feelings of rejection, poor classroom performance, withdrawal behaviors, low self-esteem, poor academic performance despite cognitive and academic potential, and the need to lash out and act out, all behaviors that will escalate if not treated.

         f. Neuropsychologist's Testimony

         Dr. Gilbert Martinez, a neuropsychologist who tested, interviewed, and evaluated Petitioner, testified at great length regarding Petitioner's mental health. 52 Tr. 5-125. Petitioner presented as severely depressed and despondent and had an IQ that hovered right around the upper end of the borderline range and lower end of the average range, with a full-scale score of 78 or 79. There was not a lot of evidence of severe cognitive disturbance, i.e., brain damage or head injury. Petitioner has some difficulty with higher level thinking and although he is not mentally retarded, he displays mental disorders of mood and thought. Petitioner also displays personality disorders, i.e., problems with interpersonal behavior and suffers from chronic problems with mood, including both depression and episodes of agitation, irritability and elevated mood. Petitioner's thought problems include a lifelong history of hypervigilance, suspiciousness, and paranoid thinking and behavior. Dr. Martinez diagnosed Petitioner with Schizoaffective Disorder of the Bipolar Type, a severe mental illness characterized by severe depression, withdrawal, lack of motivation, insomnia, loss of appetite, intense sadness, and thinking characterized by suspiciousness, agitation, irritability or elevated mood, and paranoid, possibly delusional, thoughts.

         Dr. Martinez also diagnosed Petitioner with features of several different personality disorders: borderline personality disorder, paranoid personality disorder, avoidant personality disorder, depressive personality, and antisocial personality disorder ("ASPD"). The term "mental illness" describes dysfunction in thought and mood while a "personality disorder" describes a person's behavior. Dr. Martinez said that regardless of which personality disorder Petitioner has, he also has Schizoaffective Disorder, a severe form of depression mixed with agitation, mania, and racing thoughts. Dr. Martinez described Petitioner as having a lifelong history of paranoid and delusional ideation, both with and without mood problems. Schizoaffective Disorder is treatable with medications. Dr. Martinez explained there is a very high comorbidity between mental disorders and substance abuse, as the mentally ill tend to self-medicate, which can make things worse.

         Dr. Martinez's review of Petitioner's mental health records revealed to him that Petitioner reported episodes of severe depression, sadness, affective instability, anxiety, agitation, and paranoid delusions. At Timberlawn, Petitioner reported symptoms of depression, isolation, decreased energy, racing thoughts, and feelings of helplessness, but denied suicidal or homicidal ideation, and was diagnosed with a major depressive disorder with psychotic features. Dr. Martinez explained that with depression, usually thinking slows down and so Petitioner's reported racing thoughts were inconsistent with a major depressive episode. Petitioner was prescribed Risperdal for thought disorders and Remeron for depression but did not remain at Timberlawn long enough for either medication to fully take effect. Dr. Martinez opined that Petitioner's depression is severe enough to promote psychosis, and that his major depressive disorder is a severe mental illness. At Timberlawn, Petitioner reported feeling depressed his entire life, feeling worthless, and expressed a passive suicidal ideation, i.e., he stated he wanted to go to sleep and not wake up. Dr. Martinez explained that it is not uncommon for patients to feel even more depressed once they are in a hospital.

         On cross-examination, Dr. Martinez admitted Petitioner was not diagnosed with a mental illness during either of his incarcerations or while in custody prior to trial, but expressed the opinion that the quality of mental health care Petitioner received while in custody was poor. He admitted Petitioner's chronic abuse of marijuana could lead to a depressed affect or the opposite, and that Petitioner was not diagnosed with Schizoaffective Disorder at Timberlawn. Dr. Martinez did point out that Petitioner was placed under close observation while at Timberlawn due to suicidal ideation, but admitted Petitioner apparently had little trouble sleeping while there and checked himself out of that facility. Dr. Martinez admitted that while awaiting trial for capital murder, Petitioner was diagnosed with adjustment disorder and requested an issue of Psychology Today magazine. Dr. Martinez stated that Petitioner reported that he set fire to a dog while he was a child and engaged in conduct before age fifteen which qualified him for a diagnosis of conduct disorder, and that Petitioner meets many of the criteria for antisocial personality disorder. Dr. Martinez did not discuss Petitioner's capital offense with him, did not review the video recording of Petitioner's confession, and could not express any opinion regarding whether Petitioner's capital offense was related to Schizoaffective Disorder.

         Dr. Martinez explained the term "comorbidity" means a person can have both a mental illness and a personality disorder. He believes Petitioner was having a mental and emotional breakdown when he went to Timberlawn. Dr. Martinez reported that Petitioner was treated in prison for depression and a nervous breakdown, and he is dubious of Petitioner's IQ score of 105 reported in his prison records. Dr. Martinez testified that Petitioner's action in driving his girlfriend Jennifer to the hospital after assaulting her was inconsistent with both a lack of remorse and a diagnosis of ASPD. Pie also stated that persons with ASPD can be outgoing, even charming.

         g. Petitioner's Brother's Testimony

         Petitioner's brother, Nysasno Carter, furnished additional background testimony on Petitioner. 52 Tr. 126-58. Nysasno testified that, while he got along with their step-father Leon Sampson ("Sampson") growing up, Petitioner never bonded with Sampson and their relationship was "good and bad." Petitioner could not learn to use the tools Sampson used in his remodeling business. He believes Petitioner is mentally ill because he always talked about death and was "off by himself at school. While Petitioner isolated himself, Nysasno got along with Petitioner. Petitioner made poor grades in school. Many people in their family have mental problems but won't admit it. Petitioner quit high school in the eleventh grade.

         He visited Petitioner frequently during Petitioner's second term of incarceration. After getting out of prison, Petitioner worked at Walmart. Petitioner always acted strange, never normally. Nysasno worked for a time in a job that required him to travel extensively and often spoke with Petitioner on the phone while on the road. Prior to the murders, Petitioner told him that he was hearing demons, was feeling stressed, and had nothing to live for. Nysasno told Petitioner to pray. Petitioner called him once when Petitioner was at Timberlawn to say he needed help. When Nysasno went to pick up Petitioner following the murders, Petitioner appeared "really spaced out." Petitioner was depressed following his arrest and claimed to hear voices.

         Petitioner married Belinda Lacy after getting out of prison, but their marriage lasted only about three weeks. Petitioner thereafter fathered four children with three different women in an eighteen-month period. Nysasno was concerned that Petitioner was not taking care of those children. Petitioner had a lot of friends. No. one forced Petitioner to check himself into Timberlawn. Petitioner worked for a time installing large batteries for corporations. Petitioner admitted to Nysasno that he killed Lovetta but would not discuss Jazzmen's murder. Nysasno and his mother located Petitioner the night of the murders in an unfamiliar place, by using caller ID.

         3. The Verdict

         On November 5, 2010, the jury returned its verdict at the punishment phase of Petitioner's capital murder trial, concluding (1) unanimously and beyond a reasonable doubt there was a probability the Petitioner would commit criminal acts of violence that would constitute a continuing threat to society, and (2) unanimously that taking into consideration all of the evidence, including the circumstances of the offense and the Petitioner's character, background, and personal moral culpability, there was not a sufficient mitigating circumstance to warrant a sentence of life imprisonment rather than a death sentence.[4] 53 S.F. Trial, 79-81. The trial judge imposed a sentence of death as prescribed by Texas law. 53 S.F. Trial, 81-82.

         C. State Post Trial Proceedings

         Petitioner appealed his conviction and sentence.[5] In an unpublished opinion issued October 3, 2012, the Texas Court of Criminal Appeals affirmed. Green v. State, AP-76, 458, 2012 WL 4673756 (Tex.Crim.App. Oct. 3, 2012), cert, denied, 569 U.S. 1019 (2013).

         On June 15, 2012, Petitioner filed an application for state habeas corpus relief.[6] On July 14-16 and 18, 2014, the state trial court held an extensive evidentiary hearing in Petitioner's state habeas corpus proceeding. On December 31, 2014, the state habeas trial court issued its findings of fact and conclusions of law and recommended state habeas corpus relief be denied, concluding in pertinent part that (1) Petitioner's Atkins claim lacked merit, (2) Petitioner's evidence showing that he is mentally ill did not preclude his execution under Eighth Amendment principles, (3) there was no credible evidence showing Petitioner's jury saw Petitioner in shackles during trial, (4) Petitioner's trial counsel did not render ineffective assistance by failing to present evidence at the guilt-innocence phase of trial showing Petitioner suffered from a mental illness at the time of his capital offense, and (5) Petitioner's trial counsel did not render ineffective assistance in connection with the punishment phase of trial by failing to adequately investigate Petitioner's background and present all available mitigating evidence, more specifically finding the strategic and tactical decisions made by Petitioner's trial counsel regarding the presentation of mitigating evidence were objectively reasonable and did not prejudice Petitioner.[7]

         The Texas Court of Criminal Appeals subsequently denied Petitioner's state habeas corpus application in an unpublished order adopting all of the trial court's findings and conclusions. Ex parte Gary Green, WR-81, 575-01, 2015 WL 3899220 (Tex.Crim.App. June 24, 2015).

         D. Federal Habeas

         Petitioner filed his original petition for federal habeas corpus relief on June 13, 2016 [ECF no. 17], asserting five claims for relief. Specifically, Petitioner argued the Eighth Amendment precludes his sentence of death because he is intellectually disabled and suffers from a serious mental illness. He argued his jury saw him in shackles during trial and the state trial court failed to make a finding of necessity with regard to the use of such shackles. He argued his trial counsel rendered ineffective assistance at the guilt-innocence phase of trial by failing to assert a diminished capacity defense. His trial counsel allegedly rendered ineffective assistance by failing to adequately investigate his background and present available mitigating evidence. Respondent filed her answer on March 13, 2017 [ECF no. 36]. Petitioner filed his reply brief on June 19, 2017 [ECF no. 43].

         II. Standard of Review

         Because Petitioner filed his federal habeas corpus action after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), it governs this Court's review of Petitioner's claims for federal habeas corpus relief. Penry v. Johnson, 532 U.S. 782, 792 (2001). Under the AEDPA, this Court cannot grant Petitioner federal habeas corpus relief in connection with any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either: (1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).

         The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1) have independent meanings. Bell v. Com, 535 U.S. 685, 694 (2002), Under the "contrary to" clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1438; Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) ("A state court's decision is 'contrary to' our clearly established law if it 'applies a rule that contradicts the governing law set forth in our cases' or it 'confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent, '"). A state court's failure to cite Supreme Court authority does not, per se, establish the state court's decision is "contrary to" clearly established federal law: "the state court need not even be aware of our precedents, 'so long as neither the reasoning nor the result of the state-court decisions contradicts them.'" Mitchell, 540 U.S. at 16.

         Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Brown, 544 U.S. at 141; Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) ("A federal habeas court can only set aside a state-court decision as 'an unreasonable application of.. . clearly established Federal law, ' § 2254(d)(1), if the state court's application of that law is 'objectively unreasonable.'"); Wiggins, 539 U.S. at 520-21, The focus of this inquiry is on whether the state court's application of clearly established federal law was objectively unreasonable; an "unreasonable" application is different from a merely "incorrect" one. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold."); Wiggins, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634');">538 U.S. 634, 641 (2003) ("[I]t is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner"). "Under [AEDPA], a state prisoner seeking a writ of habeas corpus from a federal court 'must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 101(2011)).

         Legal principles are "clearly established" for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles, Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

         AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) provides that federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301(2010) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."); Williams, 529 U.S. at 410 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination, Wood, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).

         In addition, § 2254(e)(1) provides that a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings, which are presumed to be correct, were erroneous. Schriro, 550 U.S. at 473-74; Rice, 546 U.S. at 338-39; Miller-El v. Dretke, 545 U.S. 231, 240 (2005); 28 U.S.C. §2254(e)(1). It remains unclear at this juncture whether § 2254(e)(1) applies in every case presenting a challenge to a state court's factual findings under § 2254(d)(2). See Wood v. Allen, 558 U.S. at 300-01 (choosing not to resolve the issue of § 2254(e)(1)'s possible application to all challenges to a state court's factual findings); Rice, 546 U.S. at 339 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e)(1)).

         The deference to which state court factual findings are entitled under AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240 (the standard is "demanding but not insatiable"); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief").

         Finally, in this Circuit, a federal habeas court reviewing a state court's rejection on the merits of a claim for relief pursuant to AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court's written opinion supporting its decision. See Evans v. Davis, 875 F.3d 210, 216-17 (5th Cir. 2017) (§ 2254(d) directs federal habeas courts to review only a state court's ultimate decision and not the written opinion explaining that decision and requires the federal court to consider all the arguments and theories that could have supported the state court's decision), cert. denied, 139 S.Ct. 78 (2018); Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010); Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir. 2010).

         III. ...


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