United States District Court, N.D. Texas, Dallas Division
GARY GREEN, TDCJ No. 999561, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent,
MEMORANDUM OPINION AND ORDER
BARBARA M.G. LYNN, CHIEF JUDGE
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.
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
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.
Guilt - Innocence Phase
guilt-innocence phase of Petitioner's capital murder
trial commenced on October 26, 2010.
Jerome and Jarrett Armstead's Testimony
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.
The Medical Examiners' Testimony
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.
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.
Other Prosecution Witnesses' Testimony
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.
October 28, 2010, the jury returned its verdict, finding
Petitioner guilty of capital murder as charged in the
indictment. 48 Tr. 33-34.
punishment phase of Petitioner's capital murder trial
commenced on November 1, 2010.
The Prosecution's Evidence
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.
The Defense's Evidence
defense presented an extensive case in mitigation.
Petitioner's Aunt's Testimony
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.
Petitioner's Former Romantic Partner's
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.
Petitioner's Mother's Testimony
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.
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.
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
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.
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
Petitioner's Grandmother's Testimony
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.
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.
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
School Psychologist's Testimony
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.
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.
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
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.
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.
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.
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.
Petitioner's Brother's Testimony
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.
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
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.
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. 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.
State Post Trial Proceedings
appealed his conviction and sentence. 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).
15, 2012, Petitioner filed an application for state habeas
corpus relief. 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.
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).
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].
Standard of Review
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).
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
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)).
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).
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).
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
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
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).