Case: 20-70005 Document: 00515911045 Page: 1 Date Filed: 06/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 23, 2021
No. 20-70005 Lyle W. Cayce
Clerk
Howard Paul Guidry,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-1885
Before Willett, Ho, and Oldham, Circuit Judges.
Per Curiam:
We withdraw the court’s prior opinion of April 21, 2021 and substitute
the following opinion.
Howard Paul Guidry was convicted of capital murder in Texas and
sentenced to death. On federal habeas corpus review, the district court
granted Guidry relief, and this court affirmed the grant of relief. Guidry was
retried and resentenced to death. After pursuing direct review and habeas
relief in state court, Guidry again sought federal habeas corpus relief under
28 U.S.C. § 2254. The district court denied relief on all claims. Guidry now
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seeks a certificate of appealability (“COA”) from this court. We deny him a
COA.
I.
A.
Farah Fratta (“Farah”) was murdered in November 1994. Her
husband, Robert Fratta (“Fratta”), had hired Joseph Prystash to kill her.
Prystash enlisted his neighbor, Howard Paul Guidry, as the gunman.
On the night of the murder, a gunman approached Farah as she exited
her car in her garage. The gunman shot Farah twice in the head. Farah’s
neighbors, the Hoelschers, heard a gunshot and Farah screaming. Mr.
Hoelscher saw Farah fall and then heard a second gunshot. Then the
Hoelschers watched the gunman, an African-American man, emerge from
behind a large bush. The gunman got into a silver or gray car that had one
headlight out, and the car drove off. The Hoeschlers could not describe the
gunman in detail.
The police investigation centered on three participants: a gunman, a
getaway driver, and Fratta. The police suspected Fratta because he and
Farah were going through a bad divorce. Fratta openly wanted Farah dead
and tried to hire people to kill her. As for the other two suspects, a woman
named Mary Gipp told police that Fratta hired her boyfriend, Joseph
Prystash, to kill Farah and that Prystash recruited Guidry as the gunman.
The police arrested Guidry in March 1995 as he fled from a bank
robbery. At the time of his arrest, Guidry possessed a gun belonging to
Fratta. Guidry also confessed to being the gunman who shot Farah. Guidry’s
trial focused heavily on that confession. A jury found Guidry guilty of capital
murder, and he was sentenced to death in 1997.
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B.
Guidry sought appellate and habeas relief in the state courts, but they
found no reversible error. The state courts found that Mary Gipp’s
testimony was inadmissible as hearsay, but harmless because of Guidry’s
confession. This court found that Guidry invoked his right to counsel and
that police detectives violated that right by inducing Guidry’s confession. See
Guidry v. Dretke, 397 F.3d 306, 327 (5th Cir. 2005), abrogated by Cullen v.
Pinholster,
131 S. Ct. 1388 (2011). Because we excluded Guidry’s confession,
we found that Gipp’s testimony was no longer harmless. Thus, we concluded
that there remained “no evidence showing Guidry killed Farah Fratta for
remuneration—the capital offense for which Guidry was convicted” and
granted him habeas relief. Id. at 330.
Texas retried Guidry for capital murder in 2007. Because the State
could no longer use Guidry’s confession, it relied on testimony from Gipp
that avoided hearsay, Guidry’s possession of Fratta’s gun, ballistics
evidence, and Guidry’s incriminating statements to others. The second jury
found Guidry guilty of capital murder, and he was again sentenced to death.
On direct appeal, the Texas Court of Criminal Appeals (“TCCA”)
affirmed Guidry’s conviction. Guidry v. State, No. AP-75,633, 2009 WL
3369261 (Tex. Crim. App. Oct. 21, 2009). Guidry also filed a state habeas
application, which was denied, and his supplemental applications were
dismissed as an abuse of the writ. Ex parte Guidry, Nos. WR-47,417-02, WR-
47, 417-03,
2012 WL 2423621, at *1 (Tex. Crim. App. June 27, 2012); see also
Ex parte Guidry, Nos. 47,417-04, WR-47, 417-05,
2018 WL 4472491, at *1 n.1
(Tex. Crim. App. Sept. 19, 2018). Finally, Guidry sought federal habeas
relief under
28 U.S.C. § 2254. The district court denied his federal habeas
petition and refused to grant him a COA.
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Guidry now seeks a COA from this court to appeal the district court’s
dismissal of his § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A). He raises
four issues: (1) whether the admission of Dr. Scott Basinger’s testimony was
fruit of the poisonous tree; (2) whether the State’s peremptory strike of a
black juror violated Guidry’s right to a fair and impartial jury under Batson v.
Kentucky,
476 U.S. 79 (1986); (3) whether the State suppressed evidence in
violation of Brady v. Maryland,
373 U.S. 83 (1963); and (4) whether Guidry
received ineffective assistance of trial, appellate, and habeas counsel under
Strickland v. Washington,
466 U.S. 668 (1984).
II.
To obtain a COA to appeal the denial of a § 2254 petition, Guidry
must make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). See also Miller-El v. Cockrell,
537 U.S. 322, 336 (2003).
For the claims the district court denied on the merits, a COA will issue only
if Guidry shows “that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.”
Miller-El,
537 U.S. at 327. For claims the district court denied on procedural
grounds, a COA will issue only if Guidry shows that reasonable jurists would
debate whether the district court’s procedural ruling was correct and
whether the petition states a valid claim of the denial of a constitutional right
on the merits. Slack v. McDaniel,
529 U.S. 473, 484 (2000).
Federal courts evaluate the debatability of Guidry’s constitutional
claims under the Antiterrorism and Effective Death Penalty Act (AEDPA).
Under AEDPA, we must not grant habeas relief for any claim adjudicated on
the merits in state court unless the adjudication “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
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States,” or “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.” 28 U.S.C. § 2254(d)(1)–(2).
A state-court decision is “contrary to” clearly established federal law
when it “arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). A state-court decision is an
“unreasonable application of” clearly established federal law if it “identifies
the correct governing legal rule from [the Supreme Court’s] cases but
unreasonably applies it to the facts of the particular state prisoner’s case,” or
if it “unreasonably extends a legal principle from [Supreme Court] precedent
to a new context where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.”
Id. at 407. Clearly
established federal law comprises “the holdings, as opposed to the dicta, of
[the Supreme] Court’s decisions as of the time of the relevant state-court
decision.”
Id. at 412.
AEDPA is a “highly deferential standard,” which “demands that
state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559
U.S. 766, 773 (2010) (first quoting Lindh v. Murphy,
521 U.S. 320, 333 n.7
(1997); then quoting Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per
curiam)). Accordingly, even if we find that a state court incorrectly applied
clearly established federal law, we only intervene if the application was
objectively unreasonable. Perez v. Cain,
529 F.3d 588, 594 (5th Cir. 2008).
Thus, to obtain a COA, Guidry must show that “jurists of reason
could disagree with the district court’s conclusion that the state court’s
decision was not [contrary to or] an unreasonable application of clearly
established federal law and was not based upon an unreasonable
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determination of the facts in light of the evidence presented.” Halprin v.
Davis, 911 F.3d 247, 255 (5th Cir. 2018) (per curiam).
A.
We start with Guidry’s merits claims. The first issue Guidry seeks to
certify for appeal is whether the admission of Dr. Basinger’s testimony was
fruit of the poisonous tree. Dr. Basinger was a defense expert in Guidry’s
first trial. On cross-examination, the prosecution elicited that Guidry told
Dr. Basinger that he shot Farah. When the State subpoenaed Dr. Basinger to
testify in the second trial, Guidry objected that his statements to Dr. Basinger
were the direct result of his illegally obtained confession to police. The trial
court denied Guidry’s motions and permitted Dr. Basinger to testify.
To support certification, Guidry argues that the use of Dr. Basinger’s
testimony in his second trial violated his Fifth Amendment rights under
Harrison v. United States, 392 U.S. 219 (1968). In Harrison, the defendant
made three confessions to police.
Id. at 220. At trial, Harrison took the stand
to testify on his own behalf.
Id. An appellate court determined that his
confessions were illegally obtained and reversed his conviction.
Id. At the
retrial, the prosecutor read Harrison’s testimony from the first trial to the
jury.
Id. at 221. The Supreme Court held that Harrison’s testimony in the
first trial was impelled by the illegally obtained confessions, and therefore was
fruit of the poisonous tree which could not be used in the second trial.
Id. at
222. The Supreme Court made clear that its holding in Harrison did not
extend to the testimony of third-party witnesses.
Id. at 223 n.9. Further, the
Supreme Court has clarified that “the rule announced in Harrison” means
that “compelling the defendant to testify in rebuttal” to an inadmissible
confession “precludes use of that testimony on retrial.” Oregon v. Elstad,
470 U.S. 298, 316–17 (1985).
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Here, the TCCA distinguished Harrison on several grounds—most
notably that the testimony at issue is from a third party and that Guidry never
took the stand. As the Tenth Circuit has written, “Harrison is applicable only
where a defendant’s testimony is impelled by the improper use of his own
unconstitutionally obtained confessions in violation of the Fifth Amendment.”
Littlejohn v. Trammell, 704 F.3d 817, 849 (10th Cir. 2013). Accordingly, as
the district court recognized, Guidry has not identified any clearly
established Supreme Court precedent extending Harrison to his
incriminating statements to his own expert. We cannot reasonably debate
the district court’s conclusion that Guidry’s attempted extension of Harrison
precludes relief under AEDPA. See Premo v. Moore,
562 U.S. 115, 127 (2011)
(“[N]ovelty . . . [that] renders [a] relevant rule less than ‘clearly
established’ . . . provides a reason to reject it under AEDPA.”).
Guidry also relies on our decision in Smith v. Estelle, 527 F.2d 430 (5th
Cir. 1976). But that case dealt only with the situation where an unlawful
confession impelled the defendant himself to testify. See
id. at 433–34. Thus,
Guidry’s argument fails for the same reasons his Harrison argument does.
In the district court, Guidry also argued that Dr. Basinger’s testimony
violated his right against self-incrimination because confessions made during
a court-ordered psychiatric evaluation by the State are inadmissible unless
the defendant is warned that the results may be used against him. See Estelle
v. Smith, 451 U.S. 454, 469 (1981). This argument fails as well. Here, Dr.
Basinger was not a court-appointed expert, but a private defense expert. Nor
did he conduct a psychological examination. We held in Powell v. Quarterman
that a defendant’s rights under Estelle v. Smith were not violated when the
examining doctor was not working for the State or the court.
536 F.3d 325,
343 (5th Cir. 2008). Thus, Guidry cannot show that jurists of reason would
debate that the state-court decision did not violate clearly established federal
law as determined by the Supreme Court.
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Reasonable jurists could not disagree with the district court’s
conclusion. We deny Guidry a COA on this claim.
B.
Second, Guidry seeks a COA on whether the State’s peremptory
strike of potential juror Matthew Washington, a black man, violated Guidry’s
right to a fair and impartial jury under Batson v. Kentucky, 476 U.S. 79 (1986).
The trial court and the district court conducted detailed analyses of this issue.
Jurists of reason could not disagree with the district court’s denial of
Guidry’s Batson claim. Therefore, we deny a COA on this issue.
Claims challenging race-based peremptory strikes require the
application of Batson’s three-step test:
First, the claimant must make a prima facie showing that the
peremptory challenges have been exercised on the basis of race.
Second, if this requisite showing has been made, the burden
shifts to the party accused of discrimination to articulate race-neutral explanations for the peremptory challenges. Finally,
the trial court must determine whether the claimant has carried
his burden of proving purposeful discrimination.
United States v. Montgomery, 210 F.3d 446, 453 (5th Cir. 2000) (quotation
omitted).
Where, as here, the district court has reached the second step of the
Batson analysis, “we no longer examine whether a prima facie case exists.”
United States v. Webster, 162 F.3d 308, 349 (5th Cir. 1998). At the second
step, the prosecutor’s explanation need not be “persuasive, or even
plausible. . . . [T]he issue is the facial validity of the prosecutor’s
explanation.” Purkett v. Elem,
514 U.S. 765, 768 (1995) (per curiam)
(quotations omitted). Further, “[w]here, as in this case, the trial judge has
entertained and ruled on a defendant’s motion charging a Batson violation,
we review only [the district court’s] finding of discrimination vel non. . . . In
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this regard, we apply a clearly erroneous . . . standard of review.” United
States v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir. 1988) (citations and
quotations omitted).
In a Batson claim, “[t]he party making the claim of purposeful
discrimination bears the ultimate burden of persuasion.” Montgomery, 210
F.3d at 453. Thus, Guidry “must show that the TCCA’s factual
determinations were mistaken with clear and convincing evidence, and he
must also show that the district court’s unwillingness to reach that
conclusion was itself clear error.” Williams v. Davis,
674 F. App’x 359, 364
(5th Cir. 2017) (per curiam).
Here, Guidry’s jury was composed of one Hispanic, one Asian, two
black, and eight white jurors. At the State’s request, the trial court only
removed one prospective juror, a Hispanic woman, for cause. The State
exercised peremptory strikes against four prospective jurors. Three of them
were white. The fourth was Washington, a black man.
The prosecutor gave six reasons for striking Washington: (1) his
membership in Lakewood Church; (2) his opinion that people commit crimes
because they have no education or opportunities; (3) his experience with
discrimination; (4) his demeanor which made him hesitant and
uncomfortable answering questions; (5) his active membership in the
NAACP, which is opposed to the death penalty; and (6) the possibility that
the defense would call a witness who was heavily involved with the NAACP.
On appeal, Guidry challenges five of the prosecutor’s six reasons.
First, Guidry argues that the NAACP explanation is not race-neutral. As the
district court notes, there is some debate about this in the lower federal
courts. See, e.g., United States v. Payne, 962 F.2d 1228, 1233 (6th Cir. 1992)
(holding that striking a juror for his membership in an advocacy group such
as the NAACP was a race-neutral reason); but see, e.g., Somerville v. State, 792
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S.W.2d 265, 267–69 (Tex. App.—Dallas 1990, pet ref’d) (holding that a
juror’s membership in the NAACP is not a race-neutral reason for striking
him). But as that debate indicates, there is no clearly established federal law
as determined by the Supreme Court on this point. The district court
recognized that membership in the NAACP could be “so intertwined with
race to render it inherently discriminatory,” but found that, in the context of
all the other explanations for the strike, this reason did not show that the State
was “motivated in substantial part by discriminatory intent.” Flowers v.
Mississippi,
139 S. Ct. 2228, 2244 (2019) (quotation omitted). No jurist of
reason could debate that Guidry does not present clear and convincing
evidence to rebut this determination as objectively unreasonable.
Second, Guidry argues that Washington’s membership in Lakewood
Church was clearly a pretext because the prosecutor accepted two non-black
members of Lakewood Church. But as the record makes clear, the prosecutor
did not always strike members of Lakewood Church. What’s more, the state
habeas court expressly analyzed this claim and determined that, unlike
Washington, the other two Lakewood members gave “State’s-oriented”
responses and one of them had only recently started attending Lakewood.
Guidry has not shown that jurists of reason would debate this claim.1
Third and fourth, Guidry argues that the prosecutor’s reliance on
Washington’s experience with discrimination was pretextual and that the
district court did not explicitly credit the prosecutor’s demeanor-based
reason. While the district court expressed some concern about the
prosecutor relying on Washington’s experience with discrimination, it
1
Guidry does not seek relief based on religious discrimination, presumably because
the Supreme Court to date has not extended Batson protections to religious affiliation. See,
e.g., Davis v. Minnesota, 511 U.S. 1115 (1994) (denying certiorari to review state supreme
court decision declining to extend Batson to religion).
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recognized that the prosecutor “did not make the comment in isolation.”
Rather, the district court found that the prosecution discussed this reason
“as a feature of [Washington’s] general disposition.” This analysis indicates
that the district court considered Washington’s demeanor and determined
that, when viewed “in light of all of the relevant facts and circumstances,”
these reasons were not “motivated in substantial part by discriminatory
intent.” Flowers, 139 S. Ct. 2243–44. We cannot find this conclusion
debatable.
Finally, Guidry cannot debatably show by clear and convincing
evidence that the prosecutor’s reason that the defense would call a witness
who was an NAACP member was pretext. Indeed, when the prosecutor gave
this reason, he thought Washington knew the witness. Further, he did not
know at the time that the defense did not intend to call that witness.
The Supreme Court has recognized that the evaluation of a
prosecutor’s intent when striking a juror is at bottom a determination of
“credibility and demeanor,” which lies “peculiarly within a trial judge’s
province.” Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (quotations and
citations omitted). We “will not reverse a lower court’s finding of fact simply
because we would have decided the case differently.” Easley v. Cromartie,
532 U.S. 234, 242 (2001) (quotations omitted).
Jurists of reason could not disagree with the district court that the
state court’s decision was not an unreasonable application of clearly
established law as determined by the Supreme Court and was not based on
an unreasonable determination of the facts. See Halprin, 911 F.3d at 255. We
deny Guidry a COA on this claim.
III.
We turn now to Guidry’s procedurally defaulted claims. “[A] federal
court may not review federal claims that were procedurally defaulted in state
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court—that is, claims that the state court denied based on an adequate and
independent state procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064
(2017). Here, the TCCA found that Texas’s abuse-of-the-writ doctrine,
codified in Article 11.071 § 5(a) of the Texas Code of Criminal Appeals,
barred Guidry from bringing a successive state habeas petition. The TCCA’s
dismissal “‘is an independent and adequate state ground for the purpose of
imposing a procedural bar’ in a subsequent federal habeas proceeding.”
Gutierrez v. Stephens,
590 F. App’x 371, 384 (5th Cir. 2014) (per curiam)
(quoting Hughes v. Quarterman,
530 F.3d 336, 342 (5th Cir. 2008)).
Accordingly, we cannot reach the merits of Guidry’s defaulted claims unless
he overcomes the procedural bar.
“Out of respect for finality, comity, and the orderly administration of
justice, a federal court will not entertain a procedurally defaulted
constitutional claim in a petition for habeas corpus absent a showing of cause
and prejudice to excuse the default.” Dretke v. Haley, 541 U.S. 386, 388
(2004). But a “state prisoner may overcome the prohibition on reviewing
procedurally defaulted claims if he can show cause to excuse his failure to
comply with the state procedural rule and actual prejudice resulting from the
alleged constitutional violation.” Davila, 137 S. Ct. at 2064–65 (quotations
omitted).
A.
First, Guidry seeks a COA for his claim that there is cause for the
procedural default of his claim that the State withheld exculpatory fingerprint
evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963).
Because Guidry “acknowledges that his Brady claim is procedurally
defaulted, we must first decide whether that default is excused by an
adequate showing of cause and prejudice.” Strickler v. Greene, 527 U.S. 263,
282 (1999). “A Brady violation can provide cause and prejudice to overcome
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a procedural bar on a habeas claim.” Thompson v. Davis, 916 F.3d 444, 455
(5th Cir. 2019). That’s because “cause and prejudice parallel two of the
three components of the alleged Brady violation itself.” Strickler,
527 U.S.
at 282. To establish a Brady violation, Guidry must prove that (1) the
prosecution suppressed the evidence (cause), (2) the evidence was favorable
to him, and (3) it was material to the defense (prejudice). United States v.
Stephens,
964 F.2d 424, 435 (5th Cir. 1992). A “Brady claim fails if the
suppressed evidence was discoverable through reasonable due diligence.”
Reed v. Stephens,
739 F.3d 753, 781 (5th Cir. 2014).
Guidry fails to satisfy the cause prong because he cannot show that the
State actually suppressed this evidence. The Supreme Court has recognized
that the suppression of evidence qualifies as sufficient cause for the failure to
assert a Brady claim in state court. See Strickler, 527 U.S. at 282. Here,
Guidry argues that the State recovered usable fingerprints from Farah’s car,
identified those prints as Vernon Christopher Barlow’s, and then suppressed
information about Barlow’s involvement in the crime. Guidry states that
“[i]t is undisputed that the State never disclosed to Guidry’s counsel records
about fingerprints obtained from Barlow, or that those prints matched latent
prints obtained by the police.” In support, Guidry relies on the declarations
of Alvin Nunnery, who represented Guidry in his first trial, and Tyrone
Moncrief, who represented Guidry at his second trial. Both lawyers state that
they were never provided with and never reviewed any files relating to
fingerprints or Barlow. Both lawyers also state they learned about this
information from Guidry’s current habeas counsel who pointed it out to them
in the State’s file.
Guidry’s argument is unavailing. That Guidry’s trial attorneys say
they never saw the fingerprint evidence does not mean the State suppressed
it. The State had an open file policy in this case. The prosecution has no
duty under Brady to show defense counsel where to find exculpatory
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evidence in the open file. See United States v. Mulderig, 120 F.3d 534, 541 (5th
Cir. 1997) (“There is no authority for the proposition that the government’s
Brady obligations require it to point the defense to specific documents with a
larger mass of material that it has already turned over.”) (quotation omitted);
see also Mathis v. Dretke,
124 F. App’x 865, 877 (5th Cir. 2005).
Moreover, “Brady does not obligate the State to furnish a defendant
with exculpatory evidence that is fully available to the defendant through the
exercise of reasonable diligence.” Kutzner v. Cockrell, 303 F.3d 333, 336 (5th
Cir. 2002). Guidry’s habeas counsel found this fingerprint evidence when
they asked the State to see Guidry’s file. Guidry’s file consisted of multiple
boxes, some labeled “Guidry,” some “Prystash,” and some “Fratta.”
Habeas counsel states that they discovered much of this evidence in the box
labeled “Fratta.” Nevertheless, with reasonable diligence, habeas counsel
found this evidence in what the State provided as “Guidry’s file.” Thus, to
prove the State suppressed the evidence, Guidry must show the material was
not in the State’s files at the time of trial, and that the State added it later—
not just that trial counsel did not see it. There is no evidence in the record
that Guidry’s trial counsel did not have access to the exact same material or
that the State added the material after Guidry’s second trial.
Because Guidry cannot show that the State suppressed the fingerprint
evidence, he has failed to establish cause for defaulting his Brady claim. No
reasonable jurist would debate the correctness of the district court’s
procedural ruling on Guidry’s Brady claim. We deny a COA on this claim. 2
2
Because we determine that no reasonable jurist could debate that there was no
cause for Guidry’s procedural default of his Brady claim, we do not discuss the district
court’s thorough analysis of the materiality of this evidence under the prejudice prong of
the test to overcome the procedural bar.
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B.
Second, Guidry seeks a COA on whether he received ineffective
assistance of counsel (IAC) under Strickland v. Washington, 466 U.S. 668
(1984). He alleges that his trial, appellate, and state habeas counsel were all
ineffective. Under Strickland, a criminal defendant’s Sixth Amendment
right to counsel is “denied when a defense attorney’s performance falls
below an objective standard of reasonableness and thereby prejudices the
defense.” Yarborough v. Gentry,
540 U.S. 1, 5 (2003) (per curiam). But
because Guidry defaulted these claims, the procedural bar forecloses review
on federal habeas unless Guidry can show cause and actual prejudice. See
Davila,
137 S. Ct. at 2062 (citing Coleman v. Thompson,
501 U.S. 722 (1991)).
1.
First, to the extent Guidry makes a freestanding ineffective assistance
of state habeas counsel claim divorced from his ineffective assistance of trial
counsel claim, it fails to meet the COA standard. As the Supreme Court has
held, “[b]ecause a prisoner does not have a constitutional right to counsel in
state postconviction proceedings, ineffective assistance in those proceedings
does not qualify as cause to excuse a procedural default.” Id. at 2062–63; see
also id. at 2065. Thus, no reasonable jurist would debate the correctness of
the district court’s procedural ruling on this claim.
Guidry also argues on appeal that his state habeas counsel abandoned
him. See United States v. Cronic, 466 U.S. 648 (1984). But Guidry did not
make this argument in the district court. “We have repeatedly held that a
contention not raised by a habeas petitioner in the district court cannot be
considered for the first time on appeal from that court’s denial of habeas
relief.” Johnson v. Puckett,
930 F.2d 445, 448 (5th Cir. 1991). Accordingly,
we deny Guidry a COA on this claim.
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2.
Second, Guidry argues that his appellate counsel on direct appeal was
ineffective. In the district court, Guidry argued that the ineffectiveness of his
state habeas counsel constituted cause to overcome the procedural bar to his
ineffective assistance of appellate counsel claim (IAAC).
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court created a
“narrow, ‘equitable . . . qualification’ of the rule in Coleman that applies
where state law requires prisoners to raise claims of ineffective assistance of
trial counsel ‘in an initial-review collateral proceeding,’ rather than on direct
appeal.” Davila,
137 S. Ct. at 2065 (quoting Martinez,
566 U.S. at 16, 17). It
held that “a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if” state habeas
counsel’s ineffective assistance caused the default. Martinez,
566 U.S. at 17
(emphasis added).
Here, Texas requires prisoners to bring all ineffective assistance of
counsel claims in state habeas proceedings. So Guidry argues the Martinez
exception should apply to his claim of IAAC. But the Supreme Court
considered this exact question in Davila and “decline[d]” to “extend that
exception” to IAAC claims. Davila, 137 S. Ct. at 2062–63; see also Murphy v.
Davis, 737 F. App’x 693, 702–03 (5th Cir. 2018) (per curiam) (“The
Supreme Court has recently held that default of an IAAC claim cannot be
excused by ineffectiveness of habeas counsel.”). Guidry did not raise his
IAAC claim in his first habeas petition and the Texas Court of Criminal
Appeals dismissed his successive state habeas petition as an abuse of the writ.
Because Guidry’s IAAC claim is procedurally defaulted with no debatable
case for excuse, we deny a COA on it.
On appeal, Guidry makes a new argument. Rather than argue that the
ineffective assistance of his habeas counsel caused him to default his IAAC
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claim, Guidry argues he defaulted his IAAC claim because Texas requires a
petitioner to bring his habeas petition concurrently with his direct appeal. See
Tex. Code. Crim. Proc. art. 11.071, § 4. However, Guidry did not
make this argument in the district court, and, as noted above, “a contention
not raised by a habeas petitioner in the district court cannot be considered for
the first time on appeal.” Johnson, 930 F.2d at 448. Accordingly, we deny
Guidry a COA on this claim.
3.
Third, and finally, Guidry argues that his trial counsel was
constitutionally deficient. He contends that reasonable jurists would debate
the correctness of the district court’s denial of relief. The State responds
that Guidry’s ineffective assistance of counsel claim is procedurally barred.
Relying on the Martinez exception, Guidry replies that the ineffectiveness of
his state habeas counsel (IASHC) provides cause to overcome the procedural
default of his ineffective assistance of trial counsel (IATC).
When we have applied Martinez in the COA context, we have held
that “to succeed in establishing cause, the petitioner must show (1) that his
claim of ineffective assistance of counsel at trial is substantial—i.e., has some
merit—and (2) that habeas counsel was ineffective in failing to present those
claims in his first state habeas proceeding.” Garza v. Stephens, 738 F.3d 669,
676 (5th Cir. 2013) (citing Martinez,
566 U.S. at 14). Mindful that the COA
inquiry is “not coextensive with a merits analysis,” we limit our examination
to a threshold inquiry of the underlying merits. See Buck v. Davis,
137 S. Ct.
759, 773–74 (2017). Ineffective assistance of counsel occurs when counsel’s
performance was deficient and the petitioner was prejudiced by the deficient
performance. Strickland,
466 U.S. at 687. “When a convicted defendant
complains of the ineffectiveness of counsel’s assistance, the defendant must
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show that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 687–88.
Here, the district court applied Martinez and properly held that
Guidry did not show cause to excuse procedural default because he did not
demonstrate that his ineffective assistance of trial or state habeas counsel
claims were substantial. The district court also denied a COA. Jurists of
reason could not debate the district court’s conclusion. Guidry cannot show
cause because his state habeas counsel was not ineffective for failing to raise
a meritless IATC claim.
a.
First, Guidry argues that trial counsel was ineffective for failing to
argue that Mary Gipp’s testimony that Guidry killed Farah was
unconstitutional hearsay. To the contrary, the record is replete with
“extensive efforts” by trial counsel “to preclude, or at least limit, Gipp’s
testimony.” As the district court catalogued, trial counsel filed a writ of state
habeas corpus to prevent retrial based on Gipp’s testimony. Trial counsel
also tried to remove the prosecution to federal court. At pre-trial hearings,
trial counsel discussed limiting Gipp’s testimony and secured the State’s
agreement that none of the excluded hearsay evidence would be admitted
under any alternate theory with one exception. Moreover, at trial, trial
counsel objected throughout Gipp’s questioning and persistently objected
during the State’s questioning about Gipp’s statements to her brother.
To be sure, trial counsel could have taken other action, such as asking
for a mistrial or a limiting instruction. But Strickland does not require trial
counsel to take every possible step. Based on our review of the record, we
agree with the district court that Guidry cannot overcome the procedural bar
because his ineffective assistance claim based on trial counsel’s handling of
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Gipp’s testimony lacks merit. No jurist of reason would find the district
court’s conclusion debatable. Thus, we deny a COA on this claim.
b.
Second, Guidry argues that his trial counsel at both his first and
second trials were ineffective in their handling of defense expert Dr. Basinger
and his testimony. Before the first trial, Guidry retained Dr. Basinger to
investigate the impact of Guidry’s substance abuse. During cross-examination at the first trial, Dr. Basinger said Guidry told him that he shot
Farah twice in the head. The State presented that testimony in Guidry’s
second trial.
Guidry states that, “but for [his first] trial counsel’s ineffectiveness,
the State could not have called Dr. Basinger in its case in chief.” He argues
that such ineffectiveness in his first trial tainted his second trial. Even if we
assume that Guidry’s first trial counsel was ineffective for putting Dr.
Basinger on the stand, Guidry points to no clearly established law that
ineffective assistance in a reversed trial can justify habeas relief from
conviction in a second trial. In habeas proceedings, AEDPA governs. Under
§ 2254(d)(1), a state court’s decision is “contrary” to clearly established
federal law if it either “applies a rule that contradicts the governing law set
forth in [the Supreme Court’s] cases” or reaches a different result than a
relevant Supreme Court precedent on facts that are “materially
indistinguishable.” Williams, 529 U.S. at 405–06. Here, Guidry cites only
federal-circuit-court and state-court cases. Even assuming these cases are on
point—and they are not— Guidry’s argument fails because he cannot show
that jurists of reason would debate that there is no clearly established law as
determined by the Supreme Court that supports his position.
Guidry also argues that trial counsel at his second trial was ineffective
in failing to call his first trial counsel to impeach Dr. Basinger. As the
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Supreme Court has recognized, “it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.” Strickland, 466 U.S.
at 689. “[T]he purpose of the effective assistance guarantee of the Sixth
Amendment is not to improve the quality of legal representation,” but “to
ensure that criminal defendants receive a fair trial.”
Id. Thus, “the
performance inquiry must be whether counsel’s assistance was reasonable
considering all the circumstances.”
Id. at 688.
Here, Guidry argues that a single decision by trial counsel not to call
his first trial counsel was deficient performance. But Guidry does not support
his claim with evidence sufficient to “overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (quotations omitted). Moreover, trial counsel took
several actions to prevent the State from using Dr. Basinger’s testimony in
the second trial. Trial counsel sought to exclude Dr. Basinger’s testimony
under Fifth, Sixth, and Fourteenth Amendment theories, as well as under the
attorney-client privilege. Further, during a pre-trial hearing, trial counsel
cross-examined Dr. Basinger and argued to limit the scope of his testimony.
We agree with the district court that trial counsel “made repeated, and
zealous, efforts to exclude Dr. Basinger’s testimony.” Viewed in light of all
the circumstances, no jurist of reason could debate the district court’s finding
that trial counsel’s efforts met the objective standard of reasonableness.
Lastly, Guidry argues that his counsel at his second trial had a conflict
of interest and therefore failed to argue that his counsel at his first trial were
ineffective in putting Dr. Basinger on the stand. To establish ineffective
assistance of counsel based on a conflict of interest, Guidry must show “that
an actual conflict of interest adversely affected [his] counsel’s performance.”
Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). Jurists of reason could
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not debate this conflict claim because counsel cannot be ineffective for failing
to raise a meritless claim.
Alvin Nunnery represented Guidry in his first trial and before his
second trial. As the district court recognized, counsel cannot be “expected
to argue his own ineffectiveness[.]” Clark v. Davis, 850 F.3d 770, 773 (5th
Cir. 2017). While Nunnery withdrew from the case prior to Guidry’s second
trial, his co-counsel, Loretta Muldrow, did not. Tyrone Moncriffe was
appointed and, together with Muldrow, actually represented Guidry at trial.
Guidry makes no claim that Moncriffe had an actual conflict of interest. Nor
does he point to clearly established law that the conflict of interest of counsel
who withdraws can form the basis of an ineffectiveness claim that justifies
habeas relief. But because of Muldrow’s continued representation, any
Strickland argument about trial counsel’s performance in the first trial could
implicate Muldrow’s own effectiveness. Assuming Muldrow had an actual
conflict of interest, Guidry cannot show that the conflict adversely affected
his counsel’s performance. As the district court found, Moncriffe and
Muldrow could not have made a successful Strickland argument with regard
to counsel’s representation in the first trial. In that trial, Dr. Basinger’s
testimony was redundant and therefore did not cause a reasonable probability
of a different result. Guidry’s counsel cannot be ineffective for failing to raise
a meritless Strickland claim. No jurist of reason could debate the district
court’s conclusion.
Accordingly, we agree with the district court that Guidry cannot
overcome the procedural bar because his ineffective assistance claim based
on trial counsel’s handling of Dr. Basinger and his testimony lacks merit. No
jurist of reason would find the district court’s conclusion that state habeas
counsel was not ineffective for failing to make a meritless IATC claim
debatable. Thus, we deny a COA on this claim.
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c.
Third, Guidry argues that trial and state habeas counsel were
ineffective because “they did not conduct an independent investigation of
the crime scene and other suspects.” Guidry asserts that trial counsel failed
to investigate fingerprint evidence that Guidry alleges came from Farah’s car.
He states that such evidence would have led trial counsel to Barlow, who
better matched eyewitness descriptions. Additionally, Guidry argues that
Barlow’s car matched the description of the getaway car, and that human
blood was found on one of the seats. Further, Guidry argues trial counsel
should have investigated the hypnosis of key witnesses, ballistics evidence,
and two suspects, William Planter and Bob Mann.
We note that the district court found that “the record shows that trial
counsel and their investigator made efforts to interview witnesses, develop
ballistics evidence, and prepare witnesses for trial.” But even if we found
trial counsel’s performance deficient, Guidry “must show that counsel’s
failures prejudiced his defense.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).
To establish prejudice, a “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694. The district court evaluated the materiality of all the
evidence Guidry alleges counsel was ineffective for failing to investigate in its
analysis of Guidry’s Brady claims and concluded that none of it was material.
“The materiality standard under Brady . . . is identical to the prejudice
standard under Strickland.” Johnson v. Scott,
68 F.3d 106, 109–10 (5th Cir.
1995). Thus, the district court concluded that “[f]or the same reasons that
[Guidry] has not overcome the procedural bar of his related Brady claim,”
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Guidry has not shown that his underlying ineffective assistance of trial
counsel claim “would have merited relief.” We cannot find this debatable.
First, Guidry asserts the getaway car was a “grey/black Corvette”
that belonged to Barlow. But as the record indicates, eyewitness descriptions
of the getaway care differed significantly from a “grey/black Corvette.”
Moreover, the Corvette Guidry describes actually belonged to a man named
Podhorksy, not Barlow. Second, Guidry argues that Barlow’s fingerprints
were found on Farah’s car. Again, the record indicates that the police report
did not identify the car from which these fingerprints were taken. Indeed,
the record suggests Barlow’s fingerprints came from Podhorsky’s Corvette,
not Farah’s car.
Third, Guidry argues that hypnosis of the eyewitnesses altered their
trial testimony. But as the district court found, the hypnosis was not
successful, did not produce an identification of Guidry, and did not alter the
eyewitness accounts. Fourth, Guidry asserts that ballistics evidence showed
the gun Guidry was arrested with was not the murder weapon. One ballistics
report concluded the gun Guidry had was the murder weapon; other reports
were inconclusive. But the gun also served to tie Guidry to Fratta—Fratta
took the gun from Farah, who had purchased it, and gave it to Guidry. And,
as the district court noted, other testimony and evidence established
Guidry’s role as the shooter.
Fifth, and finally, Guidry argues that there was evidence that Planter
and Mann were stronger suspects. But this evidence was weak and
speculative. On the other hand, the evidence against Guidry includes his
possession of Fratta’s gun and Dr. Basinger’s testimony that Guidry told him
he shot Farah. Viewed in light of all the evidence, there is no reasonable
probability that the result would have been different had trial counsel
investigated and presented this evidence. These ineffective assistance of
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counsel claims lack merit and cannot overcome the procedural bar. No jurist
of reason would find the district court’s conclusion on the issue of prejudice
debatable. Thus, we deny a COA on this claim.
d.
Fourth, Guidry argues that trial counsel was ineffective in
investigating and presenting Guidry’s mitigation case. As an initial matter,
defense counsel asserts that “[t]he district court explicitly recognized that
the mitigation phase of Guidry’s case was ‘too superficial and hurried.’”
This statement is a gross mischaracterization of the district court’s
conclusion. The district court actually wrote: “Through extensive
argument, Guidry describes his attorneys’ investigation into punishment
phase evidence as too superficial and hurried.” (emphasis added). This type
of blatant mischaracterization of the record is unacceptable and unbecoming
of lawyers before our court.
Instead, the district court catalogued extensive efforts by trial counsel
to investigate and gather evidence for the mitigation phase, despite time
limitations placed on them by the trial court. The defense team included an
investigator and a mitigation specialist. The team sought several
continuances and obtained at least one. Despite being denied additional
continuances, the defense team had already interviewed approximately thirty
witnesses prior to trial. Additionally, trial counsel worked with Gulf Region
Advocacy Center, which provided an attorney and investigators to work on
Guidry’s case. By the time of trial, trial counsel had interviewed
approximately forty-five witnesses and sought thirty separate sets of records
relevant to mitigation. Not satisfied with their investigation, trial counsel
persisted in seeking continuances. Trial counsel sought time to employ a
trauma specialist and a prison adaptation specialist. Trial counsel
successfully had Guidry examined by a neuropsychological expert, but
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decided not to call her as a witness. These efforts certainly meet, if not
exceed, the objective standard of reasonableness required of counsel.
Ultimately, trial counsel called four witnesses in mitigation. Guidry
now argues the mitigation presentation was “too superficial and hurried”
and that trial counsel should have done more. But we have said that a court
“must be particularly wary of argument[s] [that] essentially come[] down to
a matter of degrees. Did counsel investigate enough? Did counsel present
enough mitigating evidence? Those questions are even less susceptible to
judicial second-guessing.” Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir.
2000) (quotation omitted). Moreover, Guidry does not show that the
decision to only call four of the approximately forty-five witnesses was not a
strategic decision by counsel. See Strickland, 466 U.S. at 690–91 (stating that
“strategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.”). It is his burden to do
so. Thus, Guidry cannot overcome the presumption that his trial counsel
made such a “significant decision[] in the exercise of reasonable professional
judgment.” Strickland,
466 U.S. at 690.
Even assuming trial counsel was deficient, the district court clearly
held—and the record supports—that Guidry failed to show prejudice. To
establish prejudice, Guidry “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. “That requires a substantial, not just
conceivable, likelihood of a different result.” Cullen v. Pinholster,
563 U.S.
170, 189 (2011) (quotations omitted). “To assess that probability, we
consider ‘the totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the habeas proceeding’—and
‘reweig[h] it against the evidence in aggravation.’” Porter v. McCollum,
558
U.S. 30, 41 (2009) (quoting Williams, 529 U.S. at 397–98).
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Guidry does present new mitigation evidence on federal habeas
review, but it is weak or contradicted by other evidence. For example, an
expert witness stated that Guidry was exposed to, and the target of, “extreme
domestic violence.” But this assertion was flatly contradicted by Guidry’s
family members at trial. That expert also asserted that Guidry suffered from
lead poisoning and brain problems without any testing or empirical support.
Further, Guidry’s evidence about his family’s intergenerational poverty and
his parents’ difficult lives is not relevant to “an individualized determination
on the basis of the character of the individual and the circumstances of the
crime.” Tuilaepa v. California, 512 U.S. 967, 972 (1994).
On the other side of the ledger, the State’s evidence showed that
Guidry presents a serious future danger to others whether in or out of prison.
As the district court noted: (1) when Guidry was 16 he possessed weapons
and was arrested for breaking into cars; (2) he later fired a gun during the
course of a robbery; (3) he robbed a bank and was arrested after a police
chase; (4) he attacked jail officers; (5) he possessed weapons and assaulted
officers on death row; (6) he tried to escape death row; (7) on death row, he
took an officer hostage and threatened to kill her; and (8) he tried to stab a
hostage negotiator. This evidence doesn’t even include the circumstances of
Farah’s murder itself. In light of this strong aggravating evidence, Guidry
cannot meet the COA standard.
Because Guidry’s claim of ineffective assistance of counsel at
mitigation lacks merit under either the deficiency prong or prejudice prong
of Strickland, he cannot overcome the procedural bar. No reasonable jurist
would find the district court’s conclusion on this ineffective assistance claim
debatable. Accordingly, we deny a COA on this claim.
IV.
For the foregoing reasons, we deny a COA as to all of Guidry’s claims.
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