Carty v. Thaler

Decision Date17 September 2009
Docket NumberNo. 08-70049.,08-70049.
Citation583 F.3d 244
PartiesLinda Anita CARTY, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Lyons, Joshua Bryant Nix, Baker Botts, L.L.P., Houston, TX, Colin Peter Marks, San Antonio, TX, for Petitioner-Appellant.

Katherine D. Hayes (argued), Office of Atty. Gen., Postconviction Lit. Div., Austin, TX, for Respondent-Appellee.

Donald Francis Donovan, Debevoise & Plimpton, New York City, for Amicus Curiae.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, DENNIS and OWEN, Circuit Judges.

KING, Circuit Judge:

A Texas jury convicted and sentenced to death petitioner-appellant Linda Anita Carty for the intentional murder of Joana Rodriguez during the course of a kidnaping of Rodriguez and her newborn son. The Texas Court of Criminal Appeals affirmed the conviction and sentence and denied post-conviction relief. Carty then filed this federal habeas petition under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. The district court denied substantive relief, denied Carty's request for an evidentiary hearing, and dismissed her case. It then granted a certificate of appealability ("COA") for two substantive claims. The first is whether trial counsel rendered ineffective assistance by failing to notify Carty's ostensible common-law husband of his marital privilege not to testify. The second is whether trial counsel rendered ineffective assistance by failing to present additional mitigation evidence in the punishment phase. The district court also granted a COA for the procedural issue that prevented adjudication of those substantive claims—whether Carty exhausted state court remedies.1 Carty's appeal is now before us. We affirm the district court's judgment denying Carty relief.

I. FACTS AND PROCEDURE

The district court's exhaustive opinion more than adequately documents the factual background and procedural development of this case. See Carty v. Quarterman (Carty Federal Habeas), No. 06-614, slip op. at 4-35 (S.D.Tex. Sept. 30, 2008). Here, we revisit only those facts relevant to our disposition of the presently appealed issues and claims.

Carty, a foreign national citizen of St. Kitts and thus the United Kingdom, was indicted by a Texas grand jury for the kidnaping and intentional murder of Rodriguez. Carty planned the kidnaping of Rodriguez and her baby, facilitated its execution, and murdered Rodriguez on May 16, 2001. Although Carty originally hired her own attorney, when her family could not pay his fees, the Texas trial court appointed Jerry Guerinot and Windi Akins to represent her (collectively, "trial counsel"). Trial counsel met Carty for the first time approximately two weeks before jury voir dire. They hired investigator John Castillo and psychologist Dr. Jerome Brown to aid Carty's defense. Investigator Castillo began his work about two weeks before trial.

The trial proceeded in two phases: guilt/innocence and punishment. The evidence presented in the guilt/innocence phase revealed the following events. Approximately three years before Rodriguez's murder, Carty started living with Jose Corona, and the parties now dispute whether they entered into a common-law marriage. Corona testified that they lived together up until two weeks before the murder, and, during that period, they represented to others that they were husband and wife, as discussed in greater detail below. While they lived together, Carty, who had a grown daughter, Jovelle Carty, told Corona three times that she was expecting another child, but she did not allow him to attend her prenatal doctor's visits. In the first two instances, Carty eventually told him that she had miscarried. Corona believed that Carty lied about the pregnancies. At the beginning of May 2001, the month during which Rodriguez was murdered, Corona decided to leave Carty, in part because of her lies about being pregnant. When he told her that he was leaving, Carty again claimed that she was pregnant. Corona, however, did not believe her and moved out. Throughout May, Carty repeatedly called Corona to reconcile their relationship, claiming that she was pregnant and that her due date was in the middle of May. On May 15, she called multiple times and told him she was going to have a baby boy the next day, May 16. She called again on May 16— after she had murdered Rodriguez—and confirmed that she was going to have the baby. When Corona saw Carty later that day at the police station, after she had been arrested for Rodriguez's kidnaping and murder, he asked her if the baby had been born already, and she told him "not yet." Corona eventually found out that Carty had never been pregnant.

Other witnesses' testimonies revealed Carty's activities between Corona's departure and Rodriguez's murder. In early May, Carty began moving her things to a storage unit because the apartment lease was due to terminate at the end of the month. Sherry Bancroft, an employee at Public Storage, testified that Carty had an existing storage unit in their facility and rented a second one on May 10. Two days later, she rented a third unit. That day, she told Bancroft that she was already in labor and was expecting to give birth to a baby boy that day. To Bancroft, however, Carty did not look like she was in labor. Carty returned to the storage facility on May 15 in a Pontiac Sunfire. At that point, she told Bancroft that she had birthed a son and that he was at home with his father. She retrieved a baby blanket and two baby outfits from one of her storage units.2

Numerous witnesses testified about the kidnaping and murder that occurred the next day, May 16. Early in the morning on May 16, four men—three of whom were later identified as Christopher Robinson, Carliss "Twin" Williams, and Gerald "Baby G" Anderson—broke into the apartment where Rodriguez lived with her husband (Raymond Cabrera), her infant son, and her husband's cousin (Rigoberto Cardenas). Cardenas testified that the men demanded drugs and money. While the men were in the house, Cardenas heard a cell phone ring. One of the men answered it and said: "We are here inside," and "Do you want it?" The man on the phone then yelled: "She's outside, we got to go." The intruders tied up Cabrera and Cardenas and, now joined by Carty, kidnaped Rodriquez and her baby.

The testimony of Robinson and other individuals with first-hand knowledge of the kidnaping and murder evidenced that Carty planned and orchestrated the crimes because she wanted Rodriguez's baby. On Sunday, May 13, Carty began recruiting a group of people to help her abduct the baby. She asked Robinson, Josie Anderson, and Marvin "Junebug" Caston to assist in a "lick"—a burglary wherein they would break into an apartment and steal what she claimed was approximately 200 pounds of marijuana. Carty brought them to her apartment, which was in the same complex as and in close proximity to Rodriguez's apartment. From Carty's apartment, they scoped out Rodriguez's apartment and familiarized themselves with the standard layout of apartments in the complex. Carty told them that Rodriguez was pregnant with Corona's child; that "I'm going to get the baby. I'm going to ... take the baby from them.... I'm going to cut the baby out of the lady and take the baby"; and that "she needed the baby, needed a baby, needed a baby, needed their baby, that she needed the lady's baby." She repeated similar statements throughout the planning of the crime. Because Josie Anderson, Robinson, and Caston were only interested in stealing drugs and not in kidnaping Rodriguez's baby, the plan was for them to secure the drugs while Carty dealt with Rodriguez.

On the night of Sunday, May 13, the group went to the apartment complex to conduct the lick but soon aborted their attempt. Afterwards, Josie Anderson and Caston decided that they would no longer participate. Carty nonetheless persisted in her plan, and on Tuesday, May 15, she convinced Robinson, his friend Williams, and Josie's cousin Gerald Anderson to participate in the lick. The new plan was for Carty to wait outside the apartment, and the men would bring Rodriguez to her after they secured the drugs for themselves. After midnight on May 16, 2001, Carty, Robinson, Williams, and Gerald Anderson left 6402 Van Zandt Street, a house that served as the group's staging area. Carty drove her car and served as a lookout. After parking in a lot near the apartments, she called Gerald Anderson and told him to start the lick. The men kicked in the door of the apartment and tied up and beat Cabrera and Cardenas. Carty called Anderson again and told him that she was coming inside. When she entered the apartment, Robinson lied and told her that they had killed the men (to prevent her from doing it). Robinson then left the apartment. A few minutes later, Robinson saw Carty leave the apartment with the baby. Williams and Gerald Anderson followed with Rodriguez and put her in the trunk of Robinson's car. They left the apartment complex, met at a storage unit, and transferred Rodriguez to the trunk of Carty's car. Both cars then returned to Van Zandt Street.

At Van Zandt Street, Carty demanded that the men tape up Rodriguez. Robinson and Gerald Anderson refused, but Williams complied. He then closed Rodriguez in the trunk of Carty's car. At this point, the men were angry because they had obtained little drugs or money in the lick; they believed that Carty had set them up for a kidnaping that they did not want to commit. Hearing the argument, Zebediah Combs, who lived at 6402 Van Zandt Street and did not participate in the lick, came outside and demanded that everybody be quiet. Carty said to him, "I got my baby. I got my baby." After seeing Rodriguez in the...

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