Druery v. Thaler

• Decision Date: 20 July 2011
• Docket Number: No. 10–70022.,10–70022.
• Parties: Marcus Ray Tyrone DRUERY, Petitioner–Appellant,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

647 F.3d 535

Marcus Ray Tyrone DRUERY, Petitioner–Appellant,
v.
Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 10–70022.

United States Court of Appeals, Fifth Circuit.

July 20, 2011.

[647 F.3d 536]

David A. Schulman (Court–Appointed), Law Office of David A. Schulman, Austin, TX, for Petitioner–Appellant.

[647 F.3d 537]

Leslie Katheryn Kuykendall, Asst. Atty. Gen., Postconviction Lit. Div., Austin, TX, for Respondent–Appellee.Appeal from the United States District Court for the Southern District of Texas.Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.EDITH H. JONES, Chief Judge:

Petitioner Marcus Ray Tyrone Druery (“Petitioner”) was convicted of capital murder and sentenced to death by a Texas court. After failing to obtain relief in state court or the United States Supreme Court, Petitioner sought a federal habeas petition, which the district court denied. The district court also denied Petitioner a certificate of appealability (“COA”). Petitioner now asks this court to grant him a COA pursuant to 28 U.S.C. § 2253. After reviewing the record and the parties' briefing, we conclude that the motion should be DENIED.

I. Background Statement of the Case

Petitioner was convicted of capital murder after a jury trial and sentenced to death by lethal injection. Petitioner's conviction and sentence were affirmed by the Texas Court of Criminal Appeals, Druery v. State, 225 S.W.3d 491 (Tex.Crim.App.2007), cert. denied, 552 U.S. 1028, 128 S.Ct. 627, 169 L.Ed.2d 404 (2007), after which Petitioner sought state habeas relief. After failing to obtain relief in the state courts, Ex parte Druery, 2008 WL 748479 (Tex.Crim.App. Mar.19, 2008), Petitioner filed for federal habeas relief, which the district court denied on July 26, 2010. Druery v. Thaler, 2010 WL 2991066 (S.D.Tex. July 26, 2010). The district court also held that Petitioner was not entitled to a COA. Id. at *12. Petitioner now appeals, requesting a COA from this court.

Factual Background

Since the key facts of this case are presented in the district court opinion, Druery v. Thaler, supra, only a brief summary is required here.

Petitioner was convicted of murdering Skyyler Browne, a fellow student at Texas State Technical College in Waco, Texas. Before the murder, Petitioner had asked Browne to travel with him to Bryan, Texas. Although Browne initially hesitated, he eventually agreed to go. After an evening of partying in Bryan, Petitioner, Browne, and two other individuals drove to a stock pond on a rural property owned by Petitioner's family. While Browne was standing near the pond, Petitioner held a gun within six inches of Browne's head and fired. As Browne's body fell, Petitioner fired a second shot into Browne's neck, and then a third shot as Browne lay on the ground. Petitioner returned to the vehicle in which the group arrived, carrying with him Browne's cell phone, money, marijuana, and gun. Joquisha Pitts, who was present that evening, later informed the police about the murder.

After trial, the jury found Petitioner guilty of capital murder for killing Browne during the course of robbing or attempting to rob him. During the penalty phase, the jury found beyond a reasonable doubt that there is a probability that Petitioner would commit criminal acts of violence that would constitute a continuing threat to society. The jury also found that the mitigating evidence presented by defense counsel was insufficient to merit a life sentence. Accordingly, the trial court sentenced Petitioner to death.

[647 F.3d 538]

II. Standard for Certificate of Appealability

Under AEDPA, 28 U.S.C. § 2253(c)(2), a convict seeking a COA must make “a substantial showing of the denial of a constitutional right.” In Miller–El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), the U.S. Supreme Court clarified: “A petitioner satisfies this standard by demonstrating 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.” Id. at 327, 123 S.Ct. at 1034 (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Importantly, in determining this issue, we “view[ ] the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.2000). Under § 2254(d), when reviewing a claim adjudicated by a state court on the merits, we defer to the state court's decision regarding that claim, unless the decision “[is] contrary to, or involve[s] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... [is] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. (quoting 28 U.S.C. § 2254(d)(1) & (2)).

III. Discussion

Petitioner raises five claims on appeal of the district court's decision to deny him a certificate of appealability (“COA”). First, Petitioner raises an ineffective assistance of counsel claim because trial counsel declined a jury instruction on the lesser-included offense of murder. Second, Petitioner asserts ineffective assistance of counsel based on trial counsel's failure to investigate and plan a mitigation defense for the punishment phase. Third, Petitioner asserts that the penalty phase jury charge denied his due process rights and violated the Eighth Amendment because it did not inform the jury that Petitioner would automatically receive a life sentence if the jurors did not reach a unanimous verdict on one or both of the special issues. Fourth, the trial court deprived Petitioner of due process by not sua sponte instructing the jury on the lesser-included offense of murder. Fifth, the trial court violated Petitioner's Sixth and Fourteenth Amendment rights by not instructing the jury that the State bore the burden of proof to negate Petitioner's mitigation evidence.

A. INEFFECTIVE ASSISTANCE OF COUNSEL.

We review these claims of ineffective assistance of counsel under the familiar standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In order to prevail on his ineffective assistance claims, Petitioner must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness and that (2) there is a reasonable probability that prejudice resulted. See Bower v. Quarterman, 497 F.3d 459, 466 (5th Cir.2007) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674). Strickland itself calls for considerable deference in evaluating the reasonableness of the attorney's conduct. See Cullen v. Pinholster, –––U.S. ––––, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (counsel should be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment” (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674)). When our review is governed by AEDPA—as is the case

[647 F.3d 539]

here—our review of the state court's resolution of the ineffective-assistance-of-counsel claim is “doubly deferential”, id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1413, 173 L.Ed.2d 251 (2009)), since the question is “whether the state court's application of the Strickland standard was unreasonable.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). Importantly, “[t]his is different from asking whether defense counsel's performance fell below Strickland's standard,” because the “state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id. Consequently, “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 786. Rather, in order to obtain habeas relief, “a state prisoner 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.” Id. at 786–87.

In addition to this cumulation of deferential standards, we also recall the precise standard for a COA. Petitioner must demonstrate that “reasonable jurists could debate” whether the petition should have been resolved by the district court in a different manner or “that the issues presented were adequate to deserve encouragement to proceed further.” Barrientes, 221 F.3d at 772. With these standards in mind, we address each ineffective assistance claim in turn.

1. Counsel's Failure To Request Instruction On Lesser–Included Offense of Murder.

Under Texas law, a person is guilty of capital murder if he commits murder as defined by Section 19.02(b)(1) and he intentionally does so “in the course of committing or attempting to commit ... robbery.” Tex. Penal Code § 19.03(a)(2). Petitioner contends that his trial counsel, Craig Washington (“Washington”), was ineffective because he refused to agree to a lesser-included offense instruction for first-degree murder.

In this case, the state habeas court found that Washington's punishment theory of the case was that Druery did not intend to steal Browne's property at the time Petitioner killed Browne and, thus, Petitioner was not guilty of capital murder. The court relied, in part, upon Washington's sworn affidavit and hearing testimony expressing his conviction that the State would not be able to prove the aggravating element of robbery. Washington believed that if the jury “only had a choice of capital murder, then they would have no choice but to acquit him.” For this reason, Washington “specifically declined the opportunity to request a jury charge instruction on the lesser included offense of...