666 F.3d 340 (5th Cir. 2011), 08-70023, Chester v. Thaler

Docket Nº:08-70023.
Citation:666 F.3d 340
Opinion Judge:EDITH H. JONES, Chief Judge:
Party Name:Elroy CHESTER, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
Attorney:Susan Carol Orlansky (argued) (Court-Appointed), Jeffrey Marc Feldman (Court-Appointed), Feldman Orlansky & Sanders, Anchorage, AK, for Petitioner-Appellant. Matthew Dennis Ottoway, Asst. Atty. Gen., Austin, TX, for Respondents-Appellees.
Judge Panel:Before JONES, Chief Judge, and STEWART and DENNIS, Circuit Judges. DENNIS, Circuit Judge, dissenting:
Case Date:December 30, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 340

666 F.3d 340 (5th Cir. 2011)

Elroy CHESTER, Petitioner-Appellant,

v.

Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 08-70023.

United States Court of Appeals, Fifth Circuit.

December 30, 2011

Page 341

Susan Carol Orlansky (argued) (Court-Appointed), Jeffrey Marc Feldman (Court-Appointed), Feldman Orlansky & Sanders, Anchorage, AK, for Petitioner-Appellant.

Matthew Dennis Ottoway, Asst. Atty. Gen., Austin, TX, for Respondents-Appellees.

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

Before JONES, Chief Judge, and STEWART and DENNIS, Circuit Judges.

EDITH H. JONES, Chief Judge:

Petitioner Elroy Chester (" Petitioner" ) confessed and pled guilty to capital murder and was sentenced to death by a Texas

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jury. His conviction and sentence were affirmed on direct appeal. He sought post-conviction relief from the Texas courts, alleging that he is mentally retarded, and his execution will therefore be unconstitutional. The Texas trial court and Court of Criminal Appeals determined that Chester was not mentally retarded. Petitioner then applied for a writ of habeas corpus via 28 U.S.C. § 2254. The federal district court denied relief, and he now appeals. The state's legal conclusions neither contradicted nor unreasonably applied federal law, nor were its factual conclusions unreasonable in light of the evidence presented in the state proceedings. See 28 U.S.C. § 2254(d)(1)-(2); Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.2002). We therefore AFFIRM.

BACKGROUND

In 1997 and 1998, Petitioner embarked on a criminal spree too long and too gruesome to recount here in its full detail. He perpetrated at least five burglaries and five non-lethal assaults; worse, he left in his wake the victims, ranging from ten to eighty-seven years old, of at least five murders and three rapes. Petitioner's career as a serial murderer and rapist culminated in the events of February 6, 1998, when his final victim, Willie Ryman III, discovered Petitioner raping his nieces, and Petitioner shot and killed Ryman.

On that evening, Erin DeLeon was at home alone with her small child. After cutting the telephone wires and tampering with the security light between the garage and house, Petitioner entered the house through the unlocked kitchen door, wearing a ski-mask and gloves. With a gun to the back of Erin's head and her ponytail in his hand, he led her from room to room to retrieve valuables. He then brought her to the living room and ordered her to turn off the lights and draw the blinds. When Claire DeLeon, Erin's sister, returned to the home with her boyfriend Tim, Petitioner demanded their money and jewelry, then ordered them into the bathroom. Alone again with Erin, he forced her to undress, then blindfolded her with duct tape. He then ordered Tim to return, forced him to strip as well, and restrained him with duct tape. Finally he ordered Claire to enter and strip and blindfolded her with duct tape. He raped Erin and forced other sex acts, holding a gun against her head and threatening to " blow her head off" if she resisted. He repeated this threat when he forced Claire to perform sex acts.

Willie Ryman III, the DeLeon sisters' uncle, arrived at this scene with his girlfriend Marcia Sharp, who stayed in the car while Ryman approached the house. Petitioner went to the back door and murdered Ryman with a single shot. He then approached the car, where he began shooting at its locked doors. He fired two more shots into the car before fleeing the scene.

Chester was quickly implicated and captured. He confessed to Ryman's murder and led police to the murder weapon. Although he lied to the police about where it was hidden, and about the fact that it was loaded, apparently trying to mount a violent escape, he did not succeed. He also confessed to a host of other horrific crimes. After pleading guilty to capital murder, he was sentenced to death by a Texas jury. His conviction and sentence were affirmed on direct appeal. Chester sought post-conviction relief at the state and federal levels on the grounds that he could not be executed because he is mentally retarded. Relying on the United States Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the execution of the mentally retarded violates the Eighth Amendment), and on the factors set forth in

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Ex Parte Briseno, 135 S.W.3d 1, 5 (Tex.Crim.App.2004) (implementing Atkins ), the use of which our court has repeatedly blessed, the Texas trial court and Texas Court of Criminal Appeals (" TCCA" ) determined that Chester was not mentally retarded. Ex parte Chester, 2007 WL 602607 (Tex.Cr.App.2007) (unpublished) (" Chester I " ).

The TCCA's detailed and thorough opinion concluded that Chester met two of the three necessary requirements for a finding of mental retardation— significant limitations in intellectual functioning and deficiencies that appeared early in life— but that he did not show " significant deficits in adaptive behavior." Id. at *3-*4. It cited Briseno for the proposition " that courts should use the definitions of mental retardation as stated by the American Association of Mental Retardation" and for a suggested series of questions which would assist in determining the existence of deficits in adaptive behavior. Id. at *1. It acknowledged that these suggested questions were " intended only to be guidelines for the trial courts" to help them make the mental retardation determination required by Atkins " until the Legislature was to ... establish conclusively both the substantive laws and the procedures that would bring our codes into compliance with the mandate issued by Atkins. " Id. at *3. The legislature had not intervened, however, and so the Briseno factors remained the only legal guidance for lower Texas courts in applying the AAMR definition and determining the presence or absence of " significant deficits in adaptive behavior." Id.

The TCCA concluded that the trial court's finding that Petitioner failed to demonstrate significant deficits in adaptive behavior was supported by the evidence. The trial court had heard Petitioner's evidence regarding his 1987 " Vineland test," on which he achieved a Vineland Adaptive Behavioral Scales score (" VABS" ) which would typically indicate mild mental retardation. It also, however, heard evidence regarding Chester's classification during his school years as " learning disabled" (rather than retarded), and found more credible the testimony of a diagnostician who testified that Petitioner's school records were accurate and that a " learning disability" designation does not imply mental retardation. It also noted the planned nature of Petitioner's crimes, both the capital crime and other crimes, in which Petitioner took a great many steps to avoid detection. It noted that he acted independently rather than as an accomplice. The trial court considered conflicting testimony regarding Petitioner's ability to converse coherently, and found more credible the testimony of the expert who testified that Petitioner could converse coherently on a wide range of topics. It found that Petitioner could lie and hide facts to protect himself, as evidenced by his scheme to mislead investigators in order to obtain his loaded gun while in custody. The TCCA therefore affirmed the trial court's factual finding that Petitioner failed to demonstrate significant deficits in adaptive behavior by a preponderance of the evidence. Id. at *9.

Petitioner then applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, now alleging (as he must) not only his own mental retardation and the resulting unconstitutionality of his sentence, but that the TCCA's determination was contrary to and an unreasonable application of the holding of Atkins, and that the TCCA's decision was based on an unreasonable finding of fact in light of the record before it. The federal district court denied relief, and he appealed.

DISCUSSION

I. AEDPA Review

28 U.S.C. § 2254(d) bars relitigation of any claim " adjudicated on the merits"

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in state court, subject only to exceptions in Section 2254(d)(1) and (d)(2). Harrington v. Richter, ---U.S. ----, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Section 2254(d)(1) contains two overlapping but distinct exceptions: an " unreasonable application" prong and a " contrary to" prong. See Terry Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). Federal courts may not grant habeas relief pursuant to § 2254(d)(1) " unless the adjudication of the claim ... 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." 28 U.S.C. § 2254(d)(1). In this context, " clearly established federal law ‘ refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.’ " Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir.2001) (quoting Terry Williams, 529 U.S. at 412, 120 S.Ct. at 1523).

Section 2254(d)(2) excepts from the general bar on relief those cases in which the adjudication of the claim " 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)(2). A reviewing federal court presumes that the state court's factual findings are sound unless the petitioner rebuts the " presumption of correctness by clear and convincing evidence." Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d...

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