715 Fed.Appx. 380 (5th Cir. 2017), 17-70009, Washington v. Davis

• Docket Nº: 17-70009
• Citation: 715 Fed.Appx. 380
• Opinion Judge: PER CURIAM:
• Party Name: Willie Terion WASHINGTON, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
• Attorney: David Arthur Lane, Esq., Killmer, Lane & Newman, L.L.P., Denver, CO, James Charles Lohman, Austin, TX, for Petitioner-Appellant Ellen Stewart-Klein, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, Tina J. Miranda, Assistant Attorney General, Office o...
• Judge Panel: Before CLEMENT, OWEN, and GRAVES, Circuit Judges.
• Case Date: December 20, 2017
• Court: United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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Page 380

715 Fed.Appx. 380 (5th Cir. 2017)

Willie Terion WASHINGTON, Petitioner-Appellant

v.

Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee

No. 17-70009

United States Court of Appeals, Fifth Circuit

December 20, 2017

Revised February 20, 2018

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.

Page 381

Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:07-CV-721

David Arthur Lane, Esq., Killmer, Lane & Newman, L.L.P., Denver, CO, James Charles Lohman, Austin, TX, for Petitioner-Appellant

Ellen Stewart-Klein, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, Tina J. Miranda, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent-Appellee

Before CLEMENT, OWEN, and GRAVES, Circuit Judges.

OPINION

PER CURIAM:^[*]

Petitioner, Willie Washington, seeks a Certificate of Appealability ("COA") on two ineffective assistance of trial counsel ("IATC") claims, which the district court concluded were procedurally barred. Washington also argues the district court prevented him from having a "meaningful opportunity" to demonstrate cause for his procedural default by denying his petition for discovery and a hearing. We are persuaded that his petitions are meritorious.

I.

Washington was convicted of capital murder and sentenced to death in 1986 by a Texas jury. The conviction and sentence were affirmed in 1989 by the Texas Court of Criminal Appeals ("TCCA") on direct appeal.

Then Washington commenced collateral proceedings. During his now two-decades-long pursuit of habeas relief, Washington has raised numerous claims on habeas petitions before both state and federal courts. But the present motion concerns only two IATC claims. In the first, Washington challenges his trial counsel’s failure to raise a timely Batson claim despite evidence of the violation ("IATC-Batson "). In the second, Washington argues his trial counsel failed to conduct a competent investigation into his background, which would have unearthed important sentence mitigation evidence ("IATC-sentence").

Neither of the claims has been adjudicated on the merits. The IATC-Batson claim was rejected by the TCCA as procedurally barred under Texas’s abuse of the writ statute. Although Washington’s state habeas counsel raised an initial IATC claim regarding trial counsel’s failure to

Page 382

investigate mitigating evidence, he significantly altered his IATC-sentence claim when he (with the assistance of new counsel) raised it in his federal habeas petition. Accordingly, the district court declined to review both.

We initially agreed with the court’s decision. Washington v. Thaler, 464 Fed.Appx. 233 (5th Cir. 2012). But, after our ruling, the Supreme Court decided Trevino v. Thaler, which established a new basis for overriding a procedural default in Texas criminal proceedings: ineffective assistance of habeas counsel. 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). The Supreme Court granted Washington’s certiorari petition and remanded for further consideration in light of Trevino . This court then granted a COA and remanded to the district court to review his IATC claims anew.

In his supplemental briefing ordered by the district court, Washington only raised the IATC-Batson and IATC-sentence claims. He sought 90 days of discovery and "an opportunity to plead allegations relating to cause for the procedural default" on those claims. Such discovery would allow him to "acquire information about and plead with more specificity" his state habeas counsel’s ineffectiveness.

But he also noted evidence of deficiency already in the record. Regarding the adequacy of counsel’s representation, Washington argued that "[s]tate habeas counsel appears to have conducted no investigation into trial counsel’s" failure to raise a Batson objection. He noted this failure prevented him from raising an IATC claim that this court found to be potentially meritorious. See

Washington, 464 Fed.Appx. at 239-40 (noting that there was sufficient evidence at trial to raise a prima facie Batson claim and that "[t]he failure to raise a Batson challenge at voir dire may have been ineffective assistance"). Regarding the IATC-sentence claim, Washington conceded that his state habeas counsel raised the claim initially. But he contended that this challenge relied exclusively on an affidavit Washington had signed, suggesting his state habeas counsel’s challenge was based on insufficient efforts.

Turning to prejudice, Washington noted that federal habeas counsel had been able to unearth information that supported the merits of both IATC claims. The IATC-Batson claim was supported by the discovery of the prosecutor’s jury questionnaires from the trial, which appeared to be racially coded.¹ Federal habeas counsel also discovered that the same prosecutor had been found guilty of a Batson violation in another proceeding, wherein he made similar...