Allen v. Stephens

• Decision Date: 09 November 2015
• Docket Number: No. 14–70017.,14–70017.
• Citation: 805 F.3d 617
• Parties: Kerry Dimart ALLEN, Petitioner–Appellant, v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

805 F.3d 617

Kerry Dimart ALLEN, Petitioner–Appellant

v.William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 14–70017.

United States Court of Appeals, Fifth Circuit.

Nov. 9, 2015.

Seth Kretzer (argued), Law Offices of Seth Kretzer, Jonathan David Landers (argued), Houston, TX, for Petitioner–Appellant.

Tomee Morgan Heining, Asst. Atty. General (argued), Office of the Attorney General, Austin, TX, for Respondent–Appellee.

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

Before KING, DAVIS, and ELROD, Circuit Judges.

Opinion

JENNIFER WALKER ELROD, Circuit Judge:

Kerry Allen was convicted of capital murder and sentenced to death. After his direct appeal and state habeas petition proved fruitless, Allen filed a petition for habeas corpus under 28 U.S.C. § 2254 in the district court. During the pendency of his petition, Allen filed two motions asking the district court to give him funds to hire experts to assist him in developing his claims. The district court denied those requests and also denied relief on each of the claims that Allen raised in his petition. Allen has now requested that this court issue a certificate of appealability (COA), and he also appeals the district court's denial of his funding requests. We DENY a COA on Allen's claims and AFFIRM the district court's denial of Allen's funding requests.

I.

In 2000, the state of Texas charged Allen with capital murder for the death of Kienna Lashay Baker, the two-year-old daughter of Kimberly Renee Jones, the woman with whom Allen had been living. His case proceeded to a jury trial. The prosecution's evidence showed that Allen had lived with Jones and her four children, including the victim, for six months prior to the murder. Allen, then 40 years old, had told Jones, then 23 years old, that he was an evangelist preacher, and he watched Jones's children while she worked. Allen harshly disciplined the children, and the victim feared him. Indeed, all of the children soon became malnourished, sullen, and afraid.

On May 10, 2000, Allen called Jones while she was at work and told her to come home because of an emergency. Allen met Jones in the parking lot of their apartment, saying, “I didn't do anything to her.” Allen claimed that the victim had fallen from the toilet after he spanked her for wetting herself. After Jones entered the apartment, she saw the victim lying down in a bedroom wearing only a pair of boy's underwear. Her heart was not beating, and she had foamed at the mouth and nose. Near the victim lay an open jar of Vaseline, suggesting that Allen had sexually assaulted the victim.

Allen repeatedly told Jones not to call 9–1–1, insisting that he needed to “get away,” but Jones eventually called for help. When emergency personnel arrived, Allen hid himself and the other children behind a locked bedroom door. Allen fled through a window before police breached the door to the bedroom in which he had been hiding. Officers found two Bibles on the couch, both open to a passage about Jesus raising a girl from the dead.

The victim was later declared dead, and an autopsy concluded that she had died from blunt force trauma to her chest and abdomen. The autopsy also suggested that she had been anally raped after being beaten, and that the sexual assault contributed to her death. The medical examiner also noted fifty-six scars on the girl's body, in various degrees of healing, that indicated she had been physically abused many times in the past. Two days after the murder, Allen turned himself in to the police. Allen asserted that the victim's death was accidental, but he also said, “I should never have done it. My temper gets control.”

Allen's trial attorneys did not call any witnesses in the guilt/innocence phase of the trial. In closing arguments, the defense disputed that Allen had sexually assaulted the victim and argued that the prosecution had not met its burden to prove that Allen was the killer. The jury disagreed and convicted Allen of capital murder.

The trial then proceeded to the punishment phase, in which the jury would decide whether Allen would receive the death penalty by answering two special-issue questions: (1) whether Allen posed a future danger of violence; and (2) whether sufficient evidence mitigated against a death sentence. See Tex.Code Crim. P. Art. 37.071(2)(b)(1), 2(d)(1). From the prosecution's witnesses, the jury learned that years before the murder, Allen had pleaded guilty in Texas to two counts of felony sexual assault, and the probated sentence that he had received for that crime had been revoked because Allen failed to report to officers, did not participate in a court-ordered sex-offender program, and failed to pay fines. A few months after his release from that incarceration, he violated the terms of his parole and then fled to Louisiana. Allen was arrested nine years later, and he then served the remainder of his Texas sentence. After his release, Allen was negligent in updating his sex-offender status, and he also violated the terms of his release by failing to avoid children.

Allen's first wife, whom he had secretly dated while she was still a minor and against whom he had committed a misdemeanor assault, testified that Allen was an abusive liar who did not work. She also testified that she suspected Allen had sexually abused the children of a family with whom they had lived. While married to his first wife, Allen had an intimate relationship with a pre-teen girl at the church where he was employed as a youth minister. Allen's second wife testified that he was controlling, jealous, and angry. Allen had been convicted of assaulting her, and she testified that Allen had violently abused her. Another woman testified that Allen had sexually abused her two children. Finally, police officers testified about the neglected and abused condition of Jones's children.

The defense presented testimony showing that Allen claimed to have been the victim of physical and sexual abuse as a child, and as a result, Allen had poor coping mechanisms, low self-esteem, and insufficient life skills to handle stressful situations. The defense also showed that Allen had attempted suicide several times. Individuals who knew Allen testified that he was likeable, bright, trustworthy, and interested in religion. A psychologist testified that Allen would present a low risk of future violence. None of Allen's family were called to testify.

The jury answered the special-issue questions in a manner requiring imposition of a death sentence. Allen's appellate counsel raised fourteen claims on direct appeal, and the Texas Court of Criminal Appeals affirmed. Allen v. State, 108 S.W.3d 281 (Tex.Crim.App.2003). The United States Supreme Court denied certiorari. Allen v. Texas, 540 U.S. 1185, 124 S.Ct. 1405, 158 L.Ed.2d 90 (2004).

During the pendency of direct review, Allen filed a state habeas application through appointed counsel, raising 37 grounds for relief. The Court of Criminal Appeals adopted the recommendation of the state habeas court and denied relief. Ex Parte Allen, No. WR–73586–01, 2010 WL 1709947 (Tex.Crim.App. Apr. 28, 2010).

Allen then sought federal habeas review, and the district court appointed counsel for Allen. Allen's amended § 2254 petition raised the following grounds for habeas relief:

1: The Texas death penalty scheme violates the Sixth, Eight, [sic ] and Fourteenth Amendments to the United States Constitution by not requiring the state to prove aggravating factors relevant to the mitigation special issue beyond a reasonable doubt before the jury may sentence the defendant to death....

2: The State of Texas, by requiring individual counties to fund the prosecution of capital cases, injects arbitrariness into the selection of which cases will be tried as capital cases; this violates the Eight [sic ] and Fourteenth Amendments to the United States Constitution....

3: The Texas 12–10 Rule, and the law prohibiting jurors from being informed that their individual vote that life is the proper sentence will lead to a life sentence, violates the Eighth and Fourteenth Amendment [sic ] as construed by Mills v. Maryland and McKoy v. North Carolina ....

4: The State trial court violated petitioner's Sixth and Fourteenth Amendment rights to an impartial jury and due process by denying his challenge for cause against [a prospective juror]....

5: Petitioner's trial counsel were ineffective for failing to subpoena witnesses who were key to the mitigation special issue....

The district court denied Allen's two requests for expert witness funding, which Allen sought to develop his ineffective-assistance-of-trial-counsel claim.

After receiving supplemental briefing regarding the impact of Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), the district court denied claims 1–3 on the merits, concluding that Allen had failed to meet the standard set forth in § 2254(d). The district court concluded that Allen had procedurally defaulted his jury-selection claim by failing to assert an objection at trial, and also that, for the same reason, Allen had failed to sufficiently develop the record on that claim. Finally, because Allen did not raise his ineffective-assistance claim in the state courts, and because the district court concluded that Allen could not avoid § 2254(b)(1)'s procedural bar to review of unexhausted claims, the district court concluded that it need not reach the merits of the ineffective-assistance claim, and it denied Allen's re-urged expert-funding request. In the alternative, the district court concluded that Allen's ineffective-assistance claim lacked merit. The district court, therefore, denied relief, and it also denied a COA sua sponte. Allen then filed a motion for a COA in this court, asking for a COA as to the district court's resolution of his five grounds for habeas relief and its denials of Allen's motions under 18 U.S.C. § 3599(f...