Blue v. Thaler

• Decision Date: 22 December 2011
• Docket Number: No. 10–70025.,10–70025.
• Citation: 665 F.3d 647
• Parties: Carl Henry BLUE, Petitioner–Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

665 F.3d 647

Carl Henry BLUE, Petitioner–Appellant,

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

No. 10–70025.

United States Court of Appeals, Fifth Circuit.

Dec. 22, 2011.

John Edward Wright, Law Office of John E. Wright, P.C., Huntsville, TX, Donald Vernay (argued), Rio Rancho, NM, for Petitioner–Appellant.

Fredericka Searle Sargent, Asst. Atty. Gen. (argued), Postconviction Lit. Div., Office of the Attorney General, Austin, TX, for Respondent–Appellee.

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

Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In a habeas proceeding under 28 U.S.C. § 2254, petitioner Carl Henry Blue raised twenty-one separate challenges to his death sentence. The district court denied relief. Blue seeks a certificate of appealability for five issues. We will deny the request.

I.

In 1994 a Texas jury found Carl Henry Blue guilty of capital murder, and Blue received a death sentence. The Texas Court of Criminal Appeals (“the CCA”) affirmed Blue's conviction on direct appeal in 1996 and denied his first state habeas application in 1999. The following year, the federal district court vacated Blue's death sentence on the ground that the State's expert witness had testified during the punishment-phase trial that Blue was more likely to be a future danger to society because he is black. A second punishment-phasee e trial took place in 2001. Once again the jury's answers to the special issues led the district court to sentence Blue to death. The CCA affirmed Blue's new sentence on direct appeal in 2003 and denied his second state habeas application in 2004. Blue timely filed a skeletal federal habeas petition in 2005. The district court then promptly stayed and abated the proceedings, enabling Blue to assert a claim under Atkins v. Virginia¹ in a third state habeas application. The CCA determined that Blue had not made out a prima facie case for Atkins relief and dismissed his third application as an abuse of the writ in 2007. Blue then returned to federal court, where the district court denied Blue's petition in its entirety in August 2010.

II.

Blue seeks to appeal the district court's determinations that he is not entitled to habeas relief on (1) his claim under Atkins v. Virginia that his mental retardation bars his execution; and (2) various claims that the jury instructions at his punishment-phase trial violated the Eighth Amendment. Before a § 2254 petitioner can appeal, he must obtain a certificate of appealability (“COA”).² We will issue a COA only if the petitioner “has made a substantial showing of the denial of a constitutional right.”³ Where, as here, “a district court has rejected the constitutional claims on the merits,” a petitioner is not entitled to a COA unless he can “demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.”⁴ In death penalty cases, “ ‘any doubts as to whether a COA should issue must be resolved in the petitioner's favor.’ ”⁵

Treating the Atkins-related issues and the jury-instruction issues in turn, we hold that the district court did not abuse its discretion by declining to hold an evidentiary hearing nor err by using IQ scores to assess Blue's general intellectual functioning; that the proper focus now is upon the CCA's determination of Blue's general intellectual functioning, a determination entitled to AEDPA deference; and that, in any event, any error would be harmless because Blue does not challenge the district court's determinations that he has failed to satisfy the other two elements of the test for mental retardation. We also reject the three remaining challenges as foreclosed by circuit precedent: Blue's challenge to the “moral blameworthiness” language in Texas's capital-sentencing jury instructions; Blue's challenge to the failure to assign a burden of proof on the mitigation special issue; and his challenge to the “10–12” Rule.

III.

Blue presented his Atkins claim to the CCA in his third state habeas application.⁶ Holding that Blue had “failed to meet his burden to present sufficient specific facts from which, even if true, we could reasonably conclude, by clear and convincing evidence, that no rational fact-finder would fail to find he is mentally retarded,”⁷ requirements of Texas Code of Criminal Procedure article 11.071, § 5(a)(3), the CCA dismissed Blue's habeas application as an abuse of the writ.⁸ Section 5(a)(3) codifies an actual-innocence-of-the-death-penalty exception to Texas's rule of procedural default.⁹

The State unsuccessfully argued to the district court that Blue had procedurally defaulted his Atkins claim,¹⁰ and did not re-urge procedural default in its response to Blue's motion for a COA. In short, the state accepts that the CCA decided the merits of Blue's Atkins claim.

Whether a habeas petitioner is mentally retarded is a question of fact.¹¹ Under § 2254(d)(2) we cannot grant habeas relief unless the CCA's adjudication of Blue's Atkins 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.”¹² Section 2254(e)(1) supplements § 2254(d)(2) by further providing that “a determination of a factual issue made by a State court shall be presumed to be correct” in a subsequent federal habeas proceeding and that the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”¹³ The clear-and-convincing evidence standard of § 2254(e)(1)—which is “arguably more deferential” to the state court than is the unreasonable-determination standard of § 2254(d)(2)¹⁴—pertains only to a state court's determinations of particular factual issues, while § 2254(d)(2) pertains to the state court's decision as a whole.¹⁵

Section 2254(d)(2) commands substantial deference to the factual determinations made by state courts.¹⁶ It is not enough to show that a state court's decision was incorrect or erroneous. A petitioner must show that the decision was objectively unreasonable, “a substantially higher threshold.”¹⁷ To clear that threshold, the petitioner must show that “a reasonable factfinder must conclude” that the state court's determination of the facts was unreasonable.¹⁸ “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”¹⁹

A.

Blue argues that the district court's refusal to hold an evidentiary hearing was an abuse of discretion because the conflicting expert testimony as to whether he is retarded created a genuine issue of fact as to the merits of his Atkins claim.²⁰ “In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court.”²¹ The State concedes that § 2254(e)(2) does not bar Blue from obtaining an evidentiary hearing,²² so we will review the district court's decision not to hold a hearing for an abuse of discretion. ²³

This Court has long held that a district court's refusal to hold an evidentiary hearing in a § 2254 proceeding is an abuse of discretion only if the petitioner can show that (1) “the state did not provide him with a full and fair hearing,” and (2) the allegations of his petition, “if proven true, ... would entitle him to relief.”²⁴ To this, the Supreme Court has recently added “that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” ²⁵ The same rule necessarily applies to a federal court's review of purely factual determinations under § 2254(d)(2),²⁶ as all nine Justices acknowledged.²⁷

Pinholster thus imposes a new limitation on the availability of evidentiary hearings in habeas cases, a limitation not fully captured by our two-part standard. In the broad run of cases, even when the first of the two preconditions to an evidentiary hearing is satisfied, § 2254(d) still requires deference to the state court's adjudication.²⁸ And Pinholster prohibits a federal court from using evidence that is introduced for the first time at a federal-court evidentiary hearing as the basis for concluding that a state court's adjudication is not entitled to deference under § 2254(d).²⁹

That is not to say that there is no basis on which the district court could have made that determination in this case, because Atkins claims fall outside that broad run of cases in some circumstances. “[W]hen a petitioner makes a prima facie showing of mental retardation, a state court's failure to provide him with an opportunity to develop his claim deprives the state court decision of the deference ordinarily due under the AEDPA.”³⁰ This rule stems from the fact that Atkins created and protects a significant substantive liberty interest,³¹ a liberty interest that entitles the petitioner to a set of core procedural due process protections: the opportunity to develop and be heard on his claim that he is ineligible for the death penalty.³² This does not mean that states must give hearings to all persons with Atkins claims.³³ The states retain discretion to set gateways to full consideration and to define the manner in which habeas petitioners may develop their claims. But if a state court dismisses a prima facie valid Atkins claim without having afforded the petitioner an adequate opportunity to develop the claim, it has run afoul of the Due Process Clause, and that due process violation constitutes an unreasonable application of clearly established federal law that is sufficient to deprive the state court's decision of AEDPA deference.³⁴ Under these narrowly defined circumstances, a district court abuses its discretion if it does not...