Clark v. Davis, 14-70034

• Decision Date: 10 March 2017
• Docket Number: No. 14-70034,14-70034
• Citation: 850 F.3d 770
• Parties: Troy CLARK, Petitioner–Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

850 F.3d 770

Troy CLARK, Petitioner–Appellant,
v.
Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 14-70034

United States Court of Appeals, Fifth Circuit.

Filed March 10, 2017

David R. Dow, University of Houston, Law Center, Houston, TX, for Petitioner–Appellant.

Stephen M. Hoffman, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent–Appellee.

Before STEWART, Chief Judge, and HIGGINBOTHAM and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Troy Clark, convicted of capital murder and sentenced to death in Texas state court, appeals the district court's denial of his Federal Rule of Civil Procedure 60(b)(6) motion for relief from the district

850 F.3d 773

court's judgment denying his federal habeas petition. Clark contends that his state habeas counsel, who was also his federal habeas counsel, was ineffective because he failed to investigate fully, and consequently failed to present fully, a claim that Clark's trial counsel was ineffective. The federal district court denied habeas relief; this court affirmed the district court's judgment;¹ and the Supreme Court denied Clark's petition for certiorari.²

The Rule 60(b)(6) motion is based on the change in decisional law effectuated by the Supreme Court's decision in Trevino v. Thaler ,³ which held that when "it [is] highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal," a habeas petitioner's procedural default of a claim not presented during an initial-review collateral proceeding can be excused if the default was caused by state habeas counsel's ineffectiveness.⁴ This holding was an extension of the Supreme Court's reasoning in Martinez v. Ryan .⁵

After the Trevino decision issued, the state habeas court appointed new counsel for Clark, and Clark filed a successive claim for habeas corpus relief in state court, contending that a more fulsome ineffective-assistance-of-trial-counsel claim should be considered by the state courts, in light of Martinez and Trevino . The Texas Court of Criminal Appeals dismissed that petition as an abuse of the writ.⁶ Clark proceeded to federal district court and filed a Rule 60(b)(6) motion for relief from the district court's prior denial of habeas relief. Clark contended that his counsel in the federal habeas proceeding had a conflict of interest because he could not be expected to argue his own ineffectiveness as state habeas counsel. The district court denied the motion and declined to issue a certificate of appealability (COA). We granted a COA, and we now affirm the district court's judgment. The district court did not abuse its discretion in concluding that Clark's Rule 60(b)(6) motion was untimely.

I

Clark was convicted of capital murder in Texas state court in March 2000. The decision of the Texas Court of Criminal Appeals on direct appeal reflects facts that were presented to the jury during the guilt phase of the trial regarding Christina Muse's murder:

Clark lived with Tory Bush in Tyler, Texas, where the two used and sold methamphetamine. The victim, Christina Muse, lived with them for a short period of time. When Muse moved out, Clark became concerned that she would talk to the wrong people and "snitch" on him about his drug dealings.

According to Bush, Muse came by Clark's house on May 19, 1998, and talked with Bush in the front bedroom. At some point during their conversation, Clark stunned Muse with a stun gun to her neck and told her she "should have kept [her] mouth shut." When Muse fell to the floor, Clark bound her hands,

850 F.3d 774

legs, and mouth with duct tape. Clark then placed Muse in a closet in the second bedroom, and Bush could hear Clark talking to her. After "a couple of hours," Clark moved Muse into the bathroom and told Bush to get him a board. Bush complied and returned to the kitchen, shortly after which she heard the loud "whack" of a board striking something. Clark yelled for Bush to come to the bathroom where she found Muse in the bathtub, blood on the back wall of the tub, and Clark filling the tub with water. Clark told Bush to help him hold Muse's head under water and threatened her when she hesitated.

After drowning Muse, Clark told Bush to go buy some lime. Bush then went across the street to Amber Scoggin's [sic] house to get a ride to the store. When Bush returned, she took the lime to Clark in the back storage room of the house where she saw Muse's body in a blue barrel filled with cement mix. Clark poured the lime into the barrel, mixed in water, and put a lid on the barrel. The next morning, Clark woke Bush and instructed her to clean up the backyard and to put some debris and garbage in the barrel over Muse's body. When Ben Barnett, Mike Coats, and Amber Scoggins arrived later, Clark and the two men loaded the blue barrel in the back of Clark's truck. After the others left, Clark and Bush transported the barrel and other trash to the property of their landlord, Velva Young. Bush told the jury that the last time she saw the barrel it was in Clark's truck, which was parked by the trash pile on Young's property. Bush then went to Young's house, while Clark borrowed Young's tractor and returned to the trash pile by himself for about an hour.⁷

With regard to the punishment phase, Clark's counsel conducted a limited investigation to determine if potentially mitigating evidence existed and did not present any mitigating evidence at trial. Clark's counsel was prepared to subpoena Clark's mother, father and other potential mitigation witnesses to testify, but Clark confirmed in response to questions from the trial court that he had instructed his counsel not to subpoena any witnesses. Accordingly, counsel focused on Clark's future dangerousness, calling one expert witness who testified that Clark would not be a future danger in prison, based on a risk assessment founded in actuarial data.⁸

Clark rejected his counsel's advice and testified during the punishment phase. As we set forth in a prior opinion,

Clark took the stand on his own behalf, against the advice of counsel.... In a colloquy with counsel outside the presence of the jury, Clark confirmed that he had refused to allow his attorneys to call his mother and father to testify. Clark also acknowledged that he had personally contacted other potential mitigation witnesses and instructed them not to testify on his behalf. He expressed his desire to tell the jury that he wanted to receive the death penalty. In a contentious exchange with the prosecutor on cross-examination, Clark ultimately so testified.⁹

The jury determined that Clark was a future danger to society and that no mitigating factors warranted a life sentence. The trial court sentenced Clark to death as

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state law required. The Texas Court of Criminal Appeals affirmed on direct appeal.¹⁰

The state trial court appointed new counsel, Craig Henry, to represent Clark in state habeas proceedings. Henry submitted an application for a writ of habeas corpus asserting nine grounds for relief, the principal ground being that Clark's trial counsel rendered ineffective assistance by failing to investigate potentially mitigating facts and by failing to present mitigating evidence. Henry included a two-page affidavit from Clark's mother, Cleta Barrington, which recounts Clark's troubled upbringing. Barrington's affidavit stated that: Clark was born with a cleft palate that led to speech difficulties and ridicule by his peers; she used drugs for most of her adult life and supported her habit through prostitution, resulting in her incarceration for much of Clark's life; Clark's father had "very little to do with" him; Clark cycled between living with different family members during his formative years; while Clark lived with his mother's brother-in-law he was subjected to physical abuse; Clark married at fifteen to avoid being placed in the foster care system; Clark's brother committed suicide when Clark was twenty, and Clark blamed himself because he had had an argument with his brother the night before; and that she (his mother) had not been contacted by trial counsel but would have spoken with counsel if given the opportunity. Henry spent a total of five hours investigating possible mitigating circumstances in support of the state habeas claim. The affidavit from Clark's mother was the only evidence submitted in support of the application.

The state habeas court denied relief, concluding that trial counsel's performance was not deficient and that Clark had not demonstrated prejudice.¹¹ The Texas Court of Criminal Appeals denied relief based on the trial court's findings and its own review.¹²

Henry was appointed to represent Clark in federal habeas proceedings. He filed a federal habeas petition, again arguing that trial counsel's failure to investigate and failure to present mitigating evidence amounted to ineffective assistance of counsel. However, Henry conducted further investigation and found evidence that was potentially mitigating. In response to the State's motion for summary judgment, Henry attached...