Clark v. Thaler

• Decision Date: 05 March 2012
• Docket Number: No. 07–70037.,07–70037.
• Citation: 673 F.3d 410
• Parties: Troy CLARK, Petitioner–Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

673 F.3d 410

Troy CLARK, Petitioner–Appellant,

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

No. 07–70037.

United States Court of Appeals, Fifth Circuit.

March 5, 2012.

Craig L. Henry (argued) (Court–Appointed), Texarkana, TX, for Petitioner–Appellant.

Stephen M. Hoffman, Asst. Atty. Gen., Austin, TX, for Respondent–Appellee.

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

Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Troy Clark, convicted of capital murder and sentenced to death in Texas state court, appeals the denial of his petition for a writ of habeas corpus. Clark asserts that his trial counsel rendered ineffective assistance by failing to investigate and develop mitigating facts that could have been presented at the punishment stage of his trial. The district court determined that Clark was not entitled to relief on this claim but granted a certificate of appealability (COA). Because the state court did not unreasonably apply clearly established federal law on the record before it, we affirm.

Clark also seeks a COA on four other claims that his trial counsel rendered ineffective assistance. Those include assertions that his counsel: (1) in closing argument, violated his duty of loyalty to Clark, failed to plead for mercy, and failed to present mitigating evidence; (2) “opened the door” to damaging evidence of another murder committed by Clark; (3) allowed introduction of evidence of another extraneous offense; and (4) failed to object to a comment made by the district court allegedly pertaining to Clark's credibility. The district court's decision denying relief on these claims is not debatable among reasonable jurists, and Clark's claims are not adequate to deserve encouragement to proceed further. We deny his request for a COA on these issues.

I

A

Clark lived with Tory Bush in Tyler, Texas, where the couple used and sold methamphetamine. The victim, Christina Muse, briefly resided with Clark and Bush, and when she moved out of their residence, Clark became concerned that she would inform law enforcement of his drug-dealing activities.

Bush testified that on May 19, 1998, Muse returned to the couple's home for a social visit. Clark attacked Muse with a stun gun, informing her that she “should have kept [her] mouth shut.” Clark then used duct tape to bind her hands and legs and to cover her mouth. He placed Muse in a bedroom closet, where he talked to her for some time. Clark eventually left her alone there for several hours while he played video games and sold drugs to a customer. Upon returning to the bedroom, Clark moved Muse to the bathroom and asked Bush to get him a board, which he used to strike Muse. He then filled the bathtub with water and ordered Bush to help him drown Muse by holding her head underwater. When Muse stopped breathing, Clark placed her body in a blue barrel, later adding cement mix, water, and lime. The next morning, at Clark's direction, Bush placed trash and debris in the top of the barrel. Clark then hid the barrel on his landlord's property located outside of town. Several months later, Clark was arrested and charged with capital murder.

B

In March of 2000, a jury convicted Clark of capital murder at the close of the guilt-innocence phase of trial. At the punishment phase, the state presented numerous witnesses who testified that Clark had murdered two other people, committed rape and assault, burned a car, and dealt drugs. Defense counsel informed the jury in his opening statement that he would present evidence demonstrating that Clark would not be a future danger to society because he could “function successfully in the penitentiary.” Counsel also told the jury that he had “no witnesses to bring you under mitigation. I have nobody.” A defense expert testified that, based on a risk-assessment grounded in actuarial data, Clark would not be a future danger in prison.

Clark took the stand on his own behalf, against the advice of counsel, at the punishment phase. 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.

The jury determined that Clark presented a future danger to society, that he had caused or intended Muse's death, and that there were no mitigating circumstances warranting a life sentence.¹ Accordingly, the state court sentenced Clark to death. On mandatory appeal, the Texas Court of Criminal Appeals affirmed the judgment.²

C

Clark filed an application for a writ of habeas corpus in Texas state court, asserting several claims of ineffective assistance of counsel. Clark alleged that the “principle [sic] ground upon which counsel rendered ineffective assistance” was his failure to investigate and present mitigating evidence at the punishment stage of the trial. To support this claim, Clark presented a one-and-a-half page affidavit from his mother, in which she stated that she had not been contacted by defense counsel. The affidavit also described several difficult circumstances Clark faced in his childhood and early adulthood, including a general lack of supervision, family alcoholism, abuse, and the suicide of his brother.

The state habeas court denied relief on all of Clark's claims, concluding that counsel's performance was not deficient and that Clark had not demonstrated prejudice. Based on the trial court's findings and its own review, the Texas Court of Criminal Appeals denied relief.³

Clark then filed the underlying habeas petition in federal court. He again asserted, among other claims of ineffective assistance, that his counsel had failed to conduct any investigation regarding mitigating evidence. In addition to his mother's affidavit, he presented an affidavit from his trial counsel and a thirty-page report from a mitigation specialist. The trial counsel's affidavit stated that counsel essentially failed to conduct any investigation whatsoever into mitigating evidence because “[a]t the time Troy's case was tried, mitigation practice was almost unknown.” The mitigation specialist's report provided information paralleling that contained in Clark's mother's affidavit but in significantly more detail. The report also contained new evidence demonstrating that Clark experienced severe poverty as a child; witnessed his mother's male partners use violence against her; witnessed the murder of a friend at age nine; and was forced into criminal activity at an early age.

Considering both the evidence before the state court and the additional evidence presented in federal court, the district court disagreed with the state habeas court's conclusion that counsel's performance in failing to investigate mitigating evidence was not deficient. The district court denied federal habeas relief on this issue, however, determining that the state court's conclusion that Clark had not demonstrated prejudice was not an unreasonable application of federal law. The district court also denied relief on Clark's other claims. The court granted a COA as to Clark's mitigation investigation claim, but denied COAs on Clark's other claims.

Clark now appeals the district court's denial of his ineffective assistance claim regarding mitigation evidence and also petitions this court for a COA as to his remaining claims.

II

Our review of Clark's contention that his trial counsel provided ineffective assistance by failing to investigate and failing to present mitigation evidence is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Because this claim was “adjudicated on the merits in State court proceedings,” ⁴ we evaluate it under the “ ‘difficult to meet’ ” ⁵ and “ ‘highly deferential standard for evaluating state-court rulings,’ ” ⁶ which is contained in 28 U.S.C. § 2254(d). That section provides that we may not grant relief unless adjudication of Clark's claim:

(1) 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; or

(2) 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. ⁷

“Claims of ineffective assistance of counsel involve mixed questions of law and fact and are governed by § 2254(d)(1).” ⁸ Clark carries the burden of proof.⁹

A

As an initial matter, this court questioned whether we are authorized to consider the substantially more detailed mitigation evidence that Clark presented to the federal district court. As noted above, Clark did not present his trial counsel's affidavit or the mitigation specialist's report to the state habeas court. At the time Clark filed his federal habeas petition, this court had held that “problems presented by evidence introduced for the first time in federal court in support of a federal habeas application are more accurately analyzed under the ‘exhaustion’ rubric of § 2254(b), not as issues of ‘factual development’ under § 2254(d).” ¹⁰ We requested supplemental briefing on this issue.

During the pendency of this appeal, however, the Supreme Court's decision in Cullen v. Pinholster held that, with respect to § 2254(d)(1), review “is limited to the record that was before the state court that adjudicated the claim on the merits.” ¹¹ The Supreme Court derived this limitation from the “backward-looking language” of § 2254(d)(1).¹² The Court also reasoned that “[s]ection 2254(b) requires that prisoners must ordinarily exhaust state remedies...