Freeney v. Davis, 16-70007

• Decision Date: 03 August 2017
• Docket Number: No. 16-70007,16-70007
• Parties: RAY MCARTHUR FREENEY, Petitioner-Appellant, v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

RAY MCARTHUR FREENEY, Petitioner-Appellant,
v.
LORIE DAVIS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

No. 16-70007

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 3, 2017

Appeal from the United States District Court for the Southern District of Texas
USDC No. 4:14-CV-373

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

PER CURIAM:^*

IT IS ORDERED that Appellant's motion to remand to the district court to allow newly appointed counsel an opportunity to develop and present any defaulted IATC claims and to seek to establish cause for the default is DENIED.

Page 2

I

Freeney was convicted in Texas state court of capital murder and sentenced to death. James Leitner was appointed as his state habeas counsel, and he, with the help of Michael Charlton, filed a habeas petition on January 24, 2005, asserting, in relevant respect, a claim that Freeney's trial counsel rendered ineffective assistance (IATC) "by not investigating, developing, and presenting readily available evidence during the punishment phase."

Over three years later, Leitner moved to withdraw. The state trial court granted the motion and subsequently appointed Donald Vernay. Three years later, the State filed a motion pursuant to Texas Code of Criminal Procedure article 11.071 § 8 to have a factual issue concerning the IATC claim designated as unresolved. Both parties filed proposed findings of fact and conclusions of law. The state trial court adopted the State's propositions and recommended that the Texas Court of Criminal Appeals (TCCA) deny relief on the merits, concluding that Freeney had established neither ineffective assistance nor prejudice. The TCCA subsequently instructed the state trial court to resolve certain factual issues that remained;¹ the state trial court did so and again recommended that the TCCA deny relief because Freeney had established neither ineffective assistance nor prejudice; and the TCCA adopted the state trial court's findings and conclusions, resulting in an order denying Freeney habeas relief.²

Vernay filed a motion in federal district court to have himself and Charlton appointed as federal habeas counsel. After the district court granted the motion, Charlton moved to withdraw. In his motion, filed on October 27,

Page 3

2014, Charlton stated that Martinez v. Ryan³ necessitated his withdrawal because "[h]e was responsible for the investigation of Mr. Freeney's claims and for the development and filing of Mr. Freeney's petition for writ of habeas corpus" in state court. He also noted that "[a]fter careful consideration," both he and Vernay concluded that "it [was] in Mr. Freeney's interest that Mr. Vernay be permitted to proceed acting as Mr. Freeney's sole counsel." The district court granted the motion on November 19, 2014, and on January 26, 2015, Vernay filed Freeney's federal habeas petition.

The Director of the Correctional Institutions Division of the Texas Department of Criminal Justice (the Director) moved for summary judgment, asserting, in pertinent part, that 28 U.S.C. § 2254(d) barred relief on Freeney's IATC claim. The district court granted the motion. It reasoned that the state habeas court's resolution of his IATC claim "was not contrary to, or an unreasonable application of federal law." The district court also declined to issue a certificate of appealability (COA).

Freeney sought a COA from this court. While the application was pending, Vernay retired from legal practice. This court appointed new counsel on December 12, 2016. Five months later, on May 24, 2017, Freeney's new counsel moved to remand the case to district court and requested a stay of the appellate proceeding "pending the conclusion of the district court's review."

II

Freeney seeks remand so that "the district court [may] consider, in the first instance, whether Mr. Freeney can establish cause for the procedural default of any [IATC] claims he may raise, and if so, whether those claims merit relief." Although he states his purpose broadly, he limits the substantive content of his briefing to an argument that Vernay failed to develop the factual

Page 4

basis for the IATC claim raised in Freeney's state habeas petition. A fully developed claim, Freeney asserts, would be in a "significantly different and stronger evidentiary posture," rendering it unexhausted and, according to Freeney, procedurally defaulted.⁴ Freeney argues that Vernay's failure to develop the claim equates to ineffective assistance of counsel providing cause, pursuant to Martinez and Trevino v. Thaler,⁵ to excuse the purported procedural default. Because "Vernay . . . could not evaluate the shortcomings of his own work," Freeney maintains, Vernay labored under a conflict of interest, which violated Freeney's "statutory right to conflict-free counsel" and requires remand.

In support of his motion, he principally relies on Speer v. Stephens⁶ and Mendoza v. Stephens,⁷ two recent Fifth Circuit cases he views as "essentially identical" to this case. This assertion, however, is both legally and factually inaccurate. First, in Speer and Mendoza, the court remanded so that the district court, in light of Martinez and Trevino, could appoint supplemental counsel pursuant to 18 U.S.C. § 3599(e).⁸ The analysis of a motion...