Guidry v. Lumpkin

• Decision Date: 23 June 2021
• Docket Number: No. 20-70005,20-70005
• Citation: 2 F.4th 472
• Parties: Howard Paul GUIDRY, Petitioner—Appellant, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

2 F.4th 472

Howard Paul GUIDRY, Petitioner—Appellant,

v.Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.

No. 20-70005

United States Court of Appeals, Fifth Circuit.

FILED June 23, 2021

Gwendolyn Cecilia Payton, John R. Neeleman, Kilpatrick Townsend & Stockton, L.L.P., Seattle, WA, Adam Howard Charnes, Esq., William Alan Wright, Kilpatrick Townsend & Stockton, L.L.P., Dallas, TX, for Petitioner-Appellant.

Ellen Stewart-Klein, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, for Respondent-Appellee.

Before Willett, Ho, and Oldham, Circuit Judges.

Per Curiam:

We withdraw the court's prior opinion of April 21, 2021 and substitute the following opinion.

Howard Paul Guidry was convicted of capital murder in Texas and sentenced to death. On federal habeas corpus review, the district court granted Guidry relief, and this court affirmed the grant of relief. Guidry was retried and resentenced to death. After pursuing direct review and habeas relief in state court, Guidry again sought federal habeas corpus relief under 28 U.S.C. § 2254. The district court denied relief on all claims. Guidry now seeks a certificate of appealability ("COA") from this court. We deny him a COA.

I.

A.

Farah Fratta ("Farah") was murdered in November 1994. Her husband, Robert Fratta ("Fratta"), had hired Joseph Prystash to kill her. Prystash enlisted his neighbor, Howard Paul Guidry, as the gunman.

On the night of the murder, a gunman approached Farah as she exited her car in her garage. The gunman shot Farah twice in the head. Farah's neighbors, the Hoelschers, heard a gunshot and Farah screaming. Mr. Hoelscher saw Farah fall and then heard a second gunshot. Then the Hoelschers watched the gunman, an African-American man, emerge from behind a large bush. The gunman got into a silver or gray car that had one headlight out, and the car drove off. The Hoelschers could not describe the gunman in detail.

The police investigation centered on three participants: a gunman, a getaway driver, and Fratta. The police suspected Fratta because he and Farah were going through a bad divorce. Fratta openly wanted Farah dead and tried to hire people to kill her. As for the other two suspects, a woman named Mary Gipp told police that Fratta hired her boyfriend, Joseph Prystash, to kill Farah and that Prystash recruited Guidry as the gunman.

The police arrested Guidry in March 1995 as he fled from a bank robbery. At the time of his arrest, Guidry possessed a gun belonging to Fratta. Guidry also confessed to being the gunman who shot Farah. Guidry's trial focused heavily on that confession. A jury found Guidry guilty of capital murder, and he was sentenced to death in 1997.

B.

Guidry sought appellate and habeas relief in the state courts, but they found no reversible error. The state courts found that Mary Gipp's testimony was inadmissible as hearsay, but harmless because of Guidry's confession. This court found that Guidry invoked his right to counsel and that police detectives violated that right by inducing Guidry's confession. See Guidry v. Dretke , 397 F.3d 306, 327 (5th Cir. 2005), abrogated by Cullen v. Pinholster , 563 U.S. 170, 131 S. Ct. 1388, 179 L.Ed.2d 557 (2011). Because we excluded Guidry's confession, we found that Gipp's testimony was no longer harmless. Thus, we concluded that there remained "no evidence showing Guidry killed Farah Fratta for remuneration—the capital offense for which Guidry was convicted" and granted him habeas relief. Id. at 330.

Texas retried Guidry for capital murder in 2007. Because the State could no longer use Guidry's confession, it relied on testimony from Gipp that avoided hearsay, Guidry's possession of Fratta's gun, ballistics evidence, and Guidry's incriminating statements to others. The second jury found Guidry guilty of capital murder, and he was again sentenced to death.

On direct appeal, the Texas Court of Criminal Appeals ("TCCA") affirmed Guidry's conviction. Guidry v. State , No. AP-75, 2009 WL 3369261 (Tex. Crim. App. Oct. 21, 2009). Guidry also filed a state habeas application, which was denied, and his supplemental applications were dismissed as an abuse of the writ. Ex parte Guidry , Nos. WR-47,417-02, WR-47, 417-03, 2012 WL 2423621, at *1 (Tex. Crim. App. June 27, 2012) ; see also Ex parte Guidry , Nos. WR-47, 417-05, 2018 WL 4472491, at *1 n.1 (Tex. Crim. App. Sept. 19, 2018). Finally, Guidry sought federal habeas relief under 28 U.S.C. § 2254. The district court denied his federal habeas petition and refused to grant him a COA.

Guidry now seeks a COA from this court to appeal the district court's dismissal of his § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A). He raises four issues: (1) whether the admission of Dr. Scott Basinger's testimony was fruit of the poisonous tree; (2) whether the State's peremptory strike of a black juror violated Guidry's right to a fair and impartial jury under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; (3) whether the State suppressed evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; and (4) whether Guidry received ineffective assistance of trial, appellate, and habeas counsel under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

II.

To obtain a COA to appeal the denial of a § 2254 petition, Guidry must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). See also Miller-El v. Cockrell , 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). For the claims the district court denied on the merits, a COA will issue only if Guidry shows "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El , 537 U.S. at 327, 123 S.Ct. 1029. For claims the district court denied on procedural grounds, a COA will issue only if Guidry shows that reasonable jurists would debate whether the district court's procedural ruling was correct and whether the petition states a valid claim of the denial of a constitutional right on the merits. Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Federal courts evaluate the debatability of Guidry's constitutional claims under the Antiterrorism and Effective Death Penalty Act (AEDPA). Under AEDPA, we must not grant habeas relief for any claim adjudicated on the merits in state court unless the adjudication "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 "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." 28 U.S.C. § 2254(d)(1)–(2).

A state-court decision is "contrary to" clearly established federal law when it "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor , 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state-court decision is an "unreasonable application of" clearly established federal law if it "identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case," or if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407, 120 S.Ct. 1495. Clearly established federal law comprises "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412, 120 S.Ct. 1495.

AEDPA is a "highly deferential standard," which "demands that state-court decisions be given the benefit of the doubt." Renico v. Lett , 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (first quoting Lindh v. Murphy , 521 U.S. 320, 333 n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) ; then quoting Woodford v. Visciotti , 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam)). Accordingly, even if we find that a state court incorrectly applied clearly established federal law, we only intervene if the application was objectively unreasonable. Perez v. Cain , 529 F.3d 588, 594 (5th Cir. 2008).

Thus, to obtain a COA, Guidry must show that "jurists of reason could disagree with the district court's conclusion that the state court's decision was not [contrary to or] an unreasonable application of clearly established federal law and was not based upon an unreasonable determination of the facts in light of the evidence presented." Halprin v. Davis , 911 F.3d 247, 255 (5th Cir. 2018) (per curiam).

A.

We start with Guidry's merits claims. The first issue Guidry seeks to certify for appeal is whether the admission of Dr. Basinger's testimony was fruit of the poisonous tree. Dr. Basinger was a defense expert in Guidry's first trial. On cross-examination, the prosecution elicited that Guidry told Dr. Basinger that he shot Farah. When the State subpoenaed Dr. Basinger to testify in the second trial, Guidry objected that his statements to Dr. Basinger were the direct result of his illegally obtained confession to police. The trial court denied Guidry's motions and permitted Dr. Basinger to testify.

To support certification, Guidry argues that the use of Dr. Basinger's testimony in his second trial violated his Fifth Amendment rights under Harrison v. United States , 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). In Harrison , the defendant made three confessions to...