Harper v. Lumpkin

• Citation: 19 F.4th 771
• Decision Date: 01 December 2021
• Docket Number: No. 20-70022,20-70022
• Parties: Garland Bernell HARPER, Petitioner—Appellant, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

19 F.4th 771

Garland Bernell HARPER, Petitioner—Appellant,

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

No. 20-70022

United States Court of Appeals, Fifth Circuit.

FILED December 1, 2021

Kenneth W. McGuire, Esq., McGuire Law Firm, Ali R. Fazel, Fazel Law, Houston, TX, for Petitioner—Appellant.

Woodson Erich Dryden, Esq., Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent—Appellee.

Before Willett, Ho, and Duncan, Circuit Judges.

Per Curiam:

A jury convicted Garland Bernell Harper of murder and sentenced him to death. After his direct appeal and habeas petitions were both denied in state court, Harper raised 31 claims in a federal habeas petition. The district court denied all his claims and also denied a certificate of appealability (COA). Harper asks us to issue a COA on eight of those claims which he presents as posing five distinct legal issues. We DENY Harper a COA on all of his claims for the reasons explained below.

I

Harper was convicted of murdering his girlfriend, Triska Rose, and her two daughters: Mya, aged seven, and Briana, aged sixteen. The jury sentenced Harper to death in a separate punishment phase.

Harper filed a direct appeal raising eight claims. The Texas Court of Criminal Appeals (TCCA) found no error and affirmed Harper's conviction. Harper later filed an application for a writ of habeas corpus. The trial court drafted proposed findings of fact and conclusions of law, recommending that Harper's application be denied. The TCCA adopted these findings of fact and conclusions of law with a few minor adjustments and denied Harper's application. Harper then filed a petition for a writ of habeas corpus in federal court, which was 291 pages long and contained thirty-one claims. The district court denied each of Harper's claims in a sixteen-page opinion and did not certify any issue for review on appeal. Harper asks us to issue a certificate of appealability on eight of the thirty-one claims. Some claims overlap and, as a result, Harper presents them as five issues: (1) a Confrontation Clause claim (claim 2 of Harper's habeas petition); (2) a Strickland claim premised on ineffective assistance of counsel during voir dire (claim 11); (3) a Batson claim (claims 12, 13, and 28); (4) a second Strickland claim premised on counsel's failure to argue that Harper's mental illness rendered his confession involuntary (claims 15 and 16); and (5) a third Strickland claim premised on counsel's failure to object on reliability grounds to the government's expert on future dangerousness, Dr. Moeller (claim 7).

II

We may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Supreme Court has clarified that this "substantial showing" requires demonstrating that "reasonable jurists could debate whether ... the petition should have been resolved in a different manner." Miller-El v. Cockrell , 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ). In a capital case, "any doubts as to whether a COA should issue must be resolved in the petitioner's favor." Nelson v. Davis , 952 F.3d 651, 658 (5th Cir. 2020) (quoting Clark v. Thaler , 673 F.3d 410, 425 (5th Cir. 2012) ).

Where, as here, "a state court has reviewed a petitioner's claim on the merits, our review is constrained by the deferential standards of review found in the Antiterrorism and Effective Death Penalty Act (‘AEDPA’)." Id. (citing 28 U.S.C. § 2254 ). "Under these circumstances, we may not issue a COA unless reasonable jurists could debate that the state court's decision was either ‘contrary to, or involved an unreasonable application of, clearly established Federal law,’ or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ " Id. (internal citations omitted) (quoting 28 U.S.C. § 2254(d)(1)–(2) ).

A

Harper's first claim is that the district court erred by failing to consider his Confrontation Clause claim and, in the alternative, that his trial and appellate counsel were ineffective for failing to raise it. This issue received only a single footnote in Harper's state and federal habeas petitions. So it isn't surprising that the habeas court and the district court below did not discuss it. After the district court dismissed his habeas petition, Harper filed a Rule 59(e) motion to alter or amend the judgment, arguing that the district court had improperly overlooked his claim. The district court denied this motion, finding that the argument had not been fairly placed before the court.

We agree with the district court that Harper did not sufficiently plead his Confrontation Clause claim. A conclusory footnote in a 291-page federal habeas petition is not enough to put a district court on notice of a claim. Habeas petitions must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." Mayle v. Felix , 545 U.S. 644, 655, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (quoting RULES GOVERNING § 2254 Cases 2(c)). "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson , 200 F.3d 274, 282 (5th Cir. 2000) (citing Ross v. Estelle , 694 F.2d 1008, 1012 (5th Cir. 1983) ).

And even if a footnote were enough to raise the issue under the federal rules, it was not enough to comply with the exhaustion requirement. "The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court." Adekeye v. Davis , 938 F.3d 678, 682 (5th Cir. 2019) (quoting Soffar v. Dretke , 368 F.3d 441, 465 (5th Cir. 2004) ). A fair opportunity requires that "all the facts necessary to support the federal claim were before the state courts" and "the habeas petitioner must have ‘fairly presented’ to the state courts the ‘substance’ of his federal habeas corpus claim." Anderson v. Harless , 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (quoting Picard v. Connor , 404 U.S. 270, 275, 277–78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) ). "Arguments raised in a perfunctory manner, such as in a footnote, are waived" because they do not give the state court a fair opportunity to consider the claim. Bridas S.A.P.I.C. v. Gov't of Turkmenistan , 345 F.3d 347, 356 (5th Cir. 2003) (quoting United States v. Hardman , 297 F.3d 1116, 1131 (10th Cir. 2002) ). Harper's purported Confrontation Clause claim was just as buried in his state habeas petition. (Indeed, the two petitions are almost identical.) It was placed in a single footnote deep in the body of a 232-page petition that presented 24 claims. Unsurprisingly, neither the Texas District Court nor the Texas Court of Criminal Appeals treated this as a separate claim. The state and federal courts were not the only ones that overlooked Harper's Confrontation Clause footnote. Harper overlooked it too. His state and federal habeas petitions failed to list it as a separate claim. And Harper did not ask the TCCA to reconsider its decision in light of his Confrontation Clause claim after the court issued its opinion without discussing footnote 12. The fact that no party—not even Harper's own lawyer—understood him to have raised a Confrontation Clause claim is evidence enough that this issue was neither fairly presented to the state court nor adequately pleaded before the federal district court. The district court did not abuse its discretion by refusing to reconsider its decision in light of this unexhausted and forfeited claim.

Neither of Harper's alternative arguments have any merit either. He first argues that the district court should have sua sponte construed his reply brief, which did raise a Confrontation Clause argument, as a Rule 15 motion to amend his habeas petition. We need not decide this argument. Even if true, Harper's claim would still be unexhausted for failing to present the claim to the state habeas court.

Second, Harper argues that it doesn't matter that he put his Confrontation Clause claim in a footnote because that footnote cited a transcript in which his trial counsel made the essence of a Confrontation Clause objection. Harper bases this argument on Dye v. Hofbauer and its progeny. They hold that a claim properly presented in an earlier proceeding can be incorporated by reference into a federal habeas petition. Ramey v. Davis , 942 F.3d 241, 248 (5th Cir. 2019) (citing Dye v. Hofbauer , 546 U.S. 1, 4, 126 S.Ct. 5, 163 L.Ed.2d 1 (2005) (per curiam)). But Dye and Ramey involved claims that were properly raised in prior briefs —not exhibits. See id. (claim properly raised in direct appeal brief and state habeas petition, but insufficiently briefed in federal habeas petition, was incorporated by reference); Dye , 546 U.S. at 4, 126 S.Ct. 5 (claim properly raised in a state habeas brief was incorporated by reference in federal habeas petition). Requiring courts to search through every exhibit cited in a habeas petition to discover additional possible arguments would be a massive and unwarranted extension of Dye . Dye didn't turn habeas petitions into matryoshka dolls. Claims cannot be hidden inside of voluminous exhibits cited in footnotes hidden inside of habeas petitions that are hundreds of pages long. See RULES GOVERNING § 2254 Cases 2 advisory committee note (noting that Rule 2 does not require judges to grope through "two thousand pages of irrational, prolix and redundant pleadings") (quoting Passic v. Michigan , 98 F. Supp. 1015, 1016 (E.D. Mich. 1951) ); Adams v. Armontrout , 897 F.2d 332, 333 (8th Cir. 1990) ("[D]espite our firm conviction that the pleading requirements in habeas corpus proceedings should not be...