Hughes v. Dretke, 04-70014.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBenavides
Citation412 F.3d 582
PartiesTommie Collins HUGHES, Petitioner-Appellant, v. Douglas DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
Docket NumberNo. 04-70014.,04-70014.
Decision Date10 June 2005
412 F.3d 582
Tommie Collins HUGHES, Petitioner-Appellant,
Douglas DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 04-70014.
United States Court of Appeals, Fifth Circuit.
June 10, 2005.

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Christopher Allen Curtis, Fort Worth, TX, for Hughes.

Thomas M. Jones, Tommy Lee Skaggs, Austin, TX, for Dretke.

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

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

Petitioner Tommie Collins Hughes was convicted in Texas state court of capital murder and sentenced to death. Hughes filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Texas pursuant to 28 U.S.C. § 2254. The district court subsequently denied the petition. The district court also denied Petitioner a certificate of appealability ("COA"). Petitioner now requests a COA from this Court pursuant to 28 U.S.C. § 2253(c)(2). For the reasons that follow, Petitioner's Application for a Certificate of Appealability from Denial of a Petition for Writ of Habeas Corpus is denied.


On August 13, 1997, Petitioner robbed and killed two women in the parking lot of a theater in north Dallas, Texas. After Petitioner was convicted of this crime and his sentence was imposed, the Texas Court of Criminal Appeals affirmed the conviction and sentence on direct appeal, and the United States Supreme Court denied certiorari review.

Petitioner subsequently filed a state application for a writ of habeas corpus. Without holding an evidentiary hearing on Petitioner's claims, the state trial-level habeas court entered findings of fact and conclusions of law and recommended to the Texas Court of Criminal Appeals that Petitioner's application be denied. The Texas Court of Criminal Appeals adopted the trial judge's findings and conclusions and denied Petitioner's application.

Petitioner then filed a federal petition for a writ of habeas corpus in March 2001. The federal district court denied relief and also denied Petitioner's application for a COA. Petitioner filed a timely notice of appeal. Petitioner now appeals the district court's denial of a COA.

Petitioner raises eight issues in twelve separate grounds for relief. Succinctly stated, Petitioner complains that: (1) the trial court allowed the state to exercise a peremptory strike against a prospective juror who already had been accepted by the defense (Ground 2); (2) the trial court

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refused to allow voir dire, evidence, or argument regarding parole eligibility (Ground 3); (3) evidence of an unadjudicated extraneous offense was admitted during the sentencing phase of trial, despite the lack of timely notice by the state of its intention to use evidence of an unadjudicated extraneous offense and its failure to prove the unadjudicated extraneous offense beyond a reasonable doubt (Grounds 4, 5, and 6); (4) the Texas death penalty scheme is unconstitutional (Grounds 7 and 8); (5) the trial court deprived him of the opportunity to investigate possible jury misconduct (Ground 9); (6) the trial court failed to suppress certain evidence seized without a warrant or probable cause (Ground 10); (7) he received ineffective assistance of counsel (Grounds 1, 4, 6, and 11); and (8) the cumulative effect of these constitutional errors violated his right to a fair trial (Ground 12).


Hughes filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The petition, therefore, is subject to the procedures imposed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Under AEDPA, a petitioner must obtain a COA before he can appeal the district court's denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ("[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.").

The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.

Miller-El, 537 U.S. at 336, 123 S.Ct. 1029.

A COA will be granted only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating 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. "The question is the debatability of the underlying constitutional claim, not the resolution of that debate." Id. at 342, 123 S.Ct. 1029. "Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Id. at 338, 123 S.Ct. 1029. Moreover, "[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner's] favor." Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).

We further note that when reviewing the district court's assessment, we must be mindful of the deferential standard of review of 28 U.S.C. § 2254(d). Under § 2254(d), a federal court cannot grant habeas corpus relief with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established

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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. 28 U.S.C. § 2254(d). With respect to the review of factual findings, AEDPA significantly restricts the scope of federal habeas review. Factual findings are presumed to be correct, and a petitioner has the burden of rebutting this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).


A. Appointment of trial counsel claim

In his first ground for relief, Petitioner contends that his trial counsel were not qualified or certified to represent defendants in death penalty cases. Specifically, Petitioner argues that his lawyers were presumptively unqualified, ineffective, and incompetent because the standards for appointment in death penalty cases, together with a list of qualified attorneys, were not posted in the district clerk's office as required by Article 26.052 of the Texas Code of Criminal Procedure.1

To prevail on a claim of ineffective assistance of counsel, Petitioner must show (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Regarding the first prong, "[t]o establish deficient performance, a petitioner must demonstrate that counsel's representation `fell below an objective standard of reasonableness.'" Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Regarding the second prong, "to establish prejudice, a `defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. at 534, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

In the instant case, the district court found Petitioner's argument "specious" and we agree. Notwithstanding the state's technical violation of Article 26.052, the Texas Court of Criminal Appeals held that any error in this regard was harmless:

[T]he record reflects [appellant] was represented by fully qualified and capable counsel. Both men were trial attorneys possessing extensive experience in criminal matters, including capital murder litigation. Their actions at appellant's trial capably demonstrate this experience. Additionally, the list of qualified counsel that was eventually posted in compliance with [Article 26.052] contained the names of both appellant's appointed counsel, and the trial judge, in his findings of fact and conclusions of law on this issue, asserted that, if the list had been available, he would have chosen both attorneys to represent appellant in this case.

Hughes v. State, 24 S.W.3d 833, 837-38 (Tex.Crim.App.2000). Because Petitioner failed to show that the finding of harmless

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error was incorrect, the district court overruled this ground for relief.

By complaining only of a state statutory violation, Petitioner has failed to allege a constitutional violation. See Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir.1994) ("A state prisoner seeking federal court review of his conviction pursuant to 28 U.S.C. § 2254 must assert a violation of a federal constitutional right."). Petitioner alleges only that because his trial attorneys were not appointed pursuant to Article 26.052, counsel were presumptively deficient. No...

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