Jones v. Davis

• Decision Date: 15 May 2018
• Docket Number: No. 15-70040,15-70040
• Citation: 890 F.3d 559
• Parties: Shelton Denoria JONES, Petitioner–Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

890 F.3d 559

Shelton Denoria JONES, Petitioner–Appellant,

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 15-70040

United States Court of Appeals, Fifth Circuit.

FILED May 15, 2018

David R. Dow, University of Houston Law Center, Houston, TX, Jared Tyler, Tyler Law Firm, P.L.L.C., Houston, TX, for Petitioner–Appellant.

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Austin, TX, Travis Golden Bragg, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent–Appellee.

Before OWEN and SOUTHWICK, Circuit Judges.^*

PRISCILLA R. OWEN, Circuit Judge:

Shelton Denoria Jones's petition for panel rehearing is denied. The panel's prior opinion, issued March 27, 2018, is withdrawn. This opinion is substituted in its place.

Jones was convicted of the capital murder of a police officer and sentenced to death in Texas state court. Jones asserts he is entitled to federal habeas relief on his claim that the press coverage of the crime and the presence of uniformed police officers in the gallery during his trial created an inherently prejudicial atmosphere that violated his right to a fair trial. The federal district court denied Jones's request for discovery on this issue and denied relief on the merits, but granted a Certificate of Appealability (COA). We affirm the judgment of the district court.

In prior proceedings Jones sought and has been granted a new sentencing phase on his claim that, in violation of Penry v. Lynaugh ,¹ the Texas special issues did not provide an adequate vehicle for the jury to give full consideration to his mitigation evidence.² His fair trial claim therefore pertains only to the guilt/innocence phase of his trial.

I

Jones was charged with capital murder of a police officer in Houston, Texas. Media coverage followed the crime, including an editorial calling for charges to be filed against Jones and a letter to the editor suggesting Jones be hung from a "tall tree" with a "short rope." Jones moved unsuccessfully for a change of venue to diminish the effects of the pre-trial publicity. Uniformed officers attended each day of Jones's trial, in varying numbers. Jones was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals (TCCA) affirmed Jones's conviction and sentence on direct appeal.³

The TCCA appointed habeas counsel. With leave of the state habeas court, Jones submitted an incomplete application for state habeas relief in order to comply with newly-enacted filing deadlines under the Antiterrorism and Effective Death Penalty Act (AEDPA).⁴ As the state-law imposed deadline approached, Jones filed an amended application that raised several grounds for relief but did not raise the fair trial claim presented here. Attributing the omission of the fair trial claim to a "fault in the word processor used by his counsel," Jones then filed—before the state-law deadline had passed—a document styled Errata and Corrections to Amended Application, which included the claim at issue here. After the deadline had passed, Jones filed a supplemental application consolidating both previous filings for ease of reference. This petition included evidence of the officers' attendance at the trial, but much of the evidence of media coverage that was included in Jones's federal petition was not included in his state application.

The state trial court recommended that the TCCA deny relief on all of Jones's claims. The trial court's recommendation noted that Jones "failed to urge [the fair trial claim] as a point of error on direct appeal" and that in any event, Jones had not shown that the presence of the officers was either inherently or actually prejudicial. The TCCA rejected Jones's claim on procedural grounds. Determining, without reference to the Errata, that the fair trial claim was not raised until after the filing deadline for the state habeas petition, it concluded that the supplemental application was a subsequent application for writ of habeas corpus under section 5 of Texas Code of Criminal Procedure article 11.071 and dismissed the fair trial claim as an abuse of the writ.⁵ The TCCA "also expressly reject[ed] all findings and conclusions related" to the fair trial claim.⁶

Jones filed his initial federal habeas petition in 2006, and, after various procedural delays not relevant here, the district court granted Jones a new sentencing hearing based on his Penry claim and denied the remaining claims, including the fair trial claim.⁷ The district court held that federal review of the fair trial claim was barred because the TCCA's dismissal was based on an independent and adequate state procedural ground, but it granted a certificate of appealability (COA) on that issue.⁸ This court affirmed the district court's grant of relief on Jones's Penry claim.⁹ Because the district court granted the COA on the fair trial claim without making the required determination that "reasonable jurists could find it debatable whether the petition states a valid claim of the denial of a constitutional right," we vacated the COA and remanded the case for the district court to consider the question in the first instance.¹⁰ We dismissed or denied Jones's cross-appeal and applications for COAs on other claims.¹¹ On remand, the district court issued a COA supported by appropriate findings.¹²

We subsequently held Jones's fair trial claim was not procedurally barred and remanded the case to the district court for a decision on the merits.¹³ The district court ordered supplemental briefing but denied Jones's motions for discovery and investigative services. The district court subsequently determined that Jones was not entitled to relief on the fair trial claim but issued a COA.¹⁴

II

The State contends that Jones's fair trial claim is barred by the non-retroactivity principle announced in Teague v. Lane , which precludes the creation of "new constitutional rules of criminal procedure" on federal habeas review.¹⁵ The State argues that Jones seeks to have this court recognize the applicability of the test announced in Holbrook v. Flynn¹⁶ to purely private spectator activity. Jones counters that he relies on a rule of general applicability to a specific set of facts but does not seek a new rule.¹⁷ The State acknowledges that it failed to raise this issue before the district court. This court has previously determined, however, that "absent a compelling, competing interest of justice in a particular case, a federal court should apply Teague even though the State has failed to argue it."¹⁸

It is not clear whether the challenged conduct is purely private. Jones's primary complaint is that the Houston Police Department officers were in their uniforms during his trial. At the very least, this raises a question as to whether there was some state involvement in the officers' presence at trial. But this court is not the proper court to consider this fact-bound issue in the first instance. The State's failure to present this issue in the district court, despite raising it in a prior appeal before this court, and despite the district court's order to provide supplemental briefing on the fair trial claim, has prevented the development of the record on this issue. Given this lack of development below, we pretermit the Teague analysis and review the district court's decision on the merits.

III

The TCCA expressly denied Jones's fair trial claim on procedural grounds and rejected "all findings and conclusions" made by the trial court with respect to that claim.¹⁹ The State asserts that much of the media-related evidence Jones presented in his federal habeas petition should not be considered because it was not presented to the state court and is therefore barred from consideration under 28 U.S.C. § 2254(e)(2). "Although state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so."²⁰ AEDPA limits a federal habeas court's review of a claim that has been adjudicated on the merits in state court to the state court record.²¹ However, the highest state court expressly rejected all findings and conclusions made by the lower habeas court and decided the case on procedural grounds.²² Because there was no decision on the merits, 28 U.S.C. § 2254(d) is inapplicable to this claim.²³ Similarly, because the TCCA decided the case on procedural grounds, there was no "determination of a factual issue made by a State court" to which the federal court could have deferred under § 2254(e)(1).²⁴

The State points out that § 2254(e)(2) applies regardless of whether there was a merits determination in state court.²⁵ Section 2254(e)(2) provides that federal district courts "shall not hold an evidentiary hearing" to consider evidence if the habeas applicant "has failed to develop the factual basis of a claim in State court proceedings" unless the stringent requirements of § 2254(e)(2)(A) and (B) are met.²⁶ The Supreme Court has established that an applicant "fail[s] to develop" the factual basis of claim if there is a "lack of diligence" in presenting the evidence in state court.²⁷ Section 2254(e)(2) accordingly requires us to determine whether Jones was diligent in attempting to present the media reports in the state proceeding.²⁸ We conclude that he was not.

Jones failed to exercise due diligence by not introducing the media reports until more than a decade after they were written, his attempts to obtain discovery and investigative services notwithstanding. "Diligence for purposes of the opening clause [of § 2254(e)(2) ] depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court."²⁹ When the evidence the applicant seeks to present before a federal tribunal could have been easily obtained and...