McGowen v. Thaler

• Decision Date: 19 March 2012
• Docket Number: No. 10–70014.,10–70014.
• Parties: Roger Wayne McGOWEN, Petitioner–Appellee Cross–Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant Cross–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

675 F.3d 482

Roger Wayne McGOWEN, Petitioner–Appellee Cross–Appellant,

v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant Cross–Appellee.

No. 10–70014.

United States Court of Appeals, Fifth Circuit.

March 19, 2012.

David R. Dow, Managing Sr. Counsel (Court–Appointed), Texas Def. Serv., Anthony Seymour Haughton, Haughton & Associates, Houston, TX, Paul Edward Mansur (Court–Appointed), Denver City, TX, for Petitioner–Appellee Cross–Appellant.

Matthew Dennis Ottoway, Asst. Atty. Gen., Postconviction Lit. Div., Austin, TX, for Respondent–Appellant Cross–Appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GARZA, CLEMENT and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Petitioner Roger McGowen was convicted of capital murder in a Texas state court and sentenced to death. He seeks federal habeas corpus relief from his conviction and death sentence on several grounds. The district court held that, under Penry v. Lynaugh¹ and its progeny, McGowen was entitled to habeas relief with respect to his sentence because the punishment phase jury instructions failed to provide an avenue to give effect to mitigating evidence. The district court denied habeas relief as well as certificates of appealability with respect to all of his other claims. The parties cross-appealed. We affirm.

I

On March 11, 1986, a masked assailant fatally shot Marion Pantzer while attempting to rob a bar Pantzer owned in Houston, the “Just Marion and Lynn's Club” (the Club). Before the murder, a black male entered the Club. The bartender, Pedro Flores, noted the man's presence because the Club catered to a lesbian clientele. The man, who was later identified as McGowen's cousin, Kerwin Kindle, left sometime before the shooting.

At approximately 12:45 A.M., a masked man holding a large gun entered the Club and, while standing in a “shooting position,” motioned to Flores in a manner Flores understood to mean the man wanted money from the cash register. As Flores walked toward the register, he noticed Pantzer, who was sitting on a stool at the end of the bar, reaching for her belt area where Flores knew she usually carried a gun. Flores saw Pantzer's gun, and as he prepared to open the register, he looked backed at the man. It was then that Flores saw fire come from the man's gun and heard two shots. The man fled immediately after firing. Flores did not know whether the man or Pantzer had fired the first shot.

The police found a .25 caliber pistol near Pantzer's body and a spent, small caliber bullet at the other end of the bar. It was Kindle, who had reentered the bar before the police arrived, who pointed out to the police the location of the bullet. The medical examiner subsequently removed a hollow point bullet from Pantzer's body.

The incident was similar to several other crimes in the immediate area, in which a group of men had been robbing homosexual bars and other businesses. McGowen, who had an extensive history of armed robbery, was arrested after being identified by a witness to another aggravated robbery. McGowen signed two written statements while in custody. In the first, he admitted his involvement in several robberies in the area, including an attempted robbery at the Copa club that occurred a few weeks after Pantzer was shot. In the second, he admitted to shooting Pantzer but maintained he did so only because she had fired at him first. According to the statement, McGowen went to the Club with Kindle to rob it, and McGowen entered the Club wearing a gray ski mask and carrying a .38 revolver. Pantzer fired at him, and McGowen stated, “I guess it was just a frightened reaction by me but my gun went off.”

McGowen was charged with capital murder, and McGowen and Kindle were indicted for aggravated robbery. McGowen's trial counsel attempted to suppress the confession, which was the only evidence linking him to the murder. The trial court denied the motion to suppress, concluding that the two statements “were voluntary, given after being properly warned by the officers, and made after knowingly and intelligently waiving the rights afforded to a defendant in custody.”

In light of the confession, defense counsel chose not to challenge McGowen's identity as the killer at trial and instead challenged the intent requirement. After a one-day trial, the jury found McGowen guilty of capital murder. The jury charge required the jury to find that McGowen knowingly and voluntarily confessed to the offense as a prerequisite to relying on the confession to convict McGowen. In a separate punishment phase of the trial, then-applicable Texas law—Article 37.071(b) of the Texas Code of Criminal Procedure—required the jury to answer three special issue questions that would result in a death sentence if all were answered in the affirmative: “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result” (the deliberateness special issue); “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” (the future-dangerousness special issue); and (3) “if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”

During the penalty phase, the prosecution called a number of witnesses who testified about McGowen's history of violence and criminal conduct. They testified that after being imprisoned for aggravated assault in 1982, McGowen was perpetually involved in theft and armed robbery in the years before Pantzer's murder, utilizing guns and knives and sometimes robbing the same establishments multiple times in a single day. McGowen had also agreed to kill a man in exchange for drugs, but instead robbed and shot him. The prosecution argued that unless a death sentence was imposed, McGowen's criminality would continue to escalate.

The defense called two of McGowen's sisters as its only witnesses at the punishment phase. They testified that McGowen had a disadvantaged background and vouched for his good character. Defense counsel argued in closing that McGowen's background contributed to the manner in which he dealt with life's problems.

The jury answered the three special issues in the affirmative, and McGowen was sentenced to death. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. In its opinion, issued in 1992, the Texas court held that Penry did not require a separate special issue instruction to allow the jury to give mitigating effect to the evidence presented at the sentencing phase, noting that the court had “declined to extend Penry to include the type of evidence presented here.” The Supreme Court denied certiorari on McGowen's direct appeal on October 12, 1993. ²

In April 1997, McGowen filed an application for writ of habeas corpus in state court raising two issues: (1) whether the trial court should have instructed the jury on the lesser-included offense of simple murder; and (2) whether trial counsel provided ineffective assistance by failing to obtain a biopsychosocial assessment to use as mitigating evidence in the punishment phase. In August 1998, McGowen filed an amended habeas application raising the same two issues as well as several new issues, including that trial counsel inadequately investigated his innocence and inadequately presented mitigating evidence at the punishment phase of the trial.

The state habeas court recommended a denial of relief and issued findings of fact and conclusions of law addressing the merits of the issues raised in the initial and amended applications. The Texas Court of Criminal Appeals denied relief in September 2006, adopting the findings and conclusions as to the issues raised in the initial application and refusing to consider the claims in the amended application.³ The Texas court held that the amended application constituted a “subsequent application” under Article 11.071 of the Texas Code of Criminal Procedure and dismissed the application on procedural grounds as an abuse of the writ.

In October 2006, McGowen commenced the underlying federal action by filing an application for writ of habeas corpus. The district court stayed the proceedings to allow McGowen to file a successive application in state court to exhaust newly brought claims, which the Texas Court of Criminal Appeals dismissed as an abuse of the writ.⁴ McGowen's second amended petition in federal court raised sixteen claims relating to both the guilt/innocence phase and the punishment phase of his trial. Respondent (the Director) sought summary judgment on all of the claims.

The district court held McGowen was entitled to habeas relief on his claim that the Texas special issue questions did not provide an adequate vehicle for consideration of McGowen's mitigating evidence as required by Penry and its progeny, and that the State was required to “either hold a new punishment hearing or commute McGowen's sentence to life imprisonment.” The court therefore did not address the remaining ten claims relating to the punishment phase. Alternatively with respect to the sentencing claims, the district court held that all but three claims were procedurally barred and that those three claims lacked merit. As to the claims relating to the guilt/innocence phase of the trial, the district court held they were procedurally barred, as McGowen had failed to comply with Texas's adequate and independent procedural requirements for presenting the claims. The district court also denied McGowen a certificate of appealability on the guilt/innocence claims. The parties cross-appealed.

II

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this appeal.⁵ Under AEDPA, a...