Pierce v. Thaler, 08-70042.

• Decision Date: 19 April 2010
• Docket Number: No. 08-70042.,08-70042.
• Citation: 604 F.3d 197
• Parties: Anthony L. PIERCE, 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

604 F.3d 197

Anthony L. PIERCE, Petitioner-Appellee Cross-Appellant,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant Cross-Appellee.

No. 08-70042.

United States Court of Appeals, Fifth Circuit.

April 19, 2010.

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Paul Edward Mansur (argued) (Court-Appointed), Denver City, TX, David R. Dow (Court-Appointed), Texas Defender Serv., Houston, TX, for Pierce.

Thomas Merrill Jones, Asst. Atty. Gen. (argued), Postconviction Lit. Div., Austin, TX, for Thaler.

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

Before KING, DENNIS and OWEN, Circuit Judges.

KING, Circuit Judge:

The petitioner-appellee, Anthony L. Pierce, was sentenced to death in 1986 in Texas state court for a murder committed during the course of a robbery in 1977. After exhausting his state-court avenues for postconviction relief in 2007, he sought habeas relief under 28 U.S.C. § 2254 in federal district court. The district court vacated Pierce's death sentence and ordered resentencing, finding that the statutory special issues presented to the jury at Pierce's sentencing did not permit the jury to give meaningful consideration and effect to all of Pierce's mitigating evidence, as Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), requires. The district court denied Pierce's other asserted bases for habeas relief and denied a certificate of appealability (COA). The State appealed the resentencing. Pierce, in turn, sought a COA from this court on six of the issues raised before the district court. We granted a COA as to two of those issues: Whether Pierce received ineffective assistance of counsel at sentencing, and whether Pierce was mentally retarded and therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

We now affirm the district court's grant of resentencing under Penry. Because we affirm resentencing on that basis, we do not address whether Pierce's ineffective assistance of counsel claim provides an alternate basis for resentencing. We affirm the district court's denial of habeas relief and an evidentiary hearing on Pierce's Atkins claim. The reasons for these rulings are explained below.

I. BACKGROUND

The district court's exhaustive opinion more than adequately documents the factual background and procedural development of this case. See Pierce v. Quarterman, No. H-07-1561, 2008 WL 4445064 (S.D.Tex. Sept. 26, 2008). Here, we recite only the facts and procedure necessary to our analysis of the Penry and Atkins claims.

Anthony L. Pierce was convicted of capital murder for the shooting death of Fred Eugene Johnson, the manager of a Church's Chicken in Houston, during a robbery of that restaurant on August 4, 1977. Pierce's first two convictions were overturned by the Texas Court of Criminal Appeals (TCCA), in both cases because the trial court had improperly overruled defense counsel's challenges to certain venire members. See Pierce v. State, 604 S.W.2d 185 (Tex.Crim.App.1980); Pierce v. State, 696 S.W.2d 899 (Tex.Crim.App.1985). Pierce was tried and convicted a third time and sentenced to death in 1986. The TCCA affirmed the conviction and sentence Pierce v. State, 777 S.W.2d 399 (Tex.Crim.App.1989) cert. denied, 496 U.S. 912, 110 S.Ct. 2603, 110 L.Ed.2d 283 (1990), and denied his application for postconviction relief Ex parte Pierce, No. 15,859-03 (Tex.Crim.App. Sept. 19, 2001). On August 29, 2002, Pierce filed a successor state habeas application in which he contended that he was mentally retarded and therefore ineligible for the death penalty under Atkins. The TCCA denied the application on April 18, 2007. Ex parte Pierce, No. 15,859-04, 2007 WL 1139414 (Tex.Crim.App. Apr.18, 2007). Pierce filed a 28 U.S.C. § 2254 federal habeas petition on May 9, 2007, an amended federal habeas petition on August 30, 2007, and a supplemental federal habeas petition on July 1, 2008.

On cross-motions for summary judgment, the district court granted Pierce habeas relief on one of his sentencing claims, concluding that the special issues presented to the jury at the sentencing phase did not permit the jury to give meaningful consideration and effect to all of Pierce's mitigating evidence, in violation of Penry. The district court denied the remaining asserted bases for habeas relief and sua sponte denied a COA on those issues. See Pierce v. Quarterman, 2008 WL 4445064. We granted a COA as to Pierce's claims that he received ineffective assistance of counsel at the sentencing phase and that because he is mentally retarded, his execution is precluded by Atkins. We ordered (and have received several rounds of) supplemental briefing as to these issues and denied a COA as to all other issues.

II. STANDARD OF REVIEW

This habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254, because Pierce filed his federal petition on May 9, 2007, well after AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336-37, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, a federal court may not grant a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the state court's adjudication: “(1) 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 (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). A “rule[ ] of law may be sufficiently clear for habeas purposes even when [it is] expressed in terms of a generalized standard rather than as a bright-line rule.” Williams v. Taylor, 529 U.S. 362, 382, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The relevant “clearly established federal law” is the law that existed at the time the state court's denial of habeas relief became final. See Abdul-Kabir v. Quarterman, 550 U.S. 233, 238, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007); Williams, 529 U.S. at 390-94, 120 S.Ct. 1495. A state court's factual findings are “presumed to be correct,” although a habeas petitioner may rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). We review a district court's refusal to hold an evidentiary hearing for abuse of discretion. Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir.2000).

III. THE PENRY ISSUE

The district court vacated Pierce's death sentence and ordered resentencing after concluding that the statutory special issues presented to the jury at sentencing and the prosecutor's closing arguments regarding those special issues precluded the jury from giving meaningful consideration and effect to all of Pierce's mitigating evidence, as Penry requires. Pierce, 2008 WL 4445064, at *5. The State appeals, arguing that the special issues in fact permitted the jury to give meaningful consideration and effect to the mitigating evidence. The special issues, as prescribed by a now-superseded version of the Texas Code of Criminal Procedure, were:

1) Whether Pierce's conduct that caused Johnson's death was deliberate and undertaken with the reasonable expectation that the death of the victim or another would result; and

2) Whether there was a probability that Pierce would commit future criminal acts of violence that would constitute a continuing threat to society.

See Tex.Code Crim. Proc. Ann., art. 37.071(b) (Vernon 1981);¹

see also Tex.Code Crim. Proc. Ann., art. 37.0711 § 1 (Vernon 2006) (noting that superseded statute applies to offenses committed before September 1, 1991).

A. The District Court's Opinion

The district court summarized the mitigating evidence that Pierce presented at sentencing as including that: Pierce was young at the time of the crime (he had turned eighteen just 15 days before); his behavior in prison while incarcerated at various points both before and after the crime was generally good; he was not a discipline problem as a child and was honest and respectful toward his mother and admitted past wrongs to her; he had matured emotionally and spiritually while in prison; and he had developed intellectually and creatively while in prison, improving his verbal abilities and making crafts, such as picture frames and jewelry boxes. Pierce, 2008 WL 4445064, at *2. The district court rejected as unreasonable the TCCA's conclusion that the special issues permitted the jury to give meaningful consideration and effect to this mitigating evidence. Noting that “ Penry makes clear that jurors must have an opportunity to fully consider the mitigating evidence as it bears on the broader question of the defendant's moral culpability,” id. at *5 (alterations and internal quotation marks omitted), the district court observed:

On the face of the special issues, the jury could consider some of Pierce's evidence under the future dangerousness special issue. For example, Pierce's youth at the time of the offense and his behavior in prison are relevant to that issue. Other evidence, however, is irrelevant, or is only partially relevant, to the future dangerousness issue, yet raises questions about Pierce's general moral culpability and character. For example, his honesty and respect toward his mother, his willingness to admit past wrongs, his efforts to improve himself through education, and his work making craft items have little relevance to future dangerousness, but are relevant as to his character.

Id. (citations omitted).

The district court also held that the “ Penry violation was exacerbated by prosecution comments during closing argument,” which the district court found “suggest[ed] to the jury that it could not consider Pierce's mitigating evidence at all ... but could consider only whether the State presented sufficient evidence to merit a ‘yes'...