Pierce v. Thaler, No. 08-70042 (5th. Cir. 12/7/2009)

• Decision Date: 07 December 2009
• Docket Number: No. 08-70042.,08-70042.
• Parties: ANTHONY LEROY 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

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ANTHONY LEROY 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.

Filed: December 7, 2009.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:07-CV-1561.

Before: KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM.^*

In 1986, a Texas jury convicted and sentenced to death petitioner—appellee Anthony Leroy Pierce for the murder of Fred Eugene Johnson during a robbery of a Church's Chicken restaurant in 1977. State appellate courts affirmed the conviction and sentence and denied post-conviction relief. Pierce then brought a federal habeas petition under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. The district court granted Pierce substantive relief on one of his sentencing claims, concluding that the special issues presented to the jury at the sentencing phase did not properly permit the jury to consider and give effect to Pierce's mitigating evidence, in violation of Penry v. Lynaugh, 492 U.S. 302 (1989). The district court denied the remaining bases for substantive relief and denied a certificate of appealability (COA) on those issues. The State's appeal of the district court's grant of relief under Penry is now before us, as is Pierce's request for a COA for some of the claims he unsuccessfully raised in the district court. We grant Pierce's request for a COA as to his claims that he is mentally retarded (rendering him ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002)), and that he received ineffective assistance of counsel. Pierce's request is denied on all other claims.

We reserve opinion on the government's appeal of the Penry issue until after oral argument, during which we will hear argument as to Pierce's Penry, Atkins, and ineffective assistance claims.

I. Factual and Procedural 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 so many of the facts and procedure as are necessary to provide a framework for our grant in part and denial in part of a COA.

Pierce was indicted for 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, 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 Texas Court of Criminal Appeals (TCCA) affirmed the conviction and sentence, Pierce v. State, 777 S.W.2d 399 (Tex. Crim . App. 1989), cert. denied, 496 U.S. 912 (1990), and denied his application for postconviction relief, Ex parte Pierce, No. 15859-03 (Tex. Crim. App. Sept. 19, 2001). On August 29, 2002, Pierce filed a successor state habeas application, which the TCCA denied 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.

Pierce presented thirteen issues to the district court. On cross-motions for summary judgment, the district court granted Pierce relief on the first of these issues: whether the statutory special issues presented to the jury at sentencing, and the prosecutor's closing arguments regarding those special issues, precluded the jury from "consider[ing] and giv[ing] effect to" Pierce's mitigating evidence, as Penry v. Lynaugh, 492 U.S. 302 (1989), requires. The district court granted summary judgment to the State on the remaining twelve issues, denying the relief Pierce sought and declining to grant a COA. Pierce now seeks a COA as to five issues on which the district court denied relief.

II. Standards of Review

Pierce's motion is governed by the applicable provisions of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 335-36 (1997). Under AEDPA, a state habeas petitioner may appeal a district court's dismissal of his petition only if the district court or the court of appeals first issues a COA. 28 U.S.C. § 2253(c)(1)(B); see also Miller—El v. Cockrell, 537 U.S. 322, 336 (2003) (describing a COA as a "jurisdictional prerequisite" without which "federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners"). In determining whether to grant a petitioner's request for a COA, we limit our "examination to a threshold inquiry into the underlying merit of [the petitioner's] claims." Miller—El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)). "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." Id. at 336.

We will grant a request for a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to grant a COA for one of Pierce's substantive claims, we must conclude only that Pierce has demonstrated the threshold showing for that substantive claim. See Miller—El, 537 U.S. at 327. "Although the issuance of a COA `must not be pro forma or a matter of course,' the petitioner satisfies the burden under § 2253(c) `by demonstrat[ing] that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005) (alteration in original) (quoting Miller—El, 537 U.S. at 337-38). "[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." Miller—El, 537 U.S. at 338. "[A]ny doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner." Pippin, 434 F.3d at 787.

In determining whether the district court's denial of Pierce's petition for a COA on his claims was debatable, we must keep in mind the deferential standard of review that AEDPA requires a district court to apply to the state court's rulings. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) ("With respect to the review of factual findings, AEDPA significantly restricts the scope of federal habeas review."). Under AEDPA,

a federal court is not to grant a writ of habeas corpus "with respect to any claim that was adjudicated on the merits in State court proceedings" unless it determines that the state court's adjudication "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."

Pippin, 434 F.3d at 787 (quoting 28 U.S.C. § 2254(d)(1)). Moreover, a "`determination of a factual issue made by a State court shall be presumed to be correct' unless the petitioner rebuts the presumption `by clear and convincing evidence.'" Id. at 788 (quoting 28 U.S.C. § 2254(e)(1)). "This presumption of correctness attaches not only to explicit findings of fact, but also to `unarticulated findings which are necessary to the state court's conclusions of mixed law and fact.'" Id. (quoting Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)).

Under AEDPA, a federal district court may grant an evidentiary hearing only if the prisoner diligently and reasonably attempted, "in light of the information available at the time, to investigate and pursue claims in state court." Williams v. Taylor, 529 U.S. 420, 435 (2000); see also 28 U.S.C. § 2254(e)(2)(a)(ii) ("[T]he [district] court shall not hold an evidentiary hearing on the claim unless the applicant shows that . . . the claim relies on . . . a factual predicate that could not have been previously discovered through the exercise of due diligence."). For state courts to have a full and fair opportunity to adjudicate the habeas applicant's constitutional claims, "[d]iligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Williams, 529 U.S. at 437. Even then, mere requests for an evidentiary hearing will not demonstrate reasonable diligence. Burton v. Terrell, 576 F.3d 268, 273 (5th Cir. 2009); Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000). "In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court." Schriro v. Landrigan, 550 U.S. 465, 468 (2007). A district court's decision to grant or deny an evidentiary hearing is reviewed for abuse of discretion. Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir. 2009).

III. Analysis

Pierce seeks a COA as to five issues: (1) whether the prosecution's failure to disclose certain exculpatory evidence violated Brady v. Maryland, 373 U.S. 83 (1963), and therefore entitles Pierce to a new trial; (2) whether the trial court erred in not allowing an architect to testify as an expert witness regarding alleged flaws in the lineup in which Pierce was identified; (3) whether the jury improperly considered extraneous information or otherwise committed misconduct; (4) whether Pierce is a mentally retarded offender whose execution is barred by Atkins v. Virginia, 536 U.S. 304 (2002); and (5) whether Pierce's trial counsel provided ineffective assistance by failing to investigate and present certain...