Roberts v. Thaler

• Decision Date: 07 November 2011
• Docket Number: No. 1:09cv419,1:09cv419
• Parties: DONNIE LEE ROBERTS, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Eastern District of Texas

DONNIE LEE ROBERTS, Petitioner,

v. RICK THALER, Director,Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

No. 1:09cv419

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION

Dated: November 7, 2011

MEMORANDUM OPINION

Donnie Lee Roberts ("Roberts"), an inmate confined to the Texas Department of Criminal Justice, Correctional Institutions Division, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Roberts challenged the capital murder conviction and death sentence imposed by the 411th Judicial District Court of Polk County, Texas, in cause No. 17,493, styled The State of Texas vs. Donnie Lee Roberts, Jr. Having considered the circumstances alleged and authorities cited by the parties, and having reviewed the record and the applicable law, the Court finds that the application is not well-taken and it will be denied.

Facts ¹

At the time of the murder, [Roberts] lived with the victim, Vicki Bowen. [Roberts] was unemployed, often drank alcohol, and used cocaine. Bowen worked as a dental assistant. On October 15, 2003, she went shopping with co-worker Brenda Bland, but she did not show up for work the next day. Because Bowen was a punctual person who always called if she was going tobe late, Bland became concerned and went to Bowen's house to check on her. When Bland arrived at the home, she found the front door open. After knocking and receiving no answer, Bland entered the home and found Bowen dead. Bland noticed that Bowen was still in the scrubs she had worn at work the previous day. She was covered by a blanket and was lying face down with her head turned to the side in a pool of blood. Blood spatters were present in the living room on the coffee table, the couch, and the walls. The medical examiner would later determine that Bowen died from two gunshot wounds to the head.

It was immediately apparent from an examination of the scene that Bowen's television and her son's truck were missing. That same day, the police found [Roberts] after tracking down the stolen truck. It was later determined that [Roberts] had taken the truck, the television, Texans/Titans football tickets, jewelry, a Western Union money order, a .22 rifle, and a .22 pistol. [Roberts] had sold the football tickets for one hundred dollars. He had bought cocaine from Edwin Gary on October 15 on three different occasions, the last of which involved trading the .22 caliber pistol. [Roberts] had apparently abandoned the .22 rifle, later determined to be the murder weapon, a few blocks from where he was found. The Western Union money order was found in the residence at which [Roberts] had parked his truck, but the television and the jewelry were never recovered.

[Roberts] was interviewed and gave a confession. In that confession, he acknowledged that he had "a crack cocaine problem" and that he would go to bars, get drunk, and then look for drugs. With regard to the victim's death, [Roberts] said, "I pointed the gun at her and I told her just give me some money." Later in the interview, [Roberts] stated: "I pointed the gun at her and I said, 'if you'd just give me some money.' And she said 'No.' And then I said, 'Look, it doesn't have to be this way.' That's all I remember saying to her. And the next thing I know, I shot her."

At trial, [Roberts] testified to a different sequence of events. He claimed that he picked up the .22 rifle because it was out of place, near the door. He also claimed that he saw what looked like a .22 pistol in Bowen's pocket and that she moved her hand to her pocket to reach for it. He then said that he "must have chambered a round into the .22 rifle at that time," but he did not remember if he pulled the safety off. He also claimed that he did not remember his gun firing but that he knows it did. [Roberts] further testified that he did not intend to rob Bowen at the time he shot her, but he admitted to taking items of her property later.

Procedural History

On November 24, 2003, Roberts was indicted on a charge of capital murder by a grand jury empaneled by the 258th Judicial District Court of Polk County, Texas.² On October 15, 2004, after a jury trial, Roberts was found guilty of the charge, and on October 27, 2004, after a separate sentencing hearing, and based upon the jury's answers to the Texas special sentencing issues, the trial judge sentenced Roberts to death.³

On appeal, his conviction and sentence were affirmed, and he filed a petition for a writ of certiorari, but it was denied. See Roberts v. State, 220 S.W.3d 521, 524-25 (Tex. Crim. App.), cert. denied, 552 U.S. 920 (2007). While his appeal was pending, Roberts filed a petition for state post-conviction relief. The trial court entered findings of fact and conclusions of law and recommended that his petition be denied, and the Texas Court of Criminal Appeals denied Robert's petition, although it declined to adopt all of the trial court's findings and conclusions. See Ex parte Roberts, Nos. 71,573-01 and 71,573-02, 2009 WL 1337443 (Tex. Crim. App. May 13, 2009) (per curiam) (not designated for publication). On May 11, 2010, Roberts filed an application for a writ of habeas corpus with this Court.

Claims

Roberts raised nineteen claims for relief:

1) His due process rights under Giglio v. United States, 405 U.S. 150 (1972), were violated when the State's expert, Dr. Frederick Mears, testified falsely regarding his academic credentials during the punishment determination phase of Roberts's capital murder trial.

2) His right to be free from cruel and unusual punishment was violated when Dr. Mears testified falsely regarding his credentials during the punishment determination phase of the trial.

3) His due process rights under Romano v. Oklahoma, 512 U.S. 1 (1994), were violated when Dr. Mears testified falsely regarding his credentials during the punishment determination phase of the trial.

4) He received ineffective assistance of counsel when his trial counsel failed to use peremptory strikes on two employees of the Texas Department of Criminal Justice (TDCJ) during voir dire.

5) He received ineffective assistance of counsel when his trial counsel failed to prepare and present expert testimony to rebut the State's expert during the punishment determination phase of his trial.

6) He received ineffective assistance of counsel when his trial counsel failed to prepare and present mitigating evidence during the guilt determination and the punishment determination phases of trial.

7) His due process rights were violated when the trial court required the defense to turn over its investigator's notes to the prosecution during the punishment determination phase of his trial.

8) His right to be free from cruel and unusual punishment was violated because the statutory jury instruction regarding the mitigation special issue unconstitutionally narrows the definition of mitigating evidence to that which reduces a defendant's moral blameworthiness.

9) His right to be free from cruel and unusual punishment was violated when the trial court refused to submit his requested punishment phase jury instruction regarding the definition of mitigating evidence under Tennard v. Dretke, 542 U.S. 274 (2004).

10) His right to be free from cruel and unusual punishment was violated when the trial court refused to allow defense expert Dr. Kathleen McQueen to testify during punishment that Roberts's combined use of alcohol and crack cocaine caused him to commit capital murder.

11) His right to the effective assistance of counsel was denied when his trial counsel failed to object to victim impact evidence from the victim of an extraneous offense.

12) His due process rights were violated when the trial court allowed victim impact evidence from the victim of an extraneous offense.

13) He received ineffective assistance of counsel when his trial counsel failed to object to the prosecution's repeated suggestions that Roberts's parole eligibility could be altered by the Legislature at a future date.

14) His right to be free from cruel and unusual punishment was violated when the trial court refused to allow testimony regarding how a death sentence would affect his family members.

15) His right to trial by jury was violated because his future dangerousness and death worthiness were not presented to a grand jury and alleged in the indictment.

16) His due process rights and his right to be free from cruel and unusual punishment were violated because the jury instructions on mitigating evidence did not contain a burden of proof.

17) His due process rights and his right to be free from cruel and unusual punishment were violated because the State was not required to prove beyond a reasonable doubt any extraneous offense evidence or the victim impact evidence it offered to rebut his mitigating evidence.

18) His due process rights were violated when the trial court refused his request to present his final argument on the mitigation special issue after, rather than before, the prosecution presented its final argument on the issue.

19) His due process rights under Caldwell v. Mississippi, 472 U.S. 320 (1985), were violated when the prosecution suggested that Roberts might not serve forty calendar years minimum if sentenced to life imprisonment.

Standard of review

Because Roberts's application for a writ of habeas corpus was filed after 1996, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") applies to his claims. Under the AEDPA, a state prisoner seeking to raise claims in a federal petition for habeas corpus ordinarily must fairly present those claims to the state court and thereby exhaust his state remedies. Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001), cert. denied sub nom. Martinez v. Cockrell, 534 U.S. 1163 (2002). If an applicant raises a claim in his federal habeas corpus application that was not fairly presented to the state courts, the federal court has three options: It can allow the applicant to return to state...