Roberts v. Thaler

• Decision Date: 15 May 2012
• Docket Number: No. 11–70032.,11–70032.
• Citation: 681 F.3d 597
• Parties: Donnie Lee ROBERTS, Petitioner–Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

681 F.3d 597

Donnie Lee ROBERTS, Petitioner–Appellant,

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

No. 11–70032.

United States Court of Appeals, Fifth Circuit.

May 15, 2012.

Douglas Milton Barlow (Court–Appointed), Barlow Law Firm, Beaumont, TX, for Petitioner–Appellant.

Edward Larry Marshall, Office of the Atty. Gen., Postconviction Lit. Div., Austin, TX, for Respondent–Appellee.

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

Before KING, JOLLY and GRAVES, Circuit Judges.

KING, Circuit Judge:

Donnie Lee Roberts was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals rejected both his direct and postconviction appeals. He then filed for federal habeas relief in the district court. The district court rejected his petition for habeas relief, but granted him a certificate of appealability to pursue three claims arising from his sentencing hearing dealing with, respectively, the restrictions on his expert's testimony, the alleged ineffective assistance of his trial counsel in failing to object to victim impact testimony, and the restriction on execution impact testimony. Roberts's first claim is procedurally defaulted and, alternatively, fails on the merits. His ineffective assistance claim also fails on the merits, and his execution impact claim is procedurally barred. We, therefore, AFFIRM the district court's denial of habeas relief to Roberts.

I. FACTUAL AND PROCEDURAL BACKGROUND

The district court summarized the facts underlying Donnie Lee Roberts's (“Roberts”) case as follows:

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 to be 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.

Roberts v. Thaler, No. 1:09cv419, 2011 WL 5433982, at *1–2 (E.D.Tex. Nov.7, 2011) (citing Roberts v. State, 220 S.W.3d 521, 524–25 (Tex.Crim.App.2007)).

Roberts was found guilty of capital murder on October 15, 2004, and, following a subsequent sentencing hearing, was sentenced to death on October 27, 2004. Id. at *2. Roberts's conviction and sentence were both affirmed by the Texas Court of Criminal Appeals (“TCCA”) on direct appeal. See Roberts, 220 S.W.3d at 524–25. His petition for state postconviction relief was denied, with the TCCA adopting most, but not all, of the lower court's findings and conclusions. See Ex parte Roberts, Nos. 71,573–01, 71,573–02, 2009 WL 1337443, at *1 (Tex.Crim.App. May 13, 2009).

Roberts then filed for federal habeas relief in the district court for the Eastern District of Texas, raising nineteen claims for relief. See Roberts, 2011 WL 5433982, at *2–3. The district court rejected all of Roberts's claims for habeas relief on a variety of procedural and substantive grounds on November 7, 2011. Id. at *26. On December 7, 2011, the district court granted Roberts a certificate of appealability (“COA”) to continue to pursue three of his claims before this court: (1) that his right to be free from cruel and unusual punishment was violated when the trial court refused to let his expert testify during Roberts's sentencing that Roberts's combined use of alcohol and cocaine caused him to commit the capital murder; (2) that he was denied the effective assistance of counsel when his trial counsel failed to object during the sentencing hearing to testimony that Roberts alleges was improper victim impact evidence from an extraneous crime; and (3) that his right to be free from cruel and unusual punishment was violated when the trial court refused to allow testimony from Roberts's family member as to how his execution would impact her. We first address the proper standard of review under the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, and then resolve each of Roberts's claims in turn.

II. DISCUSSION

A. Standard of Review

The district court's grant of a COA to Roberts gives us jurisdiction to review his claims. See 28 U.S.C. § 2253(c); Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “In an appeal of the district court's denial of habeas relief, ‘this court reviews the district court's findings of fact for clear error and its conclusions of law de novo, applying the same standard of review that the district court applied to the state court decision.’ ” Austin v. Cain, 660 F.3d 880, 884 (5th Cir.2011) (quoting Jones v. Cain, 600 F.3d 527, 535 (5th Cir.2010)).

Roberts's appeal is governed by AEDPA, 28 U.S.C. § 2254. Under § 2254(d)(1), if the state court denied the petitioner's claim on the merits, a federal court may grant habeas corpus relief only if the state court's adjudication of his claim “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....” To be clear, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis added); see also Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (“It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). “A state court's decision is contrary to clearly established federal law if it applies a rule that contradicts the governing law set forth in Supreme Court cases ... or if the state court decide[s] a case differently than the United States Supreme Court previously decided a case on a set of nearly identical facts.” Jones, 600 F.3d at 535 (citations and internal quotation marks omitted). Similarly, “[a] state court's decision involves an unreasonable application of clearly established federal law if the state court ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.’ ” Fields v. Thaler, 588 F.3d 270, 273 (5th Cir.2009) (quoting Williams, 529 U.S. at 407–08, 120 S.Ct. 1495).

AEDPA also governs our review of factual determinations. See Chester v. Thaler, 666 F.3d 340, 348 (5th Cir.2011). Under § 2254(e)(1), the state court's factual findings are accorded a presumption of correctness and the petitioner may only rebut this presumption with clear and convincing evidence. See Miller–El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Moreover, we may not grant habeas relief unless the state court determination “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)(2).

Finally, we may not review a habeas claim “if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal...