Sheppard v. Davis

• Decision Date: 22 July 2020
• Docket Number: No. 18-70011,18-70011
• Citation: 967 F.3d 458
• Parties: Erica Yvonne SHEPPARD, Petitioner — Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent — Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

967 F.3d 458

Erica Yvonne SHEPPARD, Petitioner — Appellant,

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent — Appellee.

No. 18-70011

United States Court of Appeals, Fifth Circuit.

Filed July 22, 2020

William Alan Wright, Kilpatrick Townsend & Stockton, L.L.P., Dallas, TX, Kevin M. Bell, Kilpatrick Townsend & Stockton, L.L.P., Denver, CO, for Petitioner-Appellant.

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General, Tina J. Miranda, Assistant Attorney General, Office of the Attorney General for Respondent-Appellee.

Before King, Smith, and Haynes, Circuit Judges.

Jerry E. Smith, Circuit Judge:

A jury found Erica Sheppard guilty of capital murder and sentenced her to death. She applied for a federal writ of habeas corpus, claiming that the state violated her rights under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that her attorney rendered ineffective assistance of counsel in neglecting to object to certain comments by the trial judge and the prosecution and in failing to present sufficient mitigating evidence at the punishment phase. The district court denied her petition, concluding that the relitigation bar of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") foreclosed relief. We affirm.

I.

In 1993, Sheppard and James Dickerson noticed a parked vehicle belonging to Marilyn Meagher with its trunk open. Short on cash, they decided to enter the nearby apartment, "rob whoever was in[side] ..., and steal the [vehicle]." Upon encountering Meagher, Sheppard tackled and restrained her as Dickerson held a knife to her throat. Although Meagher begged for her life—pleading that she had two children—Dickerson began to slash at her neck. When the blade proved too dull to cut, Sheppard retrieved a butcher's knife from the kitchen and handed it to Dickerson. As Meagher continued to gasp for air, Sheppard held her in place while Dickerson repeatedly pummeled her with a statuette. Meagher's daughter found her mother's body later that evening in a pool of blood.

Sheppard confessed and was tried for capital murder. At trial, she objected that the prosecutor had used a peremptory challenge to strike venire member Ronnie Simpson because he was black. The prosecutor justified the strike because Simpson had indicated that he would have trouble giving the death penalty based solely on the facts of the crime and would consider, as a mitigating factor, whether a defendant had children. Moreover, the prosecutor explained that, as a victim of a false arrest, Simpson appeared sympathetic to Sheppard's plight. In fact, Simpson "shifted over, looked at [Sheppard], and said hello" but did not extend the same cordiality to the prosecution.

Sheppard responded that the prosecution's reasons were pretextual because it had accepted two similarly situated white jurors. Specifically, Larry Chambers acknowledged that "[i]t would be hard" to impose the death penalty on the facts of the crime alone, especially where the defendant did not personally murder the victim. Chambers also voiced concern about sentencing to death a young mother with children. David Herd stated that his son had been prosecuted for an incident with his girlfriend, which, in Herd's view, did not warrant a felony charge and proved to be "quite an ordeal" for his family.

The trial court took judicial notice of the fact that two of the selected jurors were black and that the state had exercised only three of its nine peremptory challenges against black venire members. It therefore overruled Sheppard's objection.

During voir dire, the judge instructed one venire panel that, under Texas's law of parties, each party to an offense "should be equally responsible as to punishment." Sheppard raised no objection. One of the members of the venire panel ultimately served as a juror, and another sat as an alternate.

The prosecutor remarked to three venire members during voir dire that Texas "do[es] not have life without parole" and that Sheppard would likely have to serve a minimum of thirty-five years before being eligible for parole. He noted, however, that a defendant previously had to serve only fifteen years to become eligible and that the Texas Legislature has since "changed those minimum requirements of years in the penitentiary." Although the Legislature could "easily" change the requirements again, he reminded the jurors that "the parole law itself is not for [their] consideration" and that they "[we]re not permitted to consider[ ] what the [L]egislature might do in the future." At no point did Sheppard object to those comments.

Before a death penalty can be imposed, Texas law requires that the jury evaluate whether (1) "the defendant would commit criminal acts of violence" in the future; (2) "the defendant actually caused the death of the deceased or" simply "intended ... or anticipated that a human life would be taken"; and (3) mitigating circumstances such as the defendant's character, background, and moral culpability instead warrant a sentence of life imprisonment. TEX. CODE CRIM. PRO. ANN. art. 37.071, § 2(b)(1) – (2), (e)(1). At the punishment phase, the state introduced evidence that Sheppard had a poor reputation for being peaceful and law-abiding in her community. She had formerly "jacked" cars for profit and had participated in a drive-by shooting that resulted in the victim's hospitalization. The night before the murder, Sheppard had been seen "dressed in dark clothing" and closely following "a lady who was ... practically running across the parking lot." And while in prison awaiting trial, Sheppard allegedly had bragged about the murder and threatened to harm one of the inmates. Meagher's family also testified to the impact of her gruesome murder, which left them "depressed," "fatigued[,] and ... traumatized."

In response, the defense called Patricia Birdwell, the director of the Matagorda County Women's Crisis Center, who testified that her organization provided protection for abused women and that Sheppard had been admitted to the center. Birdwell introduced records showing that, at the time, Sheppard had been in "a lot of pain," wanted a divorce, and was seeking legal assistance.

Next, Ronda Robinson, the records custodian for Covenant House, discussed that Sheppard had been admitted to the emergency shelter for runaway and homeless youth. As evidenced by the records, Sheppard came to Covenant House on two occasions, "looking for shelter for her and her baby." She had a history of running away from home and alleged that her mother had physically abused her. By the age of seventeen, Sheppard was pregnant with her second child and had dropped out of the tenth grade.

The defense then called psychiatrist Priscilla Ray, who had reviewed Sheppard's prison medical records and conducted a two-hour psychiatric interview to evaluate her sanity, competence, and the influence of abusive men. Although Ray was not asked to perform a medical diagnosis, she was able to conclude that Sheppard suffered from chronic depression that was likely genetic and only partially treated. Ray testified that Sheppard had appeared sad throughout the interview and had cried when recounting the murder. Though recognizing that Sheppard tended to be "a follower," Ray predicted that she was unlikely to pose a continuing threat to society, especially in prison where she would be insulated from the influence of abusive men.

In addition to Ray's testimony, the defense introduced a five-page report of her clinical evaluation, which offered a somber glimpse into Sheppard's troubled past. As the report revealed, Sheppard's parents divorced when she was an infant, leaving her primarily in the care of her grandmother. Sheppard struggled to perform well in school and had to retake the fourth grade. Between the ages of three and five, her babysitter's boyfriend repeatedly molested her and forced her to perform oral sex. And as a teenager, she was raped at knifepoint while living on the streets. At age nineteen, Sheppard already had three children, each from a different father. Jerry Bryant, the father of her youngest child, was physically abusive and threatened to kill her if she ever left him. Perhaps unsurprisingly, Sheppard admitted to experiencing depression and mood swings and to hearing voices in her head. She also confided that she had helped murder Meaghan because Dickerson had "pulled a knife on her," saying that "he would kill her and her baby" if she did not comply. She allegedly "went into shock" and acted only under duress.

The defense then summoned family friend Patrice Green, who testified that Sheppard had faithfully attended church her whole life. Finally, Sheppard's grandmother, Annie Smith, confirmed that Bryant had abused Sheppard. During closing arguments, defense counsel specifically pointed to Ray's report and directed the jury to consider Sheppard's "background, her record, [and] her emotional instability" as mitigating factors. Despite counsel's efforts to portray Sheppard favorably as a "young ... female" with "kids" and "a background of abuse," the jury sentenced her to death.

The Texas Court of Criminal Appeals ("TCCA") affirmed Sheppard's conviction and sentence on direct appeal. The court rejected Sheppard's claim that the prosecutor had improperly struck Simpson because he was black, noting that "[t]he State's race-neutral apprehensions [we]re well established in the record." Sheppard applied for state habeas relief, renewing her Batson challenge and alleging, inter alia , that her attorney was ineffective in failing to (1) investigate and present sufficient mitigating evidence at the punishment phase; (2) object to the trial judge's erroneous instruction on the law of parties; and (3) object to the prosecutor's misleading statements regarding parole availability.

In support of her application, Sheppard submitted affidavits from a number of fact and...