Skinner v. Quarterman, 07-70017.

• Decision Date: 14 July 2009
• Docket Number: No. 07-70017.,07-70017.
• Citation: 576 F.3d 214
• Parties: Henry W. SKINNER, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

576 F.3d 214

Henry W. SKINNER, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 07-70017.

United States Court of Appeals, Fifth Circuit.

July 14, 2009.

Douglas George Robinson, Skadden, Arps, Slate, Meagher & Flom, L.L.P., Washington, DC, Robert Charles Owen (Court-Appointed), Owen & Rountree, Austin, TX, for Skinner.

Katherine D. Hayes, Austin, TX, for Quarterman.

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

Before SMITH, WIENER, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Henry Skinner, convicted of capital murder and sentenced to death, appeals the denial of his petition for writ of habeas corpus. We find no error and affirm.

I.

A.

We described the facts and procedural history in Skinner v. Quarterman, 528 F.3d 336, 339-40 (5th Cir.2008). In summary, Skinner lived with his girlfriend Twila Busby and her two mentally retarded sons, Randy Busby and Elwin Caler. Trial evidence showed that Twila left Skinner passed-out-drunk at home while she attended a New Year's Eve party from about 10:30 to 11:15 p.m.¹ At midnight, a police officer found Elwin on a neighbor's porch with multiple stab wounds; he died shortly thereafter in the hospital. The police found Twila's dead body in her living room, where she had been strangled to unconsciousness and beaten with a blunt object at least fourteen times. Randy lay dead in the upper bunk of his bedroom with three stab wounds in his back.

Three hours later, the police located Skinner at the home of an ex-girl-friend, Andrea Reed. Reed testified that Skinner arrived at midnight, appeared intoxicated, threatened to kill her if she called the police, and told her that he had kicked Twila to death. DNA testing showed that blood on Skinner's clothing belonged to Twila and Elwin, and he had a gash on the palm of his right hand.

Skinner presented evidence that he was too intoxicated, from alcohol and codeine, to have committed the murders. An expert testified that, based on blood-alcohol levels, Skinner should barely have been able to walk, let alone commit three murders. Skinner also argued that Robert Donnell, Twila's uncle, was the murderer.

B.

The jury sentenced Skinner to death, and the Texas Court of Criminal Appeals affirmed. Skinner filed a federal petition for writ of habeas corpus, raising a variety of ineffective-assistance-of-counsel claims that the district court rejected. We granted a certificate of appealability ("COA") on two of those claims. Id. at 345. Specifically, Skinner alleges that counsel should have made use of a blood-spatter report at trial and failed to discover and present testimony from a particular potential witness.

II.

"As a mixed question of law and fact, we review de novo the district court's resolution of [the petitioner's] ineffective assistance of counsel claims." Smith v. Quarterman, 515 F.3d 392, 403 (5th Cir. 2008). To prevail on such a claim, Skinner "must establish: (1) that counsel's representation fell below an objective standard of reasonableness and (2) that the deficient representation caused prejudice, which requires a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Coble v. Quarterman, 496 F.3d 430, 435 (5th Cir. 2007) (citations and internal quotation marks omitted). "Our scrutiny of counsel's performance is `highly deferential' and there is a `strong presumption' that any alleged deficiency `falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "The petitioner must `affirmatively prove,' not just allege, prejudice. If the petitioner fails to prove the prejudice component, the court need not address the question of counsel's performance." Day v. Quarterman, 566 F.3d 527, 536 (5th Cir.2009) (citing and quoting Washington, 466 U.S. at 693, 697, 104 S.Ct. 2052).

A.

Skinner asserts that his attorney should have used a police report that analyzed photographs of a blood spatter on Elwin's body. Based on the spatter pattern, the report concluded that Elwin was "in the immediate vicinity of the victim Twila Busby at the time of her assault."²

Skinner alleges that failure to use the report was prejudicial in two regards. First, one of the defense's expert trial witnesses, Dr. Lowry, testified that Skinner would have been in a "stuporous state" at the time of the murders and could not have committed them on account of the amount of alcohol and codeine in his system. Skinner now avers that counsel was deficient for not giving Lowry the report, because it would have bolstered the intoxication defense by demonstrating, for the first time, that the murderer would have needed the dexterity to contend with Twila and Elwin simultaneously.

Second, counsel explained, in closing argument, that a bloody hand print found low on the door frame of Elwin and Randy's bedroom was consistent with "somebody who's prone and trying to get up on their feet and having trouble navigating. ..." The prosecution rebutted with the theory that the print was left when Skinner entered the room and "Elwin Caler came out of [the] bottom bunk." Skinner contends that his attorney should have objected to that theory, because the report showed that any altercation between Skinner and Elwin would have occurred in the living room.³

We agree with the district court that Skinner has failed to demonstrate that the omission of the report was sufficiently prejudicial. Even taking the report at face value,⁴ Skinner overstates its implications.

As the district court pointed out, the forensic evidence showed that Twila "would have been unconscious from strangulation before she was beaten," and therefore, Skinner "would not have had two live, active victims in the same room." Instead, Twila "would have been unconscious or already dead when [Elwin] appeared." Skinner concedes the point but argues that "the killer must have stopped beating Twila, put down the ax handle, found a knife, and stabbed Elwin repeatedly," which would require more "strength, mindfulness and coordination ... than Skinner likely possessed and more than would have been required for the killer to go from room to room, attacking his victims seriatim."

That situation, however, is not significantly different from the one that the state presented to the jury. The prosecution's closing-argument theory was that Skinner killed Twila alone in the living room and then dealt with Elwin and Randy in the bedroom, where Elwin knocked Skinner to the ground, causing him to leave the bloody hand print. The inference from the report only changes the location of any confrontation with Elwin from the bedroom to the living room. If anything, it would be easier for an intoxicated Skinner to stab Elwin when he walked in on the beating of an unconscious Twila than for Skinner to overcome Elwin after being knocked to the ground in the same room as Randy.⁵ It is therefore not reasonably probable that the blood spatter evidence would have caused the jury to acquit Skinner.

Counsel's failure to object during closing argument is similarly nonprejudicial. Had an objection prevented the prosecution from introducing its theory that Elwin came out of the bottom bunk, that would have left unrebutted the defense's speculation that the print was consistent with a stuporous Skinner's trying to get to his feet. The value of that speculation is attenuated, however, because it provided only circumstantial corroboration for Lowry's already-extensive testimony about Skinner's intoxication.

Moreover, most of Skinner's activities during the evening of the murder were inconsistent with the defense that he was in a "stuporous state." For example, Lowry testified that someone in such a state should have been unable to stand up or walk and that it was "highly unlikely" that Skinner would have been awake at midnight. Yet, Skinner walked four blocks in the dark to Reed's house shortly after midnight.⁶

Lowry also admitted his "surprise" at Skinner's ability to perform a number of actions upon arriving at Reed's house, including taking his shirt off, asking Reed to sew up a cut on his hand, and threatening to kill her when he caught her on the phone. In short, had counsel objected to the prosecution's explanation for the hand print, the best Skinner could have hoped for was that the defense's circumstantial speculation would have lent small support to an already-weak intoxication theory.

Finally, there was ample evidence that Skinner was the murderer: He confessed to Reed that he had killed Twila; there was no physical evidence of anyone else's having entered the house the night of the murders; and DNA testing demonstrated that the blood on Skinner's shirt belonged to Twila and Elwin. We find no "reasonable probability that, but for counsel's [failure to use the blood spatter report], the result of the proceeding would" have been acquittal. Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Washington, 466 U.S. at 694, 104 S.Ct. 2052).

B.

Skinner complains of his attorney's failure to uncover additional evidence to support the theory that Twila's uncle, Robert Donnell, was the murderer. Specifically, Skinner argues that counsel should have discovered and presented the testimony of Debra Ellis, Donnell's neighbor. In our grant of COA, we summarized the relevant sections of Ellis's proposed testimony:

[A] couple of days after the murders, she saw Donnell thoroughly clean the carpets and inside of his truck and paint the outside; she had never seen him clean the truck before. She noted, however, that when she went out to the truck as he was cleaning it, she did not see blood or anything else unusual. Ellis also testified that Donnell carried...