Smith v. Davis
| Decision Date | 13 June 2019 |
| Docket Number | No. 18-70015,18-70015 |
| Citation | 927 F.3d 313 |
| Parties | Demetrius Dewayne SMITH, Petitioner–Appellee, Cross-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David R. Dow, Jeffrey R. Newberry, University of Houston, Law Center, Houston, TX, for Petitioner-Appellee Cross-Appellant.
Matthew Dennis Ottoway, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, for Respondent-Appellant Cross-Appellee.
Before CLEMENT, OWEN, and HAYNES, Circuit Judges.
Demetrius Dewayne Smith was convicted of capital murder in Texas state court and sentenced to death. The state court's judgment was affirmed on direct appeal, and Smith's state habeas petition was denied. In this federal habeas proceeding, the federal district court held that the Texas Court of Criminal Appeals' application of Witherspoon v. Illinois1 and its progeny was unreasonable because, the district court concluded, the state trial court violated Smith's constitutional right to an impartial jury under the Eighth and Fourteenth Amendments when it excluded a member of the venire for having moral, conscientious, or religious objections to the death penalty. Respondent Lorie Davis (to whom we will refer as the State) appeals. We reverse the district court's judgment to the extent that it conditionally grants habeas relief, and we otherwise affirm the district court's judgment.
Smith was convicted by a jury in June 2006 of a capital offense for the murders of Tammie White, who was the mother of three, and her eleven-year-old daughter, Kristina White.2 The facts regarding these brutal killings are set forth briefly in the opinion of the Texas Court of Criminal Appeals (TCCA) on direct appeal,3 and we will not recount them here.
Based upon the jury's answers to the special issues submitted in the punishment phase, the trial court sentenced Smith to death.4 Appeal to the TCCA was automatic,5 and Smith presented numerous points of error.6 The TCCA affirmed Smith's conviction and sentence.7 The United States Supreme Court denied certiorari.8
Smith then filed an application for a writ of habeas corpus in Texas state court.9 He presented nine grounds for relief.10 After conducting an evidentiary hearing, the state trial court adopted the State's proposed findings of fact.11 The TCCA adopted the trial court's findings of fact and all but one of its conclusions of law and denied relief.12
In his habeas petition in federal court, Smith set forth five claims for relief: (1) he was denied an impartial jury when the trial court dismissed potential jurors Patricia Cruz and Matthew Stringer on the basis that they had moral, conscientious, or religious objections to the death penalty,13 (2) the State's use of disciplinary records from his previous incarcerations violated the Confrontation Clause of the Sixth Amendment,14 (3) his trial counsel provided ineffective assistance by failing to investigate mitigating evidence,15 (4) trial counsel was ineffective because he failed to bring evidence to the court's attention that would have raised a doubt as to Smith's competency to stand trial,16 and (5) under evolving standards of decency, executing the severely mentally ill violates the Eighth Amendment.17
The federal district court conditionally granted relief based on Smith's first claim and ordered the State to release him unless it either convenes a new sentencing hearing or imposes a sentence other than death.18 The court denied relief on all other grounds and did not issue a certificate of appealability (COA).19
The State appeals, arguing that the district court did not accord the deference due to the TCCA's decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) regarding the dismissal of jurors for cause. Smith counters that the district court's ruling regarding the removal of Matthew Stringer from the venire was correct. Alternatively, Smith urges us to affirm the district court's judgment on other grounds: (1) trial counsel provided ineffective assistance by failing to conduct a reasonable sentencing investigation, and (2) the Eighth and Fourteenth Amendments prohibit the execution of the severely mentally ill. Smith initially urged an additional ground for affirmance, which was that potential juror Patricia Cruz was improperly excluded, but he abandoned that claim at oral argument. We may affirm a district court's judgment on any ground supported by the record, even though Smith has not obtained a COA.20
At oral argument, Smith for the first time asserted that this court lacks subject matter jurisdiction. Smith contends that 28 U.S.C. § 2253 requires the party seeking relief to obtain a COA before this court has subject matter jurisdiction over an appeal. Under § 2253(c)(1), "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding" in which the prisoner is in state custody.21 Federal Rule of Appellate Procedure 22(b)(3) provides that a COA is not required when a state or its representative appeals.22 The Supreme Court held in Gonzalez v. Thaler that a COA is a jurisdictional prerequisite to our review.23 Smith argues that Rule 22 impermissibly exempts the State from seeking a COA to obtain relief, contrary to the plain text of § 2253.
The Supreme Court indicated in Jennings v. Stephens that the State is not required to obtain a COA in order to pursue an appeal after a federal district court has granted habeas relief. The Supreme Court reasoned that "[s]ection 2253(c) ... provides that ‘an appeal may not be taken to the court of appeals’ without a certificate of appealability, which itself requires ‘a substantial showing of the denial of a constitutional right.’ "24 The Court then explained that "[s]ection 2253(c) performs an important gate-keeping function, but once a State has properly noticed an appeal of the grant of habeas relief, the court of appeals must hear the case, and ‘there are no remaining gates to be guarded.’ "25
In Jennings , a Texas inmate had obtained habeas relief in federal district court, and the State of Texas appealed to the Fifth Circuit.26 The inmate asked this court to affirm on grounds that had been rejected by the federal district court, and we held that we lacked jurisdiction over the rejected theory because the inmate failed to cross-appeal and failed to obtain a COA.27 The Supreme Court reversed and remanded for consideration of the alternate ground asserted as a basis for upholding the district court's judgment.28 Therefore, the issue that the Supreme Court decided was whether a state prisoner "was permitted to pursue the theory that the District Court had rejected without taking a cross-appeal or obtaining a certificate of appealability."29 Neither party challenged this court's jurisdiction to hear the state's appeal. However, like all courts, the Supreme Court must sua sponte consider its subject matter jurisdiction.30 The Supreme Court's statement regarding the Fifth Circuit's jurisdiction to hear the state's appeal cannot be considered obiter dictum . If the Fifth Circuit had not had jurisdiction over the state's appeal, then its judgment should and would have been vacated on that basis, the Supreme Court would not have remanded the case to the Fifth Circuit for further proceedings, and the Supreme Court would not have reached the question of whether the inmate could assert claims rejected by the federal district court as an alternative basis for affirming the district court's judgment granting habeas relief.
Even if the discussion in Jennings were dicta , Smith's argument not only implicitly asserts that the Supreme Court has failed to recognize a jurisdictional issue for more than twenty-three years, his argument is inconsistent with the text of § 2253 for the reasons that the Court explained in Jennings . Section 2253(c), read in its entirety and in context, reflects that the COA requirements are intended to apply only to appeals by state or federal prisoners and that they were not intended to apply to appeals by states or the United States in habeas proceedings. Section 2253(c) applies to state inmates as well as those confined in federal penal institutions,31 and subsections 2253(c)(2) and (3) provide:
The United States government, acting in its capacity to enforce federal criminal laws, does not have "constitutional rights." It would be non-sensical to require a "substantial showing of the denial of a constitutional right" as a prerequisite to an appeal by the United States in a habeas proceeding. If Congress had intended to foreclose the right of the United States or the States to appeal in habeas proceedings, it would have done so in a forthright manner. "Congress, [the Supreme Court has] held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes."33
This circuit and our sister circuits are, as noted above, required to examine our jurisdiction sua sponte . No circuit court has held that it lacks jurisdiction in an appeal from a district court's grant of habeas relief if the state or federal government, as the case may be, failed to obtain a COA. Our court and others have applied Rule 22(b)(3) in habeas proceedings.34 In the present case, a COA was not required for the State to appeal.35
When a state court has adjudicated a claim on the merits, AEDPA provides that federal courts...
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