Smith v. Quarterman

• Decision Date: 23 January 2008
• Docket Number: No. 03-20401.,03-20401.
• Citation: 515 F.3d 392
• Parties: Roy Gene SMITH, Petitioner Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

515 F.3d 392

Roy Gene SMITH, Petitioner Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 03-20401.

United States Court of Appeals, Fifth Circuit.

January 23, 2008.

Michael B. Charlton, Las Vegas, NV, Alexander Lee Calhoun, Law Office of Alex Calhoun, Austin, TX, for Smith.

Kelli L. Weaver, Austin, TX, for guarterman.

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

Before SMITH, DeMOSS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This appeal arises from the district court's denial of Roy Gene Smith's petition for a writ of habeas corpus. A Texas jury convicted and sentenced Smith to death for the capital murder of James Whitmire. We granted Smith a certificate of appealability ("COA") on two issues: (1) whether trial counsel provided ineffective representation; and (2) whether the jury instructions given at the sentencing phase of his trial violated his constitutional rights pursuant to Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Based on the following reasons, we affirm the district court's judgment and deny habeas relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 8, 1988, Smith and Mary Williams spent the day smoking crack cocaine at a boarding house. Around 8:00 p.m., Smith and Williams left the house. While walking down the street, they came upon 67-year-old James Whitmire. Smith approached Whitmire and asked for a job. Whitmire responded that he had no available work and then turned away. Smith unzipped his jacket, drew a .22 caliber pistol, and shot Whitmire several times. Williams fled the scene. After murdering Whitmire, Smith searched his pockets and stole $4.27. As Smith rifled through Whitmire's clothing, two men approached and asked what he was doing. The men fled when Smith began shooting in their direction. Smith later reunited with Williams, and they purchased hot dogs with the, stolen money. The couple spent the night in an abandoned house.

The next day, Williams returned home and contacted the police. The police searched for Smith and, after a chase, placed him under arrest. Smith subsequently signed a written statement that the district court quoted as follows:

Last night I approached a guy and robbed him. When I [sic] pull my pistol he hollered "I'm not giving up my money." I already had it cocked. I just kept firing, Afterwards I reached into his left back pocket and took his wallet, and his front pocket had $4.27 in it. The wallet had no money.

The gun I used was a .22 revolver, I don't know the make. The guy that got shot was an old guy, I'd say about 54 or 55. After I shot him I ran all the way back to Mills Court. I hid in an abandoned house, and stayed there until daybreak. About 3:00 to 3:15 this afternoon, I went to the park., I had the gun in a brown paper bag. The next thing I knew was that you all arrived. I rolled over the hill and peeped up, and saw that you all were coming up. I panicked and ran. I ran to this old abandoned garage and threw the pistol down in the yard, by the garage. I climbed up in the garage, and hid, and that is when the officer opened the door. This is the God honest truth.

Smith v. Cockrell, No. H-00-1771, slip op. at 2-3 (S.D. Tex. filed March 31, 2003). Smith also confessed that during the week prior to the homicide, he committed another capital murder, another shooting, and several robberies.

After a jury trial, Smith was convicted of capital murder in the 208th Judicial Court of Harris County, Texas, Judge Benjamin A. Martinez presiding. The district court summarized the evidence adduced at the punishment phase of trial as follows:

During the punishment phase of trial, the State elicited testimony concerning Smith's extensive criminal history. The State also introduced evidence relating to Smith's week-long crime spree before Whitmire's homicide, including his confession to several crimes. Additionally, the State introduced testimony of violent threats by Smith in prison and his poor parole history.

At the punishment phase, the defense presented testimony from Smith's sister, Carolyn Smith, who described the crimeridden environment her brother lived in [Smith grew up in an area in Houston, Texas known as "Fifth. Ward"] and testified that she had never known her brother to use crack cocaine. She also described her brother as calm and not violent. Smith's mother, Wilbert Lee Smith, testified on his behalf. She testified that her son never used crack cocaine or carried a gun. She also described her son's childhood and the crime-infested neighborhood in which she lived, commented on his good behavior in the penitentiary, and pleaded for mercy. A Harris County Sheriff's Deputy, Thomas Gentry, testified that Smith had no major trouble while previously incarcerated. Finally, Smith took the stand himself and explained that he had been on a drug binge at the time of the homicide and did not remember killing Whitmire. Smith also expressed remorse for the killing.

Id. at 3-4.

Following the admission of this evidence, the state trial court instructed the jury to answer one of three special issues in the negative if the mitigation evidence sufficiently required a life sentence. On May 11, 1990, the jury affirmatively answered all three special issues, and the trial court sentenced Smith to death by lethal injection.

On February 24, 1993, the Texas Court of Criminal Appeals ("TCCA") affirmed his conviction and sentence in an unpublished opinion. State of Texas v. Roy Gene Smith, Cause No. 71,099 (Tex.Cr.App. 1993). The TCCA also denied rehearing. On November 15, 1993, the United States Supreme Court denied Smith's petition for writ of certiorari. Smith v. Texas, 510 U.S. 979, 114 S.Ct. 474, 126 L.Ed.2d 425 (1993). On April 18, 1997, Smith timely filed an application for writ of habeas corpus in state district court. The state habeas court declined to hold an evidentiary hearing on his claims and adopted the State's findings of fact and conclusions of law. Based on these findings and conclusions, the TCCA denied habeas relief. Ex parte Roy Gene Smith, No. 42,801-01 (Tex.Cr.App.1999).

Smith successfully sought the appointment of new counsel for his federal court proceedings. On May 29, 2000, Smith timely filed his federal petition for writ of habeas corpus. The State filed an Answer and Motion for Summary Judgment. On March 31, 2003, the district court granted the State's motion for summary judgment and dismissed the petition in an unpublished opinion. Smith v. Cockrell, CA No. H-00-1771 (S.D.Tex. March 31, 2003). The district court also denied sua sponte Smith's COA request. On September 22, 2003, Smith timely requested a COA from this court. After a thorough analysis, we concluded that reasonable jurists could debate whether the district court erred in denying Smith's ineffective assistance of counsel claim and his Penry claim. On August 17, 2005, we granted a COA for those two claims, the merits of which are now before this court on appeal. Smith v. Dretke, 422 F.3d 269 (5th Cir.2005). Accordingly, pursuant to 28 U.S.C. §§ 2253 & 2254, Smith appeals two issues: (1) whether his death sentence violated the Sixth and Fourteenth Amendments because Smith received ineffective assistance of counsel; and (2) whether the trial court's nullification instruction to the jury violated the Eighth and Fourteenth Amendments in light of Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).

II. STANDARD OF REVIEW

Smith filed his habeas petition in district court on May 29, 2000, after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). We therefore review his appeal pursuant to AEDPA. See 28 U.S.C. § 2253; Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA provides in relevant part that:

an application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, established Federal law, as determined by the Supreme Court of the States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir.2004) (citing 28 U.S.C. § 2254(d)).

A state court's decision is contrary to established law when it "reaches a legal conclusion in direct opposition to a prior decision of the United States Supreme Court or when it reaches a different conclusion than the United States Supreme Court on a set of materially indistinguishable facts." Riddle v. Cockrell, 288 F.3d 713, 716 (5th. Cir.2002). Absent such a direct conflict with Supreme Court authority, habeas relief is only available if a state court decision is unreasonable. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir.2000). A state court unreasonably applies established federal law when it correctly identifies the governing precedent but unreasonably applies it to the facts of a particular case. Morrow, 367 F.3d at 313. A state court's incorrect application of clearly established Supreme Court precedent is not enough to warrant federal habeas relief. Williams v. Taylor, 529 U.S. 362, 410-12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Thus, federal habeas relief may only occur when the state court makes both an incorrect and objectively unreasonable application of the governing law. Morrow, 367 F.3d at 313. State court findings of fact are presumed correct unless the defendant rebuts this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

A. Ineffective Assistance of Counsel

Smith argues that his trial counsel provided ineffective assistance at the punishment phase because they...