Tabler v. Lumpkin

• Decision Date: 10 June 2021
• Docket Number: Civil Action No. W-10-CA-034-RP
• Citation: 543 F.Supp.3d 461
• Parties: Richard Lee TABLER, Petitioner, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Western District of Texas

543 F.Supp.3d 461

Richard Lee TABLER, Petitioner,

v.Bobby LUMPKIN,¹ Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil Action No. W-10-CA-034-RP

United States District Court, W.D. Texas, Waco Division.

Signed June 10, 2021

Peter James Walker, Shawn Nolan, Federal Community Defender, Philadelphia, PA, Marcia A. Widder, Pro Hac Vice, Georgia Resource Center, Atlanta, GA, for Petitioner.

Richard Lee Tabler, Livingston, TX, Pro Se.

Fredericka Sargent, Jay David Clendenin, Matthew Dennis Ottoway, Rachel L. Patton, Office of the Attorney General of Texas, Austin, TX, for Respondent Lorie Davis.

MEMORANDUM OPINION AND ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Petitioner Richard Lee Tabler was convicted of capital murder and sentenced to death in March 2007. After waiving his right to seek habeas corpus relief in state court, Petitioner unsuccessfully sought federal habeas corpus relief in this Court. On appeal, the Fifth Circuit Court of Appeals vacated, in part, the district court's judgment and remanded for consideration of whether (1) Petitioner can establish cause for the procedural default of any ineffective-assistance-of-trial counsel ("IATC") claims he may raise, and (2) if so, whether those claims warrant relief on the merits.

Currently before the Court on these issues are Petitioner's Amended Petition for Writ of Habeas Corpus (ECF No. 90), Respondent's Answer (ECF No. 99), and Petitioner's Reply (ECF No. 132). Having considered the record and voluminous pleadings submitted by both parties, the Court finds that (1) Petitioner fails to establish cause or prejudice to excuse the procedural default of his new IATC claims and (2) in the alternative, each of the IATC claims lack merit. For these reasons, the Court concludes Petitioner is not entitled to federal habeas corpus relief or a certificate of appealability.

I. Background

A. The Offense

In February 2005, Petitioner was indicted for capital murder for the 2004 shooting deaths of Mohamed–Amine Rahmouni and Haitham Zayed. 1 CR 1-2.² Following a three-day trial, Petitioner was found guilty of the charged offenses. 1 CR 249; 24 RR 51-52. The Texas Court of Criminal Appeals ("TCCA") summarized the evidence presented at Petitioner's trial:

Mohamed–Amine Rahmouni managed a topless bar called Teazers, where [Petitioner] worked until he and Rahmouni had a conflict. Rahmouni allegedly told [Petitioner] that he could have [Petitioner]’s family wiped out for ten dollars.

[Petitioner] decided on November 18, 2004, that he would kill Rahmouni after Thanksgiving. In preparation for killing Rahmouni, [Petitioner] borrowed a 9–millimeter gun, a camcorder, and a pickup truck. Then, on the night of November 25, 2004, which was Thanksgiving Day, [Petitioner] called Rahmouni with an offer to sell him cheap stereo equipment and told him they would meet in the parking lot of a local business. Haitham Zayed drove Rahmouni to the parking lot to meet [Petitioner] around 2:00 a.m. on Friday morning. [Petitioner] and his friend Timothy Payne were waiting for them in the truck that [Petitioner] had borrowed. As soon as Zayed's car stopped, [Petitioner] shot Zayed and then Rahmouni. He then exited the truck and pulled both men from the car. He saw that Rahmouni was still alive, so he shot him a second time. He had Payne videotape part of the shooting. Later that day, the videotape was destroyed after [Petitioner] showed it to a friend. [Petitioner] took a wallet and a black bag that he found inside the car. On the following Sunday night, [Petitioner] was arrested, and in the early morning hours of Monday, November 29, he confessed to the shootings.

Tabler v. State , No. 75,677, 2009 WL 4931882, at *1 (Tex. Crim. App. Dec. 16, 2009).

B. The Punishment Phase

The punishment phase of Petitioner's trial began March 26, 2007. 25 RR 4. The State gave a brief opening statement summarizing the evidence it intended to present, while defense counsel reserved their opening statement for later. Over the course of the next five days, the jury then heard testimony from twenty-three witnesses presented by the prosecution followed by six witnesses presented on behalf of the defense.

1. Evidence Presented by the State

At punishment, the State presented evidence that Petitioner confessed—in writing and by videotaped statement—to murdering two Teazers employees, Amanda Benefield and Tiffany Dotson, just two days after murdering Rahmouni and Zayed. 26 RR 163-81; State's Exhibit (SX) 64, 114. According to Petitioner, Benefield and Dotson were on a list of eleven Teazers employees that he intended to kill. In his written statement, Petitioner admitted he lured the women out to the lake with the promise of drugs, accused them of telling people that he had killed Rahmouni and Zayed, and then shot both women multiple times. Id. A ballistics expert concluded the same pistol used to murder Rahmouni and Zayed was used in the killing of Benefield and Dotson. 26 RR 133-36. Petitioner's friend and roommate, Kim Geary, testified that Petitioner bragged about the murders to her later that evening, and that she believed what he said because Petitioner had already shown her a video recording of the previous murders prior to destroying the video. Id. at 137-43.

The State also presented evidence that Petitioner called the Bell County Sheriff's Office the night after he murdered Rahmouni and Zayed. 26 RR 5-15; SX 64. Petitioner described the murders and then stated he was at Teazers planning his next double homicide. He also threatened to "pick off" undercover officers at the club. A day later, following the murders of Benefield and Dotson, Petitioner again called the Sheriff's Office to taunt them about the new killings. 26 RR 31. Petitioner told police about "another one with five shots," and threatened to kill the rest of the Teazers’ employees if police failed to close the club. He also threatened to come after the police.

The jury heard further testimony regarding Petitioner's history of threatening law enforcement officers and fellow inmates. After being arrested in 2003 for a parole violation, Petitioner escaped from a patrol car while handcuffed, kicked the windows out of another patrol car after he was again detained, and later threatened his parole officer by stating he would "take care of [him] and [his] family." 25 RR 11-16, 24-30. In September 2004, Petitioner threatened a Michigan police officer investigating a home invasion, telling the officer over the phone that he would "find out [his] full name, [his] social security number, [his] family members’ names and somebody would get hurt" if the officer did not drop the investigation immediately. Id. at 43-44.

A few months later, after giving the above confession, Petitioner told the investigating officer that if anyone messed with him while in jail "he would break their neck in 27 places." 26 RR 177. While in the Bell County Jail awaiting trial, Petitioner was overheard threatening to harm several officers if given the opportunity. 25 RR 53-58, 65, 69-73, 79-88. In one instance, Petitioner described an officer's home and family before stating that the officer "was going to have to watch what [Petitioner] did to [her] children before he would kill [her] because it would be more torture for [her]." Id. at 71.

Lastly, the jury heard the testimony of A.P. Merillat, an investigator with the Special Prosecution Unit charged with investigating and prosecuting crimes within the Texas prison system. 27 RR 11-29. Merillat testified generally about the prison classification system in Texas and the numerous opportunities prisoners have to commit criminal acts of violence despite the heightened security measures in place.

2. Evidence Presented by the Defense

In a brief opening statement, defense counsel stated their intention was to demonstrate Petitioner was "not normal" and thus was undeserving of the death penalty. 27 RR 69-72. To do so, the defense first presented the testimony of Petitioner's mother and sister regarding Petitioner's difficult childhood, potential birth trauma, and history of psychiatric issues. Id. at 73-170.

Lorraine Tabler, Petitioner's mother, described her troubled marriage with Petitioner's father, Robert Tabler, and the lack of structure in Petitioner's life during his childhood. According to Lorraine, Robert worked long hours, traveled frequently, was unfaithful, and drank excessively. Her pregnancy with Petitioner was unplanned and Robert wanted her to have an abortion, but she refused. Once Petitioner was born, Robert took little interest in him and did not treat him the same as he treated their other children. When Petitioner was a year old, Lorraine went back to work and left Petitioner in the care of his seven-year-old sister and nine-year-old half-brother. Lorraine decided to leave when Petitioner was ten years old and drove away after rebuffing Petitioner's pleas to take him with her. Although she returned two years later, she left for good after a few months and only saw the children sporadically thereafter. At some points during his adolescence, Petitioner lived with Lorraine in both Florida and Nevada, but most of the time he lived with his father in California.

Lorraine further testified Petitioner turned blue, almost black, after he was born because he had taken a lot of fluid into his lungs. As a child, Petitioner did poorly in school, had trouble paying attention, and had to repeat the third grade. As a teenager, he once fell out of a tree and was knocked unconscious. Petitioner only had one friend growing up and was not attached to anyone other than herself and his sister. Lorraine noted Petitioner always had a quick temper: "[e]verything goes good for a while and then he just blows up." Id. at 96. Although Lorraine believed Petitioner is a very loving and affectionate person most of the time, he also is very impulsive and becomes angry in the spur of the moment. In her opinion, Petiti...