Young v. Davis

• Citation: 835 F.3d 520
• Decision Date: 31 August 2016
• Docket Number: No. 15–70023,15–70023
• Parties: Christopher Young, Petitioner–Appellant v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

835 F.3d 520

Christopher Young, Petitioner–Appellant

v.Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee

No. 15–70023

United States Court of Appeals, Fifth Circuit.

FILED August 31, 2016

David R. Dow, University of Houston, Law Center, Houston, TX, for Petitioner–Appellant.

Stephen M. Hoffman, Ellen Stewart–Klein, Assistant Attorneys General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent–Appellee.

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

PATRICK E. HIGGINBOTHAM

, Circuit Judge:

Christopher Young awaits execution in a Texas prison. He challenged the constitutionality of his confinement and sentence in federal district court, but the district court rejected his claims. He now seeks a certificate of appealability (COA) in order to contest the district court's ruling. We GRANT the COA in part and DENY it in part.

I

On November 21, 2004, an intoxicated Young forced his way into a woman's apartment, sexually assaulted her in the presence of her children, stole her car, drove it to a convenience store, and tried to rob the store's owner at gunpoint. The owner resisted, and Young shot him to death.¹ In February 2006, Young was convicted of capital murder and sentenced to die. On automatic appeal to the Texas Court of Criminal Appeals (TCCA), he alleged fifteen points of error in the prior proceedings. The appeals court rejected each as meritless,² and the U.S. Supreme Court denied his subsequent petition for writ of certiorari.³

Young filed a state habeas corpus petition in September 2009. The state trial court held a hearing and issued an order recommending rejection of each of Young's twenty claims for relief.⁴ The TCCA adopted the recommendation.⁵

In 2014, Young filed a federal habeas petition in the Western District of Texas. The petition, as later amended,⁶ argued (among other things) that the state's use of a peremptory strike against venire member Myrtlene Williams during his initial trial was discriminatory, that his trial counsel was ineffective, and that the trial court's jury instructions were constitutionally deficient insofar as they a) did not inform the jury of the potential effect of a single holdout juror and b) did not include all of the elements required by the Texas Code of Criminal Procedure. The district court denied all of Young's claims, denied his request for an evidentiary hearing, and denied a certificate of appealability (COA). Young appealed.

II

On appeal, Young seeks a COA for four of his federal habeas claims. As we recently explained:

This court may issue a COA only if the applicant has “made a substantial showing of the denial of a constitutional right.” ... To make a substantial showing, a petitioner must show that “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.”⁷

Although a petitioner seeking a COA must demonstrate “ ‘something more than the absence of frivolity’ or the existence of mere ‘good faith,’ ”⁸ our analysis of a COA application entails only a “limit[ed],” “threshold inquiry,” and “[w]here the petitioner faces the death penalty, ‘any doubts as to whether a COA should issue must be resolved’ in the petitioner's favor.”⁹

The federal district court denied Young's habeas petition pursuant to 28 U.S.C. § 2254(d)

, which provides that

[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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, clearly established Federal law, as determined by the Supreme Court of the United 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.

We “review pure questions of law under the ‘contrary to’ standard of subsection (d)(1), mixed questions of law and fact under the ‘unreasonable application’ standard of sub-section (d)(1), and pure questions of fact under the ‘unreasonable determination of facts' standard of sub-section (d)(2).”¹⁰

III

We begin with Young's first issue on appeal, in which he asserts that the state violated the Constitution in striking a potential juror on the purported basis of her work with a prison ministry group. Venire member Myrtlene Williams, an African-American woman, was called for questioning on January 17, 2006, the fifth day of individual voir dire interviews for Young's initial trial.¹¹ Her initial questionnaire and interview revealed that she was a member of Calvary Baptist Church, and participated in the church's outreach ministry program; that other participants in that program ministered to prisoners, although she had not;¹² and that two of her children had had legal trouble, although she did not know the specifics.¹³ The state exercised a peremptory strike, and the defense raised a Batson

challenge, commenting, “of course we recognize the fact she's a Black female.”¹⁴ The state justified its strike on the basis of Williams's involvement with the church outreach group and her daughter's criminal history.¹⁵ The judge denied the Batson

challenge without explanation and excused Williams.¹⁶

Young challenged Williams's exclusion in the state and federal district courts. However, the nature of his challenge has changed over time. On direct appeal to the TCCA, Young argued that in striking Williams and two other African–American venirewomen, the state “purposeful[ly] use[d] peremptory strikes in a racially discriminatory manner,” violating the federal Constitution and the Texas Code of Criminal Procedure. He labeled the state's explanation that it struck Williams because of her participation in the outreach ministry program “specious” and “an artifice calculated to keep a black person off of the jury.”¹⁷

In Young's subsequent state habeas petition, he did not mention Williams or Batson

at all. Then, in his federal habeas petitions, he shifted gears, claiming both (1) that the state's ministry-group explanation was a pretext for racial discrimination and, in the alternative (and for the first time), that (2) the state's ministry-group explanation was genuine and evinced unconstitutional religious discrimination.¹⁸ The district court found the latter argument defaulted. We agree.

“[P]rocedural default ... occurs when a prisoner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.”¹⁹ “ ‘To exhaust, a petitioner must have fairly presented the substance of his claim to the state courts.’ It is not enough that the facts applicable to the federal claim were all before the State court .... The federal claim must be the ‘substantial equivalent’ of the claim brought before the State court.”²⁰

Young's unambiguously and solely race-based Batson

claim in the state courts was not the “substantial equivalent” of the religion-based claim he presents on appeal. Accordingly, Young's religion-based claim is defaulted, and a COA is not merited, unless he could still present the claim in state court.²¹ To do so, Young would have to file a successive habeas petition. In Texas, such petitions are barred absent certain special circumstances.²² But Young does not argue that any of these circumstances are present. Thus, his religion-based claim is unmistakably defaulted.²³ In turn, reasonable jurists could not debate the district court's rejection of this claim, nor does it deserve encouragement to proceed further.²⁴ We deny a COA for Young's first claim.

IV

Second, Young claims that the trial court caused the jurors to misapprehend the proper mechanics of the punishment-phase voting process. Article 37.071 of the Texas Code of Criminal Procedure

set forth two special issues for the jury to consider during this process. First, the jury had to consider “whether there [was] a probability that [Young] would commit criminal acts of violence that would constitute a continuing threat to society.”²⁵ The jury could only answer “yes” if every one of its 12 members agreed, and it could only answer “no” if 10 or more members agreed. If the jury answered “no,” or could not reach the specified thresholds for a “yes” or “no” answer, Young would be sentenced to life in prison without parole.²⁶ If it answered “yes,” the jury would then have to consider

[w]hether, taking into consideration all of the evidence, including the circumstances of the offense, [Young's] character and background, and [Young's] personal moral culpability ... there [was] a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.²⁷

The jury could only answer “no” if every member agreed, and it could only answer “yes” if 10 or more members agreed.²⁸ If the jury answered “yes,” or could not reach the specified thresholds for a “yes” or “no” answer, Young would be sentenced to life in prison without parole.²⁹ If the jury answered “no,” Young would be sentenced to death.³⁰

The trial judge instructed the jury on the special issues, the voting thresholds (which are collectively known as “the 12/10 rule”),³¹ and the consequences of “yes” and “no” answers.³² However, he did not tell the jury that if it could not reach a specified voting threshold for one or both of the issues—that is, if more than zero but less than 10 jurors voted “no” as to Young's future dangerousness or “yes” as to the presence of sufficient mitigating evidence—then Young would receive a life sentence.³³ Article 37.071

did not require such an instruction....