Bess v. Director, TDCJ-CID

United States District Court

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DONALD ANDREW BESS §

v. CIVIL ACTION NO, 3:16-CV-1150-S_

LORIE DAVIS, Director TDCJ-CID

MEMORANDUM OPINION AND ORDER

Petitioner Donald Andrew Bess filed this federal habeas corpus action pursuant 28 U.S.C.

§ 2254 challenging his June 2010 Dallas County conviction for capital murder and sentence of

death. For the reasons discussed below, Bess is not entitled to federal habeas corpus relief or a

Certificate of Appealability from this Court.

I. BACKGROUND

A. The Offense

The facts and circumstances of Bess’s capital offense are set forth in significant detail in

the Texas Court of Criminal Appeals’ opinion affirming his conviction and death senfence. Bess

vy. State, No. AP-76,377, 2013 WL 827479, at *1-11 (Tex. Crim. App. Mar. 6, 2013), cert. denied,

571 U.S. 1132 (2014). Bess was serving a term of life imprisonment for an unrelated aggravated

sexual assault when he was convicted in June 2010, based on DNA evidence of the capital murder

of Angela Samota in October 1984. The uncontroverted evidence presented at trial showed that

Samota’s nude body was discovered covered in blood on her bed inside her locked condominium

by law enforcement officers responding to a call from Samota’s boyfriend, who became concerned

after she called him in the early morning hours of October 13, 1984, to say she had allowed a man

into her apartment, suddenly hung up after promising to call him right back, but then failed to do

Samota’s autopsy and subsequent forensic examination revealed that she had been stabbed

} Samota’s boyfriend Benjamin McCall testified without contradiction at the guilt-innocence phase of

Petitioner’s 2010 capital murder trial that (1} he had been dating Samota since January 1984; (2) Samota was very

eighteen times in the chest, and Petitioner’s semen (including a large number of intact sperm) was

found in her vaginal vault.?

active in her sorority, taking a challenging double major, and working part time; (3) Samota invited him to go out with

her and some friends the evening before her murder but he declined because he had a business appointment early the

next morning; (4) the evening before her murder, Samota called him and asked him to get her and her friends into a

private club in which McCall had a membership; (5) he made the call but did not go to the club; (6) around one-thirty

the next morning, Samota knocked on the door of his apartment; (7) when he answered the door, Samota playfully

stated that she had come by to bug him on her way home; (8) they engaged in a very brief conversation and Samota

left; (9) about fifteen minutes later, Samota called him and said “talk to me”; (10) she explained that she had allowed

aman into her condo to use the bathroom and make a call; (11) after asking McCall if he thought there was a payphone

at a convenience store located near her residence, Samota hung up abruptly after promising to call him right back;

(12) when Samota failed to do so, McCall called Samota but could not get an answer; (13) McCall threw on clothes

and drove to Samota’s condo, calling her from a cell phone in his track; (14) he was unable to get an answer;

(15) McCall arrived at her condo around two a.m. but was unable to get a response when he beat on her locked front

door; (16) he checked her back door but found it locked as well; (17) he drove to the convenience store she had

mentioned in their brief telephone call and then returned to her condo; (18) he found her car in the parking lot and

telephoned police (the audio recording of McCall’s call to police at 2:17 a.m, on October 13, 1984 was admitted into

evidence and played for the jury); (19) when police arrived, they waited for one of the officers to obtain a key to

Samota’s condo from a manager: (20) he remained just inside the front door while police searched the condo and

found Samota’s body; and (21) he gave police a full statement and consented to searches of his truck and apartment

as well as giving hair and DNA samples. Statement of Facts from Petitioner’s Trial (henceforth “S.F. Trial”), test.

of Benjamin Waring McCall, vol. 42 at 178-218; vol. 43 at 8-33.

The two Dallas Police Officers dispatched to Samota’s condo testified that (1) they met McCall outside

Samota’s condo at 2:40 a.m. and obtained a key after they were unable to get a response at Samota’s locked door;

(2) when they searched Samota’s condo they found her lifeless body lying on her bed face up with her eyes open,

unclothed and covered in blood; (3) her legs were hanging off the bed; (4) blood residue was observed in the bathroom

adjacent to her bedroom; (5) a single woman’s shoe was found in the living area; and (6) her other shoe and Samota’s

clothing was found on the floor beside her bed. S.F. Trial, test. of Kenneth Budjenska, vol. 43 at 53-103; testimony

of Janice Crowther, vol. 43 at 104-20.

2 The forensic pathologist who performed Samota’s autopsy testified that (1) there was dried blood on

Samota’s chest and neck; (2) blood was smeared on Samota’s face and leg along with some blood spatter on her body,

(3) Samota suffered several deep chest wounds; (4) Samota suffered eighteen stab wounds to the chest and breast area

with a single-edged knife or knife-like object, many of which overlapped; (5) it appeared that a hand or some other

object had covered Samota’s face during the stabbing; (6) eight of the stab wounds entered Samota’s heart and five of

those wounds entered Samota’s heart and left lung; (7) two of Samota’s chest wounds went through the sternum,

requiring considerable force; (8) the deepest stab wound penetrated four to seven inches deep and completely

penetrated the heart; (9) it was not possible to determine the order in which the stab wounds occurred; (10) Samota’s

blood alcohol level was .09 and her vitreous alcohol level was .30; (10) viscous material was collected from both

Samota’s mouth and vagina; (11) swabs were obtained from Samota’s mouth and vagina; (12) in living individuals,

semen breaks down from its own enzymes and vaginal enzymes under an hour; (13) there was nothing about the

appearance of the viscous material (described as a “sticky blob”) obtained from Samota’s vagina suggesting that the

material had begun to liquefy; (14) laboratory examination of the vaginal swab revealed both a high concentration of

phosphates and a large number of intact sperm, which confirmed that Samota had intercourse at or near the time of

her fatal injuries; (15} because Samota’s body was lying down, it did not appear that anything had drained out of her

body post-intercourse; (16) while there were no injuries to Samota’s cervix or external genitalia, the absence of such

injuries is not determinative of whether there was consensual versus non-consensual intercourse; (17) the secretions

in Samota’s mouth were not semen; (18) the physical evidence established Samota was killed very close in time to

her having intercourse; and (19) the manner of Samota’s death was homicide and the cause of her death was multiple

stab wounds to her chest. S.F. Trial, test. of Dr. M.G.F. Gilliland, vol. 43 at 165-239; vol. 44 at 14-31.

B. The Indictment

On January 20, 2010, a Dallas County Grand Jury indicted Petitioner on a single count of

capital murder—intentionally causing Samota’s death by stabbing Samota with a knife, or an

object unknown to the grand jury, in the course of committing and attempting to commit sexual

assault upon Samota,?

C. Guilt-Innocence Phase of Trial

I, Prosecution’s Case

In addition to the testimony summarized above, the prosecution presented testimony during

the guilt-innocence phase of Petitioner’s capital murder trial from a pair of Samota’s acquaintances

detailing Samota’s movements the day before her murder, including her movements in the hours

immediately preceding her death. A Dallas Police Department cold case officer testified that

The forensic serologist who examined materials collected during Samota’s autopsy, including the rape kit,

and other physical evidence testified that (1) there was no trace of blood or hair in McCall’s fingernail scrapings;

(2) Samota’s bed sheets contained blood but no seminal fluid; (3) McCall and another of Samota’s former boyfriends

were excluded as possible sources of the semen found inside Samota’s vagina because of their blood type; (4) two

other male acquaintances of Samota were excluded as possible sources because they were both non-secretors;

(5) Samota’s vaginal swab was loaded with intact sperm, establishing the sample was taken at or near the time of

intercourse because both the high concentration of acid phosphates and large number of intact sperm in the vaginal

swab; (6) seminal fluid and sperm begin to deteriorate within three hours in a living victim; and (7) no DNA analysis

of Samota’s vaginal swab was done in 1986. S.F. Trial, test. of Sarah Williams, vol. 44 at 53-81.

A veteran OBGYN with experience conducting hundreds of sexual assault examinations testified as an expert

that (1) the vast majority of sexual assault victims show no sign of injury or trauma to the external genitalia; (2) she

would not expect to find intact sperm inside a sexual assault victim within four to six hours after an assault; and (3) she

had seen patients within one to two hours after a sexual assault and had never seen a large number of intact sperm or

coagulum (congealed semen) because semen Hquefies very quickly after intercourse in a live woman due to natural

movements, gravity, urination, and bowel movements, which all cause drainage. S.F. Trial, test. of Dr. Claudia

Werner, vol. 44 at 90-116.

3 Petitioner’s indictment appears among the state court records submitted by Respondent at page 00002 of

the first volume of the Clerk’s Record. 1n addition to the capital murder charge, Petitioner’s indictment included an

enhancement paragraph alleging Petitioner had been convicted in Harris County in March 1978 of the offense of

aggravated rape. For unknown reasons, Respondent failed to electronically file the volume of state court records

containing Petitioner’s indictment.

‘ A partner in a Houston law firm, Ana Kadaia, who had been friends with Samota at SMU testified that (1)

on October 12, 1984, she and Samota went to a late lunch with one of their professors, and then went to Samota’s

residence and took a nap; (2) they planned to go out that evening; (3) Samota put on a black silk jumpsuit and black

pumps; (4) Samota’s friend Russell Buchanan joined them at Samota’s condo; (5) she, Samota, and Buchanan went

she interviewed Petitioner in 2008, that Petitioner admitted he was in the Dallas area around the

time of Samota’s murder, and that she obtained a search warrant for a buccal swab from Petitioner.°

The forensic biologist who examined Samota’s vaginal swab and Petitioner’s buccal swab testified

without contradiction that Petitioner’s DNA matched the DNA found in the sperm fraction of

Samota’s vaginal swab.®

2. The Defense’s Evidence

The defense presented testimony from an employee of the Rio Room club and a field agent

for the Dallas County Medical Examiner’s office.’ The defense then called a forensic pathologist

to Buchanan’s place so that he could change before they went out; (6) the three of them went to Bennigan’s restaurant,

Studebaker’s (a nightclub), and then to the Rio Room (another nightclub); (7) Samota drank but not excessively as

she was driving; (8) they left the Rie Room sometime between midnight and twelve-thirty; (9) Samota had to be up

early the next morning to travel to Waco to attend a college football game; (10) Samota dropped off Buchanan at his

residence; (11) Samota then went by her apartment to collect a curling iron and then took Kadala home, dropping her

off between twelve-forty-five and one-thirty in the morning; (12) she learned of Samota’s murder the following day

after she returned to Dallas from the football game in Waco; and (13) Samota spoke often about McCall and her other

male acquaintances but never mentioned knowing Petitioner. S.F. Trial, test. of Ana Elena Kadala, vol. 42 at 69-133.

Russell Buchanan testified that (1) he met Samota in early-October 1984 through his roommate’s girlfriend;

(2) Samota called to invite him to join her and a female friend for drinks; (3) he walked to Samota’s residence but

discovered he was underdressed; (4) they went back to his place so he could change; (5) they then went out to the

Boardwalk Beach club and then to the Rio Room; (6) they stayed at the Ric Room until one or one-thirty and then

went home; (7) they were not drinking heavily because the bar was crowded; (8) he attended a wedding in Dallas the

next morning and then flew home to Houston; (9) he did not learn of Samota’s murder until he returned to Dallas and

police officers arrived at his front door; (10) he furnished blood and saliva samples and cooperated with police for

many months until he retained an attorney; and (11) neither Samota nor her female friend appeared to be intoxicated

when they dropped him off that night. S.F. Trial, test. of Russell Buchanan, vol. 42 at 134-76,

5 An officer with the Dallas Police Department’s cold case unit testified without contradiction that (1} a

former roommate of Samota’s contacted the cold case unit in July 2006 about the case; (2) she contacted the Southwest

Institute of Forensic Sciences (“SWIFS”) and learned a vaginal swab from Samota’s autopsy had been preserved,

(3) she obtained a search warrant for Petitioner’s DNA and, in April 2008, interviewed Petitioner after Mirandizing

Petitioner; (4} she obtained a buccal swab from Petitioner; (5) Petitioner signed a statement in which he admitted to

being in the Dallas area in March 1984; (6) Petitioner’s demeanor during their interview changed dramatically when

she informed him that she was investigating an offense committed on October 13, 1984; and (7) the results of

Petitioner’s DNA test results came back in May 2008. S.F. Trial, test. of Linda Crum, voi. 45 at 21-63.

6 The former SWIFS forensic biologist who examined Petitioner’s buccal swab and Samota’s vaginal swab

testified without contradiction that (1) the DNA profile for the sperm fraction of Samota’s vaginal swab showed a

single male contributed that sample and (2) the DNA profile of the sperm cell fraction of Samota’s vaginal swab

matched the DNA profile of Petitioner. §S.F. Trial, test. of Angela Fitzwater, vol. 45 at 64-84,

7 Anemployee of the Rio Room nightclub testified that (1) he knew Samota through his girlfriend and Samota

did not need McCall’s assistance to enter the club when he was working; (2) Samota came in the night of her murder

who testified that (1) Samota’s blood alcohol level was out of line with her vitreous alcohol level;

(2) ejaculate liquefies in fifteen to thirty minutes; (3) sperm survives in cervical mucous longer

than in vaginal secretions; (4) just because there were viscous secretions in the vagina did not mean

sexual activity occurred in close proximity to death; (5) in living individuals, spermatozoa can

survive twenty-four to seventy-two hours; (6) intact sperm can be found twenty-three to one-

hundred-twenty hours after intercourse in living individuals; (7) the viscous material in Samota’s

vagina was more likely cervical mucous than ejaculate; (8) high levels of acid phosphate are

possible up to four days after intercourse; (9) if sex occurred near the time of Samota’s death, he

would expect to find leakage from the vaginal vault and secretions on the bed sheets; (10) sperm

can remain motile up to sixteen hours in cervical mucous but Samota’s autopsy report makes no

mention of sperm motility; (11) there is only a slim chance of finding motile sperm after twelve

hours after sex; (12) if a hand had been placed over Samota’s mouth, he would expect to find

damage and bruising to the lips; (13) this case is atypical of a sexual assault because there was no

bruising to the inner aspects of the thighs or head; (14) it appeared to him that, based upon his

review of the autopsy report and photographs from autopsy and the crime scene, Samota was

stabbed while sitting in an upright position and fell toward the head board; and (15) the number of

stab wounds suggested to him that this was “overkill,” a result of jealous frenzy.*

without McCall wearing a backless outfit; (3) Samota left after midnight; and (4) Samota did not appear to be under

the influence. S.F. Trial, test. of David Skelton, vol. 45 at 91-104.

A former field agent for the Dallas County medical Examiner’s office testified that (1) he pronounced Samota

dead at the crime scene; (2) Samota’s telephone appeared to have been wiped clean; and (3) a note was found at the

crime scene, stating that Samota had a date with someone other than her boyfriend and her boyfriend was jealous.

S.F, Trial, test. of Michael Darst, vol. 45 at 105-14.

8 SF. Trial, test. of Dr. James Traylor, vol. 46 at 23-61,93-101. On cross-examination, Dr. Traylor admitted

that (1) sperm last longer post-mortem than in a living vaginal vault; (2) he had trouble with the prosecution’s rape

scenario because there was no external trauma to Samota’s genitalia; (3) he could not tell the time of intercourse from

examination of a vaginal smear because there were no studies discussing the quantity of intact sperm over fime; (4)

he did not examine Samota’s vaginal swab; (5) his opinions regarding the location of Samota’s body were based on

3. The Verdict

On June 14, 2010, the jury returned its verdict, finding Petitioner guilty of capital murder,

as charged in the indictment.”

D, Punishment Phase of Triai

The punishment phase of Petitioner’s capital murder trial commenced on June 15, 2010.

i. Prosecution’s Case-in-Chief

At the punishment phase of Petitioner’s capital murder trial, the prosecution presented

testimony from (1) a former Houston police officer regarding Petitioner’s January 1977 aggravated

kidnapping with intent to commit sexual assault (an offense to which Petitioner pleaded guilty and

for which he received a sentence of 25 years); (2) the victim of Petitioner’s unrelated September

1977 Harris County sexual assault (another offense to which Petitioner pleaded guilty and for

which he received a 25-year sentence);'! (3) a retired [DCJ employee regarding an August 20,

the crime scene photographs; (6) this case is atypical of sexual assault because Samota’s legs were together, and there

was no bludgeoning of the head or strangulation or mutilation; (7) only a small percentage of rapes involve genital

injury; (8) he was unaware of Samota’s activities in the hours leading up to her murder; (9) the presence of sperm in

Samota’s vaginal vault does not resolve the issue of consensual versus non-consensual intercourse; (10) he did not

believe sex occurred on the bed because no seminal fluid was recovered from the sheets; and (11) the average length

of time sperm can be detected inside a dead body ranges from twenty-three hours to five days. Ja. at 61-93.

9 Id. at 164-65, The jury’s verdict form from the guilt-innocence phase of Petitioner’s trial appears among

the state court records at page 85 of the first volume in the Clerk’s Record.

10 More specifically, the former Houston police officer testified that (1) he received a call about an aggravated

kidnapping on January 20, 1977; (2) when he interviewed the victim, initially, she was hysterical; (3) eventually, she

identified her assailant as 25-30 years old, 230 pounds, and about six feet tall with a large frame, gold rimmed glasses,

a beard and mustache, and dark brown with gray hair; (4) the victim described the suspect’s vehicle as a 1975 Ford

pickup truck; (5) after Petitioner was arrested in September 1977, the victim identified Petitioner in a lineup; and

(6) Petitioner pleaded guilty and received a sentence of 25 years. S.F. Trial, test. of Ronald Masterson, vol. 47 at 39-

42: vol. 48 at 4-11.

\ Another of Petitioner’s victims testified that (1) in September 1977 she lived in the Montrose section of

Houston an apartment owned by Petitioner’s aunts; (2) late on the evening of September 1, 1977, Petitioner came to

her door and asked for a glass of water; (3) when she turned to get him the water, he stepped inside and locked her

door behind him; (4) after she gave him the water, he grabbed her face with his hand, covering her mouth, and told

her to go the bedroom; (3) he threw her on the floor; (6) she became passive; (7) he then grabbed her and raped her

on the bed; (8) she was in shock afterward but managed to call a friend who took her to the police; (9) on September

1983 incident in which Petitioner (a) directed vulgar language toward a guard; (b) when

confronted, replied that he would talk about guards any way he felt like; (c) pleaded guilty during

an ensuing disciplinary proceeding to using vulgar language; and (d) received a loss of access to

the prison craft shop;'? (4) another retired TDCJ employee about (a) a July 6, 1988 incident in

which Petitioner defiantly refused to obey orders that he stand behind a line and (b) a February 10,

1977 incident in which Petitioner defiantly refused to obey repeated orders to put up gym

equipment and stop washing his tee shirt ina sink; (5) another retired TDCJ employee about an

October 3, 1986 incident in which Petitioner directed profanity toward a guard;'* (6) a pair of

former correctional officers about an incident on December 30, 1996, in which Petitioner refused

a female officer’s order to close a door and responded to that order by stating “Bitch, I don’t have

to do a goddam thing you tell me to do. [’ve got a life sentence, and no one’s gonna tell me what

to do”;!5 (7) a TDCI correctional officer about an incident on November 5, 1997, in which

13, 1977 she identified Petitioner in a police lineup; (10) during the assault, she managed to bite Petitioner’s hand;

(11) in 1978, Petitioner pleaded guilty in her case and received a 25-year sentence; and (12) she was living in another

state and was not contacted when Petitioner was tried on a separate charge in 1986. S.F. Trial, test.of □□□

vol. 48 at 12-38.

2 SF. Trial, test. of Clifton Palmer McClendon, vol. 48 at 39-48.

13 $F. Trial, test. of Norma Bienvenue, vol. 48 at 49-66, 75-77. On cross-examination, Petitioner’s trial

counsel elicited testimony from Bienvenue that (1) both of the disciplinary infractions in question were considered

minor; (2) Petitioner’s punishment in both cases was a loss of commissary privileges; (3) from 1988 to 1997,

Petitioner’s housing status declined and he was moved from the most favorable to the least favorable housing unit in

his prison unit; and (4) no weapon was involved in either of Petitioner’s infractions, Id. at 67-75, 77-78.

4 SF, Trial, test. of Donna Pavelock, vol. 49 at 6-11, 14-15, Pavelock also testified on direct examination

that (1) Petitioner’s demeanor on the date in question was “evil” and (2) Petitioner was never respectful, never asked

for anything but, instead, was always demanding. /d. at 10-11. On cross-examination, Ms. Pavelock admitted that

the only punishment Petitioner received as a result of the incident in question was a loss of 15 days of commissary

privileges. fd at 11-14.

'S $F. Trial, test. Jerry Dominy, vol. 49 at 16-20, 21-22. Dominy also testified on direct that Petitioner’s

verbal tone on the date in question was aggressive and loud; (2) Petitioner’s reputation at the TDCJ’s Elis Unit was

consistent with what he witnessed that day; and (3) Petitioner had more problems with female guards than male guards.

Id. at 18-19, 22. On cross-examination, Petitioner’s trial counsel elicited testimony from Dominy that this was the

only incident Dominy ever witnessed involving Petitioner during the many years he worked at the Ellis Unit. □□□ at

Petitioner joined a large group of inmates who refused to get off a truck and go to work in the

fields despite numerous orders and threats from guards;!® (8) a female TDCJ employee about an

incident January 15, 1999, in which Petitioner was charged with threatening an officer verbally

and received 15 days in solitary, a loss of 6 days of good conduct time, and a loss of 30 days of

commissary privileges;'? (9) a Dallas police officer who interviewed Petitioner in April 2008

about the 1984 capital murder of Angela Samota, who testified Petitioner (a) denied ever being

violent during sex; (b) initially displayed a defiant, arrogant demeanor during the interview; but

(c) changed his demeanor and became “more forward” when she asked about his activities on

October 12-13, 1984;!8 (10) a TDCJ inmate and another witness who each testified about an

incident April 16, 2010, during which Petitioner called the inmate a “f—ing piece of s-—t” and

made a slashing gesture across his own throat when Petitioner saw the inmate in a holding cell at

the Dallas County Jail;!? and (11) a nurse employed at a TDCJ Unit about an incident on

21, 22-23.

S.F. Trial, test. of Charie Driscol Porter, vol. 50 at 7-18, 21-22. Porter also testified on direct that (1)

Petitioner displayed a really bad attitude” and used “real hateful speech toward people,” especially toward female

officers; (2) in 1996 Petitioner was a large, stout, man who wore glasses and was extremely intimidating; (3) she found

the incident in question very scary; and (4) at present well over fifty percent of TDCJ guards are women. Id. at 16-

17, 22. On cross-examination, Petitioner’s trial counsel elicited admissions from Porter that (1) this was the only

report she ever wrote up on Petitioner and (2) Petitioner never attacked her. Jd. at 18-21, 23.

16 SF. Trial, test. of Rupert S. Robert, vol. 49 at 23-37. More specifically, Officer Robert testified on direct

and cross-examination that (1) Petitioner was one of 93 inmates he wrote up who refused to go to work in the fields

after being transported outside on the date in question and (2) after pleading guilty, Petitioner received a day or two

in solitary and thirty days loss of commissary privileges. fd at 27-31, 35.

17 SF, Trial, test. of Angela Jeter, vol. 49 at 38-52. Jeter testified that (1) she served as Petitioner’s counsel

substitute on the major case; (2) Petitioner was charged with cursing a guard and telling the guard that he “should kick

his ass” during a verbal dispute over changing the television channel; and (3) Petitioner was also charged with

approaching the officer aggressively. /d.

8 SF. Trial, test. of Linda Crum, vol. 49 at 52-59.

10 SF. Trial, test. of Henry Aguilar, vol, 49 at 60-66. A TDCI gang intelligence officer also testified that

he had deait with inmate Aguilar and had received reliable information from Aguilar in the past. S.F. Trial, test. of

David Crippin, Volume 49 at 66-69. A Dallas Sheriff's Office Special Response Team member testified that he heard

Petitioner curse another inmate while he was escorting Petitioner past a series of individual holding cells at the Dallas

November 17, 2007, during which (a) Petitioner appeared in the Unit clinic complaining of chest

pains; (b) when Petitioner persisted in yelling and cursing at a TDCI security officer, the nurse

responded that Petitioner would not be yelling if he were in pain; (c) Petitioner then responded

“black mother fer bitch. You don’t have to talk to me like that”; and (d) Petitioner then walked

out of the clinic.”°

2. The Defense’s Case in Mitigation

Petitioner’s defense team first called Petitioner’s younger brother Gary, who testified that

(1) their father was an encyclopedia sales representative who organized sales areas and traveled a

lot; (2) when he was young their family moved around quite frequently; (3) he attended thirteen

different schools growing up; (4) as a result, he and Petitioner both had very few friends but

developed a close brotherly relationship; (5) eventually their family moved into construction and

settled down; (6) their mother was a stay-at-home parent when they were young; (7) their mother

would often blow up over minor infraction and cause Petitioner’s father to punish Petitioner and

Gary unfairly and excessively; (8) when their father did punish them, their mother would then say

didn’t mean they were that bad”; (9) Gary was their mother’s favorite, possibly because of a

congenital defect in his arm; (10) Petitioner was their father’s favorite until their younger sister

was born and she quickly became their father’s favorite; (11) Petitioner stopped playing football

because he did not like people yelling at him; (12) growing up, Petitioner was active in Boy Scouts;

County Jail on April 16, 2010, S.F, Trial, test. of Clifford Johnson, vol. 49 at 70-79. Officer Johnson also testified

that after the incident in question, inmate Aguilar initially refused to be removed from his holding cell and escorted

the same direction Petitioner had gone. Jd, at 75-66.

20 SF, Trial, testimony of Nikki Anderson, Volume 50, at 24-30. On cross-examination, Petitioner’s trial

counsel elicited testimony from the nurse that the female security guard who interposed herself between Petitioner

and the nurse did not mace or have to handcuff Petitioner to prevent Petitioner from behaving violently, Jd, at 31-

(13) Petitioner was also Gary’s defender and protector; (14) once their father stopped traveling,

their father worked days, their mother worked nights, and he and Petitioner looked after their

younger siblings; (15) their mother was an alcoholic whose drinking became worse when she

began working evenings; (16) when their mother drank, she was a lot more self-centered and mean;

(17) mental illness (bi-polar and schizophrenia) is common on their mother’s side of the family;

(18) their mother had, and possibly their younger brother has, some form of mental illness;

(19) when they grew older, their sister took over responsibility for taking care of their younger

brother, a responsibility she continues to exercise now that their parents are gone; (20) Petitioner

has always taken care of himself; (21) Petitioner has experienced a couple heart attacks, suffers

arthritis in his knee from a football injury, and has diabetes and other medical issues;

(22) Petitioner is not a threat to anyone; (23) it was not until he married that Gary learned to model

a good marital relationship, learning by watching his wife’s parents interact; (24) he has been

Petitioner’s only constant relationship throughout life; (25) he believes the jury should allow

Petitioner to die a death by natural causes; and (26) Petitioner has two stents and is able to do little

recreational activity beyond watching television and reading.”'

The defense called a cardiologist who had recently treated Petitioner and who testified that

(1) Petitioner had a stent installed in 2007 and another installed just days before trial began;

(2) Petitioner has mildly depressed heart function; (3) Petitioner has significant coronary disease

21 SF, Trial, test. of Gary Wayne Bess, vol. 50 at 36-57, 71-75. On cross-examination, Gary Bess testified

that (1) he is unaware that Petitioner has any mental problems; (2) Petitioner is not bi-polar and not manic;

(3) Petitioner was not physically abused as a child except for spankings; (4) Petitioner was never sexually abused;

(5) they lived in rent homes growing up but pretty much always had food; (6) Petitioner has a temper but is not violent;

(7) Petitioner received a 25-year sentence for two crimes in 1977 but was out in seven years; (8) Petitioner found a

job after getting out of prison in 1984; (9) he does not believe Petitioner is guilty of the rapes for which Petitioner was

convicted; (10) Petitioner has said he is sorry he is in prison but has not expressed remorse to Gary for his crimes,

(11) he does not discuss Petitioner’s crimes with him; and (12) he does not believe Petitioner is guilty of the capital

murder for which Petitioner was convicted, Jd. at 57-70, 76-77.

10

diffusely scattered throughout his blood vessels; (4) Petitioner has swelling in his legs and

experiences shortness of breath; (5) he diagnosed Petitioner with coronary heart disease and

chronic systolic heart failure; (6) Petitioner is also diabetic and has a blockage of eighty percent in

his carotid artery; and (7) surgery to clean out Petitioner’s carotid artery would be extremely

risky.”

An exonerated former TDCJ inmate who resided with Petitioner in the same cell block for

many years testified that (1) he worked with Petitioner in their prison laundry and resided with

Petitioner for more than ten years; (2) he got to know Petitioner in prison and they became friends,

(3) a lot of inmates had issues with female guards, especially when the female guards began

monitoring inmates in the showers; (4) lots of rough language is used in prison and it is socially

acceptable, including racially charged language; (5) Petitioner got along with a black inmate who

also worked in the laundry; (6) Petitioner is not a gang member; and (7) over the years Petitioner

has become significantly less physically active.”

Petitioner’s mental health expert, clinical psychologist Dr. Mark P. Vigen, then testified

that (1) the TDCJ is a well-run prison system which has controlled and has the ability to continue

to contro! Petitioner so that Petitioner will not be a danger to others within the prison system; (2) he

and former TDCJ official S.C. Woods interviewed six TDCJ officers and reviewed Petitioner’s

TDCI disciplinary records; (3) Petitioner accumulated 29 disciplinary infractions over a 32-year

period; (4) Petitioner was incarcerated in the TDCJ system from May 1978 to March 1984 and

2 Trial, test. of Dr. Sandeep Rom Das, vol. 50 at 85-112.

23 S.F. Trial, test. of Johnny Ear! Lindsay, vol. 50 at 113-36, 149. On cross-examination, Lindsay admitted

that (1) during his years in TDCJ, he never received a disciplinary infraction for being disrespectful to a guard; (2)

Petitioner has an attitude; (3) the guards had a real problem with Petitioner; (4) Petitioner was a loner and a lot of

people did not like him; and (5) Petitioner talked a lot of trash, especially to the guards, /d. at 137-48.

11

then again from September 1986 to May 2008; (4) Petitioner pleaded guilty during those time

frames to multiple charges of speaking defiantly, using vulgar language, and disobeying an order;

(5) Petitioner also pleaded guilty to a wide variety of infractions, including fighting with a dust

pan and broom, being out of place, standing outside a designated area, possession of contraband

(specifically food), lying to an officer, bathing in a sink, oversleeping, verbally threatening an

officer, refusal to go to optometry, whistling and talking in a hallway, stealing hot dogs, and failing

to enter the day room; (6) all of Petitioner’s infractions were minor disciplinary infractions which

led to Petitioner losing commissary privileges or being confined to his cell, but did not result in

Petitioner losing good conduct time credits or suffering a reduction in classification status;

(7) Petitioner had no violent infractions or sexual violations; and (8) elderly inmates tend to have

fewer deviant, compulsive, or hostile infractions than younger inmates.”

When Dr. Vigen attempted to recite some of the things various TDCJ employees had told

him during their interviews, however, the prosecution objected on hearsay grounds and the trial

court excused the jury while counsel argued the issue.” Near the conclusion of that hearing, the

prosecution offered to allow Dr. Vigen to summarize for the jury what he had been told by the

TDCJ employees whom he interviewed but not give verbatim recitations of everything his

interview subjects’ had told him.”* Dr. Vigen then testified as follows in front of the jury:

Q. With the rules in effect from our conversation, did you have a chance to

interview some guards?

A. Some corrections officers, yes.

Q. Excuse me. My apologies. Corrections officers.

A. Yes.

4S F. Trial, test. of Dr. Mark P. Vigen, vol. 51 at 14-53.

5 Td, at 53-64,

26 Id. at 62-64 .

12

Q. Let’s start with number one that you have on your list.

A. Yes.

Q. Who did you interview?

A. Corrections officer Janet Ebner.

Q. And what was her duty in the system?

A. At the time I interviewed her, she was chief of Unit Classification at Ellis one

year and she had about 27 years of experience.

Q. Okay. Did she express - - did she have any problems dealing with Bess?

A. No,

Q. Okay. Who was the next one - - when I say “Bess” I mean Andy Bess.

Donald Bess, the defendant; is that right?

A. Yes, sir.

Q. Okay. Who’s the second person?

A. Sergeant Cynthia Johnson.

Q. And what was her assignment?

A. She’s the laundry manager in charge of all the supervision of the laundry

facilities at Ellis.

Q. Okay. And do you know how long she’d been employed or worked in the

system?

A. She was asergeant. She probably has extensive experience, Let’s see...

I think certainly longer than - - she probably started prior to 1992.

Q. Okay. And she had - - she’s had contact with the Defendant; is that correct?

A. Daily contact since 2001 to the present.

Q. Has she had any problems dealing with Mr. Bess?

A. No.

Q. And, physically, how would you describe her, Is she asmall person? Large

person?

A. She is a small woman, about five-foot four. Average build. Neatly

groomed, Articulate. She has a very good command presence about her.

Q. Is she white or black or Hispanic?

A, She’s a black woman.

Q. Who’s the next person on your list?

A. Sergeant Johnny Mahone. Mahone or Mahoney.

Q. Okay. What are his duties and responsibilities in the system?

A. He’s been involved with laundry management and necessities, which are

managing laundry and facilities like that.

Q. And how long has he been in contact with Donald Bess?

A. He has known him for 21 years.

Q. Has he had any problems dealing with Mr. Bess?

A. No.

Q. Okay. Who will be the next person that you talked to? Or on your list,

rather.

A, Corrections officer David Fransaw.

Q. And what duties does he have?

A. He’s been a corrections officer since 1987 and he had various positions.

13

Q. Okay.

A. He met Mr. Bess in 1993,

Q. Has Mr. - - has David had any problems dealing with Mr. Bess?

A. No.

Q. Okay. Who was the next person on your list?

A. Sergeant Chad Crippin.

Q. Do you know what his assignment is?

A. He is head of the Security Threat Group since 1999 at Elis, and he’s been at

Ellis since 1986, He’s a sergeant.

Q. Has he had any problems dealing with Mr. Bess?

A, No problems with him.

Q. Okay. You personally talked to him, right?

A. Yes.

Q. Okay. Who’s the next one on your list?

A. He is the last one that I interviewed personally. S.O, Woods interviewed one

additional officer, when I was not able to be there.

Q. Okay. And what's the next one on your list?

A, His name is Kelly Bybee.

Q. Okay. And what’s his responsibility?

A. Heis a unit laundry manager.

Q. Okay. Has he indicated how long he’d known Mr, Bess?

A. Yes. Since 1990.

Q. Okay. Did he have any problems dealing with Mr. Bess?

A. No.

Q. Now, there’s two other people that were interviewed; is that correct?

A. Yes.

Q. Harry Sturgess (phonetic) and James Jose?

A. Yes.

Q. And is it fair to say that they had no remembrance of any problems dealing

with Mr. Bess?

A. Yes.

Q. Okay. In other words, the idea being that if they had problems they would

have had significant memory about him.

A. Let me say it clearly. They did not remember Mr. Bess. Even though

Sergeant Sturgess, who’s now retired, did write a disciplinary action on him.

They didn’t remember him and, as a result of not remembering him, they had no

memory of anything negative to say about him.’

Dr. Vigen concluded his direct examination by opining that, based upon Petitioner’s advanced age,

declining health, and confinement history, all of which could be considered mitigating factors, he

27 te,

14

believed Petitioner would not pose a risk of future dangerousness.** Following extensive cross-

examination? Dr. Vigen also opined that nothing in Petitioner’s records suggests he had ever

used a weapon except possibly for one incident in which a dust pan and brush were involved in an

altercation with another inmate, and nothing in Petitioner’s records suggested he had ever been

involved in an escape attempt.*° After the conclusion of Dr. Vigen’s testimony, Petitioner’s

defense team rested.!

3. The Prosecution’s Case in Rebuttal

The prosecution then called Petitioner’s ex-spouse, who testified that (1) she married

Petitioner in 1969, when she was eighteen; (2) Petitioner’s attitude towards her changed shortly

after they married, and he became disrespectful, insulting, demeaning, and prone to violent

outbursts that had nothing to do with his use of alcohol; (3) Petitioner threw her against a wall

78 Td, at 69-71,

2° During cross-examination, Dr. Vigen testified that (1) clinical psychology is a field that looks for the best

in people; (2) there is no DSM-IV diagnosis for “psychopathy”; (3) it is generally believed that psychopaths are very

dangerous and untreatable; (4) about 75% of men in prison between the ages of 18 to 24 are diagnosed as displaying

Antisocial Personality Disorder (“ASPD”); (5) by age 55, however, that 75% figure is reduced by about 75% to a

figure of about 25%; (6) he interviewed corrections officer and reviewed Petitioner’s disciplinary records; (7) the

crime scene photos of Petitioner’s capital offense reflect a very violent offense; (8) he reviewed Petitioner’s 29

disciplinary cases but did not interview any of the officers involved in those incidents; (9) he made the decision not to

pressure any of the officers he interviewed to talk with him; (10) all of Petitioner’s violations were minor in nature;

(11) vulgar language is certainly hostile but still a minor infraction; (12) Petitioner has made threats and defied orders,

common behavior among older inmates, but threats are not acts of violence; (13) the best predictor of what Petitioner

will do in prison is what he has done over the past 22 years; (14) the chances are low that Petitioner will be violent in

prison; (15) Petitioner is a large man who has been more defiant with female guards than with male guards;

(16) Petitioner has been more violent toward women than men; (17) because the Texas prison system is well-run, there

is a low likelihood Petitioner will hurt anyone in prison; (18) Petitioner would potentially be very dangerous in the

free world, (19) alcohol and drugs have been confiscated within the Texas prison system, as have cell phones;

(20) human error occurs within the Texas prison system and Texas prisons are not perfect; (21) escapes have occurred

from Texas prisons; (22) there is violence and the opportunity for violence within Texas prisons; (23) he cannot be

one hundred percent certain what will happen; and (24) prior to that day, he had never seen Petitioner. Jd. at 106,

122-42,

3 Td. at 142-47.

31 Fd at 147.

15

when she was five months pregnant, causing her to suffer a blow to the back of her head which

left her with two black eyes; (4) she went to live with her parents briefly but then returned to

Petitioner; (5) during a subsequent marital counseling session, their pastor told her not to go home

with Petitioner but she did anyway; (6) when their daughter was about five months old, Petitioner

responded to their daughter crying by kicking their daughter’s crib from one side of her bedroom

to the other with their daughter inside the crib; (7) she waited until Petitioner went to work and

then left with their daughter, despite the fact she was then pregnant with their son; (8) she never

returned to Petitioner; (9) when she gave birth to their son, Petitioner offered to take and raise their

son but said he did not want their daughter; (10) thereafter, Petitioner paid a grand total of twenty-

five dollars in child support, and had nothing to do with their children; (11) Petitioner’s mother

was an alcoholic who treated Petitioner’s brother Gary much better than she treated Petitioner;

(12) Petitioner never smoked and they did not have alcohol in their house when they were married;

(13) when she was cight-months pregnant with their daughter, a woman approached her and told

her “I am so sorry. I did not know he was married and I did not know he was having a child”; and

(14) after their divorce, Petitioner gave up his parental rights to their children.

The prosecution then called another of Petitioner’s rape victims, who testified about the

January 1977 night on which Petitioner (1) approached her from behind on the street, put his hand

over her mouth, displayed a knife, and threatened her; (2) took her to a blue truck with a white

camper and forced her into the truck, telling her, “you are the victim of my aggression. You get in

the truck”; (3) announced that he was going to rape her and demanded that she direct him to her

house; (4) located her address in her purse after she attempted to misdirect him; (5) placed her in

32 Trial, test. of Dianne Cotie, vol. 5} at 148-67.

16

fear for her life; (6) told her that if anyone else was at her apartment when they arrived, she and

the other person would be dead; (7) forced her into her apartment at knifepoint and directed her to

disrobe, (8) raped her, (9) took her back to her vehicle, and (10) told her that if she called police,

she would pay for it3? The same witness then described how, despite Petitioner’s threat, she called

the police, and months later went to a police station, where she met two other victims of Petitioner

and immediately identified Petitioner as her assailant.*4

Finally, the prosecution called Samota’s older sister, who testified that (1) Samota was the

youngest child in their family and involved in a very happy relationship with Ben at the time of

her death, (2) she was responsible for packing her sister’s apartment after Samota’s murder and

still has many household items belonging to Samota, (3) based in considerable part upon what

happened to her younger sister, she decided not to have children, and (4) when she heard an arrest

had finally been made in Samota’s murder, she experienced a “Twilight Zone” feeling.*° Both

parties then rested and closed.*°

4, The Defense’s Bill of Exceptions

Outside the jury’s presence, Petitioner’s defense team presented additional testimony from

S.O. Woods and Dr. Vigen. Woods testified that (1) the defense team obtained a court order for

prison personnel records, (2) he and Dr. Vigen got names from Petitioner’s disciplinary records

and went to the TDCI’s Ellis Unit to talk with people named in those records, (3) he was surprised

F, Trial, test.ofE ___, vol. 51 at 168-77.

4 Id at 174-77.

33 $.P, Trial, test. of Gail Samota, vol. 51 at 178-85,

36 Td. at 185-86.

17 □

at how many prison personnel came forward to talk with them when requested, (4) the prison

correctional officers were reluctant to talk with him and Dr. Vigen until they explained they would

not have to testify in court, (5) he doubted many of the officers would have cooperated without

that assurance, (6) prison officials and employees fear appearing in court, and (7) for a criminal

defense counsel to subpoena TDCI personnel would cut the information flow to defense counsel

in all cases.>”

Dr. Vigen then took the stand, and the following took place:

BY MR. FRANKLIN:

Q. I’m going to hand you, Dr. Vigen, what’s been marked as Defendant’s

Exhibits 20 through 25, and ask you if you can identify those exhibits?

A. Yes. These are copies of my notes that I took during interviews with these

corrections officers.

Q. And those are the actual notes that you took, as you were doing the interview;

is that right?

A. Yes, sir. They’re contemporaneous notes.

MR. FRANKLIN: Okay. We will offer these forthe record. Judge, for

purposes of this Bill of Exceptions.

THE COURT: Be admitted.

MR. TATUM: Would you have him just read what the individual officers

- - he would have stated what they said, having been allowed to do that, for each

one.

Q. (BY Mr. Franklin) Will you just go through there and state the name and

briefly what they would have said, had you been able to testify.

A. Yes. Janet Ebner gave her credentials and had 27 years experience. She

said - - she would have said - - she did say that she knows Bess by sight only.

Knows of no problems with him. She reviewed his chart. He had a low number

of disciplinaries. She said two majors. And then she listed: A: Verbal staff

assault. B: Destroyed boots. Then C: Not going to work. And D: Failure to

work.

Q. Okay. Next.

A. Next was Cynthia Johnson. She gave her credentials and said how long she

had known Bess. She said that he followed all of her directions; that she had no

problems with him; that she had never seen him cause any type of problem, and she

labeled him a - - quote - - “normal inmate.”

Q. Okay, Next.

7 $F. Trial, Sub Rosa Examination of §.0. Woods, Volume 51, at 186-96.

18

A. Next one is Sergeant Johnny Mahoney or Mahone. She described her

experience. Known him for 21 years. She saw Bess everyday. Bess was a

clothing handler. She’d been in laundry back in 2001. Bess was there at that

time for two and-a-half years more than she. She knew that he worked in the

shower area. She said he did what he was told to do. There were no problems

from him. He liked to eat cakes and pies. His reputation was, he got along with

inmates and most staff and he was not a troublemaker.

Q. Okay, Next one.

A. Next one was David Fransaw, F-r-a-n-s-a-w (spelling). Fransaw. He gave

his credentials, then he said that he met Bess in 1991 also in the laundry. He had

- - he worked the south end of the main corridor. Had very little contact with Bess.

Saw him in the halls. Saw him in the chow halls. Saw him going to showers.

He said Bess loved to eat.

He, the Officer Fransaw, would go shake down the north end and Bess was

housed in J22 and he saw him, Bess, during those shakedowns. Bess had a good

reputation, and no big problems.

Q. Allright. Next one.

A. The next one was Sergeant Chad Crippin. He gave his credentials. He said

he had known Bess since 1986. He said Bess was a big guy and that Bess had

showed him a Texas Monthly article that had mentioned Crippin as a corrections

officer.

Bess apparently had that copy and brought it up and showed itto him. He

described Bess as friendly. Went to work inthe laundry. No problems with him,

Good-natured. And he said, “I couldn’t say anything bad about him.”

He said that there was a note or a letter in the file, dated 6/15/93 - - an Aryan

Brotherhood letter - - that said he might be a potential member. But that was

apparently written by other people.

Q. Isthat all? I mean, is that all of the corrections officers that you were able to

talk to?

A. Yes. And then Woods - - Mr. Woods interviewed this last one, Kelly Bybee.

Now, I also talked to two others who had retired.

Q. Okay, Did they have anything positive to say about him?

A. They were supervisors in the prisons, like, Harry Sturgess. And they would

have known more about him, they said, had he been a problem. The fact is they

didn’t remember him, which indicated to them that he wasn’t much of a problem.

Harry Sturgess was one of the men who had written one of the

disciplinaries. We showed him the disciplinary report, and he still did not

remember Bess.

Q. Do you believe, had the jury been able to hear these specific renditions of what

you were told by these corrections officers, that it would have helped to make their

determination of future danger?

A. I would say it might have, yes.

Q. Okay. Because we do have positive input from individual corrections

officers about inmate Donald Bess; is that correct?

A. That’s correct.

19 □

Q. Allright. Now, you’ve been doing this for quite sometime. Have you ever

known of an instance where the Defense lawyers were able to actually go in,

interview the corrections officers, get positive feedback from a corrections officer,

have that correction officer say, “You subpoena me, and I'll gladly come to court

and testify for you,” and have that actually happened [sic], if we have a correction

office [sic] with positive things to say show up in a courtroom, in a death penalty,

and say something positive about the inmate?

A. No.

Q. And why is that, in your opinion?

A. Well, I just haven’t - - it’s not an opinion. [just haven’t seen that happen.

Q. How much trouble do you have in interviewing these correction officers?

A. Well, I’ve interviewed corrections officers regarding Mr. Robertson’s trial that

was held here in front of Judge Thompson earlier. And then regarding this inmate.

Many of the officers - - some of the officers in the Robertson trial did not

want to be interviewed. And the warden told us that.

Q. Right.

A. We didn’t feel like we should ask them to do anything against their wishes.

In this trial, these men and women came forward, you know, at the behest

of the warden. And I don’t know if anybody declined to come forward, that may

have been asked.

Q. Allright. Again, you had to make a deal with these correction officers in

order to get information from ‘em; and the deal being that you wouldn’t be calling

‘em in to court to testify.

A. Well, I explained very clearly that it was not our intention - - Mr. Woods or

my intention - - to call them as witnesses and that it would - - you know, that would

be left - - that you, Defense lawyers, left that up to us to tell them that.

But then, at the same time, I couldn’t guarantee that these men and women

wouldn’t be subject fo subpoena. I don’t have that power to say that.

I mean, we were essentially saying to them “we want your observations.

We want you to say whatever you want to say.”

We asked them their observations, and they told us what they were. And

then I said, “May I write these observations?” And they said, “Yes.” And then

I read the observations back to them.

We didn’t in any way want to be coercive to them. We said it was our

intention that they will not be called as witnesses. But we also said we can’t

guarantee that. We don’t have the power of the Court and the lawyers to make

that absolute assurance. So J think it was clear to them that we were there to learn

from them, but that we would not be asking them to come.

Q. Now, we have discussed with wardens - - you and I and other lawyers have

discussed with wardens in the system what is happening in the death penalty trials

across the state. Where they have had inmates who are being tried in death penalty

cases,

We have discussed with them that there are people who come and testify

what a pathetic, ill-run system that they’re operating, have we not?

A. Yes, we have.

20

Q. One of ‘em, A.P. Merlot [sic], we talked about quite a bit with these wardens;

is that right?

A. Yes.

Q. And we tell the wardens what Merlot [sic] says about their prisons.

A. Yes.

Q. But they won’t come in here and defend their particular units, will they?

A. Ihaven’t met a warden or an administrator, a regional director or a head of a

division that really has known much about criticisms of the prisons that are being

made in courts. They’re generally not aware of that.

Q. And, yet, they don’t want to come in here and defend when they know about

it, do they?

A. You know, I don’t know that I can speak for the wardens and say what they’re

willing - - what they will or won’t do. Several of them said they don’t want to

come to court and testify.

Q. Right.

A. I mean, they’ve said that, But I don’t know all they’re thinking about it.

We just don’t want to put a corrections officer in jeopardy and ask him to do

something that may be politically incorrect for him or not in the best interest of his

career opportunities, if he were seen to be offering testimony for a Defense witness

or a Defense lawyer that may have a negative impact on him, in what he does in his

career.

We don’t want to - - we’re just not there to hurt anybody and their careers.

We’re just there to understand the inmate.

Q. And it’s been kind of your impression that if we were to force these people

to really help us, and they were willing - - I mean, we can’t - - it’s difficult to get

somebody who wants to help us; it that true?

Because we’re Defense lawyers and, for some reason, there’s sort of a

systemic - - I don’t want to call it “rule” - - feeling that if they help the Defense,

they’re going to get in trouble.

A. I think that’s true. They have been very willing to help me in my research

efforts and what I’ve been wanting to do in the prison system. But I think you’re

accurate in the implications of your question.

Q. And we are - - we even are afraid to, for example, use 8.0. Woods in certain

aspects of really testifying full board [sic] for the Defense, for fear that he may lose

his access to the system and access to help - - the help that we can get from people

within the system; is that correct’?

A. Yes, sir.78

38 SF. Trial, Sub Rosa Examination of Dr. Mark P. Vigen, vol. 51 at 197-205.

21

5. Closing Jury Arguments

In their closing jury arguments at the punishment phase of Petitioner’s capital murder trial,

the prosecution team emphasized (1) the extreme level of violence and brutality involved in

Petitioner’s capital offense; (2) the level of horror Petitioner inflicted upon his surviving sexual

assault victims; (3) the violence Petitioner inflicted on his own wife and child; (4) Petitioner’s

continued pattern of hostile behavior, as exemplified by his recent encounters with a nurse and

female security guard inside the Ellis Unit infirmary and with Henry Aguilar inside the Dallas

County Jail; (5) Petitioner’s previous success in manipulating the system to gain his release;

(6) Petitioner’s words to a female TDCJ employee that a life sentence meant he did not have to

obey any rules; (7) that Petitioner’s ill-health and weight were matters largely the products of his

life choices; (8) the eerily similar details of each of Petitioner’s sexual assaults; (9) the flippant

manner with which Dr. Vigen dismissed Petitioner’s prison disciplinary cases as “traffic tickets,”

despite the fact they included an assault on another inmate and multiple verbal assaults on prison

guards; (10) the fact defense witness Johnny Lindsay was also a convicted rapist; and (11) the

absence of any evidence showing the existence of compelling mitigating circumstances.”

3° Multiple attorneys argued for both sides at the closing of the punishment phase of trial. Prosecuting ~

attorney Healy’s closing argument at the punishment phase of Petitioner’s capital murder trial (1) reminded the jury

of the promises they all made during voir dire to apply the law and answer the capital sentencing special issues if the

case progressed that far; (2) emphasized the solemn responsibility they would bear on so doing; (3) mentioned the

number of women Petitioner had sexually assaulted, both before and after he went to prison the first time;

(4) repeatedly reminded the jury of the extreme level of violence inflicted upon Petitioner’s capital murder victim,

(5) argued Petitioner’s actions in murdering his victim were deliberate; (6) reminded the jury that Petitioner orgasmed

inside his capital murder victim; (7) reminded the jury of the violence Petitioner inflicted on his ex-wife and daughter;

(8) reminded the jury Petitioner was released from prison after serving only seven years on a pair of 25-year sentences,

and, within just a few months, raped and murdered a new victim before raping yet another woman; (9) threatened both

Henry Aguilar and a TDCJ Nurse only months before his capital murder trial; and (10) reminded the jury that the

Petitioner’s own brother did not believe Petitioner had committed any of his criminal offenses, including the ones for

which Petitioner pleaded guilty. S.F. Trial, vol. 52 at 8-28.

Prosecuting attorney Kirlin argued (1) the facts of Petitioner’s capital offense alone fully justified affirmative

answers to the first two special issues and a negative answer to the final special issue; (2) Petitioner is a master

manipulator who succeeded in gaining his freedom during his first term of incarceration, despite having assaulted

another inmate and having verbally assaulted prison staff on multiple occasions; (3) Petitioner’s pattern of minor

22

The defense (1) emphasized the importance and seriousness of the jury’s duty;

(2) reminded the jury of the things they had discussed with counsel during voir dire, including the

role of individual jurors in standing firm in their views; (3) emphasized the broad range of

mitigating evidence; (4) reminded the jury that individual jurors need not agree on what constitutes

mitigating evidence; (5) argued the jury could dispense mercy; (6) reminded the jury that the death

penalty was reserved for only those whom the state proved beyond a reasonable doubt would be a

continuing threat to society; (7) argued Petitioner’s record of only minor disciplinary infractions

and verbal assaults while in prison for 32 years showed that he was not a future danger;

(8) reminded the jury of Dr. Vigen’s testimony that the Texas prison system was capable of

controlling Petitioner; (9) argued Petitioner had never used a weapon during any of his verbal

prison incidents; (10) reminded the jury that Petitioner was now old and in ill health; and

(11) conceded that this capital murder was deliberate but insisted Petitioner was not a future

danger.”

prison disciplinary infractions were a part of Petitioner’s efforts to obtain release yet again; (4) Petitioner hates women,

(5) Petitioner’s poor health resulted directly from Petitioner own life choices, including his theft of hot dogs and cheese

despite his having diabetes; (6) Dr. Vigen was unfamiliar with Petitioner’s personality and unreasonably dismissive

of all of Petitioner’s disciplinary infractions as minor “traffic tickets”; (7) defense witness Johnny Lindsay was also a

convicted rapist; (8) all of Petitioner’s rapes bore eerily similar details showing Petitioner’s penchant for the

manipulation of others; and (9) Petitioner’s statement to a female TDCI staff person that his life sentence meant he

did not have to obey any rules were a clear indicator of how Petitioner would behave if granted yet another life sentence

and locked in a prison facility guarded by women. fd. at 49-66.

40 Defense attorney John G. Tatum emphasized the seriousness and importance of the jury’s role at the

punishment phase of trial, argued the jury should consider a broad range of evidence to be mitigating, and urged the

jury to dispense mercy. /d. at 27-31.

Petitioner’s lead defense counsel, attorney Richard K, Franklin, argued (1) Petitioner’s record of only verbal,

non-physically violent disciplinary infractions over his 32 years in prison demonstrated Petitioner was not a future

danger; (2) Petitioner’s verbal outbursts were consistent with what Dr. Vigen described older inmates do, i.e., they

mouth off but are not violent; (3) Dr. Vigen had spoken with female prison guards who did not have a problem with

Petitioner; (4) Petitioner’s disciplinary infractions were relatively minor, some so minor they were never written up;

and (5) that while the capital offense was deliberate, the state had failed to prove beyond a reasonable doubt that

Petitioner was a future danger, [d, at 32-49.

23

6. The Verdict

On June 18, 2010, the jury returned its verdict at the punishment phase of Petitioner’s

capital murder trial, (1) finding beyond a reasonable doubt that he caused Samota’s death

deliberately and with reasonable expectation that her death or the death of another would result;

(2) finding beyond a reasonable doubt that there is a probability he would commit criminal acts of

violence that would constitute a continuing threat to society; and (3) finding that, taking into

consideration the circumstances of the offense, the Petitioner’s character and background, and his

personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence

of life imprisonment,*!

E. Direct Appeal

Petitioner appealed. On July 5, 2011, two of Petitioner’s trial counsel, attorneys John

Tatum and Robbie McClung, filed their Brief for Appellant, presenting fifty-two points of error?

41 Iq, at 72-73. Petitioner’s punishment phase jury verdict form appears among the state court records at

pages 91-93 of the first volume of the Clerk’s Record,

2 As points of error on direct appeal, Petitioner argued (1) the trial court erred in overruling Petitioner’s

Batson objection to the prosecution’s peremptory strike of venire member Margaret Austin (point of error No. 1);

(2) the trial court erred in denying Petitioner’s challenges for cause to fourteen named members of the jury venire

(points 2 through 15); (3) the jury as constituted violated Petitioner right to due process (points 16-17); (4) the trial

court erred in admitting over Petitioner’s objection the opinion testimony of medical examiner Dr. Gilliland regarding

her opinion that Samota engaged in intercourse contemporaneously with her death (points 18-19); (5) the trial court

erred in admitting crime scene photographs (points 20-21); (6) because there was no semen found on Samota’s bed

sheets, there was insufficient evidence to establish capital murder (point 22); (7) the trial court erred in failing to

instruct the jury on the lesser-included offense of aggravated sexual assault (point 23), (8) the trial court erred in

overruling Petitioner’s objections to prosecutorial jury argument at the guilt-innocence phase of trial regarding the

location of intercourse (point 24); (9) the trial court erred in denying Petitioner’s motion for mistrial at the guilt-

innocence phase of trial after the trial court sustained Petitioner’s objection to the prosecution’s closing jury argument

(point 25); (10) the trial court erred in overruling Petitioner’s objection to the prosecution’s closing guilt-innocence

phase jury argument regarding lesser-included offenses (point 26); (11) the trial court erred in sustaining the

prosecution’s hearsay objection to the defense’s proffer of Dr. Vigen’s testimony regarding statements made to him

by prison guards (points 27-28); (12) the evidence was insufficient to support the jury’s affirmative answer to the

future dangerousness special issue (point 29); (13) the trial court erred in denying Petitioner’s motion for mistrial after

the trial court sustained a defense objection to a prosecution question to a prosecution witness regarding Petitioner’s

demeanor (and apparent lack of remorse) (point 30); (14) the trial court erred in allowing the prosecution to impeach

defense witness Lindsay with a prior conviction that was more than ten years old (point 31); (15) the trial court erred

in admitting over the defense’s objection a self-authenticating document relating to one of Petitioner’s prior

24

In an unpublished opinion issued March 6, 2013, the Texas Court of Criminal Appeals affirmed

Petitioner’s conviction and sentence. Bess, 2013 WL 827479. The United States Supreme

Court denied Petitioner’s certiorari petition on January 13,2014. Bess, 571 U.S, at 1132.

F. State Habeas Corpus Proceeding

On May 21, 2012, attorney Catherine Clare Bernhard filed Petitioner’s initial application

for state habeas corpus relief, urging fourteen grounds for relief.*? The state trial court held an

convictions (point 32); (16) the trial court erred in admitting over Petitioner’s hearsay objection testimony at the

punishment phase of trial relating to the demeanor one of the Petitioner’s previous victims (points 33 & 37); (17) the

trial court erred in denying Petitioner’s motion for mistrial after the trial court sustained Petitioner’s objection to

prosecutorial argument regarding Petitioner’s threat against prosecution witness Aguilar (point 34); (18) the trial court

erted in overruling Petitioner’s objection and denying Petitioner’s motion for mistrial at the punishment phase of trial

regarding the prosecution’s jury argument alluding to parole (points 35-36); (19) the trial court erred in overruling

Petitioner’s objections to punishment phase prosecutorial jury arguments that addressed facts outside the record

(points 38-39); (20) Petitioner’s due process rights were violated by virtue of the absence of state appellate review of

the evidentiary sufficiency underlying the jury’s answer to the mitigation special issue (points 40-41), (21) the trial

court erred in failing to mandate a life sentence for Petitioner based upon the Supreme Court’s holding in Smith v.

Texas (points 42-43); (22) Petitioner’s equal protection rights were violated by virtue of the prosecutorial discretion

exercised by local prosecutors throughout the State of Texas (point 44); (23) the Texas capital sentencing statute is

unconstitutional because it imbues the jury with too much direction (point 45); (24) the Texas capital sentencing

statute’s mitigation special issue violates the Supreme court’s holding in Penry (point 46); (25) absence of a burden

of proof in the Texas capital sentencing statute’s mitigation special issue violates the Constitution (points 47 & $2);

(26) the Texas capital sentencing statute’s twelve/ten rule violates the Eighth Amendment (point 48); (27) the presence

of vague and undefined terms in the Texas capital sentencing special issues violates the Eighth Amendment (point

49); and (28) the Texas capital sentencing statute violates both federal and state constitutional prohibitions including

the Eighth Amendment and Due Process Clause (points 50-51).

43 As grounds for relief in his state habeas corpus application, Petitioner argued that (1) his Fifth and Eighth

Amendment rights were violated when he was charged with a capital offense committed more than twenty years prior

to his indictment (ground 1); (2) his death sentence violated due process principles and the Supreme Court’s holdings

in Roper v. Simmons because of Petitioner’s advanced age and poor health (ground 3); (3) Petitioner’s constitutional

rights were violated by virtue of the fact his defense team was unable to interview prison officials and employees

(ground 5); (4) his trial counsel rendered ineffective assistance by (a) failing to adequately raise a claim based on

preindictment delay (ground 2); (b) failing to challenge the admission of DNA evidence (ground 4); (c) failing to

investigate exculpatory evidence regarding scorch marks in the bathtub of McCall (ground 6); (d} conceding

Petitioner’s guilt without Petitioner’s consent (ground 7); (e) failing to challenge the absence of a definition of

“nrobability” in the future dangerousness special issue (ground 8); (f) failing to challenge the use of the deliberateness

special issue in the punishment phase jury charge (ground 9); (g) failing to challenge as too narrow the Texas capita]

sentencing statute’s definition of the term “mitigating evidence” (ground 10); (h) failing to object to the trial court’s

“no sympathy” jury instruction (ground 11); (i) failing to argue the Texas capital sentencing statute violates the

Supreme Court’s holdings in Apprendi, Ring, and Blakely and (j) failing to challenge the trial court’s failure to inform

the jury of the consequences of a single holdout juror; and (5) his appellate counsel rendered ineffective assistance by

failing to challenge the absence of a sentencing option of life without parole under the Texas capital sentencing scheme

applicable to Petitioner’s offense. Petitioner’s state habeas corpus application appears among the state court records

submitted by Respondent at pages 2-134 of the second volume of the transcript from Petitioner’s state habeas corpus

25

evidentiary hearing on June 28 and July 1-3, 2013, and heard testimony from multiple witnesses,

including all three attorneys who represented Petitioner at trial. On October 18, 2013, the state

trial judge issued an order containing his findings of fact, conclusions of law, and recommendation

that Petitioner’s state habeas corpus application be denied. 44 The Texas Court of Criminal

Appeals denied state habeas relief based upon the trial court’s findings and conclusions. £x parte

Bess, WR-81,572-01, 2016 WL 1470356 (Tex. Crim. App. Apr. 13, 2016).

G. Proceedings in this Court

On February 12, 2018, Petitioner filed his first amended federal habeas corpus petition,

see ECF No. 23, urging eleven grounds for relief, including multiple claims Petitioner had never

raised in any state court proceeding.” Respondent filed her answer on July 30,2018, See ECF

No. 30. Petitioner filed his reply on October 26, 2018. See ECF No, 34.

proceeding (“State Habeas Transcript, Volume II”).

44 The state trial court’s order issued October 18, 2013, appears among the state court records submitted by

Respondent at pages 40-135 of the first volume of the transcript from Petitioner’s state habeas corpus proceeding

(“State Habeas Transcript, Volume I”).

45 As grounds for relief in his first amended federal habeas corpus petition Petitioner argued that (1) new

questions exist regarding the reliability of the DNA evidence and test results in Petitioner’s case which satisfy the

“actual innocence” standard (ground 4); (2) the trial court erred in excluding hearsay statements from Texas

Department of Criminal Justice (*TDCJ’) employees and officials to the effect that Petitioner was not a future danger

(ground 5); (3) the prosecution’s use of a peremptory challenge against venire member Margaret Austin violated the

Supreme Court’s holding in Batson (ground 7); (4) the trial court erred in admitting unreliable testimony from

prosecution experts that Angela Samota had intercourse shortly before or contemporaneously with her death (ground

8); (5) Petitioner’s due process rights were violated by virtue of the 23-year delay in his indictment (ground 9); (6) the

Eighth Amendment precludes the execution of a person such as Petitioner who is of advanced years and in poor health

(ground 11); and (7) his trial counsel rendered ineffective assistance by (a) failing to adequately investigate Petitioner’s

background and present available evidence showing that (i) Petitioner grew up in a dysfunctional family with a family

history of alcoholism and mental illness, and experienced childhood trauma from abusive parents (ground 1) and (ii)

Petitioner suffers from deteriorating mental health but does not suffer from anti-social personality disorder (“ASPD”)

(ground 2); (b) disparaging Petitioner in closing jury argument at the punishment phase of trial and conceding

Samota’s murder was deliberate (ground 3); (c) failing to challenge the trial court erroneous admission of evidence

limiting the scope of defense expert Dr. Vigen’s punishment phase testimony regarding statements made to him by

TDCI employees (ground 5); (d) conceding without Petitioner’s permission that Petitioner sexually assaulted Samota

(ground 6); and (e) failing to investigate evidence showing Ben McCall committed Samota’s murder (ground 10).

26

On February 2, 2018, Petitioner filed a Motion for Stay. See ECF No. 22. On December

6, 2018 Petitioner filed a motion for discovery. See ECF No. 37. In an Order issued March 19,

2019, this Court denied Petitioner’s motions for discovery and stay. See ECF No.47. On April

10, 2019 Petitioner filed a motion for an evidentiary hearing, See ECF No, 48. Petitioner filed

a motion for reconsideration on April 19,2019, See ECF No, 49. In an Order issued April 23,

2019, this Court denied Petitioner’s motion for reconsideration. See ECF No. 50.

Il. STANDARD OF REVIEW

Because Petitioner filed his federal habeas corpus action after the effective date of the Anti-

Terrorism and Effective Death Penalty Act (C(AEDPA”), this Court’s review of Petitioner’s claims

for federal habeas corpus relief is governed by AEDPA. Penry v. Johnson, 532 U.S. 782, 792

(2001). Under the AEDPA standard of review, this Court cannot grant Petitioner federal habeas

corpus relief in connection with any claim that was adjudicated on the merits in state court

proceedings, unless the adjudication of that claim either: (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, See Brown v. Payton, 544 U.S. 133, 141 (2005); see also Williams v. Taylor, 529

U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).

The Supreme Court has concluded that the “contrary to” and “unreasonable application”

clauses of 28 U.S.C. § 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S, 685, 694

(2002). Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law

or (2) the state court decides a case differently than the Supreme Court on a set of materially

27

indistinguishable facts, See Brown, 544 U.S. at 141; see also Mitchell v. Esparza, 540 U.S. 12,

15-16 (2003). A state court’s failure to cite Supreme Court authority does not, per se, establish

that the state court’s decision is “contrary to” clearly established federal law. Indeed, “[t]he state

court need not even be aware of our precedents, ‘so long as neither the reasoning nor the result of

the state-court decisions contradicts them,’”” Mitchell, 540 U.S. at 16 (citation omitted).

Under the “unreasonable application” clause, a federal habeas court may grant relief if the

state court identifies the correct governing legal principle from the Supreme Court’s decisions but

unreasonably applies that principle to the facts of the petitioner’s case. Brown, 544 U.S. at 141;

Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the “unreasonable

application” inquiry should ask whether the state court’s application of clearly established federal

law was “objectively unreasonable.” McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); see also

Wiggins, 539 U.S. at 520-21. An “unreasonable” application is different from a merely .

“incorrect” one. See Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see also Wiggins, 539 U.S.

at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) (“[I]t is the habeas applicant’s burden to show

that the state court applied that case to the facts of his case in an objectively unreasonable

manner.”). “Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a

writ of habeas corpus from a federal court ‘must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.’” Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington vy. Richter, 562 USS.

86, 101(2011)).

Legal principles are “clearly established” for purposes of AEDPA review when, as of the

time of the relevant state-court decision, Supreme Court holdings, as opposed to the dicta, establish

28

those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (“We look for ‘the

governing legal principle or principles set forth by the Supreme Court at the time the state court

renders its decision.’” (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003))).

AEDPA also significantly restricts the scope of federal habeas review of state court fact

findings. 28 U.S.C. § 2254(d)(2) provides that federal habeas relief may not be granted on any

claim that was adjudicated on the merits in the state courts unless the state court’s adjudication of

the claim resulted in a decision based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. See Wood y. Allen, 558 U.S, 290, 301 (2010)

(citation omitted) (“[A] state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first instance.”); Williams,

529 U.S. at 410 (“[A]n unreasonable application of federal law is different from an incorrect

application of federal law.” (emphasis in original)). Even if reasonable minds reviewing the

record might disagree about the factual finding in question (or the implicit credibility

determination underlying the factual finding), on habeas review, this does not suffice to supersede

the trial court’s factual determination. See Wood, 558 U.S. at 301; see also Rice v. Collins, 546

U.S. 333, 341-42 (2006).

In addition, section 2254(e)(1) provides a federal habeas petitioner challenging state court

factual findings must establish by clear and convincing evidence that the state court’s findings

were erroneous. Schriro, 550 U.S. at 473-74 (“AEDPA also requires federal habeas courts to

presume the correctness of state courts’ factual findings unless applicants rebut this presumption

with ‘clear and convincing evidence.’” (quoting 28 U.S.C, § 2254(e)); Rice, 546 U.S. at 338-39

(“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of

rebutting the presumption by ‘clear and convincing evidence.’” (same)). At this juncture, it

29

remains unclear whether section 2254(e)(1) applies in every case presenting a challenge to a state

court’s factual findings under section 2254(d)(2). See Wood, 558 U.S. at 300-01 (choosing not to

resolve the issue of section 2254(e}(1)’s possible application to all challenges to a state court’s

factual findings); Rice, 546 U.S. at 339 (same).

The deference to which state-court factual findings are entitled under AEDPA does not

imply an abandonment or abdication of federal judicial review. See Miller-Ely. Dretke, 545 U.S.

231, 240 (2005) (the standard is “demanding but not insatiable” (quoting Miller-El v. Cockrell,

537 U.S. 322, 340 (2003))).

In this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a

claim for relief pursuant to AEDPA must focus exclusively on the propriety of the ultimate

decision reached by the state court, and may not evaluate the quality, or lack thereof, of the state

court’s written opinion supporting its decision. See Evans v. Davis, 875 F.3d 210, 216-17 (Sth

Cir. 2017), cert. denied, 139 8. Ct. 78 (2018).

Absent a showing that there is an absence of an available state corrective process or that

circumstances exist that render such process ineffective to protect the rights of a petitioner, this

Court is statutorily precluded from granting federal habeas corpus relief on any claim that has not

been fairly presented to the state courts. See Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (the

exhaustion requirement is designed to avoid the unseemly result of a federal court upsetting a state

court conviction without first according the state courts an opportunity to correct a constitutional

violation). Nonetheless, this Court is authorized to deny federal habeas relief on the merits

notwithstanding a petitioner’s failure to exhaust available state court remedies. See Rhines v.

Weber, 544 U.S. 269, 277 (2005) (citing 28 U.S.C, § 2254{b)(2)). When a petitioner claims that

the state court failed to adjudicate a claim on the merits (such as claims (1) the state courts

30

summarily dismissed under the Texas writ-abuse statute or other Texas rules of procedural default

or (2) which the Petitioner failed to fairly present to the state courts), this Court’s review of the

un-adjudicated claim is de novo. See Porter v. McCollum, 558 U.S, 30, 39 (2009) (citation

omitted) (holding de novo review of the allegedly deficient performance of petitioner’s trial

counsel was necessary because the state courts had failed to address this prong of Strickland

analysis); see also Wiggins, 539 U.S. at 534 (same).

Ill. AGE AND HEALTH BARRIERS TO EXECUTION

A. The Claim

In his eleventh claim for federal habeas corpus relief, relying upon the Supreme Court’s

holdings in Atkins v. Virginia, 536 U.S, 304 (2002), and Roper v. Simmons, 543 U.S. 551 (2005),

Petitioner argues that the Eighth Amendment precludes his execution because of his advanced age

and poor physical health.”°

B. State Court Disposition

Petitioner presented essentially the same claim as his third claim for state habeas corpus

relief47_ The state habeas trial court concluded that Petitioner procedurally defaulted on this claim

by failing to raise it in a timely manner at trial or on direct appeal and, alternatively, concluded

Petitioner’s constitutional claim lacked any merit."* The Texas Court of Criminal Appeals denied

relief based, in part, upon the trial court’s findings and conclusions. See Ex parte Bess, 2016 WL

1470356, at *1.

46 First Am. Pet. 83-84.

47 Pet’r’s App. for Writ of Habeas Corpus 49-53; State Habeas Tr., vol. II at 64-68.

48 State Habeas Trial Court’s Findings & Conclusions 27-32; State Habeas Tr., vol. | at 70-75.

31

C. Teague Foreclosure

Respondent correctly points out that this claim is precluded by the Supreme Court’s

holding in Teague v. Lane, 489 U.S. 288 (1989), which forecloses adoption of the new principles

of federal constitutional criminal procedure in federal habeas corpus proceedings. Under the

holding in Teague, federal courts are generally barred from applying new constitutional rules of

criminal procedure retroactively on collateral review. Caspari v. Bohlen, 510 U.S. 383, 389-90

(1994). A “new rule” for Teague purposes is one which was not dictated by precedent existing at

the time the defendant's conviction became final. See O'Dell v. Netherland, 521 U.S. 151, 156

(1997) (explaining that a “new rule” cither “breaks new ground,” “imposes a new obligation on

the States or the Federal Government,” or was not “dictated by precedent existing at the time the

defendant’s conviction became final” (emphasis omitted)). Under this doctrine, unless reasonable

jurists hearing the defendant’s claim at the time his conviction became final would have felt

compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing

so on collateral review. id.

The holding in Teague is applied in three steps: (1) the court must determine when the

petitioner’s conviction became final; (2) the court must survey the legal landscape as it then existed

and determine whether a state court, considering the petitioner’s claim at the time his conviction

became final, would have felt compelled by existing precedent to conclude that the rule he seeks

was required by the Constitution; and (3) if the rule advocated by the petitioner is a new rule, the

court must determine whether the rule falls within one of the two narrow exceptions to the

nonretroactivity principle. Caspari, 510 U.S. at 390 (collecting authorities).

The only two exceptions to the Teague nonretroactivity doctrine are reserved for (1) “new

rules ‘forbidding criminal punishment of certain primary conduct and rules prohibiting a certain

32

category of punishment for a class of defendants because of their status or offense,’” and (2)

“watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the

criminal proceeding,” i.e., a small core of rules requiring observance of those procedures that are

implicit in the concept of ordered liberty. O'Dell, 521 U.S. at 157 (citations omitted).

Petitioner’s proposed new rule barring the imposition of the death penalty for all condemned

murderers who are of advanced age or in ill health satisfies neither of these two exceptions, A

conviction becomes final for Teague purposes when either the United States Supreme Court denies

a certiorari petition on the defendant’s direct appeal or the period for filing a certiorari petition

expires. Caspari, 510 U.S. at 390. Petitioner’s conviction became final for Teague purposes no

later than January 13, 2014, the date the United States Supreme Court denied Petitioner’s

petition for writ of certiorari following the Texas Court of Criminal Appeals’ affirmation of his

conviction and sentence. See Beard v. Banks, 542 U.S. 406, 411-12 (2004) (recognizing that a

state criminal conviction ordinarily becomes final for Teague purposes when the availability of

direct appeal to the state courts has been exhausted and the time for filing a petition for writ of

certiorari has elapsed or a timely filed petition for certiorari has been denied); Caspari, 510 U.S.

at 390 (“A state conviction and sentence become final for purposes of retroactivity analysis when

the availability of direct appeal to the state courts has been exhausted and the time for filing a

petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.”)

Teague remains applicable after the passage of AEDPA. See Horn v. Banks, 536 US.

266, 268-72 (2002) (applying Teague in an AEDPA context); Evans v. Davis, 875 F.3d 210, 219

n.7 (Sth Cir, 2017) (recognizing the continued vitality of the Teague nonretroactivity doctrine

under AEDPA). As of the date Petitioner’s conviction and sentence became final for Teague

purposes no federal court had ever held a Texas criminal defendant was entitled to have his capital

33

. setttence vacated on Eighth Amendment grounds because the defendant suffered from il! health or

was of advanced age. Thus, under Teague, Petitioner’s final claim does not warrant federal

habeas corpus relief under even a de novo standard of review.

D, AEDPA Review

As of the date the Texas Court of Criminal Appeals rejected on the merits Petitioner’s

Eighth Amendment challenge to his capital sentence, i.e., April 13, 2016 (the date that the state

appellate court denied Petitioner’s state habeas corpus application), there was no clearly

established federal law set forth in Supreme Court precedent forbidding the execution of a

condemned murderer based upon the convicted defendant’s advanced age, ill health, or any

combination of those factors. See Rockwell v. Davis, 853 F.3d 758, 763 (Sth Cir. 2017) (holding

that the Eighth Amendment does not preclude the execution of the mentally ill and that the state

court properly applied Supreme Court precedent when it refused to extend the Supreme Court’s

Eighth Amendment holding in Atkins v. Virginia beyond the intellectually disabled), cert, denied,

138 S. Ct. 215 (2017); Shore v. Davis, 845 F.3d 627, 634 (5th Cir. 2017) (holding that an Eighth

Amendment claim premised upon the petitioner’s alleged brain injury was not only barred by the

holding in Teague but also at odds with well-settled Fifth Circuit jurisprudence recognizing that

the Eighth Amendment does not preclude the execution of those with brain problems that do not

rise to the level of intellectual disability), cert. denied, 138 S. Ct. 88 (2017); Mays v. Stephens, 757

F.3d 211, 219 (Sth Cir. 2014) (holding that neither the Supreme Court’s holding in Atkins nor its

holding in Roper created a constitutional rule making the execution of mentally ill persons

unconstitutional); /n re Neville, 440 F.3d 220, 221 (5th Cir. 2006) (same). Thus, the state habeas

court’s rejection on the merits of Petitioner’s Eighth Amendment challenge to his death sentence

34

was wholly consistent with clearly established federal law and does not furnish a basis for federal

habeas relief under the AEDPA.

EL Conclusions

Neither Atkins nor Roper was a federal habeas corpus case governed by the narrow standard

of review under the AEDPA. Instead, both were proceedings in which the Supreme Court

reviewed constitutional holdings made by state appellate courts on direct appeal. Neither of those

opinions nor any of the other opinions cited by Petitioner in his pleadings and briefs in this Court

recognized a constitutional prohibition on the execution of condemned prisoners who have reached

advanced age or suffer from ill health at the time of a scheduled execution. In sum, Petitioner’s

eleventh claim for relief seeks to expand the scope of the Supreme Court’s holdings in Atkins and

Roper beyond the contexts of those two cases and into an entirely new realm. This relief

Petitioner seeks is not available on collateral review, such as this federal habeas corpus proceeding.

The Texas Court of Criminal Appeals’ rejection on the merits of Petitioner’s Eighth

Amendment challenge to his capital sentence was neither contrary to, nor involved an

unreasonable application of, clearly established federal law, as determined by the Supreme Court

of the United States, and did not result in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in Petitioner’s state habeas corpus

proceeding. Whether viewed under the AEDPA or a de novo standard of review, Petitioner’s

eleventh and final claim for federal habeas corpus relief is without arguable merit.

35

IV. PRE-INDICTMENT DELAY

A. The Claim

In his ninth claim for federal habeas relief, Petitioner argues that his due process and Eighth

Amendment rights were violated when the State of Texas prosecuted him for capital murder more

than two decades after Samota’s murder.”

B. State Court Disposition

Petitioner’s trial counsel did not move to quash the indictment against Petitioner based

upon pre-indictment delay. Likewise, Petitioner did not present a point of error on direct appeal

challenging the delay in his indictment. In his first claim in his state habeas corpus application,

Petitioner argued that his trial for capital murder more than twenty years after Samota’s murder

violated the Fifth, Sixth, Eighth, and Fourteenth Amendments. The state trial court concluded

that Petitioner procedurally defaulted on this claim by failing to timely raise it at trial or on direct

appeal and, alternatively, the claim was meritless because Petitioner failed to identify any prejudice

arising from his pre-indictment delay and failed to allege any facts showing prosecutors

intentionally delayed Petitioner’s prosecution to gain a tactical advantage.*! The Texas Court of

Criminal Appeals denied relief based upon the trial court’s findings and conclusions. Ex parte

Bess, 2016 WL 1470356, at *1.

First Am. Pet. 80-82.

50 Pet’r’s App. for Writ of Habeas Corpus 21-46; State Habeas Tr., vol, II at 36-61.

5] State Habeas Trial Court’s Findings & Conclusions 15-27; State Habeas Tr., vol. I at 58-70,

36

C. Clearly Established Federal Law

The Supreme Court has never recognized, explicitly or implicitly, an Eighth Amendment

right to be indicted for a capital offense within any particular time frame following the commission

of a capital offense.

The Supreme Court has addressed the issue of preindictment delay on several occasions.

In United States v. Marion, 404 U.S. 307 (1971), the Supreme Court held (1) the Sixth

Amendment’s Speedy Trial provision affords no protection from pre-indictment delay in a

criminal prosecution,” id. at 313-21, (2) the applicable statute of limitations is the primary

guarantee against bringing overly stale criminal charges,’ id. at 321, but (3) the Due Process

Clause of the Fifth Amendment would require dismissal of an indictment if it were shown that the

pre-indictment delay caused substantial prejudice to the defendant’s rights to a fair trial and that

the delay was an intentional device to gain tactical advantage over the accused, id. at 324.4 In

United States v. Lovasco, 431 U.S. 783 (1977), the Supreme Court drew a clear distinction between

pre-indictment delay intended to deprive the defendant of due process and investigative delay

designed to permit law enforcement authorities to gather relevant evidence, thoroughly determine

the potential involvement of others in an offense without tipping off other perpetrators, and make

an informed decision whether to proceed with a particular prosecution: “investigative delay is

fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over

"Sts is either a formal indictment or information or else the actual restraints imposed by arrest and holding

to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth

Amendment.” Marion, 404 U.S. at 321.

3 Id.

54 In Marion, the 38-month delay between the end of the fraudulent scheme charged in the indictment and

the date the defendants were indicted did not extend beyond the applicable statute of limitations and there was no

claim that undue delay violated Due process principles, /d. at 325.

37

the accused.’” Id. at 795 (quoting Marion, 404 U.S. at 324). “[T]o prosecute a defendant

following investigative delay does not deprive him of due process, even if his defense might have

been somewhat prejudiced by the lapse of time.” Lovasco, 431 U.S. at 796.

D, AEDPA Review

As a practical matter, delay in bringing a capital charge makes it more difficult for both

(1) the defense to assemble potentially mitigating evidence about the defendant’s background or

character, and (2) the prosecution to assemble aggravating evidence showing the defendant’s

propensity for committing future acts of violence, history of other criminal misconduct, and lack

ofremorse. In both instances, there is the potential for witnesses’ memories to fade, witnesses to

become unavailable, and relevant documentary evidence to become unavailable or more difficult

to obtain. Thus, pre-indictment delay has the potential to harm both the prosecution and defense

inacapital case. Pre-indictment delay is neither more inherently advantageous nor prejudicial to

either party in a capital prosecution. That is why the mere passage of time is insufficient to

support a due process claim based on pre-indictment delay, even if the time lapse prejudiced the

defense. See United States y. Seale, 600 F.3d 473, 479 (5th Cir, 2010) (‘Although more than

forty years elapsed from the date of the alleged crime to Seale’s indictment, this fact alone does

not establish a due process violation.”).

To support a Fifth Amendment due process challenge, the Fifth Circuit requires a showing

that (1) the prosecution intended to delay obtaining an indictment for the purpose of gaining some

tactical advantage over the accused in the contemplated prosecution or for some other bad faith

purpose and (2) the improper delay caused actual, substantial prejudice to the defense. Woodfox

v. Cain, 609 F.3d 774, 804 (5th Cir, 2010); Seale, 600 F.3d at 479; United States v. Crouch, 84

F.3d 1497, 1512-13 (Sth Cir. 1996) (en banc) (recognizing that “grounding a due process violation

38

on the basis of good faith but inadequate, ineffective, or insufficient governmental personnel or

management leading to preindictment delay runs counter to two basic constitutional principles

[First], historically th{e] guarantee of due process has been applied to deliberate decisions of

government officials to deprive a person of life, liberty, or property[;] and [second], the Due

Process Clause . . . is not implicated by the lack of due care of an official causing unintended injury

....” (emphasis in original) (internal citations and quotation marks omitted)).

The state habeas trial determined there is no statute of limitations for murder in Texas.”

This construction of state law, adopted by the Texas Court of Criminal Appeals when it accepted

the trial court’s recommendation, is binding in this federal habeas corpus proceeding. See

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citations omitted) (“We have repeatedly held that a

state court’s interpretation of state law, including one announced on direct appeal of the challenged

conviction, binds a federal court sitting in habeas corpus.”); Garza v. Stephens, 738 F.3d 669, 677

(5th Cir. 2013) (holding that a Texas habeas court’s interpretation of evidentiary rules was binding

in a federal habeas case).

The state habeas trial court also found that (1) the prosecution did not intentionally delay

Petitioner’s indictment to gain a tactical advantage;°° (2) the entirety of the 23-year gap between

Samota’s murder and Petitioner’s indictment was the product of investigatory delay;°’ (3) the

prosecution did not develop Petitioner as a suspect in Samota’s murder until 2008 when it

undertook DNA testing of the vaginal swab obtained during Samota’s autopsy and compared the

55 State Habeas Trial Court’s Findings & Conclusions at 16; State Habeas Tr., vol. I at 59.

56 State Habeas Trial Court’s Findings & Conclusions at 25; State Habeas Tr., vol. I at 68.

57 State Habeas Trial Court’s Findings & Conclusions at 25, 45-47, 49-51; State Habeas Tr., vol. I at 68, 88-

90, 92-94.

39

sperm fraction of that sample with Petitioner’s known DNA;°* and (4) Petitioner did not suffer

actual, substantial prejudice as a result of the pre-indictment delay. Petitioner has presented this

Court with no specific factual allegations, much less clear and convincing evidence, showing that

any of the state habeas court’s factual findings on these subjects were incorrect. Under such

circumstances, the state habeas court’s factual findings are presumed correct. See Schriro, 550

U.S. at 473-74 (‘AEDPA also requires federal habeas courts to presume the correctness of state

courts’ factual findings unless applicants rebut this presumption with ‘clear and convincing

evidence.’” (quoting 28 U.S.C. § 2254(e)(1)); Rice, 546 U.S. at 338-39 (same); Miller-El, 545 U.S.

at 240 (same); 28 U.S.C. §2254(e)(1).

58 Td

5° State Habeas Trial Court’s Findings & Conclusions at 18-25; State Habeas Tr., vol. I at 61-68. Having

independently reviewed the entirety of the record from Petitioner’s state habeas corpus proceeding, this Court

concludes the state habeas court’s conclusion and factual findings were fully supported by the record before that court.

Petitioner presented no evidence showing that the 23-year gap in connecting Petitioner to Samota’s murder was the

product of anything more than investigatory delay. The State habeas trial court found.that Petitioner’s DNA was not

loaded into the CODIS database until January 2002 and DNA testing was not begun on the vaginal swab until January

2008. State Habeas Trial Court’s Findings & Conclusions at 25, 45-47, 49-51; State Habeas Tr., vol. I at 68, 88-90,

92-94, Petitioner did not present the state habeas trial court with any evidence contradicting this factual finding.

Petitioner did argue before the state habeas court, and once again argues in this Court, that at least some

potential witnesses became unavailable during the 23-years between his capital offense and the date of his capital

murder trial. The state habeas cout found that Petitioner failed to establish that any of the unavailable witnesses

could have presented the jury with any additional mitigating evidence not otherwise available to Petitioner at the time

of his capital murder trial. See State Habeas Trial Court’s Findings & Conclusions at 24; State Habeas Tr., vol. | at

67:

The Court finds that while some of the unavailable records and individuals may have

provided information about applicant’s background, upbringing, and influences, it would not have

altered or improved his mitigation defense.

The Court finds that, in all likelihood, the individuals and records would have provided

information similar to that successfully obtained elsewhere. And even if they had provided some

novel information, there is no reasonable probability that it would have altered the jury’s answers

to the special issues.

Furthermore, Petitioner gained several advantages during that time period: he aged and suffered from

ailments that may have made him more sympathetic, id., and, one of the Petitioner’s rape victims passed away prior

to the trial and, therefore, did not testify against him.

40

E, Conclusions .

Petitioner’s complaint of preindictment delay does not satisfy either prong of the due

process analysis outlined in the Supreme Court’s Marion-Lovasco line of cases. Petitioner has

identified no clearly established Supreme Court precedent establishing an Eighth or Sixth

Amendment right to expeditious indictment following the commission of a capital offense.

The Texas Court of Criminal Appeals’ rejection on the merits of Petitioner’s complaint of

pre-indictment delay was neither contrary to, nor involved an unreasonable application of, clearly

established federal law, as determined by the Supreme Court of the United States, and did not

result in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in Petitioner’s state habeas corpus proceeding. Petitioner’s ninth claim for

federal habeas corpus relief is without arguable merit.

Vv. ADMISSION OF DR, GILLILAND’S TESTIMONY

A, The Claim

In his eighth claim, Petitioner argues that the state trial court erred in admitting the expert

opinion testimony of prosecution witness Dr. Gilliland, who opined that “the intercourse was not

consensual, and contemporaneous with the murder,.”™

B. State Court Disposition

Petitioner argued in his eighteenth and nineteenth points of error on direct appeal that the

state trial court erred in admitting Dr. Gilliland’s opinion testimony because it was unreliable.”

The Texas Court of Criminal Appeals concluded that Petitioner procedurally defaulted on this

6° First Am. Pet, 79-80, Dr. Gillitand’s actual trial testimony is summarized in detail in note 2 above.

6! Br, for Appellant 63-65.

41

complaint by failing to contemporaneously object and, alternatively, concluded that the state trial

court correctly applied Texas evidentiary rules when it admitted Dr. Gilliland’s testimony. Bess,

2013 WL 827479, *25-26.

C. Clearly Established Federal Law

Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory,

or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62,

67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984),

In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a

federal court does sit as a super-state appellate court. Estelle, 502 U.S. at 67-68; Lewis, 497

USS. at 780; Pulley, 465 U.S. at 41.

When a federal district court reviews a state prisoner’s habeas corpus petition

pursuant to 28 U.S.C. § 2254, it must decide whether the petitioner is “in custody

in violation of the Constitution or laws or treaties of the United States.” The court

does not review a judgment, but the lawfulness of the petitioner’s custody

simpliciter.

Coleman v. Thompson, 501 U.S. 722, 730 (1991) (citations omitted).

Insofar as Petitioner argues his state trial court erroneously accepted Dr. Gilliland as an

expert witness and improperly allowed Dr. Gilliland to express an opinion regarding the

contemporaneous nature of Samota’s act of intercourse and murder, Petitioner’s complaints turn

initially on interpretations of state evidentiary rules. The Texas Court of Criminal Appeals’

conclusion in the course of Petitioner’s direct appeal that Dr. Gilliland’s testimony was admissible

under applicable state evidentiary rules is binding upon this Court in this federal habeas corpus

proceeding. See Bradshaw, 546 U.S. at 76 (“We have repeatedly held that a state court’s

interpretation of state law, including one announced on direct appeal of the challenged conviction,

binds a federal court sitting in habeas corpus.”).

42

A federal court may grant habeas relief based on an erroneous state court evidentiary ruling

only if the ruling violates a specific federal constitutional right or is so egregious it renders the

petitioner’s trial fundamentally unfair. Payne v. Tennessee, 501 U.S, 808, 825 (1991); Darden v.

Wainwright, 477 U.S. 168, 179-83 (1986); Wood v. Quarterman, 503 F.3d 408, 414 (Sth Cir.

2007); Brown v, Dretke, 419 F.3d 365, 376 (5th Cir. 2005), Thus, the question before this Court

is not whether the state trial court properly applied state evidentiary rules, but, rather, whether

Petitioner’s federal constitutional rights were violated by the state trial court’s rulings on

evidentiary matters. See Bigby v. Dretke, 402 F.3d 551, 563 (Sth Cir. 2005) (holding that federal

habeas review of a state court’s evidentiary ruling focuses exclusively on whether the ruling

violated the U.S. Constitution).

D, AEDPA Review

The scope of this Court’s review of Petitioner’s complaints about the admission of

Dr. Gilliland’s testimony is narrow:

Due process is implicated only for rulings “of such a magnitude” or “so

egregious” that they “render the trial fundamentally unfair.” It offers no authority

to federal habeas courts to review the mine run of evidentiary rulings of state trial

courts. Relief will be warranted only when the challenged evidence “played a

crucial, critical, and highly significant role in the trial.”

The due process inquiry must consider the significance of the challenged

evidence “in the context of the entire trial.” We have held that the Due Process

Clause does not afford relief where the challenged evidence was not the principal

focus at trial and the errors were not “‘so pronounced and persistent that it

permeates the entire atmosphere of the trial.” This is a high hurdle, even without

AEDPA’s added level of deference.

_ Gonzales v. Thaler, 643 F.3d 425, 430-31 (Sth Cir. 2011) (footnotes omitted).

The admission of Dr, Gilliland’s testimony did not render Petitioner’s capital murder trial

fundamentally unfair. Dr. Gilliland’s testimony was admissible under state evidentiary rules.

Furthermore, contrary to Petitioner’s assertions in his eighth claim, Dr. Gilliland did not testify

43

that Samota had non-consensual intercourse; rather, Dr. Gilliland testified that (1) the absence of

visible injuries to Samota’s cervix and genitals did not preclude a finding that Samota was the

victim of a non-consensual sexual assault; (2) the nature of Samota’s chest wounds suggested she

struggled while being stabbed; (3) there was no evidence the viscous material observed in

Samota’s vaginal vault had liquified; (4) because of the lack of drainage from Samota’s vaginal

vault, it did not appear she had moved since having intercourse; (5) there were no injuries to

Samota’s cervix or external genitalia; and (6) based upon the condition of Samota’s body and the

contents of Samota’s vaginal vault, she believed Samota had intercourse at or near the time of her

murder.

Another prosecution expert, veteran OBGYN Dr. Claudia Werner, testified at trial without

contradiction that the vast majority of sexual assault victims she had examined showed no signs

of injury or trauma to the external genitals.’ Dr. Werner also (1) opined that she would not expect

to see intact sperm more than four-to-six hours after intercourse; (2) testified that she had never

seen large numbers of intact sperm during a sexual assault examination; and (3) testified she had

never seen congealed semen in her clinical practice, possibly because semen liquifies and clears

the vagina very quickly after intercourse in live women due to gravity, urination, and bowel

62 Trial, test. of Dr. M.G.F. Gilliland, vol. 43 at 179-81, 184-86, 191-96, 204-22; vol, 44 at 34-36, 40-

41, On cross-examination, Dr. Gilliland testified that (1} the lab found phosphates and a very large number of intact

sperm in Samota’s vaginal swab; (2) while it is possible to find isolated intact sperm cells up to seventy-two hours

after intercourse, sperm usually break down within six hours; 3) the high concentration of phosphates in Samota’s

vaginal swab was consistent with recent intercourse, as was the visible blob of material in Samota’s vaginal vault; (4)

semen begins to liquefy within an hour; and (5) it was not possible to determine the order in which Samota suffered

her injuries. S.F. Trial, Test. of Dr. M.G.F. Gilliland, vol. 43 at 233-37; Volume 44, at 18-23.

63 $F. Trial, Test. of Dr. Claudia Werner, vol. 44 at 94-96.

44

movements. Petitioner presented the state trial court, and presents this Court with absolutely no

evidence, showing that he ever had consensual intercourse with Samota,

The jury was free to infer the nonconsensual nature of the sexual assault upon Samota from

the uncontradicted evidence showing (1} Samota called her boyfriend in distress shortly before her

body was discovered to inform him that she had allowed a man into her residence; (2) shortly after

that telephone call ended abruptly, Samota’s lifeless body was found lying nude in her bed inside

her dark, locked residence; (3) Samota had eighteen chest wounds; (4) the crime scene photographs

and blood spatter evidence suggesting that something had been placed at least partially over

Samota’s face while she was being stabbed; (5) the defensive injuries to Samota’s hands; (6) the

large number of intact sperm found in Samota’s vaginal swab at autopsy; and (7) the lewd manner

in which her body had been posed. The jury was free to infer that Samota was sexually assaulted

at or near the time of her murder from the foregoing expert testimony, as well as testimony of

Samota’s friends (Ana Elena Kadala, Russell Buchanan, and Benjamin McCall) establishing

Samota’s movements in the hours immediately before her murder.®

Petitioner’s expert pathologist Dr. James Traylor opined that (1) just because there were

viscous secretions in Samota’s vagina did not mean there was sexual activity in close proximity to

her death; (2) intact sperm can be found up to 120 hours after intercourse; (3) in living individuals,

sperm can survive even longer in cervical mucous; (4) the viscosity of Samota’s vaginal swab was

more likely due to cervical mucous than the presence of ejaculate; (5) if Samota had intercourse at

or neat the time of her death, he would have expected to find leakage from her vagina on her

sheets; (6) he could not determine from the record whether a woods lamp had been used to examine

84 Td. at 97-101,

Kadala was with Samota shortly before the murder.

45

Samota’s perianal region or bed sheets (for vaginal leakage); (7) Samota’s case was atypical of

sexual assault cases because there was no damage to her head or the inside of her thighs; (8) from

the crime scene photographs, he believed Samota was sitting upright when initially attacked and

she collapsed on her side toward her headboard; (9) the number of stab wounds suggested a jealous

frenzy; (10) he had trouble with the prosecution’s rape scenario because of the absence of external

injuries; (11) he could not say to a medical degree of certainty that Samota engaged in sexual

activity in close proximity to her death; and (12) he could not say that sexual activity took place

on Samota’s bed.®® Petitioner did not present the trial court with any evidence showing the sperm

fraction of Samota’s vaginal swab came from anyone other than Petitioner.

Thus, both parties presented the jury with expert opinions regarding the temporal proximity

of sexual activity and Samota’s murder, Petitioner’s jury was free to judge the relative credibility

of the parties’ dueling experts. Petitioner presented the state courts, and presents this Court, with

no evidence showing Dr. Gilliland’s trial testimony was incredible as a matter of law.

In fact, Dr. Werner gave essentially the same opinions as Dr. Gilliland and even more

compelling explanations as to why it was unreasonable to believe that Samota had intercourse a

substantial amount of time before her lifeless, nude body was discovered on her bed in her

residence with Petitioner’s semen (including a large number of intact sperm) inside her vagina.

Petitioner does not challenge the admissibility of Dr. Werner’s testimony as a matter of

constitutional principle. Though Petitioner’s expert Dr. Traylor had a different take on the

forensic evidence than Dr. Gilliland and Dr. Werner, the experts’ disagreement does not render

Dr. Gilliland’s testimony inadmissible under federal constitutional principles. See Wood, 503

66 SF, Trial, Test. of Dr. James Traylor, vol. 46, at 23-101.

46

F.3d at 414 (the erroneous admission of prejudicial evidence will justify habeas relief only if the

admission was a crucial, highly significant, factor in the defendant’s conviction). In light of the

multitude of circumstantial evidence the prosecution presented establishing that Samota was

sexually assaulted in close proximity to her murder,®’ the admission of Dr. Gilliland’s opinion

testimony was not a critical or highly significant factor in bringing about Petitioner’s conviction.

See Green vy, Johnson, 160 F.3d 1029, 1047 (Sth Cir. 1998).

Furthermore, given the entirety of the evidence presented during the guilt-innocence phase

of Petitioner’s capital murder trial, the admission of Dr. Werner’s testimony rendered harmless

any error in the admission of Dr. Gilliland’s testimony regarding the likelihood that Samota was

murdered at or near the time she engaged in sexual activity. See Brecht v. Abrahamson, 507 US.

619, 623-24 (1993) (the test for harmless error in federal court is “whether the error had a

substantial and injurious effect or influence in determining the jury’s verdict”).

E. Conclusion

The Texas Court of Criminal Appeals’ rejection on the merits of Petitioner’s complaint

about the admission of Dr. Gilliland’s testimony was neither contrary to, nor involved an

unreasonable application of, clearly established federal law, as determined by the Supreme Court

of the United States, and did not result in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in Petitioner’s direct appeal.

Petitioner’s eighth claim for federal habeas corpus relief is without arguable merit,

*? This includes the forensic evidence showing the presence of substantial number of infact sperm in Samota’s

vagina at autopsy, the number of stab wounds inflicted upon Samota, and the fact she was discovered lifeless and nude

in her bed only a short time after she was last seen alive by McCall and then minutes later spoke with him on the

telephone.

4]

VI. EXCLUSION OF DR. VIGEN’S HEARSAY TESTIMONY

A, The Claim

In a portion of his fifth claim, Petitioner argues the state trial court erroneously excluded

the hearsay portion of defense expert Dr. Mark Vigen’s testimony and thereby deprived Petitioner

of critical mitigating evidence in violation of due process principles.°®

B. State Court Disposition

Petitioner presented challenges to the trial court’s rulings on his trial counsels’

unsuccessful attempts to introduce hearsay testimony from defense expert Dr. Vigen as Petitioner’s

twenty-seventh and twenty-eighth points of error on direct appeal.” The Texas Court of Criminal

Appeals rejected these complaints on the merits, concluding (1) the trial court properly excluded

the hearsay portion of Dr. Vigen’s proffered testimony under state evidentiary rules” and (2)

exclusion of the hearsay portion of Dr. Vigen’s proffered testimony did not violate Petitioner’s

constitutional rights to due process, compulsory process, or the opportunity to investigate and

develop potentially mitigating evidence. Bess, 2013 WL 827479, at *33-36.

C. AEDPA Analysis

The same constitutional principles that guided this Court’s review of Petitioner’s

complaints about the admission of Dr. Gilliland’s testimony discussed above, see supra § V,

govern Petitioner’s complaints about the exclusion of the hearsay portion of Dr. Vigen’s proffered

88 First Am. Pet. 71-75. For asummary of Dr. Vigen’ testimony, see supra §§ 1.D.2, 1.D.4.

Br. for Appellant 82-87.

% Bess, 2013 WL 827479, at #34 (“Admission of the complained of statements would have inappropriately

shifted the focus of Vigen’s testimony from his conclusion that Appellant would not be a future danger to the opinion

of correction officers who never appeared as witnesses in either party’s case-in-chief.”).

48

testimony. Having reviewed the entirety of the record from Petitioner’s trial, the Court concludes

the exclusion of Dr. Vigen’s proffered hearsay testimony did not render Petitioner’s trial

fundamentally unfair. The state trial court permitted Dr. Vigen to identify and offer extensive

summaries of comments favorable to Petitioner from the TDCJ employees whom Dr. Vigen and

Woods interviewed. A comparison of Dr. Vigen’s actual punishment phase testimony and

his testimony proffered during the Bill of Exceptions hearing amply demonstrates that, in terms of

potentially mitigating evidence, little-to-nothing of substance was excluded. The jury was

presented with ample testimony from Dr. Vigen, establishing that several TDCJ employees who

knew Petitioner had expressed to Dr, Vigen that they had no problems with Petitioner and had not

witnessed Petitioner engage in any violent behavior while incarcerated.

The Court concludes that the exclusion of the hearsay portion of Dr. Vigen’s proffered

testimony did not rise above the level of harmless error.’! See Brecht, 507 U.S. at 623-24.

7 Petitioner’s reliance upon the Supreme Court’s holdings in Chambers v, Mississippi, 410 U.S. 284 (1973),

Green v, Georgia, 442 U.S. 95 (1979), and Taylor v. Illinois, 484 U.S, 400 (1988), are unpersuasive.

In Chambers, a murder defendant was denied the opportunity to cross-examine a person who had repeatedly

confessed to the murder with which the defendant was charged. The defendant was also precluded from calling

multiple witnesses to whom the declarant had confessed on separate occasions. The Supreme Court held it was

improper to deny Chambers the right to cross-examine the declarant based upon the declarant’s prior inculpatory

statements made against penal interest because those statements were made spontaneously, shortly after the offense,

were corroborated by other evidence, and were made under circumstances which the Supreme Court believed establish

an indicia of reliability. Chambers, 410 U.S. at 300-01. The Supreme Court emphasized the exclusion of the

evidence of the declarant’s statements against penal interest was critical to the defendant’s defense and the denial of

the right to cross-examine the declarant when called at trial by the defense, combined with the prohibition on

presenting testimony showing the declarant’s multiple confessions to the offense, deprived Chambers of a fair trial:

The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus

was well within the basic rationale of the exception for declarations against interest. That testimony

was also critical to Chambers’ defense. In these circumstances, where constitutional rights directly

affecting the ascertainment of guilt are implicated the hearsay rule may not be applied

mechanistically to defeat the ends of justice.

Chambers, 410 U.S. at 302.

In Green, a capital murder defendant sought to introduce prior testimony given in a co-defendant’s earlier

trial in which an acquaintance of the co-defendant testified that the co-defendant confessed that he had killed the

victim while Green was away running an errand. The Supreme Court held that the exclusion of the hearsay testimony

violated Green’s due process rights because it was highly relevant to a critical issue at the punishment phase of Green’s

capital murder trial (ie., whether Green himself pulled the trigger) and substantial reasons existed to assume its

reliability, including (1) the fact that the co-defendant made his inculpatory statement spontaneously to a close friend,

49

Virtually all the potentially mitigating information, save for a few plainly hearsay detailed

comments, that Dr. Vigen proffered during his Bill of Exceptions testimony was already before

Petitioner’s jury through Dr. Vigen’s actual trial testimony. Petitioner proffered Dr. Vigen’s

hearsay testimony in an obvious attempt to convince the jury to return a negative answer to the

future dangerousness special issue. The exclusion of Dr. Vigen’s hearsay testimony did not have

a substantial and injurious effect or influence in determining the jury’s verdict at the punishment

phase of Petitioner’s capital murder trial. Nothing in Dr. Vigen’s excluded hearsay testimony was

sufficient to counteract the aggravating impact (in terms of establishing future dangerousness) of

the graphic testimony of Petitioner’s ex-spouse and two of Petitioner’s aggravated sexual assault

victims given during the punishment phase of trial.” Those witnesses gave detailed and dramatic

(2} ample evidence corroborated the co-defendant’s confession; (3) the statement was clearly against penal interest;

(4) there was no reason to believe the co-defendant had an ulterior motive in making it; and (5) the statement had been

introduced at the co-defendant’s trial and relied upon by the prosecution in obtaining the co-defendant’s conviction

and death sentence. Green, 442 U.S, at 97,

Unlike the situations in Chambers and Green, none of the hearsay testimony Petitioner sought to introduce

through Dr. Vigen contained any indicia of reliability underlying longstanding exceptions to the hearsay rule. The

hearsay statements of the TDCJ employees Dr. Vigen interviewed were not against penal or pecuniary interest. Nor

were they independently corroborated by other evidence before the trial court or made under circumstances which

tended to establish their reliability. On the contrary, both Mr. Woods and Dr. Vigen testified outside the jury’s

presence that they obtained the cooperation of TDC] employees through assurances those employees would not be

called to testify at Petitioner’s trial. In Chambers, the declarant had given (and then repudiated) a formal written

confession to the same fatal shooting of a police officer with which Chambers was charged. In Green, the prosecution

had relied upon the very same hearsay testimony about the co-defendant’s confession that Green sought to introduce

at his own trial. Unlike the critical evidence excluded in Chambers and Green, given the extensive nature of Dr.

Vigen’s actual punishment phase testimony, the excluded hearsay declarations added very little of additional

mitigating value to the case Petitioner’s trial counsel presented at the punishment phase of Petitioner’s capital trial.

The last of these cases affords Petitioner’s legal argument even less support than the first two. In Taylor,

the Supreme Court affirmed a trial court order which excluded as a discovery sanction the testimony of a potential

defense witness after the trial court concluded the defendant’s trial counsel deliberately failed to timely amend the

defense’s witness list. In so doing, the Supreme Court expressly rejected the argument that the Compulsory Process

Clause abrogates state rules of evidence: “The accused does not have an unfettered right to offer testimony that is

incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor, 484 U.S. at 410.

? For the testimony of Petitioner’s ex-spouse detailing Petitioner’s assault upon her while she was pregnant,

see supra §1.D.4, For the testimony of Petitioner’s sexual assault victims, see supra notes 1, 33, and accompanying

text. In addition, a Houston law enforcement officer also testified during the punishment phase of Petitioner’s capital

murder trial that Petitioner used a knife during a separate January 1977 sexual assault for which Petitioner

subsequently pleaded guilty. S.F. Trial, test. of Ronald Masterson, vol. 47 at 4-11.

50

accounts of Petitioner’s brutal physical and sexual assaults upon them, which featured Petitioner’s

use or threatened use of force and furnished a factual template from which the jury could readily

have inferred how Petitioner utilized similar force or threats to induce Samota not to resist his

effort to sexually assault her.

The punishment phase evidence established that Petitioner was a remorseless, unrepentant,

predator who committed other violent felonies both before and after his murder of Samota. The

evidence of Petitioner's capital offense was likewise compelling on the issue of future

dangerousness. Petitioner stabbed Samota eighteen times, which even defense expert Dr. Traylor

described as “overkill.” The punishment phase testimony was replete with incidents in which

Petitioner verbally threatened TDCJ personnel, particularly female personnel. Had Dr. Vigen’s

hearsay testimony been admitted, the prosecution had a compelling counter-argument available:

the fact that some TDCJ personnel who had met Petitioner during his decades of incarceration

were unaware of his many acts of violent or threatening behavior, including his convictions for

multiple sexual assaults in the free world, reflected the lack of knowledge of these individuals, as

opposed to a lack of future dangerousness on Petitioner’s part.

D. Conclusions

The exclusion of the hearsay portion of Dr. Vigen’s testimony did not render the

punishment phase of Petitioner’s capital murder trial fundamentally unfair and, even if erroneous,

did not rise above the level of harmless error, The Texas Court of Criminal Appeals’ rejection on

the merits of Petitioner’s complaint about the exclusion of the hearsay portion of Dr. Vigen’s

testimony was neither contrary to, nor involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United States, and did not result in a

decision that was based on an unreasonable determination of the facts in light of the evidence

51

presented in Petitioner’s direct appeal. This portion of Petitioner’s fifth claim for federal habeas

corpus relief is without arguable merit.

VIL. BATSON CLAIM

A, The Claim

In his seventh claim, Petitioner argues that the prosecution improperly used a peremptory

strike against a black female venire member because of her race, in violation of the equal protection

principle the Supreme Court announced in Batson v. Kentucky, 476 U.S. 79 (1986).”

B. State Court Disposition

After the voir dire examination of venire member M_ A_ (venire member No. 41H), the

prosecution exercised a peremptory strike, and Petitioner’s trial counsel raised a timely objection,

arguing the prosecution improperly struck this venire member because of her race. 4 The

prosecution responded by explaining (1) it had never accepted any juror in a capital case who was

a “five” on the death penalty scale; (2) it had never accepted a juror who believed the death penalty

was used too often; (3) it had never accepted a juror who stated they did not like to judge others

or seemed hesitant to participate in this type of process; (4) the venire member had indicated she

® First Am. Pet. 78.

™ SF. Trial, vol. 32 at 92-94. The voir dire examination of venire member No. 41H, M_A_ appears at 8.F.

Trial, vol. 32 at 70-92. During her voir dire examination, venire member No. 41H, M_A_ (1) testified that she had

answered a juror questionnaire question asking “Do you want to serve as a juror in this case?” with “no,” id. at 73; (2)

volunteered that “I just didn’t want to have someone’s life in my hands, really,” id; (3) testified that she responded to

a written question asking her “If you believe in using the death penalty, how strongly, on a scale of one to ten, one

being the least, ten being the most, do you hold that belief?” with a “five,” id. at 74-75, 78-79; (4) testified that she

had answered a question asking whether she thought the death penalty is used too often in Texas with a “yes,” id. at

75; (5) explained that she believed “it seems that Texas has a history of convicting innocent people,” id ; (6) testified

that she had answered another question “too many people [are] imprisoned unfairly” and explained “I think it’s just

too many people that do not have legal representation,” id. at 78; (7) testified that she believed the role of prosecutors

was to put people in jail, /d., at 79; (8) testified that she believed a lot of criminals are victims of society, id. at 80; (9)

testified that she disagreed with the statement that “The criminal justice system fairly protects the right [sic] of persons

accused of committing a crime,” /d.; and (10) testified that she answered a question inquiring about her feelings about

her previous jury service with the statement “I don’t like judging others,” id., 82-83.

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had problems with the criminal justice system in Dallas County and felt too many people are

imprisoned unfairly; (5) the venire member indicated that she felt defendants did not get adequate

defense; (6) the venire member thought prosecutors put people in jail while defense lawyers “get

you out trouble”; and (7) the venire member’s demeanor suggested that she was not happy to be

there and appeared “put out” at times while answering voir dire questions. % In response,

Petitioner’s trial counsel argued that the venire member had qualified some of her questionnaire

answers reflecting her concerns with the criminal justice system and suggested that the venire

member’s “flat affect” during voir dire was not a sign of hostility but, rather, merely a product of

the venire member’s personality,” The state trial judge denied Petitioner’s Batson challenge.”

Petitioner presented this same Batson claim as his first point of error on direct appeal.”

The Texas Court of Criminal Appeals rejected this argument on the merits, concluding (1) it would

defer to the trial court’s credibility determination, particularly where those evaluations turned on

the trial court’s evaluation of the venire member’s demeanor; (2) the record reflected that no one

who rated themselves lower than a “7” on the death penalty scale was accepted by the prosecution;

(3) found that while the prosecution did accept one juror who also felt the death penalty was used

too often, unlike M_ A_, who reaffirmed that view during her individual voir dire, the Juror the

prosecution accepted had clarified during voir dire that she believed the death penalty was used

too often only if wrongly administered; and (4) while the prosecution did accept other jurors who

7 SF. Trial, vol. 32 at 94-95,

7% Ie. at 95-96.

7 Id. at 97.

%8 Br. for Appellant 26-31.

53

expressed concerns with the criminal justice system, unlike M_ A_, those other jurors were

confident in the system and did not think that criminals were victims of society or that too many

people were unfairly imprisoned. Bess, 2013 WL 827479, at *11-13.

C. Clearly Established Federal Law

In Batson y, Kentucky, 476 U.S. 79 (1986), the United States Supreme Court extended the

equal protection principle barring the purposeful exclusion of African Americans from criminal

jury service to the prosecution’s use of peremptory challenges during petit jury selection. See

Batson, 476 US. at 89. Batson provides a three-step process for a trial court to use in adjudicating

a claim that a peremptory challenge was based on race: (1) the defendant must make out a prima

facie case of discriminatory jury selection by the totality of the relevant facts concerning a

prosecutor’s conduct during the defendant’s own trial; (2) once the defendant makes the prima

facie showing, the burden shifts to the State to come forward with a race-neutral explanation for

challenging jurors within the arguably targeted class; and finally, (3) the trial court must determine

if the defendant established purposeful discrimination by the prosecution. Foster v. Chatman,

136 S. Ct. 1737, 1747 (2016); Snyder v. Louisiana, 552 U. 8. 472, 476-77 (2008), Miller-El, 545

U.S. at 239; Batson, 476 U.S, at 94-98.

D. AEDPA Review

A trial judge’s findings in connection with a Batson challenge turn primarily upon an

evaluation of the prosecutor’s credibility and are entitled to deference. Davis v. Ayala, 135 8. Ct.

2187, 2199 (2015) (“The opponent of the strike bears the burden of persuasion regarding racial

motivation and a trial court finding regarding the credibility of an attorney’s explanation of the

ground for a peremptory challenge is entitled to ‘great deference.”” (quoting Felker v. Jackson,

562 U.S. 594, 598 (2011)); Batson, 476 U.S, at 98 n.21 (same). Under the AEDPA, even more

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deference must be shown. Davis, 135 8, Ct. at 2199-2200.

Here, Petitioner has failed to identify any non-minority venire members against whom the

prosecution failed to exercise a peremptory strike who were similarly situated in terms of their

questionnaire answers and voir dire testimony to venire member M_A_. In his pleadings in this

Court, Petitioner did not specifically identify any other members of his jury venire whom he alleges

were similarly situated to venire member M_A_. Having independently examined the voir dire

testimony given by M_ A_ and the other venire members identified in Petitioner’s trial counsels”

Batson objection and state appellate brief in support of his direct appeal, this Court finds the voir

dire testimony given by both venire member M_A_and the other venire members fully supported

the race-neutral reasons given by the prosecution, and accepted by the state trial and appellate

court, for peremptorily striking M_A_. In her answer to question 14 on page 3 of her juror

questionnaire, venire member M_ A_ listed herself as a 5 on a scale of one to ten with regard to

her belief in the death penalty. In response to question 19 on the same page, M_ A_ answered

that she did not believe the death penalty is applied fairly in the State of Texas and wrote “Texas

has a history of convicting innocent people.” In her answer to question 20 on the same page,

which asked whether she believed the death penalty in Texas was used too often or too seldom,

M_A_ answered “Too often, some cases do not warrant death penalty - rehab.” In her answer to

question 27 on page 4 of her questionnaire, M_A_ responded to a question asking her to identify

“the biggest problem in our criminal justice system today” with “Too many people imprisoned

unfairly.” While M_ A_ did give some answers that were similar to other members of the jury

venire whom the prosecution accepted, given the scope of the juror questionnaire (18 pages with

131 questions), that is hardly surprising. Thus, the fact M_ A_ gave similar answers to many

jurors who ultimately served on Petitioner’s jury in response to questions 33 and 34 on page 6 (two

55

more scales regarding punishment in the criminal justice system) does not render any less

efficacious the prosecution’s reliance upon M_ A_’s questionnaire answers on page 3.

Specifically, the Court finds that the prosecution accurately asserted that it struck venire

members who rated themselves a “five” or lower on the death penalty scaler or felt that the death

penalty was used too frequently. Additionally, even Petitioner’s counsel described M_ A_ as

having a “flat affect,” and the state court was entitled to “take into account, among other things,

any observations of the juror that the judge was able to make during voir dire.” Thaler v, Haynes,

559 U.S, 43, 48 (2010). No party is required to accept a reluctant juror, particularly in a capital

proceeding with its potentially solemn consequences and the likelihood that trial will last

considerably longer than in a typical criminal trial. The state trial court’s rejection of Petitioner’s

Batson challenge was fully supported by the evidence before that court. The same is true for the

record before the Texas Court of Criminal Appeals on direct appeal. Petitioner has failed to

present this Court with clear and convincing evidence showing the state trial court’s implicit

credibility findings (regarding the prosecution’s race-neutral reasons for its peremptory strike of

venire member M_ A_) were erroneous. In sum, the state trial and appellate courts reasonably

could have believed credible the prosecution’s concerns that venire member M_ A_ was at best a

reluctant juror with a potentially negative view of the Dallas County criminal justice system’s

treatment of criminal defendants generally.

E. Conclusion

The Texas Court of Criminal Appeals’ rejection on the merits of Petitioner’s Batson claim

on direct appeal was neither contrary to, nor involved an unreasonable application of, clearly

established federal law, as determined by the Supreme Court of the United States, and did not

result in a decision that was based on an unreasonable determination of the facts in light of the

56

evidence presented in his trial and direct appeal. Petitioner’s seventh claim does not warrant

federal habeas corpus relief.

VU. ACTUAL INNOCENCE, BRADY, & GIGLIO/NAPUE CLAIMS

A, Overview of the Claims

In his fourth claim, Petitioner argues (citing facts and evidence in some instances never

before presented to any other court) that questions about the validity of the DNA testing performed

in Petitioner’s case render his conviction invalid.”

B. State Court Disposition

Petitioner presented a variation on his fourth claim for federal habeas corpus relief as his

fourth claim for state habeas relief.*° More specifically, Petitioner argued in his state writ

application that his state trial counsel rendered ineffective assistance by failing to adequately

challenge (through the testimony and report of Dr. Christopher Nulf, a former employee of the

Southwestern Institute of Forensic Sciences (“SWIFS”)) the admission of the DNA evidence

establishing an exact match between the DNA in Petitioner’s buccal swab and the DNA in the

sperm fraction of Samota’s vagina swab obtained during her autopsy.*! After hearing testimony

from Dr. Nulf, two of Petitioner’s trial counsel, and the deputy chief of physical evidence at

SWIEFS, the state habeas trial court (1) found Dr. Nulf never worked in the SWIFS DNA lab; (2)

7 First Am. Pet. 256

80 Pet’r’s App. for Writ of Habeas Corpus 54-72; State Habeas Tr., volume II at 69-87,

8 The exact match between the DNA in both Petitioner’s buccal swab and the sperm fraction of Samota’s

vaginal swab obtained during her autopsy is reflected in more than just the trial testimony of the SWIFS forensic

biologist who conducted the DNA testing in question found at S.F, Trial, test. of Angela Fitzwater, vol. 45 at 64-84.

Several SWIFS reports attached as exhibits to Petitioner’s First Amended Petition verify the continuing efficacy of

Ms, Fitzwater’s conclusion that Petitioner’s DNA was found inside Samota’s vaginal vault. See ECF Nos, 23-15,

23-16, 23-19, 23-20,

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found Dr. Nulf had no personal knowledge regarding the analysis of Samota’s vaginal swab or

Petitioner’s buccal swab or the CODIS match that resulted; and (3) concluded there was no

legitimate basis for a legal challenge to the DNA evidence in Petitioner’s case.** The state habeas

trial court recommended denial of Petitioner’s fourth claim for state habeas relief. In the course

of Petitioner’s state habeas corpus proceeding, the Texas Court of Criminal Appeals rejected all

of Petitioner’s ineffective assistance claims.

C. De Novo Review of New Evidence and New Legal Arguments in Federal Court

For the first time in any court, Petitioner’s fourth claim herein asserts that alleged defects

and deficiencies in SWIFS procedures and practices identified in external audit reports, by

Dr. Nulf, or in affidavit of Dr. Maher Noureddine attached as Exhibit 18 to Petitioner’s First

Amended Petition warrant reversing Petitioner’s conviction and sentence. Petitioner also argues

for the first time in any court that (1) the prosecution withheld potentially beneficial information

82 State Habeas Trial Court’s Findings & Conclusions 47-62; State Habeas Tr., Vol. [ at 90-105, More

specifically, the state habeas trial court found that (1) Dr. Nulf worked briefly in the serology section of SWIFS but

never worked in SWIFS’ DNA lab and did not assert any complaints about the conditions of the DNA lab or the

performance of any DNA analysts at SWIFS; (2) Dr. Nulf had ne personal knowledge of the manner in which Ms.

Fitzwater conducted her DNA extraction, testing, or analysis in Petitioner’s case; (3} while Petitioner did furnish the

state habeas court with external audit reports from February and June 2008 suggesting problems existed with SWIFS’

procedures, there was no evidence linking any of those problems with the DNA testing performed in Petitioner’s case,

(4) neither of those external audit reports furnished Petitioner’s trial counsel with a credible basis for attacking the

admission of the DNA evidence in Petitioner’s case; (5) the Petitioner’s defense team retained its own DNA expert,

Dr. Robert Benjamin, who reviewed not only the records from SWIFS but also Dr. Nulf’s testimony at a hearing on a

motion for new trial in a separate Dallas County capital murder case; (6) Dr. Benjamin had no problems with the DNA

testing in Petitioner’s case; (7) Dr. Benjamin reported to Petitioner’s defense team that he did not believe Dr. Nulf’s

claims and he did not believe Dr, Nulf’s allegations had any bearing on the DNA issues in Petitioner’s case, (8) two

of Petitioner’s trial counsel, attorneys Richard Franklin and Robbie McClung attended all or portions of the hearing

where Dr. Nulf testified; (9) attorneys Franklin and McClung both reasonably concluded that Dr. Nulfs testimony

would not help Petitioner’s defense at trial; and (10) the resulting decision by Petitioner’s trial counsel not to use

Dr. Nulf’s testimony at trial did not fall below an objective level of reasonableness. Jd. Petitioner has not presented

this Court with any specific facts, much less any clear and convincing evidence showing that any of the state habeas

trial court’s foregoing factual findings were erroneous. Nor has Petitioner presented this Court with any specific facts

showing that any of the state habeas court’s legal conclusions regarding the meritless nature of Petitioner’s ineffective

assistance claim were objectively unreasonable.

83 State Habeas Trial Court’s Findings & Conclusions 62; State Habeas Tr., vol. I at 105.

58

from Petitioner’s defense team regarding alleged defects in SWIFS procedures and practices in

violation of the principles the Supreme Court announced in Brady v. Maryland, 373 U.S. 83

(1963), and (2) utilized false testimony to secure Petitioner’s conviction in violation of the

principles announced in Giglio v. United States, 405 U.S. 150, 153-54 (1972), and Napue v.

Illinois, 360 U.S. 264, 269-70 (1959). Petitioner acknowledges that these claims are all

unexhausted but argues the ineffective assistance of his state habeas counsel prevented the fair

presentation of the claims during Petitioner’s state habeas corpus proceeding and excuses his

procedural default on these new substantive claims.** Petitioner is in error.

I. Martinez v. Ryan & Trevino v. Thaler Unavailable

Insofar as Petitioner argues the Supreme Court’s holdings in Martinez v. Ryan, 556 U.S. 1

(2012), and Trevino v. Thaler, 569 U.S. 413 (2013), allow him to litigate his unexhausted Brady

and Giglio/Napue claims in this Court, Petitioner misconstrues the narrow scope of the holdings

in those opinions. The Supreme Court’s holding in Martinez y. Ryan and Trevino v. Thaler

furnish a narrow avenue for circumventing a procedural default. They require a showing that the

performance of a federal habeas petitioner’s state habeas counsel was so deficient as to preclude

state court merits review of a meritorious claim of ineffective assistance by trial counsel, thus

permitting a federal habeas court to undertake a merits review of the otherwise procedurally

defaulted complaint of ineffective assistance by state trial counsel. See In re Edwards, 865 F.3d

197, 207-08 (5th Cir. 2017) (“To show cause for procedural default under Martinez and Trevino,

‘the petitioner must show (1) that his claim of ineffective assistance of counsel at trial is

“substantial” (i.e., “has some merit”); and (2) that his habeas counsel was ineffective for failing to

84 First Am, Pet. 55-56.

59

present those claims in his first state habeas application.’” (quoting Beatty v. Stephens, 759 F.3d

455, 465-66 (Sth Cir. 2014), cert. denied, 137 8. Ct. 909 (2017); Prystash v. Davis, 854 F.3d 830,

836 (Sth Cir, 2017) (holding that the Supreme Court’s rulings in Martinez and Trevino created a

narrow exception to the general rules of procedural default that applies only to a claim of

ineffective assistance by state trial counsel), cert. denied, 138 S. Ct. 649 (2018).

The Supreme Court has expressly declined to extend the holdings in Martinez and Trevino

beyond the context of procedurally defaulted complaints of ineffective assistance by state trial

counsel. See Davila v. Davis, 137 8. Ct. 2058, 2065-66 (2017). The holdings in Martinez and

Trevino do not furnish a vehicle for obtaining de novo federal habeas review of unexhausted

substantive constitutional claims such as Petitioner’s Brady and Giglio/Napue claims.

2. Brady & Giglio/Napue Claims Meritless on De Novo Review

Absent circumstances not present in Petitioner’s case, this Court is statutorily precluded

from granting Petitioner federal habeas relief on his unexhausted substantive federal claims.

Davila v. Davis, 137 S. Ct. at 2064 (“a state prisoner must exhaust available state remedies before

presenting his claim to a federal habeas court.”); 28 U.S.C. § 2254(b)(1)(A). Nonetheless, this

Court does retain the authority to deny relief on an unexhausted claim. See 28 U.S.C. §

2254(b)(2). For the reasons discussed below, Petitioner’s unexhausted Brady and Giglio/Napue

claims are plainly meritless.

a. Brady Claim

“(T]he suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution.’” Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting

Brady, 373 U.S. at 87), The Supreme Court has consistently held the prosecution’s duty to

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disclose evidence material to either guilt or punishment applies even when there has been no

request by the accused. Banks, 540 U.S. at 690; Strickler v. Greene, 527 U.S. 263, 280 (1999);

United States v. Agurs, 427 U.S. 97, 107 (1976). This duty also applies to impeachment evidence.

Strickler v. Greene, 527 U.S. at 280; United States v. Bagley, 473 U.S. 667, 676, 685, (1985). The

rule in Brady encompasses evidence known only to police investigators and not personally known

by the prosecutor. Strickler, 527 U.S. at 280-81; Kyles v. Whitley, 514 U.S. 419, 438 (1995),

“T]he individual prosecutor has a duty to learn of any favorable evidence known to the others

acting on the government’s behalf in this case, including the police.” Strickler, 527 U.S, at 281

(quoting Kyles, 514 U.S. at 437).

Under clearly established Supreme Court precedent, there are three elements to a Brady

claim: (1) the evidence must be favorable to the accused, either because it is exculpatory or because

it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or

inadvertently; and (3) the evidence must be “material,” i.c., prejudice must have ensued from its

non-disclosure. Banks, 540 U.S. at 691; Strickler, 527 U.S. at 281-82. Evidence is “material”

under Brady where there exists a “reasonable probability” that had the evidence been disclosed the

result at trial would have been different. Smith v. Cain, 565 U.S. 73, 75 (2012); Cone v. Bell, 556

U.S. 449, 469-70 (2009); Banks, 540 U.S. at 698-99. A reasonable probability does not mean that

the defendant would more likely than not have received a different verdict with t

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