Erica Sheppard v. Lorie Davis, Director

Case: 18-70011 Document: 00515499760 Page: 1 Date Filed: 07/22/2020

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

July 22, 2020

No. 18-70011 Lyle W. Cayce

Clerk

Erica Yvonne Sheppard,

Petitioner — Appellant,

versus

Lorie Davis, Director, Texas Department of Criminal

Justice, Correctional Institutions Division,

Respondent — Appellee.

Appeal from the United States District Court

for the Southern District of Texas

No. 4:14-CV-655

Before King, Smith, and Haynes, Circuit Judges.

Jerry E. Smith, Circuit Judge:

A jury found Erica Sheppard guilty of capital murder and sentenced

her to death. She applied for a federal writ of habeas corpus, claiming that

the state violated her rights under Batson v. Kentucky, 476 U.S. 79 (1986), and

that her attorney rendered ineffective assistance of counsel in neglecting to

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No. 18-70011

object to certain comments by the trial judge and the prosecution and in

failing to present sufficient mitigating evidence at the punishment phase.

The district court denied her petition, concluding that the relitigation bar of

the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

foreclosed relief. We affirm.

I.

In 1993, Sheppard and James Dickerson noticed a parked vehicle

belonging to Marilyn Meagher with its trunk open. Short on cash, they de-

cided to enter the nearby apartment, “rob whoever was in[side] . . . , and steal

the [vehicle].” Upon encountering Meagher, Sheppard tackled and re-

strained her as Dickerson held a knife to her throat. Although Meagher

begged for her life—pleading that she had two children—Dickerson began to

slash at her neck. When the blade proved too dull to cut, Sheppard retrieved

a butcher’s knife from the kitchen and handed it to Dickerson. As Meagher

continued to gasp for air, Sheppard held her in place while Dickerson

repeatedly pummeled her with a statuette. Meagher’s daughter found her

mother’s body later that evening in a pool of blood.

Sheppard confessed and was tried for capital murder. At trial, she

objected that the prosecutor had used a peremptory challenge to strike venire

member Ronnie Simpson because he was black. The prosecutor justified the

strike because Simpson had indicated that he would have trouble giving the

death penalty based solely on the facts of the crime and would consider, as a

mitigating factor, whether a defendant had children. Moreover, the prose-

cutor explained that, as a victim of a false arrest, Simpson appeared sympa-

thetic to Sheppard’s plight. In fact, Simpson “shifted over, looked at [Shep-

pard], and said hello” but did not extend the same cordiality to the

prosecution.

Sheppard responded that the prosecution’s reasons were pretextual

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because it had accepted two similarly situated white jurors. Specifically,

Larry Chambers acknowledged that “[i]t would be hard” to impose the death

penalty on the facts of the crime alone, especially where the defendant did

not personally murder the victim. Chambers also voiced concern about sen-

tencing to death a young mother with children. David Herd stated that his

son had been prosecuted for an incident with his girlfriend, which, in Herd’s

view, did not warrant a felony charge and proved to be “quite an ordeal” for

his family.

The trial court took judicial notice of the fact that two of the selected

jurors were black and that the state had exercised only three of its nine per-

emptory challenges against black venire members. It therefore overruled

Sheppard’s objection.

During voir dire, the judge instructed one venire panel that, under

Texas’s law of parties, each party to an offense “should be equally responsi-

ble as to punishment.” Sheppard raised no objection. One of the members

of the venire panel ultimately served as a juror, and another sat as an

alternate.

The prosecutor remarked to three venire members during voir dire

that Texas “do[es] not have life without parole” and that Sheppard would

likely have to serve a minimum of thirty-five years before being eligible for

parole. He noted, however, that a defendant previously had to serve only

fifteen years to become eligible and that the Texas Legislature has since

“changed those minimum requirements of years in the penitentiary.” Al-

though the Legislature could “easily” change the requirements again, he

reminded the jurors that “the parole law itself is not for [their] considera-

tion” and that they “[we]re not permitted to consider[] what the [L]egisla-

ture might do in the future.” At no point did Sheppard object to those

comments.

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Before a death penalty can be imposed, Texas law requires that the

jury evaluate whether (1) “the defendant would commit criminal acts of vio-

lence” in the future; (2) “the defendant actually caused the death of the

deceased or” simply “intended . . . or anticipated that a human life would be

taken”; and (3) mitigating circumstances such as the defendant’s character,

background, and moral culpability instead warrant a sentence of life impris-

onment. TEX. CODE CRIM. PRO. ANN. art. 37.071, § 2(b)(1)–(2), (e)(1). At

the punishment phase, the state introduced evidence that Sheppard had a

poor reputation for being peaceful and law-abiding in her community. She

had formerly “jacked” cars for profit and had participated in a drive-by

shooting that resulted in the victim’s hospitalization. The night before the

murder, Sheppard had been seen “dressed in dark clothing” and closely fol-

lowing “a lady who was . . . practically running across the parking lot.” And

while in prison awaiting trial, Sheppard allegedly had bragged about the mur-

der and threatened to harm one of the inmates. Meagher’s family also testi-

fied to the impact of her gruesome murder, which left them “depressed,”

“fatigued[,] and . . . traumatized.”

In response, the defense called Patricia Birdwell, the director of the

Matagorda County Women’s Crisis Center, who testified that her organiza-

tion provided protection for abused women and that Sheppard had been

admitted to the center. Birdwell introduced records showing that, at the

time, Sheppard had been in “a lot of pain,” wanted a divorce, and was seek-

ing legal assistance.

Next, Ronda Robinson, the records custodian for Covenant House,

discussed that Sheppard had been admitted to the emergency shelter for run-

away and homeless youth. As evidenced by the records, Sheppard came to

Covenant House on two occasions, “looking for shelter for her and her

baby.” She had a history of running away from home and alleged that her

mother had physically abused her. By the age of seventeen, Sheppard was

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pregnant with her second child and had dropped out of the tenth grade.

The defense then called psychiatrist Priscilla Ray, who had reviewed

Sheppard’s prison medical records and conducted a two-hour psychiatric in-

terview to evaluate her sanity, competence, and the influence of abusive men.

Although Ray was not asked to perform a medical diagnosis, she was able to

conclude that Sheppard suffered from chronic depression that was likely gen-

etic and only partially treated. Ray testified that Sheppard had appeared sad

throughout the interview and had cried when recounting the murder.

Though recognizing that Sheppard tended to be “a follower,” Ray predicted

that she was unlikely to pose a continuing threat to society, especially in

prison where she would be insulated from the influence of abusive men.

In addition to Ray’s testimony, the defense introduced a five-page

report of her clinical evaluation, which offered a somber glimpse into Shep-

pard’s troubled past. As the report revealed, Sheppard’s parents divorced

when she was an infant, leaving her primarily in the care of her grandmother.

Sheppard struggled to perform well in school and had to retake the fourth

grade. Between the ages of three and five, her babysitter’s boyfriend repeat-

edly molested her and forced her to perform oral sex. And as a teenager, she

was raped at knifepoint while living on the streets. At age nineteen, Sheppard

already had three children, each from a different father. Jerry Bryant, the

father of her youngest child, was physically abusive and threatened to kill her

if she ever left him. Perhaps unsurprisingly, Sheppard admitted to experi-

encing depression and mood swings and to hearing voices in her head. She

also confided that she had helped murder Meaghan because Dickerson had

“pulled a knife on her,” saying that “he would kill her and her baby” if she

did not comply. She allegedly “went into shock” and acted only under

duress.

The defense then summoned family friend Patrice Green, who testi-

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fied that Sheppard had faithfully attended church her whole life. Finally,

Sheppard’s grandmother, Annie Smith, confirmed that Bryant had abused

Sheppard. During closing arguments, defense counsel specifically pointed to

Ray’s report and directed the jury to consider Sheppard’s “background, her

record, [and] her emotional instability” as mitigating factors. Despite coun-

sel’s efforts to portray Sheppard favorably as a “young . . . female” with

“kids” and “a background of abuse,” the jury sentenced her to death.

The Texas Court of Criminal Appeals (“TCCA”) affirmed Shep-

pard’s conviction and sentence on direct appeal. The court rejected Shep-

pard’s claim that the prosecutor had improperly struck Simpson because he

was black, noting that “[t]he State’s race-neutral apprehensions [we]re well

established in the record.” Sheppard applied for state habeas relief, renewing

her Batson challenge and alleging, inter alia, that her attorney was ineffective

in failing to (1) investigate and present sufficient mitigating evidence at the

punishment phase; (2) object to the trial judge’s erroneous instruction on the

law of parties; and (3) object to the prosecutor’s misleading statements

regarding parole availability.

In support of her application, Sheppard submitted affidavits from a

number of fact and expert witnesses whom defense counsel had failed to call.

Collectively, the fact witnesses attested at length to Sheppard’s academic

struggles, teenage pregnancies, sexual exploitation, and physical abuse at the

hands of her mother and Bryant. For instance, Sheppard’s affidavit re-

counted how her mother would frequently whip her with a belt and even

attempted to strangle her with a phone cord. When Sheppard first became

pregnant at the age of thirteen, her mother “beat [her] half to death,” leading

her to abort the child. Although Ray’s report mentioned only one instance

of sexual assault as a teenager, Sheppard was also raped at a party as she

“phased in and out of consciousness.” Her relationship with Bryant fared

little better: He claimed to “observe[] [her] every movement,” often pointed

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guns or knives at her, and once beat her until she lost consciousness. Her

family was fully aware of the abuse, as she occasionally fled to her brother or

mother’s houses to escape Bryant.

The expert witnesses contributed still greater detail to Sheppard’s

mental state. Upon conducting a twelve-hour clinical interview with Shep-

pard and a two-hour interview with her mother, psychiatrist Rebekah Bradley

diagnosed Sheppard with severe depression, posttraumatic stress disorder,

and dissociative disorder. Psychologist Myla Young likewise performed an

eighteen-hour neuropsychological evaluation of Sheppard and concluded

that she had the mental-age equivalence of a fourteen-year-old. Young also

determined that, when confronted with stressful situations, Sheppard

“would be vulnerable . . . to the influence of others” and would likely

“respond[] in a non-thinking, automaton-like way rather than as a thinking

and reasoning adult.” Nevertheless, psychologist Mark Cunningham high-

lighted Sheppard’s gender and continuing family relationships with her chil-

dren, mother, and grandmother as significant factors that reduced the likeli-

hood of a future offense.

After scheduling an evidentiary hearing, the habeas trial court held

that defense counsel was ineffective in neglecting to develop adequate testi-

mony as to Sheppard’s character, background, and mental illnesses. Yet the

court found no deficiency or resulting harm in counsel’s failure to object to

the statements of the trial judge and the prosecution during voir dire, given

the judge’s subsequent curative instructions. The court further refused to

revisit the Batson claim on collateral review.

The TCCA summarily affirmed the lower court’s recommendations

except with regard to the failure to introduce mitigating evidence. As the

TCCA reasoned, the evidence that “the trial court fault[ed] counsel for not

developing . . . was actually before the jury through the testimony and report

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of Birdwell, Dr. Ray, and others.” Ex Parte Sheppard, No. WR-78,132-01,

2013 WL 5568434, at *2 (Tex. Crim. App. Oct. 9, 2013) (per curiam). Thus

the court held that counsel was not ineffective in refusing “to present cumu-

lative testimony.” Id.

Sheppard filed a habeas petition under 28 U.S.C. § 2254. Though the

district court found that counsel was deficient in investigating and presenting

mitigating evidence that may well have affected the outcome, it noted that

“the TCCA’s contrary conclusion must be considered under the stringent

and deferential standards” of AEDPA. Because “Sheppard d[id] not meet

her heavy burden to show” that the TCCA’s ruling was unreasonable, the

court denied habeas relief. The court granted a certificate of appealability on

that claim, which we expanded to include the other issues.

II.

“As amended by AEDPA, § 2254(d) stops short of imposing a com-

plete bar on federal-court relitigation of claims already rejected in state pro-

ceedings.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011). Instead,

“[§] 2254(d) reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordin-

ary error correction through appeal.” Id. at 102–03. As relevant here,

AEDPA precludes habeas relief unless the state court’s adjudication of the

claim resulted in a decision that (1) “involved an unreasonable application

of[] clearly established Federal law, as determined by the Supreme Court of

the United States,” or (2) “was based on an unreasonable determination of

the facts in light of the evidence presented.” 28 U.S.C. § 2254(d).

A state court ruling involves an unreasonable application of federal

law “if, and only if, it is so obvious that a clearly established rule applies to a

given set of facts that there could be no fairminded disagreement on the

question.” White v. Woodall, 572 U.S. 415, 427 (2014) (internal quotation

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marks and citation omitted). “A state court’s factual findings are presumed

correct unless rebutted by clear and convincing evidence.” Young v. Dretke,

356 F.3d 616, 624, 629 (5th Cir. 2004).

Sheppard avers her counsel was ineffective in developing mitigating

evidence and in failing to object to certain comments regarding the law of

parties and parole eligibility. She further maintains that the state violated her

rights under Batson in striking Simpson from the jury. The TCCA reasonably

rejected each of those claims.

A.

The Sixth Amendment secures the right to effective assistance of

counsel. Under Strickland v. Washington, 466 U.S. 668, 685–86 (1984), a

defendant must establish that (1) her counsel’s representation was objec-

tively deficient and (2) that she suffered prejudice as a result. See Garza v.

Idaho, 139 S. Ct. 738, 744 (2019). An attorney’s performance is deficient

where the proffered “representation fell below an objective standard of rea-

sonableness” as assessed “under prevailing professional norms.” Wiggins v.

Smith, 539 U.S. 510, 521 (2003) (internal quotation marks and citation omit-

ted). And a defendant is prejudiced if “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different.”1 To evaluate that probability, “we consider the totality

of the available mitigation evidence—both that adduced at trial, and the

evidence adduced in the habeas proceeding—and reweigh it against the evi-

dence in aggravation.” Porter v. McCollum, 558 U.S. 30, 41 (2009) (per

1

Andrus v. Texas, 140 S. Ct. 1875, 1881 (2020) (per curiam) (emphasis added).

That a different result could have been reached is not enough. See Adekeye v. Davis,

938 F.3d 678, 683 (5th Cir. 2019). Instead, “[t]he likelihood of a different result must be

substantial, not just conceivable.” Richter, 562 U.S. at 112.

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curiam) (cleaned up) (citation omitted).

Where § 2254(d) applies, our review is “doubly deferential.” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009). “We take a highly deferential look

at counsel’s performance through the deferential lens of § 2254(d).” Cullen

v. Pinholster, 563 U.S. 170, 190 (2011) (internal quotation marks and citations

omitted).

1.

Sheppard challenges the appropriate standard of review under

§ 2254(d). Traditionally, we have focused our review “on the ultimate legal

conclusion that the state court reached and not on whether the state court

considered and discussed every angle of the evidence.” Neal v. Puckett,

286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam). We consider “not

only the arguments and theories the state habeas court actually relied upon

to reach its ultimate decision but also all the arguments and theories it could

have relied upon.”2 Under that standard, so long as a plausible argument

exists to support the ruling, we defer to the decision of a state court even if

its actual rationale was unreasonable.

Sheppard asserts that Neal is no longer good law following Wilson v.

Sellers, 138 S. Ct. 1188 (2018). Wilson principally addressed how to review a

case in which a lower state court explained its reasoning but a higher state

court did not.3 In resolving that question, the Court directed a federal habeas

2

Evans v. Davis, 875 F.3d 210, 216 (5th Cir. 2017) (emphasis added); see also Neal,

286 F.3d at 246 (“It seems clear to us that a federal habeas court is authorized by Section

2254(d) to review only a state court’s ‘decision,’ and not the written opinion explaining

that decision.”).

3

Wilson, 138 S. Ct. at 1192. That issue was the subject of a circuit split between

the Eleventh Circuit and every other court of appeals to have considered the matter. See

id. at 1194.

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court to “‘look through’ the unexplained decision to the last related state-

court decision that does provide a relevant rationale” and “presume that the

unexplained decision adopted the same reasoning.” Id. at 1192. Moreover,

a federal court should “train its attention on the particular reasons—both

legal and factual—why state courts rejected a state prisoner’s federal claims

and . . . give appropriate deference to that decision.” Id. at 1191–92 (empha-

sis added) (internal quotation marks and citation omitted). Shepperd thus

urges that we owe no additional deference under § 2254(d) where a state

court’s actual reasoning is unjustifiable.4

This court has not assessed Neal’s continuing vitality in the wake of

Wilson,5 and we need not do so today. Even assuming that Wilson permits us

4

See Thomas v. Vannoy, 898 F.3d 561, 568 (5th Cir. 2018), cert. denied, 139 S. Ct.

1321 (2019) (noting that “[t]he continued viability of [Neal] . . . is uncertain” after Wilson).

5

“[W]e . . . only decide whether an issued Supreme Court decision has ‘un-

equivocally’ overruled our precedent.” United States v. Guerrero, 768 F.3d 351, 361 (5th

Cir. 2014). We observe, without deciding, that it is far from certain that Wilson overruled

sub silentio the position—held by most of the courts of appeals—that a habeas court must

defer to a state court’s ultimate ruling rather than to its specific reasoning. See Neal, 286

F.3d at 246; see also Whatley v. Zatecky, 833 F.3d 762, 775 (7th Cir. 2016) (holding that a

petitioner is not entitled “to de novo review simply because the state court’s rationale is

unsound”); Holland v. Rivard, 800 F.3d 224, 236 (6th Cir. 2015) (“[A] habeas petitioner

must show that there was no reasonable basis for the state court to deny relief . . . whether or

not the state court reveals [its reasoning].” (internal quotation marks and citation

omitted)); Bonney v. Wilson, 754 F.3d 872, 884 (10th Cir. 2014) (considering “what

arguments or theories supported or . . . could have supported, the state court’s decision”

(citation omitted)); Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (“[W]e examine

the ultimate legal conclusion reached by the court, not merely the statement of reasons

explaining the state court’s decision.” (citation omitted)); Gill v. Mecusker, 633 F.3d 1272,

1291 (11th Cir. 2011) (focusing on the “state court’s ultimate conclusion” instead of “the

reasoning that led to th[at] result”); Clements v. Clarke, 592 F.3d 45, 55–56 (1st Cir. 2010)

(“It is the result to which we owe deference, not the opinion expounding it.”); Cruz v.

Miller, 255 F.3d 77, 86 (2d Cir. 2001) (noting that “deficient reasoning will not preclude

AEDPA deference at least in the absence of an analysis so flawed as to undermine con-

fidence that the constitutional claim has been fairly adjudicated” (citations omitted)).

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to afford deference to only the state court’s proffered reasoning—instead of

its result—deference is still due because the TCCA’s decision was

reasonable.

Sheppard claims that counsel’s performance was deficient because he

neglected to call her, her mother, or her brother, thereby preventing the jury

from learning crucial details about her character and the struggles she had

endured. Although Ray and Smith did testify, Sheppard faults counsel for

failing to ask them about her grim upbringing or her family’s history of mental

illness. She further emphasizes that, despite being aware of her past, counsel

merely requested that Ray evaluate Sheppard’s sanity, competence, and the

influence of abusive men. Notably, however, he never sought a comprehen-

sive psychiatric diagnosis even though the trial court had authorized funds

for a medical expert and Ray was fully capable of conducting such an

evaluation.6

In denying relief, the TCCA observed that the evidence Sheppard

chided counsel for not investigating and presenting “was actually before the

jury through the testimony and report of Birdwell, Dr. Ray, and others.”

Sheppard, 2013 WL 5568434, at *2. Hence, even assuming that counsel’s

performance was deficient, the TCCA reasonably found that Sheppard failed

to establish prejudice. After all, the records from the two shelters made clear

that Sheppard had experienced spousal and parental abuse, had run away

from home, had dropped out of the tenth grade, and had had multiple teenage

pregnancies. Likewise, Ray’s report revealed that she had been repeatedly

6

In a footnote, Sheppard alleges that counsel erred in failing to summon a number

of other fact witnesses. But she does not explain why that decision was deficient or

prejudicial. Accordingly, those arguments are waived. See United States v. Charles, 469

F.3d 402, 408 (5th Cir. 2006) (“A single conclusory sentence in a footnote is insufficient

to raise an issue for review.”).

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molested and forced to perform oral sex as a young child. It further described

that she had been raped at knifepoint while living on the streets and that

Bryant had beaten and threatened to kill her. Had Sheppard, her mother, or

her brother testified at trial, their habeas affidavits show that they would have

added few details to this already woeful story.

As counsel later admitted, however, the defense did a less-than-

perfect job of eliciting live testimony of Sheppard’s character and back-

ground from Ray or Smith. He asked Smith only whether Bryant had abused

Sheppard and never even broached the topic of her past with Ray. Neverthe-

less, the jury already had access to such mitigating evidence via the shelter

records and Ray’s report. Equally importantly, counsel highlighted the re-

port at closing argument and encouraged the jury to consider Sheppard’s

“background, her record, [and] her emotional instability.” Under those cir-

cumstances, the TCCA reasonably concluded that any deficiency in present-

ing the testimony of Ray and Smith did not affect the outcome.

The same is true of the expert testimony that Sheppard adduced dur-

ing the postconviction proceedings. Those findings established that Shep-

pard had the mental development of a fourteen-year-old and suffered from

major depression, posttraumatic stress disorder, and dissociative disorder.

Though Young determined that Sheppard was vulnerable to the influence of

others, Cunningham predicted that her status as a female with close familial

relationships decreased the risk that she would perpetuate future acts of vio-

lence. Once again, however, that same evidence was substantially before the

jury. In fact, Ray observed that Sheppard experienced depression and mood

swings and heard voices in her head. Ray also testified that, although suscep-

tible to the influence of abusive men, Sheppard was unlikely to pose a contin-

uing threat of violence in the structured confines of prison. Because Ray thus

previewed the salient points of the subsequent expert findings, we cannot say

that the TCCA “applied [Washington] to the facts of [t]his case in an objec-

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tively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699 (2002).

Nevertheless, Sheppard contends that, in declaring the additional mit-

igating evidence to be cumulative, the TCCA ignored the expert findings and

narrowly focused on the testimony of Smith, Robinson, and another em-

ployee at the Women’s Crisis Center. Sheppard thus insists that the TCCA

unreasonably applied clearly established federal law, which requires a court

to assess prejudice under the totality of the evidence. See Porter, 558 U.S.

at 41.

But we do not sit to grade the thoroughness of a state court’s opinion.

To be sure, “we have no power to tell state courts how they must write their

opinions,” nor will we “impose on state courts the responsibility for using

particular language in every case in which a state prisoner presents a federal

claim.” Coleman v. Thompson, 501 U.S. 722, 739 (1991). Rather, training our

attention on the reason why the TCCA denied relief, we “give appropriate

deference” to its finding that the additional mitigating evidence was

cumulative.7

Moreover, even assuming arguendo that our review is de novo,8 Shep-

pard’s claim of prejudice would still fail. That is even more true considering

that, when reviewing de novo, we must weigh Sheppard’s mitigation evidence

against the aggravating evidence offered at trial. See Porter, 558 U.S. at 41.

7

See Wilson, 138 S. Ct. at 1191–92; see also Meders v. Warden, 911 F.3d 1335, 1349

(11th Cir. 2019) (“[The Court’s directive in Wilson] does not mean we are to flyspeck the

state court order or grade it. What it means is we are to focus not merely on the bottom

line ruling of the decision but on the reasons, if any, given for it.”).

8

Even if AEDPA deference did not apply, Sheppard “would not automatically be

entitled to habeas relief. Instead, [s]he would still need to show—under a de novo review

standard—that [s]he is in custody in violation of the Constitution . . . of the United States.”

Langley v. Prince, 926 F.3d 145, 163 (5th Cir. 2019) (en banc) (internal quotation marks

omitted), cert. denied, 206 L. Ed. 2d 826 (2020).

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And that aggravating evidence is damning. The jury was well aware of Shep-

pard’s intent to “rob whoever was in[side]” Meagher’s apartment and of her

efforts to effectuate that purpose. Despite Meagher’s pleas to spare her life

for the sake of her two children, Sheppard helped restrain her and retrieved

the butcher’s knife that was used to hack at her throat. The state also intro-

duced evidence that Sheppard had attempted a similar robbery the night

before and had bragged about Meagher’s murder while in prison. Given the

weight of such aggravating evidence, Sheppard has not shown that, but for

her counsel’s failure to present cumulative mitigating evidence, “the result

of the proceeding would have been different.” Andrus, 140 S. Ct. at 1881.

2.

Sheppard maintains that counsel was ineffective in failing to object to

the erroneous instruction regarding Texas’s law of parties. Specifically, the

judge stated that each party to an offense “should be equally responsible as

to punishment.” Sheppard urges that, in doing so, the court denied her right

to due process and to an individualized sentencing under the Eighth and

Fourteenth Amendments. The state does not contest that the instruction

was inaccurate and that counsel should have objected. But it maintains that

any deficiency was harmless.

We agree. The trial judge gave the erroneous instruction over a week

before the start of the punishment phase to a single venire panel from which

only one juror was ultimately selected. It therefore strains credulity to

assume that one stray comment would affect the entire outcome of the jury’s

deliberations at sentencing. That is especially so given that the judge later

instructed the jury to “consider all evidence submitted to [them] during the

whole trial as to the defendant’s background or character or the circum-

stances of the offense that militates for or mitigates against the imposition of

the death penalty.” What’s more, the judge directed the jury “not [to]

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consider the instructions given [them] in the first phase of trial that relate to

the law of parties and the responsibility of parties for the acts or others in the

commission of offenses.” Instead, the jury was told to “consider only the

conduct and state of mind of this defendant in determining what your

answers to the special issues shall be.” Because jurors are presumed to follow

their instructions, Weeks v. Angelone, 528 U.S. 225, 234 (2000), Sheppard has

failed to demonstrate prejudice.

Sheppard rejoins that “[s]ome comments . . . may be so prejudicial

that even good instructions will not cure the error.” United States v. Saenz,

134 F.3d 697, 713 (5th Cir. 1998) (per curiam) (citation omitted). But that is

not the case here. Unlike in Saenz, 134 F.3d at 712–13, the court did not

“extensively question[] the two key witnesses . . . on matters at the heart of

the case” in a brief “trial lasting only two days.”9 Nor did the judge express

a damaging opinion on the credibility of a witness.10 Rather, the judge made

one inadvertent remark over the course of a lengthy trial, and he took special

pains to cure the error at sentencing. “[O]nly by specifically alerting the

jurors to the particular statement at issue and then instructing them to

disregard it could he have given a stronger curative charge.” United States v.

Lance, 853 F.2d 1177, 1183 (5th Cir. 1988). The TCCA thus appropriately

dismissed Sheppard’s claim.

3.

Similarly, Sheppard’s claim that counsel was ineffective in failing to

9

See also United States v. Hoker, 483 F.2d 359, 368 (5th Cir. 1973) (concluding that

“[n]o amount of boiler plate instructions . . . could be expected to erase” the effect of the

judge’s active questioning of various witnesses).

10

See United States v. Cisneros, 491 F.2d 1068, 1075 (5th Cir. 1974) (holding that

“the cautionary instructions advising the jury of its role as fact-finder” failed to cure the

judge’s subsequent comment that one of the witnesses was lying).

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object to the statements concerning parole availability is without merit. Dur-

ing voir dire, the prosecutor correctly remarked to three jurors that Sheppard

would have to serve thirty-five years before being eligible for parole. He

added, however, that previously a defendant was required to serve only fif-

teen years and that the legislature could change the requirement again. Shep-

pard maintains that the statement wrongly implied that she could be released

from prison in as little as fifteen years and that counsel failed to correct that

misconception.

Yet Sheppard ignores that the prosecution also reminded the jurors

that “the parole law itself is not for [their] consideration” and that they

“[we]re not permitted to consider[] what the [L]egislature might do in the

future.” The prosecution’s comments were thus consistent with Texas law,

which prohibits the consideration of parole in a capital murder prosecution.

See Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). As a result,

counsel was not deficient in failing to object.

Additionally, Sheppard has not established prejudice. At the punish-

ment phase, the trial judge clarified “that a prisoner serving a life sentence

for the offense of capital murder is not eligible for release on parole until the

actual calendar time the prisoner has served, without consideration of good

time, equals thirty-five (35) years.” Sheppard maintains that the instruction

never corrected the prosecution’s corollary statement, which implied that

thirty-five years was not guaranteed. Even if that were true, the judge further

instructed the jury that it may “not . . . consider or discuss the possible action

of the Board of [Pardons] and Paroles or the governor, nor how long a defen-

dant would be required to serve on a sentence of life imprisonment, nor how

the parole laws would be applied to this defendant.” Absent any evidence to

the contrary, we presume that the jury followed those curative instructions

and that any alleged deficiency was therefore harmless. See Weeks, 528 U.S.

at 234.

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B.

The Equal Protection Clause of the Fourteenth Amendment pro-

scribes the use of a peremptory challenge on the basis of race. See Batson,

476 U.S. at 89. To prevail on a Batson claim, a defendant must first make a

prima facie showing that the prosecutor removed a juror on account of race.

If the defendant does so, the burden shifts to the prosecution to propound a

race-neutral explanation for the peremptory challenge. Lastly, the “court

must determine whether the defendant has carried his burden of proving pur-

poseful discrimination.” United States v. Thompson, 735 F.3d 291, 296 (5th

Cir. 2013). Where, as here, the state volunteered an explanation for the

strike, we need not consider the first step of the analysis. Id. at 297.

At trial, the prosecutor articulated four independent reasons for strik-

ing Simpson. First, Simpson appeared reluctant to impose the death penalty

based solely on the facts of the crime. Second, he suggested that he would

consider, as a mitigating factor, whether a defendant had children. Third, as

a victim of a false arrest, Simpson may have empathized with Sheppard’s sit-

uation. Fourth, he displayed “affinity” toward Sheppard by greeting only

her and not the prosecution. Because those reasons are facially neutral, we

proceed to the final prong of the Batson analysis.

Sheppard invokes Miller-El v. Dretke, 545 U.S. 231 (2005), in asserting

that the state’s explanation is disingenuous. There, the Court recognized

that “[i]f a prosecutor’s proffered reason for striking a black panelist applies

just as well to an otherwise-similar nonblack who is permitted to serve, that

is evidence tending to prove purposeful discrimination.” Id. at 241. That is

true “even if the two jurors are dissimilar in other respects.”11 Sheppard

11

Reed v. Quarterman, 555 F.3d 364, 376 (5th Cir. 2009); see also Miller-El, 545 U.S.

at 247 n.6 (“A per se rule that a defendant cannot win a Batson claim unless there is an

exactly identical white juror would leave Batson inoperable; potential jurors are not

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persuasively posits that the prosecutor’s first two reasons appear disingenu-

ous, given Chambers’s testimony on voir dire. As the state concedes on

appeal, Chambers was likewise hesitant to give the death penalty based on

the facts of the crime alone and admitted that he would consider a defen-

dant’s children when assessing punishment. But even though the first two

reasons for striking Simpson applied equally to Chambers, the prosecutor

removed only Simpson. The decision to do so therefore suggests that the

explanation may have been a pretext for discrimination.

Nevertheless, a Batson claim will not succeed where the defendant

fails to rebut each of the prosecutor’s legitimate reasons.12 There is no indi-

cation that the prosecutor’s third reason was pretextual, because Sheppard

has not identified a white juror who was the victim of a false arrest and yet

was accepted by the State. Sheppard’s attempt to portray Herd as a similarly

situated juror is unavailing. Whereas Herd stated that his son had been law-

fully prosecuted for an incident with his girlfriend, Simpson himself was

falsely arrested. Furthermore, Sheppard does not dispute that Simpson

acknowledged only her and not the prosecution. Instead, she merely insists

that “the claimed ‘affinity’ between a young black woman and a young black

man” is obviously pretextual. Such bald assertions of pretext are uncon-

vincing, especially in light of the deference AEDPA affords to a state court’s

factual findings.13

products of a set of cookie cutters.”).

12

See, e.g., Fields v. Thaler, 588 F.3d 270, 277 (5th Cir. 2009) (dismissing a Batson

challenge where the defendant did not dispute the prosecutor’s “additional, race-neutral

reasons” for the strike); Stevens v. Epps, 618 F.3d 489, 500 (5th Cir. 2010) (rejecting a

Batson claim “where more than one reason [wa]s given for a strike, and the Batson chal-

lenger fail[ed] to rebut one of the reasons”).

13

See Stevens, 618 F.3d at 499 (deferring under AEDPA “to the trial court’s

implicit factual finding that the prosecutor was credible when he stated that . . . he [had]

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Additionally, unlike in Miller-El, 545 U.S. at 263, there is no evidence

that the district attorney’s office had “a specific policy of systematically

excluding blacks from juries,” nor did the prosecution employ manipulative

questioning or “jury shuffles” to remove African-Americans, id. at 254, 261.

Moreover, insofar as statistical data is useful,14 the record suggests that the

prosecution did not strike Simpson on account of race. Notably, two of the

jurors selected were African-American, and the state exercised only three of

its nine peremptory challenges against African-American venire members.

Hence, the TCCA properly rejected Sheppard’s Batson claim.

AFFIRMED.

struck [the prospective juror]” because of her demeanor).

14

See Medellin v. Dretke, 371 F.3d 270, 278–79 (5th Cir. 2004) (per curiam) (“For

the statistical evidence to be relevant, data concerning the entire jury pool is necessary.

The number of strikes used to excuse minority and male jury pool members is irrelevant on

its own.”).

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King, Circuit Judge, dissenting:

Erica Sheppard was sentenced to death by a jury that did not know

that she has brain damage and the cognitive ability of a fourteen-year-old.

And the jury heard only isolated snippets of the extensive abuse and trauma

that she suffered throughout her life. Unlike the majority, I cannot shrug off

these important matters as mere cumulative evidence. I therefore agree with

the state trial court and the district court below that Sheppard was prejudiced

by her counsel’s deficient performance. With respect, I dissent.

I.

The majority accurately restates the sad facts of this case, so I begin

with the appropriate standard of review.

As the majority correctly states, under 28 U.S.C. § 2254(d), a habeas

petitioner challenging a state-court ruling must demonstrate that the chal-

lenged decision either was “contrary to, or involved an unreasonable appli-

cation of, clearly established Federal law, as determined by the Supreme

Court,” or was “based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” Wilson v. Sellers,

138 S. Ct. 1188, 1191 (2018). But the Supreme Court has recently explained

that “[d]eciding whether a state court’s decision ‘involved’ an unreasonable

application of federal law or ‘was based on’ an unreasonable determination

of fact requires the federal habeas court to ‘train its attention on the particular

reasons—both legal and factual—why state courts rejected a state prisoner’s

federal claims.’” Id. at 1191-92 (emphasis added) (citation omitted). And the

Court stated explicitly that, “when the last state court to decide a prisoner’s

federal claim explains its decision on the merits in a reasoned opinion . . . , a

federal habeas court simply reviews the specific reasons given by the state court

and defers to those reasons if they are reasonable.” Id. at 1192 (emphases

added). Aside from this deference to the state court’s reasoning, we review

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the district court’s conclusions of law de novo and its findings of fact for clear

error. See Lewis v. Thaler, 701 F.3d 783, 787 (5th Cir. 2012).

By contrast, the majority notes that, “[t]raditionally, we have focused

our review ‘on the ultimate legal conclusion that the state court reached.’”

Maj. Op. 10 (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en

banc)). Under Neal, the majority says, it is enough that “a plausible argument

exists to support the [state court’s] ruling, . . . even if its actual rationale was

unreasonable.” Id.; accord id. (“We consider ‘not only the arguments and

theories the state habeas court actually relied upon to reach its ultimate deci-

sion but also all the arguments and theories it could have relied upon.’” (quot-

ing Evans v. Davis, 875 F.3d 210, 216 (5th Cir. 2017))).

But that approach is now foreclosed by Wilson. In Wilson, the Supreme

Court explained that the majority’s “‘could have supported’ framework”

applies only when a “state court’s decision is unaccompanied by an explana-

tion.” 138 S. Ct. at 1195 (quoting Harrington v. Richter, 562 U.S. 86, 98, 102

(2011)). It does not apply when state courts provide “a reasoned decision”

that federal courts can review. Id.; see also Thomas v. Vannoy, 898 F.3d 561,

568 (5th Cir. 2018) (“The continued viability of this approach after the Su-

preme Court’s decision in Wilson v. Sellers is uncertain . . . .”), cert. denied,

139 S. Ct. 1321 (2019). Indeed, Wilson’s central holding is that “when the

relevant state-court decision on the merits” does not provide its “reasons,”

a federal habeas court should “‘look through’ the unexplained decision to

the last related state-court decision that does provide a relevant rationale.”

138 S. Ct. at 1192. The Court’s repeated emphasis on state-court reasons

would be hard to understand if those reasons were irrelevant to the federal

habeas court’s review.1

1

The majority expresses doubt that the Supreme Court overruled Neal and similar

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Accordingly, the first question we face is whether the actual rationale

of the Texas Court of Criminal Appeals was reasonable.2

II.

A.

The TCCA stated its actual rationale clearly and concisely. It rejected

the trial court’s conclusion that “counsel was ineffective in the presentation

of mitigation evidence at trial” because, it ruled, “the testimony the trial

court faults counsel for not developing” would have been “cumulative,” and

“[a] decision not to present cumulative testimony does not constitute inef-

fective assistance.” This reasoning forms the entire basis for the TCCA’s

rejection of Sheppard’s ineffective-assistance-of-counsel claim.

This reasoning is unreasonable. To be sure, Sheppard’s trial counsel

did present some evidence of Sheppard’s horrific upbringing and the abuse

that she had suffered in her life. See Maj. Op. 4-6. Accordingly, although trial

counsel failed to call lay witnesses who could have testified about Sheppard’s

upbringing and abuse in greater detail, the TCCA was not unreasonable in

decisions “sub silentio.” Maj. Op. 11 n.5. But there is nothing silent about the Court’s

explicit language in Wilson. And in any event, we would not be the first court of appeals to

recognize that Wilson means what it says. In Gish v. Hepp, 955 F.3d 597 (7th Cir. 2020), for

example, the Seventh Circuit, following Wilson, rejected as unreasonable a state court’s

“exact reasoning” before upholding, on de novo review, that state court’s ultimate

conclusion. Id. at 601, 604, 607; see also id. at 603 (“Where, as here, the state court issued

an explanatory opinion, we ‘review[] the specific reasons given by the state court and

defer[] to those reasons if they are reasonable.’” (quoting Wilson, 138 S. Ct. at 1192)).

Similarly, the Eleventh Circuit has explained that Wilson “means . . . that we are to focus

not merely on the bottom line ruling of the decision but on the reasons, if any, given for it.”

Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir.), cert. denied sub nom.

Meders v. Ford, 140 S. Ct. 394 (2019).

2

The majority asserts that the foregoing is unnecessary to decide because, in this

case, “the TCCA’s decision was reasonable.” Maj. Op. 11. For the reasons explained

below, I disagree.

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concluding that that additional testimony would have been cumulative. But

trial counsel’s failure to present mitigation testimony went further.

Trial counsel also failed to call expert witnesses who could have testi-

fied that Sheppard had the cognitive ability of a fourteen-year-old and that

she suffered from organic brain dysfunction, posttraumatic stress disorder,

and dissociative disorder. And those expert witnesses could also have testi-

fied to the impact that those mental defects had on Sheppard’s decision-mak-

ing processes. For example, one such expert has opined that, “[i]n a confus-

ing, emotional and/or complex situation, Ms. Sheppard would be vulnerable

to responding in a non-thinking, automaton-like way rather than as a thinking

or reasoning adult. Once action is initiated, Ms. Sheppard’s ability to re-eval-

uate the situation, anticipate the consequences and change her actions would

also be impaired.” Because of trial counsel’s deficient performance, the jury

did not hear this testimony or anything like it. In other words, the evidence

that trial counsel failed to develop would in no sense have been “cumula-

tive.”

B.

The majority disagrees, stating that the “same evidence was substan-

tially before the jury.” Maj. Op. 13. The majority recites that the jury heard

that “Sheppard experienced depression and mood swings and heard voices

in her head” and that “Sheppard was unlikely to pose a continuing threat of

violence in the structured confines of prison.” Id. Consequently, the majority

concludes, the evidence presented at the punishment phase of Sheppard’s

trial “previewed the salient points of the subsequent expert findings,” and

thus the TCCA was not unreasonable in finding the proposed expert testi-

mony cumulative. Id.

The majority’s position is difficult to swallow. Evidence that Shep-

pard had brain dysfunction and the mental development of a child, not to

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mention PTSD and dissociative disorder—and that, as a result, she had sig-

nificantly impaired ability to make independent decisions in stressful and

emotional situations—cannot be dismissed as simply “cumulative” of the

evidence that Sheppard “experienced depression and mood swings and

heard voices in her head.” Among other things, the evidence of Sheppard’s

diminished decision-making ability would have bolstered her story, which

was presented to the jury, that she committed the murder while in a state of

“shock” after her codefendant “pulled a knife on her” and threatened to kill

her baby daughter. Sheppard’s trial counsel did not simply fail to elaborate

on depression and mood swings; rather, counsel failed to present evidence that

Sheppard had “‘significant’ mental and psychological impairments,” Sears

v. Upton, 561 U.S. 945, 956 (2010). Accordingly, it was unreasonable for the

TCCA to dismiss Sheppard’s proposed mitigation evidence as merely cumu-

lative.

III.

Because I conclude that the TCCA’s opinion was unreasonable, I pro-

ceed to analyze Sheppard’s claim of ineffective assistance of counsel on the

merits. For the following reasons, I agree with the district court and the state

trial court that Sheppard has demonstrated that her constitutional rights were

violated.3

A.

As part of determining whether counsel’s representation “fell below

an objective standard of reasonableness,” Strickland v. Washington, 466 U.S.

668, 688 (1984), we examine whether counsel violated his “duty to investi-

gate.” Id. at 690. “[C]ounsel has a duty to make reasonable investigations or

3

I concur with the majority’s disposition of Sheppard’s other claims. See Maj. Op.

15-20.

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to make a reasonable decision that makes particular investigations unneces-

sary.” Id. at 691. In the context of a capital case, this includes conducting an

“adequate investigation in preparing for the sentencing phase . . . , when de-

fense counsel’s job is to counter the State’s evidence of aggravated culpabil-

ity with evidence in mitigation.” Rompilla v. Beard, 545 U.S. 374, 380-81

(2005). “In assessing the reasonableness of an attorney’s investigation,” we

“must consider not only the quantum of evidence already known to counsel,

but also whether the known evidence would lead a reasonable attorney to in-

vestigate further.” Wiggins v. Smith, 539 U.S. 510, 527 (2003).

In this case, Sheppard’s trial counsel, Charles Brown, unreasonably

failed to investigate two different avenues of potential mitigation: first, as al-

luded to previously, he failed to obtain an expert evaluation of Sheppard’s

mental condition, and second, he failed to sufficiently investigate Sheppard’s

life history.

1.

From the investigation that was performed, Brown was aware that

Sheppard had been repeatedly sexually and physically abused as a child, that

she suffered from depression, and that she struggled in school. See Maj. Op.

5. In addition to these red flags, Brown knew, in his own words, that there

were “things about Erica Sheppard that [he] thought only a . . . medical doc-

tor[,] psychologist, or psychiatrist could talk about.” Despite this, however,

Brown failed to consult with a neurologist, a neuropsychologist, an expert on

the impact of trauma, or an expert on PTSD in preparation for the punish-

ment phase of Sheppard’s trial. Instead, Brown asked Dr. Priscilla Ray, a psy-

chiatrist, to do nothing more than “to evaluate Ms. Sheppard’s competency

and sanity, as well as to evaluate whether Ms. Sheppard was likely to be in-

fluenced by men who were in a position to be abusive.” Brown did not ask

Ray to conduct a “psychiatric diagnosis,” and so she did not. And although

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Brown has since testified that he “believe[d]” that evaluating the impact of

Sheppard’s childhood abuse was part of Ray’s assignment, it was clear at the

time that Ray did not in fact conduct any such evaluation.

Brown’s failure to obtain a more searching psychological evaluation of

Sheppard was objectively unreasonable in light of then-prevailing profes-

sional norms. According to guidance from the American Bar Association,

Brown should have made “efforts to discover all reasonably available miti-

gating evidence,” including by using “the assistance of experts where it is

necessary or appropriate.” ABA Guidelines for the Appointment and Perfor-

mance of Counsel in Death Penalty Cases 11.4.1 (1989). Although the ABA

guidelines are not legally binding, the Supreme Court has “long . . . referred

[to them] as ‘guides to determining what is reasonable,’” including this

guideline specifically. Wiggins, 539 U.S. at 524 (quoting Strickland, 466 U.S.

at 688). And the Supreme Court has confirmed that failing to obtain expert

neuropsychological evaluation of a brain-damaged defendant can constitute

constitutionally inadequate representation. See, e.g., Sears, 561 U.S. at 949-

52; see also Andrus v. Texas, 140 S. Ct. 1875, 1882-83 (2020) (determining that

counsel provided ineffective assistance where he failed to uncover evidence

of trauma and PTSD despite knowing that defendant had a “seemingly seri-

ous mental health issue”).

Before the state habeas court, Brown presented no strategic justifica-

tion for failing to obtain such an evaluation. Nevertheless, the state argues

that Brown acted reasonably because the evidence that would have turned up

would have been “double-edged.” Even if that were true, that would go to-

ward the question of prejudice, not whether Brown acted reasonably. See,

e.g., Druery v. Thaler, 647 F.3d 535, 541-42 (5th Cir. 2011); cf. infra Section

III.B.1. Here, Brown disregarded his duty to make a “thorough investigation

of law and facts relevant to plausible options.” Mejia v. Davis, 906 F.3d 307,

316 (5th Cir. 2018) (quoting Rhoades v. Davis, 852 F.3d 422, 434 (5th Cir.

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2017)), cert. denied, 139 S. Ct. 1229 (2019). Only after that duty is discharged

may a defense attorney make “a tactical decision not to . . . present poten-

tially mitigating evidence on the grounds that it is double-edged.” Id. (quot-

ing St. Aubin v. Quarterman, 470 F.3d 1096, 1103 (5th Cir. 2006)). Brown’s

failure to investigate here was in no sense a tactical decision.

2.

Brown delegated the task of investigating Sheppard’s life history to an

investigator. The investigator interviewed Sheppard and discovered that

Sheppard “was molested” as a five-year-old and that she “suffered physical

abuse from” Jerry Bryant, the father of her third child. These vague accounts

hinted at Sheppard’s traumatic life history, yet Brown never asked Sheppard

for more details or for a fuller account of her life.

Brown also never interviewed Sheppard’s brother, Jonathan Shep-

pard. Brown acknowledged that Jonathan “could have helped Erica Shep-

pard,” but testified that he did not interview Jonathan because Jonathan “ap-

peared” to be uninterested in assisting Sheppard’s defense.

The record, however, belies any such appearance. For one thing, Jon-

athan willingly met with the investigator, as Brown knew, and even accom-

panied the investigator as he searched for Bryant. The investigator did not

ask Jonathan about Sheppard’s life history, however. Second, Brown’s im-

pression of Jonathan’s unwillingness to assist was based on Jonathan’s failure

to affirmatively “come forward” to help Brown when Brown attended the

trial of Sheppard’s codefendant. But Brown acknowledged that he didn’t

know whether Jonathan even knew who he was at that time. Brown has thus

demonstrated no strategic reason for failing to interview Jonathan about

Sheppard’s life history.

Brown did speak with Sheppard’s mother, Madelyn McNeil, but he

did not interview her about Sheppard’s life history. Brown did not ask

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McNeil about the abuse Sheppard experienced as a child or about Sheppard’s

pregnancies and trouble in school. The only explanation that Brown offered

for why he failed to interview McNeil on these topics is that speaking to her

“wasn’t very pleasant.” That is plainly not a strategic rationale.

In sum, Brown knew, among other things, that Sheppard had had an

abusive and traumatic upbringing, but he failed to pursue the details of her

life history. Cf. Wiggins, 539 U.S. at 527-28 (“[C]ounsel chose to abandon

their investigation at an unreasonable juncture, making a fully informed de-

cision with respect to sentencing strategy impossible.”). These facts are sim-

ilar to those in Andrus, where the Supreme Court determined that counsel

provided ineffective assistance when he “abandoned [his] investigation of

[Andrus’] background after having acquired only rudimentary knowledge of

his history from a narrow set of sources.” 140 S. Ct. at 1882 (alterations in

original) (citation omitted); see also id. (“Aside from Andrus’ mother and bi-

ological father, counsel did not meet with any of Andrus’ close family mem-

bers, all of whom had disturbing stories about Andrus’ upbringing.”). In

much the same way, Brown’s representation at the sentencing phase of Shep-

pard’s trial was constitutionally deficient. See, e.g., Porter v. McCollum, 558

U.S. 30, 40 (2009) (ruling counsel ineffective where he “ignored pertinent

avenues for investigation of which he should have been aware”).

B.

“In order for counsel’s inadequate performance to constitute a Sixth

Amendment violation, petitioner must show that counsel’s failures preju-

diced [her] defense.” Wiggins, 539 U.S. at 534 (citing Strickland, 466 U.S. at

692). “Under Strickland, a defendant is prejudiced by [her] counsel’s defi-

cient performance if ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been differ-

ent.’” Porter, 558 U.S. at 40 (quoting Strickland, 466 U.S. at 694). “Here,

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prejudice exists if there is a reasonable probability that, but for [her] counsel’s

ineffectiveness, the jury would have made a different judgment about

whether [Sheppard] deserved the death penalty as opposed to a lesser sen-

tence.” Andrus, 140 S. Ct. at 1885-86. Because Texas law requires unanimity

to impose the death penalty, Sheppard can demonstrate prejudice by showing

a reasonable probability that even one juror would have changed his or her

mind. See id. at 1886. Sheppard has met that burden.

1.

As already discussed, had Brown pursued a neuropsychological eval-

uation of Sheppard, he would have uncovered evidence that she had organic

brain dysfunction, PTSD, dissociative disorder, and the cognitive ability of a

fourteen-year-old. See supra Section II.A. And had he obtained this infor-

mation, it would have been reasonable for him to present it to the jury, par-

ticularly in light of his avowed strategy of trying to convince the jury to

“[t]ake mercy upon [Sheppard].”

This is precisely the sort of mitigation evidence that the Supreme

Court has recognized might sway death-penalty jurors. In Rompilla, for in-

stance, defense counsel unreasonably failed to uncover evidence that the de-

fendant suffered from “organic brain damage” and had “a third grade level

of cognition.” 545 U.S. at 391-92 (citation omitted). Combining this with un-

presented evidence of the defendant’s abusive and traumatic childhood, cf.

infra Section III.B.2, the Court determined that the defendant had “shown

beyond any doubt that counsel’s lapse was prejudicial.” Rompilla, 545 U.S.

at 390. Similarly here, Brown’s failure to uncover and present this evidence

prejudiced Sheppard.

The state asserts that evidence of Sheppard’s mental condition would

have been double-edged “because the jury may have seen the mental disor-

ders as increasing Sheppard’s future dangerousness.” The state cites Druery

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for this proposition, but in Druery this court concluded that evidence of men-

tal illness would have been double-edged only because it would have under-

mined the defense’s theory that the defendant’s erratic behavior was due to

drug use. See 647 F.3d at 540-42. By contrast, evidence that Sheppard was

intellectually disabled, with the mind of a child, would not have undermined

any of Brown’s penalty-phase argument.4

2.

Had Brown discussed Sheppard’s life history with Jonathan, McNeil,

or Sheppard herself, he would have discovered—and then presented to the

jury—substantially more information about Sheppard’s traumatic life. Cf.

Maj. Op. 6-7. Sheppard, for instance, could have testified that, when she was

as young as three, she was physically abused by her regular babysitter, who

beat her with extension cords, belts, and “whatever else [she] could get her

hands on.” This babysitter also forced Sheppard to walk to the store barefoot,

causing her to burn her feet on the blacktop and cut her feet on broken glass.

Sheppard could also have provided detailed testimony into her mother’s

physical abuse: She could have testified that her mother sometimes beat her

so severely that her grandmother would physically intervene. And when she

first became pregnant, at age thirteen, her mother “beat [her] half to death.”

Sheppard could have testified that her mother took various lovers, some of

whom also physically abused Sheppard and her brother. And she could have

testified that she ultimately moved out of her mother’s house after her

mother strangled her with a telephone cord. Sheppard could have testified

that, at around age sixteen, she was drugged and raped at a party. Sheppard

could have provided detailed testimony about Bryant’s abuse as well: For

4

As the majority notes, Brown’s argument against future dangerousness was that,

in prison, Sheppard would be “insulated from the influence of abusive men.” Maj. Op. 5.

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example, he once ran her car off the road while she was pregnant with his

child. Later, after their child was born, the child became very sick and had to

be hospitalized for weeks. Sheppard stayed with the child at the hospital, and

Bryant came to the hospital, demanded that she come home so that he could

have sex with her, and beat her until she lost consciousness. Bryant also re-

peatedly threatened Sheppard with knives and guns. Sheppard ultimately left

Bryant after another beating, during which he dented her skull.

Sheppard’s brother Jonathan also could have testified to her lifetime

of abuse. He could have testified that their babysitter beat them, whipped

them with electrical cords, and made them walk barefoot to the store. He

could have testified that their grandmother beat them with a belt or with

switches, and that their mother would beat them with “whatever she could

find.” And he could have testified about the time that Bryant attacked Shep-

pard at the hospital.

Finally, McNeil could also have testified to her daughter’s traumatic

life history. She could have testified that, from a young age, Sheppard wit-

nessed physical fights between her father and McNeil. She could have testi-

fied that, at thirteen years old, Sheppard was sexually involved with a man in

his twenties, and she could have corroborated that she whipped Sheppard

when Sheppard first got pregnant. She also could have testified about the in-

cident at the hospital and that Sheppard repeatedly fled to McNeil’s home

for fear of Bryant.

Because of Brown’s failure to investigate, none of the foregoing infor-

mation was presented to the jury. This case is thus similar to Wiggins, in

which defense counsel unreasonably failed to uncover evidence that the de-

fendant, who had a “diminished mental capacity,” had “suffered physical

torment, sexual molestation, and repeated rape” during his childhood. 539

U.S. at 535. In Wiggins, the Supreme Court found “a reasonable probability

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that a competent attorney, aware of this history, would have introduced it at

sentencing in an admissible form.” Id. And the Court found that “had the

jury been confronted with this considerable mitigating evidence, there is a

reasonable probability that it would have returned with a different sentence.”

Id. at 536. So too here.

The state argues that Sheppard was not prejudiced by Brown’s failure

to present this additional mitigation evidence because there is “no reasonable

probability” that the evidence “would have persuaded the jury that Shep-

pard would not be dangerous in the future.” But “[m]itigating evidence un-

related to dangerousness may alter the jury’s selection of penalty, even if it

does not undermine or rebut the prosecution’s death-eligibility case.” Wil-

liams v. Taylor, 529 U.S. 362, 398 (2000). For instance, in a case where evi-

dence showed that the defendant, convicted of murder, had also committed

“two separate violent assaults on elderly victims” and had “set[] a fire in the

jail while awaiting trial,” the Supreme Court observed that a “graphic de-

scription” of his “childhood[] filled with abuse and privation” might never-

theless change the jury’s mind as to his “moral culpability.” Id. at 368, 398.

Similarly, the majority asserts that “Sheppard has not shown that, but

for her counsel’s failure . . . , ‘the result of the proceeding would have been

different.’” Maj. Op. 15 (quoting Andrus, 140 S. Ct. at 1881). But Sheppard

does not need to prove that Brown’s ineffective assistance “more likely than

not altered the outcome in the case.” Strickland, 466 U.S. at 693. Rather, she

is required to show only a “reasonable probability” that one juror, having

heard about her immature mental state and grim history of abuse, would have

changed his or her mind about condemning her to death. See Andrus, 140 S.

Ct. at 1885-86. Like the state trial court and the district court below, I believe

that Sheppard has made this showing.

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IV.

For the foregoing reasons, I would reverse the judgment of the district

court.

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