“Conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.”
How later courts described this case
- “Conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.”
Written by the judges who cited it.
The opinion
Case: 20-70022 Document: 00516113390 Page: 1 Date Filed: 12/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 1, 2021
No. 20-70022 Lyle W. Cayce
Clerk
Garland Bernell Harper,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-762
Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam:
A jury convicted Garland Bernell Harper of murder and sentenced
him to death. After his direct appeal and habeas petitions were both denied
in state court, Harper raised 31 claims in a federal habeas petition. The
district court denied all his claims and also denied a certificate of appealability
(COA). Harper asks us to issue a COA on eight of those claims which he
presents as posing five distinct legal issues. We DENY Harper a COA on all
of his claims for the reasons explained below.
Case: 20-70022 Document: 00516113390 Page: 2 Date Filed: 12/01/2021
No. 20-70022
I
Harper was convicted of murdering his girlfriend, Triska Rose, and
her two daughters: Mya, aged seven, and Briana, aged sixteen. The jury
sentenced Harper to death in a separate punishment phase.
Harper filed a direct appeal raising eight claims. The Texas Court of
Criminal Appeals (TCCA) found no error and affirmed Harper’s
conviction. Harper later filed an application for a writ of habeas corpus. The
trial court drafted proposed findings of fact and conclusions of law,
recommending that Harper’s application be denied. The TCCA adopted
these findings of fact and conclusions of law with a few minor adjustments
and denied Harper’s application. Harper then filed a petition for a writ of
habeas corpus in federal court, which was 291 pages long and contained
thirty-one claims. The district court denied each of Harper’s claims in a
sixteen-page opinion and did not certify any issue for review on appeal.
Harper asks us to issue a certificate of appealability on eight of the thirty-one
claims. Some claims overlap and, as a result, Harper presents them as five
issues: (1) a Confrontation Clause claim (claim 2 of Harper’s habeas
petition); (2) a Strickland claim premised on ineffective assistance of counsel
during voir dire (claim 11); (3) a Batson claim (claims 12, 13, and 28); (4) a
second Strickland claim premised on counsel’s failure to argue that Harper’s
mental illness rendered his confession involuntary (claims 15 and 16); and (5)
a third Strickland claim premised on counsel’s failure to object on reliability
grounds to the government’s expert on future dangerousness, Dr. Moeller
(claim 7).
II
We may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The Supreme Court has clarified that this “substantial
2
Case: 20-70022 Document: 00516113390 Page: 3 Date Filed: 12/01/2021
No. 20-70022
showing” requires demonstrating that “reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)). In a capital case, “any doubts as to whether a COA
should issue must be resolved in the petitioner’s favor.” Nelson v. Davis, 952
F.3d 651, 658 (5th Cir. 2020) (quoting Clark v. Thaler, 673 F.3d 410, 425 (5th
Cir. 2012)).
Where, as here, “a state court has reviewed a petitioner’s claim on the
merits, our review is constrained by the deferential standards of review found
in the Antiterrorism and Effective Death Penalty Act (‘AEDPA’).” Id.
(citing 28 U.S.C. § 2254). “Under these circumstances, we may not issue a
COA unless reasonable jurists could debate that the state court’s decision
was either ‘contrary to, or involved an unreasonable application of, clearly
established Federal law,’ or ‘was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.’”
Id. (internal citations omitted) (quoting 28 U.S.C. § 2254(d)(1)–(2)).
A
Harper’s first claim is that the district court erred by failing to
consider his Confrontation Clause claim and, in the alternative, that his trial
and appellate counsel were ineffective for failing to raise it. This issue
received only a single footnote in Harper’s state and federal habeas petitions.
So it isn’t surprising that the habeas court and the district court below did
not discuss it. After the district court dismissed his habeas petition, Harper
filed a Rule 59(e) motion to alter or amend the judgment, arguing that the
district court had improperly overlooked his claim. The district court denied
this motion, finding that the argument had not been fairly placed before the
court.
3
Case: 20-70022 Document: 00516113390 Page: 4 Date Filed: 12/01/2021
No. 20-70022
We agree with the district court that Harper did not sufficiently plead
his Confrontation Clause claim. A conclusory footnote in a 291-page federal
habeas petition is not enough to put a district court on notice of a claim.
Habeas petitions must “specify all the grounds for relief available to the
petitioner” and “state the facts supporting each ground.” Mayle v. Felix, 545
U.S. 644, 655 (2005) (quoting Rules Governing § 2254 Cases 2(c)).
“[C]onclusory allegations of ineffective assistance of counsel do not raise a
constitutional issue in a federal habeas proceeding.” Miller v. Johnson, 200
F.3d 274, 282 (5th Cir. 2000) (citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th
Cir. 1983)).
And even if a footnote were enough to raise the issue under the federal
rules, it was not enough to comply with the exhaustion requirement. “The
exhaustion requirement is satisfied when the substance of the federal habeas
claim has been fairly presented to the highest state court.” Adekeye v. Davis,
938 F.3d 678, 682 (5th Cir. 2019) (quoting Soffar v. Dretke, 368 F.3d 441, 465
(5th Cir. 2004)). A fair opportunity requires that “all the facts necessary to
support the federal claim were before the state courts” and “the habeas
petitioner must have ‘fairly presented’ to the state courts the ‘substance’ of
his federal habeas corpus claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982)
(quoting Picard v. Connor, 404 U.S. 270, 275, 277–78 (1971)). “Arguments
raised in a perfunctory manner, such as in a footnote, are waived” because
they do not give the state court a fair opportunity to consider the claim. Bridas
S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 356 (5th Cir. 2003)
(quoting United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002)).
Harper’s purported Confrontation Clause claim was just as buried in his state
habeas petition. (Indeed, the two petitions are almost identical.) It was placed
in a single footnote deep in the body of a 232-page petition that presented 24
claims. Unsurprisingly, neither the Texas District Court nor the Texas Court
of Criminal Appeals treated this as a separate claim. The state and federal
4
Case: 20-70022 Document: 00516113390 Page: 5 Date Filed: 12/01/2021
No. 20-70022
courts were not the only ones that overlooked Harper’s Confrontation
Clause footnote. Harper overlooked it too. His state and federal habeas
petitions failed to list it as a separate claim. And Harper did not ask the
TCCA to reconsider its decision in light of his Confrontation Clause claim
after the court issued its opinion without discussing footnote 12. The fact that
no party—not even Harper’s own lawyer—understood him to have raised a
Confrontation Clause claim is evidence enough that this issue was neither
fairly presented to the state court nor adequately pleaded before the federal
district court. The district court did not abuse its discretion by refusing to
reconsider its decision in light of this unexhausted and forfeited claim.
Neither of Harper’s alternative arguments have any merit either. He
first argues that the district court should have sua sponte construed his reply
brief, which did raise a Confrontation Clause argument, as a Rule 15 motion
to amend his habeas petition. We need not decide this argument. Even if true,
Harper’s claim would still be unexhausted for failing to present the claim to
the state habeas court.
Second, Harper argues that it doesn’t matter that he put his
Confrontation Clause claim in a footnote because that footnote cited a
transcript in which his trial counsel made the essence of a Confrontation
Clause objection. Harper bases this argument on Dye v. Hofbauer and its
progeny. They hold that a claim properly presented in an earlier proceeding
can be incorporated by reference into a federal habeas petition. Ramey v.
Davis, 942 F.3d 241, 248 (5th Cir. 2019) (citing Dye v. Hofbauer, 546 U.S. 1,
4 (2005) (per curiam)). But Dye and Ramey involved claims that were
properly raised in prior briefs—not exhibits. See id. (claim properly raised in
direct appeal brief and state habeas petition, but insufficiently briefed in
federal habeas petition, was incorporated by reference); Dye, 546 U.S. at 4
(claim properly raised in a state habeas brief was incorporated by reference in
federal habeas petition). Requiring courts to search through every exhibit
5
Case: 20-70022 Document: 00516113390 Page: 6 Date Filed: 12/01/2021
No. 20-70022
cited in a habeas petition to discover additional possible arguments would be
a massive and unwarranted extension of Dye. Dye didn’t turn habeas petitions
into matryoshka dolls. Claims cannot be hidden inside of voluminous exhibits
cited in footnotes hidden inside of habeas petitions that are hundreds of pages
long. See Rules Governing § 2254 Cases 2 advisory committee note
(noting that Rule 2 does not require judges to grope through “two thousand
pages of irrational, prolix and redundant pleadings” (quoting Passic v.
Michigan, 98 F. Supp. 1015, 1016 (E.D. Mich. 1951)); Adams v. Armontrout,
897 F.2d 332, 333 (8th Cir. 1990) (“[D]espite our firm conviction that the
pleading requirements in habeas corpus proceedings should not be overly
technical and stringent, it would be unwise to saddle district judges with the
burden of reading through voluminous records and transcripts in every
case.” (quoting Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983)). No
COA will issue on this claim.
B
Harper’s second claim is that his counsel’s performance was
ineffective for failing to strike or challenge for cause three jurors—Dowlin,
Basey-Higgs, and Williams. To succeed, Harper must show “(1) that his
counsel’s performance was deficient, and (2) that the deficient performance
prejudiced his defense.” Hughes v. Dretke, 412 F.3d 582, 589 (5th Cir. 2005)
(citing Strickland v. Washington, 466 U.S. 668, 689–94 (1984)). “Regarding
the first prong, ‘[t]o establish deficient performance, a petitioner must
demonstrate that counsel’s representation “fell below an objective standard
of reasonableness.”’” Id. (alteration in original) (quoting Wiggins v. Smith,
539 U.S. 510, 521 (2003)). “Regarding the second prong, ‘to establish
prejudice, a “defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
6
Case: 20-70022 Document: 00516113390 Page: 7 Date Filed: 12/01/2021
No. 20-70022
undermine confidence in the outcome.”’” Id. (quoting Wiggins, 539 U.S. at
534).
Harper suggests that our decision is governed by two lines of Supreme
Court cases that establish (1) that the death penalty cannot be mandatory, see
Tuilaepa v. California, 512 U.S. 967, 972 (1994); Sumner v. Shuman, 483 U.S.
66, 77 (1987); Roberts v. Louisiana, 428 U.S. 325, 333 (1976) (plurality);
Woodson v. North Carolina, 428 U.S. 280, 301 (1976) (plurality), and (2) that
jurors must be willing and able to give effect to mitigating evidence when
deciding whether to approve the death sentence, Morgan v. Illinois, 504 U.S.
719, 733–35 (1992); Penry v. Lynaugh, 492 U.S. 302, 327–28 (1989); Eddings
v. Oklahoma, 455 U.S. 104, 115 (1982). But the state court found that these
three jurors were all willing to consider mitigating evidence. The court
reasoned that “none of the cited jurors indicated that they would
automatically vote for the death penalty in every case and all expressed the
opinion that they could answer the special issues in such a way that either life
or death would result based on the evidence and the law.” Based on this
evidence, the state court concluded that Harper’s counsel was not ineffective
for failing to use a peremptory strike against these jurors. While Harper may
disagree with this conclusion, the state court’s decision was supported by the
evidence and its legal conclusion that Harper did not satisfy Strickland’s first
prong was therefore not unreasonable.
And even if Harper could meet Strickland’s first prong, he cannot
meet the second. He does not even argue that the outcome would have been
different if his counsel had objected to these three jurors. No COA will issue
on this claim.
C
Harper’s third claim is that the prosecutor discriminated against
prospective black jurors (Harper’s “Batson” claim). The Government
7
Case: 20-70022 Document: 00516113390 Page: 8 Date Filed: 12/01/2021
No. 20-70022
argues that Harper’s Batson claim has evolved considerably since it was first
presented on direct appeal, and as a result most of it is procedurally defaulted.
We first consider whether any of Harper’s Batson arguments are procedurally
defaulted, before evaluating the merits of his exhausted arguments.
1
Federal habeas review of a claim is procedurally barred if the highest
available state court “dismissed the claim on a state-law procedural ground
instead of deciding it on the merits.” Rocha v. Thaler, 626 F.3d 815, 820 (5th
Cir. 2010) (citing Harris v. Reed, 489 U.S. 255, 262 (1989)). But to qualify,
that state-law procedural ground must be both an “independent and
adequate ground for dismissal.” Id. (quoting Nobles v. Johnson, 127 F.3d 409,
420 (5th Cir. 1997)). Independent means “independent of the merits of the
federal claim.” Id. at 821 (quoting Finley v. Johnson, 243 F.3d 215, 218 (5th
Cir. 2001)). Adequate means that the rule is “strictly or regularly applied
evenhandedly to the vast majority of similar claims.” Id. (quoting Amos v.
Scott, 61 F.3d 333, 339 (5th Cir. 1995)).
The TCCA dismissed Harper’s Batson claim in part under its
procedural rule that arguments that could have been raised on direct appeal
but were not are procedurally defaulted. See Ex parte Nelson, 137 S.W.3d 666,
667 (Tex. Crim. App. 2004) (en banc) (“It is well-settled ‘that the writ of
habeas corpus should not be used to litigate matters which should have been
raised on direct appeal.’” (quoting Ex parte Gardner, 959 S.W.2d 189, 199
(Tex. Crim. App. 1996) (en banc))). We have previously recognized this rule
as an adequate state ground that bars federal habeas relief, Aguilar v. Dretke,
428 F.3d 526, 533 (5th Cir. 2005) (citing Ex parte Gardner, 959 S.W. 2d at
199), and Harper does not argue that we should reconsider that decision. So
8
Case: 20-70022 Document: 00516113390 Page: 9 Date Filed: 12/01/2021
No. 20-70022
the first question we must answer is which of Harper’s Batson arguments—
if any—are procedurally defaulted. 1
Harper’s arguments in support of his Batson claim fall into two
buckets. The first is that the prosecution’s strikes followed a pattern that
gave rise to an inference of discrimination. The second is that each of the
prosecution’s five stated reasons for using a peremptory strike against juror
Banks were pretextual.
We start with Harper’s “pattern of strikes” argument. Harper did
make a version of this argument on direct appeal. But he didn’t present any
evidence of the racial makeup of the jury pool as a whole. The TCCA held
that the juror questionnaires, which would have provided evidence of the
racial makeup of the jury pool, were essential to substantiate Harper’s claim
that there was a racial disparity between the venire and the seated jury. In
other words, by failing to introduce the juror questionnaires, Harper was
effectively asking the TCCA to take his word for it that the seated jurors
were more likely to be white than the venire was. Because evidence of the
racial makeup of the accepted members was not in the record, Harper could
not substantiate this claim. As a result the TCCA dismissed his claim on
direct appeal. When Harper tried to raise this argument in his state habeas
litigation, this time with the evidence he needed, the TCCA held that Texas
law barred him from relying on arguments or evidence that he could have but
failed to raise on direct appeal. Harper does not argue that the TCCA
misapplied Texas law on this point. Therefore, while Harper has properly
1
Petitioners can overcome procedural default if they demonstrate “cause for the
default and actual prejudice as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Martinez v. Johnson, 255 F.3d 229,
239 (5th Cir. 2001) (discussing Coleman). However, Harper does not argue this point, and
we do not see an obvious case for excusing procedural default either.
9
Case: 20-70022 Document: 00516113390 Page: 10 Date Filed: 12/01/2021
No. 20-70022
exhausted a pattern-of-strikes claim, he cannot rely on evidence that he did
not present on direct appeal. 2
Next we consider Harper’s argument that the state’s five proffered
reasons for striking juror Banks were pretextual. Again, we find that some of
these arguments are fully preserved, some have been expanded to rely on
additional theories or evidence, and others are entirely procedurally
defaulted.
Harper did procedurally exhaust his objections to the state’s first and
second proffered reasons. But he only partially exhausted his objection to the
state’s third proffered reason. The prosecutor’s third proffered reason was
that Banks had said that “everybody is capable of rehabilitation.” Harper did
argue in the direct appeal that this reason was pretextual because jurors
Cotton and Basey also expressed that the chance for rehabilitation was the
most important factor to them and they were seated anyways. But in his
habeas petition, Harper relied on a comparison to five additional jurors—
jurors Price, Moore, Pavlovich, Summer, and Vaughan—who, like Cotton,
Basey, and Banks, expressed that rehabilitation is the most important goal of
criminal punishment. Because Harper did not rely on a comparison to these
additional jurors on direct appeal, he cannot do so now.
Harper next argues that the State’s fourth proffered reason—that
Banks failed to answer the question about whether life in prison is more
effective than the death penalty—was pretextual. But this argument too was
almost entirely procedurally defaulted. In his direct appeal, Harper’s only
objection to this proffered reason was that there was no evidence that Banks
2
Because Texas’s abuse-of-the-writ doctrine prevents Harper from relying on
evidence that was not in the record on direct appeal, we need not consider the
Government’s alternative argument that Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011),
compels the same result.
10
Case: 20-70022 Document: 00516113390 Page: 11 Date Filed: 12/01/2021
No. 20-70022
was being “deceptive, or untruthful, in failing to answer that question.” In
his two habeas petitions, Harper radically reshaped his argument, relying on
evidence not presented in his direct appeal. He now argues that the
prosecution failed to strike three other jurors who also failed to answer parts
of the questionnaire. Fair point. But again, Harper cannot raise it now
because this argument was not presented on direct appeal.
Finally, Harper argues that the State’s fifth proffered reason—
Banks’s strong belief in the importance of forgiveness based in part on her
background in ministry—was pretextual. But Harper did not make any
version of this argument on direct appeal. This argument is entirely
procedurally defaulted.
2
Having sorted through which arguments in support of Harper’s
Batson claim were procedurally defaulted and which were not, we consider
whether the district court’s denial of the non-defaulted Batson arguments is
debatable. We conclude that it was not.
Where, as here, the defendant has made out a prima facie case that
race motivated the challenged strikes, and the prosecutor has provided a
race-neutral explanation for the strike, the trial court must weigh the
evidence and decide whether the prosecutor’s explanation is credible or mere
pretext for discrimination. Batson v. Kentucky, 476 U.S. 79, 96–98, 98 n.21
(1986). Because this question “largely will turn on evaluation of credibility,”
id. at 98 n.21, and the best evidence of credibility is “the demeanor of the
attorney who exercises the challenge,” Hernandez v. New York, 500 U.S. 352,
365 (1991) (plurality opinion), the trial court’s decision “is entitled to ‘great
deference’ and ‘must be sustained unless it is clearly erroneous,’” Felkner v.
Jackson, 562 U.S. 594, 598 (2011) (citation omitted) (quoting Batson, 476
U.S. at 98 n.21 and Snyder v. Louisiana, 552 U.S. 472, 477 (2008)). “[T]he
11
Case: 20-70022 Document: 00516113390 Page: 12 Date Filed: 12/01/2021
No. 20-70022
federal court’s role is to ‘determine whether the trial court’s determination
of the prosecutor’s neutrality with respect to race was objectively
unreasonable and has been rebutted by clear and convincing evidence to the
contrary.’” Hoffman v. Cain, 752 F.3d 430, 448–49 (5th Cir. 2014) (quoting
Murphy v. Dretke, 416 F.3d 427, 432 (5th Cir. 2005)).
We start with Harper’s pattern of strikes argument. For statistical
evidence like this to be relevant, “data concerning the entire jury pool is
necessary. The number of strikes used to excuse minority . . . jury pool
members is irrelevant on its own.” Medellin v. Dretke, 371 F.3d 270, 278–79
(5th Cir. 2004) (per curiam). As noted above, Harper is barred from using
evidence that he did not present on direct appeal. 3 Because he cannot rely on
the juror questionnaires, and the questionnaires were necessary to prove
Harper’s statistical claim, the district court’s dismissal of this argument is
not debatable.
Next, we consider Harper’s argument that each of the prosecutor’s
five stated reasons for striking Banks were pretextual.
The trial court did not clearly err by crediting the prosecutor’s first
reason for striking Banks, which was that Banks did not answer questions
directly and tended to “ponder,” out loud, and at length. Banks was indeed
loquacious and noncommittal. At first, she seemed to say that she was
categorically opposed to the death penalty, saying: “I mean, I’m pretty
settled—I feel like I’m pretty settled on my thoughts concerning the death
penalty. I don’t like to see people die. [Prosecutor:] Right. [Banks:] Period. I
mean, who does?” She then indicated that the death penalty might be
appropriate for serial killers. When the prosecutor later asked if the death
3
Even if Harper had presented this evidence, we recently denied Batson claims
based on similar statistics. See Sheppard v. Davis, 967 F.3d 458, 472 (5th Cir. 2020), cert.
denied sub nom. Sheppard v. Lumpkin, 141 S. Ct. 2677 (2021).
12
Case: 20-70022 Document: 00516113390 Page: 13 Date Filed: 12/01/2021
No. 20-70022
penalty should only be used for serial killers, she responded that “[t]hose are
not the only cases” and indicated that the murderer’s remorse or chance for
rehabilitation were the most important factors to her. Three pages of the
transcript are then taken up by Banks’s extended discussion of the facts of an
unrelated DUI homicide case, and why she felt that 30 years imprisonment
was justified because the crash took the lives of five children. Even after
dozens of pages of the transcript were taken up discussing the death penalty,
Banks still said that she had made only an “initial response,” and that if she
had another “30 minutes to ponder on the question” she might change her
mind on when the death penalty is appropriate. To be sure, the prosecutor’s
questions likely played a role in Banks’s meandering and noncommittal
responses. But in light of these facts, we cannot conclude that the trial court
clearly erred in crediting the prosecutor’s explanation that she was striking
Banks because she would not answer the question of her position on the death
penalty clearly.
Nor did the trial court clearly err in crediting the prosecutor’s second
and third reasons: (2) that Banks was opposed to the death penalty, and (3)
that she believed strongly in giving people a chance to rehabilitate themselves
in prison. Both of these justifications had substantial basis in the record.
True, Banks later walked back her statement that she was “pretty settled” in
her opposition to the death penalty. But even then, she continually insisted
on the importance of rehabilitation and tied her distaste for the death penalty
to her religious beliefs. There is nothing wrong with expressing a distaste for
the death penalty. Nor is it racially discriminatory for a prosecutor to use a
peremptory strike because a juror expresses such distaste. We agree with the
district court that the trial court did not clearly err in crediting the
prosecutor’s second and third stated reasons.
Harper fares no better with his argument that the prosecutor’s fourth
proffered reason was pretextual. In his direct appeal, Harper argued that
13
Case: 20-70022 Document: 00516113390 Page: 14 Date Filed: 12/01/2021
No. 20-70022
Banks was not being untruthful or deceptive by failing to respond to one of
the items on the questionnaire. But this argument does nothing to
demonstrate that the prosecutor’s stated reason was pretextual. Both things
can be true: Banks could have been fully truthful and forthcoming, and the
prosecutor could have been concerned that she failed to respond to one of the
most important items on the questionnaire. Therefore, the TCCA did not
clearly err in crediting the prosecutor’s fourth stated reason.
Finally, we note that even if Harper had evidence tending to disprove
some of the prosecutor’s proffered reasons, that is not enough. “[A] Batson
claim will not succeed where the defendant fails to rebut each of the
prosecutor’s legitimate reasons.” Sheppard, 967 F.3d at 472 (citing Fields v.
Thaler, 588 F.3d 270, 277 (5th Cir. 2009) and Stevens v. Epps, 618 F.3d 489,
500 (5th Cir. 2010)). Harper failed to rebut the prosecution’s fifth stated
reason for striking Banks at all. Therefore, the district court’s rejection of
Harper’s Batson claim is not debatable.
3
Harper next argues that his counsel on direct appeal rendered
ineffective assistance by making an incomplete Batson claim. He faults his
counsel on direct appeal for conducting only a limited comparative juror
analysis, failing to rebut the prosecutor’s fifth stated reason for striking Banks
at all, and failing to include the questionnaires of the jurors into the record.
An ineffective assistance of appellate counsel claim “requires a
showing that (1) counsel’s performance was legally deficient, and (2) the
deficiency prejudiced the defense.” United States v. Bernard, 762 F.3d 467,
471 (5th Cir. 2014) (citing Strickland, 466 U.S. at 687 (1984)). “Applying
AEDPA deference to Strickland’s already deferential standard, we must
deny relief if ‘there is any reasonable argument that [appellate] counsel
satisfied Strickland’s deferential standard’ despite failing to make the
14
Case: 20-70022 Document: 00516113390 Page: 15 Date Filed: 12/01/2021
No. 20-70022
argument [in question]. In other words, we must deny relief ‘if there was a
reasonable justification for the state court’s decision.’” Higgins v. Cain, 720
F.3d 255, 265 (5th Cir. 2013) (first alteration in original) (quoting Harrington
v. Richter, 562 U.S. 86, 105, 109 (2011)).
The habeas court conducted an extensive argument-by-argument
review of Harper’s comparative juror analysis argument. It considered each
argument that Harper said should have been raised. It found that each of
these arguments was meritless, and that as a result, Harper’s appellate
counsel was not ineffective for failing to raise them.
But Harper does not take issue with what the habeas court concluded.
Instead, he takes issue with how the habeas court reached that conclusion. He
argues that the habeas court improperly relied on the prosecutor’s
subsequent affidavit which explained some of the inconsistencies in her
proffered reasons for striking Banks. For example, the prosecutor averred
that her inaccurate statement that Banks wanted to do away with the death
penalty was an “honest mistake based on the prosecutor’s impression after
Banks repeatedly emphasized her belief in forgiveness and rehabilitation.”
The habeas court also relied on the prosecutor’s testimony that while other
jurors mentioned rehabilitation, the prosecutor only struck Banks because
those jurors “did not reach the intensity of Banks’ belief in rehabilitation and
forgiveness.” Harper argues that by relying on this “post hoc” reasoning, the
habeas court violated Miller-El II’s “stand or fall” rule.
Harper’s argument that Miller-El II prevents the prosecution from
ever introducing additional evidence to resist a Batson claim is wrong. Miller-
El II’s “stand or fall” rule means that prosecutors and later reviewing courts
cannot accept “either entirely different substituted reasons or post hoc
reasons for strikes.” Chamberlin v. Fisher, 885 F.3d 832, 841 (5th Cir. 2018)
(en banc) (discussing Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 251–52
15
Case: 20-70022 Document: 00516113390 Page: 16 Date Filed: 12/01/2021
No. 20-70022
(2005)). But Miller-El II “does not extend to preventing the prosecution from
later supporting its originally proffered reasons with additional record
evidence, especially if a defendant is allowed to raise objections to juror
selection years after a conviction and to allege newly discovered comparisons
to other prospective jurors.” Id. “Nothing in the ‘stand or fall’ statement
means that the prosecutor would forfeit the opportunity to respond to such
contentions.” Id.
The prosecutor’s affidavit falls squarely within the type of evidence
that Chamberlin said later reviewing courts may consider: a prosecutor’s
“opportunity to respond” to “newly discovered comparisons to other
prospective jurors.” Id. This makes sense. If the prosecution was not able to
explain why it did not strike certain jurors after the fact, it would have to
foresee future Batson claims and explain why it was not striking each
prospective juror during jury selection. See Chamberlin v. Fisher, 855 F.3d
657, 674 (5th Cir. 2017) (Clement, J., dissenting) (“[T]o avoid the result
reached by the majority here, during jury selection the prosecution would not
only have had to explain why it struck specific black jurors—as it did—but
also why it did not strike all white prospective jurors as well. There is nothing
in Batson, Miller-El II, or any other case that compels anything of the sort.”),
rev’d, 885 F.3d 832 (5th Cir. 2018) (en banc) (Judge Clement’s position was
later adopted by the en banc court). Miller-El II requires consistency, not
prophecy. No COA will issue on this claim.
D
Harper next argues that his trial counsel was ineffective for failing to
object to the introduction of Dr. Moeller’s testimony on the basis that it was
unreliable under the standard set forth in Kelly v. State, 824 S.W.2d 568, 573
16
Case: 20-70022 Document: 00516113390 Page: 17 Date Filed: 12/01/2021
No. 20-70022
(Tex. Crim. App. 1992) (en banc). 4 The Supreme Court has acknowledged
that testimony from psychologists on likelihood of future dangerousness is
rather shaky in general because studies have shown that such testimony is
wrong more often than it is right. See Barefoot v. Estelle, 463 U.S. 880, 901
(1983) (considering a report from the American Psychiatric Association
(APA) stating that psychiatric opinions regarding future dangerousness are
wrong “most of the time”); see also Coble v. State, 330 S.W.3d 253, 275 n.53
(Tex. Crim. App. 2010) (noting that “[m]ore recent psychiatric and legal
articles have reached a similar conclusion [to the APA’s amicus brief in
Barefoot], although some conclude that the accuracy of clinicians’ predictions
may now be slightly better than chance when they also use risk assessment
and actuarial tools”). Nevertheless, the Supreme Court in Barefoot, 463 U.S.
at 901, and the Texas Court of Criminal Appeals in Coble, 330 S.W.3d at 275–
77, both concluded that expert testimony on future dangerousness may be
admissible in some cases if it is reliable.
Even if we assumed that Harper’s counsel rendered ineffective
assistance, Harper cannot meet Strickland’s second prong by showing
prejudice, for two reasons: (1) the record shows that the court would have
denied a Kelly objection, and (2) there was ample evidence of future
dangerousness in the record apart from Dr. Moeller’s testimony.
4
In his habeas petition, Harper repeatedly states that his counsel should have
objected to the introduction of Dr. Moeller’s testimony based on both Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 589–92 (1993), and Kelly, 824 S.W.2d at 573. But
as Appellee correctly notes, Daubert only applies to proceedings based on the Federal Rules
of Evidence. See Daubert, 509 U.S. at 588 (discussing Rule 702 of the Federal Rules of
Evidence). Harper’s trial occurred in a Texas court—not a federal court—so his trial
counsel could not have made a Daubert challenge. Instead Kelly’s three-element test, which
resembles Daubert’s test, governs. See Kelly, 824 S.W.2d at 573. The rest of this opinion
will only discuss whether Harper’s trial counsel erred in failing to object to the introduction
of Dr. Moeller’s testimony under the Texas rules of evidence (a “Kelly” challenge).
17
Case: 20-70022 Document: 00516113390 Page: 18 Date Filed: 12/01/2021
No. 20-70022
First, a Kelly objection would have been futile. While Harper’s
counsel did not specifically make a Kelly objection, he did “object to
[Dr. Moeller’s] testimony as having any value if it’s from a lay perspective.”
Harper’s counsel also told the court, as a part of his argument that
Dr. Moeller should not be able to testify, that the prosecution was “not
calling Dr. Moeller to explain his report . . . . [t]hey’re calling Dr. Moeller to
disavow that report.” The court overruled those objections. It is exceedingly
unlikely that the court would have changed its mind had Harper’s counsel
merely uttered the words “Kelly” or “Daubert.” See Clark v. Collins, 19 F.3d
959, 966 (5th Cir. 1994) (no ineffective assistance of counsel for failing to
make an objection that would have been overruled).
Second, there was ample evidence supporting the jury’s finding on
future dangerousness even without Dr. Moeller’s testimony. First and
foremost, there was the evidence of this crime: Harper brutally murdered
four people, including two young girls. The jury also heard evidence that he
raped and killed another woman back in 1989, put a knife to a woman’s neck
and robbed her, forced a different woman into his car and assaulted her,
assaulted a cab driver and refused to pay his fare, stole a purse from a former
co-worker and withdrew $800 from her account before being arrested, stole
a woman’s purse and pushed her pregnant sister into a shopping cart before
stealing a car and fleeing the scene, and took another woman’s purse,
knocked her down, and again fled in a car. In light of this substantial (indeed,
overwhelming) evidence that Harper was dangerous, Dr. Moeller’s
testimony did not cause prejudice. See Coble, 330 S.W.3d at 281 (erroneously
admitted testimony from psychologist on likelihood of future dangerousness
did not cause prejudice because there was “ample evidence” of such
dangerousness “quite apart from [the psychologist’s] testimony”); see also
Busby v. Davis, 925 F.3d 699, 723 (5th Cir. 2019), cert. denied, 140 S. Ct. 897
18
Case: 20-70022 Document: 00516113390 Page: 19 Date Filed: 12/01/2021
No. 20-70022
(2020) (no ineffective assistance of counsel because it was “highly likely”
that the result would have been the same without the error).
E
Harper’s final argument on appeal is that his trial counsel was
ineffective for not arguing that his mental illness rendered his confession
involuntary. He argues that had counsel raised this argument, there is a
reasonable probability that the trial court would have suppressed his
confession, or that at least one juror would have voted to acquit.
We are not considering this issue on a clean slate. The habeas court
considered Harper’s claim and held against him. It found that trial counsel
was not ineffective because the trial court did consider whether Harper’s
claim was voluntary. The habeas court noted that the trial court watched the
video of Harper’s confession which showed that Harper was given his
Miranda warnings, asked questions about the warnings, and did not appear
intoxicated or otherwise impaired. Based on these facts, the trial court found
that Harper was not coerced in any way, and admitted the confession. In light
of the trial court’s findings, the state habeas court concluded that the result
would not have been any different had trial counsel made this additional
argument. The habeas court also concluded that it was “speculative at best
that at least one juror would have found the applicant’s confession in
voluntary.”
The habeas court’s findings were not an “unreasonable determination
of the facts.” 28 U.S.C. § 2254(d)(2). The trial court and the jury were both
able to watch Harper’s confession and heard testimony about his mental
health. Based on these facts, they were able to consider what probative value
Harper’s confession had even without a specific argument from Harper’s
trial counsel. Because no reasonable jurist could find that the habeas court’s
decision was unreasonable, no COA will issue on this claim.
19
Case: 20-70022 Document: 00516113390 Page: 20 Date Filed: 12/01/2021
No. 20-70022
III
We DENY Harper’s application for a COA on all claims.
20