Harper v. Lumpkin

Case: 20-70022 Document: 00516702531 Page: 1 Date Filed: 04/05/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 5, 2023

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

ON PETITION FOR REHEARING AND REHEARING EN BANC

Before Willett, Ho, and Duncan, Circuit Judges.

Per Curiam:

The petition for panel rehearing is DENIED. Because no member of

the panel or judge in regular active service requested that the court be polled

on rehearing en banc (Fed. R. App. P. 35 and 5th Cir. R. 35), the

petition for rehearing en banc is DENIED. The opinion is

WITHDRAWN, and the following opinion is SUBSTITUTED:

A Texas jury convicted Garland Bernell Harper of murder and

sentenced him to death. After his direct appeal and habeas petitions were

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No. 20-70022

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.

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 in

state court. 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 31 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

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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). When a district court has decided a claim on the merits, this

showing requires the applicant to demonstrate that jurists of reason “could

disagree with the district court’s resolution of [the] constitutional claims” or

“could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Buck v. Davis, 580 U.S. 100, 115 (2017)

(quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). On the other hand,

“[f]or claims denied on procedural grounds,” the applicant must show that

jurists of reason could debate both “whether the petition states a valid claim

of the denial of a constitutional right” and “whether the district court was

correct in its procedural ruling.” Nelson v. Davis, 952 F.3d 651, 658 (5th Cir.

2020) (quoting Segundo v. Davis, 831 F.3d 345, 350 (5th Cir. 2016)). In a

capital case, “any doubts as to whether a COA should issue must be resolved

in the petitioner’s favor.” Id. (internal quotation marks omitted).

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)). “For

claims that are not adjudicated on the merits in the state court, however, we

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do not apply the deferential scheme laid out in § 2254(d) and instead apply a

de novo standard of review.” Id. (internal quotation marks omitted).

A

Harper’s first issue-presented is that the district court erred by failing

to consider his Confrontation Clause claim (whether on the merits or as part

of a separate ineffective-assistance argument). The district court cited

procedural grounds for declining to consider this issue. A COA will issue,

then, only if jurists of reason (1) “would find it debatable whether the petition

states a valid claim of the denial of a constitutional right” and (2) “would find

it debatable whether the district court was correct in its procedural ruling.”

Segundo, 831 F.3d at 350 (quoting Slack, 529 U.S. at 484). We find the second

element dispositive and therefore do not address the first.

The Confrontation Clause claim received only a single footnote in

Harper’s state and federal habeas petitions. That fact places the district

court’s decision beyond reasonable debate, for two independent reasons.

First, it is beyond debate that Harper failed to exhaust this claim in

state court. Instead, he presented the claim to the state court in a single

footnote that he nested deep in the body of a 232-page petition that separately

presented 24 distinct claims. “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

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court a fair opportunity to consider the claim. Bridas S.A.P.I.C. v. Gov’t of

Turkmenistan, 345 F.3d 347, 356 n.7 (5th Cir. 2003) (quoting United States v.

Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002)).

Second, it is also beyond debate that Harper also failed to exhaust this

claim in the district court. Federal 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 Rule 2(c),

Rules Governing § 2254 Cases). “[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)). For the same

reasons that Harper did not fairly present this issue to the state courts, it is

beyond debate that Harper did not fairly present his Confrontation Clause

claim to the district court. A single conclusory footnote in a 291-page federal

habeas petition is not enough to put a district court on notice of a claim.

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, 546 U.S. 1 (2005) (per

curiam). That case and its progeny 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, 248–49 (5th Cir. 2019) (citing Dye,

546 U.S. at 4). 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 3–4 (claim

properly raised in a state habeas brief was incorporated by reference in federal

habeas petition).

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But Harper’s footnote did not incorporate any claim or argument by

reference. Instead, Harper cited the transcript only to support a factual

assertion: “The medical examiner who conducted the autopsy was available

to testify two days later, but defense counsel declined to call him to the

stand.” That factual assertion may be a predicate for an argument that

Harper might have made, but it is not an argument by itself. It is beyond

debate that 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’s note to

Rule 2(c) (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) (“[I]t 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)). Dye didn’t turn habeas petitions into matryoshka dolls.

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.

Harper challenges that denial, and he also argues that the district court

should have construed his reply brief, which did raise a Confrontation Clause

argument, as a Rule 15 motion to amend his habeas petition. We need not

address these arguments. Even if they are sound, it is beyond debate that

Harper’s claim would still be unexhausted for failing to fairly present the

Confrontation Clause claim to the state habeas court.

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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. The state habeas court adjudicated this claim on

the merits. Accordingly, “we may not issue a COA unless reasonable jurists

could debate that the state court’s decision was . . . ‘contrary to, or involved

an unreasonable application of, clearly established Federal law.’” Nelson, 952

F.3d at 658 (quoting 28 U.S.C. § 2254(d)(1)).

Harper’s ineffective-assistance claim requires him to 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, to establish deficient performance, a

petitioner must demonstrate that counsel’s representation fell below an

objective standard of reasonableness.” Id. (alteration adopted) (internal

quotation marks omitted)). “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

undermine confidence in the outcome.” Id. (internal quotation marks

omitted).

On the first prong, Harper argues (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, 75–78 (1987); Roberts v. Louisiana, 428 U.S. 325, 336

(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.

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302, 327–28 (1989); Eddings v. Oklahoma, 455 U.S. 104, 113–15 (1982). But

the state court rejected these arguments, reasoning 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.” Accordingly, the state court concluded that Harper’s

counsel was not ineffective for failing to use a peremptory strike against these

jurors. Harper has not identified any clearly established federal law that

would allow reasonable jurists to debate this conclusion.

Nor has Harper even argued that reasonable jurists could debate

Strickland’s second prong. 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

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 begin by considering whether jurists of reason could debate whether any

component of this claim has survived procedural default. See Nelson, 952 F.3d

at 658. For those components whose procedural viability is at least debatable,

we conclude that it is nonetheless beyond debate that the state habeas court’s

merits decision was neither “contrary to . . . clearly established Federal law”

nor “based on an unreasonable determination of the facts.” Nelson, 952 F.3d

at 658 (quotations omitted). We will not issue a COA on this claim.

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,

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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, 535 (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,

the first question we must answer is whether any of Harper’s Batson

arguments have at least debatably survived procedural default. 1

The merits of Harper’s Batson claim take two forms. First, he says that

the prosecution’s strikes followed a pattern that gave rise to an inference of

discrimination. Second, he says that each of the prosecution’s five stated

reasons for using a peremptory strike against juror Banks were pretextual.

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 any arguments that could debatably allow for excusing procedural default.

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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 that the seated jurors were

more likely to be white than the venire was. Because the record lacked

evidence of the racial makeup of the accepted members, Harper could not

substantiate this claim. As a result, the TCCA dismissed his claim on direct

appeal. When Harper tried to offer that evidence in his state habeas litigation,

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 even argue that the TCCA misapplied Texas law by

“dismiss[ing] the claim on a state-law procedural ground instead of deciding

it on the merits.” Rocha, 626 F.3d at 820. Therefore, it is beyond debate that

Harper has procedurally defaulted the “juror questionnaire” aspects of his

“pattern of strikes” argument. 2 Harper has, however, exhausted the more

limited “pattern of strikes” argument that he presented on direct appeal.

Next, we consider Harper’s argument that the State’s five proffered

reasons for striking juror Banks were pretextual. We agree that he exhausted

his objections to the State’s first and second proffered reasons.

2

Because it is beyond debate that 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.

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The State’s third proffered reason for striking Banks was her

statement that “everybody is capable of rehabilitation.” On direct appeal,

Harper argued that this reason was pretextual because jurors Cotton and

Basey also expressed that the chance for rehabilitation was the most

important factor to them but were seated anyways. However, 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, it is beyond debate that he cannot do so

now. However, Harper can rely on the comparison to the first two jurors.

The State’s fourth proffered reason was that Banks failed to answer

the question about whether life in prison is more effective than the death

penalty. In his direct appeal, Harper’s only objection to this proffered reason

was that there was no evidence that Banks was being “deceptive, or

untruthful, in failing to answer that question.” In his two habeas petitions,

Harper reshaped his argument, relying on evidence not presented on direct

appeal. He now argues that this reason is pretextual, citing evidence that the

prosecution failed to strike three other jurors who also failed to answer parts

of the questionnaire. Harper did not make this comparative argument on

direct appeal, so it is beyond debate that he cannot make it now. Still, he has

exhausted the “deception” argument that he made 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. As a result, jurists of reason could

conclude only that this argument is entirely procedurally defaulted.

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2

Having sorted through which arguments in support of Harper’s

Batson claim were at least debatably exhausted, we next consider whether

reasonable jurists could debate the district court’s denial of the non-defaulted

Batson arguments. We conclude that no debate is possible.

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

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 cannot use evidence

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that he did not present on direct appeal. 3 Because he cannot rely on the juror

questionnaires, and because his statistical claim fails without that evidence,

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 was pretextual.

The prosecutor’s first reason 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

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. Given these facts, jurists of

reason could not debate the trial court’s conclusion that “clearly

established” federal law supports the state court’s decision denying this

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).

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aspect of the Batson claim. Nelson, 952 F.3d at 658 (internal quotation marks

omitted).

The prosecutor’s second and third proffered reasons were that Banks

was opposed to the death penalty, and that she believed strongly in giving

people a chance to rehabilitate themselves in prison. 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. As such, there is no room to

debate the district court’s conclusion that clearly established law supports

the state court’s decision on this part of Harper’s Batson claim. See id.

Harper fares no better with his argument that the prosecutor’s fourth

proffered reason was pretextual. In his direct appeal, Harper argued that

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, it is beyond debate

that the trial court properly treated the state court’s rejection of this claim as

dispositive and in accord with clearly established federal law. See id.

Finally, even if Harper had evidence tending to disprove some of the

prosecutor’s proffered reasons, that would not open the trial court’s actual

decision to debate. “[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); Stevens v.

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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 in 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). “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 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

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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. See Miller-El v.

Dretke, 545 U.S. 231, 251–52 (2005) (Miller-El II).

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). 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.

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

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other case that compels anything of the sort.”) (emphasis in original), rev’d,

885 F.3d 832 (5th Cir. 2018) (en banc) (adopting Judge Clement’s dissenting

opinion on rehearing en banc). Miller-El II requires consistency, not

prophecy. As such, jurists of reasons could not debate the district court’s

conclusion rejecting the “ineffective assistance” aspect of Harper’s Batson

claim. See Nelson, 952 F.3d at 658. We will not issue a COA 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

(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

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 (1993), and Kelly. But as the State correctly notes,

Daubert applies only 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 discuss only 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).

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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, each 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, it is beyond debate that Harper fails Strickland’s second prong—

prejudice—for two reasons: (1) the record shows that the trial 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.

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,

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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 overwhelming evidence that Harper was dangerous,

there is no room for jurists of reason to even debate whether Dr. Moeller’s

testimony caused 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

(2020) (no ineffective assistance of counsel because it was “highly likely”

that the result would have been the same without the error). 5

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 the first court to address this issue. The habeas court

rejected Harper’s claim. It found that trial counsel was not ineffective, as a

matter of state law, because that court did consider whether Harper’s claim

5

The State also argues that this entire line of argument is procedurally barred.

Harper responds that we should excuse the default, citing the equitable exception set forth

in Martinez v. Ryan, 566 U.S. 1 (2012). See also Trevino v. Thaler, 569 U.S. 413 (2013). We

need not address these points, because even if we were to both identify and excuse Harper’s

default, the prejudice prong is beyond debate and is therefore independently dispositive.

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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 it admitted the confession. Given 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 involuntary.”

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 it is beyond debate that the habeas court’s decision was

reasonable, no COA will issue on this claim.

III

We DENY Harper’s application for a COA on all claims.

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