Opposition Brief — Blaine Keith Milam, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefSep 6, 2018

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No. 18-5494

IN THE

Supreme Court of the United States

______________________________

BLAINE MILAM,

Petitioner,

LORIE DAVIS, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

______________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

For the Fifth Circuit

______________________________

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

________________________________

KEN PAXTON

Attorney General of Texas

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

JEFFREY C. MATEER

First Assistant Attorney General

TOMEE M. HEINING

Assistant Attorney General

Counsel of Record

ADRIENNE McFARLAND

Deputy Attorney General

For Criminal Justice

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1400

tomee.heining@oag.texas.gov

This is a capital case.

QUESTION PRESENTED

Before the federal district court, Milam raised six unexhausted claims

alleging ineffective assistance of trial, appellate, and state habeas counsel, as

well as a claim of trial-court error. Milam admitted the claims were defaulted

but relied on the equitable remedy recognized in Martinez v. Ryan, 566 U.S. 1

(2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), as cause to excuse the

procedural default of all six claims. The district court concluded that the

Martinez/Trevino exception applied only to the single claim of ineffective

assistance of trial counsel. However, that claim remained procedurally barred

because Milam could not demonstrate a substantial claim for relief, as required

by Martinez and Trevino. Relying on Davila v. Davis, 137 S. Ct. 2058 (2017),

as well as controlling Fifth Circuit precedent, the district court concluded that

the Martinez/Trevino exception did not provide cause to excuse the procedural

default of the remaining five claims which did not allege the ineffective

assistance of trial counsel.

Did the Fifth Circuit err in denying a certificate of appealability because

it concluded that the district court’s procedural bar of these claims was not

debatable?

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iv

BRIEF IN OPPOSITION ............................................................................................... 1

TO PETITION FOR WRIT OF CERTIORARI ............................................................. 1

STATEMENT OF THE CASE ....................................................................................... 2

Facts of the Crime ............................................................................................. 2

II. The State-Court and Federal Appellate Proceedings. ................................... 10

REASONS FOR DENYING THE WRIT ..................................................................... 11

ARGUMENT ................................................................................................................ 12

The Fifth Circuit Properly Denied COA Because the District Court’s

Procedural Dismissal of Milam’s Voluntary-intoxication-instruction Claims

was not Debatable. (Claims 1-4) .................................................................... 12

Martinez and Trevino do not apply to claims that do not allege IATC. 13

Reasonable jurists could not debate, and Milam cannot overcome, the

procedural default of his IATC claim. ..................................................... 15

1.Milam failed to present a substantial IATC claim. .............................. 15

2.State habeas counsel was not deficient. ............................................... 20

II. The Fifth Circuit Properly Denied COA Because the District Court’s

Procedural Dismissal of Milam’s Intellectual-Disability Claims was not

Debatable. (Claims 5-6) .................................................................................. 22

Martinez does not excuse the default of non-IATC claims. ................... 22

The district court’s rejection of Milam’s intellectual-disability claim is

undebatable. (Claim 5) ............................................................................ 24

1.Moore v. Texas, 137 S. Ct. 1309 (2017), does not apply. ...................... 24

2.Trial counsel was not deficient in the presentation of an intellectualdisability defense, and appellate counsel committed no error in

failing to raise related claims. ............................................................. 25

3. The jury properly considered the evidence. ........................................ 36

4. State habeas counsel was not deficient. ............................................. 38

Milam is not entitled to relief under Roper. (Claim 6)........................... 38

CONCLUSION............................................................................................................. 40

iii

TABLE OF AUTHORITIES

Cases

(Terry) Williams v. Taylor, 529 U.S. 362 (2000) .............................................. 18

Atkins v. Virginia, 536 U.S. 304 (2002) ............................................................ 24

Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001) ............................................ 20

Blue v. Thaler, 665 F.3d 647 (5th Cir. 2011) .................................................... 20

Buck v. Davis, 137 S. Ct. 759 (2017) ....................................................... 2, 11, 12

Chauncey v. State, 877 S.W.2d 305 (Tex. Crim. App. 1994) ............................ 17

Davila v. Davis, 137 S. Ct. 2058 (2017) ............................................. i, 13, 14, 22

Doyle v. Stephens, 535 F. App’x 391 (5th Cir. 2013) ........................................ 39

Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) ............................ 24, 33

Ex parte Cathey, 451 S.W.3d 1 (Tex. Crim. App. 2014) ................................... 37

Ex parte Hearn, 310 S.W.3d 424 (Tex. Crim. App. 2010) .............. 23, 34, 35, 37

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) ............................. 33, 34

Graham v. Collins, 506 U.S. 461 (1993) ........................................................... 20

Hall v. Florida, 134 S. Ct. 1986 (2014) ............................................................. 36

Hall v. Quarterman, No. 4:06-CV-436-A

(N.D.Tex., March 9, 2009 .................................................................. 35, 36, 37

Harrington v. Richter, 562 U.S. 86 (2011) .................................................. 16, 18

Harris v. Cockrell, 313 F.3d 238 (5th Cir. 2002) .............................................. 19

Hearn v. Thaler, 669 F.3d 265 (5th Cir. 2012) ........................................... 36, 37

Hernandez v. Johnson, 213 F.3d 243 (5th Cir. 2000) ...................................... 19

Hines v. Thaler, No. 3:06-CV-0320-G (N.D. Tex., March 22, 2010) ................ 35

In re Garner, 612 F.3d 533, 535-36 (6th Cir. 2010) ......................................... 39

In re Sepulvado, 707 F.3d 550 (5th Cir. 2013) ................................................. 14

Jaynes v. State, 673 S.W.2d 198 (Tex. Crim. App. 1984) ................................. 16

Jones v. Barnes, 463 U.S. 745 (1983) ................................................................ 40

Lockett v. Ohio, 438 U.S. 586 (1978) ................................................................. 19

Martinez v. Ryan, 566 U.S. 1 (2012) ..........................................................passim

Mays v. Stephens, 757 F.3d 211 (5th Cir. 2014) ......................................... 36, 37

Melton v. Sec’y, Fla. Dep’t of Corr., 778 (11th Cir. 2015) .......................... 39, 40

Miller v. Johnson, 200 F.3d 274 (5th Cir. 2000) .............................................. 23

Miller-El v. Cockrell, 537 U.S. 322 (2003) .................................................... 2, 11

Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992) ................................. 19

Moore v. Texas, 137 S. Ct. 1309 (2017) ....................................................... 24, 25

Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008) .................................... 33

Parr v. Quarterman, 472 F.3d 245 (5th Cir. 2006) .......................................... 39

Penry v. Johnson, 532 U.S. 782 (2001) ............................................................. 19

Penry v. Lynaugh, 492 U.S. 302 (1989) ............................................................ 19

Roper v. Simmons, 543 U.S. 541 (2005) ......................................... 22, 38, 39, 40

Slack, 529 U.S. at 482-83; 28 U.S.C. § 2253............................................... 11, 12

Smith v. Murray, 477 U.S. 527, 536 (1986) ...................................................... 40

Smith v. Quarterman, 515 F.3d 392 (5th Cir. 2008) ........................................ 19

Smith v. Robbins, 528 U.S. 259 (2000) ................................................. 21, 38, 40

Strickland v. Washington, 466 U.S. 668 (1984) ................................... 16, 18, 21

Tabler v. Stephens, 588 F. App’x 297 (5th Cir. 2014) ...................................... 14

Trevino v. Thaler, 133 S. Ct. 1911 (2013) .................................................. i, 1, 13

United States v. Bernard, 762 F.3d 467 (5th Cir. 2014) .................................. 39

United States v. Demik, 489 F.3d 644 (5th Cir. 2007) ..................................... 23

United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007) .................................. 39

Wilkins v. Stephens, 560 F. App’x 299, (5th Cir. 2014).................................... 14

Zafiro v. United States, 506 U.S. 534 (1993) .................................................... 36

Statutes

Tex. P. Code §8.04 .............................................................................................. 17

Constitutional Provisions

U.S. Const. amend. VIII .................................................................................... 19

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Petitioner-Appellant Blaine Milam was convicted and sentenced to death

for the brutal capital murder of his girlfriend’s thirteen-month-old daughter,

Amora Bain Carson. Amora was severely beaten, strangled, sexually

assaulted, and had twenty-four human bitemarks covering her entire body in

what the medical examiner called the worst case of brutality he had ever seen.

41 RR 235-36. Milam and Amora’s mother, Jesseca Carson, initially denied

involvement, but he eventually confessed to a jail nurse.

Milam now petitions this Court for a writ of certiorari from the Fifth

Circuit’s denial of a certificate of appealability (COA). Milam asked the Fifth

Circuit to grant COA to review the district court’s rejection of six claims as

unexhausted and procedurally barred. In rejecting his claims, the district court

concluded that Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133

S. Ct. 1911 (2013), could potentially excuse the default of only a single claim

alleging the ineffective assistance of trial counsel (IATC), but Milam failed to

prove the necessary cause and prejudice required by Martinez/Trevino to avoid

the procedural bar of that claim. The Fifth Circuit denied COA, concluding the

district court’s procedural rulings on all six claims were not debatable.

Milam is now unable to present any special or important reason to grant

certiorari review of the Fifth Circuit’s decision. The appellate court obeyed the

command of this Court to conduct no more than a “threshold inquiry” into the

claim, see Buck v. Davis, 137 S. Ct. 759, 774 (2017 (citing Miller-El v. Cockrell,

537 U.S. 322, 336 (2003)), reasonably concluding that the district court’s

procedural rulings were not debatable. Milam offers no compelling reason to

grant certiorari review, and such review should therefore be denied.

STATEMENT OF THE CASE

Facts of the Crime

The Texas Court of Criminal Appeals (CCA) summarized the factual

background of this case as follows.

A. The State’s Guilt–Stage Evidence.

At 10:37 a.m. on December 2, 2008, [Milam] called 911, and the

first thing he said was, “My name is Blaine Milam, and my

daughter, I just found her dead.” Rusk County Patrol Sergeant

Kevin Roy arrived at [Milam’s] trailer home outside Tatum twenty

minutes later. Two ambulances were already there. EMTs were

standing in the doorway of the master bedroom, where [Milam]

and Jesseca Carson were kneeling on the floor. Sgt. Roy saw “an

infant laying on the floor not moving, not breathing, bruised. The

baby was laying on its back, and the face of the baby was just one

large bruise.” He thought that the circular bruises he saw on the

child’s body were caused by a Coke can. He did not recognize them

as human bite marks.

After lead investigator Sergeant Amber Rogers arrived, Sgt. Roy

took [Milam] aside to talk while Sgt. Rogers talked to Jesseca.

[Milam] told Sgt. Roy that he and Jesseca had left Amora alone in

the trailer and walked up the road to meet a man named Clark

who was going to clear some land for him. They were gone about

an hour, and, when they came back, they found “the baby in that

condition.” [Milam] was calm, collected, and cooperative. After the

interviews, Sgt. Roy read the pair their Miranda rights. He told

them that, when the crime-scene investigation was done, they

would be taken to the Sheriff’s office for more questioning and

collection of their clothes.

Shortly thereafter, Kenny Ray, a Texas Ranger, arrived and

noticed Jesseca and [Milam] embracing. To Ranger Ray, the two

looked like “grieving parents,” not suspects. Ranger Ray conducted

an hour-long interview with [Milam] in the front seat of his patrol

car. [Milam] told the ranger that authorities were “more than

welcome” to search his car and home. [Milam] denied involvement

in Amora’s death. He also gave Ranger Ray names of possible

suspects and said that whoever did this should “be hung.” In that

recorded interview, [Milam] explained that Jesseca was his fiancee

and that Amora was Jesseca’s child, but that they both lived with

him and he was “raising that baby.”

[Milam] then told Ranger Ray the same story that he had told Sgt.

Roy. He added that, when he and Jesseca got home, they found

Amora, not in her crib, but in a hole in the floor in the bathroom

that he was remodeling. [Milam] said Amora had a blood ring

around her mouth, and “it looked like she had been biting the

insulation.” She was still breathing, so they called 911. [Milam]

later told Ranger Ray that Jesseca called 911 before they found

Amora, and that when they found her, she was dead.

Ranger Ray’s tone eventually became accusatory. He told [Milam]

that he knew he was lying, that no one would believe his story, and

that everyone would think he had beat the baby because he was

the only male in the house. [Milam] again denied any involvement

in Amora’s death and offered to take a polygraph test. Finally,

Ranger Ray told [Milam] that he was free to go, meaning that he

was free to get out of the patrol car, but not to leave the scene. By

then, Ranger Ray considered [Milam] a suspect.

The ranger also interviewed Jesseca. At first she “was crying and

acting very distraught,” but then there was a “pretty drastic”

change in her demeanor. She referred to Amora as “that baby” and

told Ranger Ray an “extremely bizarre story.”

The medical examiner gave Amora’s cause of death as homicidal

violence, due to multiple blunt-force injuries and possible

strangulation. He detailed her injuries: facial abrasions and

bruises; twenty-four human bite marks; bruises, scrapes, and

abrasions from head to toe; bleeding underneath the scalp;

extensive fracturing to the back of the skull; bleeding between the

brain and the skull; a laceration to the brain tissue as well as

swelling, bleeding, and bruising; bleeding around the optic nerves;

bleeding in the eyes and around the jugular vein; fractures to the

right arm and leg; eighteen rib fractures; a tear to the liver; and

extensive injury to the genitals. There were no old injuries

suggesting a pattern of abuse.

The investigation quickly poked holes in [Milam’s] story. Shane

and Dwight Clark, of Clark Timber, denied any meeting with

[Milam] on December 2nd. Crystal Dopson, manager of the Insta–

Cash Pawn Shop in Henderson, said that, shortly after she opened

the shop on December 2nd, Jesseca and [Milam] came in and

pawned an electric chain saw and an air impact tool. Surveillance

video showed the two in the pawn shop for about fifteen minutes.

Surveillance video from the Exxon in Henderson picked them up

shortly thereafter. Also, [Milam] had called his sister, Teresa Shea,

that morning before 9:30 a.m., crying and saying that he had

“found Amora dead.” Teresa told him to call 911, but [Milam] did

not do so until 10:37 a.m.

On December 11th, investigators conducted a second search of

[Milam’s] trailer and determined that the south end of the trailer,

rather than the master bedroom, was probably the crime scene.

They found blood-spatter stains, consistent with blunt force

trauma, near the south bedroom. Among the items collected from

the south bedroom were: blood-stained bedding and baby clothes;

blood-stained baby diapers and wipes; a tube of Astroglide

lubricant; and a pair of jeans with blood stains on the lap. DNA

testing later showed that Amora’s blood was on these items.

On December 13th, [Milam’s] sister, Teresa, went to see [Milam]

in jail. That night, she told her aunt that she “was needing to find

a way to get back out to the trailer in Tatum” because “Blaine had

told her that she needed to go out there to the trailer to get some

evidence out from underneath of it.” The aunt called Sgt. Rogers

and told her that “she needed to get out to the trailer immediately,

that Teresa was wanting to go out there to get some evidence out

from underneath the trailer.”

Sgt. Rogers immediately obtained a search warrant, crawled under

the trailer, and discovered a pipe wrench inside a clear plastic bag.

The pipe wrench had been shoved down “a hole in the floor of the

master bathroom.” Forensic analysis revealed components of

Astroglide on the pipe wrench, the diaper Amora had been

wearing, and the diaper and wipes collected from the south

bedroom.

Dr. Robert Williams, a forensic odontologist, compared the bite

marks found on Amora’s body with bite dentition models obtained

from [Milam], Jesseca, and [Milam’s] brother Danny Milam. Dr.

Williams testified that, to “a reasonable degree of dental

certainty,” [Milam’s] dentition matched eight bite marks on

Amora. He could exclude Jesseca from all but one of the bite

marks, and he could exclude Danny from all of the bite marks.

Shirley Broyles, the nurse at the Rusk County Jail, testified that

[Milam] called for her one day in January. She found him crying

in his cell. He handed her a written request to talk to Sgt. Rogers,

and told Ms. Broyles: “I’m going to confess. I did it. But Ms. Shirley,

the Blaine you know did not do this. My dad told me to be a man,

and I've been reading my Bible. Please tell Jesseca I love her.”

B. The Defense Guilt–Stage Evidence.

[Milam’s] defense focused on Jesseca as the murderer. The defense

called Heather Carson, Jesseca’s mother, who said that Jesseca

and [Milam] starting [sic] dating around January 2008 and got

engaged a few months later. Jesseca moved in with [Milam] and

his parents that spring. When Jesseca turned eighteen, she

received an insurance settlement from her father’s 2001 death.

Heather noticed an immediate change in Jesseca; she became

withdrawn and stopped caring about her appearance. Jesseca

started harassing Heather with telephone calls. When Heather

learned that Jesseca was making serious and unfounded

allegations against her, she stopped talking to her.

Lisa Taylor testified that Jesseca was her daughter’s best friend

while growing up in Alabama. Ms. Taylor knew Jessica as “sweet,

outgoing, outspoken, funny.” She said that Jesseca, [Mr. Milam],

and Amora visited them in Alabama twice in the fall of 2008. First,

they came for one night in October. Jesseca was making “bizarre”

accusations about her mother. In November, the trio returned to

Alabama for about four days and said that they were planning to

move there. Ms. Taylor said that there was a “drastic change” in

Jesseca’s demeanor. She was “[w]eird, hollow ... [l]ike empty.”

Looking into her eyes was “like looking into a dark space.” Jesseca

was not taking care of Amora and did not give her a bath for the

whole week. She had [Milam] change Amora’s diaper and feed her.

Jesseca seemed in charge, and when she told [Milam] to do

something, he did it. Ms. Taylor was concerned that there was

something profound going on in Jesseca’s life and was worried

about her and her baby.

A psychiatrist, Dr. Frank Murphy, testified that he was asked to

“offer an opinion in this case of the mental state of Jesseca Carson

for the time period beginning sometime around August of 2008

through December 2nd of 2008.” Dr. Murphy read interviews with

Jesseca and other materials but did not talk to Jesseca. Dr.

Murphy said Jesseca’s symptoms were consistent with a “psychotic

depression ... . The depression occurs first, and then it gets severe

enough that psychosis or loss of touch with reality then occurs...

. Psychosis means someone has lost touch with reality. The vast

majority of times, that means either they're hallucinating or

they’re delusional.”

The defense odontologist, Dr. Isaac, studied five of the bite marks,

and could not exclude either [Milam] or Jesseca.

Milam v. State, No. AP-76,379, 2012 WL 1868458, *1-4 (Tex. Crim. App. May

23, 2012). The CCA also summarized the punishment-phase evidence.

C. The State’s Punishment–Stage Evidence.

The State offered evidence that [Milam] was—at the time of this

crime—on probation for solicitation of aggravated sexual assault

of a child under the age of fourteen. [Milam] had entered the home

of an eleven-year-old neighbor, Karah Hodges, and left a stack of

pages torn from pornographic magazines, marked with salacious

notes, in Karah’s dresser drawer. [Milam’s] probation terms

prohibited him from going within “200 feet of a premise where

children commonly gather, including school, daycare facility,

playground, public or private youth center, public swimming pool,

or video facility.” [Milam’s] “mere presence” with Amora was,

therefore, a continuing probation violation.

Ranger Ray was recalled to play the entire patrol-car conversation

he had recorded with [Milam]. [Milam] had told Ranger Ray that

a third party had forced him to solicit Karah Hodges. He also

discussed several assaults, all of which he described as being of the

“he had it coming” variety.

Glenda Risinger, who rented an apartment to [Milam] and Jesseca

in the fall of 2008, testified that when the pair left, the

apartment “was trashed. There was stuff left everywhere. The

refrigerator was left open with food still in it.... It was pretty much

just like they just went through and trashed it.” She also found a

lightbulb containing methamphetamine and a hunting knife in the

toilet tank.

Bryan Perkins, [Milam’s] former boss, testified that [Milam] had

“control issues” and a “very short” fuse. [Milam] would bring

Jesseca to work to keep an eye on her. Mr. Perkins said, “I started

talking to him about his controlling problems, you know, that if he

kept on controlling his woman, she was going to leave him. And,

you know, he just said it seemed like, you know, with that baby,

him and Jesseca were not really going to have a life.” Mr. Perkins

also described a fight [Milam] had with a customer.

Monty Clark, a Rusk County patrol deputy, testified that, in

January 2008, he responded to a fight on the side of the road

between [Milam] and his brother, Danny. He arrested [Milam] for

assault and family violence.

Kenneth McDade, a fellow inmate, testified that [Milam] told him

about a plan to escape from the jail and also threatened to stab

him with a pencil.

Jesseca’s friend, Crystal Zapata, described an incident that

occurred after [Milam’s] father died in September but before

Amora was killed in December. Ms. Zapata was inside the trailer

with Amora, while [Milam] and Jesseca were arguing outside.

[Milam] had a gun and threatened suicide; Jesseca was trying to

calm him down. Ms. Zapata heard a gunshot. After a few minutes

Jesseca came in the door crying and told Ms. Zapata that he had

shot into the floorboard of her car when she tried to keep him from

leaving. Ms. Zapata characterized [Milam] as dominant in the

relationship.

D. The Defense Punishment–Stage Evidence.

The defense sought to rebut the State’s future-dangerousness

evidence with both lay and expert witnesses.

[Milam’s] mother, Shirley Milam, attributed [Milam’s] solicitation

of aggravated sexual assault to his mental immaturity. She said

he stopped maturing emotionally at age twelve. She testified that

[Milam] had an on-and-off methamphetamine problem and that he

had started using drugs again shortly after his father’s death.

Shirley testified that, after the second time [Milam] tried to

commit suicide to “go be with [his] daddy,” she unsuccessfully tried

to have him civilly committed. In early November, Jesseca and

[Milam] brought a Ouija board to Shirley’s work and told her that

they could communicate with their dead fathers.

[Milam’s] older sister testified that [Milam] was a polite, passive

child and a polite, passive adult. This crime was completely out of

character for him. [Milam’s] childhood friend said that he did not

think [Milam] was capable of Amora’s murder or aggravated

sexual assault. He echoed what [Milam’s] family members said

about the effect of his father’s death: “It affected him really bad,

because like him and his dad was real close.”

Dr. Patricia Rosen, a medical toxicologist, testified that toxicology

reports indicated that [Milam] had 0.17 milligrams of

methamphetamine per liter of blood in his system on December

2nd. Dr. Rosen said this was a “high” dose-ten times the

therapeutic dose. Another expert testified about the effects of

methamphetamine on the brain and gave her opinion that [Milam]

was a chronic methamphetamine user, whose heavy use could

have caused severe psychosis.

Dr. Mark Cunningham, a clinical and forensic psychologist,

testified that he was asked to evaluate two issues concerning

[Milam]: 1) “how did we get here?” and 2) “where do we go from

here?” Dr. Cunningham interviewed [Milam] three times, for a

total of nearly ten hours. He also interviewed [Milam’s] mother

and sisters, and reviewed “a huge volume of records.” Dr.

Cunningham summarized the answer to the “how did we get here”

question:

There’s mental deficiency, youthfulness, meth

dependence, meth psychosis, Jesseca’s psychosis.

Those are all interacting with each other. That’s all

part of the matrix of his psyche. Now, it’s not just those

things, of course. There’s also the trauma and

deprivation, the social deprivation I’m describing, as

well as the trauma of his dad’s illness, and those

experiences. There is the social isolation that came

about that robs him of social resources that he might

have called upon for some reality testing. There’s

premature responsibility. There’s the death of his

father. All of these things are being loaded on and are

interacting with each other, as we’re coming up to this

offense, and the effect of that is this tragedy.

Dr. Cunningham answered the “where do we go from here?”

question by outlining the reasons why [Milam] was “likely to have

a nonviolent adjustment, in terms of no serious violence, to a life

without parole sentence in TDCJ.”

• [Milam’s] “nonviolent adjustment to 17 months jail

pretrial”;

• “Appraisal of the correctional staff was not that

[Milam] was going to be a predatory inmate that they

needed to lock down”;

• [Milam’s] history of employment: starting work at

16, and gaining “a pretty significant employment

history for a kid that’s arrested when he’s 18”;

• [Milam’s] continuing contact and relationship with

family;

• The relatively low rate of major assaults committed

by capital inmates serving a life term;

• The fact of serving a sentence of life without parole

(“inmates facing life-without-parole sentences and

long sentences have more to lose. This is where they’re

going to be for a very long time and potentially the rest

of their lives, and because of that, they are particularly

motivated not to make this experience any more

horrible on themselves than it has to be.”);

• The fact that he would be an inmate in the Texas

prison system (“99.9 percent of inmates in Texas

prisons in 2009 did not commit an assault resulting in

injuries with more than first aid treatment”);

• The option of [Milam] going to the Hodge Unit (“a

unit for intellectually limited individuals” with a

program designed to meet their needs “and help

prevent them from being victimized by other

inmates”);

• The option of protective custody (“because of the

nature of his offense ... for his safety so that other

inmates didn’t act out on him. Those conditions of

confinement would look in many ways like

administrative segregation.”)

On cross-examination, Dr. Cunningham testified that he is always

a defense expert because “the research is very clear that the

overwhelming majority of capital offenders will never be violent in

prison, that the rates of serious violence in prison are very low,

that prisons are extraordinarily effective in minimizing the

occurrence of serious violence.”

Milam v. State, 2012 WL 1868458, at *4-6 (footnotes omitted).

II.

The State-Court and Federal Appellate Proceedings.

The CCA affirmed Milam’s conviction and sentence on direct appeal.

Milam v. State, 2012 WL 1868458. He did not seek certiorari review. On

September 11, 2013, the CCA adopted the trial court’s recommended findings

of fact and conclusions of law, and denied state habeas relief. Ex parte Milam,

No. WR-79,322-01 (Tex. Crim. App. 2013). The district court denied federal

habeas relief and COA. Milam v. Director, TDCJ-CID, No. 4:13-cv-545, 2017

WL 3537272 (E.D., Sherman Div. Aug. 16, 2017) (Petitioner’s Appendix 3). The

Fifth Circuit also denied COA. Milam v. Davis, No. 17-70020, 2018 WL

2171208 (5th Cir. May 10, 2018) (Petitioner’s Appendix 2).

REASONS FOR DENYING THE WRIT

Milam presents no compelling reason for granting review on writ of

certiorari. See Sup. Ct. R. 10 (Certiorari review “is not a matter of right but of

judicial discretion,” and “will be granted only for compelling reasons.”) Milam

was required to obtain COA as a jurisdictional prerequisite to obtaining

appellate review by the Fifth Circuit. 28 U.S.C. § 2253 (c)(1)(A); Miller-El, 537

U.S. at 335–36; Slack v. McDaniel, 529 U.S. 473, 483 (2000). The COA statute

requires the circuit court to make only a “threshold inquiry into whether the

circuit court may entertain the appeal,” and permits issuance of a COA only

where petitioner “has made a substantial showing of the denial of a

constitutional right.” Miller-El, 537 U.S. at 336 (citing Slack, 529 U.S. at 48283; 28 U.S.C. § 2253 (c)(2)); see also Buck, 137 S. Ct. at 773-74. This standard

“includes showing that reasonable jurists could debate (or, for that matter,

agree that) the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed

further.” Slack, 529 U.S. at 484 (internal quotation marks and citation

omitted). And where the district court has denied claims on procedural

grounds, a COA should issue only if it is demonstrated that “jurists of reason

would find it debatable whether the petition states a valid claim of a denial of

a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. at 484

(emphasis added).

The Fifth Circuit made a proper “threshold inquiry” into the district

court’s procedural rulings, concluding that the district court’s application of

the procedural bar to all six claims was undebatable. Milam argues generally

that, in denying COA on any claim, the Fifth Circuit “totally abdicated their

duty under Buck v. Davis,” Petition at 19, but completely fails to establish how

the Fifth Circuit erred or why any such error is so compelling that this Court’s

intervention is called for. Certiorari review should therefore be denied.

ARGUMENT

The Fifth Circuit Properly Denied COA Because the District

Court’s Procedural Dismissal of Milam’s Voluntary-intoxicationinstruction Claims was not Debatable. (Claims 1-4)

In four related claims, Milam argued: (1) Trial counsel was ineffective

for failing to secure a mitigation instruction at punishment regarding

voluntary intoxication; (2) the trial court erred in failing to include such an

instruction; (3) appellate counsel was ineffective for failing to raise this issue

in a motion for new trial or on direct appeal; and (4) state habeas counsel was

ineffective for failing to assert the forgoing claims. Petition at 19-20, 24-27.

Milam

asserted

the

ineffectiveness

state

habeas

counsel

under

Martinez/Trevino as cause to excuse his procedural default of all four claims.

The district court denied relief concluding that each claim was

unexhausted and procedurally barred, and Milam could not overcome the

procedural default through Martinez. Petitioner’s Appendix 3, at 6-10. The

Fifth Circuit found the district court’s conclusions undebatable and denied

COA. Petitioner’s Appendix 2-5. For reasons that will be discussed below, the

appellate court did not err and certiorari review should be denied.

Martinez and Trevino do not apply to claims that do not

allege IATC.

As the district court and Fifth Circuit correctly concluded, Martinez does

not extend beyond claims alleging IATC. Thus, Claims Two and Three—

alleging trial-court error and the ineffectiveness of direct-appeal counsel—do

not fall within the scope of Martinez and were properly rejected as procedurally

barred. Petitioner’s Appendix 2, at 5; Petitioner’s Appendix 3, at 10. This Court

specifically refused to extend Martinez to ineffective-assistance-of-appellatecounsel claims, see Davila v. Davis, 137 S. Ct. 2058, 2065 (2017), and the Fifth

Circuit has similarly refused to extend Martinez beyond IATC claims, Wilkins

v. Stephens, 560 F. App’x 299, 306 n.44 (5th Cir. 2014); Tabler v. Stephens, 588

F. App’x 297, 306 (5th Cir. 2014), vacated in part on other grounds, 591 F. App’x

281 (5th Cir. 2015).

While acknowledging Davila, Milam argues this Court recognized a

potential exception to Martinez where it is necessary “to ensure that

meritorious claims of trial error receive review by at least one state or federal

court.” Petition at 21 (citing Davila, 137 S. Ct. at 2067). This Court did not

identify any exception but, rather, reiterated that unreviewed IATC claims

were “the chief concern identified by this Court in Martinez.” Davila, 137 S. Ct.

at 2067. In fact, the Court recognized that Martinez already provides a vehicle

for review of an unpreserved, defaulted claim of trial error through an IATC

claim, thus ensuring that trial errors can be reviewed by at least one court. Id.

at 2068. Milam’s trial-error claim is potentially reviewable through his IATC

claim. Thus, the district court’s reliance on Davila is undebatable, and the

Fifth Circuit did not err in denying COA.

The Fifth Circuit also did not err in finding undebatable the district

court’s conclusion that Claim Four, asserting a stand-alone claim of the

ineffectiveness of state habeas counsel, is not cognizable in federal court, even

after Martinez/Trevino. Petitioner’s Appendix 2, at 5; Petitioner’s Appendix 3,

at 10-11 (citing Martinez, 566 U.S. at 17; In re Sepulvado, 707 F.3d 550, 554

(5th Cir. 2013)).

Because Claim 4 remains non-cognizable, and Martinez cannot excuse

the procedural default of Claims and 2 and 3, the Fifth Circuit did not err in

denying COA on procedural grounds, and certiorari review should be denied.

Reasonable jurists could not debate, and Milam cannot

overcome, the procedural default of his IATC claim.

Martinez provides potential cause to excuse the procedural default of

only Claim One, alleging the ineffectiveness of trial counsel. To do so, Milam

must establish not only “cause”—the deficient performance of state habeas

counsel—but also “prejudice” by demonstrating the merits of his underlying

claim. Martinez, 566 U.S. at 14. Under Martinez, “[t]o overcome the default, a

prisoner must also demonstrate that the underlying [IATC] claim is a

substantial one, which is to say that the prisoner must demonstrate that the

claim has some merit.” Id. Because Milam failed to show deficiency in or

prejudice from trial counsel’s representation, Milam failed to prove a

substantial claim. Therefore, the district court concluded Milam could not

overcome the procedural default of Claim One, Petitioner’s Appendix 3, at 910; and the Fifth Circuit agreed, Petitioner’s Appendix 2, at 4-5. Milam fails to

show that the Fifth Circuit erred, or that certiorari review is warranted.

Milam failed to present a substantial IATC claim.

Milam argued that trial counsel was constitutionally ineffective for

presenting extensive evidence regarding Milam’s drug use and “drug induced

psychosis” at the time of the crime, but then failing to provide the jury with a

vehicle to consider the testimony as mitigation at the punishment phase. Trial

counsel’s performance was neither deficient nor prejudicial.

Trial counsel was not deficient in his pursuant of a voluntaryintoxication instruction during the punishment phase of trial. To demonstrate

deficient performance Milam must show that counsel’s conduct fell beyond the

bounds of prevailing, objective professional standards. Strickland v.

Washington, 466 U.S. 668, 688 (1984). There is a presumption that counsel

rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment. Id. at 690. “[T]he standard for judging

counsel’s representation is a most deferential one.” Harrington v. Richter, 562

U.S. 86, 105 (2011). The question for the reviewing court to ask “is whether an

attorney’s representation amounted to incompetence under ‘prevailing

professional norms[.]’” Id. (citing Strickland, 466 U.S. at 690). Milam failed to

meet this high standard.

Prior to trial, counsel filed several motions, including a motion to

preclude submission, at the punishment phase, of an adverse instruction

advising the jury that evidence of voluntary intoxication must rise to the level

of temporary insanity. 1 CR 116-17; see Jaynes v. State, 673 S.W.2d 198, 202

(Tex. Crim. App. 1984) (proper for trial court to instruct jury that voluntary

intoxication is not a defense to a crime), overruled on other grounds, Chauncey

v. State, 877 S.W.2d 305 (Tex. Crim. App. 1994). Trial counsel asked that the

jury instead be given the definition contained within Texas Penal Code §8.04

(d)—“‘intoxication’ means disturbance of mental or physical capacity resulting

from the introduction of any substance into the body”—and instructed: “In

arriving at your answer to [Special Issue No. 4] above, you may consider the

Defendant’s voluntary intoxication as a mitigating circumstance to warrant

that a sentence of life imprisonment rather than a death sentence be imposed.”

1 CR 117-18. The trial court carried the motion, as well as fourteen others,

until a later date. 2 CR 453-60.

Contrary to Milam’s assertions, see Petition at 25-27, trial counsel did

not fail to reassert the motion. Following the close of punishment evidence, the

defense reminded the trial court, “you had carried a couple of motions that are

appropriate to have you rule on at this time,” and identified one of the motions

pertaining to Milam’s mental age. 55 RR 286-87. While counsel did not

specifically mention the motion for the voluntary intoxication instruction, he

noted “other arguments made and set forth in our motion that you carried.” 55

RR 287. The trial court denied the motion, and did not give the instruction. Id.

Trial counsel nevertheless argued during closing arguments for the jury

to consider Milam’s voluntary-intoxication evidence as mitigating. Trial

counsel Hagen reminded the jury about the experts’ testimony on the effects of

methamphetamine, see 56 RR 52-57; referred to Dr. Lundberg-Love’s opinion

that the facts of this crime were “insanity,” 56 RR 83-84; and argued there were

mitigating circumstances warranting the imposition of life over death, 56 RR

84. Trial counsel Jackson argued Milam was prone to drug addiction because

of a family history, 56 RR 98-99; and told the jury: “we talk about intoxication

or drug use is not a defense to the ultimate crime. It is a defense in mitigation

to whether or not you should kill somebody for what happened.” 56 RR 99.

Given these facts, the district court concluded that “[t]rial counsel

appropriately pursued this issue and presented it to the jury. Counsel’s

representation did not fall below an objective standard of reasonableness.”

Petitioner’s Appendix 3, at 10; see Strickland, 466 U.S. at 688. The Fifth

Circuit found this conclusion undebatable. Petitioner’s Appendix 2, at 5. And

because Milam could not show deficient performance, the appellate court found

the IATC claim insubstantial and insufficient to satisfy Martinez. Id.

While the Fifth Circuit did not reach the prejudice prong,1 Milam also

failed to affirmatively prove prejudice by demonstrating “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” (Terry) Williams v. Taylor, 529 U.S.

362, 391 (2000) (citing Strickland, 466 U.S. at 694). The “likelihood of a

different result must be substantial, not just conceivable.” Richter, 562 U.S. at

The district court found simply that Milam had not shown prejudice.

Petitioner’s Appendix 3, at 10.

112. Here there is no reasonable probability of a different result had trial

counsel asked the judge to rule on this specific motion.

The CCA has specifically held that the jury need not receive any special

instruction on how to incorporate evidence of voluntary intoxication into the

mitigation special issue. Miniel v. State, 831 S.W.2d 310, 320 (Tex. Crim. App.

1992); see also Hernandez v. Johnson, 213 F.3d 243, 250 (5th Cir. 2000).

Therefore, regardless of whether trial counsel sufficiently followed up on his

pretrial motion for an instruction, the trial court would have denied any

request for an instruction, and committed no error in doing so.

Regardless, the jury could make a reasoned moral response to voluntary

intoxication evidence through the future dangerousness issue. See Smith v.

Quarterman, 515 F.3d 392, 409-10 (5th Cir. 2008); Harris v. Cockrell, 313 F.3d

238, 242 (5th Cir. 2002). And the mitigation instruction given in Milam’s trial

complies with this Court’s Eighth Amendment requirements that the jury be

able to consider “‘as a mitigating factor, any aspect of a defendant’s character

or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death,’” Penry v. Lynaugh, 492 U.S.

302, 317 (1989) (Penry I) (citing Lockett v. Ohio, 438 U.S. 586, 604 (1978)), and

that the jury have a vehicle to “‘consider and give effect to [a defendant’s

mitigating] evidence in imposing sentence.’” Penry v. Johnson, 532 U.S. 782,

797 (2001 (Penry II) (citing Penry I, 492 U.S. at 319); see also Beazley v.

Johnson, 242 F.3d 248, 260 (5th Cir. 2001). This Court has said that “virtually

any mitigating evidence” can have some bearing on a person’s moral

blameworthiness. Graham v. Collins, 506 U.S. 461, 476 (1993); see also Blue v.

Thaler, 665 F.3d 647, 666 (5th Cir. 2011).

Therefore, there is no possibility that, without further instruction, the

jurors were left considering intoxication as only an aggravating factor. See

Petition at 27. Furthermore, given the horrific brutality Milam inflicted upon

a thirteen-month old child, it is unlikely that any juror would assess a

punishment less than death, regardless of the evidence proffered in mitigation.

For the forgoing reasons, the Fifth Circuit correctly concluded that

reasonable jurists could not debate the conclusion that trial counsel was not

deficient in his representation of Milam, and this failure to show a substantial

claim precludes a finding of cause and prejudice under Martinez.2 Because he

cannot excuse the procedural default of any claim, the Fifth Circuit did not err

in denying COA and certiorari review should be denied.

State habeas counsel was not deficient.

Milam also fails to establish “cause” to excuse the procedural default of

any claim because the performance of state habeas counsel was not deficient.

And because the instruction was neither required nor warranted, the trial

court committed no error in refusing the instruction, (Claim 2), and appellate counsel

was not ineffective for failing to raise claims regarding trial counsel’s performance or

the trial court’s determination, (Claim 3).

Martinez, 566 U.S. at 14. Appellate counsel’s effectiveness is measured by the

same Strickland standard applied to trial counsel: whether the performance

was objectively reasonable and whether any deficient performance prejudiced

the proceeding—that is, whether there was a reasonable probability that the

petitioner would have won on appeal. Smith v. Robbins, 528 U.S. 259, 285

(2000). State habeas counsel’s performance was objectively reasonable.

As discussed in the previous section, there is no reasonable probability

that, had state habeas counsel raised any of the now-proposed claims, Milam

would have obtained relief. Furthermore, state habeas counsel did not perform

in an objectively unreasonable manner in failing to raise the IATC claim

because trial counsel’s performance was more than reasonable. Trial counsel

filed a motion seeking the voluntary intoxication instruction, re-urged the

motion at the close of punishment, and asked the jury in closing arguments to

consider the evidence as mitigating. There is little else trial counsel could have

done, and state habeas counsel did not perform deficiently by pursing other

claims. And because the instruction was not warranted and the jury had a

vehicle to consider the evidence, state habeas counsel was not deficient in

failing to raise any related claim.

Because Milam cannot meet his burden of showing deficient performance

of state habeas counsel, he fails to demonstrate “cause” to avoid any procedural

default of this evidence. Martinez 566 U.S. at 14.

II.

The Fifth Circuit Properly Denied COA Because the District

Court’s Procedural Dismissal of Milam’s Intellectual-Disability

Claims was not Debatable. (Claims 5-6)

In two related claims, Milam argued that appellate and state habeas

counsel were ineffective for failing to argue in state court that (1) the evidence

at trial was sufficient to demonstrate Milam was intellectually disabled and

thus exempt from execution; and (2) the evidence showed he was functioning

at an emotional level of someone between the ages of eight and sixteen, and

thus ineligible for a death sentence under Roper v. Simmons, 543 U.S. 541

(2005). Petition at 20-22, 27-31. The Fifth Circuit did not err in concluding that

reasonable jurists could not debate the district court’s rejection of these claims.

Martinez does not excuse the default of non-IATC claims.

The district court found, once again, that Martinez does not extend to

allegations of ineffective assistance of appellate counsel. Petitioner’s Appendix

3, at 12-13; citing Davila, supra. And free-standing ineffective-assistance-ofstate-habeas-counsel

claims

remain

non-cognizable

federal

court.

Petitioner’s Appendix 3, at 12; Martinez, 566 U.S. at 17. Therefore, Claims Five

and Six were properly rejected as unexhausted and procedurally barred.

Petitioner’s Appendix 2, at 6; Petitioner’s Appendix 3, at 12-13.

Although Milam did not explicitly raise an IATC claim, as will be

discussed below, the district court alternatively considered and rejected

Milam’s arguments in terms of IATC. Petitioner’s Appendix 3, at 12-13. The

Fifth Circuit, however, concluded that Milam’s single reference to trial

counsel’s failure to challenge a State expert was insufficient to state a

cognizable IATC claim, and did not reach the merits. Petitioner’s Appendix 2,

at 6. The Fifth Circuit did not err.

In his statement of the issues, Milam challenged only the performance

of direct appeal and state habeas counsel. See COA Application at 12; Petition

at 20. Milam’s only complaint about trial counsel was buried deep within his

appellate-counsel argument, alleging only that trial counsel was ineffective for

failing to challenge—pursuant to Ex parte Hearn, 310 S.W.3d 424, 431 (Tex.

Crim. App. 2010)—State’s expert Dr. Proctor’s reliance on the Reynolds

Intellectual Assessment Scales (RIAS). COA Application at 45-46, 48. The

Fifth Circuit found that Milam’s conclusory statement regarding trial counsel’s

performance was insufficiently briefed. See United States v. Demik, 489 F.3d

644, 646 (5th Cir. 2007) (“[C]onclusory allegations are insufficient to raise

cognizable claims of ineffective assistance of counsel.” (quoting Miller v.

Johnson, 200 F.3d 274, 282 (5th Cir. 2000))). Milam reurges this argument now

but does not address the Fifth Circuit’s findings. Petition at 30. He thus fails

to show any error in this determination.

Because he does not raise an IATC claim, Martinez does not apply. For

the reasons already discussed in Section I.A., the Fifth Circuit did not err in

denying COA, and certiorari review should be denied.

The district court’s rejection of Milam’s intellectualdisability claim is undebatable. (Claim 5)

Although Milam did not explicitly raise an IATC claim, the district court

alternatively construed his claim in terms of trial and state habeas counsel’s

performance, concluding that Milam failed to show deficient performance of

either, and thus could not avoid the procedural bar through Martinez.

Petitioner’s Appendix 3, at 12-13. This alternative finding was reasonable.

Moore v. Texas, 137 S. Ct. 1309 (2017), does not apply.

As an initial matter, Milam cites generally to Moore v. Texas, 137 S. Ct.

1309 (2017), as grounds for granting COA of this issue. Petition at 21. This

Court decided Moore while Milam’s federal petition was pending. The district

court thus examined sua sponte the intellectual-disability instructions given

at trial, concluding that the trial court instructed the jury in a manner

“consistent with the definition of intellectual disability that the Supreme Court

described in Moore as generally accepted and uncontroversial.” Petitioner’s

Appendix 3, at 11-12 (citing Moore, 137 S. Ct. at 1045); see also Atkins v.

Virginia, 536 U.S. 304, 321 (2002). And since the trial court instructed the jury

on the three core elements of the definition of intellectual disability and none

of the rejected Briseno3 factors, see 4 CR 980-81, Moore’s criticism of Briseno

had no impact on the jury’s decision nor any ensuing state court decision. The

Ex parte Briseno, 135 S.W.3d 1, 8-9 (Tex. Crim. App. 2004).

court found no basis to reevaluate the case in light of Moore. Petitioner’s

Appendix 3, at 11-12. Milam does not challenge the trial court’s instruction or

the district court’s analysis. Mere citation to Moore does not provide a

compelling reason to grant certiorari review.

Trial counsel was not deficient in the presentation of

an intellectual-disability defense, and appellate

counsel committed no error in failing to raise related

claims.

Reasonable jurists could not debate the district court’s conclusion that

trial counsel’s pursuit and presentation of an intellectual disability defense did

not fall below an objective standard of reasonableness, and was neither

deficient nor prejudicial. Petitioner’s Appendix 3, at 12. The district court

concluded that trial counsel “vigorously pursued” this defense, presenting

evidence in support of all three elements, seeking and arguing for an

alternative definition of intellectual disability, and arguing an unsuccessful

motion for a directed verdict on the issue. Id. Despite counsel’s efforts, the

evidence did not the support an affirmative finding of intellectual disability.

First, the evidence does not support Milam’s claim of subaverage

intellectual functioning. State’s expert Dr. Proctor concluded that Milam’s test

scores failed to satisfy this factor. 54 RR 142-52; 55 RR 135-36. Dr. Proctor

reviewed psychological testing data from defense expert Dr. Andrews,4 which

Dr. Andrews evaluated Milam but did not testify.

included a WAIS-IV5 full-scale score of 71, and a Stanford-Binet IQ score of 80.

Dr. Proctor administered the RIAS, on which Milam scored an 80, and a second

WAIS-IV, on which Milam obtained a full-scale IQ score of 68. 53 RR 200-02;

55 RR 135-37, 140-41, 149-55. Dr. Proctor explained that the second WAIS-IV

of 68 should have been higher, given the “practice effect,” and attributed the

lower score to distraction. 55 RR 151-53. Dr. Proctor agreed with Dr. Andrews

that it was unusual for someone to score better on the Stanford-Binet than the

WAIS-IV. 55 RR 155-56. Both Dr. Andrews and Dr. Proctor administered effort

tests on which Milam did well on some but not on others; from this both doctors

surmised that Milam put forth less-than-adequate effort and was likely

distracted. 54 RR 146-49; 55 RR 157-59. Dr. Proctor opined that, given the

standard error of measurement (SEM), Milam was someone with below

average intellectual functioning, in the borderline range of intellectual

disability, but did not show significantly subaverage intellectual functioning.

55 RR 149-50, 160, 165.

Because the scores fell in the borderline range, Dr. Proctor relied on

additional information. 55 RR 150. Dr. Proctor found significant that Milam’s

reading comprehension scores were in the eighth-grade range, even though his

education ended at fourth grade, and persons with mild intellectual disability

Wechsler Intelligence Scale, Fourth Edition.

can read at most at a sixth-grade level. 55 RR 162-64. Dr. Andrews’s report is

consistent with Dr. Proctor’s opinion, and both agreed that a lack of education

can affect IQ testing; Dr. Proctor also suggested anxiety, depression, emotional

upset, and drug abuse could impact testing. 55 RR 165-66.

In contrast, defense expert Dr. Cunningham believed that Milam

satisfied the subaverage-intellectual-functioning factor. 53 RR 197. He relied

on the fact that an IQ score of 70 or below, with an SEM of five points, is

considered in the zone of intellectual-disability eligibility. 53 RR 199-200. Dr.

Cunningham discounted Dr. Proctor’s RIAS score of 80, describing that test as

not a “multi-subtest, fully-developed I.Q. test, but . . . a measure of intellectual

capability.” 53 RR 202. Dr. Cunningham stated that the WAIS-IV and the

Stanford-Binet are considered the more valid measures of IQ than the RIAS,

which he called a “screening measure.” 53 RR 202-03, 257-58; 54 RR 139-42.6

Dr. Cunningham’s testimony focused predominantly on the adaptivedeficits factor, finding concurrent deficits in adaptive behaviors in all eleven

categories listed in the DSM-IV, see 53 RR 203-38, 259-62, and all three

categories from the American Association on Intellectual and Developmental

Milam refers to uncalled State’s expert, Dr. Gripon, who found Milam had an

IQ between 65-70. Petition at 29. But the jury heard that Dr. Cunningham relied on

Dr. Gripon’s report, see 53 RR 207-08, 211, 215-19, 233, 244; 54 RR 224; 55 RR 207,

235; and the defense noted, in closing argument, the State’s failure to call Gripon, 56

RR 64. The jury nevertheless found Dr. Proctor more credible.

Disabilities definition of adaptive deficits, 53 RR 261-62. Dr. Cunningham

relied heavily on the testimony of Milam’s mother in reaching this decision.

See 53 RR 153-54, 194, 262; 54 RR 153.

In contrast, Dr. Proctor reviewed the evidence and talked to Milam’s

former employers, as well as his mother and sister. 55 RR 167-69. First, Dr.

Proctor disagreed with Dr. Cunningham’s use of the adaptive behavior rating

scale because it is difficult for a family member to accurately rate a person who

is incarcerated, and a family member is likely to show bias when answering

the questions. 55 RR 170-71, 259-60. Dr. Proctor also disagreed with the actual

adaptive behavior scale used by Dr. Cunningham because a formal assessment

of adaptive behavior should rate a person against a normal population, but Dr.

Cunningham’s test rated Milam against a group of developmentally disabled

individuals living within the community. 55 RR 171.

Second, Dr. Proctor disagreed with Dr. Cunningham’s results—which

relied heavily on Milam’s mother, Shirley—because Dr. Proctor believed

Shirley, deliberately portrayed her son as slow, and discouraged Milam’s sister

from accurately answering questions. 55 RR 172-74, 176. Shirley was also not

forthcoming about Milam’s drug problem. 55 RR 174-75.

Dr. Proctor also questioned Dr. Cunningham’s opinion that Milam

showed deficits in his work history or vocational ability, based upon testimony

of witnesses who knew of his work history. 55 RR 176-77. Dr. Proctor thought

it unlikely that an auto mechanic could be intellectually disabled given the

tasks performed. 55 RR 255-57. In Dr. Proctor’s opinion, Milam had some

adaptive deficits as well as strengths, but he did not show significant deficits

to the level required to meet the second prong of the intellectual disability test.

55 RR 177, 257. Dr. Proctor also considered whether Milam’s adaptive deficits

could be caused by other factors such as drug use, lack of opportunity, deprived

environment, or laziness. 55 RR 257-59.

Other witnesses supported Dr. Proctor’s findings. Ranger Ray testified

that Milam told him about his work history and demonstrated knowledge and

ability regarding his job; demonstrated he could both read and write, and hold

a normal conversation; and conducted himself appropriately. Ranger Ray did

not believe he was intellectually disabled. See 49 RR 72-76.

An employee of Community Healthcore, a provider of mental health care

and intellectual disability services who assessed Milam in jail, noted that

Milam’s appearance was appropriate, and he seemed of average intelligence

given his adequate vocabulary, his ability to answer questions appropriately,

and the lack of lapses in speech and memory. 55 RR 27-29. During the

evaluation, Milam seemed depressed, but not delusional or paranoid. 55 RR

30-32. A licensed counselor confirmed this assessment, and Milam was not

admitted for treatment. 55 RR 37.

Regarding Milam’s work history, Milam got his first job at M & M

Express Lube when he was fifteen and held that job for two years. 51 RR 270,

277. Later, Milam worked for Big 5 Tire & Auto, where he performed diagnostic

and mechanical work on cars, changed tires, and changed oil. 50 RR 22. His

supervisor, Bryan Perkins, testified that Milam’s performance was excellent

and he had no trouble fulfilling his duties. 50 RR 25-27. Perkins encouraged

Milam to work toward a promotion to salesman and began training Milam to

use the computer; Milam had no trouble learning. 50 RR 29-30; 54 RR 269-71.

Perkins fired Milam because he stopped coming to work, but stated that when

Milam was working, he was one of his best employees. 50 RR 31, 36-37. Gary

Jenkins trained Milam at Big 5, and said Milam could perform job tasks

without problems, operate machinery, and work with tools. 54 RR 263-69.

Milam did very well in training, did not have any safety issues, performed his

job duties, and kept the shop and tools clean without prompting. 54 RR 269.

Regarding Milam’s education and ability to learn, two of his grade school

teachers said that Milam was a slow student with low grades, but that he was

frequently absent due to health issues and an overprotective mother. 51 RR 9,

14, 26-27. One teacher opined that Milam could have been a better student if

he had attended school regularly. 51 RR 32-33, 35. Neither teacher recalled

referring Milam for a determination of intellectual disability or ADHD; rather,

Milam received treatment for a speech impediment. 51 RR 7-8, 13-15, 30-31.

Milam’s school records identified no disability other than speech impediment,

and reflected that he was routinely absent but never held back. 54 RR 163-66.

In the fourth grade, Milam’s parents removed him from school after he

was paddled by the school principal. 51 RR 237-38. They attempted to

homeschool him for about six months. 51 RR 239-40. Milam’s friend confirmed

that he was educationally slow because he was removed from school. 53 RR 12.

A special education teacher testified, from personal observation of Milam

outside of school, that nothing led her to believe there was anything wrong

with him and that his available school records did not indicate any disability

other than speech impediment. 54 RR 294-97, 305-10; SX 298, 300. Another

teacher said Milam could do the work she asked of him and attributed any

difficulties to his absences from school; she never felt the need to refer him for

intellectual-disability screening. 54 RR 313-15. Finally, the Special Education

Director for Rusk County Shared Services Arrangement examined Milam’s

records and testified that his last full and independent evaluation, dated

February 8, 2000, indicated a speech impediment only. 54 RR 321-23; SX 300.

Melynda Keenon evaluated Milam to determine his learning style for

homeschooling purposes and suggested that Milam sign up for online classes.

55 RR 78-82. Keenon said Milam could do the work but was easily distracted.

55 RR 83-84. Keenon saw no signs of intellectual disability. 55 RR 84-85.

Neighbor Sarah Hodges testified that she homeschooled her daughters

and, when Milam visited during school time, she gave him schoolwork. 5 RR

89-98, 117-18, 121. While Milam was behind, Sarah believed he was at the

same level as her daughter and foster-child who were Milam’s age. 55 RR 92,

100. Sarah said Milam liked to fix mechanical things and had a degree of

mechanical ability. 55 RR 103-04. Sarah never thought he was intellectually

disabled. 55 RR 114-15.

While Milam’s mother described him as slow and was the primary source

of information for Dr. Cunningham, she admitted on cross-examination that

Milam was evaluated for special education but only needed treatment for his

speech problem. 51 RR 340-41. Milam began crawling at seven or eight months,

talking at eight months, and walking at eleven or twelve months, 51 RR 34142; which Dr. Proctor said was normal, 55 RR 172-74. Also, Milam used the

computer and met Jesseca on MySpace. 51 RR 283, 286, 344. Shirley indicated

that Milam took care of Amora, 51 RR 288-89, 344, and cared for his ailing

father, 52 RR 117-18. Shirley also admitted Milam could take care of cars and

hold a job, 51 RR 344, and she told the grand jury that Milam voluntarily gave

his paycheck to his father every week so he would not spend it, 51 RR 347-48.

Finally, regarding onset of intellectual disability before the age of

eighteen, Dr. Proctor found no evidence to support this, noting Milam’s school

records. 55 RR 178, 180. Dr. Proctor also found significant a letter from the

school district indicating Milam had undergone a full and individual

evaluation in 2000, but noting no intellectual-disability diagnosis. 55 RR 17879. In contrast, Dr. Cunningham gave a conclusory answer that Milam’s

deficits originated before the age of eighteen. 53 RR 240.

Both sides presented evidence in support or against all three factors of

the intellectual disability test, but the jury ultimately concluded that Milam

did not meet his burden of proving by a preponderance of the evidence that he

is intellectually disabled. Had appellate counsel raised a claim regarding the

sufficiency of this evidence on direct appeal, it would have been unsuccessful

because the evidence did not support a finding of intellectual disability. The

jury’s determination was not against the “great weight” of the evidence. See

Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008) (In reviewing

sufficiency of the evidence to support jury determination on intellectual

disability, CCA determines whether failure to find intellectual disability “is ‘so

against the great weight and preponderance of the evidence so as to be

manifestly unjust.’”) (citing Gallo v. State, 239 S.W.3d 757, 770 (Tex. Crim.

App. 2007)). Dr. Proctor’s objective opinion—supported by Dr. Andrews’s

report, Milam’s school records, and the testimony of numerous witnesses who

knew Milam as a child and young adult—was far more credible than Dr.

Cunningham’s, which relied primarily on the biased observation of Milam’s

mother. See Ex parte Briseno, 135 S.W.3d at 18 (“[W]hile there is expert opinion

testimony in this record that would support a finding of [intellectual disability],

there is also ample evidence, including expert and lay opinion testimony, as

well as written records, to support the trial court’s finding that applicant failed

to prove that he is mentally retarded.”) “The jury [is] ultimately in the best

position to make credibility determinations and evaluate this conflicting

evidence.” Gallo, 239 S.W.3d at 774. Therefore, any claim by appellate counsel

regarding this evidence would have been unsuccessful.

Regarding Milam’s complaint that trial counsel was ineffective for failing

to challenge Dr. Proctor’s reliance on the RIAS, Petition at 30, Milam

misinterprets Ex parte Hearn as precluding reliance on anything other than

the Stanford-Binet, WAIS, or Kaufman Assessment Battery when assessing

intellectual disability. The CCA made no such finding. In Ex parte Hearn, the

petitioner attempted to substitute neuropsychological test results in place of

full-scale IQ scores. 310 S.W.3d at 430-31. The CCA rejected his request noting

that it would “significantly alter the current definition of [intellectual

disability],” and concluded that, while applicants can “present clinical

assessment to demonstrate why his or her full-scale IQ score is within that

margin of error, applicants may not use clinical assessment as a replacement

for full-scale IQ scores in measuring intellectual functioning.” Id. at 430-31.

Milam presents no proof that the RIAS is not an accepted test for measuring

IQ. See 54 RR 143-44 (manual on how to administer RIAS indicates test is not

abbreviated or short-form intellectual assessment); 55 RR 140-41 (Dr. Proctor

testimony that RIAS is “well-thought-of . . . comprehensive intelligence test”

that can be used to assess intellectual disability); see also Hall v. Quarterman,

No. 4:06-CV-436-A, 2009 WL 612559, at *39 (N.D.Tex., March 9, 2009)

(credible expert testimony established “RIAS is an accepted test for measure

IQ”); Hines v. Thaler, No. 3:06-CV-0320-G, 2010 WL 3291820, at *3-5 (N.D.

Tex., March 22, 2010) (RIAS administered by defense, admitted as evidence of

intellectual disability).

Regardless, trial counsel sufficiently challenged the reliability of the

RIAS through Dr. Cunningham’s testimony, establishing that he did not value

it as a testing instrument. 53 RR 202-03, 257-58; 54 RR 139-42. And Dr. Proctor

did not rely exclusively on the RIAS, but on all four test scores, including two

administrations of the WAIS-IV and the Stanford-Binet. Dr. Proctor addressed

Dr. Cunningham’s concerns about the RIAS, see 55 RR 141, 153, but ultimately

his testimony about that score covered three pages of the record and was

intertwined with references to the WAIS-IV and Stanford-Binet tests. See 55

RR 153-55. Therefore, even if trial counsel should have further challenged the

RIAS score, Dr. Proctor’s reliance on that test was minimal and in conjunction

with the three remaining scores that met with the CCA’s approval in Ex parte

Hearn, 310 S.W.3d at 428 n.7. Thus, Milam was not prejudiced from any

deficiency in trial counsel’s performance.

The jury properly considered the evidence.

Milam also cites to Hall v. Florida, 134 S. Ct. 1986 (2014), suggesting

the jury did not fully consider his intellectual-disability evidence but

impermissibly halted its examination upon hearing that Milam had an IQ

score above 70. Petition at 27-30. There is no support for this accusation.

As found by the district court, trial counsel presented evidence and

argued that he had satisfied all three factors of the intellectual disability test,

while the State presented evidence in rebuttal and argued that Milam had not

met his burden on all three factors. Petitioner’s Appendix 3, at 12. Neither

party focused on only one factor. Furthermore, the jury was clearly instructed

that it must find all three factors before it could answer “yes” to the intellectual

disability issue and that it must consider all the evidence in arriving at its

conclusion. Nothing from the record suggests that the jury ignored these

instructions. See Zafiro v. United States, 506 U.S. 534, 540-41 (1993).

Furthermore, the Fifth Circuit has specifically held that Hall does not

implicate Texas because “Texas has never adopted the bright-line cutoff at

issue in Hall.”7 Mays v. Stephens, 757 F.3d 211, 218 (5th Cir. 2014); see also

Hearn v. Thaler, 669 F.3d 265, 269 (5th Cir. 2012) (allowing SEM

The Hall Court found Florida’s intellectual-disability scheme unconstitutional

because it adopted a “strict IQ test score cutoff of 70,” without allowing SEM margins,

and foreclosing presentation of other evidence indicating petitioner’s faculties were

limited where evidence indicated an IQ score above 70. 134 S. Ct. at 1994.

approximately five points in either direction when assessing IQ). And, unlike

Florida, Texas does not restrict the presentation of evidence when an IQ score

rises above 70. Mays, 757 F.3d at 218; see also Garcia, 757 F.3d at 226. Indeed,

Hall did not identify Texas as one of the states impacted by this decision. See

134 S. Ct. at 1996-97. Thus, Hall has no application to the Texas system. And,

as applied to this case, Milam was still permitted to present evidence of

adaptive deficits and early onset despite his above-70 test scores. Milam’s Hall

argument was foreclosed by Circuit precedent and contrary to the facts.

Finally, despite Milam’s selective quotation from Ex parte Hearn, 310

S.W.3d at 431, Petition at 28, (the CCA “interprets the ‘about 70 language of

the AAMR’s definition of [intellectual disability] to represent a rough ceiling,

above which a finding of [intellectual disability] in the capital context is

precluded”),

Hearn

specifically

requires

application

SEM

approximately five points when assessing IQ, as well as evidence of significant

limitations in adaptive functioning. 310 S.W.3d at 428. Therefore, unlike the

situation in Hall, Texas does not cease inquiry or development of a defendant’s

intellectual disability defense simply because he receives an IQ score above 70.

See also Ex parte Cathey, 451 S.W.3d 1, 10-11 & n.21 (Tex. Crim. App. 2014)

(allowing evidentiary development where petitioner had IQ score of 77; citing

Hall’s rejection of firm cut-off score, explaining that subaverage intellectual

functioning is a flexible assessment). Any effort by appellate counsel to raise

this issue would have been unsuccessful.

State habeas counsel was not deficient.

Finally, apart from Milam’s failure to demonstrate “prejudice” through

a “substantial claim” for relief, Milam also fails to establish “cause” to excuse

his procedural default. Martinez, 566 U.S. at 14. State habeas counsel’s

performance was objectively reasonable. Smith, 528 U.S. at 285. As noted, trial

counsel did not perform deficiently in pursuit of this defense therefore habeas

counsel was not deficient for failing to pursue any claim. And because the

evidence did not support an affirmative answer to the third special issue, there

was no likelihood of success on appeal had appellate counsel challenged the

sufficiency of the evidence. Milam cannot demonstrate the ineffectiveness of

state habeas counsel, and the district court’s conclusion that Milam cannot

overcome the procedural bar was undebatable. Petitioner’s Appendix 3, at 12.

Milam is not entitled to relief under Roper. (Claim 6)

Milam argues that, because the evidence was sufficient to demonstrate

that he was functioning at an emotional level below the age of eighteen, his

death sentence violates Roper’s prohibition against executing a person who

committed a crime while under the age of 18, and both appellate and state

habeas counsel were deficient for failing to pursue related claims on appeal.

Petition at 30-31. Although not the issue raised, the district court found that

trial counsel pursued this issue at trial and was, thus, not ineffective.

Petitioner’s Appendix 3, at 13 (citing 2 CR 312-24; 55 RR 286-87).

The district court alternatively concluded, and the Fifth Circuit agreed,

this claim is meritless because any extension of Roper to emotional immaturity

is foreclosed by Supreme Court and Fifth Circuit precedent. Petitioner’s

Appendix 2, at 6; Petitioner’s Appendix 3, at 13. Milam fails to demonstrate

any error in this finding.

In Roper, this Court created a bright-line rule limiting its Eighth

Amendment prohibition against execution, holding, “[t]he age of 18 is the point

where society draws the line for many purposes between childhood and

adulthood. It is, we conclude, the age at which the line for death eligibility

ought to rest.” 543 U.S. at 574. The Fifth Circuit has clearly foreclosed

extension of Roper beyond chronological age. United States v. Bernard, 762

F.3d 467, 482-83 (5th Cir. 2014); Doyle v. Stephens, 535 F. App’x 391, 395-96

(5th Cir. 2013); Parr v. Quarterman, 472 F.3d 245, 261 (5th Cir. 2006). Other

circuits have similarly rejected claims arguing a “developmental age” theory.

Melton v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1234, 1237 (11th Cir. 2015); In re

Garner, 612 F.3d 533, 535-36 (6th Cir. 2010; United States v. Mitchell, 502 F.3d

931, 981 (9th Cir. 2007.

Milam argues this issue is worthy of consideration because this Court

has not specifically decided it. Petition at 31. But even the Eleventh Circuit

case Milam cites in support finds it undebatable that the Florida Supreme

Court reasonably applied clearly established federal law in rejecting the

petitioner’s Roper-based emotional-age argument. Melton, 778 F.3d at 1237.

There is simply no support for Milam’s emotional immaturity argument,

thus appellate counsel was not ineffective for failing to raise this issue on

appeal. See Smith v. Murray, 477 U.S. 527, 536 (1986 (process of “‘winnowing

out weaker arguments on appeal and focusing on’ those more likely to prevail,”

the hallmark of effective appellate advocacy.” (quoting Jones v. Barnes, 463

U.S. 745, 751-52 (1983). And because this claim has been squarely rejected by

the Fifth Circuit, there is no reasonable probability that Milam would have

won on appeal. Robbins, 528 U.S. at 285.

For these reasons, even if Martinez applied to this claim, state habeas

counsel was not ineffective for failing to raise these frivolous allegations.

Milam can demonstrate neither “cause” nor “prejudice” to excuse the

procedural default. The Fifth Circuit did not err in denying COA.

CONCLUSION

The Fifth Circuit correctly concluded that reasonable jurists could not

debate the district court’s rejection of these claims as procedurally barred. For

all the reasons discussed above, the Court should deny Milam’s petition for a

writ of certiorari.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

ADRIENNE MCFARLAND

Deputy Attorney General

for Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

/s/ Tomee M. Heining

*TOMEE M. HEINING

*Attorney in charge

Assistant Attorney General

Texas Bar No. 24007052

Office of the Attorney General

Criminal Appeals Division

P. O. Box 12548, Capitol Station

Austin, Texas 78711-2548

tomee.heining@oag.texas.gov

Telephone: (512) 936-1600

Telecopier: (512) 320-8132

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.