Petition for Writ of Certiorari — Shelton Denoria Jones, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefSep 11, 2018
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No. ___________ (CAPITAL CASE)
In the
Supreme Court of the United States
____________________________
SHELTON DENORIA JONES,
Petitioner,
vs.
LORIE DAVIS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent.
____________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
____________________________
APPENDICES TO PETITION FOR A WRIT OF CERTIORARI
____________________________
David R. Dow
UNIVERSITY OF HOUSTON LAW CENTER
4604 Calhoun Rd.
Houston, Texas 77204
TEL: (713) 743-2171
ddow@central.uh.edu
Jared Tyler *
TYLER LAW FIRM, PLLC
P.O. Box 230804
Houston, Texas 77223
TEL: (832) 606-2302
jptyler@tylerlawfirm.org
Danalynn Recer
GULF REGION ADVOCACY CENTER
2307 Union St.
Houston, Texas 77007
TEL: (713) 869-4722
DLRecer@aol.com
* Counsel of Record
Counsel for Petitioner
TABLE OF APPENDICES
1
2
3
Jones v. Davis, 890 F.3d 559 (5th Cir. May 15,
2018)
Memorandum Opinion and Order, Jones v Davis,
No. 09-cv-01825 (S.D. Tex. Oct. 28, 2015)
Jones v. Stephens, 612 Fed. App’x 723, No. 1470007 (5th Cir. May 20, 2015)
APPENDIX
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-70040
SHELTON DENORIA JONES,
FILED
May 15, 2018
Lyle W. Cayce
Clerk
Petitioner–Appellant,
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent–Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before OWEN and SOUTHWICK, Circuit Judges.*
PRISCILLA R. OWEN, Circuit Judge:
Shelton Denoria Jones’s petition for panel rehearing is denied. The
panel’s prior opinion, issued March 27, 2018, is withdrawn. This opinion is
substituted in its place.
Jones was convicted of the capital murder of a police officer and
sentenced to death in Texas state court. Jones asserts he is entitled to federal
habeas relief on his claim that the press coverage of the crime and the presence
* Judge Edward Prado, a member of the original panel in this case, retired from the
Court on April 2, 2018, and therefore did not participate in the revised opinion. The new
opinion is issued by a quorum. 28 U.S.C. § 46(d).
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of uniformed police officers in the gallery during his trial created an inherently
prejudicial atmosphere that violated his right to a fair trial. The federal
district court denied Jones’s request for discovery on this issue and denied
relief on the merits, but granted a Certificate of Appealability (COA). We
affirm the judgment of the district court.
In prior proceedings Jones sought and has been granted a new
sentencing phase on his claim that, in violation of Penry v. Lynaugh, 1 the Texas
special issues did not provide an adequate vehicle for the jury to give full
consideration to his mitigation evidence. 2
His fair trial claim therefore
pertains only to the guilt/innocence phase of his trial.
I
Jones was charged with capital murder of a police officer in Houston,
Texas. Media coverage followed the crime, including an editorial calling for
charges to be filed against Jones and a letter to the editor suggesting Jones be
hung from a “tall tree” with a “short rope.” Jones moved unsuccessfully for a
change of venue to diminish the effects of the pre-trial publicity. Uniformed
officers attended each day of Jones’s trial, in varying numbers. Jones was
convicted of capital murder and sentenced to death.
The Texas Court of
Criminal Appeals (TCCA) affirmed Jones’s conviction and sentence on direct
appeal. 3
The TCCA appointed habeas counsel. With leave of the state habeas
court, Jones submitted an incomplete application for state habeas relief in
order to comply with newly-enacted filing deadlines under the Antiterrorism
and Effective Death Penalty Act (AEDPA). 4 As the state-law imposed deadline
1 492 U.S. 302 (1989).
2 Jones v. Stephens, 541 F. App’x 399, 400 (5th Cir. 2013) (per curiam).
3 Jones v. State, No. 71,369 (Tex. Crim. App. May 4, 1994) (en banc) (not designated
for publication).
4 Pub. L. No. 104-132, 110 Stat. 1214 (1996).
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approached, Jones filed an amended application that raised several grounds
for relief but did not raise the fair trial claim presented here. Attributing the
omission of the fair trial claim to a “fault in the word processor used by his
counsel,” Jones then filed—before the state-law deadline had passed—a
document styled Errata and Corrections to Amended Application, which
included the claim at issue here. After the deadline had passed, Jones filed a
supplemental application consolidating both previous filings for ease of
reference. This petition included evidence of the officers’ attendance at the
trial, but much of the evidence of media coverage that was included in Jones’s
federal petition was not included in his state application.
The state trial court recommended that the TCCA deny relief on all of
Jones’s claims. The trial court’s recommendation noted that Jones “failed to
urge [the fair trial claim] as a point of error on direct appeal” and that in any
event, Jones had not shown that the presence of the officers was either
inherently or actually prejudicial.
The TCCA rejected Jones’s claim on
procedural grounds. Determining, without reference to the Errata, that the
fair trial claim was not raised until after the filing deadline for the state habeas
petition, it concluded that the supplemental application was a subsequent
application for writ of habeas corpus under section 5 of Texas Code of Criminal
Procedure article 11.071 and dismissed the fair trial claim as an abuse of the
writ. 5
The TCCA “also expressly reject[ed] all findings and conclusions
related” to the fair trial claim. 6
Jones filed his initial federal habeas petition in 2006, and, after various
procedural delays not relevant here, the district court granted Jones a new
5 Jones v. Texas, Nos. WR-62,589-01 & WR-62,589-02, slip op. at 2 (Tex. Crim. App.
Oct. 26, 2005) (per curiam) (not designated for publication).
6 Id.
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sentencing hearing based on his Penry claim and denied the remaining claims,
including the fair trial claim. 7 The district court held that federal review of
the fair trial claim was barred because the TCCA’s dismissal was based on an
independent and adequate state procedural ground, but it granted a certificate
of appealability (COA) on that issue. 8 This court affirmed the district court’s
grant of relief on Jones’s Penry claim. 9 Because the district court granted the
COA on the fair trial claim without making the required determination that
“reasonable jurists could find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” we vacated the COA and
remanded the case for the district court to consider the question in the first
instance. 10 We dismissed or denied Jones’s cross-appeal and applications for
COAs on other claims. 11 On remand, the district court issued a COA supported
by appropriate findings. 12
We subsequently held Jones’s fair trial claim was not procedurally
barred and remanded the case to the district court for a decision on the
merits. 13 The district court ordered supplemental briefing but denied Jones’s
motions for discovery and investigative services.
The district court
subsequently determined that Jones was not entitled to relief on the fair trial
claim but issued a COA. 14
7 Jones v. Thaler, 2011 WL 1044469, at *5, *18 (S.D. Tex. Mar. 3, 2011).
8 Id. at *7.
9 Jones v. Stephens, 541 F. App’x 399, 400 (5th Cir. 2013) (per curiam).
10 Id. at 409-10.
11 Id. at 413.
12 Jones v. Stephens, 2014 WL 243251, at *2 (S.D. Tex. Jan. 22, 2014).
13 Jones v. Stephens, 612 F. App’x 723, 729-30 (5th Cir. 2015) (per curiam).
14 Jones v. Stephens, 2015 WL 6553855, at *5-6 (S.D. Tex. Oct. 28, 2015).
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II
The State contends that Jones’s fair trial claim is barred by the nonretroactivity principle announced in Teague v. Lane, which precludes the
creation of “new constitutional rules of criminal procedure” on federal habeas
review. 15 The State argues that Jones seeks to have this court recognize the
applicability of the test announced in Holbrook v. Flynn 16 to purely private
spectator activity.
Jones counters that he relies on a rule of general
applicability to a specific set of facts but does not seek a new rule. 17 The State
acknowledges that it failed to raise this issue before the district court. This
court has previously determined, however, that “absent a compelling,
competing interest of justice in a particular case, a federal court should apply
Teague even though the State has failed to argue it.” 18
It is not clear whether the challenged conduct is purely private. Jones’s
primary complaint is that the Houston Police Department officers were in their
uniforms during his trial. At the very least, this raises a question as to whether
there was some state involvement in the officers’ presence at trial. But this
court is not the proper court to consider this fact-bound issue in the first
instance. The State’s failure to present this issue in the district court, despite
raising it in a prior appeal before this court, and despite the district court’s
order to provide supplemental briefing on the fair trial claim, has prevented
the development of the record on this issue. Given this lack of development
below, we pretermit the Teague analysis and review the district court’s decision
on the merits.
15 Teague v. Lane, 489 U.S. 288, 316 (1989) (plurality opinion); see also Chaidez v.
United States, 133 S. Ct. 1103, 1107 (2013).
16 475 U.S. 560, 567-68 (1986).
17 See Chaidez, 133 S. Ct. at 1107.
18 Jackson v. Johnson, 217 F.3d 360, 363 (5th Cir. 2000).
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III
The TCCA expressly denied Jones’s fair trial claim on procedural
grounds and rejected “all findings and conclusions” made by the trial court with
respect to that claim. 19 The State asserts that much of the media-related
evidence Jones presented in his federal habeas petition should not be
considered because it was not presented to the state court and is therefore
barred from consideration under 28 U.S.C. § 2254(e)(2).
“Although state
prisoners may sometimes submit new evidence in federal court, AEDPA’s
statutory scheme is designed to strongly discourage them from doing so.” 20
AEDPA limits a federal habeas court’s review of a claim that has been
adjudicated on the merits in state court to the state court record. 21 However,
the highest state court expressly rejected all findings and conclusions made by
the lower habeas court and decided the case on procedural grounds. 22 Because
there was no decision on the merits, 28 U.S.C. § 2254(d) is inapplicable to this
claim. 23 Similarly, because the TCCA decided the case on procedural grounds,
there was no “determination of a factual issue made by a State court” to which
the federal court could have deferred under § 2254(e)(1). 24
19 Jones v. Texas, Nos. WR-62,589-01 & WR-62,589-02, slip op. at 2 (Tex. Crim. App.
Oct. 26, 2005) (per curiam) (not designated for publication).
20 Cullen v. Pinholster, 563 U.S. 170, 186 (2011).
21 28 U.S.C. § 2254(d).
22 Jones, slip op. at 2.
23 See Pinholster, 563 U.S. at 185-86 (explaining the difference in applicability of
§ 2254(d)(1) to cases decided on the merits and of § 2254(e)(2) to cases not decided on the
merits in state court); see also Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999) (determining
AEDPA to be inapplicable when the state court rejected the claim on purely procedural
grounds).
24 28 U.S.C. § 2254(e)(1) (affording state court determinations of fact a presumption of
correctness); see Williams v. Quarterman, 551 F.3d 352, 358-59 (5th Cir. 2008) (explaining
that “a state habeas trial court’s factual findings do not survive review by the [TCCA] where
they [are] neither adopted nor incorporated into the appellate court’s peremptory denial of
relief”); see also Williams v. Taylor, 529 U.S. 420, 434-37 (2000) (holding that a prisoner who
does not diligently endeavor to develop material facts in state court cannot obtain an
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The State points out that § 2254(e)(2) applies regardless of whether there
was a merits determination in state court. 25 Section 2254(e)(2) provides that
federal district courts “shall not hold an evidentiary hearing” to consider
evidence if the habeas applicant “has failed to develop the factual basis of a
claim in State court proceedings” unless the stringent requirements of
§ 2254(e)(2)(A) and (B) are met. 26 The Supreme Court has established that an
applicant “fail[s] to develop” the factual basis of claim if there is a “lack of
diligence” in presenting the evidence in state court. 27
Section 2254(e)(2)
accordingly requires us to determine whether Jones was diligent in attempting
evidentiary hearing in federal court); Pinholster, 563 U.S. at 185-86 (explaining the difference
in applicability of § 2254(d)(1) and § 2254(e)(2), and noting that the latter retains significance
for cases not decided on the merits in state court); Fisher, 169 F.3d at 300 (holding that a
state court’s “awareness of, and explicit reliance on, a procedural ground to dismiss [the
petitioner’s] claim is determinative . . . and [the court] therefore cannot apply the AEDPA
deference standards to the state court’s findings and conclusions”).
25 See Pinholster, 563 U.S. at 185-86.
26 28 U.S.C. § 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
27 Williams, 529 U.S. at 432, 434-37 (“For state courts to have their rightful
opportunity to adjudicate federal rights, the prisoner must be diligent in developing the
record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do
so, himself or herself contributing to the absence of a full and fair adjudication in state court,
§ 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court,
unless the statute's other stringent requirements are met. Federal courts sitting in habeas
are not an alternative forum for trying facts and issues which a prisoner made insufficient
effort to pursue in state proceedings.”); see also Pinholster, 563 U.S. at 186; McDonald v.
Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998).
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to present the media reports in the state proceeding. 28 We conclude that he
was not.
Jones failed to exercise due diligence by not introducing the media
reports until more than a decade after they were written, his attempts to
obtain discovery and investigative services notwithstanding. “Diligence for
purposes of the opening clause [of § 2254(e)(2)] depends upon whether the
prisoner made a reasonable attempt, in light of the information available at
the time, to investigate and pursue claims in state court.” 29 When the evidence
the applicant seeks to present before a federal tribunal could have been easily
obtained and introduced to the state court, the due diligence requirement is
not satisfied. In Holland v. Jackson, 30 for example, a habeas applicant sought
to introduce testimony to impeach the credibility of an eyewitness seven years
after his conviction. 31 The Supreme Court observed that under § 2254(e)(2), it
was “difficult to see . . . how [the applicant] could claim due diligence given the
7-year delay.” 32 Similarly, in Dowthitt v. Johnson, this court held that because
the applicant could have easily obtained and introduced the affidavits from
family members that he sought to introduce in federal court, he did not exercise
due diligence merely by requesting an evidentiary hearing in state habeas
proceedings. 33 A “reasonable person in [the applicant’s] place,” we said, would
have obtained the inexpensive affidavits and attempted to present them in
state court. 34
28 See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (“[T]he petitioner must
be diligent in pursuing the factual development of his claim.”).
29 Williams, 529 U.S. at 435.
30 542 U.S. 649 (2004).
31 Id. at 653.
32 Id.
33 230 F.3d at 758.
34 Id.
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In this case, all of the articles that Jones seeks to produce were written
in 1991. Jones submitted his proposed conclusions of law on his fair trial claim
in the state-court proceedings on March 24, 2003—twelve years later—without
mentioning the articles. Jones did not introduce the articles until he filed his
federal habeas petition on June 11, 2009, approximately eighteen years after
the reports were published.
Jones’s lengthy delay in producing publicly-
available news reports does not constitute due diligence. That Jones requested
discovery and investigative services in federal district court does not mitigate
his lack of diligence in obtaining the eighteen-years-old media reports. 35 The
publicly-available reports could have been obtained easily and inexpensively
in the twelve years before Jones submitted his proposed conclusions of law to
the state court.
Because Jones’s lack of diligence means he “failed to develop the factual
basis of a claim,” we must determine whether the media reports Jones proffers
in his federal habeas petition meet the stringent requirements of § 2254(e)(2).
They do not. Jones does not, and could not, allege that the media reports
concern “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” 36
With regard to § 2254(e)(2)(A)(ii), the media reports Jones seeks to introduce
existed at the time of the state proceeding, so they do not constitute “a factual
predicate that could not have been previously discovered through the exercise
of due diligence.” 37 Because the media reports in Jones’s federal petition do
not satisfy the requirements of § 2254(e)(2)(A)’s conjunctive test, we do not
consider the reports.
35 See id.
36 28 U.S.C. § 2254(e)(2)(A)(i).
37 Id. § 2254(e)(2)(A)(ii); Williams v. Taylor, 529 U.S. 420, 435-36 (2000).
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We reach this conclusion even though the text of § 2254(e)(2) expressly
limits federal courts from conducting “evidentiary hearings” and Jones sought
only to include documentary evidence of the media reports in his federal
habeas petition.
In Holland, the Supreme Court rejected the applicant’s
attempts to introduce new evidence through means of a motion for a new trial
and observed that § 2254(e)(2)’s restrictions on federal-court fact-finding
“apply a fortiori when a prisoner seeks relief based on new evidence without
an evidentiary hearing.” 38 Accordingly, § 2254(e)(2) bars federal courts from
considering the media reports included in Jones’s federal petition.
IV
After carefully reviewing the record, we conclude that Jones’s fair trial
claim does not warrant habeas relief.
A
“A fair trial in a fair tribunal is a basic requirement of due process.” 39
Whenever a courtroom arrangement is challenged as inherently prejudicial,
the question must be not whether jurors actually articulated a consciousness
of some prejudicial effect, but rather whether “an unacceptable risk is
presented of impermissible factors coming into play.” 40
A federal court
presented with a claim that the trial atmosphere was inherently prejudicial
may only “look at the scene presented to jurors and determine whether what
they saw was so inherently prejudicial as to pose an unacceptable threat to the
38 Holland v. Jackson, 542 U.S. 649, 653 (2004); see also Boyko v. Parke, 259 F.3d 781,
790 (7th Cir. 2001) (“When expansion of the record is used to achieve the same end as an
evidentiary hearing, the petitioner ought to be subject to the same constraints that would be
imposed if he had sought an evidentiary hearing.”).
39 Irvin v. Dows, 366 U.S. 717, 722 (1961) (quoting In re Murchison, 349 U.S. 133, 136
(1955)).
40 Holbrook v. Flynn, 475 U.S. 560, 570 (1986) (quoting Estelle v. Williams, 425 U.S.
501, 505 (1976)).
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defendant’s right to a fair trial.” 41 The reviewing court should consider the
totality of the circumstances in rendering its decision. 42 The Supreme Court
addressed the presence of uniformed security personnel in the courtroom in
Holbrook v. Flynn. Determining that the officer’s presence was not inherently
prejudicial, 43 the Court noted that a “wide[] range of inferences” might be
drawn from officer presence in the courtroom, contrasting prior cases that had
focused on “unmistakable mark[s] of guilt” 44 such as prisoner attire, shackles,
and gags. 45 Without “minimiz[ing] the threat that a roomful of uniformed and
armed policemen might pose to a defendant’s chances of receiving a fair trial,” 46
the Court noted that a “case-by-case” approach, rather than a presumption of
prejudice, was appropriate. 47
Whether the officers’ presence created an
“unacceptable risk” of “impermissible factors coming into play” should be based
on an evaluation of the scene presented to the jury. 48 The mere presence of
four uniformed state troopers “quietly sitting in the first row of a courtroom’s
spectator section” was insufficient to create such a risk. 49
More recently, in Carey v. Musladin, the Supreme Court considered a
state court ruling that buttons displaying the victim’s image worn by a victim’s
family during trial did not deny a defendant his right to a fair trial. 50 The state
appellate court applied the test announced in Flynn and, though noting that
41 Id. at 572.
42 See Sheppard v. Maxwell, 384 U.S. 333, 352 (1966).
43 Flynn, 475 U.S. at 569, 572.
44 Id. at 569, 571 (citing Williams, 425 U.S. at 518).
45 Id. at 568-69 (noting various practices that are a threat to the fairness of the trial,
including forcing the defendant to appear in prisoner’s clothing throughout trial and binding
and gagging the defendant before the jury).
46 Id. at 570-71.
47 Id. at 569.
48 Id. at 570-71.
49 Id. at 571.
50 549 U.S. 70 (2006).
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button-wearing should be discouraged, determined that the buttons had not
resulted in inherent prejudice to the defendant. 51 On federal habeas review,
the Ninth Circuit, citing its own precedent, concluded that the state court’s
application of Flynn “was contrary to, or involved an unreasonable application
of, clearly established federal law.” 52 The Supreme Court pointed out that the
application of the test to spectators was “an open question” in its jurisprudence
and observed that the “lack of guidance” on the issue had resulted in divergent
treatment of spectator conduct claims in lower courts. 53 It vacated the Ninth
Circuit’s judgment because “[n]o holding of [the Supreme Court] required the
California Court of Appeal to apply the test of Williams and Flynn” to spectator
conduct. 54
In Musladin, the Supreme Court suggested that Flynn might not apply
to claims involving purely spectator conduct, but it did not affirmatively
resolve that issue, nor did it have occasion to consider the test’s applicability
to cases involving conduct, like that at issue in this case, that is neither clearly
private nor clearly state action. 55 The Supreme Court has recognized that a
“carnival atmosphere,” 56 “considerable disruption,” 57 or a case in which the
trial judge “los[es] his ability to supervise [the trial] environment” 58 may
provide a basis for relief in contexts involving the conduct of the press and the
public during trial, 59 suggesting activity not attributable to the state may
51 Id. at 73.
52 Id. at 73-74 (quoting 28 U.S.C. § 2254(d)(1)).
53 Id. at 76 (suggesting that Flynn and Williams might apply only to state-sponsored
practices, but concluding only that the state court had not unreasonably applied the Flynn
test in denying relief to the petitioner).
54 Id. at 77.
55 Id. at 76.
56 Sheppard v. Maxwell, 384 U.S. 333, 358 (1966).
57 Estes v. Texas, 381 U.S. 532, 536 (1965).
58 Sheppard, 384 U.S. at 355.
59 Estes, 381 U.S. at 536.
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provide a viable basis for a due process claim premised on the violation of the
right to a fair trial.
Our court has not previously assessed the merits of a fair trial claim
premised on the conduct of persons in the gallery, though we did note in Mata
v. Johnson that “the combined effects of excessive pretrial publicity,
conspicuous presence of heavily armed security personnel in and around the
courtroom, installation of surveillance and metal detectors for the duration of
the trial, and the intimidating presence of 30–40 uniformed prison guards as
spectators in the courtroom throughout [the] trial” could provide the basis of a
cognizable constitutional claim. 60 Though we ultimately remanded the case
for the district court to hold an evidentiary hearing, there was no further
development of the fair trial claim in federal court. 61
Jones relies heavily on the Eleventh Circuit’s opinion in Woods v.
Dugger, referenced by this court’s opinion in Mata. 62 The petitioner in Woods
was tried for the murder of a prison guard. 63 The trial occurred in a rural
county of just over 10,000 people, one-third of whom were prisoners, where the
prison system constituted a substantial portion of the local economy. 64 The
jurors were all drawn from the county where the guard was killed and where,
prior to the trial, the officer’s death had “bec[o]me a focal point for the lobbying
efforts” of the local correctional facility’s employee union. 65 The officer’s sister
had circulated a petition, which garnered more than 5,000 signatures, calling
60 Mata v. Johnson, 99 F.3d 1261, 1271 (5th Cir. 1996) (citing Woods v. Dugger, 923
F.2d 1454 (11th Cir. 1991)), vacated in part on reh’g, 105 F.3d 209 (5th Cir. 1997).
61 See Mata v. Johnson, 210 F.3d 324 (5th Cir. 2000) (considering petitioner’s
competency to waive collateral review);
62 See Mata, 99 F.3d at 1271 n.34.
63 Woods, 923 F.2d at 1455.
64 Id. at 1457-58.
65 Id. at 1458 (noting that most of the jurors who were excused either had relatives or
close friends who worked in the prison system, knew of the case, or knew witnesses).
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for the death penalty for those who kill prison guards. 66 Of the jurors finally
selected, only four neither knew of the case nor had relatives working in the
prison system. 67
Photographs of the trial showed that the gallery was
completely filled with spectators, about half of whom were uniformed prison
guards, 68 and the trial judge had to admonish the spectators to be quiet several
times. 69
The Eleventh Circuit determined that “prejudice ar[ose] from the
presence of the uniformed corrections officers in the context of a trial being
held in the midst of an angry community.” 70 The court distinguished the
presence of the correctional officers from the additional security in Flynn,
noting that the correctional officers in this case were not providing security or
escorting witnesses; rather, they were present solely to “show solidarity with
the killed correctional officer” and to communicate to the jury that they
“wanted a conviction followed by the imposition of the death penalty.” 71 This
scene, combined with the extensive pre-trial publicity, resulted in the
conclusion that the trial presented an extreme case that posed “an
unacceptable risk [of] impermissible factors coming into play.” 72
In Hill v. Ozmint, the Fourth Circuit addressed a fair trial claim based
on a large number of uniformed officers in the courtroom and courthouse
during trial. 73 Hill was on trial for the murder of a police officer in a small
66 Id. (noting, however, that not all the signatures were from the county where the
officer was killed).
67 Id.
68 Id.
69 Id. at 1459.
70 Id.
71 Id. at 1459-60.
72 Id. at 1459 (quoting Holbrook v. Flynn, 475 U.S. 560, 570 (1986)) (alteration in
original).
73 339 F.3d 187, 197-98 (4th Cir. 2003).
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town and challenged the fairness of his trial in light of pretrial publicity and
“rampant . . . emotionalism” in a small community. 74 Though the community
was “greatly impacted,” nothing in the record suggested the courtroom was
filled with officers or that those present were not dispersed. 75 Further, the
witnesses were not sequestered, and many officers testified, making their
presence in court less likely to suggest the defendant’s guilt. 76 The Court
determined that the scene presented to the jury did not unacceptably threaten
Hill’s right to a fair trial. 77
In United States v. Thomas, the Seventh Circuit addressed a fair trial
claim premised on the presence of uniformed firefighters, applying many of the
same factors considered in similar cases, but without citing Flynn. 78 The
victim’s son was a firefighter, and approximately twenty uniformed firefighters
attended closing arguments. 79
Though there were no objections to their
presence at closing, the defense moved for a new trial after the verdict. 80 The
appellate court noted that no reference to the firefighters’ presence in the
courtroom had been made in closing arguments, they had not in any way
disrupted the proceedings, and nothing suggested they were there for any
reason other than to show support for one of their own. 81 The court also noted
that no evidence was put forth as to the size of the courtroom or what
proportion of the spectators were firemen. 82 The court concluded that the
defendant’s fair trial claim should be denied. 83
74 Id. at 198 (internal quotation marks omitted).
75 Id. at 200.
76 Id.
77 Id.
78 794 F.3d 705, 710 (7th Cir. 2015).
79 Id.
80 Id.
81 Id.
82 Id.
83 Id.
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B
In the present case, the district court found that “uniformed police
officers were a visible portion of the spectators in th[e] case,” ranging from “one
quarter [to] one-third of the spectators,” but that nothing “suggest[ed] that
their presence or any pretrial publicity had any undue influence or effect on
the jury.”
The district court further reasoned that “Jones was tried in
Houston—one of the largest cities in the United States—with a jury pool drawn
from the even larger Harris County, Texas” and that “Jones points to no
evidence that any juror had a friend or relative who was a police officer.”
Resting much of its opinion on a comparative analysis of the Eleventh Circuit
decision in Woods, the district court concluded that Jones “fail[ed] to
demonstrate inherent prejudice in his trial” and denied habeas relief.
We note that the record does not fully support the district court’s
assertion that no jurors had friends of relatives who were officers; however,
this discrepancy does not change the outcome of this case because only
inherent prejudice has been alleged.
Our independent review of the record
supports the district court’s other conclusions.
Jones’s evidence shows that uniformed officers attended each day of
Jones’s trial. The number of officers in attendance varied, but the highest
estimates were “between fifteen and twenty five,” comprising between one-fifth
and one-third of the spectators. According to one account, officers often arrived
early to reserve the first two rows of seating, and some stood against the
courtroom walls when no seating was available.
Jones’s argument that the jury could only infer from the officers’
presence that they demanded a guilty verdict is unpersuasive, not least
because it contradicts his own assertions made to the state court, wherein he
alleged the officers might have been present out of curiosity or in support of
the family. Other courts have declined to find the mere presence of officers in
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a courtroom sufficient to support inherent prejudice, 84 and the record before us
does not suggest the police presence intimidated the jury or disrupted the factfinding process in any way. 85
C
Even assuming that § 2254(e)(2) does not bar this court’s consideration
of the media-related evidence presented for the first time in Jones’s federal
habeas petition, his fair trial claim still fails.
There was extensive newspaper coverage of the aftermath of the
shooting, the officer’s eventual death and funeral, and the investigation and
arrest of Jones. Jones also offers several articles reporting on voir dire and the
commencement of trial. The majority of the articles offer positive support for
the officer—calls for blood donations or commentary on the need for better
procedures to ensure officer safety. The pre-trial articles that do mention
Jones are written in a measured, factual manner, and note that the prosecution
was attempting to avoid the kind of publicity that had resulted in a change of
venue in another case. Jones cites to only one inflammatory remark, made
shortly after the officer died, in a letter to the editor—a comment that “a tall
tree and short rope” would be appropriate for Jones. Another article that Jones
suggests calls for his death merely reports that two suspects had been
84 See Smith v. Farley, 59 F.3d 659, 664 (7th Cir. 1995) (“[I]f you kill a policem[a]n and
are put on trial for the crime, you must expect the courtroom audience to include policemen.”);
Howard v. State, 941 S.W.2d 102, 118 (Tex. Crim. App. 1996) (en banc) (“[T]his Court cannot
hold that the mute and distant presence of twenty peace officers—comprising roughly onefifth of the spectator gallery—is prejudicial, per se, without some other indication of
prejudice.”), on reh’g (Dec. 18, 1996) (en banc), overruled on other grounds by Easley v. State,
424 S.W.3d 535 (Tex. Crim. App. 2014), holding modified by Simpson v. State, 119 S.W.3d
262 (Tex. Crim. App. 2003).
85 Cf. Sheppard v. Maxwell, 384 U.S. 333, 354 (1966) (noting that “bedlam reigned” in
the courtroom, members of the media “hound[ed]” the trial participants, and a press table
was set up inside the bar in the courtroom); Woods v. Dugger, 923 F.2d 1454, 1459 (11th Cir.
1991) (noting that the trial judge had to admonish the spectators to keep quiet).
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previously charged with attempted capital murder, and, as the officer had died,
it was expected that the charges would be upgraded to capital murder. Jones
provided no evidence of any additional publicity for the nearly six months
between the officer’s death and the start of trial. Articles concerning the trial
itself were likewise objective, reporting on a suppression hearing and the start
of voir dire.
Jones does not allege the kind of harassing publicity, “carnival
atmosphere,” 86 or “considerable disruption” the Supreme Court has recognized
as unacceptable in contexts involving the press and the public. 87 Nor does he
suggest that the trial judge “lost his ability to supervise [the trial]
environment.” 88 Rather, Jones argues that the pretrial publicity shows the
community was “angry” and “organized behind convicting . . . Mr. Jones.”
However, the evidence, even if considered in the light most favorable to Jones,
does not support this allegation.
Though it is clear from the press that the community at large was aware
of and troubled by the shooting, Houston, one of the largest cities in the
country, was not a small, close-knit community like that in Woods or Hill. 89
The lack of extensive publicity leading up to the trial further undermines the
argument that the community was “angry” or “organized” with respect to the
shooting of the officer at the time of trial. The trial court questioned each panel
of veniremen about its exposure to the case, and most members of the venire
remembered very little about the case other than the name of the officer who
was killed.
86 Sheppard, 384 U.S. at 358.
87 Id. at 353-55; Estes v. Texas, 381 U.S. 532, 536 (1965).
88 Sheppard, 384 U.S. at 355.
89 See Jones v. Stephens, 2015 WL 6553855, at *5 (S.D. Tex. Oct. 28, 2015).
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Finally, media reports suggest some of the officers present may have
worn a black cloth or shroud over their badges with the motto “Nemo me
impune lacessit,” Latin for “no one assails me with impunity.” Jones makes
much of this possibility. Setting aside the dubious assumption that the jurors
could read the words from the jury box and understood Latin, we decline to
hold that mere adornment with a sign of mourning is sufficient to prejudice a
defendant’s right to a fair trial. 90
Considering the totality of the circumstances at Jones’s trial 91—even
including the media coverage leading up to the trial and the dress of the officers
in attendance—the scene presented does not support a finding of inherent
prejudice. 92 We are mindful of the statement in Flynn that, when reviewing a
state court proceeding, “[a]ll a federal court may do . . . is look at the scene
presented to jurors and determine whether what they saw was so inherently
prejudicial as to pose an unacceptable threat to defendant’s right to a fair
trial.” 93 Jones has not shown that the presence of uniformed officers observing
a criminal trial in solidarity with a fallen officer is such a threat.
90 See, e.g., In re Woods, 114 P.3d 607, 616-17 (Wash. 2005) (en banc) (holding that
black and orange ribbons without inscription did not express an opinion about the defendant’s
guilt or innocence and, thus, did not cause inherent prejudice); Davis v. State, 223 S.W.3d
466, 474-75 (Tex. App.—Amarillo 2006, pet. dism’d) (rejecting the petitioner’s assertion that
the presence of spectators wearing medallions with the deceased officer’s picture created
inherent prejudice). But see Norris v. Risley, 918 F.2d 828, 830-31 (9th Cir. 1990) (holding
that spectator buttons reading “Women Against Rape” inherently prejudiced the defendant).
91 See Sheppard, 384 U.S. at 352.
92 Cf. Mata v. Johnson, 99 F.3d 1261, 1271 & n.34 (5th Cir. 1996) (noting “with some
consternation” that the factual situation described by the petitioner, which was “virtually
indistinguishable” from that in Woods v. Duggar, could “provide the basis of a cognizable
constitutional claim” and remanding the case for an evidentiary hearing after determining
the state’s procedural dismissal did not bar federal review of the claim), vacated in part on
reh’g, 105 F.3d 209 (5th Cir. 1997).
93 Holbrook v. Flynn, 475 U.S. 560, 572 (1986).
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V
Jones also appeals the district court’s denial of additional investigative
funding and discovery, arguing that summary judgment was premature absent
further record development. We disagree. After our remand of the case for
consideration of the merits, Jones sought funds for an investigator to conduct
witness interviews and subpoenas for archived media records of the trial.
These requests were denied
A federal habeas “judge may, for good cause, authorize a party to conduct
discovery.” 94 A petitioner seeking funding for investigative services must show
that the requested services are “reasonably necessary.” 95 The Supreme Court
has recently explained that this phrase “calls for . . . a determination by the
district court, in the exercise of its discretion, as to whether a reasonable
attorney would regard the services as sufficiently important.” 96 The Court
continued, “[p]roper application of the ‘reasonably necessary’ standard thus
requires courts to consider the potential merit of the claims that the applicant
wants to pursue, the likelihood that the services will generate useful and
admissible evidence, and the prospect that the applicant will be able to clear
any procedural hurdles standing in the way.” 97 However, “the ‘reasonably
necessary’ test requires an assessment of the likely utility of the services
94 Rule 6(a) of Rules Governing § 2254 Cases.
95 18 U.S.C. § 3599(f) (providing, in part, that “[u]pon a finding that investigative,
expert, or other services are reasonably necessary for the representation of the defendant,
whether in connection with issues relating to guilt or the sentence, the court may authorize
the defendant's attorneys to obtain such services on behalf of the defendant and, if so
authorized, shall order the payment of fees and expenses therefor under subsection (g).”).
96 Ayestas v. Davis, __ S.Ct. __, __ (slip op. 15-16) (March 21, 2018); see also id. at __
(slip op. 17) (“A natural consideration informing the exercise of that discretion is the
likelihood that the contemplated services will help the applicant win relief.”).
97 Id. at __ (slip op. 17-18).
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requested, and § 3599(f) cannot be read to guarantee that an applicant will
have enough money to turn over every stone.” 98
The district court did not abuse its discretion in denying investigative
services because Jones did not show those services were “reasonably
necessary” to develop his fair trial claim. Jones claims that officer presence
during his trial and pre-trial publicity inherently prejudiced his trial. In his
request for investigative services, he notes that the record contains affidavits
of six witnesses as well as multiple media accounts of the number of officers
present in the courtroom. This evidence documents the officers’ positions and
conduct during trial as well as the number present.
Jones requested
investigative services to interview some 15-20 additional witnesses about the
“courtroom environment,” citing the “somewhat differing accounts” provided
by the current record. However, Jones offers the court no reason the additional
interviews (now 25 years later) would be any more precise or offer less
variation than the accounts he already has. Because we determine he is not
entitled to relief even under the most favorable view of the facts, we see no
purpose served by additional discovery on these issues. 99
Jones also seeks to subpoena several media outlets to obtain any
archived press coverage, photographs, or video footage from the trial, evidence
which he claims will show the number of officers, their ratio to civilians, and
their location relative to the jury. We note that, upon objection by both parties,
the state trial court specifically disallowed a camera during closing arguments.
Based on the exchange between counsel and the court at that time, there is no
reason to believe cameras were allowed during any other part of the
proceedings prior to sentencing. 100 Further, the articles attached to Jones’s
98 Id. at __ (slip op. 18).
99 See Smith v. Dretke, 422 F.3d 269, 288-89 (5th Cir. 2005).
100 Id.
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petition indicate that at least some are from periodical archives. Jones has
offered no explanation as to how this information is incomplete, or why there
is a reasonable expectation that additional requests would yield differing
information.
The evidence provided in the habeas petition itself provides the court
with sufficient information as to the number, location, and ratio of officers in
the courtroom—that is, the scene presented to the jury. The evidence also
provides sufficient evidence of the type and quantity of publicity. Jones fails
to show how the discovery he seeks would do more than supplement that which
he has already provided and offers no explanation for why he failed to seek
discovery on these issues until now. We therefore conclude that the district
court did not abuse its discretion in denying discovery, nor did it err in resting
its conclusion on the evidence presented in the federal habeas petition.
*
*
*
For the foregoing reasons, we AFFIRM the judgment of the district court
denying habeas relief on Jones’s fair trial claim.
22
APPENDIX
2
Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 1 of 13
United States District Court
Southern District of Texas
ENTERED
October 28, 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHELTON DENORIA JONES,
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice-Correctional
Institutions Division,
Respondent.
David J. Bradley, Clerk
CIVIL ACTION NO. H-09-1825
MEMORANDUM OPINION AND ORDER
The United States Court of Appeals
remanded
this
case
for
consideration
for
of
the
one
Fifth Circuit
claim
raised
in
petitioner Shelton Denoria Jones' amended petition for a writ of
habeas corpus.
For the reasons explained below,
relief will be
denied on that claim.
I.
Background
The facts of this case are set out in detail in this court's
Memorandum
No. 40).
Opinion
and
Order
of
March
3,
2011
(Docket
Entry
An abbreviated version, limited to the facts relevant to
the issue remanded to this court, is provided here.
Jones was convicted of capital murder and sentenced to death
for the murder of Houston Police Officer Bruno D. Soboleski while
he was lawfully discharging his official duties.
The Texas Court
Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 2 of 13
of
Criminal
Appeals
("TCCA")
affirmed
Jones'
conviction
and
sentence, Jones v. State, No. 71,369 (Tex. Crim. App. May 4, 1994),
cert. denied, 514 U.S. 1067 (1995).
On October 26, 2005, the TCCA
denied Jones' initial application for habeas corpus and treated a
document styled "Errata and Corrections to Amended Application for
Post-Conviction Writ of Habeas Corpus" as a successive application,
dismissing
Nos.
it
62,589-01,
January 27,
as
an
and
abuse
-02
(Tex.
of
the
Crim.
writ.
App.
Ex
Oct.
parte
26,
Jones,
2005).
On
2006, Jones filed his third state habeas application
raising a single claim of error under Penry v. Lynaugh, 492 U.S.
302 (1989)
court.
The TCCA referred the application to the state trial
The trial court entered findings of fact and conclusions of
law and recommended denying the claim on December 18, 2007.
TCCA denied the application on June 10,
2009.
The
Ex parte Jones,
No. AP-75,896 (June 10, 2009).
On April 12, 2006, while his third application was pending,
Jones
filed his
initial federal petition for a
corpus, which included a Penry claim.
writ of habeas
He then moved for a stay and
abeyance of his petition so that he could exhaust the Penry claim
in state court.
November 28,
prejudice,
The court stayed the case on April 20, 2006.
2007,
the court dismissed Jones'
On
petition without
and stated that the statute of limitations would be
equitably tolled as long as Jones returned to federal court within
30 days of the conclusion of state review.
-2-
Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 3 of 13
Jones refiled his federal petition on June 11, 2009, the day
after the TCCA denied relief on his Penry claim.
He filed a First
Amended Petition for a Writ of Habeas Corpus on July 9,
2009.
Respondent moved for summary judgment on October 5, 2009.
On February 10, 2010, the court again stayed the case to allow
Jones to return to state court to raise a claim that the State
suppressed material evidence, see Brady v. State of Maryland, 373
U.S.
83
(1963),
and denied the respondent's motion for summary
judgment without prejudice.
On March 2,
2010,
Jones filed his
fourth state habeas application, raising his Brady claim and three
others.
On
June
3 0,
2 010,
the
application as an abuse of the writ.
TCCA dismissed
Jones'
fourth
Ex parte Jones, No. 62,589-04
(Tex. Crim. App. June 30, 2010).
On July 6, 2010, respondent moved to lift the stay.
lifted the stay on July 7,
judgment on August 31, 2010.
2010.
The court
Respondent moved for summary
Jones responded and cross-moved for
summary judgment on September 29, 2010.
On March 3, 2011, the court issued a Memorandum Opinion and
Order granting relief on Jones' Penry claim and denying relief on
all other claims.
The court found that Jones' claim that he was
denied a fair trial by the presence of uniformed police officers in
the courtroom during his trial to be procedurally defaulted, but
granted a certificate of appealability on that issue.
On May 20,
2015, the Fifth Circuit held that the claim was not procedurally
defaulted and remanded the case for consideration of the fair trial
-3-
Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 4 of 13
claim on the merits.
See Jones v. Stephens, No. 14-70007 (5th Cir.
May 20, 2015).
This court ordered supplemental briefing,
and the parties
filed their supplemental briefs on September 8, 2015.
II.
A.
The Applicable Legal Standards
The Antiterrorism and Effective Death Penalty Act
This federal petition for habeas relief is governed by the
applicable provisions of
Penalty Act ("AEDPA").
(1997) .
the Antiterrorism and Effective Death
See Lindh v. Murphy, 521 U.S. 320, 335-36
Under the AEDPA federal habeas relief based upon claims
that were adjudicated on the merits by the state courts cannot be
granted unless the state court's decision (1) "was contrary to, or
involved
an
federal
law,
unreasonable
as
application
determined
United States" or (2)
by
the
of,
clearly
Supreme
established
Court
of
the
"was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding."
28 U.S.C.
698, 700 (5th Cir. 1999)
§
2254(d); Kitchens v. Johnson, 190 F.3d
For questions of law or mixed questions
of law and fact adjudicated on the merits in state court the court
may grant relief under 28 U.S.C.
court
decision
application of,
"was
contrary
§
to,
clearly established
2254(d) (1)
or
only if the state
involved
an
unreasonable
[Supreme Court precedent]."
See Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534
u.s. 885 (2001).
Under the "contrary to"
-4-
clause the court may
Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 5 of 13
afford
habeas
relief
only
if
"'the
state
court
conclusion opposite to that reached by
arrives
at
a
[the Supreme Court] on
a question of law or if the state court decides a case differently
than
[the
Supreme
Court]
has
on
a
set
of
materially
indistinguishable facts.'"
Dowthitt v. Johnson, 230 F.3d 733, 740-
41
denied,
(5th Cir.
2000),
cert.
532 U.S.
915
(2001)
(quoting
Williams v. Taylor, 529 U.S. 362, 406 (2000))
The "unreasonable application" standard permits federal habeas
relief
only if a
state court decision
governing legal rule from
"identifies
[Supreme Court]
the
correct
cases but unreasonably
applies it to the facts of the particular state prisoner's case" or
"if the state court either unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new
context where it should apply."
Williams,
529 U.S. at 406.
"In
applying this standard, we must decide (1) what was the decision of
the
state
courts
with
regard
to
the
questions
before
us
and
(2) whether there is any established federal law, as explicated by
the Supreme Court, with which the state court decision conflicts."
Hoover v. Johnson, 193 F.3d 366, 368
(5th Cir. 1999).
A federal
court's "focus on the 'unreasonable application' test under Section
2254(d) should be on the ultimate legal conclusion that the state
court reached and not on whether the state court considered and
discussed every angle of the evidence."
683,
696
(5th Cir.
2001),
aff'd,
-5-
Neal v. Puckett, 239 F.3d
286 F.3d 230
(5th Cir.
2002)
Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 6 of 13
(en bane),
cert.
(2003).
The
denied sub nom.
sole
inquiry
Neal v.
for
a
Epps,
federal
537 U.S.
court
under
1104
the
'unreasonable application' prong becomes "whether the state court's
determination is 'at least minimally consistent with the facts and
circumstances of the case.'"
Id.
(quoting Hennon v. Cooper, 109
F. 3d 330, 335 (7th Cir. 1997))
The AEDPA precludes federal habeas relief on factual issues
unless the state court's adjudication of the merits was based on an
unreasonable determination of the facts in light of the evidence
presented
§
in
the
state
court
proceeding.
See
28
U.S.C.
2254 (d) (2); Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000),
cert.
denied,
532 U.S.
1039
(2001)
The state court's factual
determinations are presumed correct unless rebutted by "clear and
convincing evidence."
Anderson,
112
28 U.S. C.
F.3d 823,
§
824-25
2254 (e) ( 1) ; see also Jackson v.
(5th Cir.
1997),
cert.
denied,
522
u.s.
B.
The Standard for Summary Judgment in Habeas Corpus Cases
1119 (1998)
"As a general principle, Rule 56 of the Federal Rules of Civil
Procedure, relating to summary judgment, applies with equal force
in the context of habeas corpus cases."
760,
764
(5th
Cir.),
cert.
denied,
Clark v. Johnson, 202 F.3d
531
U.S.
831
(2000).
In
ordinary civil cases a district court considering a motion for
summary judgment is required to construe the facts in the case in
the light most favorable to the nonmoving party.
-6-
See Anderson v.
Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 7 of 13
Liberty Lobby, 477 U.S. 242, 255 (1986).
Where, however, a state
prisoner's factual allegations have been resolved against him by
express or implicit findings of the state courts and the prisoner
fails
to demonstrate by clear and convincing evidence that the
presumption of correctness established by 28 U.S.C.
§
2254(e) (1)
should not apply, it is not appropriate for the facts of a case to
be resolved in the petitioner's favor.
See Marshall v. Lonberger,
459 U.S. 422, 432 (1983); Sumner v. Mata, 449 U.S. 539, 547 (1981).
In reviewing factual determinations of the Texas state courts, the
court is bound by such findings unless an exception to 28 U.S.C.
§
2254 is shown.
III.
Analysis
Jones contends that the presence of uniformed police officers
among the spectators at his trial created a hostile atmosphere and
denied him a
fair trial.
Stephens argues that the claim lacks
merit.
A.
Standard of Review
The parties disagree as to the appropriate standard of review
for this claim.
addressing Jones'
Respondent argues that the state trial court, in
habeas corpus application,
entered findings of
fact that are entitled to deference under the AEDPA.
Jones argues
that the findings of fact are not entitled to deference because
they were not adopted by the TCCA, which, instead, dismissed this
claim on procedural grounds.
-7-
Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 8 of 13
On
federal
habeas
corpus
review
a
state
court's
factual
determinations are presumed correct unless rebutted by "clear and
convincing evidence."
F.3d at 824-25.
28 U.S.C.
§
2254 (e) (1); see also Jackson, 112
The trial court entered findings of fact in this
case, but the TCCA did not adopt those findings, opting instead to
dismiss the document raising the fair trial claim as an abuse of the
writ.
Ex parte Jones, No. WR-62,589-01, WR-62,589-02
(Tex. Crim.
App. Oct. 26, 2005).
Under Texas law a writ of habeas corpus is returnable to the
TCCA.
See TEX. CODE CRIM. PROC. art. 11.071
4(a).
§
While the TCCA
may refer an application to the trial court to conduct necessary
evidentiary hearings and enter proposed findings of fact, it is up
to the TCCA whether to adopt any proposed findings.
Because the
TCCA rejected the fair trial claim on procedural grounds and did
not
adopt
the
trial
court' s
proposed
findings,
findings to which this court must defer.
there
are
no
This court's review of
the claim is therefore de novo.
B.
Fair Trial
Jones
contends
that
he
was
denied
a
fair
trial
by
the
combination of pretrial publicity and the presence of uniformed
police officers among the spectators.
He argues that the presence
of the uniformed officers was intimidating to the jury and sent a
message that the only acceptable verdict was guilty, and the only
acceptable sentence was death.
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Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 9 of 13
A criminal defendant has the right to a fair trial.
Holbrook
v. Flynn, 475 U.S. 560, 567 (1986); Estelle v. Williams, 425 U.S.
501,
503
(1976).
A fair trial means,
among other things,
one
resulting in a verdict based only on the evidence presented during
the trial.
Holbrook, 475 U.S. at 567; Taylor v. Kentucky, 436 U.S.
478, 485 (1978); Irvin v. Dowd, 366 U.S. 717, 722 (1961).
As Jones acknowledges, see Petition at 52, to prevail on this
claim he must demonstrate either actual or inherent prejudice.
Holbrook, 475 U.S. at 572.
actual prejudice.
See
Jones does not argue that he suffered
Instead, he contends that the presence of the
uniformed police officers was inherently prejudicial.
The presence of uniformed law enforcement personnel does not
automatically mean that the atmosphere was inherently prejudicial.
See Holbrook,
475 U.S. at 568-69.
The determinative factor for
inherent prejudice is "not whether jurors actually articulated a
consciousness of some prejudicial effect, but rather whether 'an
unacceptable risk is presented of impermissible factors coming into
play."'
504).
Holbrook, 475 U.S. at 570 (quoting Williams, 425 U.S. at
An unacceptable risk exists when there is a "probability of
deleterious effects."
Jones
publicity.
contends
Williams, 425 U.S. at 504.
that
there was
a
large amount of pretrial
He notes that uniformed police officers sat among the
spectators -- near the jury box -- in the courtroom during trial.
He further notes that his trial counsel raised objections to the
officers' presence.
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Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 10 of 13
Jones relies heavily on the Eleventh Circuit's decision in
Woods v. Dugger,
923 F.2d 1454
(11th Cir. 1991),
to support his
argument that the publicity and presence of the officers created an
inherently prejudicial
Woods,
atmosphere.
however,
is
easily
distinguishable from this case.
Woods was convicted of the murder of a correctional officer
and sentenced to death.
He challenged his
923 F.2d at 1455.
conviction and sentence, alleging that he was deprived of a fair
trial by the presence of uniformed correctional officers in the
courtroom.
The Eleventh Circuit noted that Woods'
"small rural community .
"
trial occurred in a
Id. at 1456.
The county had a
population of about 10,000 people, but approximately one-third of
those were prisoners.
Id. at 1457.
The county and a neighboring
county contained four state prisons employing 2,200 workers.
The
prisons
The
accounted
for
$71
million of
the
local
economy.
officer's death became a significant local political issue, with a
petition demanding the death penalty for those convicted of killing
correctional officers gathering 5,000 signatures.
Id. at 1458.
During jury voir dire six potential jurors immediately excused
themselves.
Thirty-three stated that they, or their relatives or
close friends, worked in the prison.
had heard about the case.
Twenty-one potential jurors
Nine knew a witness,
and one was a
witness, although this person was not called by either side.
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Within the actual jury:
four jurors and one alternate
juror neither had heard of the case nor had any relatives
working in the prison system; four jurors had not heard
of the case, but had either worked in the prison system
themselves or had relatives currently working in the
system; three jurors and one alternate juror both had
heard of the case and had relatives currently working in
the system; and, finally, one juror had heard of the case
but had no relatives or friends working in the system.
Id.
The court also observed that about half of the spectators at
The Eleventh
trial were uniformed correctional officers.
Circuit found inherent prejudice under these circumstances.
In sharp contrast to the facts of Woods, Jones was tried in
Houston -- one of the largest cities in the United States -- with
a
jury pool
drawn
from
the
even
larger Harris
County,
Texas.
Unlike the jurors in Woods, Jones points to no evidence that any
juror had a friend or relative who was a police officer.
There is
no evidence, and no reason to believe, that anything resembling the
facts that led to a finding of inherent prejudice in Woods was
present in this case.
As the Woods court noted,
"presumed prejudice rarely occurs
and is reserved for extreme situations."
Woods, 923 F.2d at 1459
(internal quotation marks and citation omitted).
While there is no
dispute that uniformed police officers were a visible portion of
the
spectators
in
this
case
it
appears
from
the
various
descriptions of the courtroom offered by petitioner that the police
presence
ranged
spectators, see,
between
~~
one-quarter
and
one-third
of
the
First Am. Pet. at 53-54 -- there is nothing
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to suggest that their presence or any pretrial publicity had any
undue influence or effect on the jury.
situation presented
by
Woods,
and
inherent prejudice in his trial.
This is not the extreme
Jones
fails
to
demonstrate
Therefore, Jones is not entitled
to relief on this claim.
IV.
Although
Jones
Certificate of Appealability
has
not
requested
certificate
a
of
appealability ( "COA''), the court may nevertheless determine whether
he is entitled to this relief in light of the court's ruling.
Alexander v.
Johnson,
perfectly lawful
sponte.
211 F.3d 895,
898
for district court's
(5th Cir.
[sic]
See
2000)
("It is
to deny a
COA sua
The statute does not require that a petitioner move for a
COA; it merely states that an appeal may not be taken without a
certificate
of
appealability
having
been
issued.").
"[T]he
determination of whether a COA should issue must be made by viewing
the petitioner's arguments through the
scheme laid out in 28 U.S.C.
§
2254(d) ."
lens of
the deferential
Barrientes v. Johnson,
221 F. 3d 741, 772 (5th Cir. 2000), cert. dismissed, 531 U.S. 1134
(2001) .
The court has carefully considered Jones' claim.
Although the
court is confident that Jones is not entitled to relief on the
claim, there is little precedent that is directly on point.
Jones
was convicted more than twenty years ago, and since then numerous
courts
have
considered
his
various
-12-
claims.
Recognizing
the
Case 4:09-cv-01825 Document 71 Filed in TXSD on 10/28/15 Page 13 of 13
"AEDPA's
acknowledged
execution of
state
and
purposes"
to
federal
"reduc[e]
criminal
Gonzales, 133 S. Ct. 696, 709 (2013)
delays
in
sentences [,] "
the
Ryan v.
(quotation omitted), and in an
effort to expedite appellate consideration,
the court sua sponte
finds that jurists could conclude that "the issues presented [are]
adequate to deserve encouragement to proceed further."
v.
Cockrell,
537
U.S.
322,
327
(2003).
Because,
Miller-El
under
this
analysis, Jones has made a "substantial showing of the denial of a
constitutional right," 28 U.S.C.
§
2253(c) (2), he is entitled to a
certificate of appealability on his fair trial claim.
V.
Conclusion and Order
For the foregoing reasons, it is ORDERED as follows:
1.
Petitioner Shelton Denoria Jones' First Amended
Petition for a Writ of Habeas Corpus (Docket Entry
No. 7) is DENIED with regard to his claim that he
was denied a fair trial; and
2.
A Certificate of Appealability shall issue.
SIGNED at Houston, Texas, on this 28th day of October, 2015.
UNITED STATES DISTRICT JUDGE
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APPENDIX
3
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Document: 00513049604
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Date Filed: 05/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-70007
SHELTON DENORIA JONES,
Petitioner–Appellant,
United States Court of Appeals
Fifth Circuit
FILED
May 20, 2015
Lyle W. Cayce
Clerk
v.
WILLIAM STEPHENS, 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. 4:09-CV-1825
Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Shelton Denoria Jones was convicted of capital murder and sentenced to
death in Texas state court. In a state habeas corpus proceeding, Jones asserted
that he was not afforded a fair trial because of the presence of uniformed police
officers in the gallery during his trial. The Texas Court of Criminal Appeals
(TCCA) concluded that this fair-trial claim was not timely filed, deemed the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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claim to have been asserted in a successive application, and denied the claim
without considering the merits. Jones then filed a habeas corpus petition in
federal district court. The district court held that Jones’s fair-trial claim was
dismissed by the TCCA on an independent and adequate state-law ground and
denied the petition without considering the claim’s merits. The district court
granted a certificate of appealability (COA), and Jones appealed. We vacate
and remand.
I
Jones was charged with murdering on-duty Houston police officer Bruno
Soboleski, and Jones pleaded not guilty. Twelve to fifteen uniformed police
officers attended the first day of the guilt–innocence phase of Jones’s trial, and
though the number varied thereafter, uniformed officers continued to attend
each day of the trial. Jones’s counsel made contemporaneous objections to the
presence of the police officers, both on and off the record, but the objections
were overruled. The jury convicted Jones of capital murder and sentenced him
to death. The TCCA affirmed Jones’s conviction and sentence on direct appeal.
On January 27, 1997, the TCCA appointed state habeas counsel for
Jones. The order instructed counsel that an application for a writ of habeas
corpus must be filed in the convicting court no later than the 180th day after
the date of appointment. Because the 180-day deadline fell on Saturday, July
26, 1997, the deadline to file was the next business day, July 28, 1997.
On April 9, 1997, to allow Jones’s counsel to comply with newly enacted
filing deadlines under the Antiterrorism and Effective Death Penalty Act
(AEDPA), the TCCA granted Jones “leave to file an incomplete application for
writ of habeas corpus on or before April 24, 1997, with leave to file a
supplemental and/or amended application before July 26, 1997.” Because July
26 was a Saturday, the parties agree that the deadline was July 28. The order
stated that “[a]ny incomplete application shall not be considered by the trial
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court or this Court until the 180 day period for filing applicant’s original
application, and any extension of this period granted by the trial court, has
elapsed” and that “[a]ny supplemented application shall be deemed an original,
not a successor, application.”
In accordance with the TCCA order, on April 23, Jones filed a skeletal
habeas application. On July 25, 1997, Jones mailed an “Amended Application
for Post-Conviction Writ of Habeas Corpus” (Amended Application).
The
Amended Application is stamped as filed on July 25, but a letter from the
Harris County District Clerk’s Office states that the Amended Application was
received and filed on July 28. The Amended Application contained several
grounds for relief but did not raise a claim based on the presence of uniformed
police officers at the trial. Also on July 28, Jones filed a document entitled
“Errata and Corrections to Amended Application for Post-Conviction Writ of
Habeas Corpus” (Errata). It corrected various grammatical omissions and
errors, but it also contained the entire text of Jones’s fair-trial claim regarding
the presence of uniformed police officers, which had been omitted, according to
the Errata, because of a computer software error. Affidavits supporting the
fair-trial claim were filed as part of the Amended Application because they
were not affected by the computer issue.
On October 24, 1997, Jones moved to file a “Supplemental Application
for Post-Conviction Writ of Habeas Corpus” (Supplemental Application) that
combined the Amended Application and Errata into one document for ease of
reading and comprehension. The Supplemental Application raised “no new
claims or matters not previously raised in the” Amended Application or Errata.
Several days later, the state trial court granted leave to file the Supplemental
Application and ordered that “said supplemental application shall be deemed
as an original part of the original and amended applications previously filed,
and not as a successor application.”
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Years later, in 2005, the state trial court ruled on Jones’s habeas
application. By this time, a new the state district judge had succeeded the
judge who presided in 1997, and the district attorney in 1997 had been
succeeded by someone else as well. The State proposed findings of fact and
conclusions of law that did not address the Errata, and the state trial court
adopted these findings and conclusions, recommending that the TCCA deny
relief on all of Jones’s claims. As to the fair-trial claim, the trial court found
that it “was newly presented in [the] October 24, 1997 supplemental
application for writ of habeas corpus” and therefore “constitute[d] a subsequent
application for writ of habeas corpus” under Texas Code of Criminal Procedure
Article 11.071, § 5, without mentioning the Errata. The state trial court also
found that Jones waived the fair-trial claim by failing to raise it on direct
appeal. The trial court added that the officers’ presence at Jones’s trial was
not inherently or actually prejudicial.
The TCCA adopted the state trial court’s findings of fact and conclusions
of law as to the claims raised in Jones’s Amended Application. 1 As to the fairtrial claim regarding uniformed officers, the TCCA stated:
This Court has also reviewed a document entitled
“Supplemental Application for Post-Conviction Writ for Habeas
Corpus Pursuant to Article 11.071 of the Texas Code of Criminal
Procedure.” Because this document was filed after the deadline
provided for an initial application for habeas corpus, we find it to
be a subsequent application. See Art. 11.071. We further find that
the document fails to meet one of the exceptions provided for in
Section 5 of Article 11.071 and, thus, have no authority to do
anything other than dismiss this subsequent application as an
abuse of the writ. In dismissing the subsequent application, we
1 Jones v. State, Nos. WR-62,589-01, WR-62,589-02 (Tex. Crim. App. Oct. 26, 2005)
(not designated for publication).
4
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also expressly reject all findings and conclusions related to this
claim and deny any motions pending that relate to the claim. 2
The TCCA’s order made no reference to the Errata.
After further state habeas proceedings not relevant here, Jones filed a
federal habeas petition raising, among other claims, the fair-trial claim
regarding uniformed officers and a claim based on Penry v. Lynaugh. 3 After
the parties each moved for summary judgment, the district court held that
federal habeas review of the fair-trial claim was barred because the TCCA
dismissed the claim based on an independent and adequate state procedural
rule. The district court, however, did issue a COA on the fair-trial claim,
stating that “reasonable jurists could disagree as to whether Jones”
procedurally defaulted the claim. The district court also granted relief on the
Penry claim but denied relief and COAs on all of Jones’s other claims.
On appeal, this court vacated the COA as to the fair-trial claim. We
explained that when a district court dismisses a claim on procedural grounds,
in order for a COA to issue, the district court must determine that jurists of
reason would find debatable whether (1) the claim is procedurally defaulted
and (2) the constitutional claim itself is valid. 4 As the district court only made
the first finding and did not discuss the merits of the fair-trial claim, this court
remanded so the district court could make the second finding. 5
We also
affirmed relief on the Penry claim, entitling Jones to a new sentencing
hearing. 6
2 Id.
3 492 U.S. 302 (1989).
4 Jones v. Stephens, 541 F. App’x 399, 408-09 (5th Cir. 2013) (per curiam) (citing Slack
v. McDaniel, 529 U.S. 473, 478, 484-85 (2000)).
5 Id. at 410.
6 Id. at 406-07.
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On remand, the district court held that jurists of reason could find it
debatable whether Jones’s constitutional right to a fair trial was violated by
the presence of uniformed officers at his trial and granted a COA on that claim.
II
AEDPA governs our review of Jones’s federal habeas claims, and he is
not entitled to relief unless he is in state custody in violation of the federal
Constitution or laws or treaties of the United States. 7 An application for a writ
of habeas corpus shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings unless the adjudication of
the claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States” or “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 8
However, we do not reach the merits of a claim that federal law has been
violated if “the state court has based its rejection of the claim on a state
procedural rule that provides an adequate basis for relief, independent of the
merits of the claim.” 9 The TCCA dismissed Jones’s fair-trial claim on state
procedural grounds because it construed the claim to have been first raised in
the Supplemental Application “after the deadline provided for an initial
7 28 U.S.C. § 2254(a).
8 28 U.S.C. § 2254(d).
Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008) (citing Coleman v.
Thompson, 501 U.S. 722, 729-32 (1991)); see also Cone v. Bell, 556 U.S. 449, 465 (2009) (“It is
well established that federal courts will not review questions of federal law presented in a
habeas petition when the state court’s decision rests upon a state-law ground that is
independent of the federal question and adequate to support the judgment.”) (internal
quotation marks omitted); Garza v. Stephens, 738 F.3d 669, 675 (5th Cir. 2013) (“Federal
review of the merits of a procedurally-barred claim is permitted, however, where the
petitioner is able to ‘demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law.’” (quoting Hughes, 530 F.3d at 341)).
9
6
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application for habeas corpus.” 10 The TCCA determined that under Texas
Code of Criminal Procedure Article 11.071, § 5, it had “no authority to do
anything other than dismiss [the claim] as an abuse of the writ.” 11
The federal district court determined it could not consider Jones’s fairtrial claim on the merits because it was bound by the TCCA’s interpretation of
Texas law and therefore that the claim was procedurally defaulted because it
was dismissed in state habeas proceedings on an independent and adequate
state ground. While the district court is correct that a federal court may not
question the interpretation of state law by the highest court of that state, 12 the
independence and adequacy of a state procedural bar is itself a federal question
that this court reviews de novo. 13
III
To be adequate, a state law ground “must have been ‘firmly established
and regularly followed’ by the time” the state courts applied it to the
petitioner. 14 “If the state law ground is not firmly established and regularly
followed, there is no bar to federal review and a federal habeas court may go to
10 Jones v. State, Nos. WR-62,589-01, WR-62,589-02 (Tex. Crim. App. Oct. 26, 2005)
(not designated for publication).
11 Id.
12 Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 488
(1976) (“We are, of course, bound to accept the interpretation of [the State’s] law by the
highest court of the State.”).
13 Cone, 556 U.S. at 465; Wright v. Quarterman, 470 F.3d 581, 586 (5th Cir. 2006)
(citing Rosales v. Dretke, 444 F.3d 703, 707 (5th Cir. 2006)).
14 Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S.
341, 348 (1984)); accord Balentine v. Thaler, 626 F.3d 842, 856 (5th Cir. 2010); see also BRIAN
R. MEANS, FEDERAL HABEAS MANUAL § 9B:29 (2014) (“The state procedural rule must have
been sufficiently clear at the time of the default to have put the petitioner on notice of what
conduct was required.”).
7
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the merits of the claim.” 15 “It is the petitioner’s burden to demonstrate that
the procedural bar is not regularly applied . . . .” 16
If Jones had first raised his claim regarding uniformed officers in the
Supplemental Application filed October 24, 1997, the TCCA’s conclusion that
the claim was not filed timely and that it did not meet any of the exceptions in
Article 11.071 would constitute firmly established and regularly followed
procedural rule. However, the TCCA failed to consider and did not appear to
be aware of the Errata, which was filed before the deadline for filing Jones’s
initial application. Accordingly, our inquiry is whether a rule barring claims
first raised in a document filed on or before the initial-application deadline but
after the filing of an amended application was firmly established and regularly
followed under Texas law.
The Director asserts that the language of the TCCA’s April 9, 1997, order
compels the conclusion that “[o]nce Jones filed his Amended Application, he
subjected himself to the strictures of article 11.071, section 5 for subsequently
filed applications. That the Errata may have been filed within [the initialapplication deadline] is therefore irrelevant.” Specifically, the Director argues
that the April 9 order was merely articulating the same rule set forth by the
TCCA in Ex parte Medina 17 and Ex parte Kerr, 18 that habeas applicants get
“one bite at the apple,” and the Errata was an attempt at a second. These cases
are inapposite.
In Medina, in an effort to change the TCCA’s pleading
requirements, appointed counsel intentionally filed an initial habeas
application in a death-penalty case that contained virtually no facts in support
15 Rosales, 444 F.3d at 707 (citing Barr v. Columbia, 378 U.S. 146, 149 (1964)).
16 Wright, 470 F.3d at 586 (citation omitted).
17 361 S.W.3d 633 (Tex. Crim. App. 2011) (per curiam).
18 64 S.W.3d 414 (Tex. Crim. App. 2002).
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of the claims. 19 The TCCA held that the lack of factual support for the claims
did not comply with the rules for an initial application, but notwithstanding
the “one-bite-at-the-apple” rule, it appointed new counsel for the defendant to
file an adequate application. 20 Similarly, in Kerr, appointed counsel in a deathpenalty case filed a document that challenged the constitutionality of the Texas
habeas corpus statutory scheme but did not challenge Kerr’s conviction or
sentence. 21 The TCCA held that the document did not constitute an initial
application, but the court appointed new counsel to file another application and
deemed that application timely. 22
In the present case, there is no dispute that the Amended Application
filed on July 25th was an “initial application” as it sought relief from the
underlying judgment of conviction and death sentence and contained facts to
support the claims made. But the Amended Application’s status as a valid
initial application is not dispositive because the relevant question is whether
there was a firmly established rule that barred Jones from raising the fair-trial
claim in the timely filed Errata. We cannot find such a firmly established rule.
The TCCA relied on Texas Code of Criminal Procedure Article 11.071,
§ 5 to dismiss the fair-trial claim. Section 5(a) provides that, with exceptions
not applicable here, “[i]f a subsequent application for a writ of habeas corpus
is filed after filing an initial application, a court may not consider the merits of
or grant relief based on the subsequent application.” 23 Section 5(f), which
became effective in 1999, further provides that “[i]f an amended or
supplemental application is not filed within the time specified [for filing an
19 Medina, 361 S.W.3d at 635.
20 Id. at 642-43.
21 Kerr, 64 S.W.3d at 419-20.
22 Id. at 419-20.
23 TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5(a).
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initial application], the court shall treat the application as a subsequent
application under this section.” 24
Section 5, however, “does not explicitly
address an applicant’s right to amend an application or to file supplemental
applications after an initial application has been filed” 25 and thus does not
explicitly address whether a document filed after the initial application but
before the filing deadline is a “subsequent” application. While we have held
that “since 1994, the Texas abuse of the writ doctrine [codified in Article
11.071, § 5(a)] has been consistently applied as a procedural bar, and that it is
an independent and adequate state ground,” 26 we have done so in cases in
which the doctrine was applied to habeas applications filed after the deadline
for filing the initial application. 27
Decisions of the TCCA further indicate that there is no firmly
established and regularly followed rule barring claims raised in the unique
posture of the Errata. For example, the TCCA has rejected documents filed by
a habeas applicant “which purport to be motions to amend the original petition
for habeas corpus” because “an untimely amendment adding new claims is not
allowed under Article 11.071.” 28 The TCCA has also rejected a petitioner’s
attempt to supplement his habeas application because the “filing was an
24 Id. § 5(f); accord GEORGE E. DIX & JOHN M. SCHMOLESKY, 43B TEXAS PRACTICE
SERIES, CRIMINAL PRACTICE AND PROCEDURE § 58:69 (3d ed. 2014).
25 43B DIX & SCHMOLESKY, supra, § 58:69.
26 Reed v. Stephens, 739 F.3d 753, 766 (5th Cir. 2014) (quoting Hughes v. Quarterman,
530 F.3d 336, 342 (5th Cir. 2008)) (internal quotation marks omitted).
27 E.g., id. at 762-63, 766 & n.4 (holding that, as applied to a third state habeas petition
filed over three years after the TCCA denied the first habeas petition, the abuse of the writ
doctrine was an independent and adequate state ground); Balentine v. Thaler, 626 F.3d 842,
844-45, 856-57 (5th Cir. 2010) (same as applied to second habeas petition filed about eight
and a half years after initial habeas petition was filed); Hughes, 530 F.3d at 340-42 (same as
applied to second habeas petition filed over four years after initial habeas petition).
Ex parte Medina, 361 S.W.3d 633, 637 (Tex. Crim. App. 2011) (per curiam)
(emphasis added).
28
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‘untimely supplement’ to the initial application” that did not comply with
Article 11.071. 29 These cases appear to leave open the possibility that had the
supplemental documents been timely filed, the Texas courts would not
necessarily be barred from considering them.
Likewise, in referring to Jones’s Supplemental Application that
combined the Amended Application and the Errata, the TCCA said: “Because
this document was filed after the deadline provided for an initial application
for habeas corpus, we find it to be a subsequent application.” This language
suggests that if the TCCA had been aware of and considered the timely filed
Errata as the first document raising the fair-trial claim, it would not have held
it to be a subsequent application.
Therefore, we cannot say that Jones’s fair-trial claim, raised in the
Errata prior to the initial application deadline, was procedurally barred
pursuant to a firmly established and regularly followed rule. The Director has
pointed to no Texas statute or case that compels us to hold otherwise. The
procedural bar was thus inadequate, and federal courts may review the merits
of Jones’s claim regarding the presence of uniformed police officers in the
gallery during his trial. 30 Accordingly, we remand to the district court to
evaluate Jones’s fair-trial claim on the merits. 31
*
*
*
29 Ex parte Graves, 70 S.W.3d 103, 106 (Tex. Crim. App. 2002) (emphasis added).
Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (“[O]nly a ‘firmly established and
regularly followed state practice’ may be interposed by a State to prevent subsequent review
by this Court of a federal constitutional claim.”) (quoting James v. Kentucky, 466 U.S. 341,
348-51 (1984)); Woodfox v. Cain, 609 F.3d 774, 822 (5th Cir. 2010) (“A novel state procedural
rule, inconsistently applied, and about which a litigant might have no knowledge, cannot be
used to block review in federal court of [a] constitutional claim.”).
30
31 Rosales v. Dretke, 444 F.3d 703, 710 (5th Cir. 2006) (vacating the district court’s
decision holding the state’s procedural bar of a Batson claim to be independent and adequate,
and remanding for a determination of the claim on the merits).
11
Case: 14-70007
Document: 00513049604
Page: 12
Date Filed: 05/20/2015
No. 14-70007
We VACATE the decision of the district court dismissing Jones’s fairtrial claim regarding uniformed officers and REMAND for further proceedings
consistent with this opinion.
12
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.