Opposition Brief — Ray McArthur Freeney, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefApr 15, 2019
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No. 18-7414
IN THE
Supreme Court of the United States
RAY MACARTHUR FREENEY,
Petitioner,
v.
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
BRIEF IN OPPOSITION
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
ADRIENNE McFARLAND
Deputy Attorney General
For Criminal Justice
MATTHEW OTTOWAY
Assistant Attorney General
Counsel of Record
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 936-1400
matthew.ottoway@oag.texas.gov
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
Counsel for Respondent
CAPITAL CASE
QUESTION PRESENTED
Should this Court should expend its limited resources on a case
concerning the federal habeas standard of review’s adjudication-on-themerits requirement where the asserted justifications for granting a writ
of certiorari falter—it does not concern a matter of jurisdiction, practice,
or procedure of the federal judiciary requiring supervisory intervention,
the circuit split is inapplicable or illusory, the supposed procedural error
is exaggerated as to both its scope and effect, and the case is without
merit under any standard?
i
TABLE OF CONTENTS
QUESTION PRESENTED ......................................................................... i
TABLE OF CONTENTS ...........................................................................ii
TABLE OF AUTHORITIES .................................................................... iii
BRIEF IN OPPOSITION .......................................................................... 1
STATEMENT OF THE CASE .................................................................. 1
I.
The Capital Murder ......................................................................... 1
II.
The State’s Punishment Evidence ................................................... 3
III.
Freeney’s Punishment Evidence ...................................................... 5
IV.
Course of State and Federal Proceedings ........................................ 7
REASONS FOR DENYING THE PETITION ........................................ 12
I.
The Lower Court Did Not Adopt a Rule Requiring This Court’s
Intervention .................................................................................... 13
II.
If There Is a Circuit Split, It Is Not Relevant to This Case .......... 16
A.
The no-adjudication-on-the-merits argument was
forfeited in the court below ................................................... 16
B.
Freeney fails to prove that his circuit split exists or is
relevant to his case................................................................ 19
III.
Freeney Has Procedurally Defaulted His Claim of Procedural
Error………..................................................................................... 23
IV.
The Alleged Procedural Defect Did Not Render Unadjudicated
What Was Clearly a State Court Adjudication on the Merits ...... 25
V.
If There Was Procedural Error in the State Court
Postconviction Process, It Was Harmless and Relief Was
Correctly Denied ............................................................................ 30
CONCLUSION ........................................................................................ 40
ii
TABLE OF AUTHORITIES
Cases
Arizona v. Fulminante, 499 U.S. 279 (1991)........................................... 35
Atkins v. Virginia, 536 U.S. 304 (2002) .................................................. 37
Ballinger v. Prelesnik, 709 F.3d 558 (6th Cir. 2013) .............................. 22
Brewer v. Quarterman, 475 F.3d 253 (5th Cir. 2006) ............................. 18
Brown v. Smith, 551 F.3d 424 (6th Cir. 2008) .................................. 16, 22
Bruton v. United States, 391 U.S. 123 (1968) ......................................... 35
Burris v. Parke, 116 F.3d 256 (7th Cir. 1997)......................................... 37
Cabral v. Brennan, 853 F.3d 763 (5th Cir. 2017) ................................... 29
Coleman v. Thompson, 501 U.S. 722 (1991) ........................................... 24
Cullen v. Pinholster, 563 U.S. 170 (2011) ....................................... passim
Cutter v. Wilkinson, 544 U.S. 709 (2005) .......................................... 18, 23
Davila v. Davis, 137 S. Ct. 2058 (2017) .................................................. 24
Dowthitt v. Johnson, 230 F.3d 733 (5th Cir. 2000)................................. 38
Drake v. Portuondo, 321 F.3d 338 (2d Cir. 2003) ....................... 16, 21, 22
Edwards v. Carpenter, 529 U.S. 446 (2000) ........................................... 24
Ex parte Alexander, 685 S.W.2d 57 (Tex. Crim. App. 1985)................... 32
Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) ......................... 23
Ex parte Butler, 416 S.W.3d 863 (Tex. Crim. App. 2012) ....................... 23
Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008) ......................... 32
Ford v. Wainwright, 477 U.S. 399 (1986) ............................................... 31
Glossip v. Trammell, 530 F. App’x 708 (10th Cir. 2013) ........................ 20
Harrington v. Richter, 562 U.S. 86 (2011) ............................ 25, 26, 34, 39
Hollingsworth v. Perry, 558 U.S. 183 (2010) .......................................... 15
Jackson v. Conway, 763 F.3d 115 (2d Cir. 2014) .................................... 21
Johnson v. Williams, 568 U.S. 289 (2013) .................................. 26, 28, 30
Kitchens v. Johnson, 190 F.3d 698 (5th Cir. 1999) ................................. 38
iii
Ladd v. Cockrell, 311 F.3d 349 (5th Cir. 2002)....................................... 38
Martinez v. Ryan, 566 U.S. 1 (2012) ....................................................... 24
Moore v. Hardee, 723 F.3d 488 (4th Cir. 2013) ....................................... 22
Moore v. Texas, 137 S. Ct. 1039 (2017) ................................................... 23
Nguyen v. United States, 539 U.S. 69 (2003) .......................................... 15
Padilla v. Kentucky, 559 U.S. 356 (2010) ............................................... 34
Republic of Argentina v. NML Capital, Ltd.,
573 U.S. 134 (2014) ....................................................................... 18, 23
Sexton v. Beaudreaux, 138 S. Ct. 2555 (2018) ........................................ 24
Shami v. Comm’r, 741 F.3d 560 (5th Cir. 2014) ..................................... 18
Smith v. Aldridge, 904 F.33d 874 (10th Cir. 2018) ................................ 22
Smith v. Quarterman, 515 F.3d 392 (5th Cir. 2008) .............................. 39
Strickland v. Washington, 466 U.S. 668 (1984) ...................................... 33
Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004)..................................... 22
Wiley v. Epps, 625 F.3d 199 (5th Cir. 2010) ........................................... 14
Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607
(5th Cir. 2018) ..................................................................................... 29
Williams v. Taylor, 529 U.S. 362 (2000) ................................................. 37
Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009)........................ 16, 20
Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) ................................. 16, 20
Wong v. Belmontes, 558 U.S. 15 (2009) ....................................... 34, 35, 36
Woodford v. Visciotti, 537 U.S. 19 (2002) ............................................... 35
Statutes
28 U.S.C. § 2254(d) .......................................................................... passim
28 U.S.C. § 2254(d)(1)........................................................................ 21, 24
28 U.S.C. § 2254(d)(2)........................................................................ 22, 23
Tex. Code Crim. Proc. art. 11.071 § 8(d)(2) ............................................. 23
iv
Other Authorities
Black’s Law Dictionary (9th ed. 2009) .................................................... 26
Rules
Sup. Ct. R. 10........................................................................................... 15
Sup. Ct. R. 10(a) ...................................................................................... 15
v
BRIEF IN OPPOSITION
Lorie Davis, Director of the Texas Department of Criminal Justice,
Correctional Institutions Division, respectfully submits this brief in
opposition to the petition for a writ of certiorari filed by Ray Macarthur
Freeney.
STATEMENT OF THE CASE
I.
The Capital Murder
Kirshalynne Jones was a fifteen-year-old girl who sometimes
engaged in prostitution. 14.RR.221, 239. 1 Freeney solicited Jones and
0F
went back to her motel room. 25.RR.SX.54; 2 SHCR.128–29. 3 There,
1F
2F
Freeney attacked Jones and choked her until she lost consciousness.
SHCR.130–32. Freeney then attempted to have sex with Jones and, when
she awoke, he stabbed her repeatedly with a small knife. SHCR.132–33.
Jones performed oral sex on Freeney—because she “want[ed] to,”
according to Freeney—until she passed out from her injuries and died.
“RR” refers to the transcribed statement of facts of Freeney’s capital murder
trial, or reporter’s record, preceded by volume number and followed by page numbers.
1
“SX” refers to the exhibits introduced by the State at Freeney’s capital murder
trial, or State’s Exhibits, preceded by volume number and followed by exhibit
numbers.
2
“SHCR” refers to the documents and pleadings filed in the state habeas court,
or state habeas clerk’s record, followed by page number.
3
1
SHCR.135. Freeney cleaned the room and Jones’s body to eliminate trace
evidence and then went “back home and chilled out.” SHCR.135–39.
About a week later, Freeney solicited another prostitute, Vicky
Dean, and brought her back to his bedroom. 16.RR.77; 25.RR.SX.55;
SHCR.154–55. Freeney went to his kitchen, drugged a drink, and
grabbed a knife. SHCR.156. Freeney had Dean lay on his bed and then
began stabbing her. SHCR.156–57. While struggling, Freeney told Dean
“she was stupid for being a prostitute” and that she should not “pick up
guys . . . on foot.” SHCR.158. She performed oral sex on Freeney—while
“[s]he’s bleeding pretty good”—until he ejaculated. SHCR.158–61.
Freeney then told Dean that he could not let her go and swung the
knife once more, driving it above her left eye. SHCR.161–64. Dean asked
to go to a hospital, but Freeney declined—“like what can they do, you
know.” SHCR.162. At that point, Dean asked Freeney to “‘[p]ull this knife
out of me so I can die,’” but Freeney refused, threw some linens over her
body, and went to a friend’s house. SHCR.162–65. Dean was hospitalized,
her health gradually deteriorating over a ten-day period, until she died
2
from brain trauma. 18.RR.73–74, 104–05. After considering the evidence,
the jury found Freeney guilty of capital murder. 3.CR.639. 4
3F
II.
The State’s Punishment Evidence
In between the Jones and Dean murders, Freeney “rushed”
Kimberly Bolden as she was opening her apartment door and beat her
“savagely.” 20.RR.6–15. Bolden pleaded with Freeney to take whatever
she had and “leave [her] alone,” but Freeney declined and, instead, “told
[Bolden] that he wanted to fuck[,] . . . asked [her] if [she] was going
to . . . give him some pussy, and when [Bolden] said no, [Freeney] just
like went into a rage.” 20.RR.15–17. Freeney eventually choked Bolden
into unconsciousness, but the police arrived shortly thereafter with
Freeney escaping through a rear window. 20.RR.17–20, 59–60. Bolden
was hospitalized for “five or six days” and suffered a variety of wounds,
including contusions to her face, multiple stab wounds to her upper body,
and a collapsed lung 20.RR.21, 62; 27.RR.SX.303.
Freeney also admitted to pulling a knife on another young
prostitute and taking her to a location where “there’s like no activity.”
“CR” refers to the documents and pleadings filed in the state convicting court,
or clerk’s record, preceded by volume number and followed by page numbers.
4
3
27.RR.SX.304; SHCR.166–169. Freeney described her as “cooperative
because she’s like I don’t want to die.” SHCR.169. Freeney then orally
and vaginally raped her and, after finishing, gave her “advice” to stop
prostituting and “be more careful.” SHCR.169–71.
Freeney further confessed to picking up two other teenaged girls,
driving them to a remote field, and raping one of them. SHCR.174–76.
Although Freeney had a knife on him, he did not have to display it
because the girls were, “in other words, . . . trapped” by their seclusion.
SHCR.175–76. Later, Freeney dropped them off at a restaurant and fled.
SHCR.177.
While in the Harris County Jail awaiting trial, Freeney was housed
in the highest security area. 21.RR.59–60. Nevertheless, Freeney was
described as a “constant discipline problem.” 21.RR.115. He threatened
violence and sexual abuse, assaulted inmates and guards, was found in
possession of weapons, and damaged jail property. 21.RR. 99–103, 120,
140–45, 181–84, 199–200, 207–08, 218–28. A couple jailers opined that,
based on their work in correctional settings, Freeney was violent, and
had a bad reputation for being peaceful and abiding the rules. 21.RR.70–
71, 145, 229.
4
III. Freeney’s Punishment Evidence
Dennis Longmire, an expert on Texas’s prison system, 22.RR.9,
testified that Freeney, as a “capital lifer,” would be immediately
designated as a high-security inmate, thereby limiting his exposure to
less-restricted areas of a prison and “free-world people.” 22.RR.21–22. He
opined that Texas prison guards are well trained, there are significant
resources to handle mentally-ill offenders, and parole was unlikely given
Freeney’s offense and sentence. 22.RR.24–25, 28–32, 39. He additionally
testified that “capital lifers” were significantly less likely to be violent in
prison and that, generally, prisons had low levels of violence as compared
with the outside world. 22.RR.33–34, 36–38.
G.K. Ravichandran, a psychiatrist, testified that he had treated
Freeney for slightly more than seven years prior to trial. 22.RR.79–85.
Dr. Ravichandran detailed his interactions with Freeney, first
diagnosing
him
with
“atypical
psychosis,”
22.RR.87,
then
“schizophreniform disorder,” 22.RR.90, then “schizoaffective disorder,”
22.RR.93. Dr. Ravichandran, however, stated that medication could
“quickly control [Freeney’s] symptoms.” 22.RR.94. He also opined that he
did not believe Freeney was malingering his symptoms. 22.RR.99.
5
Daneen Milam, a clinical psychologist and board-certified
neuropsychologist, 22.RR.215–21, evaluated Freeney over a three-day
period, reviewed “a lot” of records, and interviewed several “different
people,” 22.RR.221–29, before concluding that Freeney suffered from
schizophrenia, schizoaffective disorder, and major depression, though
she noted such conditions could be treated by medication, 22.RR.233–36.
She testified that Freeney had been off his medication for several weeks
to possibly months before the killings, 22.RR.243–44, and this, combined
with his use of “street drugs” and problems with his girlfriend,
22.RR.244, caused him to have a “psychotic break” around the time of the
murders, 22.RR.251. Dr. Milam also testified that Freeney’s childhood
“was pretty okay,” that he was quiet, reserved, and tidy as a child,
22.RR.229, but that his uncle sexually abused him, 22.RR.236, and that
his first psychotic break occurred while serving in the National Guard,
resulting in a medical discharge, 22.RR.229–38.
Leon Dwight Bey, a Harris County Deputy Sheriff and family
friend, testified that Freeney revealed to him instability in his life and
abuse he suffered as a child. 22.RR.122–30. Kobina Bryant, a friend of
Freeney’s for twenty years, testified that he observed significant changes
6
in Freeney’s behavior, including multiple paranoid episodes, after
Freeney spent time serving in the National Guard. 22.RR.135–45.
Cassandra Rouse, a friend of Freeney’s mother and who had known
Freeney for twenty years, testified that Freeney was well-behaved in
childhood but became “distant” and “angrier” after his National Guard
service. 22.RR.151–59. Another family friend who regularly baby-sat
Freeney, Lisa Angelle, testified that Freeney was “a normal kid” until
serving in the National Guard, at which point he was “more to himself,”
a “little weird,” and stopped taking care of himself. 22.RR.163–70.
Freeney’s mother, Helen Kelly Young, testified that he “was basically just
a normal kid,” admitted she “was a strict parent,” and that Freeney began
experiencing schizophrenic symptoms after his time in the National
Guard. 22.RR.178–89. Based on findings by the jury after considering the
evidence, Freeney was sentenced to death. 3.CR.651–53.
IV.
Course of State and Federal Proceedings
The Court of Criminal Appeals (CCA), on direct appeal, affirmed
the judgment of conviction. Freeney v. State, No. AP-74,776, 2005 WL
1009560 (Tex. Crim. App. Apr. 27, 2005). Freeney did not petition this
Court for a writ of certiorari from this proceeding.
7
Freeney also filed a state habeas application. SHCR.2–89, 224–33. 5
4F
Pertinent here, he raised an ineffective-assistance-of-trial-counsel
(ineffective-assistance) claim alleging that his attorneys—Robert Loper
(lead) and Layton Duer (second)—did not properly “investigat[e],
develop[], and present[] readily available [mitigating] evidence.”
SHCR.2–6. Specifically, trial counsel should have interviewed and called
as witnesses Freeney’s half-brothers (Patrick Reese and Jesse Kelly, Jr.),
his aunt (Trinan Miller), his stepfather and his stepfather’s wife (Johnny
Ray and Anita Reese), his son’s mother (Shavonnie McIntyre), and a
family friend (Toshie Lockridge), who all provided affidavits. SHCR.7–
19, 36–59, 80–81. Generally, these individuals described Freeney’s
mother, Helen, as mentally or physically abusive, derogatory, and in
frequent
and
violent
short-term
relationships.
See
SHCR.7–19.
Additionally, they variously stated that Freeney, in his youth, would
fight his mother and his brothers, was physically and sexually
aggressive, was maybe sexually abused by an uncle, and had possibly
attempted suicide. See SHCR.7–19. Freeney asserted that using this
“SHCR” refers to the documents and pleadings filed in the state habeas court
prior to the remand, or state habeas clerk’s record, followed by page number.
5
8
additional information, his testifying and consulting mental-health
experts at trial (Drs. Milam and Cecil Reynolds, respectively) could have
better explained the link between Freeney’s schizophrenia and his
violent sexual conduct. See SHCR.19–25, 64–66, 225–33.
Pursuant to court order, Freeney’s trial counsel provided affidavits
responding to the ineffective-assistance claim. SHCR.236–44. About a
month later, both Freeney and the State filed proposed findings of fact
and conclusions of law. SHCR.249–300. After considering the parties’
proposed findings, the state habeas trial court recommended denying
relief, finding that Freeney had proven neither deficient performance nor
prejudice. SHCR.248–99. After being forwarded the record, the CCA
remanded for additional, limited findings—whether Freeney’s lay
affiants were available and willing to testify, and the extent that trial
counsel had searched for or spoken with them. Ex parte Freeney, No. WR78,109-01, 2013 WL 1182745, at *1–2 (Tex. Crim. App. Mar. 20, 2013).
Lead counsel, after being provided a copy of his trial file to refresh his
recollection,
submitted
another
affidavit,
and
Freeney
offered
supplemental affidavits from several of his lay affiants. Suppl.SHCR.48–
68, 70–75. The state habeas trial court again recommended denial of
9
relief, addressing the matters on remand and reentering the ineffectiveassistance findings not implicated by the narrow scope of the remand.
Supp.SHCR.97–110. 6 The CCA adopted the trial court’s findings and
5F
denied relief. Order 1–2, Ex parte Freeney, No. WR-78,109-01 (Tex. Crim.
App. Aug. 20, 2014). 7 Freeney did not seek a writ of certiorari from this
6F
Court.
Freeney then filed a federal habeas petition. ROA.26–81.
Considering the ineffective-assistance claim, the district court applied 28
U.S.C. § 2254(d)’s deferential standard of review and concluded that the
state court’s decision was objectively reasonable as to both the
performance and prejudice prongs. ROA.312–32. In the alternative, the
court held that even if it did not defer to the state-court decision, the
court’s prejudice ruling “would not change under a de novo review.”
“Suppl.SHCR” refers to the documents and pleadings filed in the state habeas
court following remand, or supplemental state habeas clerk’s record, followed by page
number.
6
The CCA initially denied relief in an order that could be considered ambiguous.
Ex parte Freeney, No. WR-78,109-01, 2014 WL 333695, at *1 (Tex. Crim. App. Jan.
29, 2014); see also Respondent’s Motion for Leave to File a Motion for Clarification,
Ex parte Freeney, No. WR-78,109-01 (Tex. Crim. App. Feb. 11, 2014). The CCA later
withdrew its “previous order in [Freeney’s] case” and denied relief anew in a clarified
order. Order 1–2, Ex parte Freeney, No. WR-78,109-01 (Tex. Crim. App. Aug. 20,
2014).
7
10
ROA.360. The district court denied relief and a certificate of appealability
(COA). ROA.307–37.
Freeney appealed the denial of relief and moved the United States
Court of Appeals for the Fifth Circuit for a COA. Freeney v. Davis, 737 F.
App’x 198, 203 (5th Cir. 2018). Because Freeney’s initial federal habeas
attorney retired during the appeal, substitute counsel was appointed and
Freeney was permitted to file a supplemental brief. Order 1–2, Freeney
v. Davis, 737 F. App’x 198 (5th Cir. Feb. 23, 2017) (No. 16-70007).
Between these two briefs, Freeney made several arguments that either
the deference owed state-court decisions under § 2254(d) did not apply or
that he met an exception. See, e.g., Supplemental Application for
Certificate of Appealability 7–22, Freeney v. Davis, 787 F. App’x 198 (5th
Cir. May 24, 2017) (No. 16-70007). The Fifth Circuit rejected some of
these arguments on their merits, but declined to do so for others because
they had not been first raised in the district court. Freeney, 737 F. App’x
at 204–10. Overall, the Fifth Circuit declined to issue any COA at all. Id.
at 210. 8
7F
The decision for which Freeney seeks a writ of certiorari was a substitute
opinion on Freeney’s petitions for rehearing, both of which concerned matters not
relevant to Freeney’s present petition. See Freeney, 737 F. App’x at 199–200; see also
Petition for Panel Rehearing 1–8, Freeney v. Davis, 737 F. App’x 198 (5th Cir. Mar.
8
11
REASONS FOR DENYING THE PETITION
Freeney fails to provide a compelling reason to grant a writ of
certiorari. His request for exercise of the Court’s supervisory power is
improper—he presents no issue of court practice needing correction to
ensure the proper functioning of the federal judiciary. His circuit split is
irrelevant—some of the cases he cites are inapt, dealing with truncated
evidentiary development in state court, and others have been clearly
overruled by this Court’s precedent. His claimed procedural error in state
court is exaggerated—it might not have been an error at all and, if it was,
Freeney did not attempt to remediate it, and his habeas proceeding
comported with due process nevertheless. Finally, his alleged procedural
error was harmless—even if Freeney could have persuaded the state
court to find facts in his favor during the limited-in-scope remand, relief
would have still been denied, most clearly proven by the fact that the
federal district court alternatively denied his ineffective-assistance claim
under de novo review. Given the above, this case is not a good vehicle to
address the legal question Freeney presents.
26, 2018) (No. 16-70007); Petition for Rehearing En Banc 1–11, Freeney v. Davis, 737
F. App’x 198 (5th Cir. Mar. 26, 2018) (No. 16-70007).
12
I.
The Lower Court Did Not Adopt a Rule Requiring This
Court’s Intervention.
Freeney contends that the lower court’s ruling prohibits a “federal
court . . . from granting relief no matter how egregious the process
employed by the state court in adjudicating federal constitutional
rights[.]” Pet. Writ Cert. 24–25. Because of this supposed holding,
Freeney claims intervention is necessary as the ruling departs from the
accepted and usual course of judicial proceedings. Id.
Freeney’s characterization of the lower court’s ruling is as broad as
it is wrong. The court below had no reason to decide whether relief could
be granted in any federal habeas case as no court is called to decide such
sweeping issues (nor could it without violating prohibitions on advisory
opinions). Relevant here, the lower court first addressed whether
Freeney’s ineffective-assistance claim had been “adjudicated on the
merits in State court” despite a claimed procedural due process violation.
Freeney, 737 F. App’x at 204. The Fifth Court held that “adjudication on
the merits” speaks to whether “the state court reached the merits of the
petitioner’s claims rather than deciding it on procedural grounds.” Id. at
204. The court went on to explain that, “[i]n any event, Freeney received
an ‘opportunity to be heard’ in the state habeas court” such that he failed
13
to prove a due process violation. Id. at 204–05. The lower court then
addressed whether the alleged state-court procedural flaw constituted an
antecedent unreasonable application of clearly established law such that
§ 2254(d) was overcome. Id. at 205. The Fifth Circuit held that Freeney
failed to make such a showing given the facts of his case. Id. at 205–06. 9
8F
As demonstrated above, rather than addressing some far-reaching,
speculative question untethered to the facts of the case—whether relief
could be granted in any federal habeas case—the lower court simply
addressed the legal issues presented considering the facts before it. In
other words, the court engaged in the normal process of applying the law
to the facts. Consequently, the underpinning for Freeney’s judicialproceedings-departure argument does not exist and review is therefore
unwarranted on such basis.
Moreover, although Freeney frames his judicial-proceedingsdeparture argument as requiring this Court’s “intervention,” Pet. Writ
Cert. 24, he appears to really be asking this Court to exercise its
The Fifth Circuit has found that antecedent unreasonable applications of this
Court’s due process precedent strip the deference normally owed a state court
decision, see, e.g., Wiley v. Epps, 625 F.3d 199, 207–13 (5th Cir. 2010), thus proving
incorrect Freeney’s claim that the Fifth Circuit’s holding here—which is simply
application of its own longstanding precedent—forever prohibits the grant of federal
habeas relief.
9
14
“supervisory power,” Sup. Ct. R. 10(a), over the federal judiciary. As
explained above, however, the Fifth Circuit addressed legal issues
considering the facts presented. Analyzing claims raised on appeal
represents the “accepted and usual course of judicial proceedings,” id.,
not a departure therefrom. And Freeney’s call for review certainly does
not fit those rare cases in which supervisory intervention was justified by
departure from the normal adjudicatory process like the improper
adoption of local rules, Hollingsworth v. Perry, 558 U.S. 183, 196 (2010),
or where there is a question about “the validity of the composition of the
Court of Appeals,” Nguyen v. United States, 539 U.S. 69, 81 (2003). Stated
otherwise, Freeney does not present a matter of jurisdiction, practice, or
procedure of the federal judiciary requiring supervisory intervention to
ensure proper court functioning. Rather, Freeney’s review request is a
disguised plea for error correction, hardly worthy of a writ of certiorari.
See Sup. Ct. R. 10 (the Court will “rarely” grant review where “the
asserted error consists of erroneous factual findings or the misapplication
of a properly stated rule of law”). Freeney’s petition, improperly seeking
supervisory intervention, should be denied.
15
II.
If There Is a Circuit Split, It Is Not Relevant to This Case.
Freeney claims that there is “a circuit split on the question of
whether deference is due a state court decision where the state court
unreasonably fails to consider material evidence.” Pet. Writ Cert. at 25.
To support his supposed split, Freeney claims that several circuits hold
there is no adjudication on the merits for purposes of triggering
§ 2254(d)’s deferential standard of review when there is a materially
incomplete record in state court. Pet. Writ Cert. 25–29 (citing, inter alia,
Winston v. Kelly, 592 F.3d 535, 555–56 (4th Cir. 2010); Wilson v.
Workman, 577 F.3d 1284, 1290–93 (10th Cir. 2009) (en banc); Brown v.
Smith, 551 F.3d 424, 428–29 (6th Cir. 2008); Drake v. Portuondo, 321
F.3d 338, 345 (2d Cir. 2003)).
A.
The no-adjudication-on-the-merits
forfeited in the court below.
argument
was
Initially, the Court should not reach Freeney’s present noadjudication-on-the-merits argument because he failed to preserve it in
the courts below. In the district court, while Freeney argued that there
was no state-court adjudication on the merits, ROA.51, this was based on
an argument that the “limits to the rules of preclusion and the [D]ue
[P]rocess [C]lause prohibit application of § 2254(d) to Freeney’s
16
[ineffective-assistance] claim,” ROA.52. And Freeney’s initial federal
habeas attorney raised this due-process-based argument on appeal. See
Request for the Issuance of a Certificate of Appealability and Supporting
Brief 24, Freeney v. Davis, 787 F. App’x 198 (5th Cir. June 6, 2018) (No.
16-70007) (“[Freeney] argued that application of [§ 2254(d)] by the
district court to Freeney’s claim would violate due process because the
state court habeas judgment to which preclusion was being applied was
obtained in violation of fundamental due process.”); Petitioner’s Reply
Brief 2, Freeney v. Davis, 787 F. App’x 198 (5th Cir. July 28, 2016) (No.
16-70007) (“It is whether due process precludes application of the
statute—specifically § 2254(d)’s relitigation bar—where the prior state
court adjudication on which preclusion is being based itself violated due
process.”). But this no-adjudication-on-the-merits argument rooted in the
Due Process Clause is distinct from what Freeney now advances—the
statutory question of what constitutes a merits adjudication under
§ 2254(d). Pet. Writ Cert. 25–26. It was only in Freeney’s supplemental
briefing on appeal, filed by his second federal habeas attorney, that he
raised this precise argument. Supplemental Application for Certificate of
Appealability 10–12, Freeney v. Davis, 787 F. App’x 198 (5th Cir. May 24,
17
2017) (No. 16-70007). And in this supplemental briefing, Freeney
effectively conceded its first-time presentation on appeal by labeling it as
an “[a]dditional application for COA.” Id. at 10 (emphasis added).
However, the Fifth Circuit did not pass upon Freeney’s present,
statutory no-adjudication-on-the-merits argument “as [he] did not
present [it] to the district court” and “‘[a] district court must deny the
COA before a petition can request one from this court.’” Freeney, 737 F.
App’x at 210 (second alteration in original) (quoting Brewer v.
Quarterman, 475 F.3d 253, 255 (5th Cir. 2006)). The Fifth Circuit
routinely refuses to address matters raised for the first time on appeal,
see, e.g., Shami v. Comm’r, 741 F.3d 560, 572 (5th Cir. 2014), as does this
Court, see, e.g., Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134,
140 n.2 (2014). And, because this is a “court of review, not of first view,”
the Court rarely considers issues not already addressed in the lower
courts. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). The Court
should adhere to its normal practice of declining to decide issues not
previously
passed
upon,
especially
because
Freeney
does
not
acknowledge his tardiness nor try to excuse it, and deny his petition on
such basis.
18
B.
Freeney fails to prove that his circuit split exists or is
relevant to his case.
Nonetheless, and assuming the truth of Freeney’s caselaw
summation, it is not applicable here. On remand from the CCA, the state
habeas trial court’s original scheduling order did three things: (1) it
required Freeney to provide his former trial counsel a copy of his file,
which trial counsel had previously given to his state habeas counsel, to
refresh his recollection, (2) it set a deadline for additional affidavits from
trial counsel, and (3) it set a deadline for submission of proposed findings
by the parties. Suppl.SHCR.23–25. 10 Thus, the only limitation placed on
9F
Freeney
was
when
he
could
submit
his
proposed
findings,
Suppl.SHCR.24, but the order did not speak to whether or when Freeney
could provide additional evidence or argument. And, indeed, Freeney
submitted additional evidence—new affidavits from some of the
witnesses he claimed trial counsel should have called on his behalf.
Suppl.SHCR.46–68. Thus, the only identified procedural error is not
being given the full complement of time to submit his proposed findings,
The second scheduling order had deadlines for providing affidavits, but left
unclear who was responsible for collecting or filing the affidavits. Suppl.SHCR.29–
31. In other words, the second scheduling order did not place any burdens or
limitations on either party.
10
19
not about being denied requested evidentiary development. 11 See Pet.
10F
Writ Cert. 4 (“The parties were to have twenty-one days to file their
[proposed findings] following the filing of the affidavits of trial counsel.
Instead of honoring this schedule, . . . the trial court adopted the State’s
proposed findings[.]”).
Because the true, supposed procedural error is not the denial of
requested evidentiary development, two of the circuit “split” cases are
inapplicable. In Winston, the Fourth Circuit concluded that there was no
adjudication on the merits in state court because the petitioner was
denied his “requested discovery and an evidentiary hearing.” Winston,
592 F.3d at 557. In Wilson, a case that is “no longer good law,” Glossip v.
Trammell, 530 F. App’x 708, 736 (10th Cir. 2013), the Tenth Circuit
reached the same conclusion because there was a procedural “rule [that]
prevent[ed] the state court from even considering the factual grounds” of
a claim, Wilson, 577 F.3d at 1292. Assuming these decisions are correctly
decided, they do not apply to the case at hand—at best, a procedural error
The state habeas trial court twice determined that factual development would
be in the form of affidavits, once before and once after remand. SHCR.214–15;
Suppl.SHCR.23–25. Freeney never objected to these determinations, again
demonstrating that any process defect is limited to not receiving the entire period in
which to file proposed findings.
11
20
making the filing of supplemental proposed findings difficult, though not
impossible—because the state-court error, if any, was not one concerning
denial of evidentiary development.
The third case upon which Freeney relies does not even arguably
support his position. Rather, in Drake, the Second Circuit found that the
petitioner’s claims were “adjudicated on the merits in state court.” Drake,
321 F.3d at 343. This is clearly contrary to Freeney’s no-adjudication-onthe-merits argument. Regardless, the Second Circuit went on to hold
that, because no facts had been adduced regarding a false-evidence claim,
it could not “assess whether the [state court’s] conclusion represented an
unreasonable application of federal law,” so it “permitted [the petitioner]
to develop the record further” in federal court. Id. at 345. This, of course,
is no longer permitted. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011)
(“[E]vidence introduced in federal court has no bearing on § 2254(d)(1)
review.”). And while the Second Circuit has accepted this limitation on
federal habeas review, Jackson v. Conway, 763 F.3d 115, 135 (2d Cir.
2014), it apparently has not found the need to explicitly overrule Drake.
Nevertheless, neither Drake’s express holding of state-court merits
21
adjudication, nor its clearly overturned § 2254(d) analysis, support
Freeney’s position on the circuit “split.”
The final case on Freeney’s side of the supposed circuit split suffers
the same fate as Drake—it has been overruled by Pinholster. In Brown,
the Sixth Circuit held that, because “new, substantial evidence
supporting a habeas claim c[a]me[] to light during the proceedings in
federal district court,” there was no adjudication on the merits in state
court. Brown, 551 F.3d at 429. Unlike the Second Circuit, the Sixth
Circuit has explicitly overruled its now-defunct interpretation of a merits
adjudication in state court. See Ballinger v. Prelesnik, 709 F.3d 558, 561–
62 (6th Cir. 2013). Brown therefore provides Freeney no support for his
no-adjudication-on-the-merits circuit “split.” And because none of his
circuit “split” cases either address the supposed error here, or are left
standing post-Pinholster, Freeney fails to prove a relevant split on the
issues before this Court. 12 As such, his petition should be denied.
11F
Freeney identifies another group of cases to support a circuit “split,” claiming
that the Fourth, Ninth, and Tenth Circuits, under § 2254(d)(2), take into account the
quality of the state-court fact finding process in determining whether there was an
unreasonable determination of fact. See Pet. Writ Cert. 30–31 (citing Smith v.
Aldridge, 904 F.33d 874, 882–83 (10th Cir. 2018); Moore v. Hardee, 723 F.3d 488, 499
(4th Cir. 2013); Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). That may be
true, but is irrelevant here. In Freeney’s case, the Fifth Circuit did not decide
whether, under § 2254(d)(2), a supposed state-court procedural defect could render a
12
22
III. Freeney Has Procedurally
Procedural Error.
Defaulted
His
Claim
of
An additional vehicle problem infects Freeney’s petition: default.
Freeney insists that he is entitled to de novo review because the state
habeas trial court, on limited remand from the CCA, erred by issuing
recommended findings of fact and conclusions of law before hearing from
Freeney. Freeney could have raised this complaint in state court by filing
objections to the recommended findings, but he did not. See Ex parte
Butler, 416 S.W.3d 863, 869 (Tex. Crim. App. 2012) (Cochran, J.,
concurring) (noting objections); Ex parte Briseno, 135 S.W.3d 1, 4 n.5
(Tex. Crim. App. 2004) (same), abrogated in part by Moore v. Texas, 137
S. Ct. 1039 (2017); cf. Tex. Code Crim. Proc. art. 11.071 § 8(d)(2)
(requiring the district court clerk to “immediately send to” “counsel for
fact finding unreasonable, and that is because Freeney did not raise such a complaint
in the district court, ROA.40–71, or the Fifth Circuit, either in his initial briefing,
Petitioner’s Reply Brief 2–15, Freeney v. Davis, 787 F. App’x 198 (5th Cir. July 28,
2016) (No. 16-70007); Request for the Issuance of a Certificate of Appealability and
Supporting Brief 24–60, Freeney v. Davis, 787 F. App’x 198 (5th Cir. June 6, 2018)
(No. 16-70007), or his supplemental briefing, Supplemental Application for
Certificate of Appealability 7–46, Freeney v. Davis, 787 F. App’x 198 (5th Cir. May
24, 2017) (No. 16-70007). There is a difference between whether a standard of review
applies and whether it is met. If there is a conflict between circuits on this point, it is
not one that implicates Freeney’s case. Thus, the Court should decline to weigh in on
Freeney’s § 2254(d)(2) issue because it was not raised in or passed upon by the court
below, see Cutter, 544 U.S. at 718 n.7, it is raised here for the first time, see NML
Capital, Ltd., 573 U.S. at 140 n.2, and it is not a relevant circuit split if there is a
split at all.
23
the applicant” “findings of fact and conclusions of law entered by the
court”).
This Court has repeatedly held that “principles of comity and
federalism” prevent petitioners from obtaining federal habeas relief
based on arguments not presented in state court. Edwards v. Carpenter,
529 U.S. 446, 451 (2000). In Edwards, for example, the Court held that a
basis for “cause” to escape a procedural default and achieve de novo
review in federal court must first be presented to state courts. Id. at 451–
52. Thus, cause itself may be procedurally defaulted. Id. 13 And just last
12F
term in Sexton v. Beaudreaux, the Court rejected a petitioner’s attempt
to
satisfy
§ 2254(d)(1)
and
achieve
de
novo
review
with
“arguments . . . never even made in his state habeas petition.” Sexton v.
Beaudreaux, 138 S. Ct. 2555, 2560 (2018) (per curiam). The upshot is that
“the States’ interest in correcting their own mistakes is respected in all
federal habeas cases.” Edwards, 529 U.S. at 453 (quoting Coleman v.
Thompson, 501 U.S. 722, 732 (1991)). Freeney deprived the Texas courts
The Court has recognized a narrow exception to this rule for certain ineffectiveassistance-of-trial-counsel claims that were not raised at all in state habeas
proceedings. See Martinez v. Ryan, 566 U.S. 1, 17 (2012). Martinez does not apply to
this case and the Court has since made clear that Martinez’s exception will not be
extended. See Davila v. Davis, 137 S. Ct. 2058, 2066 (2017).
13
24
of the opportunity to address his current complaint, instead opting to
sandbag in federal court in an effort to achieve de novo review.
Accordingly, the federal courts may not consider this complaint.
IV.
The Alleged Procedural Defect Did
Unadjudicated What Was Clearly a
Adjudication on the Merits.
Not Render
State Court
The Court has recently, in general terms, considered the condition
precedent necessary for application of § 2254(d)—that a claim be
“adjudicated on the merits in State court proceedings.” § 2254(d). In
Harrington v. Richter, a petitioner raised an ineffective-assistance claim,
offering statements from several experts in support of his position.
Harrington v. Richter, 562 U.S. 86, 96 (2011). The state court, without a
hearing and in a one-sentence, unreasoned order, denied relief. Id. The
petitioner asserted that his claim was unadjudicated on the merits
because the state court “did not say it was” doing so. Id. at 99. The Court
rejected that argument, noting that the “state court did not say it was
denying the claim for any other reason,” and created a presumption of
merits adjudication “in the absence of any indication or state-law
procedural principles to the contrary.” Id. The petitioner tried to
25
overcome this presumption, but his arguments were “pure speculation.”
Id. at 100.
Then, in Johnson v. Williams, the Court discussed the phrase
“adjudicated on the merits,” noting that “[a] judgment is normally said to
have been rendered ‘on the merits’ only if it was ‘delivered after the
court . . . heard and evaluated the evidence and the parties’ substantive
arguments.’” Johnson v. Williams, 568 U.S. 289, 302 (2013) (quoting
Black’s Law Dictionary 1199 (9th ed. 2009)). The Court contrasted this
definition with hypothetical instances where a claim was unfairly
presented, id. at 302 n.3, or where it was “rejected as a result of sheer
inadvertence,” id. at 302–03.
Freeney’s case readily meets the Court’s general definition of
adjudication on the merits. Freeney’s state habeas application was filed
on January 25, 2005. SHCR.28. The State filed its answer on July 25,
2005. SHCR.95. The state district judge who first considered Freeney’s
case took the bench on January 1, 2009. 2008 General Election—Harris
County, Texas Secretary State, https://elections.sos.state.tx.us/elchist14
1_county101.htm (last visited Apr. 4, 2019). On December 12, 2012, after
receiving affidavits from both of Freeney’s trial counsel, SHCR.236–37,
26
240–44, and proposed findings from both parties, SHCR.248, 259, the
judge entered thirty-eight pages of findings expressly considering the
evidence and claims presented and recommending denial of relief on all
grounds raised, SHCR.260–99. About two weeks later, the record was
forwarded to the Court of Criminal Appeals. SHCR.373.
On March 20, 2013, the CCA remanded the case for an
exceptionally limited purpose—developing facts about whether Freeney’s
postconviction affiants would have testified on his behalf at trial and
whether or not trial counsel contacted these individuals. Ex parte
Freeney, 2013 WL 1182745, at *2. By that time, another judge had been
elected, having taken the bench on January 1, 2012. 2012 General
Election—Harris County, Texas Secretary State, https://elections.sos.stat
e.tx.us/elchist164_county101.htm (last visited Apr. 4, 2019). This judge’s
findings, entered on December 10, 2013, spanned twelve pages,
addressed the new evidence relevant to the “narrow” remand order, and
reentered the ineffective-assistance findings not effected by the
remanded topics. Suppl.SHCR.97–110. A couple weeks later, the
supplemental record was sent to the CCA. Suppl.SHCR.114. Then, on
August 20, 2014, the CCA denied relief “[b]ased upon the trial court’s
27
findings and conclusions and our own review of the record[.]” Order 2, Ex
parte Freeney, No. WR-78,109-01 (Tex. Crim. App. Aug. 20, 2014).
There can be no doubt that the state court heard and evaluated the
parties’ evidence and argument. See Williams, 568 U.S. at 302. The first
state trial judge had nearly four years with the case and, in painstaking
detail, addressed the evidence and argument in recommended findings.
Then, the CCA had the case for about four months and remanded for
limited additional fact finding, meaning it necessarily reviewed the
record and found parts of it wanting. Thereafter, the second state trial
judge had the case for about nine months and, again, explicitly addressed
the new evidence in light of Freeney’s prior argument. 14 Finally, the CCA
13F
had the case again for about another eight months and, regardless of the
trial court’s proposed findings, denied relief on its “own review of the
record[.]” Order 2, Ex parte Freeney, No. WR-78,109-01 (Tex. Crim. App.
Aug. 20, 2014). Given the above, there is no basis, considering the state
court orders and procedural history, to conclude there was not a merits
adjudication; it is a historical fact.
The remand was to flesh out certain facts, not for Freeney to amend his legal
argument. See Ex parte Freeney, 2013 WL 1182745, at *2.
14
28
Yet, Freeney wants to unravel this work because he claims to have
been misled about when he could file his proposed findings. It is true that,
during the remand, the state habeas trial court initially gave the parties
a twenty-one-day window to file proposed findings. SHCR.24. But then
the court entered a second order that made no provision for proposed
findings. SHCR.29–31. If the state habeas trial court intended the second
order to be an amended scheduling order, then Freeney has not proven
any error as the court deleted the proposed-findings deadline. And if
there is no error, there is no basis for preventing application of § 2254(d)
and no basis for a writ of certiorari.
Even if the state habeas trial court committed a procedural error,
that cannot transmogrify merits adjudication into non-adjudication. For
example, a district court analyzing a motion for reconsideration under
Rule 59(e) instead of Rule 54(b) of the Federal Rules of Civil Procedure
does not mean that the court did not adjudicate the merits of the motion.
See, e.g., Cabral v. Brennan, 853 F.3d 763, 766 (5th Cir. 2017). And a jury
that hears evidence that should have been excluded can still render a
verdict on the merits. See, e.g., Williams v. Manitowoc Cranes, L.L.C.,
898 F.3d 607, 615, 623–28 (5th Cir. 2018). Procedural errors during an
29
adjudicatory process are entirely different than missing a claim due to
inadequate presentation or negligence. See Williams, 568 U.S. at 302–03.
At worst, Freeney has arguably proven the former, but not the latter.
Here, there was unquestionably an adjudication on the merits in state
court and any argument to the contrary simply ignores a matter of fact.
V.
If There Was Procedural Error in the State Court
Postconviction Process, It Was Harmless and Relief Was
Correctly Denied.
As mentioned above, Freeney filed proposed findings prior to the
remand by the CCA. SHCR.248. In them, he laid out his view of the
facts—that trial counsel were deficient in their mitigation investigation
and therefore “presented a false picture of [him]” to the sentencing jury.
SHCR.249–56. This was irrespective of whether Freeney’s lay affiants
were available to testify at trial and whether they were contacted by trial
counsel. SHCR.249–56. Thus, when faced with those questions on
remand, the state habeas trial court could readily assume that Freeney
had not changed his position on whether relief was due. Indeed, Freeney
adheres to this position today. Pet. Writ Cert. 6 (“At trial level, defense
counsel relied upon a defective investigation to decide to present a
mitigation theory that was factually false.”).
30
Given the above, Freeney was able to say his piece or, in terms of
due process, he “received an ‘opportunity to be heard’ in the state habeas
court. Freeney, 737 F. App’x at 205; see Ford v. Wainwright, 477 U.S. 399,
427 (1986) (Powell, J., concurring) (concluding, in a competency-to-beexecuted scenario, that due process required “an impartial officer or
board that can receive evidence and argument,” but “[b]eyond these basic
requirements, the States have substantial leeway to determine what
process best balances the various interests at stake”). Due process does
not, however, require that Freeney be provided two opportunities to say
the same thing. The state court process was therefore fundamentally fair
and the procedural error, if any, was harmless.
Moreover, Freeney’s process complaint is rendered all the less
extraordinary because, on remand, the state habeas trial court assumed
the contested fact most favorable to Freeney—that trial counsel did not
contact Freeney’s lay affiants—yet still found trial counsel’s mitigation
investigation within professional norms. Suppl.SHCR.102–06. And the
court still found, even assuming the truth of everything in Freeney’s
affidavits, that he could not prove prejudice. Suppl.SHCR.107. If there
was procedural error, and if it deprived Freeney a second opportunity to
31
advance his view about witness availability and attorney effort, it was
especially harmless on this record.
Further diminishing harm, if any, is that the CCA is “the ultimate
factfinder” in habeas proceedings, Ex parte Reed, 271 S.W.3d 698, 727
(Tex. Crim. App. 2008), because it has the sole authority to grant habeas
relief in Texas, Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App.
1985) (“It is well established that only the [CCA] possesses the authority
to grant relief in a post-conviction habeas corpus proceeding[.]”). As such,
the CCA independently reviews the record and the work done at the trial
court level, as it did here. Order 2, Ex parte Freeney, No. WR-78,109-01
(Tex. Crim. App. Aug. 20, 2014).
That the possible procedural error was harmless is best exemplified
by the fact that the federal district court denied relief without the
deference of § 2254(d)—“this Court’s discussion of . . . prejudice would
not change under a de novo review.” ROA.326. Hence, even if there was
no adjudication on the merits in state court, and thus no § 2254(d)
deference to that decision, Freeney was still properly denied habeas
corpus relief in federal court.
32
To be sure, assuming that trial counsel performed deficiently, and
assuming that all of Freeney’s postconviction affiants would have
testified at Freeney’s capital murder trial consistently with their
affidavits, he would still lose. The standard of Strickland v. Washington,
466 U.S. 668 (1984), governs ineffective-assistance claims. See
Pinholster, 563 U.S. at 189 (“There is no dispute that the clearly
established federal law here is Strickland v. Washington.”). To prove
ineffectiveness, a petitioner must establish that counsel’s actions or
omissions were deficient and that such deficiency prejudiced the defense.
Strickland, 466 U.S. at 687.
Concerning prejudice, a petitioner must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
It is not enough “to show that the errors had some conceivable effect on
the outcome of the proceeding.” Id. at 693. Rather, counsel’s errors must
be “so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. at 687. In other words, “[t]he likelihood of a
different result must be substantial, not just conceivable.” Richter, 562
33
U.S. at 112. To make this determination, a reviewing court must
“consider all the relevant evidence that the jury would have had before it
if [the petitioner] had pursued a different path—not just the . . . evidence
[the petitioner] could have presented, but also the . . . evidence that
almost certainly would have come in with it.” Wong v. Belmontes, 558
U.S. 15, 20 (2009) (per curiam).
“Surmounting Strickland’s high bar is never an easy task.” Padilla
v. Kentucky, 559 U.S. 356, 371 (2010). “Even under de novo review, the
standard for judging counsel’s representation is a most deferential one.”
Richter, 562 U.S. at 105. And here, even under de novo review, as the
district court recognized, Freeney loses on prejudice.
To briefly summarize the State’s case at the guilt-innocence phase
of trial, Freeney choked Jones, a child, into unconsciousness, began
trying to have sex with her limp body, and then stabbed her when she
awoke. Jones performed oral sex on Freeney until she died from her
wounds. Afterwards, Freeney cleaned the crime scene and then simply
went “home and chilled out.” It is difficult to imagine a more ignoble
ending to a child’s life.
34
But Freeney was not done—he also stabbed Dean, compelling her
to perform oral sex on him while suffering grievous wounds. All the while,
Freeney matter-of-factly told her that she was going to die, that no one
could help her, and that he would not provide her the courtesy of a quick
death after she begged for it. Instead, he threw bedding over her body
and went to a friend’s house. See supra Statement of the Case I.
These murders were particularly powerful in aggravation. First, as
described above, the facts were particularly heinous. See Woodford v.
Visciotti, 537 U.S. 19, 26 (2002) (upholding, as reasonable, a finding of
overwhelming aggravation where the defendant executed “only” one
victim, attempted to execute another, knifed another man, and stabbed
a pregnant woman). Second, “the strongest possible evidence” of
aggravation is “that [Freeney] was responsible for not one but two
murders.” Wong, 558 U.S. at 25. Third, Freeney confessed to these
murders and “[a] confession is like no other evidence. Indeed, ‘the
defendant’s own confession is probably the most probative and damaging
evidence that can be admitted against him.’” Arizona v. Fulminante, 499
U.S. 279, 296 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139–
40 (1968) (White, J., dissenting)). Fourth, “the cold, calculated nature of
35
the . . . murder[s] and [Freeney’s] subsequent [emotionless description]
about it would have served as a powerful counterpoint” to any additional
mitigating evidence. Belmontes, 448 U.S. at 25. The capital murder, by
itself, outweighs all of Freeney’s postconviction mitigation evidence.
But, in addition to the murders, there was the attempted rape and
murder of Bolden, resulting in wounds requiring almost a week of
hospitalization. There was also the rape of two other young women, one
a teenager, and the fact that Freeney was found negotiating with another
prostitute when he was arrested—he was not going to cease killing until
someone stopped him. And, even then, Freeney was violent and sexually
aggressive in jail awaiting trial. See supra Statement of the Case II.
While Freeney may have been able to present an arguably more
sympathetic punishment case using his lay affiants (physical and
emotional abuse, a chaotic home environment, school difficulties, and
parental abandonment), and while his mental-health experts believed
they could have better accounted for why Freeney’s mental illness
expressed itself in a fit of violent, sexual aggression, it was still not
enough to overcome the State’s overwhelming aggravating evidence.
36
First, Freeney’s postconviction mitigation evidence was not close to
the “nightmarish childhood”
suffered by
petitioners who
have
successfully demonstrated entitlement to federal habeas relief. Compare
Williams v. Taylor, 529 U.S. 362, 395–96 (2000). Indeed, Freeney has
presented no evidence that any of the witnesses who testified on
Freeney’s behalf at trial—including multiple people that knew him since
childhood—have recanted their recollections.
Second, while Freeney’s experts believed they could better explain
his actions vis-à-vis mental illness, “jurors may not be impressed with
the idea that to know the cause of viciousness is to excuse it; they may
conclude that, when violent behavior appears to be outside the
defendant’s power of control, capital punishment is appropriate to
incapacitate.” Burris v. Parke, 116 F.3d 256, 260 (7th Cir. 1997)
(Easterbrook, J.); see Atkins v. Virginia, 536 U.S. 304, 321 (2002) (mental
health conditions “can be a two-edged sword that may enhance the
likelihood that the aggravating factor of future dangerousness will be
found by the jury”).
Third, Freeney’s postconviction affiants also presented aggravating
evidence, like the fact that Freeney would “try to fight [his mother] like
37
someone on the street,” that he “savage[ly]” beat on his brothers, and that
he fought his classmates and neighbors because his “response to
everything was to hit.” SHCR.37–39, 49. This simply adds to the State’s
punishment case.
Fourth, his experts’ conclusion that Freeney’s schizophrenia was
deeply entwined with sex and violence is double-edged. See, e.g., Ladd v.
Cockrell, 311 F.3d 349, 360 (5th Cir. 2002) (listing a crime “with sexual
overtones” as being “double-edged”); Dowthitt v. Johnson, 230 F.3d 733,
745 (5th Cir. 2000) (concluding that evidence of “mental illness” is
“double edged in nature”); Kitchens v. Johnson, 190 F.3d 698, 702–03 (5th
Cir. 1999) (listing “instances of extreme violence” as “double-edged”).
Again, this hurts more than helps Freeney.
Fifth, there are evidentiary conflicts in Freeney’s postconviction
mitigation evidence, between itself and with the mitigation evidence
presented at trial. For example, alleging that his mother, Helen, was
physically abusive is not supported by all of Freeney’s lay affiants and it
conflicts with Dr. Ravichandran’s description of her at trial “as a very
dedicated mother[.]” 22.RR.88. This would have diminished the
evidence’s potential impact. See, e.g., Pinholster, 563 U.S. at 202 (“[S]ome
38
of the new testimony would likely have undercut the mitigating value of
the testimony by [the petitioner’s] mother.”).
Sixth, some of Freeney’s postconviction mitigation evidence was
cumulative of that presented at trial, like sexual abuse of Freeney by his
uncle or that Freeney lived “with [his] grandmother from . . . the second
grade to the fifth grade.” 22.RR.231, 236. This, too, weighs against a
finding of prejudice. Pinholster, 563 U.S. at 200.
Seventh, some of Freeney’s postconviction mitigation evidence was
not well substantiated. Patrick, Freeney’s half-brother, said a cut on
Freeney “could have been” a suicidal gesture. SHCR.40 (emphasis
added). Dr. Milam said that Freeney’s exposure to childhood violence
“may have le[]d to an aggressive and assaultive expression of mental
illness.” SHCR.225 (emphasis added). Dr. Reynolds opined that he could
have “likely” diagnosed Freeney with post-traumatic stress disorder “if
follow-up evaluation and interviews with Freeney substantiated this now
strong suspicion.” SHCR.232 (emphasis added). Speculation does not
prove prejudice, see, e.g., Richter, 562 U.S. at 112, and neither does a
possible diagnosis, see Smith v. Quarterman, 515 F.3d 392, 405 (5th Cir.
2008) (“Her evaluation lacks any conclusive determinations of whether
39
[the petitioner] suffers from organic brain damage and cognitive
impairment; therefore, we cannot conclude, based on her statement, that
a psychological evaluation would have altered [the petitioner’s]
sentence.”).
Given the above, even if § 2254(d) did not apply to the state court’s
explicit and detailed rejection of Freeney’s ineffective-assistance claim,
the lower court’s de novo rejection of it on prejudice grounds remains the
correct decision. In other words, Freeney would not be entitled to federal
habeas relief even if this Court ruled in his favor regarding state-court
adjudication on the merits. Freeney’s petition should therefore be denied.
CONCLUSION
Freeney has failed to show that there are compelling grounds to
issue a writ of certiorari. Consequently, Freeney’s petition seeking such
extraordinary relief should be denied.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
ADRIENNE MCFARLAND
Deputy Attorney General
For Criminal Justice
40
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
MATTHEW OTTOWAY
Assistant Attorney General
State Bar No. 24047707
Counsel of Record
Post Office Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1400
matthew.ottoway@oag.texas.gov
Attorneys for Respondent
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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.