Petition for Writ of Certiorari — John Hummel, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

NO. ________________

(Capital Case)

In the

Supreme Court of the United States

JOHN HUMMEL, Petitioner

v.

LORIE DAVIS, Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Michael Mowla

P.O. Box 868

Cedar Hill, TX 75106

Phone: 972-795-2401

Fax: 972-692-6636

michael@mowlalaw.com

Counsel of Record

Kristin R. Brown

17304 Preston Road Suite 1250

Dallas, TX 75252

Phone: 214-446-3909

Fax: 214-481-4868

kbrown@idefenddfw.com

Date: April 1, 2019

i

QUESTIONS PRESENTED

1. In Skipper v. South Carolina, 476 U.S. 1 (1986), the trial court ruled as irrelevant

the testimony of two jailers and a “regular visitor” that Skipper behaved well and

“made a good adjustment” during 7.5 months of pretrial custody. This Court held

that the exclusion of relevant mitigating evidence impedes the jury’s ability to

carry out its task of considering all relevant facets of a defendant’s character and

record. “[C]onsideration of a defendant’s past conduct as indicative of his probable

future behavior is an inevitable and not undesirable element of criminal

sentencing…and any sentencing authority must predict a (defendant’s) probable

future conduct when it engages in the process of determining what punishment to

impose.” In other words, the best predictor of future behavior is past behavior.

Hummel was in pretrial incarceration for 19 months and the deputies who

interacted with him daily were available and willing to testify that Hummel was a

low-risk inmate who behaved very well. However, trial counsel did not bother

investigating and adducing this critical mitigative evidence.

Question: Under the Sixth Amendment, Strickland v. Washington, 466 U.S. 668

(1984), Wiggins, and Wong, does a death penalty defendant receive ineffective

assistance of trial counsel if trial counsel fails to investigate and adduce available

evidence regarding the defendant’s exceptional behavior during a lengthy pretrial

incarceration, thereby impeding the jury’s ability to carry out its task of

considering all relevant facets of the defendant’s character and record?

2. Under Smith v. Robbins, 528 U.S. 259 (2000), the Sixth and Fourteenth

Amendments require the effective assistance of appellate counsel under the

Strickland standard. Under United States v. Montoya de Hernandez, 473 U.S. 531

(1985), the Fourth Amendment applies to border-searches unless it is “routine” or

agents, considering all facts surrounding the traveler and his trip, reasonably

suspect that he is smuggling contraband. Under 8 U.S.C. § 1357(a)(5) and 8 C.F.R.

§ 235.1(b), once CBP confirms that a person is a U.S. citizen with no warrants or

reason to hold him and he did not commit: (1) an offense against the U.S. in CBP’s

presence; or (2) any felony cognizable under federal law, CBP must allow

immediate entry. After Hummel was confirmed immediately admissible, he was

illegally held 3.5 hours until CBP received an arrest warrant. Thus, a prolonged

border-detention occurred without probable cause. However, rather than raise the

prolonged-stop as error, appellate counsel focused on the affidavit for the arrest

warrant and stated that Hummel’s subsequent confession was “the culmination

and result of all of the previous unconstitutional state actions.”

Question: Under the Sixth and Fourteenth Amendments and Strickland, does a

death penalty defendant receive ineffective assistance of appellant counsel if

appellate counsel fails to raise a critical point of error or inadequately briefs it?

ii

PARTIES TO THE PROCEEDING

John Hummel, Petitioner

Lorie Davis, Director, Texas Department of Criminal Justice, Correctional

Institutions Division, Respondent

RULE 29.6 STATEMENT

Petitioner is not a corporate entity.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING .............................................................................. ii

RULE 29.6 STATEMENT ............................................................................................. ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF APPENDIX ................................................................................................. v

TABLE OF AUTHORITIES ......................................................................................... vi

OPINION BELOW......................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

RELEVANT CONSTITUTIONAL PROVISIONS ........................................................ 1

FEDERAL STATUTES AFFECTED ............................................................................ 2

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

Introduction ............................................................................................................... 2

Procedural History .................................................................................................... 5

1.

Indictment and trial ..................................................................................... 5

2.

The Judgment and sentence are affirmed on direct appeal........................ 6

3.

The state writ application is denied ............................................................ 6

4.

Proceedings in federal court ......................................................................... 7

Facts ........................................................................................................................... 7

1.

Facts regarding Question 1 .......................................................................... 7

The readily available evidence that trial counsel failed to

investigate

and

adduce

regarding

Petitioner’s

incarceration behavior during pretrial and trial .................................... 7

Other evidence of Hummel’s lack of future dangerousness

that trial counsel failed to investigate and adduce ................................. 8

Evidence adduced during trial that would have been

corroborated by evidence that trial counsel failed to

investigate and adduce............................................................................. 9

Other evidence that trial counsel failed to investigate and

adduce ....................................................................................................... 9

On future-dangerousness, the State focused on the crime ................... 10

2.

Facts regarding Issue 2 .............................................................................. 11

iv

STANDARD OF REVIEW ........................................................................................... 15

REASONS FOR GRANTING THE WRIT .................................................................. 15

1.

Under the Sixth Amendment and Strickland v. Washington,

466 U.S. 668 (1984), a death penalty defendant receives

ineffective assistance of trial counsel if trial counsel fails to

investigate and adduce available evidence regarding the

defendant’s exceptional behavior during a lengthy pretrial

incarceration, thereby impeding the jury’s ability to carry out

its task of considering all relevant facets of the defendant’s

character and record. .................................................................................. 15

Standards under 28 U.S.C. § 2254(d) .................................................... 15

Standards for obtaining a certificate of appealability .......................... 16

Standards for ineffective assistance of trial counsel ............................ 17

Skipper and its progeny are clear that evidence of a

defendant’s past conduct as indicative of his probable

future behavior is an inevitable and not undesirable

element of criminal sentencing, and highly critical to the

jury’s function of predicting a defendant’s probable future

conduct. ................................................................................................... 18

Hummel did not receive a full and fair opportunity to

litigate the facts in the state habeas proceeding .................................. 23

2.

Under the Sixth and Fourteenth Amendments and

Strickland, a death penalty defendant receives ineffective

assistance of appellant counsel if appellate counsel fails to

raise a critical point of error or inadequately briefs it. ............................. 25

Standards for ineffective assistance of appellate counsel .................... 25

The federal law prohibiting CBP from detaining a

confirmed U.S. citizen who has no holds or warrants is

clear and was argued below ................................................................... 25

Hummel received ineffective assistance of appellate

counsel .................................................................................................... 27

Appellate counsel’s failures led to the confession, the most

damning type of evidence, so Hummel was harmed ............................. 29

CONCLUSION AND PRAYER ................................................................................... 31

v

TABLE OF APPENDIX

Hummel v. Davis, 908 F.3d 987 (5th Cir. 2018) ……………………..............App.001-010

Excerpt from trial (ROA.3326) ……………………...............................................App.011

Excerpt from trial (ROA.3477) ……………………...............................................App.012

Excerpts from brief filed by state appellate counsel

(ROA.1814.1880.1887.1894)…….……………………….………….………….App.013-022

Opinion and Judgment, Hummel v. Davis, No. 4:16-CV-00133-O

(N.D.Tex. Jan. 3, 2018)………………………………………………………….App.023-101

vi

TABLE OF AUTHORITIES

Cases

Allen v. McCurry, 449 U.S. 90 (1980).......................................................................... 23

Arizona v. Fulminante, 499 U.S. 279 (1991) (plurality op.) ....................................... 29

Brown v. Illinois, 422 U.S. 590 (1975) ........................................................................ 28

Brown v. Illinois, 422 U.S. 590 (1975) ........................................................................ 29

Bruton v. United States, 391 U.S. 123 (1968) ............................................................. 29

Carey v. Musladin, 549 U.S. 70 (2006) ....................................................................... 16

Commonwealth v. Ardestani, 736 A.2d 552 (Pa. 1997) .............................................. 30

Commonwealth v. Bullard, 350 A.2d 797 (Pa. 1976) ................................................. 30

Commonwealth v. Losch, 535 A.2d 115 (Pa. 1987) ..................................................... 22

Cullen v. Pinholster, 563 U.S. 170 (2011) ................................................................... 16

Evitts v. Lucey, 469 U.S. 387 (1985)..................................................................... i, 4, 25

Ex

parte

Hummel,

No.

WR-81,578-01,

2016

Tex.Crim.App.Unpub.LEXIS 1152 (Tex.Crim.App. Feb. 10, 2016)

(per curium, Alcala, J. dissenting) ..................................................................... 7

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 24

Goldberg v. Kelly, 397 U.S. 254 (1970)........................................................................ 24

Hansberry v. Lee, 311 U.S. 32 (1940) .......................................................................... 23

Harrington v. Richter, 131 S.Ct. 770 (2011) ............................................................... 15

Harrington v. Richter, 562 U.S. 86 (2011) .................................................................. 15

Hartsfield v. Dir., 2011 U.S.Dist.LEXIS 124662 (E.D.Tex. Sep. 6, 2011) ................. 19

Herrera v. Collins, 506 U.S. 390 (1993) ...................................................................... 24

Hudson v. Michigan, 547 U. S. 586 (2006) ................................................................. 28

Hummel v. Davis, 908 F.3d 987 (5th Cir. 2018) ....................................................... 1, 7

Hummel v. Davis, No. 4:16-CV-00133-O, 2018 U.S.Dist.LEXIS 735

(N.D.Tex. Jan. 3, 2018) ....................................................................................... 1

Hummel v. State, No. AP-76,596, 2013 Tex.Crim.App.Unpub.LEXIS

1239 (Tex.Crim.App. Nov. 20, 2013) (unpublished) .......................................... 6

Hummel v. Texas, 135 S.Ct. 52 (2014) .......................................................................... 6

Hummel v. Texas, 137 S.Ct. 63 (2016) .......................................................................... 7

vii

Jenkins v. Allen, 2016 U.S.Dist.LEXIS 116977 (N.D.Ala. Aug. 31, 2016) ................ 20

La France v. Bohlinger, 499 F.2d 29 (1st Cir. 1974) .................................................. 29

Loden v. McCarty, 778 F.3d 484 (5th Cir. 2015)......................................................... 29

Martinez v. Ryan, 132 S.Ct. 1309 (2012) .................................................................... 16

Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010) ............................................................. 29

Miller-El v. Dretke, 545 U.S. 231 (2005) ..................................................................... 16

Montana v. United States, 440 U.S. 147 (1979).......................................................... 23

Morgan v. United States, 298 U.S. 468 (1936)............................................................ 24

Nadal-Ginard v. Holder, 558 F.3d 61 (1st Cir. 2009) ................................................ 27

Nardone v. United States, 308 U.S. 338 (1939) .......................................................... 28

People v. Davis, 706 N.E.2d 473 (Ill. 1998) ................................................................. 22

Porter v. McCollum, 558 U.S. 30 (2009)...................................................................... 18

Salve Regina College v. Russell, 499 U.S. 225 (1991)................................................. 15

Segura v. United States, 468 U.S. 796 (1984) ............................................................. 28

Shoop v. Hill, 586 U.S. ____, 2019 U.S.LEXIS 13 (Jan. 7, 2019) ............................... 15

Skipper v. South Carolina, 476 U.S. 1 (1986) ......................................................... 2, 18

Slack v. McDaniel, 529 U.S. 473 (2000) ...................................................................... 17

Smith v. Robbins, 528 U.S. 259 (2000) ................................................................ i, 4, 25

State ex rel. A.S., 999 A.2d 1136 (N.J. 2010) .............................................................. 30

State v. Johnson, 494 N.E.2d 1061 (Ohio 1987) ......................................................... 22

State v. McCloskey, 446 A.2d 1201 (N.J. 1982)........................................................... 30

Terrell v. Pfister, 443 Fed.Appx. 188 (7th Cir. 2011) (unpublished).......................... 30

Townsend v. Sain, 372 U.S. 293 (1963) ...................................................................... 24

Trevino v. Thaler, 133 S.Ct. 1911 (2013) .................................................................... 16

United States v. Montoya de Hernandez, 473 U.S. 531 (1985)............................... 4, 27

Utah v. Strieff, 136 S.Ct. 2056 (2016) ......................................................................... 28

Waidla v. Davis, 2017 U.S.Dist.LEXIS 209365 (C.D.Ca. Dec. 18, 2017) .................. 21

Wiggins v. Smith, 539 U.S. 510 (2003) ............................................................... passim

Wong Sun v. United States, 371 U.S. 471 (1963)........................................................ 28

Wong v. Belmontes, 558 U.S. 15 (2009) ............................................................. 3, 18, 21

Statutes

viii

28 U.S.C. § 1254 (2019) ................................................................................................. 1

28 U.S.C. § 2254 (2019) ....................................................................................... passim

8 U.S.C. § 1101 (2009) ................................................................................................. 26

8 U.S.C. § 1103 (2009) ................................................................................................. 26

8 U.S.C. § 1226 (2009) ................................................................................................. 26

8 U.S.C. § 1231 (2009) ................................................................................................. 26

8 U.S.C. § 1357 (2009) ................................................................................................. 26

Tex. Code Crim. Proc. Art. 11.071 (2013) ..................................................................... 6

Tex. Penal Code § 19.03 (2009) ..................................................................................... 5

Other Authorities

Richard A. Leo & Richard J. Ofshe, The Consequences of False

Confessions: Deprivations of Liberty and Miscarriages of Justice

in the Age of Psychological Interrogation, 88 J. Crim. L. &

Criminology 429 (1988) ..................................................................................... 30

Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in

the Post-DNA World, 82 N.C. L. Rev. 891 (2004)............................................. 30

Welsh S. White, False Confessions and the Constitution: Safeguards

Against Untrustworthy Confessions, 32 Harv. C.R.-C.L. L. Rev.

105 (1997) .......................................................................................................... 30

Regulations

8 C.F.R. §§ 236.1-236.7 (2009)..................................................................................... 26

Constitutional Provisions

U.S. Const. Amend. VI................................................................................................... 1

U.S. Const. Amend. VIII ................................................................................................ 2

U.S. Const. Amend. XIV ................................................................................................ 2

1

TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

Petitioner John Hummel respectfully petitions for a writ of certiorari to review

the opinion and judgment of the United States Court of Appeals for the Fifth Circuit:

OPINIONS BELOW

The opinion of the Fifth Circuit (“Opinion”) is in the Appendix. (App.001-010).

The published citation is Hummel v. Davis, 908 F.3d 987 (5th Cir. 2018). This opinion

was appealed from Hummel v. Davis, No. 4:16-CV-00133-O, 2018 U.S.Dist.LEXIS 735

(N.D.Tex. Jan. 3, 2018), also in the Appendix. (App.023-101).

STATEMENT OF JURISDICTION

On November 19, 2018, the Fifth Circuit issued its Opinion, holding that: (1)

reasonable jurists could not debate the district court's decision not to grant habeas

relief on the claim for ineffective assistance of trial counsel; and (2) the district court

did not err by determining that the state court did not unreasonably conclude that

state appellate counsel's strategy fell within the “wide range of reasonable

professional assistance” and that any failures by appellate counsel did not prejudice

Hummel. 1 (App.001.007). This Court has jurisdiction under 28 U.S.C. § 1254 (2019).

RELEVANT CONSTITUTIONAL PROVISIONS

The Sixth Amendment provides in relevant part: “In all criminal prosecutions,

the accused shall…have the Assistance of Counsel for his defence.” U.S. Const.

Amend. VI.

1 The third issue raised in the Fifth Circuit is not raised here.

2

The Eighth Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.

Amend. VIII.

The Fourteenth Amendment provides in relevant part: “…No State shall make

or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. Amend. XIV, §1.

FEDERAL STATUTES AFFECTED

28 U.S.C. § 2254(d) (2019) provides:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court 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—

(1) 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

(2) 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.

STATEMENT OF THE CASE

Introduction

This case presents two important questions for review. First, in Skipper v.

South Carolina, 476 U.S. 1 (1986), this Court held that the exclusion of relevant

mitigating evidence impedes the jury’s ability to carry out its task of considering all

relevant facets of a defendant’s character and record. Id. at 8. This Court observed

3

that “[c]onsideration of a defendant’s past conduct as indicative of his probable future

behavior is an inevitable and not undesirable element of criminal sentencing…and

any sentencing authority must predict a (defendant’s) probable future conduct when

it engages in the process of determining what punishment to impose.” Id. at 5. In

other words, and as observed by a prosecutor in another case, “the best predictor of

future behavior is past behavior.” In Skipper, the trial court ruled as irrelevant

testimony of two jailers and a “regular visitor” that Skipper behaved well and “made

a good adjustment” during 7.5 months of pretrial custody. Id. at 3. This Court rejected

the trial court’s ruling. Id.

Hummel was in pretrial incarceration for 19 months (compared to 7.5 months

for Skipper) and the deputies who interacted with him daily were available and

willing to testify that Hummel was a low-risk inmate who behaved very well.

However, trial counsel did not bother investigating and adducing this critical

mitigative evidence. Under Wiggins v. Smith, 539 U.S. 10, 534 (2003) and Wong v.

Belmontes, 558 U.S. 15, 20 (2009), trial counsel was required to investigate and

adduce such readily available mitigative evidence. Thus, under the Sixth

Amendment, Strickland, Wiggins, and Wong, a death penalty defendant like Hummel

receives ineffective assistance of trial counsel if trial counsel fails to investigate and

adduce available evidence regarding the defendant’s exceptional behavior during a

lengthy pretrial incarceration, thereby impeding the jury’s ability to carry out its task

of considering all relevant facets of the defendant’s character and record.

4

Second, Smith v. Robbins, 528 U.S. 259 (2000) and the Sixth and Fourteenth

Amendments require the effective assistance of appellate counsel under the

Strickland standard. Per United States v. Montoya de Hernandez, 473 U.S. 531

(1985), the Fourth Amendment applies to border-searches unless it is “routine” or

agents, considering all facts surrounding the traveler and his trip, reasonably suspect

that he is smuggling contraband. And under 8 U.S.C. § 1357(a)(5) and 8 C.F.R. §

235.1(b), once Customs and Border Patrol (“CBP”) confirms that a person is a U.S.

citizen with no warrants or reason to hold him and he did not commit: (1) an offense

against the U.S. in CBP’s presence; or (2) any felony cognizable under federal law,

CBP must allow immediate entry.

After Hummel was confirmed immediately admissible, he was illegally held

3.5 hours until CBP received an arrest warrant. Thus, a prolonged border-detention

occurred without probable cause. However, rather than raise the prolonged-stop as

error, appellate counsel focused on the affidavit for the arrest warrant and stated

that Hummel’s subsequent confession was “the culmination and result of all of the

previous unconstitutional state actions.”

Prolonged border-searches are illegal, and it is counsel’s duty under Strickland

and Robbins to raise and litigate this issue whether at trial or on appeal. Thus, under

the Sixth and Fourteenth Amendments and Strickland, a death penalty defendant

receives ineffective assistance of appellant counsel if appellate counsel fails to raise

a critical point of error or inadequately briefs it.

5

Hummel raised these issues in his application for a certificate of appealability

(“COA”) but was denied. Hummel will show that he: (1) made a substantial showing

of the denial of constitutional rights, (2) showed that reasonable jurists would find

the district court’s resolution of these issues debatable or wrong, and (3) showed that

the issues are “adequate to deserve encouragement to proceed further.” See Slack,

529 U.S. at 484. And, Hummel will show that a COA should have been granted if a

proper a threshold examination of an overview of his claims and a general

assessment of the merits of each claim had been done. Miller-El, 537 U.S. at 338;

Buck, 137 S.Ct. at 773. Finally, Hummel will show that the district court’s rulings

were: (i) contrary to or involved an unreasonable application of clearly established

Federal law as determined by this Court; and (ii) based on an unreasonable

determination of the facts considering the evidence presented in state court. Hummel

will ask this Court to reverse the Opinion and grant the application for the COA.

Procedural History

1.

Indictment and trial

Under Tex. Penal Code § 19.03(a)(7) (2009), a grand jury indicted Hummel for

Capital Murder (multiple victims), alleging that on or about December 17, 2009

during the same criminal transaction, Hummel caused the deaths of two persons. Id.

(ROA.158-159). 2 On June 22, 2011, a jury found Hummel guilty as charged in the

indictment. (ROA.5589). On June 28, 2011, the jury answered “Yes” to Special Issue

2

The record on appeal from the Fifth Circuit is cited as “ROA.___” and will be made available to the

Court upon demand.

6

One (“Do you find from the evidence beyond a reasonable doubt that there is a

probability that (Hummel) would commit criminal acts of violence that would

constitute a continuing threat to society?”) and “No” to Special Issue Two (“Taking

into consideration all of the evidence, including the circumstances of the offense,

(Hummel’s) character and background and the personal moral culpability of the

(Hummel), do you find that there is sufficient mitigating circumstances or

circumstances to warrant that a sentence of life imprisonment rather than a death

sentence be imposed?”). (ROA.5879-5880). Hummel was sentenced to death, and the

Judgment was signed on June 29, 2011. (ROA.2754-2756.5880).

2.

The Judgment and sentence are affirmed on direct appeal

On November 20, 2013, the Texas Court of Criminal Appeals (“TCCA”)

affirmed the Judgment and sentence. Hummel v. State, No. AP-76,596, 2013

Tex.Crim.App.Unpub.LEXIS 1239 (Tex.Crim.App. Nov. 20, 2013) (unpublished).

Hummel filed a petition for writ of certiorari in this Court, which was denied on

October 6, 2014. Hummel v. Texas, 135 S.Ct. 52 (2014).

3.

The state writ application is denied

On June 5, 2013, Hummel filed the application under Tex. Code Crim. Proc.

Art. 11.071 (2013) (ROA.8037-8222.8223-8532). The convicting court signed findings

recommending that relief be denied. On February 10, 2016, the TCCA adopted the

findings

and

denied

relief.

Ex

parte

Hummel,

No.

WR-81,578-01,

2016

Tex.Crim.App.Unpub.LEXIS 1152 (Tex.Crim.App. Feb. 10, 2016) (per curium, Alcala,

7

J. dissenting). On October 3, 2016, this Court denied the petition for writ of certiorari.

Hummel v. Texas, 137 S.Ct. 63 (2016).

4.

Proceedings in federal court

On February 4, 2017, Hummel filed the petition for writ of habeas corpus under

28 U.S.C. § 2254. (ROA.32-150). On January 3, 2018, the district court entered the

Opinion and judgment denying the petition. (ROA.1628-1706). On November 19,

2018, the Fifth Circuit denied Hummel’s application for a COA. (App.001-010);

Hummel v. Davis, 908 F.3d 987 (5th Cir. 2018).

Facts

1.

Facts regarding Question 1

The readily available evidence that trial counsel failed to investigate

and adduce regarding Petitioner’s incarceration behavior during

pretrial and trial

Hummel was incarcerated pretrial and during trial in the Tarrant County Jail

from December 31, 2009 until July 28, 2011. (ROA.407.454.573.819). In that Jail,

“high-risk” inmates are those who: (1) are charged with capital offenses, (2) commit

assault, (3) are an escape-risk, or (4) are notorious. (ROA.407.454.565.573-575).

Outside the cell, the high-risk inmate is placed in handcuffs and leg-irons and is

accompanied by two officers. (ROA.456.575). Low-risk inmates, on the other hand,

are not restrained. (ROA.407.454).

Although inmates charged with capital offenses are usually deemed “highrisk,” during his pretrial incarceration in the jail from December 31, 2009 until July

28, 2011, Hummel was deemed “low-risk.” (ROA.407.454.573.819). The deputies who

dealt with Hummel each day stated in the habeas proceeding that: (1) Hummel was

8

quiet, respectful, pleasant, and never caused trouble (ROA.407.454.455.457); (2)

Hummel complied with all rules and had no disciplinary infractions while at the jail

(ROA.400.457.577); and (3) had they been subpoenaed, they would have testified that

Hummel would do well in prison and adjust well to a general-population setting.

(ROA.408.455). But the deputies were not contacted by trial counsel. (ROA.408.455).

Other evidence of Hummel’s lack of future dangerousness that trial

counsel failed to investigate and adduce

Dr. Hardesty is a board-certified forensic psychiatrist and the Vice President

and Medical Director for The Menninger Clinic in Houston, one of the nation’s leading

inpatient

psychiatric

hospitals

that

provides

24-hour

psychiatric

care.

(ROA.68.69.346). Dr. Hardesty stated that although Hummel committed a violent

crime, his long-term risk of future violence is low to moderate in the general prisonsetting because Hummel: (1) did not have a history of violence until the crime; (2) had

a coping style (before the crime) that was passive-acceptance and involved denial of

the circumstances or escape into games, movies, and books; (3) is unlikely to have the

extreme set of financial and familial stressors that were the antecedents to the crime;

(4) will be in a contained-environment where his needs are met, but there is not a

relational model that would be iterative of attachment; (5) established a more

informed religious attachment than previously, providing greater personal stability;

and (6) discussed coping with prison and the idea of being in general population, and

has a perspective of acceptance of responsibility for his offense while maintaining the

best possible use of the remainder of his life in a confined setting. (ROA.363-364).

9

Evidence adduced during trial that would have been corroborated by

evidence that trial counsel failed to investigate and adduce

Frank AuBuchon, a former classifications officer for the Texas Department of

Criminal Justice (“TDCJ”) testified that: (1) TDCJ has Level-1-minimum to Level-5maximum security levels, and the minimum security-level for an inmate serving lifewithout-parole is “G3,” which is permanent, and the inmate will never attain a lower

classification (ROA.5796-5797.5802-5803); (2) G3-inmates must remain in Level-5

(maximum-security) prisons (ROA.5802); (3) G3-inmates may reside only in twoinmate cells and may not reside in dormitories (ROA.5802); (4) G3-inmates are not

allowed to have jobs that permit them to leave the premises of the prison or approach

loading docks without an armed officer (ROA.5803.5814); (5) G3-inmates may be

reclassified as G4 if they become noncompliant with work, grooming, or following

orders (ROA.5803); and (6) an inmate may be placed in administrative segregation if

he attempts or succeeds in an escape or assaults staff (ROA.5803).

AuBuchon had reviewed police reports, military records, medical records,

offense reports, jail records during trial, and Hummel’s criminal background.

(ROA.5804). AuBuchon concluded that Hummel would be classified at G3 if given lifewithout-parole, would be placed in a maximum-security prison, and would function

well based on his good behavior and military history. (ROA.5804-5805).

Other evidence that trial counsel failed to investigate and adduce

Laura Smith investigated and made findings about Hummel’s life-history and

its elements that impacted Hummel’s development and decision-making, showing

Hummel’s inability to manage stress, multiple serious illnesses like Crohn’s disease

10

and a severely injured back, severe financial distress, child-abuse by his father,

emotional abuse by both parents, failure to develop socially, academically, or

emotionally, inability to understand the difference between reality and fantasy, and

failure to advance in the Marines. (ROA.366-403). There were also multiple lay

witnesses, including Marines, who could have provided strong, mitigative evidence

but that were not investigated or called by trial counsel. (ROA.412-417.421-436.442446.452.453). Instead, trial counsel’s investigation focused mainly on possible sexualabuse

and

Hummel’s

immediately

family,

which

turned

up

nothing.

(ROA.433.441.4753-5756).

On future-dangerousness, the State focused on the crime

The State based its argument about Hummel’s “propensity for violence”

entirely on the crime and an allegation that two days before the crime, Hummel

attempted to poison his family, portraying him as one who has not a “single solitary

internal restraint” to refrain from committing future acts of violence: “It’s not about

what type of restraints that can be put on him by the penitentiary system. It’s about

who is he as a person. His character for violence. Not about restraints in the

penitentiary system. It’s about his internal restraints. Does he have a single solitary

internal restraint?” (ROA.5607-5613.5879). This was the only evidence of “violence”

committed by Hummel prior to the crime. The State also called Hummel a “monster”

and an “animal.” (ROA.5872-5879).

11

2.

Facts regarding Issue 2

On December 20, 2009, at 5:48 a.m. PST, while entering the U.S. from the San

Ysidro Port of Entry, Hummel was stopped by CBP because he had only his Texas

driver’s license, which was insufficient for immediate entry under the Western

Hemisphere Travel Initiative. (ROA.461.3268). CBP Agent Bernal saw a warning on

NCIC that Hummel might be “armed and dangerous.” (ROA.3268). At 6:03 a.m.,

Agent Enriquez saw that the NCIC showed:

OLN/22576933 OLS/TX OLY/2011

MNP/MP DLC/20091218 OCA/0900017596

VLD/20091219

LAW ENFORCEMENT SENSITIVE SUBJECT POSSIBLY

MENTALLY UNSTABLE PERSON OF INTEREST IN HOMICIDE

CONSIDER ARMED AND DANGEROUS APPROACH WITH

CAUTION SUBJECT HAS MILITARY BACKGROUND DO NOT

ARREST OR DETAIN BASED ON THIS RECORD

IF LOCATED CONTACT KENNEDALE PD 8174785416 ADVISE

LOCATION AND DIRECTION

TRAVEL LIC/VLR144 LIS/TX LIY/2010 LIT/PC

VIN/2FMDA5141WBA54391 VYR/1998

VMA/FORD VMO/WIN VST/SD VCO/MAR

(ROA.462). Based on this, at 6:49 a.m., Enriquez called the Kennedale, Texas Police

Department to confirm Hummel as a “missing person,” telling the dispatcher that he

was holding Hummel “[j]ust for this…report...” (ROA.462.472). The dispatcher

contacted Captain Hull, who directed her to tell Enriquez, “[w]e want to put a hold

on him for a warrant for arson.” (ROA.474.3311). Hull called other officers to meet

him “…to start the process of the warrant.” (ROA.3311).

12

At 7:09 a.m., the dispatcher told Enriquez that Kennedale PD wants CBP “to

place a hold on (Hummel).” (ROA.475). Enriquez knew that the report did not

authorize detention, that Kennedale PD was merely to be notified of Hummel’s

location (ROA.3277), and the report showed Hummel only as a “missing-person”

(ROA.3274-3275). However, the dispatcher told Enriquez that Hummel had an arrest

warrant for arson, which was false, and without confirming the warrant, Enriquez

referred the case to CBP Agent Kandal for processing based only on his conversation

with the dispatcher. (ROA.3277-3279). If Kennedale PD had not “suggested” the

nonexistent warrant for arson, CBP would have released Hummel upon verifying his

U.S. citizenship. (ROA.3342). However, because he told about a nonexistent warrant,

Enriquez directed Kandal to begin processing Hummel. (ROA.3276).

At 7:16 a.m., Kandal called Kennedale PD for information about the warrant,

to which the dispatcher replied, “[w]e just have him filed as a missing person, and he

has a ‘pending’ warrant for arson.” (ROA.478). Kandal asked, “[s]o you don’t have an

active warrant outstanding on him then, right?” to which the dispatcher replied, “[I]

believe it’s being processed as we speak. I’m going to need you to probably contact our

captain because I don’t have any more information than that. Can I give you that

number?” (ROA.478). Kandal responded, “[W]ell, part of the problem with it is that

he’s an otherwise admissible person. He’s actually a citizen in the country, and we

can’t hold him on something that hasn’t been processed yet. Let me go ahead and get

his number.” (ROA.478).

13

At 7:34 a.m., the dispatcher told Hull, “He (Kandal) is trying to call you. He is

saying that he can’t hold (Hummel) if there is no…active warrant…It’s something

about being an admissible person and a U.S. citizen…[H]e said he was going to call

you as soon as I got off the phone with him because he was asking me a lot of questions

that I didn’t have the answers to. He want to know if he was a no bail full extradite,

and he needed the number for the warrant. I told him that it was probably being

processed as we were speaking, and he said that’s not good enough, that he had to

have it active or he couldn’t hold him because of (Hummel’s) rights.” (ROA.479). Hull

responded, “[O]h, I believe he’s right. I was hoping they would just hold him, to be

honest with you.” (ROA.479).

Kandal thus knew a warrant did not exist for Hummel and CBP learned that

Hummel was a U.S. citizen shortly before his 7:30 a.m. call with the dispatcher, 3.5

hours before the arrest warrant was finalized. (ROA.3325-3326). Kandal claimed that

CBP had the authority to hold a person and detain, fine, and even imprison him for

failing to provide proper entry documentation under the Western Hemisphere Travel

Initiative and that a person is not free to enter until CBP is satisfied of their right to

do so. (ROA.3319). However, not later than 7:17 a.m., CBP verified that Hummel was

a U.S. Citizen with the right to immediate entry. (ROA.3325-3326).

Hull instructed the dispatcher to call Kennedale Detective Charbonnet and

request that he help draft the warrant. (ROA.480). Hull spoke to Kandal over the

next few hours, but the conversations were not recorded. (ROA.3311-3316). As of 9:12

a.m., the NCIC-report showed “no identifiable record” or warrant for Hummel.

14

(ROA.465). On pages 90-92 of Volume 8 of the trial record, the exchange between trial

counsel and Kandal verified Hummel’s right of immediate entry. (App.011;

ROA.3326). At 10:48 a.m., an affidavit was signed, and an arrest warrant was issued.

(ROA.466-468). CBP received the warrant at 10:52 a.m., 3.5 hours after CBP

confirmed that Hummel was admissible. (ROA.484).

At 10:20 p.m. that evening, Officer Charbonnet read Hummel his Miranda

rights and interrogated him. (ROA.6016-6151). On December 21, 2009 at 12:28 a.m.,

Hummel confessed to the crime in writing. (ROA.6014-6015). Based on this

confession, police also located the weapons described by Hummel, which were

admitted as evidence at trial. (ROA.5034).

Trial counsel filed motions to suppress, arguing that statements made by

Hummel to CBP and Kennedale PD should be suppressed because CBP illegally

detained Hummel and this illegal border-seizure tainted subsequent statements

Hummel made thereafter. (ROA.2326.2335). The trial court denied the motions.

(App.012; ROA.3477).

In the Appellant’s Brief, points 14-17, appellate counsel raised claims

regarding the denial of the motion to suppress the confession. (App.014-020;

ROA.612-618.1880-1886). However, these arguments focused entirely on the affidavit

used to secure Hummel’s arrest warrant. (ROA.612-618.1880-1886). Regarding the

detention by CBP, appellate counsel argued only that Hummel’s confession was “the

culmination and result of all of the previous unconstitutional state actions.”

(ROA.613.1881).

15

STANDARD OF REVIEW

Because this petition involves the interpretation of federal constitutional law

and prior holdings of this Court, the standard of review is de novo. Salve Regina

College v. Russell, 499 U.S. 225, 231-232 (1991).

REASONS FOR GRANTING THE WRIT

1.

Under the Sixth Amendment and Strickland v. Washington, 466 U.S.

668 (1984), a death penalty defendant receives ineffective assistance

of trial counsel if trial counsel fails to investigate and adduce

available evidence regarding the defendant’s exceptional behavior

during a lengthy pretrial incarceration, thereby impeding the jury’s

ability to carry out its task of considering all relevant facets of the

defendant’s character and record.

Standards under 28 U.S.C. § 2254(d)

Under 28 U.S.C. § 2254(d), a state prisoner may not obtain relief with respect

to any claim that was adjudicated on the merits in state court proceedings unless the

adjudication of the claim resulted in decisions that were: (1) contrary to, or involved

an unreasonable application of clearly established Federal law as determined by this

Court; or (2) based on an unreasonable determination of the facts considering the

evidence presented in the state court proceeding, or both. See Harrington v. Richter,

562 U.S. 86, 102 (2011). A state court’s ruling must be so lacking in justification that

“there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 103; see Shoop v. Hill, 586 U.S. ____,

2019 U.S.LEXIS 13 (Jan. 7, 2019).

Under 28 U.S.C. § 2254(d)(1), a reviewing court must consider whether the

“state-court decision…correctly identifie[d] the governing legal rule…[and] applie[d]

it reasonably to the facts (of the) case.” Harrington, 562 U.S. at 102 (“[u]nder §

16

2254(d), a (federal) court must determine what arguments or theories supported or

could have supported the state court’s decision; and then it must ask whether it is

possible fairminded jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of this Court.”). “[A] legal principle

is ‘clearly established’ within the meaning of this provision only when it is embodied

in a holding (and not dicta of the SCOTUS).” Carey v. Musladin, 549 U.S. 70, 74, 77

(2006). §2254(d)(1)-review is limited to “the record that was before the state court

that adjudicated the claim on the merits” unless a petitioner establishes cause to

excuse a procedural default as to an ineffective-counsel-claim by showing: (1) statehabeas-counsel was constitutionally deficient in failing to include the claim in the

state-habeas application, and (2) the ineffective-counsel-claim is “substantial” (has

“some merit.”). Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Trevino v. Thaler, 133

S.Ct. 1911, 1921 (2013); and Martinez v. Ryan, 132 S.Ct. 1309, 1318 (2012).

Under 28 U.S.C. § 2254(d)(2), an unreasonable determination of the facts

considering the evidence presented in the state court proceeding means that although

a factual issue determined by the state habeas court is presumed to be correct, the

petitioner may rebut it by clear and convincing evidence. 28 U.S.C. § 2254(e)(1)

(2017); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (Standard “is demanding but not

insatiable,” and “deference does not by definition preclude relief.”).

Standards for obtaining a certificate of appealability

To obtain a COA, an Appellant “must make a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2018). The movant “must

17

demonstrate that reasonable jurists would find the district court's assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). This includes showing that reasonable jurists could debate or agree that the

petition should have been resolved in a different manner or that the issues presented

were “adequate to deserve encouragement to proceed further.” Id. In determining

whether to grant a COA, the inquiry is limited to a threshold examination that

“[r]equires an overview” of the applicant’s claims and “[a] general assessment of (the

merits of the claims).” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); Buck v. Davis,

137 S.Ct. 759, 773 (2018).

Standards for ineffective assistance of trial counsel

Under Strickland v. Washington, 466 U.S. 668, 687-691 (1984), to show

ineffective assistance of trial counsel (“IATC”), a petitioner must prove by a

preponderance of the evidence that: (1) trial counsel’s performance was deficient

(counsel made errors so serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment); and (2) the deficient

performance prejudiced the defense (errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is not reliable).

To satisfy the deficient-performance-prong, the petitioner must show that

counsel’s representation “fell below an objective standard of reasonableness,” which

requires overcoming a strong presumption that the conduct of trial counsel falls

within a wide range of reasonable professional assistance. Wiggins v. Smith, 539 U.S.

510, 521-523 (2003). To satisfy the prejudice-prong, a petitioner must establish a

18

reasonable probability that, but-for the objectively unreasonable misconduct of trial

counsel, the result of the proceeding would have been different. Wiggins, 539 U.S. at

534; Strickland, 466 U.S. at 694 (A reasonable probability is one sufficient to

undermine confidence in the outcome of the proceeding).

To determine whether a petitioner was prejudiced during the punishmentphase of a capital trial, a reviewing court must reweigh all the evidence in

aggravation against the totality of available mitigating evidence had the petitioner’s

trial counsel chosen a different course. Wiggins, 539 U.S. at 534; Wong v. Belmontes,

558 U.S. 15, 20 (2009) (same). Petitioner must show a “reasonable probability” that

the result of the punishment phase of would have been different. Wong, 558 U.S. at

27. If an ineffective-counsel-ground was not addressed on its merits by the state

court, review is de novo. Wiggins, 539 U.S. at 534 and Porter v. McCollum, 558 U.S.

30, 39 (2009) (same).

Skipper and its progeny are clear that evidence of a defendant’s past

conduct as indicative of his probable future behavior is an inevitable

and not undesirable element of criminal sentencing, and highly

critical to the jury’s function of predicting a defendant’s probable

future conduct.

In Skipper v. South Carolina, 476 U.S. 1 (1986), Skipper sought to introduce

testimony of two jailers and a “regular visitor” to testify that he behaved well and

“made a good adjustment” during the 7.5 months he spent in pretrial custody. Id. at

6. The trial court, however, ruled that such evidence is irrelevant. Id. at 6-7. This

Court held that the exclusion by the court of relevant mitigating evidence impeded

the jury’s ability to carry out its task of considering all relevant facets of Skipper’s

19

character and record. Id. at *8. This Court also observed that “[c]onsideration of a

defendant’s past conduct as indicative of his probable future behavior is an inevitable

and not undesirable element of criminal sentencing…and any sentencing authority

must predict a (defendant’s) probable future conduct when it engages in the process

of determining what punishment to impose.” Id. at 5. In other words, “The best

predictor of future behavior is past behavior.” See, e.g., Hartsfield v. Dir., 2011

U.S.Dist.LEXIS 124662, *17 (E.D.Tex. Sep. 6, 2011) (During closing arguments, the

prosecutor said that “the best predictor of future behavior is past behavior, when do

you want him out on your streets?”).

Hummel was in pretrial incarceration for 19 months and the deputies who

interacted with him every day were ready and available to testify that Hummel was

a low-risk inmate who behaved very well. However, trial counsel did not bother

investigating and adducing this critical mitigative evidence.

This evidence was critical and not “cumulative” as the lower courts erroneously

found. The Fifth Circuit even erroneously found that “…[t]rial counsel presented

extensive evidence from expert and lay witnesses that Hummel was unlikely to be a

future threat, including evidence of his good behavior while in jail and his

nonviolent and non-criminal history.” (App.005) (emphasis supplied). As noted in

footnote 13 of the Opinion (App.005), the “evidence of good behavior while in jail” was

merely the testimony of AuBuchon, who the Opinion claimed testified “that based on

Hummel’s lack of disciplinary issues while in jail and other factors, Hummel would

likely adjust well to life in prison and be classified at the minimum level an inmate

20

could receive for a life sentence without parole.” AuBuchon never met with Hummel

or interviewed those who dealt with Hummel every day in the Jail, who would have

told AuBuchon that Hummel was a model inmate who was considered low-risk.

(ROA.645). AuBuchon’s assignment was to review police reports, military records,

medical records, offense reports, jail records, and criminal background. (ROA.5804).

AuBuchon’s conclusion dealt with Hummel’s prison-classification if he sentenced to

life-without-parole. (ROA.5804-5805).

Here, Hummel’s supposed future-dangerousness was the central theme of the

State’s punishment-case. Per the State, “Hummel…has not a ‘single solitary internal

restraint’ to refrain from committing future acts of violence…It’s not about what type

of restraints that can be put on him by the penitentiary system. It’s about who is he

as a person. His character for violence. Not about restraints in the penitentiary

system. It’s about his internal restraints. Does he have a single solitary internal

restraint?” (ROA.5607-5613.5879). The State also called Hummel a “monster” and an

“animal.” (ROA.5872-5879).

Contrast the State’s focus on Hummel’s supposed future-dangerousness to a

case like Jenkins v. Allen, 2016 U.S.Dist.LEXIS 116977 (N.D.Ala. Aug. 31, 2016),

where the petitioner argued that his trial counsel was ineffective for failing to

investigate and introduce evidence of his good conduct while he was incarcerated in

the county jail awaiting trial. Id. at *174. However, the district court found that the

petitioner’s future dangerousness in prison was not suggested as an aggravating

factor. Id. at *179. The only aggravating factors argued by the prosecution were that

21

the murder was committed during the course of robbery and during a kidnapping. Id.

Thus, the petitioner’s good behavior during pretrial incarceration could not have been

mitigating in this regard, as was the evidence at issue in Skipper. Id. Thus, the

district court concluded that the state court’s finding that the petitioner was not

prejudiced by trial counsel's failure to present this evidence to the jury was neither

contrary to nor an unreasonable application of clearly established Federal law, as

determined by this Court’s opinion in Skipper. Id.

As argued below, this Court made it clear in Wiggins that a complete picture

of relevant facts are critical in a death penalty case. And under Wiggins, 539 U.S. at

534, and Wong, 558 U.S. at 20, to determine whether a petitioner was prejudiced

during the punishment phase of a capital trial, a reviewing court must reweigh all

the evidence in aggravation against the totality of available mitigating evidence had

the petitioner’s trial counsel chosen a different course. The burden is on the petitioner

to show a “reasonable probability” that the result of the punishment phase of a capital

murder trial would have been different. Wong, 558 U.S. at 27. Hummel has done so.

AuBuchon’s testimony did not not meet the standard under Wiggins and Wong and

failed to give the jury an accurate picture of the issue of future-dangerousness. It is

reasonable to conclude that the best and most critical evidence on the issue of futuredangerousness where the State focused so much on it would have been the testimony

of the deputies who spent every day with Hummel for 19 months.

See, e.g., Waidla v. Davis, 2017 U.S.Dist.LEXIS 209365, at *292 (C.D.Ca. Dec.

18, 2017) (Death sentence reversed where “trial counsel completely failed to

22

investigate Petitioner's positive behavior in custody, which had been unmistakably

identified by the U.S. and California Supreme Courts as an easy source of relevant

and potentially powerful mitigation evidence.”); see also, e.g., People v. Davis, 706

N.E.2d 473, 485-487 (Ill. 1998) (under Skipper, the evidence at issue in this case

concerns defendant's good behavior in jail and his positive adjustment to

incarceration); Commonwealth v. Losch, 535 A.2d 115, 122-123 (Pa. 1987) (Under

Skipper, the trial court’s refusal to consider evidence relating to the appellant’s good

behavior during pretrial incarceration is reversible error.); and State v. Johnson, 494

N.E.2d 1061, 1067-1070 (Ohio 1987) (death sentence reversed where trial counsel

failed to present important mitigative evidence including evidence of the defendant’s

good behavior during pretrial incarceration); see (Celebrezze, J. concurring) (“…it

would be a rare case where presentation of mitigation evidence, no matter how

meager, would be inappropriate. For example, assuming arguendo that appellant

had demonstrated a spirit of cooperation with authorities during his pretrial

incarceration, this fact would have been appropriate for consideration by the jury

during the penalty phase.”).

This was not “[a]n impermissible second-guessing of the manner in which his

experienced trial counsel chose to present evidence that Hummel would not constitute

a future danger if he were sentenced to life without parole instead of death” as the

state court concluded (ROA.645), but a violation under Wiggins and Wong.

23

Hummel did not receive a full and fair opportunity to litigate the facts

in the state habeas proceeding

The Opinion notes that “Counsel made a reasonable strategic decision not to

seek testimony from jail personnel, as Hummel had indicated he had no especially

positive relationships with anyone at the jail,” but this was based on trial counsel’s

affidavit on which the convicting court refused to allow examination since the court

refused Hummel a hearing in the habeas proceedings despite repeated requests by

state habeas counsel. (ROA.9109.9111.9112).

Hummel did not have a full and fair opportunity to litigate his claims in the

trial court proceeding. (ROA.1610-1620). The relitigation bar of 28 U.S.C. § 2254(d)

is a form of issue preclusion See Montana v. United States, 440 U.S. 147, 153 (1979)

(discussion of issue preclusion). Issue preclusion does not apply to state-court

adjudications “where the party against whom an earlier court decision is asserted did

not have a full and fair opportunity to litigate the claim or issue decided by the first

court.” Allen v. McCurry, 449 U.S. 90, 100 (1980); see also Montana, 440 U.S. at 164

n.11 (“[R]edetermination of issues is warranted if there is reason to doubt the quality,

extensiveness, or fairness of procedures followed in prior litigation). And if a litigant

in the prior proceeding did not have a meaningful opportunity to be heard due to the

lack of the quality, extensiveness, or fairness of procedures in the prior proceeding,

then it violates due process for a federal district to apply issue preclusion to the prior

adjudication. Hansberry v. Lee, 311 U.S. 32, 41 (1940) (The absence of fairness in

apply issue preclusion violates the due process clauses of the Fifth and Fourteenth

24

Amendments). Thus, because Hummel did not have a full and fair opportunity to

litigate the issues decided by the state court, the relitigation bar of 28 U.S.C. §

2254(d) should not have been applied. Although a habeas petitioner does not enjoy

the same liberty interests as a person not convicted, Herrera v. Collins, 506 U.S. 390,

399 (1993), a habeas petitioner has the “fundamental requisite of due process of law

[that] is the opportunity to be heard.” Ford v. Wainwright, 477 U.S. 399, 413 (1986).

Otherwise, the rule that the availability of habeas corpus relief “presupposes the

opportunity to be heard, to argue and present evidence” under Townsend v. Sain, 372

U.S. 293, 312 (1963) is rendered meaningless.

As this Court explained in Morgan v. United States, 298 U.S. 468, 480-481

(1936), a ‘hearing’ means “[t]he taking and weighing of evidence, determinations of

fact based upon the consideration of the evidence, and the making of an order

supported by such findings” (is what a judicial proceeding means). And, “[T]he

fundamental requisite of due process of law is the opportunity to be heard,” and “the

hearing must be ‘at a meaningful time and in a meaningful manner.’” Goldberg v.

Kelly, 397 U.S. 254, 267 (1970). Although a hearing in a habeas proceeding is less

formal than a trial on the merits, it requires a formal process, which includes a

process for admitting, objecting to, and challenging the substance of evidence offered

by a party. Id.; Ford, 477 U.S. at 427 (Powell, J., concurring) (“The State should

provide an impartial officer or board that can receive evidence and argument from

the prisoner's counsel, including expert psychiatric evidence that may differ from the

State's own psychiatric examination.”).

25

Because there is a reasonable probability that at least one juror would have

found that the evidence presented through the deputies combined with Dr. Hardesty’s

evaluation negated the State’s argument that Hummel would present a continuing

threat to society, Hummel was entitled to a COA and is entitled to a new punishment

hearing. See Wiggins, 539 U.S. at 536.

2.

Under the Sixth and Fourteenth Amendments and Strickland, a death

penalty defendant receives ineffective assistance of appellant counsel

if appellate counsel fails to raise a critical point of error or

inadequately briefs it.

Standards for ineffective assistance of appellate counsel

The standard for evaluating a claim of ineffective assistance of appellate

counsel (“IAAC”) is the same as in Strickland, 466 U.S. at 687-691: the petitioner

must show: (1) appellate counsel was objectively unreasonable in failing to discover

nonfrivolous issues and to file a merits brief raising them; and (2) prejudice, which is

a reasonable probability that, but for the appellate counsel’s unprofessional errors,

the result of the proceeding would have been different. Smith v. Robbins, 528 U.S.

259, 285 (2000) (Strickland standard is applied to claims of attorney error on appeal),

Evitts v. Lucey, 469 U.S. 387, 396-397 (1985) (Fourteenth Amendment requires the

effective assistance of counsel to appellants for direct appeals).

The federal law prohibiting CBP from detaining a confirmed U.S.

citizen who has no holds or warrants is clear and was argued below

The Opinion concludes that “Hummel does not point to federal law clearly

prohibiting CBP from detaining him upon learning that there was no active warrant

for Hummel’s arrest, given that he had attempted to enter the United States without

26

a passport. He similarly does not present clearly established law undercutting the

state court’s conclusion that his confession was sufficiently attenuated from any

illegality in the detention.” (App.008-009). However, Hummel did point to the

relevant federal law and showed why the confession was sufficiently attenuated from

the illegal detention.

It is not disputed that CBP: (1) knew a warrant did not exist for Hummel, and

(2) learned at 7:17 a.m. verified that Hummel was a U.S. Citizen with the right to

immediate entry. (ROA.3325-3326). And, the federal law is clear: CBP’s jurisdiction

per 8 C.F.R. § 1.1 (2009) is limited to regulating the entry, detention, removal, and

naturalization of aliens. 8 U.S.C. § 1101(a)(23) (2009), 8 U.S.C. § 1103(a)(1) (2009), &

8 U.S.C. § 1231(a) (2009). Under 8 U.S.C. § 1101(a)(3) (2009), an “alien” is any person

not a citizen or national of the United States.

Under 8 U.S.C. § 1101(a)(22) (2009), once a person establishes that he is a U.S.

citizen, he cannot be treated as an alien and must be released. 8 U.S.C. § 1226

(2009); 8 C.F.R. §§ 236.1-236.7 (2009). Under 8 U.S.C. § 1357(a)(5) (2009), CBP may

arrest or detain a U.S. citizen only for any: (1) offense against the U.S. if the offense

is committed in CBP’s presence; (2) felony cognizable under federal law if CBP has

reasonable grounds to believe that the citizen has committed the felony and if there

is a likelihood of the citizen escaping before an arrest warrant can be obtained.

Neither condition under § 1357(a)(5) or any other law existed for CBP to continue

holding Hummel past 7:17 a.m. Contrary to Kandal’s assertions, CBP did not have

authority to hold Hummel after 7:17 a.m. or to detain or fine him merely for failing

27

to provide proper entry documentation. (ROA.3319). Once CBP confirmed Hummel’s

U.S. citizenship at 7:17 a.m., CBP was “satisfied” of Hummel’s right to enter, and

CBP lost jurisdiction over him and was required to release him. See Nadal-Ginard v.

Holder, 558 F.3d 61, 66 (1st Cir. 2009) (A person claiming U.S. citizenship must

establish that fact to the examining officer’s satisfaction, only if the person fails to

show that he is a U.S. citizen may he be “inspected as an alien.”). As this Court held

in Montoya de Hernandez, 473 U.S. at 538, “routine” border-searches are not subject

to the Fourth Amendment. (ROA.1693-1694). “Routine” searches are those not

involving a body-cavity, strip, or x-ray search. Id. at 547-548. Nor are detentions of

U.S. citizens if agents, considering all facts surrounding the traveler and his trip,

reasonably suspect that the traveler is smuggling contraband. Id. at 536-544.

Hummel was not carrying contraband. Hummel was not committing any crime when

he attempted to reenter. There were no issues outside of a “routine” search. The facts

and law cannot be any clearer.

Hummel received ineffective assistance of appellate counsel

Because the federal law prohibiting CBP from detaining a confirmed U.S.

citizen who has no holds or warrants is clear, the question is whether appellate

counsel was ineffective in failing to raise it or adequately brief it. As reflected in the

Appendix, in points 14-17, appellate counsel raised claims regarding the denial of the

motion to suppress the confession but focused entirely on the affidavit used to secure

Hummel’s arrest warrant. (App.014-020; ROA.612-618.1880-1886). Appellate

28

counsel’s briefing of six substantive pages covering four points of error other than the

critical one argued here (App.014-020) shows that appellate counsel was ineffective.

The arguments raised by Hummel here should have been made on appeal but

were not. Appellate counsel did not raise these arguments at all, directly or

“obliquely” as the district court concluded. (ROA.1692).

Stating merely that

Hummel’s confession was “the culmination and result of all of the previous

unconstitutional state actions” (ROA.613.1881) is not adequate briefing when the

facts and law were so clear.

And, had appellate counsel made these arguments could he have also made a

strong argument that evidence obtained from Hummel after 7:17 a.m. was illegal and

subject to the “fruit-of-the-poisonous-tree doctrine,” which prohibits the use of direct

and indirect evidence obtained following an illegal arrest. Wong Sun v. United States,

371 U.S. 471, 487-488 (1963); Segura v. United States, 468 U.S. 796, 804 (1984).

Regarding the attenuation-doctrine, evidence “tainted” because of the “fruit-ofthe-poisonous-tree doctrine” may be admissible where the relationship between the

illegal conduct and the discovery of the challenged evidence is “so attenuated as to

dissipate the taint.” Brown v. Illinois, 422 U.S. 590, 598-599 (1975). There was no

“intervening circumstance” between the unconstitutional conduct of CBP and

Kennedale PD and the confession. See Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016)

(The attenuation doctrine evaluates the causal link between the government’s

unlawful act and the discovery of evidence, which often has nothing to do with a

defendant’s actions), citing Hudson v. Michigan, 547 U. S. 586, 593 (2006)

29

(The attenuation doctrine provides for admissibility when the connection between

unconstitutional police conduct and the evidence is sufficiently remote or has been

interrupted by some intervening circumstance.).

Thus, appellate counsel was ineffective for his failure to identify these readily

available issues and adequately brief them. Strickland, 466 U.S. at 687-691. And

because suppression of all statements after the illegal prolong border-search would

have prevented the confession from being admitted, Hummel was harmed.

Appellate counsel’s failures led to the confession, the most damning

type of evidence, so Hummel was harmed

A confession is the most damning type of evidence. Its taint cannot be removed,

so appellate counsel’s inaction harmed Hummel. Bruton v. United States, 391 U.S.

123, 139-140 (1968) (A defendant’s confession “…[i]s probably the most probative and

damaging evidence that can be admitted against the defendant.” See also Arizona v.

Fulminante, 499 U.S. 279, 296 (1991) (plurality op.) (A confession “is like no other

evidence”); Brown v. Illinois, 422 U.S. 590, 604-605 (1975) (Court excluded

a confession “so tainted by a previous coerced confession” so to be coerced itself); e.g.,

Loden v. McCarty, 778 F.3d 484, 495-496 (5th Cir. 2015) (The confession was one of

the “most damning” pieces of evidence); Maxwell v. Roe, 628 F.3d 486, 507 (9th Cir.

2010) (Defendant’s alleged jailhouse confession was the “centerpiece of the

prosecution’s case.”); La France v. Bohlinger, 499 F.2d 29, 33 (1st Cir. 1974) (While

an impeaching statement is not substantive evidence of guilt, a confession, on the

other hand, “is the most damning evidence against a defendant and therefore

30

deserving, perhaps, of greater care before it is admitted.”); Terrell v. Pfister, 443

Fed.Appx. 188, 194 (7th Cir. 2011) (unpublished) (“The most damning evidence

against (petitioner) was his signed confession to police…”);

See also, e.g., Commonwealth v. Ardestani, 736 A.2d 552, 557 (Pa. 1997), citing

Commonwealth v. Bullard, 350 A.2d 797, 801 (Pa. 1976) (Because a confession is the

most damning of all evidence, erroneous admission of confession not harmless

error); State ex rel. A.S., 999 A.2d 1136, 1149 (N.J. 2010) (The defendant’s confession

“…was by far the most damning piece of evidence against (the defendant),” and the

court “could not say that there was no reasonable possibility that its introduction into

evidence contributed to the delinquency adjudication), citing State v. McCloskey, 446

A.2d 1201, 1208 (N.J. 1982) (“[t]he improper use of incriminating statements made

by a criminal defendant has great potential for prejudice.”); see also, e.g., Steven A.

Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82

N.C. L. Rev. 891, 922 (2004) (Juries will treat confession as most probative type of

evidence); Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions:

Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological

Interrogation, 88

J.

Crim.

L.

&

Criminology

429,

476

(1988) (Juries

find confession evidence as most damning); Welsh S. White, False Confessions and

the Constitution: Safeguards Against Untrustworthy Confessions, 32 Harv. C.R.-C.L.

L. Rev. 105, 138-139 (1997) (Juries do not believe that an innocent person would

confess).

31

CONCLUSION AND PRAYER

Hummel: (1) made a substantial showing of the denial of constitutional rights,

(2) showed that reasonable jurists would find the district court's resolution of these

issues debatable or wrong, and (3) showed that the issues are "adequate to deserve

e ncouragement to proceed further." Slack, 529 U .S. at 484. A threshold examination

of an overview of Hummel's claims and a general assessment of the merits of each

claim show that the COA should have be granted. M iller-El, 537 U.S. at 338; Buck,

137 S.Ct. at 773. The district court's rulings were: (i) contrary to or involved an

unreasonable application of clearly established Federal law as determined by this

Court; and (ii) based on an unreasonable determination of the facts considering the

evidence presented in state court. Thus, the Fifth Circuit decided important federal

constitutional questions in ways that conflict with relevant decisions of this Court.

Hummel respect fully asks this Court to issue a writ of certiorari to the Fifth Circuit

on the issues presented in this petition and grant the application for the COA.

Respectfully submitted,

Isl Michael Mow la

Michael Mowla

Michael Mowla

Kristin R. Brown

P.O. Box 868

Cedar Hill, TX 75 106

P h one: 972-795-2401

Fax: 972-692-6636

michael@mowlala w .com

Counsel of Record

17304 Preston Road Suite 1250

Dallas, TX 75252

Phone: 214-446-3909

Fax: 2 14-48 1-4868

kbrown@idefenddfw.com