Opposition Brief — Jamaal Howard, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No. 20-9556

IN THE

Supreme Court of the United States

JAMAAL HOWARD,

Petitioner,

v.

- BOBBY LUMPKIN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

; Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

KEN PAXTON KATHERINE D. HAYES

Attorney General of Texas Assistant Attorney General

Counsel of Record

BRENT WEBSTER

First Assistant Attorney General P.O. Box 12548, Capitol Station

Austin, Texas 78711

EDWARD L. MARSHALL (512) 986-1400

Chief, Criminal Appeals Division katherine. hayes@oag.texas.gov

Counsel for Respondent

CAPITAL CASE

QUESTION PRESENTED

Petitioner Jamaal Howard was convicted and sentenced to death for the

capital murder of Vicki Swartout, a Chevron convenience store clerk, during a

robbery in Hardin County, Texas, on May 12, 2000. His state-habeas attorney

raised claims of ineffective assistance of trial counsel (IATC) questioning the

sufficiency of counsel’s investigation of Howard’s life history and mental health

issues in terms of mitigation of punishment, competence to stand trial, and

whether his Miranda waiver was knowing and intelligent. Finding that trial

counsel’s performance was not deficient and did not prejudice Howard’s defense,

the state courts denied all relief.

In federal court, Howard raised the same claims but supported them with

additional evidence. The district court held that Howard failed to show that the

state-court adjudication merited relief under 28 U.S.C. § 2254(d). Concluding that

reasonable jurists could not debate that the state court reasonably applied federal

law in rejecting Howard’s claims and that Howard forfeited or waived several

arguments on appeal, the Fifth Circuit denied a certificate of appealability (COA).

Howard’s petition for writ of certiorari raises the following issue:

Where Howard fails to allege a circuit split, a direct conflict

between the state court and this one, or even an issue that

is particularly important, should the Court expend its time

and limited resources to review any of three run-of-the-mill

claims of ineffective assistance of counsel?

TABLE OF CONTENTS

QUESTION PRESENTED 000... cece ceseescneceesseecseeceecseeseacessssenacaeeaseneseeaseesesiesees i

TABLE OF CITED AUTHORITIES 0.0... cc eeeeeeeeseeeeeeeeeseeeteesesaesevecseeseaseesseseaes iv

BRIEF IN OPPOSITION vsescsssseseueee SUPE TEEPETOESETEESETELTESETEOSESSSSOTINSTSOLETESSECESPETOSSESESEENE 1

STATEMENT OF THE CASE ou... cceecccecescseeseeeesceeaeseeecsereseensesssesassesaeeneseetesaeseens 1

IL Factual Background ........cccccscecesecesccesseeceeceessescseccenceensesesecenteeesaecesceesteeeneeenseees 1

A. Facts of the crime and Howard’s confession ............c:ccccceeeeeees seeeeeeees 1

B. Facts relevant to Howard’s pretrial mental health evaluations ceseeteeeees 2

C. Facts relevant to Howard’s two trials on competency and

subsequent capital murder CONVICTION ...0......ee cee seeeeseeeeeeeeeneeeeeeteeeseneeeues 5

D. = Facts relevant to punishment 00.0... eee cessecseceeaneceneeteeeeeaneeseeeeeneesenseeaee 8

1. The State’s case-in-chief oo... ec cececcssscecesseceecsseteeceeseaeeeaseereeeses 8

2. Howard’s case for mitigation ceeecenscescaeecceesasenseesaneeecascesaeeeuseenatenses 8

3. The State’s case In rebuttal 0... ee eeeeeseeseeererseeenectesenateaeenee 18

TI. Procedural Background... cesses ssesseseeeseeneeersevsersevscensensceseassesseseesseeseeesseeas 19

REASONS FOR DENYING THE WRIT oocccccsccseccsseees seseceesevececonssevseesessesserseracaceass 23

L Howard Provides No Compelling Reason to Grant Certiorari. ........ cee 23

II. The Fifth Circuit Properly Denied a COA on Howard’s IATC Claim

Alleging Failure to Investigate, Develop,, and Present Mitigating

EVIdeN Ce. 00... eee eseeeeeeeeeeeceneenevsneoneessteeeesarsaeeeneesevsntenserssensecstensecsssesevenseevensnagen 24

A. Howard’s mitigation-based IATC claim does not deserve

encouragement to proceed further. .0....... cc ccececeseceeesseeeeceeeeeeeeateneeneens 26

B. Howard’s arguments to the contrary fail. 0.0... lees eereeteeneeeteeneees 31

II. The Fifth Circuit Properly Denied a COA on Howard’s IATC Claim

Alleging Failure to Investigate and Present Evidence of Mental Illness

Regarding Competency and His Miranda Waiver. ...........:00 peesseesseecnaseeeeee 33

A. Howard’s competency-based JATC claim does not deserve

encouragement to proceed further. ...........cccccscessccesseessseesstenseeeeeesseees 33

B. Howard's Miranda-based IATC claim does not deserve

encouragement to proceed further. ...........ccccccccssccsseesssseessecssseseeeeseees 38

CONCLUSION 0... ccccececcrccesersersscssesesesseassesssssussnssnssussessenesasnaeassasegeneeneeasenseasente 40

TABLE OF CITED AUTHORITIES

Cases:

Atkins v. Virginia,

536 U.S. 304 (2002)...

Carter v. Johnson,

131 F.3d 452 (th Cir.

Cavazos v. Smith,

565 U.S. 1 (2011)........

Colorado v. Connelly,

479 U.S. 157 (1986) ....

Dowthitt v. Johnson,

230 F.3d 733 (6th Cir.

Green v. Thaler,

699 F.3d 404 (5th Cir.

Harrington v. Richter,

562 U.S. 86 (2011)......

Heath v. Alabama,

474 U.S. 82 (1985) ......

Hummel v. Davis,

908 F.3d 987 (5th Cir.

Indiana v. Edwards,

554 U.S. 164 (2008)...

Kitchens v. Johnson,

190 F.3d 698 (5th Cir.

Mays v. Stephens,

757 F.3d 211 (th Cir.

McGowan v. Thaler,

675 F.3d 482 (th Cir.

seassucsecceveseesenesessesesssssacassusaeeseuesessesesesuesesssneaestsnsscseaceasaeass 20, 22

LOQT) .ecccsssscssssssesessesesesnssescssssesescsscsesecseseenssestsuesesesseseateneeees 39

besuessessasasessapsssesseussssasessesssusseessausscaseeseseessaessessessesesseaceieeseaness 24

sessensesensescersascanssesuesseaeesesseasesecsesesesusensseseaesaesusaeeseaneaeeansueanees 39

1010) 0) 30

DODD) oo cecccecceesseseescescescsessessessesesassessesessessessseesesassesneenessenees 33

ceseasesessessensescanesecsessesseseesessesesseseeseeseacesccassessesissesiecnsaeenesaeaeeaes 25

beseseesesussseussscssessssessctessesesssaussnesesssseesesecsessearescansscssesseateseeseess 33

QOS) coececcessecsesceseescaescessesssessecnescessesssessessaceateatinsaesessesieenees 25

bsseeseaueesessansssasessessessansssesesssssessaneasesessessessseseueseneescaneaeenesseaneess 35

1999) ooecccccescescesssceseseesecsssessesseseeseareseeneseesesssaeeseaesseesenssseeeees 28

DOTA) caeceececsesssscssesesseesssceseesessesessssessesccecesesuesecsesseseesesesieeneese 35

QODZ) eececcsecseccsesseseccesesececseseceesescsesseseeeseqsesesecseeessssestesatenens 31

iv

Miller-El v. Cockrell,

B37 U.S. 322 (2008) voc cccecscsevsccsvesessussesseccesucsssscsessucsssecsesussseseressasscsnecessnsessevesseeseseres 25

Miranda v. Arizona,

384 U.S. 486 (1966)... ccc ccccccccscecssscscsceseseseseecnssesessseaccnssesesssessecsessesssseenees passim

Skinner v. Quarterman,

576 F.8d 214 (Sth Cir, 2009) 0... cccccscsssceseesseeseecaeeseessesscesseeaeesseeaeesceseeeecseseeseasens 28

Slack v. McDaniel,

529 U.S. 473 (2000) oo... ceccesseesscecsnecessecescecessecsecesaecseecsuscesaeeensaesssecsateenseenseees 25

Strickland v. Washington, _

466 U.S. 668 (1984) occ cee ccseseeecneceneeeessceseeseceneesseeeecetenseeecseecenesseseeenieees passim

Thompson v. Davis,

916 F.3d 444 (Sth Cir. 2019) oo. eecccccccsssessecesceccesceessecseceeeesseecseeesseeeeeeeeses 33, 36

Wiggins v. Smith,

589 U.S. 510 (2008) oo... eee ccccccesccesscesseescsecessseceseessseccssesssteesssecsssessaesesssecueeeneesecssees 31

Wiley v. Epps,

625 F.8d 199 (Sth Cir, 2010) oo. eesseseccesepeccecesececesnececeseeeseesseecseceneeseesseseneeass 33

Woods v. Cockrell,

307 F.3d 853 (5th Cir. 2002) oo. cccccccccccsssccsscesseseeseccseeessseeeseeccseesssesssssecstsetssseesese 32

Constitutional Provisions, Statutes, and Rules:

28 U.S.C. § 2253 (C)(2) .cecccccseccscssscssssscsescenssevecsessanssevecseessersrevecaesssevsnevesseaseesseneesseasaeess 25

28 U.S.C. § 2254 (0)... ccccscccccssscecesnssvecsecesersssceecassatecesseuscencatsessesssevsesseseesasneess passim

28 U.S.C. § 2254 (d)(]) once eee cseceeecsscacsenscsessessesssecacseseeeseeseseesesesaseeeeseesseneenseeteeees 25

28 U.S.C. § 2254 (d)(2) weeecccccseceerscerstenscnserseneersevecacassaneeavecavsenessevecavasneeseanesneaseaesaaees 25

28 U.S.C. § 2254 (e)(]) oo. eee cece es ceeeceseeseeeeeeseneeseceeseeesssceessnessaeasaceesseseneaeeeaes 26, 33, 38

Sup. Ct. Ro LO. ce ceccecsssecsnscesseessssssssccsstseseeccseccsaeesesecsesesaeeesseeecseecseeeesseeeeseess 23, 24

Sup. Ct. BR. 14H) eecccsscesessssssssssssssceccsssssssvsessesscssssssesessessasssseessesscssssneveessscassseeuseeseesen 24

BRIEF IN OPPOSITION

Respondent Director Bobby Lumpkin respectfully submits this brief in

opposition to the petition for a writ of certiorari filed by Jamaal Howard.

STATEMENT OF THE CASE

I. Factual Background

A. Facts of the crime and Howard’s confession

The Texas Court of Criminal Appeals (TCCA) discussed the factual background

of the case as follows:

[Howard] stole a gun from his grandfather the night before the murder

and hid it. Despite his family’s efforts to persuade him to turn over the

gun, [Howard] refused. The following morning, [Howard] retrieved the

gun and walked several blocks from his house to the Chevron store.

After peering in the windows, he entered the store, went into the secured

office area where the victim [Vicki Swartout] was sitting, cocked the

gun, and shot [her] in the chest. [Howard] stole $114.00 from the cash

register and reached over the dying victim to steal a carton of cigarettes

before leaving. The offense was recorded on videotape. [Howard] denied

committing the offense until he was told it was videotaped. He told the

officer who took his statement that he was not sorry for committing the

offense.

Howard v. State, 153 S.W.3d 382, 383-84 (Tex. Crim. App. 2004).

Texas Ranger L.C. Wilson, the officer who took Howard’s statement, advised

Howard of his Miranda rights and noted that Howard appeared to understand his

rights. ROA.4226. The Miranda rights were also included on the Voluntary

Statement form that Howard initialed. ROA.5527. Howard’s interrogation was

videotaped and recorded orally. ROA.4226-27. During questioning, Howard “did not

at all” appear to be confused or dazed and was “really quite at ease.” ROA.4226.

Initially Howard did not admit to doing the crime, but after he was told there

was a surveillance videotape, Howard admitted some knowledge of the offense.

ROA.4227. He told Ranger Wilson that he had been “staying with his grandfather for

' some years and had woken up pretty early that morning and was watching some

daytime soaps and game shows and stuff like that and then went and took his

grandfather's pistol out from under a pillow and walked to the store and shot [the

clerk] and came back.” ROA.4230. Howard never gave a reason why he did it and

expressed no remorse. ROA.4230.

Ranger Wilson and Howard sat side-by-side looking at the computer screen as

the Ranger typed up Howard’s statement. ROA.4229. Howard read the statement

after it was typed. ROA.4229. Ranger Wilson also read the statement to Howard

before it was printed. ROA.4229. According to Ranger Wilson, Howard “was very

cognizant of what was going on.” ROA.4229. When Howard was reviewing the printed

out copy of his statement, he caught a misspelled word in the last paragraph.

ROA.4233-34. The Ranger mistakenly typed “nobody else knew hat I did today,” and

Howard caught that the “w” was missing, wrote it before the word “hat,” and initialed

his handwritten correction. ROA.4234, 5528. Howard’s confession was later admitted

into evidence at trial without objection. ROA.4229, 5527-28.

B. Facts relevant to Howard’s pretrial mental health

evaluations :

Howard was indicted for capital murder for intentionally killing Vicki

Swartout during a robbery on May 12, 2000. ROA.1313. Attorney Tyrone C. Moncriffe

entered his appearance as defense trial counsel on July 5, 2000. ROA.1315. Howard’s

defense team included an investigator and a psychiatrist, Dr. Fred Fason. ROA.6152.

On February 5, 2001, Dr. Fason conducted a clinical evaluation of Howard.

ROA.4744, 6163. After he had difficulty obtaining information from Howard and

found his credibility “questionable,” Dr. Fason recommended that counsel have

Howard tested by a “Ph.D. Psychologist” who could administer the Wechsler Adult

Intelligence Scale (WAIS) and other tests, the results of which were important “to

both present competency to stand trial as well as exploring the possibilities of

mitigation.” ROA.6147. Based on his initial interview, Dr. Fason believed that

Howard was competent, but that it was a close call, so he asked defense counsel to

get psychological testing and obtain records for his review. ROA.5045.

On March 5, 2001, defense counsel moved for an independent examination of

Howard’s competence to stand trial. ROA.1689. The trial court granted the motion

and appointed Dr. James Duncan, a Ph.D. psychologist, to examine Howard and

provide a written medical narrative. ROA.1428, 1690-92.

Jury selection began on March 6, 2001. ROA.1696. Two days later, Dr. Duncan

conducted a mental status examination of Howard, ROA.1436, and on March 9, 2001

submitted a written narrative in which he concluded that:

Mr. Howard was able to provide a reasonably detailed narrative of his

involvement in the alleged incident. He is aware of the specific charges

against him and he expressed awareness of the possible penalties

involved. However, in the opinion of this examiner, Jamaal Howard’s

competency to stand trial at this time is questionable. Mr. Howard’s

thought processes seem impaired and likely affecting his judgment and

reasoning. Given the available history, his intellectual functioning

appears to have deteriorated from a previous level and is now in a range

that would be considered mildly impaired.[!] There is evidence of

flattening or inappropriate affect. Although hallucinations were not

acknowledged by Mr. Howard, this examiner observed him responding

to apparently internal stimuli. Jail guards report similar behavior. His

logic is unusual and at times unintelligible. Given Mr. Howard’s age and

the nature of the symptoms displayed, he may well be exhibiting an

emerging thought disorder, possibly schizophrenia. An organic condition

of unknown origin also can not be ruled out. Mr. Howard would appear

to be in need of psychiatric treatment.

ROA.1487-38 (emphasis and footnote added).

During voir dire proceedings on March 15, 2001, defense counsel gave notice

that Howard was changing his plea from “not guilty” to “not guilty by reason of

insanity.” ROA.2673. Defense counsel stated that he was reserving the plea until he

saw the independent examiner’s report and, after reviewing it, found it comported

with the observations made by Dr. Fason and counsel regarding Howard’s behavior.

ROA.2671-72.

That same day, defense counsel requested a second independent medical

examination as to Howard’s competency to stand trial. See ROA.1434. The trial court

granted the motion on March 15, 2001, and appointed psychiatrist Dr. G.E. “Ned”

Groves. ROA.1434.

Dr. Groves conducted his evaluation of Howard on March 30, 2001 and issued

a summary narrative on April 2, 2001. ROA.1448-51. In his narrative, Dr. Groves

reported inter alia that Howard’s cognitive examination “was notable for limited

effort, if any.” ROA.1450. He described that Howard was initially cooperative with

1 Dr. Duncan’s narrative stated that Howard’s intellectual functioning “was

estimated to be in the borderline to mildly impaired range.” ROA.1437. He arrived at this

estimate by giving Howard several of the verbal subtests on the WAIS. ROA.5015.

answering some superficial questions, but then declined to answer most questions,

and that Howard seemed “extremely disinterested” and “bored” with the process.

ROA.1449-50. Dr. Groves ultimately concluded:

In my opinion, Mr. Howard is competent to stand trial. I believe there

would be sufficient secondary gain for him to feign psychiatric symptoms

or to be minimally cooperative with attempts at developing a mental

status profile. I do not believe that his past psychiatric history nor the

current presentation significantly supports a diagnosis of a major Axis I

condition otherwise, or a condition which would prohibit him from

knowing right vs [sic] wrong or being able to participate in the judicial

process.

ROA.1451.

C. Facts relevant to Howard’s two trials on competency and

subsequent conviction for capital murder

Evidence in the capital murder trial began on April 9, 2001. ROA.4099. The

prosecution called eight witnesses who testified regarding the discovery of Ms..

Swartout’s body, the crime scene, the videotape showing Howard shooting Ms.

Swartout and his taking money and cigarettes, the murder weapon, Howard’s arrest,

and his subsequent Mirandized statement. See generally ROA.4127-257. A ninth

witness, a police dispatcher, testified regarding a 911 call made by Howard's

grandfather, R.C. Kyles, on May 11, 2000, the day before the murder. ROA.4267-68.

According to the dispatcher, Mr. Kyles reported that his grandson had a gun and shot

it off inside the home, police officers were dispatched to the scene, and no other call

came from Mr. Kyles that night. ROA.4269-79.

Trial was recessed on April 10, 2001, after testimony from the first defense-

sponsored witness, Dr. James Duncan, in order to determine if Howard was

competent to proceed. ROA.4309-10.2

That day, Dr. Fred Fason reevaluated Howard and concluded that he should

be considered not competent to stand trial. ROA.5053-54, 5755.3 In a letter to defense

counsel, Dr. Fason opined:

My. Howard is suffering from a form of Schizophrenia that markedly

impairs his ability to have a rational understanding of the charges

against him and the consequences if convicted. Additionally, he does not

possess the ability to cooperate with and communicate with his attorney

in planning his defense, therefore he should be considered incompetent

to stand trial. It is possible that after a trial on the newer atypical antipsychotics that he could become competent to stand trial.

ROA.5756. Later that evening, Howard was evaluated by the State’s expert,

psychiatrist Dr. Edward Gripon. ROA.1525. Dy. Gripon reported that during his

hour-and-a-half-long interview, Howard appeared to understand the questions posed,

gave appropriate responsive answers including a detailed account of the day of the

offense, and showed no evidence of any thought disorder. ROA.1525-28. Dr. Gripon

opined that

within a reasonable psychiatric probability, Jamaal Howard is

competent to stand trial. He has a rational as well as factual

understanding of his current legal difficulty and the legal process, and

he possesses sufficient ability to communicate with his attorney with a

reasonable degree of rational understanding.

ROA.1528 (reformatted). Dr. Gripon also concluded that Howard did not meet the

2 Dr. Duncan testified that Howard displayed symptoms of a thought disorder,

possibly schizophrenia, and that Howard’s competency to stand trial was questionable.

ROA.4286-92, 4305. His testimony is described in more detail in Part I.D.2. below.

3 By now, Dr. Fason had reviewed school records, medical records, and Dr.

Duncan’s report; interviewed Howard’s mother and sister; and spoken with a doctor who

treated Howard for Attention Deficit Hyperactivity Disorder (ADHD) as a teenager. F.g.,

ROA.5027-30, 5035, 5037-40, 5053-54.

DSM-IV criteria for any major disorder, including “any form of Schizophrenia.”

ROA.1528.

A separate trial on competency began on April 11, 2001. ROA.4935. Howard

presented four witnesses: (1) Tyre Thomas, a Hardin County Sheriffs Department

jailer who was a childhood friend, ROA.4985-90; (2) Shirley Howard, Howard’s

mother, ROA.4990-99; (3) Dr. James Duncan, ROA.5000-23; and (4) Dr. Fred Fason,

ROA.5024-57. The State called two psychiatrists, Drs. Ned Groves and Edward

Gripon, ROA.5059-107, and Laura Elizondo, an educational diagnostician,

ROA.5109-116. The competency trial ended in a mistrial on April 12, 2001 with the

jury deadlocked. ROA.5158-59.

’ A second competency trial began on April 16, 2001. ROA.5165. Howard called

(1) Dr. James Duncan, ROA.5269-305; (2) Shirley Howard, ROA.5306-24; (8) Joann

Ferrell, Director of Special Services for Silsbee Independent School District,

ROA.5334-39; and (4) Sandra Johnson, a correctional officer who had known Howard

all of his life. ROA.5340-49. The State called Dr. Ned Groves, ROA.5351-95, and

Captain Coy Collins, an administrator at the Hardin County Jail, ROA.5396-411. In

rebuttal, Howard called (1) Donna Johnson, a custodian of medical records,

ROA.5413-15; (2) Captain Coy Collins, ROA.5418-21; (3) Tyre Thomas (who testified

during the first competency trial), ROA.5422-28; and (4) Linda Lacy, a family friend

who described her observations of Howard’s unusual behavior and changed

personality over time, ROA.5429-33. The trial concluded on April 17, 2001, with the

jury finding Howard competent to proceed. ROA.5465-66.

Trial on the merits resumed on April 18, 2001. ROA.4317. In addition to Dr.

Duncan’s testimony which the jury previously heard, Howard presented testimony

from ten lay witnesses including family members, friends, and teachers to support an

insanity defense, see generally ROA.4327-40, 4851-89, 4898-418, 4431-35, and the

prosecution called psychiatrist Dr. Edward Gripon in rebuttal, ROA.4441-66.4

Howard’s jury was instructed and charged on the affirmative defense of

insanity. ROA.1536-37. The jury rejected the defense and on April 20, 2001, found

Howard guilty of capital murder. ROA.1540, 1574.

D. Facts relevant to punishment

1, The State’s case-in-chief

The TCCA gave the following summary of the evidence presented by the State:

At the punishment stage of trial, the State presented evidence

that [Howard] demonstrated a disregard for authority and school rules

despite the continued efforts of his mother and educators. During one

incident, [Howard] punched a pregnant teacher in the chest with his fist

when she asked him to return to his seat. When [Howard] was assigned

to an alternative school, he refused to comply with its rules and

standards, and was defiant and disruptive. The State also presented

evidence of [Howard’s] possession of controlled substances, his fighting

with police officers and resisting arrest, his committing several

burglaries as a juvenile, and his fighting with other inmates.

Howard, 153 8.W.3d at 384.

2. Howard’s case for mitigation

The district court summarized the evidence presented by Howard during both

stages of trial from nineteen lay witnesses and two experts regarding his background

4 Testimony provided by these witnesses is described in more detail in the

Statement of the Case, Parts I.D.2. and 3. below.

8

and mental health history as follows:

a. Testimony of family members.

(1) Howard’s background and mental

status.

Shirley Howard, Howard’s mother, testified at both stages of trial.

ROA.4398-4429, 4787-94. During the guilt/innocence stage, his mother

testified that Howard has always had mental problems and that she first

began noticing some problems when he was in the 3rd grade. ROA.4399.

Howard was diagnosed with ADHD in the 5th grade. ROA.4899. He

started taking medication for ADHD in the 6th grade, and it calmed him

down a bit. ROA.4400. Ms. Howard testified that Howard had problems

in class at times because of his ADHD. ROA.4400. When Howard was in

the 7th or 8th grade, they began to see Dr. Laine who diagnosed Howard

with depression. ROA.4400. Dr. Laine prescribed Pamelor, but later

switched Howard to Prozac. ROA.4401. Ms. Howard testified that

Howard took the medication and his behavior got better. ROA.4401.

Howard stopped seeing Dr. Laine in October or November of 1996 after

Dr. Laine moved from the area. ROA.4401. His mother made an

appointment for Howard with a psychiatrist in Beaumont, Dr. Ned

Groves, but Howard would not go. ROA.4401-02. When Howard was

sixteen years old, his mother learned that Howard was getting more

disruptive in his afternoon classes and that he was not taking his 12:00

p.m. medication. ROA.4402. She tried to have Howard hospitalized in

order to get him back on his medication, but Howard refused to sign the

papers to commit himself. ROA.4402. Ms. Howard stated that she was

told Howard had to voluntarily admit himself to the hospital or else she

had to go to a county judge and say Howard was threatening to harm

himself or others. ROA.4403.

Ms. Howard further testified that as time passed, her son’s

mental condition worsened. ROA.4403. When the family would be

watching television, Howard would spontaneously laugh out loud for no

apparent reason and did so on other occasions. ROA.4403-04. Howard

would sit and rock, but would bend his whole body like an autistic child.

ROA.4404. Ms. Howard stated that the biggest difference she noticed

was the decline in Howard’s personal hygiene. ROA.4405. She described

Howard as a very clean and neat child who starched and ironed his jeans

or shorts every day. ROA.4404. More recently, he wore an old wool hat

on his head in summertime, did not change his clothes or wash his

clothes for days, and he did not take baths. ROA.4404. The family had

to repeatedly ask Howard to take a bath until he eventually did so.

ROA.4404. Ms. Howard testified that her son went from always willing

to talk with her to where he only answered “yes” or “no,” and even that

had stopped. ROA.4405. When Howard was placed in the homebound

program, he went to live with his grandfather because he could make

sure that Howard got up in the morning and took his medications.

ROA.4405-06. Howard was also there to help his grandfather, who is

legally blind and has arthritis. ROA.4406.

At the punishment stage, Shirley Howard identified pictures of

her son as he was growing up. ROA.4787-90 [DX-2 to DX-6: ROA. 5645-

46, 5648-49, 5651]. She also identified five sports trophies of Howard’s

when he made All Stars in baseball and basketball. ROA.4790-91 [DX-7

to DX-11: ROA.5652-56]. Ms. Howard additionally testified about a fight

Howard got into with another inmate while she was visiting him at jail

on January 4, 2001. ROA.4791-93. Howard had been looking at his

mother during the visitation, but then looked away and started

mumbling something. ROA.4792. Ms. Howard asked what he had said,

but Howard did not respond and turned away. ROA.4792. She heard

Howard saying, “What did you say? I told you to leave my stuff alone,”

then saw him jump up, go to the far end of the visitation room, stand

over one of the other inmates, and heard him keep saying, “What did

you say to me?” ROA.4792. By the time the jailer came, Howard had hit

the other inmate. ROA.4792. Ms. Howard testified that there have been

times when she is speaking to Howard but he does not respond and looks

past her. ROA.4792-93. Finally, Ms. Howard testified that she told

school officials that Howard told her on one occasion that he heard

voices. ROA.4793.

Sheanna Howard, Howard’s sixteen-year-old sister, testified at

both stages of trial. ROA.4366-75, 4785-86. During the guilt/innocence

stage, Miss Howard testified that her brother had always had problems

mentally. ROA.4367. On some occasions, he did not take baths and that

was not like him to do so. ROA.4367. She agreed that Howard would go

for long periods of time without bathing and that her family would have

to tell him to take a bath. ROA.4367. Miss Howard denied noticing

anything unusual about how Howard would eat. ROA.4868. At the

punishment stage, [she] testified that she knows her brother is charged

with a very serious offense, the jury could kill him or give him life, she

loves her brother, and she prays for both families. ROA.4785-86.

Pamela Fulton, Howard’s cousin, testified at the guilt/innocence

stage that she has lived in Silsbee, Texas, all her life. ROA.4351-52. She

stated that she has seen Howard’s different mental states over his life

and noticed recently that Howard would sit alone, talking and laughing

10

to himself. ROA.4352. Ms. Fulton testified that Howard would do this at

her house, at his grandfather’s house, and standing outside on the

corner. ROA.4352. According to Ms. Fulton,. Howard’s behavior had

started to concern the family. ROA.4352.

Jerry Howard, Jr., Howard’s older brother, testified at the

guilt/innocence stage that he played basketball, baseball, and football;

that Howard played the same sports he did; and that Howard tried to

follow him sometimes and do the same things he did. ROA.4376. He

agreed that his brother had always had some sort of problem, even when

he was really young. ROA.4376-77. Howard was on medication for a long

time, sometimes their mother had to force Howard to take his

medication, and she gave Howard’s medication to the school nurse to

make him take it. ROA.4877. He recalled that Howard sometimes wore

the same clothes for weeks and would not wash them, and that he gave

Howard clothes to wear but Howard would not put them on. ROA.4377.

Jerry Howard testified that he would sometimes drive around with

Howard and talk, but Howard would just sit there and not say anything

in response. ROA.4877-78. He agreed that the family was starting to

become concerned about Howard’s behavior. ROA.4378.

R. C. Kyles, Howard’s eighty-four-year-old grandfather, testified

at the guilt/innocence stage that he has eleven grandchildren and loves

them all, but is the closest to Howard. ROA.4431-32. He said he felt that

way because Howard never could explain himself or defend himself, and

other kids would blame Howard for things he did not do. ROA.4432. Mr.

Howard testified that Howard lived with him. ROA.4432. He stated that

Howard had a small room air conditioner and two oscillating fans and

sometimes would have them all turned on, but then Howard would also

turn the big heater on and have it blasting at the same time. ROA.4433-

34. If Mr. Kyles was woken up by loud music on Howard’s record player,

he would go into Howard’s room to turn the music down and would

cut[Joff the heater. ROA.4434.

(2) Howard’s behavior the night

before the capital crime.

Several of Howard’s family members testified regarding his

unusual behavior on May 11, 2000, the night before the capital murder,

including his mother[,] ROA.4406-18, grandfather[,] ROA.4434-37,

brother Jerry[,] ROA.4378-88, sister Sheanna[,] ROA.4368-71, and

cousin Pamela Fulton[,] ROA.4352-59.

11

Generally, these individuals testified that Howard’s grandfather,

Mr. Kyles, called 911 to report that Howard had taken one of Mr. Kyles’

guns and fired it inside his residence. ROA.4368, 4408, 4433. Mr. Kyles

testified that he was afraid of his grandson that night and that Howard’s

skin color had changed, his eyes were big and white, and his eyes had

rolled up into the back of his head. ROA.4433. When the police arrived

at Mr. Kyles’ home, Howard was not present. ROA.4368. Howard’s

family did not want Howard arrested, but wanted help finding him

because they were concerned that he had a gun. ROA.4410. The police

officers left, but said they would look for Howard while they were on

patrol. ROA.4409. Howard came back to the residence after the police

had gone, looking wild eyed. ROA.4868, 4411-12. Family members tried

to keep Howard distracted while they called the police. ROA.4369, 4411-

15. No officer appeared and the family did not call the police again.

ROA.4870, 4415.

Howard's brother, Jerry, testified that when he arrived at their

grandfather’s house, he talked with Howard to try to calm him down but

Howard was “in his own world.” ROA.4380-82. Shirley Howard told

Jerry to take Howard away from the house because their grandfather

was afraid. ROA.4382. Pamela Fulton testified that Howard looked

filthy and kept scratching himself, so she suggested they take him to her

house so he could take a bath. ROA.4357. Jerry got some clean clothes

for Howard and told him to go take a bath, but Howard just stood there

so Jerry turned on the water for him. ROA.43884. When Jerry went to

check on Howard’s progress, he found him standing in the shower fully

clothed, with the water running, and acting like he was rubbing himself

with soap. ROA.4358, 4386. Jerry told his brother to get cleaned up

because he was going to get a girl over there for him, and Howard agreed

to do so. ROA.4387-88. Jerry ended up taking Howard and a cousin out

driving until about 3:00 a.m., then dropped them both off at the cousin’s

house. ROA.4394. Howard’s mother testified that the following day, she.

was planning on talking with a judge to have Howard committed to a

mental hospital because she felt he was a danger to himself and others.

ROA.4417-18.

b. Testimony of friends and peers.

Lisa Sanchez, Howard’s 4th grade teacher, testified for the

defense at both stages of trial. ROA.4327-30, 4680-90. During the

guilt/innocence stage, Ms. Sanchez testified that when Howard was her

student, she taught a self-contained classroom, which meant all

subjects, all day long. ROA.4329. Ms. Sanchez testified that she knows

Howard very well and had known him and his mother before Howard

12

ever became her student because her husband coached him in Little

League the year before. ROA.4330. Howard sometimes came to their

home after school and played with their pets. ROA.4330. Ms. Sanchez

described Howard as “a very outgoing child, very busy, [who] had

difficulty staying in his seat and completing his work. Mostly a happygo-lucky child, but sometimes easily agitated.” ROA.4330. Howard

started taking medication for ADHD when he was in her class, and she

saw his mental state both on and off medication. ROA.4330.

At the punishment stage, Ms. Sanchez testified that she taught a

transition classroom where it was her job to work with students in math

and reading to help bring them up to grade level. ROA.4681. Howard

was in her class because he had some learning difficulties, was below

grade level, and had problems staying in his seat and getting his work

done. ROA.4681-82. Ms. Sanchez testified that Howard did not

particularly like math and it took him a while to get his work done.

ROA.4683. As a reward, she frequently let Howard sit, underneath the

table beside her desk where it was quiet and he could finish his work.

ROA.4683. Ms. Sanchez further testified that Howard would come to

their home and play with their Dalmatians, that he loved the dogs and

drew pictures of himself and the dogs, and his pictures were hung up on

the walls at school. ROA.4684.

Michael Sanchez, Lisa Sanchez’s husband, also testified at both

stages of trial. ROA.4331-38, 4675-79. At the guilt/innocence stage, Mr.

Sanchez testified that he was Howard’s Little League baseball coach

when Howard played on the team for eight year olds. ROA.4329. By his

account, Howard was a very good athlete and they played him

everywhere, from outfield to infield to pitcher. ROA.4332. Mr. Sanchez

testified that when Howard was on his team, it was prior to his taking

medication. ROA.4332. Howard had a hard time focusing on the

repetitive drills like batting practice, but he was very eager and very

excited to play. ROA.4333. The coaches tried to make it as fun as

possible but also wanted everyone to learn, and they had lots of hard

times keeping Howard on task. ROA.4333. Mr. Sanchez testified that

after Howard was medicated, his behavior settled down. ROA.4333. He

witnessed the positive change in Howard’s behavior first hand when he

accompanied his wife’s class on a field trip the following year. See

ROA.4338.

During the punishment stage, Mr. Sanchez testified that he first

met Howard when he was coaching Howard’s older brother, Jerry, and

Howard would come out to the practices and ball games to watch his

brother play. ROA.4676. He described Howard as “very rambunctious,

13

very excitable” and that he seemed to have a lot of nervous energy.

ROA.4677. Mr. Sanchez testified that he and Howard got along pretty

well, that Howard came to the Sanchezes’ home a few times, and that

Howard was respectful. ROA.4678.

Joel Neely, a civil structural engineer at DuPont, also testified for

the defense at both stages of trial. ROA 4334-37, 4767-71. During the

guilt/innocence stage, Mr. Neely stated that he coached Little League

baseball, softball, and basketball in Silsbee. ROA.4335. He remembered

Howard as probably one of the top three pitchers on his team and

described Howard as a “game winner” and a “real good athlete.”

ROA.4336. Mr. Neely testified that most of the time, Howard was just

one of the regular kids who liked to play baseball and have fun.

ROA.4336-37. However, there was occasions in practice when he could

tell that Howard was not really motivated and was “not right” that day.

ROA.4337. Mr. Neely agreed that Howard’s behavior was stabilized on

medication, but when Howard did not take them, his behavior became

erratic. ROA.4337.

At punishment, Mr. Neely testified that Howard played on his

Rangers team when he was ten or eleven years old. ROA.4678. Mr. Neely

had seen Howard play, knew he was a good athlete, and wanted him on

his team. ROA.4769. He swapped one of his team’s players for Howard’s

older brother Jerry, who was a catcher, knowing that he would get

Howard as a pitcher in a year or two because brothers get to play on the

same team. ROA.4769. Mr. Neely testified that the Howard brothers

were always at practice and always had their gear, and he never had to

worry about them being late. ROA.4770. After all these years, Mr. Neely

still had fond memories of Howard. ROA.4770.

Lola Thomas, a nurse manager at Christus St. Elizabeth

Hospital, testified at the guiltfnnocence stage. ROA.4338. She stated

that she had known Howard all his life and noticed his behavior

changing over the last four or five years. ROA.43839. Ms. Thomas

described Howard as having become very withdrawn and isolated, and

that he separated himself from his friends. ROA.4840. Based on her

training and experience as a nurse, she believed that Howard’s

behaviors were symptomatic of someone with mental problems.

ROA.4340,

Milton Young testified at the guilt/innocence stage that he had

lived in Silsbee for the past twenty years, he knows the Howard family,

and has known Howard since he was a little boy. ROA.4361-62. About

two weeks before the capital crime, Mr. Young saw Howard walk down

14

the road and just stand there at the corner staring at folks. ROA.4363.

Mr. Young figured that Howard “had a little problem,” so he talked to

the Chief of Police because he figured that Howard needed some help.

ROA.438638-64.

Deputy Sherry Harrison, a jailer with [the] Hardin County

Sheriffs Department, testified at the punishment stage that Howard

was the type of inmate who would follow directions, Howard followed

her directions, and she never had any personal problems with him.

ROA.4669-70.

Deputy Tyre Thomas, a jailer with the Hardin County Sheriffs

Department, testified at the punishment stage that he went to church

with Howard when they were young, and he played baseball with

Howard’s older brother, Jerry. ROA.4671-72. The deputy saw Howard

at the jail and had contact with him. ROA.4672. Deputy Thomas

testified that Howard acted differently from how he did years ago—he

now talks to himself, has mood swings, and does not take a bath or brush

his teeth unless he is told to do so. ROA.4672. He also testified that he

had not had any problems with Howard like fighting at the jail.

ROA.4674.

William Bass testified at the punishment stage that he works for

the Westvaco paper mill in Evadale. Mr. Bass testified that he was tired

because he had been up for about twenty-four hours and, despite being:

tired, he wanted to come to court to make a statement for Howard.

ROA.4772-73. Mr. Bass knew Howard from Little Dribblers, the Little

League basketball team. ROA.4773. He stated that he has four sons and

the next-to-the-youngest son was Howard’s classmate and they played

basketball together. ROA.4774. According to Mr. Bass, when Howard

got the basketball in his hands, everyone knew he was going to score

and that is how the team won games. ROA.4773. Mr. Bass was not a

coach but just 4 parent who watched the kids play. ROA.4774. Mr. Bass

stated that he had sympathy for the victim’s family and wished he could

turn back the hands of time but also felt sorry for both the victim and

for Howard. ROA.4774.

Tonya Moffett, Howard’s first cousin, testified at the punishment

stage that she works at Helena Laboratories in Beaumont. ROA.4775.

She stated that in February 1989, Howard was a junior groomsman in

her wedding and that he had always treated her with courtesy.

ROA.4776. Ms. Moffett understood that Howard’s jury could give him

the death penalty and stated that both families were in her prayers.

ROA.4776.

15

Sandra Johnson testified at punishment that she works as a

correctional officer at the Stiles Unit in Beaumont, Howard’s mother

and grandmother are her neighbors, and she has known Howard ever

since his mother brought him home from the hospital as a baby.

ROA.4777-78. She understood the jury could give Howard life or death,

and had'sympathy for the other family. ROA.4778.

Denise Young testified at the punishment stage that she works in

office administration for a Home Improvement warehouse. ROA.4779.

She stated that she has known Howard since he was about five years

old. ROA.4780. She understood the jury could give Howard life or death,

she had sympathy for the victim’s family, and said they were in her

prayers. ROA.4780.

Iby G. Young testified at punishment that she was fourteen years

old and a “pretty good student” at Silsbee High School. ROA.4781. Her

mother is Denise Young, the witness who testified just before her.

ROA.4781. Miss Young stated that she knew Howard “because he used

to come around my house and visit a lot and he used to come play with

me and my brother.” ROA.4782. She testified that Howard told her to

“always try my best and succeed at whatever I do” and “don’t let anyone

tell me that I can’t do or be anything I want to be in life.” ROA.4782.

Miss Young understood that the jury could give Howard life or death,

and would pray for both families. ROA.4782.

Keesha McKinney testified at the punishment stage that she is

the twenty-two-year-old daughter of Sandra Johnson, who testified

earlier in the penalty phase. ROA.4783-84. She stated that she has

known Howard since childhood and they grew up together. ROA.4784.

Ms. McKinney testified that they played everything together, including

kickball, baseball, and volleyball. ROA.4784. Her aunt had a field right

next to her house and all the neighborhood kids would come down there

and play. ROA.4784. Ms. McKinney always liked having Howard on her

team because he could hit good, kick good, and they would win the game

when Howard came to bat. ROA.4784. She understood Howard could get

life or death, and she prayed for both families. ROA.4784-85.

c. Testimony of expert witnesses.

Dr. James Duncan, clinical psychologist, testified for the defense

at the guilt/innocence stage. ROA.4281-4308.[] He was appointed by the

trial court to conduct a mental status examination of Howard.

ROA.4288. On March 8, 2001, Dr. Duncan interviewed Howard for an

hour-and-a-half to two hours at the Hardin County Jail and assessed his

16

mental functioning, emotional functioning, intellectual functioning,

concentration, and memory. ROA.4283-84. He also provided a written

report of his evaluation. [DX-1: ROA.5642-44]. Dy. Duncan found

Howard’s level of functioning to be inconsistent, i.e., he sometimes gave

coherent responses but other times gave unintelligible or inappropriate

responses. ROA.4286-87. He testified that Howard would suddenly

smile or chuckle when there was no obvious reason for the response.

ROA.4287. Dr. Duncan thought Howard might have been responding to

an internal stimulus, as if he heard voices. ROA.4288. He also expressed

his concern about Howard’s ability to maintain concentration and found

evidence of flattening or inappropriate affect. ROA.4288. Dr. Duncan’s

intellectual assessment of Howard was that he operates at a borderline

to mildly impaired level of functioning. ROA.4289. In his opinion,

Howard had some deterioration in intellectual functioning which could

be due to an organic condition like a blow to the head or a brain tumor,

or else a biological condition like schizophrenia which usually occurs in

late teens and early twenties. ROA.4289-90. Given Howard’s age and

the nature of symptoms displayed, Dr. Duncan thought Howard may

well be exhibiting an emerging thought disorder, possibly schizophrenia.

ROA.4290-92. Dr. Duncan testified that Howard appeared to be in need

of psychiatric treatment, and that he had questions about Howard’s

competency to stand trial. ROA.4292, 4304-05. He also spoke to one of

the jailers who had observed Howard and learned that his observations

of Howard’s behavior were consistent with his own. ROA.4303.

Dr. Fred Fason, a psychiatrist, testified at punishment regarding

his mental health evaluation of Howard. ROA.4707-66. Dr. Fason

interviewed Howard twice, the first time in February 2001. ROA.4717.

When he began to administer one of the psychological tests, Howard did

not know some of the words in the first few questions. ROA.4719. Dr.

Fason testified that this caused him to conclude that Howard could not

read at the 6th grade level and questioned whether he was intellectually

disabled. ROA.4719-20.

After reviewing Howard’s school records, Dr. Fason discovered

that Howard had started out as a “really bright student.” ROA.4721.

Howard was in the 90% in math in 2nd grade, but had dropped to the

30% in the 5th grade. ROA.4721. Dr. Fason testified that “it was as if

some malignant process started affecting [Howard’s] brain because he

went downhill from there.” ROA.4722. Dr. Fason theorized that

Howard’s declining performance in school was due to the onset of

schizophrenia. ROA.4724. He reviewed Dr. Duncan’s report and testing

materials, and testified that some of the behaviors observed by Dr.

Duncan were characteristic of schizophrenic disorder. ROA.4723. These

17

included poverty of thought, inappropriateness of affect, and loose

associations when Howard was pressed on questioning. ROA.4723-24,

4727-30. Dr. Fason believed that Howard’s diagnoses of ADHD and

depression during adolescence were more consistent with schizoaffective schizophrenia, and that Howard possibly should have been

hospitalized. ROA.4730-31. Dr. Fason called Howard’s physician, Dr.

Laine, in Florida, conferred with him about the possibility of

schizophrenia, and reported that Dr. Laine thought, in retrospect, that

Howard might have had a schizo-affective disorder or prodromal

schizophrenia. ROA.4725, 4733.

Dr. Fason did not agree with testimony provided at the

guilt/innocence stage by the State’s expert, Dr. Edward Gripon, that

Howard’s behaviors were indicative of antisocial personality disorder

and instead believed Howard’s lack of caring was more consistent with

depression. ROA.4754, 4762-63. Dr. Fason also testified about medicines

used for treating patients with schizophrenia and stated that newer,

atypical anti-psychotic medications are becoming available. ROA.4757.

Howard, 2019 WL 4573640, at *6-12 (section numbering and citations changed).

3. The State’s case in rebuttal

The district court summarized the State’s evidence as follows:

Dr. Edward Gripon, a psychiatrist with twenty-six years[’]

experience, testified for the State during its case in rebuttal at both

stages of trial. ROA.4441-66, 4795-814. In addition to giving his opinion

that Howard was not insane at the time of the crime, Dr. Gripon testified

at the guilt/innocence stage that many of the symptoms or behaviors

attributed to Howard—such as having wild eyes, flat affect, depression,

talking to himself, poor hygiene, and laughing inappropriately—are

symptoms of using crack cocaine. ROA.4448-53. Dr. Gripon also found

no evidence of Howard having a substantial mental illness or thought

disorder when he clinically evaluated Howard in April 2001. ROA.4453.

Dr. Gripon stated that Howard’s records contained one reference to

Howard being clinically depressed five years ago, but Dr. Gripon did not

find evidence of clinical depression when he evaluated Howard prior to

trial. ROA.4455-56.

During the punishment stage, Dr. Gripon testified for the State

that Howard was not suffering from schizophrenia, but instead has

antisocial personality disorder. ROA.4798-805. He reported that

Howard was diagnosed with ADHD in 1993 and treated until 1996; that

18

Howard’s behavior improved and his grades were satisfactory when he

took medication; and that when Howard was noncompliant, his grades

declined and his behavior deteriorated. ROA.4797-98. Based on his

review of Howard’s school records, Dr. Gripon did not find anything to

indicate that Howard was suffering from the early signs of

schizophrenia. ROA.4798. Dr. Gripon explained that in making a mental

health diagnosis in 2000, such diagnosis must be based on the DSM-IV

criteria—not psychological literature like that relied on by Dr. Fason.

ROA.4804. To be diagnosed with schizophrenia under the DSM-IV, a

person must have two of the four criteria and must exhibit those

behaviors consistently over a thirty-day period. ROA.4804. Dr. Gripon

testified that Howard does not suffer from schizophrenia because,

although he does have flat affect, he does not exhibit any of the other

three DSM-IV criteria.5 ROA.4804.

Ken Thompson, a criminal investigator with the special prison

prosecution unit, testified regarding the different types of prison

settings for persons convicted of capital murder versus those convicted

of murder and receiving a life sentence. ROA.4814-18, 4821-22. He also

testified about prison gangs such as the Crips, how they recruit

members, and the types of illegal activities that gangs are involved in

within prison. ROA.4818-21. Finally, the State presented victim impact

testimony from Joann Swartout,-the victim’s mother, and Jennifer

Buckley, a niece. ROA.4825-34.

At the close of the punishment hearing, the jury answered the

special issues on future dangerousness and mitigation in a manner

which required the trial court to assess Howard’s punishment at death

by lethal injection. ROA.4901-03; ROA.1545-49, 1573-76.

Howard, 2019 WL 4573640, at *12-13 (record cites changed to ROA cites).

II.

Procedural Background

After a Hardin County, Texas, jury deemed Howard competent to stand trial,

another jury convicted him of the capital murder of Vicki Swartout. ROA.1540, 1574.

5

According to the DSM-IV, the criteria for schizophrenia is two (or more) of the

following: (1) delusions, (2) hallucinations, (3) disorganized speech (e.g., frequent derailment

or incoherence), (4) grossly disorganized or catatonic behavior, or (5) negative symptoms (i.e.,

affective flattening, alogia (poverty of speech), or avolition (lack of motivation) each present

for a significant portion of time during a 1-month period[.]

19

Based on the jury’s answers to the special sentencing issues, the trial court sentenced

Howard to death on April 25, 2001. ROA.1550-54.

The TCCA affirmed Howard’s conviction and sentence on direct appeal.

Howard, 153 S.W. at 389, and this Court denied Howard’s petition for a writ of

certiorari from that appeal. Howard v. Texas, 546 U.S. 1214 (2006) (Mem.).

While his direct appeal was proceeding, Howard filed a state habeas

application raising twenty-two claims. ROA.6043-204. Three IATC claims relevant

here were predicated on a single supposed shortcoming—that trial counsel was

deficient in investigating Howard’s background, which prevented counsel from

discovering mental health related evidence. In Claim 5(A), Howard alleged that,

although counsel investigated and determined that Howard had mental deficiencies

and discussed Howard’s ADHD and potential schizophrenia, counsel did not use the

issues to challenge the voluntariness of Howard’s custodial statement. ROA.6070-71.8

In Claim 5(B)(2), Howard alleged that trial counsel failed to “handle mental

competency issues appropriately” by not developing “available evidence of mental

illness.” ROA.6071-72. He argued that counsel’s investigation “must not have

included reviewing jail records”—specifically, a report from Dr. Glen Guillet “which

8 Howard’s state habeas application included a separate claim alleging that he

is intellectually disabled and his execution would violate Atkins v. Virginia, 5386 U.S. 804

(2002). ROA.6047-57. His evidence consisted of Dr. Fason’s letter recommending that counsel

have a psychologist administer the WAIS, ROA.6147, and Dr. Duncan’s estimate of Howard’s

1.Q., see footnote 1 supra. The claim was denied on the merits, ROA.6017-18, 6296-97, then

abandoned on federal habeas review, e.g. ROA.427-28, 434, 443, and is not before this Court.

20

would have supported a theory of mental illness,”’ and an initial custody assessment

that noted a “mental deficiency” on the day of Howard’s arrest.2 ROA.6072 (citing

ROA.6169-72, 6174-77). Finally, in Claim 16(B), Howard alleged that counsel failed

to investigate and present “mental health mitigating evidence” consisting of jail

records which showed that he suffered a head injury in 1997,° and failed to develop

this evidence by medical records and neurological examination. ROA.6116 (citing

ROA.6149-50).

The habeas trial court adopted the State’s proposed findings of fact and

conclusions of law recommending that relief be denied. ROA.6313, 6295-6313. For the

IATC claims, the state court found that trial counsel presented evidence to the jury

regarding Howard’s mental state through testimony of experts and non-experts

during two trials on competency and during the guilt/innocence and punishment

stages of trial, and concluded that Howard failed to prove both deficient performance

7 This evidence consisted of a “Physician’s Certificate of Medical Examination

for Mental Illness” that was completed on May 15, 2000, three days after the capital crime.

ROA.616-72. In it, Dr. Guillet noted that Howard had a “scalp wound” that was several days

old, but that Howard was “mentally intact—aware of robbery details and shooting of the

cl[erk].” ROA.6169. A mental status examination also revealed that Howard was “Oriented

as to time [and] place,” “Aware of having premeditatedly robbed a store,” and “Aware of

having shot the clerk.” ROA.6171.

8 An “Initial Custody Assessment” of Howard was made on May 12, 2000.

ROA.6174. The records included a section entitled “Special Management Concerns,” where

“mental deficiency” was circled along with “escape threat,” “serious violence threat,” and

“substance abuse.” ROA.6175.

8 A Medical Information Form from 1997 stated: “Gunshot wound to the back of

the head. Revd treatment prior to being brought to jail @ SDH. Inmate stated that he isn’t on

any medication other than pain medication, but does not have it with him.” ROA.6149. A

second page had “YES” checked beside “Lesions” and noted “gunshot to head.” ROA.6150.

The form also asked, “In your opinion is the prisoner capable of exercising sound judgment

in answering the [above] questions,” and the examiner checked “YES.” ROA.6150.

21

and prejudice. See ROA.6300-02. Based on the findings and conclusions and its “own

review,” the TCCA denied habeas corpus relief. Ex parte Howard, No. WR-77,907-

01, 2012 WL 6200688, at *1 (Tex. Crim. App. Dec. 12, 2012).

Howard petitioned for federal habeas on December 12, 2018, raising nine

claims including one alleging intellectual disability under Atkins. ROA.109-72. The

district court authorized funding for Howard to obtain the assistance of a mitigation

specialist and three mental health experts. See ROA.1033. In 2017, Howard informed

the district court that after additional testing and procedures, his experts determined

that he “does not have Intellectual Disability.” ROA.428; see ROA.427, 434, 443.

On September 25, 2017, Howard filed an amended habeas petition abandoning

his Atkins claim and raising five grounds for relief. ROA.445-771. As relevant here,

Howard’s first claim asserted that trial counsel provided ineffective assistance during

the punishment phase by allegedly failing to “conduct a reasonable investigation of

[Howard’s] life history and to have a mental health evaluation conducted in light of

that history.” ROA.476. Howard’s second claim incorporated the facts contained in

his first IATC claim, ROA.476, and asserted that counsel was ineffective for failing

to adequately investigate his “psychosocial history” and “mental condition” regarding

(a) “his competence to stand trial,” .. . and (c) “whether his waiver of Miranda rights

and subsequent confession were knowing and intelligent.” ROA.525. Except for

medical and school records that were already in the trial record, ROA.558-623, 654-

86, Howard supported his IATC claims with eight declarations and an expert report

never presented in state court. ROA.545-57, 624-53, 687-771.

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On September 20, 2019, the district court issued a Memorandum Opinion and

Order denying habeas corpus relief and denying a COA. Howard v. Director, No. 1:13-

cv-256, 2019 WL 4573640 (E.D. Tex. Sept. 20, 2019); Pet. Appx. 2. Regarding the

instant IATC claims, the district court held that Howard failed to show that the state

court adjudications unreasonably applied federal law under § 2254(d). Howard, 2019

WL 4573640, at *26-38, *45-48, *53-55. Final judgment issued on September 25,

2017. ROA.1179.

Howard sought a COA in the Fifth Circuit on his IATC claims. Mot.COA.9, 42-

45, 46-54.10 The Fifth Circuit declined to issue one. Howard v. Davis, 959 F.3d 168

(th Cir. 2020); Pet. Appx. 1. He now seeks a writ of certiorari claiming that the COA

denial was in error. Pet. Cert. 14-21. The Director's response follows.

REASONS FOR DENYING THE WRIT

I. Howard Provides No Compelling Reason to Grant Certiorari.

At the outset, Howard fails to provide justification for granting a writ of

certiorari—no allegation of a circuit split, a direct conflict between the state court and

this one, or even an issue that is particularly important. See Sup. Ct. R. 10(a)-(c).

Instead, he contends the Fifth Circuit “err[ed] in considering the totality of three

different trials” and erred in “excusing the District Court's erroneous conclusion

regarding the proper standard” for reviewing JATC claims. Pet. Cert. 2. That,

however, is hardly an adequate justification for expending limited judicial resources

to review run-of-the-mill IATC claims, especially when many of Howard’s current

10 Howard also appealed the district court’s denial of an evidentiary hearing.

Mot.COA.45-46. That issue is not before this Court.

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arguments were held to have been forfeited or waived on appeal. See Sup. Ct. R. 10

(‘A petition for writ of certiorari is rarely granted when the asserted error consists of

erroneous factual findings or the misapplication of a properly stated rule of law.”).

And that is because “[e]rror correction is ‘outside the mainstream of the Court’s

functions.” Cavazos v. Smith, 565 U.S. 1, 11 (2011) (Ginsburg, J.) (quoting Eugene

Gressman et al., Supreme Court Practice 351 (9th ed. 2007)). Howard's petition

should be denied for this reason alone. Cf. Sup. Ct. R. 14(h) (a petition for writ of

certiorari should contain a “concise argument amplifying the reasons relied on for

allowance of the writ” (emphasis added)).

IL. The Fifth Circuit Properly Denied a COA on Howard’s IATC Claim

Alleging Failure to Investigate, Develop, and Present Mitigating

Evidence.

Howard argues that his attorney was ineffective at the punishment stage (1)

for not hiring or seeking appointment of an additional expert to examine him and

gather a life history for mitigation purposes, (2) for failing to discover and develop

evidence of a head injury, and (3) for not presenting more witnesses and questioning

them better. Cert. Pet. 15, 16-17, 19. In turn, he asserts that he was prejudiced by

this deficient performance because a complete history of his mental illness and life

history was not presented that would likely have resulted in a life sentence. Id. at 15.

Howard contends the Fifth Circuit erred in reviewing his claim, and that a writ of

certiorari should be granted and the case remanded for further proceedings. Id. at 22.

The Court should deny Howard’s petition because he fails to raise a cert-worthy

issue concerning the Fifth Circuit’s denial of a COA. To obtain a COA, an inmate

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