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

No. 20-7071

IN THE

Supreme Court of the United States

______________________________

PETE RUSSELL,

v.

Petitioner,

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 TO

PETITION FOR A WRIT OF CERTIORARI

________________________________

KEN PAXTON

Attorney General of Texas

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

BRENT WEBSTER

First Assistant Attorney General

RACHEL L. PATTON*

Assistant Attorney General

*Counsel of Record

JOSH RENO

Deputy Attorney General

For Criminal Justice

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1400

rachel.patton@oag.texas.gov

This is a capital case.

QUESTION PRESENTED

Did the Fifth Circuit Court of Appeals properly deny a certificate of

appealability on Russell’s claim that he received ineffective assistance of

counsel at the punishment phase of his trial with respect to future

dangerousness?

ii

TABLE OF CONTENTS

QUESTION PRESENTED .................................................................................. ii

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

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

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI ........ 1

STATEMENT OF THE CASE ............................................................................ 1

I. Facts of the Crime .....................................................................................1

II. Subsequent State and Federal Court Proceedings .................................9

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

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

I. The Fifth Circuit Panel applied the correct COA standard. ............... 12

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

Denial of Russell’s Claim Was Not Debatable. .................................... 16

III. No Compelling Reason Otherwise Exists to Grant Certiorari. ........... 23

CONCLUSION ................................................................................................... 24

iii

TABLE OF AUTHORITIES

Cases

Page

Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994) ................................................. 18

Buck v. Davis, — U.S. —, 137 S. Ct.759 (2017) ........................................ 12-15

Cullen v. Pinholster, 563 U.S. 170 (2011) ....................................................... 12

Day v. Quarterman, 566 F.3d 527 (5th Cir. 2009) ......................................... 17

Gregory v. Thaler, 601 F.3d 347 (5th Cir. 2010) ............................................ 18

Harrington v. Richter, 562 U.S. 86 (2011) .................................... 11, 17, 19, 21

Jordan v. Fisher, 135 S. Ct. 2647 (2015) ........................................................ 14

Knowles v. Mirzayance, 556 U.S. 111 (2009) .................................................. 17

Miller-El v. Cockrell, 537 U.S. 322 (2003) ................................................. 12-15

Rompilla v. Beard, 545 U.S. 374 (2005) ......................................................... 18

Slack v. McDaniel, 529 U.S. 473 (2000) .................................................... 12-13

Strickland v. Washington, 466 U.S. 668 (1984) .......................................passim

United States v. Green, 882 F.2d 999 (5th Cir. 1989) ..................................... 18

Wiggins v. Smith, 539 U.S. 510 (2003) ................................................. 17-18, 21

(Terry) Williams v. Taylor, 529 U.S. 362 (2000) ............................................ 11

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

Yarborough v. Alvarado, 541 U.S. 652 (2004) ................................................ 12

Statutes

28 U.S.C. § 2253 .......................................................................................... 12-13

iv

28 U.S.C. § 2254 ........................................................................................ passim

v

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Petitioner Pete Russell was convicted and sentenced to death for the

capital murder of Tanjela Brewer. During the course of committing the offense

of retaliation, Russell stabbed and killed Brewer.

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

Circuit’s denial of a certificate of appealability (COA). Upon denial of his

petition in the district court, Russell sought a COA from the Fifth Circuit on

six claims, one of which is relevant to the present proceeding.

The Fifth Circuit Court of Appeals denied Russell’s application for COA

and Russell now asks this Court to issue a writ of certiorari to decide the

question of whether the Fifth Circuit improperly denied a COA on one of his

ineffective assistance of trial counsel (IATC) at punishment claims.

STATEMENT OF THE CASE

I.

Facts of the Crime

The Fifth Circuit Court of Appeals summarized the factual background

of this case as follows:

Tanjala Brewer was a paid confidential informant for the Houston

Police Department under narcotics officer D.K. Bush. Brewer and

Pete Russell dated for about a year-and-a-half. After the romantic

relationship between Russell and Brewer ended, she took an

undercover officer, Bush, to Russell’s house and introduced him to

Russell as her nephew. Believing Brewer, Russell agreed to sell the

undercover officer several ounces of crack cocaine. After the

transaction, Russell was arrested. On August 9, 2001, Russell

1

pleaded guilty to delivery of a controlled substance and received a

ten-year sentence. However, Russell successfully requested that

the court delay the date for execution of his sentence until

September 7.

Around 11 p.m. on August 12, Brewer’s neighbor saw Brewer and

Russell walking down the street together near Brewer’s house.

About 1 a.m., the neighbor heard Brewer’s screen-door close and

saw Russell walking and then running down Brewer’s driveway

toward the street.

Before noon on August 13, 2001, family members discovered

Brewer’s body lying on her kitchen floor. Brewer’s throat had been

slit and she had been stabbed multiple times with a kitchen knife.

There was also evidence of asphyxiation and shoe imprints

indicating someone had stomped on her legs and stomach. Bloody

drag marks indicated she had been dragged from her bedroom to

the kitchen, where she was posed in a spread-eagle position with

her skirt raised and a crack pipe in her hand. Someone had written

on a mirror and wall with blood. Natural gas valves were turned

on in the home and candles were left burning. The toxicology report

pursuant to Brewer’s autopsy revealed the presence of a significant

amount of cocaine in her system.

Based on the neighbor’s account and evidence at the scene, Russell

became a suspect. Authorities located Russell a few days later,

sitting in a motel room bathtub, fully clothed and foaming at the

mouth from ingesting poison in an apparent suicide attempt.

Russell was taken to the hospital and his stomach was pumped.

Authorities discovered a diamond ring in Russell’s pocket.

Russell subsequently gave two recorded statements, one at the

hospital and one at the jail the following day, admitting guilt. The

recordings were introduced at trial and transcripts were provided

for reference. The preceding facts are largely undisputed. Russell

admits that he killed Brewer. However, he disputes why he killed

her. This goes to whether he committed capital murder. Here, that

is murder in the course of committing or attempting to commit

another crime, i.e., retaliation, under Texas law.

2

During Russell’s first recorded statement at the hospital, Houston

Police Department Sergeant Hal Kennedy asked him, “[i]n your

own words tell me what happened and why you did what you did.”

Russell replied that, “[Brewer]. . . She set—she set me up—she set

me up with the police.” When asked how Brewer set him up,

Russell said:

She brought an undercover to my house saying it was

her nephew that her nephew wanted to buy some

drugs . . . and about fifteen or thirty minutes later her

nephew which is the undercover, call me and I met him

up there at Family Dollar – McDonald’s and that’s

when I got busted.

Russell later said, “[a]nd then you know what I’m saying we

broke up and that’s when she set me up with the laws.” When

Kennedy asked how it is that Brewer got killed, Russell

responded:

Basically, ah I went over her house and you know

since she let me in and she was smoking some drugs

whatever and you know we were just talking

whatever you know about the things we used to do

and I was basically asking her “Why did you set me

up?” “Why did you set me up?” and she kept on

denying it talking bout “I ain’t set you up.” “I ain’t

set you up.” Saying “if you would have stayed with

me none of this would have happened” whatever.

And, basically, you know what I’m saying I just . . .

I just went off. I just snapped.

Russell also stated:

It just . . . It just happened all the while she was

smokin’ you know what I’m saying and the last thing

she said, “If you would have stayed with me it would

have never happened.” And the next thing I know I

just snapped like that you know there was a knife on

the lit dresser right there and I just grabbed it and

jumped on her right there.

3

Officers went to the jail the following day to take photographs of

a cut on Russell’s hand and he gave a second recorded

statement. During that second statement, Russell said that he

did not mean to kill Brewer and that “I really like to say though

that I’m sorry and that I really loved [Brewer] and if ah I could

do it all over again, it wouldn’t have happened.” When asked if

he just lost his temper, Brewer replied:

Yes sir, I just snapped and like a say I loved her, I

loved the family you know that I’m saying, the son and

everything and if I had the chance to do it over again,

I wouldn’t have done it. I want her family to know that

I’m sorry and her friends you know that I’m sorry and

that ah I would always love her and everything.

The [S]tate charged Russell with capital murder in the course of

committing or attempting to commit retaliation based on

Brewer informing the police of Russell’s drug dealing Russell

went to trial in 2003, and multiple witnesses testified.

Andre Wilson lived across the street from Brewer and knew both

Brewer and Russell. Wilson also knew that Russell was jealous

over Brewer. The evening before Brewer was murdered, Wilson

said he saw Brewer and Russell walking down the street

together away from Brewer’s house. Wilson said Brewer acted

normal and asked him for a cigarette. Wilson also testified that

he thought Russell and Brewer were still dating at the time.

Some hours later, around 11 p.m., Wilson saw Russell and

Brewer walking back toward Brewer’s house. At approximately

1 a.m., Wilson was on the porch at his grandmother’s house,

which was next door to Brewer’s, and heard a screen door slam.

Wilson then saw Russell walking and then running away from

Brewer’s house.

At the time of her death, Brewer was also involved in a

relationship with Wilbert Reed, Jr. Reed said he last saw

Brewer alive at approximately 12:15 a.m. on August 13, 2001.

Reed said he had talked to Brewer on the telephone and she

wanted him to come by to see her and drop her off some money

before he went to work driving a truck. Reed went by Brewer’s

house around 11:30 p.m. and testified that Brewer was happy

4

and in a very good mood during the forty-five minutes he was

there. Upon leaving Brewer’s house, Reed said he called Brewer

on his cell phone and they talked a few different times. When

Reed called Brewer back between 12:45 and 1 a.m., he received a

busy signal. Reed said he attempted to call Brewer multiple

times throughout the remainder of the night but kept getting a

busy signal and never talked to her again.

Reed testified that he and Brewer had plans for him to pick her

up when he got off work. After Reed got off work, he went by

Brewer’s house a couple of times, but nobody answered the door.

Reed said that he was angry, so, he wrote a note and slid it under

the door. In the note, Reed essentially accused Brewer of using

him and stated, “I guess Pete is the best man for you.” Reed

testified that he did not know Russell but knew Brewer and

Russell had been in a relationship. Reed also said that Brewer

was afraid of Russell.

Kennedy’s probable cause affidavit stated that Reed told him

Russell had been harassing Brewer, and that Brewer told him

on the night of the murder that Russell had come over to her

house and tried to force entry.

Deborah Calhoun, Brewer’s best friend for about six years, also

testified at trial regarding the relationship between Russell and

Brewer, who she said were in love with each other. Calhoun said

she was friends with both Brewer and Russell and talked to them

both daily during the last two weeks of Brewer’s life. Calhoun

testified that Russell had left a handwritten letter at Brewer’s

house around August 3, 2001. The letter, which was introduced

as an exhibit at trial, stated:

Tanjala, you are a good person. At the same time

you have a dope-smoking habit. You have lied, stole

and cheated all in the name of crack. I cannot trust

you [no] more. You are evil and out to hurt me. You

mean well, but the drugs keep on calling you. I don’t

need you [no] more. So go back to your X X X X.

When asked about Brewer’s demeanor when she read the letter,

Calhoun answered, “We never thought nothing of the letter. We

5

just laughed it off.” However, Calhoun also testified that Brewer

was afraid and scared of Russell during the last two weeks of her

life. Calhoun also recounted incidents of jealousy on the parts

of both Russell and Brewer. Calhoun testified that Russell had

taken Karen Foster to Brewer’s house once when she was there

and indicated Foster was his girlfriend.

Calhoun said she did not know Brewer was working as an

informant. More importantly, Calhoun said that Russell never

gave her the impression he knew Brewer was an informant.

Following that statement, the court took a short recess. After the

break, the prosecutor asked Calhoun whether Russell had ever

indicated to her that he knew Brewer set him up. Calhoun

responded affirmatively and said Russell was angry about it

around the beginning of July 2001.

On cross-examination, Calhoun said Russell was not sure

whether Brewer had set him up, but that he had said “a lot of

people in the neighborhood told him that she done it.” Calhoun

indicated Russell’s uncertainty stemmed from him still loving

Brewer, and that he had never told her anything about wanting

to retaliate against Brewer. Further, Calhoun said that toward

the end of July or the beginning of August, Russell had shown

her the ring that was in his possession at the time of his arrest

and indicated it was for Brewer. Calhoun testified that she told

Russell that Brewer was not going to accept the ring.

Bush, who was the undercover officer Brewer introduced to

Russell as her nephew, testified that he saw Russell twice after

the drug sting in which Russell and Foster were arrested. The

first time Bush saw Russell was just a few weeks after Russell’s

arrest in May 2001. Russell was walking out of the jail as Bush

was going into the jail. The second time, Brewer brought Russell

with her on July 20, 2001 to pick up payment for informant work

on another case. However, Bush said Russell did not exit the car,

which was about 100 yards away, and neither saw him nor

Brewer getting in his car. Bush also testified he questioned

Brewer about bringing Russell and she said it was not Russell

but that it was an older man who lived near her neighborhood

and gave her a ride.

6

Russell testified at trial that he and Brewer had dated for about

a year- and-a-half. He said their relationship broke down after

he got arrested. Russell also said Foster was not his girlfriend,

but rather a woman he worked with at the retirement home.

Russell said that, after he bonded out on the drug charge, he

contacted Brewer and the following exchange occurred: “When I

called her and asked her what happened she said, ‘Baby, don’t

get mad. I heard what happened. I’m trying to get in touch with

my nephew right now.’” Russell said he believed her. Russell

said Brewer told him about Reed, and he was suspicious, but she

said Reed was just a friend.

Russell said that he knew Brewer used drugs and that she had

asked him for drugs. He also said she would get drugs from

Donald Ray Hawkins. Russell said he was jealous of Brewer’s

relationship with Hawkins because he once caught her laying

across his bed in the motel where Hawkins lived.

Russell testified that he had purchased the wedding ring for

Brewer around August 1 and planned to give it to her the night

she was murdered. Russell said Brewer had called him and

asked him to give her some money for drugs. He said he took the

ring when he went to her house with the intention of proposing

to her. Russell said he arrived close to 1 a.m. He testified that,

as Brewer was sitting on the bed smoking crack, he inquired as

to where she was going to get drugs and she said: “I’m going to

get it down the street from Donald Ray [Hawkins].” Russell said

he told Brewer, “no,” and the couple got into a very heated

argument. Russell testified that the following then transpired:

And I just told her, You act like you fucking Donald

Ray, like that.

Then she had picked up a knife a kitchen knife that

she had on the table. She picked up a kitchen knife.

She said, I am fucking him Pete. I been fucking him.

That’s when I picked up a knife off the table and I

called her a bitch. I called her a bitch.

And she said, Fuck you, Pete. Fuck you, Pete. She

7

came at me with a knife and, and I pulled my hand

up. She cut me across my hand. I began just to out

of anger and rage, I just began to stab her and stuff.

Russell said that he felt like he “had been played, you know what

I am saying, messed over after all I did.”

Russell said that he fainted after he stabbed Brewer, and when

he came to, a voice in his head that be believed to be God was

telling him, “Tell them who I am.” So, he wrote on the wall and

mirror in blood. He further said that the body and house were

staged to represent the five elements of the universe: Earth,

wind, fire, water and air. Russell said that he put the crack pipe

back in Brewer’s hand to represent “the hurt” and “her habit.

This was her hell.”

Russell said, after murdering Brewer, he first went home, then

to hide out at a bayou behind his childhood elementary school,

and then to the motel, where he stayed a couple of days before

being arrested. He said he took the rat poison because the voice

told him to “come home.”

Russell claimed he did not know Brewer had set him up until

Kennedy told him at the hospital, “I know all about it. I know

your girl set you up with the law.” Russell said Kennedy also told

him that he knew Brewer was “messing” with Hawkins. Russell

testified that he did not stab Brewer because she informed on

him; he stabbed her because she told him she was having sex

with Hawkins and then cut his hand.

Officer Richard Moreno accompanied Russell in the ambulance

after his arrest. Moreno testified on rebuttal that Russell told him

the diamond ring in his watch pocket was for his girlfriend, Foster,

who was in jail on the same drug case in which Brewer had set up

Russell. Further, Russell said he and Foster were going to be

married when she made bond. However, Moreno did not include

any of that in his report, and Kennedy testified that Moreno

refrained from conversation with Russell in the ambulance.

8

Russell v. Lumpkin, No. 19-70015 (5th Cir. 2020) (citations omitted) (Pet. App.

1 at 2–10). 1

At punishment, the State presented a variety of witnesses that testified

to Russell’s previous violent acts, drug dealing, and the significance of the

victim’s loss on those who knew and loved her. See Pet. App. at 2; Pet. App. 4

at 4–5. Kirk Fletcher testified to being robbed at gunpoint by Russell on

October 2, 1991 when he was an employee at a store named Apple Tree. Id.

The jury heard from Devarick Williams, who lived in the same neighborhood

as Russell. Williams testified about Russell shooting him on June 29, 1991. Id.

A resident of Russell’s neighborhood testified about witnessing Russell point a

gun in a man’s face while he was simply waiting at a bus stop. Id. The same

witness saw Russell “jump[] on” another man because the man owed Russell

money. Id. This assault occurred the week prior to the murder. Id. Finally, the

State introduced a penitentiary packet and stipulation of evidence that proved

Russell’s convictions for the offenses of aggravated robbery, aggravated

assault, and for delivery of a controlled substance. Id.

II.

Subsequent State and Federal Court Proceedings

On February 17, 2003, Russell was convicted of capital murder and

sentenced to death for the murder of Tanjala Brewer during the commission of

“Pet.” refers to Russell’s Petition for Writ of Certiorari. “Pet. App.” refers to

the appendices to that petition.

1

9

retaliation. The conviction and sentence were affirmed on direct appeal to the

Texas Court of Criminal Appeals (CCA). See Pet. App. 1 at 11. Russell filed a

state application for writ of habeas corpus, and based on the trial court’s

findings and conclusions, and the court’s own review, the CCA denied habeas

relief. See Id. Russell then filed a federal habeas petition, followed by a motion

for stay and abeyance in order to return to state court to exhaust issues not yet

raised on state habeas. The district court granted Russell’s motion, but the

CCA dismissed the new application as an abuse of the writ without reaching

the merits. Id. Upon return to federal court, Russell filed an amended petition.

See Id. at 12. The Director filed a motion for summary judgment and answer

with brief in support. Russell responded to the motion and the Director filed a

sur-reply. On July 29, 2019, the district court entered a final judgment denying

Russell’s petition with prejudice and denying a COA. Pet. App. 2.

Russell appealed to the Fifth Circuit Court of Appeals and requested a

COA on six issues. Relevant to the present proceeding, Russell sought to appeal

the district court’s decision on his claim of IATC with regard to the future

dangerousness issue at punishment. The Fifth Circuit denied Russell’s

application for COA. Pet. App. 2. Russell now petitions this Court for a writ of

certiorari.

10

REASONS FOR DENYING THE WRIT

Russell presents no compelling reason for granting review on writ of

certiorari, and none exists. See Sup. Ct. R. 10 (Certiorari review “is not a

matter of right but of judicial discretion,” and “will be granted only for

compelling reasons.”) Indeed, the issue in this case involves only the lower

court’s proper application of this Court’s precedent. Further, Russell does not

allege any circuit split on the proper application of precedent, as none exists.

Accordingly, the petition presents no important question of federal law to

justify the exercise of this Court’s certiorari jurisdiction.

Under 28 U.S.C. § 2254(d), a federal court may not issue a writ of habeas

corpus for a defendant convicted under a state judgment unless the

adjudication of the relevant constitutional claim by the state court, (1) “‘was

contrary to’ federal law then clearly established in the holdings of” the

Supreme Court; or (2) “‘involved an unreasonable application of’” clearly

established Supreme Court precedent; or (3) “‘was based on an unreasonable

determination of the facts’ in light of the record before the state court.”

Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting (Terry) Williams v.

Taylor, 529 U.S. 362, 412 (2000)).

Section 2254(d) reflects the view that habeas corpus is a guard against

extreme malfunctions in state criminal justice systems, not a substitute for

ordinary error correction through appeal.

11

“A state court’s determination that a claim lacks merit precludes federal

habeas relief so long as ‘fairminded jurists could disagree’” on the correctness

of the state court’s decision. Harrington, 562 U.S. at 87 (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)). Further, in reviewing a state court’s

merits adjudication for reasonableness, a federal court is limited to the record

that was before the state court. § 2254(d)(2); Cullen v. Pinholster, 563 U.S. 170,

181 (2011).

ARGUMENT

I.

The Fifth Circuit Panel applied the correct COA standard.

Russell argues that the Fifth Circuit’s application of the standard for

granting a COA was overly burdensome and ventured too far into the realms

of a merits decision. Pet. at 35–39; 2 see Buck v. Davis, — U.S. —, 137 S. Ct.759

(2017); Miller-El v. Cockrell, 537 U.S. 322 (2003); Slack v. McDaniel, 529 U.S.

473 (2000). Russell asserts that, in contravention of this Court’s clear

precedent, the Fifth Circuit panel rejected Russell’s claim on the merits instead

of assessing the debatability of the district court’s opinion. Id. Russell is wrong.

As a jurisdictional prerequisite to obtaining appellate review, Russell

was first required to obtain a COA. 28 U.S.C. § 2253(c)(1)(A). The COA statute

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

“Pet.” refers to Russell’s Petition for Writ of Certiorari. “Pet. App.” refers to the

appendices to that petition.

2

12

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

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

constitutional right.” Miller-El, 537 U.S. at 336 (citing Slack, 529 U.S. at 482–

83; 28 U.S.C. § 2253(c)(2)); see also Buck, 137 S. Ct. at 773–74 (reiterating that

appellate court should limit examination on COA to “threshold inquiry” into

the merits). This standard “includes showing that reasonable jurists could

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

that the issues presented were adequate to deserve encouragement to proceed

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

omitted); cf. Harrington, 562 U.S. at 101 (2011) (“A state court’s determination

that the claim lacks merit precludes federal habeas relief so long as ‘fairminded

jurists could disagree’ on the correctness of the state court’s decision.”) (citation

omitted)).

The Fifth Circuit not only cited, but applied, the proper standard when

denying Russell’s COA request, limiting its review to no more than a “threshold

inquiry” into the merits of Russell’s Strickland 3 claim. The court stated,

“[w]hen the district court rejects constitutional claims on the merits, this court

conducts a threshold inquiry and issues a COA if ‘reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.’

3

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

13

This threshold inquiry does not require full consideration of the factual or legal

bases supporting the claims.” Pet. App. 1 at 12 (citing Miller-El, 537 U.S. at

336, 338). The court then conducted this “threshold inquiry,” concluding that

reasonable jurists would not debate the district court’s denial of Russell’s IATC

punishment claim. Pet. App. 1 at 23–29.

In reaching this conclusion, the Fifth Circuit did not conduct the type of

merits analysis of the IATC claim that this Court has suggested is

inappropriate. Rather, the court noted that “[t]he district court discussed the

state habeas court’s findings at length before engaging in its own analysis

under the ‘doubly deferential’ standard created by Strickland and 28 U.S.C. §

2254(d) and finding no merit.” Pet. App. 1 at 24 (citations omitted). The court

concluded that “Russell is unable to show that reasonable jurists would debate

whether the state court’s denial of his claim was unreasonable.” Pet. App. at

26–27.

This case does not follow the same “troubling” pattern identified by the

dissenting opinion in Jordan v. Fisher, 135 S. Ct. 2647, 2652 n.2 (2015)

(Sotomayor, J., joined by Ginsburg and Kagan, JJ., dissenting from denial of

certiorari). Specifically, the Fifth Circuit did not deny COA “after engaging in

an extensive review of the merits of a habeas petitioner’s claims,” or deny COA

over a dissenting opinion. Jordan, 135 S. Ct. at 2652 n.2; cf. Buck, 137 S. Ct.

at 773 (explaining that the court denied COA after essentially deciding merits

14

and over two votes dissenting from the denial of rehearing en banc). As noted,

the Fifth Circuit did not engage in an extensive review of Russell’s claims.

Indeed, the court did not hear oral argument, and the court’s threshold inquiry

on this issue covers only two pages of the opinion. 4 Nor did any justice dissent

from the decision. See Pet. App. 1.

In his pleading before this Court, Russell makes the blanket statement

that “reasonable jurists could agree with Russell”. Pet. at 36. Such conclusory

statements are insufficient. Russell argues as follows:

In this cause, too, the Circuit panel in this issue was really

deciding the issue on the merits. The Circuit panel put in a good

effort[,] but in doing so it ventured into “full consideration” of the

issue, contrary to Buck.

***

Buck reiterated the observation in Miller-El that “[w]hen a

court of appeals sidesteps [the COA] process by first deciding the

merits of an appeal, and then justifying its denial of a COA based

on its adjudication of the actual merits, it is in essence deciding an

appeal without jurisdiction.” Id., at 336-337. That also is what

happened in Russell’s case.

Pet. at 37–38. However, Russell cannot point to anywhere that the Fifth

Circuit overstepped its constraints and ventured into the improper realm of

making a merits determination.

The Fifth Circuit’s discussion of both of Russell’s IATC at punishment claims

comprised a total of approximately five and one-half pages. See Pet. App. 1 at 23–29.

4

15

After a brief recitation of the facts relevant to the issue, the Fifth Circuit

concluded that “Russell is unable to show that reasonable jurists would debate

whether the state court’s denial of his claim was unreasonable.” Pet. App. at

29. The brevity of the court’s analysis combined with its own statements

regarding the basis of their decision clearly indicate that the court performed

only the requisite “threshold inquiry” before denying COA.

In his briefing before the Fifth Circuit, Russell failed to demonstrate that

fairminded jurists could debate the correctness of the state court’s denial of his

writ of habeas corpus on his IATC claim at punishment related to future

dangerousness. Therefore, the denial of a COA was proper.

II.

The Fifth Circuit Properly Denied COA Because the District

Court’s Denial of Russell’s Claim Was Not Debatable.

Before this Court, Russell again fails to demonstrate that he was entitled

to a COA. Russell claims he received ineffective assistance at trial because his

counsel failed to investigate and present evidence that Russell did not pose a

future threat to society, specifically expert testimony on his likelihood of

committing further violent acts. 5

Russell’s complaint is that his trial attorneys did not employ an expert “to

connect the dots” created by the lay testimony that was presented. Pet. at 24. Russell

presents the report of Dr. Mark Cunningham as an example of the testimony

“representative of what experts in the field could research before trial and then

present at court.” Pet. at 22. However, Russell has acknowledged that Cunningham

may not have been available to testify at Russell’s trial. See Pet. App. 1 at 25–27. This

is a necessary factor as in order to prove prejudice Russell must demonstrate

prejudice. Russell cannot show that he was prejudiced by counsel’s failure to employ

5

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Under § 2254(d), “because the Strickland standard is a general standard,

a state court has even more latitude to reasonably determine that a defendant

has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123

(2009). As such, “[e]stablishing that a state court’s application of Strickland

was unreasonable . . . is all the more difficult. The standards created by

Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply

in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (citations omitted).

“[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to

the extent that reasonable professional judgments support the limitations on

investigation.” Strickland, 466 U.S. at 690–91. The reasonableness of an

attorney’s investigation must be determined by considering not only the

evidence already known to counsel, but also whether such evidence would lead

a reasonable attorney to investigate further. Wiggins v. Smith, 539 U.S. 510,

526–27 (2003). At a minimum, counsel should interview potential witnesses

an expert who may have been wholly unavailable to testify. Further, Russell does not

suggest any other experts were available to testify to similar statistics at the time.

As uncalled witnesses are disfavored as a basis for an IATC claim generally, Russell’s

failure to provide any evidence that any witness was available is fatal. See Day v.

Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (“that complaints of uncalled

witnesses are not favored in federal habeas corpus review because the presentation

of testimonial evidence is a matter of trial strategy and because allegations of what a

witness would have stated are largely speculative.”)

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and independently investigate the facts and circumstances of the case. Bryant

v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994).

“An applicant ‘who alleges a failure to investigate on the part of his

counsel must allege with specificity what the investigation would have

revealed and how it would have altered the outcome of trial.’” Gregory v.

Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (quoting United States v. Green, 882

F.2d 999, 1003 (5th Cir. 1989)).

“Strickland does not require counsel to investigate every conceivable line

of mitigating evidence no matter how unlikely the effort would be to assist the

defendant at sentencing.” Wiggins, 539 U.S. at 533. “[R]easonably diligent

counsel may draw a line when they have good reason to think further

investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005).

Regarding prejudice, it is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at

693. Rather, counsel’s errors must be “so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Id. at 687. To make this

determination, a reviewing court must “consider all the relevant evidence that

the jury would have had before it if [the petitioner] had pursued a different

path—not just the . . . evidence [the petitioner] could have presented, but also

the . . . evidence that almost certainly would have come in with it.” Wong v.

Belmontes, 558 U.S. 15, 20 (2009).

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This IATC issue was raised and rejected by the state habeas court and

the district court properly deferred to the state court findings. The district

court concluded not only that “Russell failed to overcome the presumption

afforded the state court findings, but that Russell did “not acknowledge the

state court findings to which [the] Court must defer.” Pet. App. 2 at 43. Before

the Fifth Circuit, and continuing to his briefing before this Court, Russell has

continued to selectively ignore the state court findings.

Part of Russell’s argument focuses on one finding by the state habeas

court. Russell takes issue with the state trial court’s finding that such evidence

is not relevant. 6 See Pet. at 31–33. However, as the Fifth Circuit pointed out

“that was not the court’s only finding as to this issue.” Pet. App. 1 at 28. The

state court also found, based on trial counsel’s affidavit, that counsel believed

Interestingly, Russell also argues that there are no state court findings on this

issue. “The state habeas court’s decision must be contrary to, or an unreasonable

application of, clearly established Federal law, as determined by this Court. By the

terms of the statute, that limitation applies to a ‘decision.’ What is a ‘decision’ in this

context? It is not just the ultimate state court order granting or denying relief, but

rather must mean a conclusion made by the state habeas court as to a particular

claim. If a state habeas court does not address a particular claim, then there has not

a decision on the claim.” Pet. at 34. Russell’s argument is simply inaccurate.

First, as Russell notes in his argument about the relevancy finding, there were

state court findings related to this issue. See Pet. at 31–33. Second, the statement is

legally inaccurate. Even if a state court is silent as to the factual basis of its merits

decision, that decision is still due deference. See Harrington v. Richter, 562 U.S. 86,

98 (2011) (“Where a state court’s decision is unaccompanied by an explanation, the

habeas petitioner’s burden still must be met by showing there was no reasonable

basis for the state court to deny relief. This is so whether or not the state court reveals

which of the elements in a multipart claim it found insufficient, for § 2254(d) applies

when a ‘claim,’ not a component of one, has been adjudicated.”)

6

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evidence of Russell’s life and background was more effective than studies of

convicted murderers. The gist of Russell’s argument, as supported by

Cunningham’s report, is that counsel should have done more, i.e., should have

called an expert to contextualize the evidence presented, and to provide

statistics, scientific data and general information.

Russell complains that “[t]he federal district judge’s analysis was guided

in part by the state habeas judge’s finding, based on a ‘credible affidavit of trial

counsel Hayes,’ that the driving force in the strategy regarding future

dangerousness was a belief that ‘specific evidence of [Russell’s] life and

background presented to the jury would be more effective than studies of

convicted murderers’ (Appendix Exhibit 2, p. 43).” Pet. at 28. However, the

district judge followed the letter and spirit of the law by deferring to the state

findings. See 28 U.S.C. 2254(d).

State trial counsel, based upon reasonable investigation, developed a

trial strategy and diligently pursued it. As found by the state habeas court,

with regard to the investigation, trial counsel interviewed witnesses; obtained

discovery from the State; talked to Russell and his family numerous times,

including about his life and background; and hired a mitigation expert. Based

on this information trial counsel developed a punishment strategy that Russell

was a good person who never had a chance. Testimony was elicited to support

this theory including evidence on Russell’s rearing in a very poor part of

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Houston, his abandonment by his father, family history of criminal activity,

poverty, and lack of proper parental supervision.

The theory of the case that trial counsel chooses to present falls squarely

within the realm of trial strategy that requires such highly deferential review.

Russell does not argue that trial counsel failed to present a future danger case.

That Russell quibbles with his trial counsel’s performance is nothing more

than the type of second-guessing that Strickland cautions against. 466 U.S. at

689.

A basic tenet of federal habeas litigation is that that the petitioner is

required to present evidence and argument supporting their claims, rather

than expecting the Director to bear the burden. See Richter, 562 U.S. 104.

However, Russell’s argument before this Court is replete with complaints and

speculation as to trial counsels’ strategy and any potential prejudice resulting

from failing to follow Russell’s now-favored approach.

The question under Wiggins must be: How could trial counsel

fairly compare the two evidentiary approaches, choosing lay

witnesses over experts, without investigating what an expert

actually could say and what scientific research an expert could

present? There is no indication that defense counsel investigated

the topic until a point was reached where further investigation

would be unnecessary, as this Court’s case law demands. Instead

defense counsel seems to have relied on a preconceived bias.

A courtroom is like a farmer’s market, in that the quality and

quantity of the work done beforehand is evident from the apparent

yield. What could the yield have been if trial counsel had

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researched the topic of future dangerousness, or had obtained the

assistance of someone like Dr. Cunningham to do so?

Pet. at 29.

Russell complains that trial counsel could not compare “the two

evidentiary approaches, choosing lay witnesses over experts” because they

failed to conduct a proper investigation. Pet. at 29. However, in the very next

sentence, Russell then complains that trial counsel “relied on a preconceived

bias” against experts such as Cunningham. Pet. at 29. To support this claim,

Russell quoted a pre-trial motion filed by trial counsel requesting that the trial

court find the death penalty unconstitutional. Pet. at 27. Therefore, Russell’s

own briefing demonstrates that trial counsel was aware of the type of

testimony available through experts such as Cunningham on the issue of

future danger. Yet counsel made the strategic decision not to employ such an

expert and instead focus on Russell’s life, background, and who he was as a

person.

Furthermore, even assuming deficient performance, Russell cannot

demonstrate that he was prejudiced. Even had trial counsel presented a

Cunningham-like expert, there is no reason to believe that his sentence would

have been different. Considering the totality of the evidence that the jury

heard, studies of statistics could not have countered the evidence of Russell’s

other violent crimes which included convictions for aggravated robbery and

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assault for the Apple Tree incident, the shooting of a man, and the assault of

another man over an undisclosed amount of money. Russell’s previous behavior

demonstrated a willingness to resort to violence for little or no reason.

Impersonal testimony on prison violence statistics would have been a far less

effective counter to the State’s evidence of Russell’s very personal tendency for

violence than the defense employed by Russell’s attorneys. Russell’s

complaints about his counsels’ strategy do not alter the fact that it was a

reasonable and informed strategy.

The district court, applying the doubly deferential standard afforded a

state court adjudication, deferred to the state court findings under AEDPA.

Reasonable jurists could not debate the district court’s denial of this claim.

Therefore, the Fifth Circuit’s denial of a COA on the claim was proper.

III.

No Compelling Reason Otherwise Exists to Grant Certiorari.

Finally, Russell claims that he is not requesting that this Court review

a “simple application of well-settled law.” Pet. at 17. Rather, he “emphasizes

the paramount importance of the first special issue submitted under Texas

law, concerning what is commonly called ‘future dangerousness.’” Id. However,

future dangerousness is not the issue that Russell requests this Court address.

In fact, Russell himself notes that “all this Court really needs to decide at this

time is whether a panel of the United States Court of Appeals for the Fifth

Circuit applied the procedures for a COA.” Id. Russell does not claim that the

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Fifth Circuit applied the wrong precedent; he merely disagrees with the

conclusion the Fifth Circuit reached after a proper application of that

precedent. Id. at 35–39. Such a complaint does not merit this Court’s attention.

CONCLUSION

For all the reasons discussed above, the Court should deny Russell’s

petition for a writ of certiorari.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

JOSH RENO

Deputy Attorney General

for Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

RACHEL L. PATTON

Lead Counsel

Assistant Attorney General

Counsel for Respondent

(512) 936-1400

rachel.patton@oag.texas.gov

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