Petition for Writ of Certiorari — Naim Rasool Muhammad, Petitioner v. Texas
Supreme Court briefAug 16, 2021
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No. _________
(CAPITAL CASE)
_________________________________________________
IN THE
Supreme Court of the United States
NAIM RASOOL MUHAMMAD,
Petitioner,
v.
TEXAS,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
TEXAS COURT OF CRIMINAL APPEALS
____________________________
PETITION FOR A WRIT OF CERTIORARI
____________________________
CAPITAL CASE
BENJAMIN B. WOLFF*
Counsel of Record
OFFICE OF CAPITAL AND FORENSIC WRITS
Michelle E. Ward
Heather Richard
1700 N. Congress Ave., Ste. 460
Austin, TX 78701
(512) 463-8600
benjamin.wolff@ocfw.texas.gov
michelle.ward@ocfw.texas.gov
heather.richard@ocfw.texas.gov
*Member, Supreme Court Bar
iii
QUESTIONS PRESENTED
In this capital case, the Texas Court of Criminal Appeals (“TCCA”) denied
Naim Rasool Muhammad’s claim that his trial counsel were constitutionally
ineffective because, it held, he “fail[ed] to meet his burden under Strickland v.
Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence” that
his counsel’s deficient performance prejudiced him. Appendix B at 3. However, in
Strickland and every decision evaluating ineffective assistance of counsel since, this
Court has held that “the appropriate test for prejudice” is whether “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” and defined a “reasonable probability” as “a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694. On top of applying the wrong prejudice standard, the TCCA adopted the trial
court’s assessment of Mr. Muhammad’s claims based in part on the habeas judge’s
“personal experience and knowledge of the case,” even though that judge did not
preside over Mr. Muhammad’s trial or habeas proceedings and rubber-stamped the
State’s proposed findings of fact and conclusions of law only after the presiding judge
passed away.
The questions presented are as follows:
1. Whether a habeas court violates Strickland and decades of this Court’s
precedent by imposing a “preponderance of the evidence” standard for
prejudice instead of the proper “reasonable probability” standard and by failing
to evaluate the impact of trial counsel’s deficient performance cumulatively.
iv
2. Whether a habeas court violates the Due Process Clause’s guarantee of a
neutral decisionmaker by adopting the State’s proposed findings of fact and
conclusions of law wholesale and expressly relying on a non-presiding judge’s
extrajudicial “personal experience and knowledge of the case” as a basis for
denying relief.
v
PARTIES TO THE PROCEEDINGS BELOW
All parties appear on the cover page in the caption of the case.
vi
TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................................................................... iv
PARTIES TO THE PROCEEDINGS BELOW ............................................................ vi
INDEX OF APPENDICES ......................................................................................... viii
TABLE OF AUTHORITIES ......................................................................................... ix
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1
INTRODUCTION .......................................................................................................... 2
STATEMENT OF THE CASE....................................................................................... 5
A.
The Pretrial Proceedings.......................................................................... 5
B.
The Trial ................................................................................................... 8
1.
The State’s Penalty-Phase Case ................................................... 9
2.
Mr. Muhammad’s Penalty-Phase Case and the Death
Sentence ......................................................................................... 9
C.
State Post-Conviction Evidence: Trauma, Brain Damage,
Epilepsy .................................................................................................. 11
D.
The State Habeas Adjudication ............................................................. 18
REASONS TO GRANT THE PETITION.................................................................... 20
A.
B.
The State Courts’ Prejudice Inquiry Violated Strickland. ................... 20
1.
The State Courts Conflated Strickland’s “Reasonable
Probability” Standard of Proof for Prejudice with the More
Onerous Preponderance Standard. ............................................. 21
2.
The State Courts Further Violated Strickland and its
Progeny by Failing to Assess Prejudice Cumulatively............... 25
The State Courts Violated this Court’s Longstanding Due
Process Precedents Requiring Judges to Serve as Impartial and
Independent Arbiters. ............................................................................ 30
CONCLUSION............................................................................................................. 34
CERTIFICATE OF COMPLIANCE .............................................................................. 1
CERTIFICATE OF SERVICE ....................................................................................... 2
vii
INDEX OF APPENDICES
Appendix A: Order Denying Reconsideration, Ex parte Muhammad, No. WR-85,34301 (Tex. Crim. App. Mar. 17, 2021) (unpublished)
Appendix B: Order Denying Relief, Ex parte Muhammad, No. WR-85,343-01, 2020
WL 6777968 (Tex. Crim. App. Nov. 18, 2020) (unpublished)
Appendix C: State District Court’s Recommended Findings of Fact and Conclusions
of Law, Cause No. W11-00698-K(A) (Crim. Dist. Ct. No. 7 Dallas Cty. Nov. 21,
2019).
viii
TABLE OF AUTHORITIES
Cases
Anderson v. Bessemer City, 470 U.S. 564 (1985). ....................................................... 31
Andrus v. Texas, 140 S. Ct. 1875 (2020) ........................................................ 22, 26, 28
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ............................................. 33
Commonwealth v. Davido, 106 A.3d 611 (Pa. 2014).................................................. 25
Ellis v. Harrison, 947 F.3d 555 (9th Cir. 2020) .......................................................... 24
Evitts v. Lucey, 469 U.S. 387 (1985)............................................................................ 30
Ex parte Overton, 444 S.W.3d 632 (Tex. Crim. App. 2014)). ...................................... 22
Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990) ....................................... 28
Ex parte Wolf, 296 S.W.3d 160 (Tex. App. 2009) ........................................................ 25
Ford v. Wainwright, 477 U.S. 399 (1986) ............................................................. 30, 31
Goldberg v. Kelly, 397 U.S. 254 (1970)........................................................................ 30
Hebert v. Rogers, 890 F.3d 213 (5th Cir. 2018) ........................................................... 24
In re Murchison, 349 U.S. 133 (1955); .................................................................. 32, 33
Isom v. Arkansas, 140 S. Ct. 342 (2019) ..................................................................... 34
Joachim v. Chambers, 815 S.W.2d 234 (Tex. 1991). .................................................. 32
Jefferson v. Upton, 560 U.S. 284 (2010) ...................................................................... 31
Lichau v. Baldwin, 39 P.3d 851, 856 (Or. 2002)......................................................... 25
Liteky v. United States, 510 U.S. 540 (1994) .............................................................. 34
Miller-El v. Cockrell, 537 U.S. 322 (2003), ................................................................. 32
Mistretta v. United States, 488 U.S. 361 (1989) ......................................................... 34
Morrissey v. Brewer, 408 U.S. 471 (1972). .................................................................. 30
Overall v. State, No. 88-215-III, 1988 WL 138228 (Tenn. Crim. App. Dec. 28,
1988) ......................................................................................................................... 26
Panetti v. Quarterman, 551 U.S. 930 (2007)............................................................... 30
People v. Centeno, 338 P.3d 938 (Cal. 2014) ............................................................... 24
Pierce v. Adm’r New Jersey State Prison, 808 Fed. App’x 108 (3d Cir. 2020) ........... 24
Randoff v. United States, No. 9:13cv289, 2014 WL 12815048 (E.D. Tex. Oct.
27, 2014) ................................................................................................................... 24
Rector v. Johnson, 120 F.3d 551 (5th Cir. 1997)......................................................... 24
Richards v. Quarterman, 566 F.3d 553 (5th Cir. 2009) ............................................. 28
ix
Sears v. Upton, 561 U.S. 945 (2010)...................................................................... 26, 28
Scott v. Ohio, 480 U.S. 923 (1987) ............................................................................... 34
Smith v. Dretke, 134 Fed. App’x 674, 681 n.1, 2005 WL 1349827, at *7 (5th
Cir. 2005) .................................................................................................................. 32
State v. Adams, 810 N.W.2d 365 (Iowa 2012 .............................................................. 25
State v. L.A., 76 A.3d 1276 (N.J. App. Div. 2013) ....................................................... 25
State v. Thorndike, 860 N.W.2d 316 (Iowa 2015) ....................................................... 24
Strickland v. Washington, 466 U.S. 668 (1984) .................................................. passim
Taylor v. State, 29 So. 3d 134 (Miss. 2010) ................................................................. 25
Tumey v. Ohio, 273 U.S. 510 (1927) ............................................................................ 34
Williams v. Taylor, 529 U.S. 362 (2000) ..................................................................... 23
Woodson v. North Carolina, 428 U.S. 280 (1976) ....................................................... 31
Statutes
28 U.S.C. § 455(b)(1) .................................................................................................... 34
TEX. CODE CRIM. PROC. art. 11.071 § 9(a), .................................................................. 32
Rules
TEX. R. EVID. 605.......................................................................................................... 32
TEX. CODE JUDICIAL CONDUCT CANON 2 ...................................................................... 32
x
PETITION FOR A WRIT OF CERTIORARI
Naim Rasool Muhammad respectfully petitions for a writ of certiorari to
review the judgment of the TCCA.
OPINIONS BELOW
The TCCA’s order denying Mr. Muhammad’s Suggestion for Reconsideration,
No. WR-85,343-01 (Tex. Crim. App. Mar. 17, 2021), is in Appendix A. The TCCA’s
unpublished opinion, Ex parte Muhammad, No. WR-85,343-01, 2020 WL 6777968
(Tex. Crim. App. Nov. 18, 2020), adopting the trial court’s Findings of Fact and
Conclusions of Law, is in Appendix B. The trial court’s Findings of Fact and
Conclusions of Law, Cause No. W11-00698-K(A) (Crim. Dist. Ct. No. 7 Dallas Cty.
Nov. 21, 2019), are in Appendix C.
JURISDICTION
The TCCA affirmed the trial court’s decision on November 18, 2020.
Appendix B. The TCCA denied Mr. Muhammad’s Suggestion for Reconsideration
on March 17, 2021. Appendix A. This Court has jurisdiction under 28 U.S.C. §
1257(a).
Pursuant to this Court’s July 19, 2021 Order, the 90-day deadline set forth
in 28 U.S.C. § 2101(c) is extended to 150 days.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Article 11.071 of the Texas Code of Criminal Procedure provides, in relevant
part, as follows:
1
Sec. 9. (a) If the convicting court determines that
controverted, previously unresolved factual issues
material to the legality of the applicant’s confinement
exist, the court shall enter an order, not later than the
20th day after the last date the state answers the
application, designating the issues of fact to be resolved
and the manner in which the issues shall be resolved. To
resolve the issues, the court may require affidavits,
depositions, interrogatories, and evidentiary hearings
and may use personal recollection.
[. . .]
Sec. 10. The Texas Rules of Criminal Evidence apply to a
hearing held under this article.
Sec. 11. The court of criminal appeals shall expeditiously
review all applications for a writ of habeas corpus
submitted under this article. The court may set the cause
for oral argument and may request further briefing of the
issues by the applicant or the state. After reviewing the
record, the court shall enter its judgment remanding the
applicant to custody or ordering the applicant’s release,
as the law and facts may justify.
The Sixth Amendment to the United States Constitution provides, in
pertinent part: “In all criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.
The Fourteenth Amendment to the United States Constitution provides, in
pertinent part: “No state shall . . . deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV.
INTRODUCTION
In assessing prejudice under Strickland v. Washington, 466 U.S. 668, 664
(1984), Texas courts must evaluate the “totality” the evidence relevant to trial
counsel’s deficient performance to determine if there is a “reasonable probability”
2
that at least one juror might have voted differently on one of the two special issues
necessary to impose a death sentence. In Strickland, this Court explained that, in
undertaking this analysis, courts must keep in mind that “[t]he result of a
proceeding can be rendered unreliable, and hence the proceeding itself unfair, even
if the errors of counsel cannot be shown by a preponderance of the evidence to have
determined the outcome.” Id. at 693-94. It follows that, in Mr. Muhammad’s habeas
proceedings, the state courts committed clear constitutional error by conflating
Strickland’s “reasonable probability” standard with the higher “preponderance of
the evidence” standard and by failing to consider trial counsel’s errors and
omissions cumulatively.
The state courts further contravened this Court’s precedents when the
habeas judge—who did not preside over Mr. Muhammad’s trial or writ
proceedings—explicitly credited trial counsel’s testimony and based her decision
denying relief on her own “personal experience and knowledge of the case,” rather
than the evidence adduced at the evidentiary hearing.
Mr. Muhammad, who committed this tragic capital offense while suffering
from an uncontrolled seizure disorder compounded by a lifetime of cascading
traumatic stressors that impaired and then totally overwhelmed him in the years,
months, and days leading up to the crime, was prejudiced by his trial counsel’s
objectively unreasonable approach to mitigation. Mr. Muhammad has an IQ of 76,
suffers from a degenerative seizure disorder, and grew up in a household dominated
by his volatile and largely absent mother’s drug-fueled prostitution and crack
3
cocaine addiction, pervasive familial violence, and sexual abuse. Over the course of
six days of post-conviction proceedings, Mr. Muhammad offered testimony
establishing trial counsel’s failure to investigate and present voluminous available
mitigating evidence of his substantial cognitive deficits, neurological impairment,
and harrowing childhood.
As a result of trial counsel’s deficient performance on multiple fronts, the
jury’s understanding of Mr. Muhammad’s life and spiraling cognitive dysfunction
at the time of the offense was irredeemably incomplete. Had counsel conducted an
adequate investigation and developed a coherent mitigation theory, there is a
reasonable probability that Mr. Muhammad would not have been sentenced to
death.
4
STATEMENT OF THE CASE
A.
The Pretrial Proceedings
Mr. Muhammad was indicted on October 24, 2011 for the deaths of his two
sons. See Mr. Muhammad’s Proposed Findings of Fact and Conclusions of Law,
Cause No. W11-00698K(A), ¶¶ 2-3 (Crim. Dist. Ct. No. 7 Dallas Cty. June 28, 2019)
(hereinafter “PFFCL”). 1 At trial, Mr. Muhammad was represented by lead counsel
Paul Johnson and co-counsel Mark Watson and Kobby Warren. Mr. Johnson and
Mr. Watson were appointed the day after the offense, on August 22, 2011, and Mr.
Warren was added to the trial team on January 3, 2013, in the middle of voir dire.
Id. ¶¶ 9, 13, 62.
In the year between his appointment as lead counsel and the first day of voir
dire on December 14, 2012, Mr. Johnson handled at least ten murder trials. Id. ¶¶
63, 150. At the opposite extreme, Mr. Watson and Mr. Warren had essentially no
experience trying death penalty cases: Mr. Watson had not previously worked on a
capital case, and Mr. Warren had joined Mr. Johnson as second chair on one capital
trial. Id. ¶¶ 64-65. Dr. Kristi Compton, a licensed clinical and forensic psychologist,
was retained as a “mitigation consultant,” very loosely approximating the required
“mitigation specialist” role for Mr. Muhammad’s capital defense team. Id. ¶¶ 65,
138-39, 151. Throughout 2012, Dr. Compton served in the same capacity on another
1 Citations to Mr. Muhammad’s Proposed Findings of Fact and Conclusions of Law
are supported by detailed citations to the underlying state habeas proceeding
transcripts and exhibits. Citations to “EHRR” refer to the Reporter’s Record of the
post-conviction evidentiary writ hearing, and citations to “RR” refer to the
Reporter’s Record of Mr. Muhammad’s trial proceedings.
5
capital defense team, and her timesheets indicate that she worked a total of only
113.5 hours on Mr. Muhammad’s case. Id. She met with Mr. Muhammad just four
times. Id. ¶¶ 68-79.
Although trial counsel were put on notice almost immediately after Mr.
Muhammad’s arrest in August 2011 that he had a serious, uncontrolled seizure
disorder, they failed to retain or consult a neurologist or collect critical medical
history records. Medical records produced to the defense by the State showed that
Mr. Muhammad suffered a series of seizures in Dallas County custody in May of
2009 after falling out of his bunk, that he was subsequently diagnosed with
epilepsy, and that he continued to have uncontrolled seizures in the Dallas County
Jail while in custody awaiting trial in this case. Id. ¶¶ 67, 142, 152. Dr. Compton’s
scattered interviews with relatives further revealed that, starting in 2008, Mr.
Muhammad began exhibiting “strange behavior” likely related to his condition,
such as wearing heavy winter clothing in the summer, refusing to change out of the
same dark hoodie, sweating, planning to call his deceased older brother, zoning out
or sitting in a daze, and not speaking. Id. ¶¶ 69, 73, 76, 79. During the penalty
phase, some of Mr. Muhammad’s family members attributed these changes to their
unsupported belief that Mr. Muhammad was abusing PCP. Id. The vast majority of
these lay witnesses, however, were interviewed for the first time during trial and
were not asked to testify at all. Id. ¶¶ 80, 167.
Despite numerous early red flags, as of a November 27, 2012, defense team
meeting, about two weeks before voir dire was set to begin, trial counsel had yet to
6
identify a single mitigation expert and had not obtained any of the records that Dr.
Compton had managed to request over a year before. Id. ¶ 72. While Mr.
Muhammad’s trial team finally obtained funding to hire four experts, only two
ended up testifying at trial. Id. ¶ 84. Dr. Gilbert Martinez, a neuropsychologist,
completed his assessment on January 4, 2013, while voir dire was already
underway. In preparation, trial counsel only provided Dr. Martinez with Mr.
Muhammad’s medical records from 2009 onward. Id. ¶ 91. Dr. Martinez’s report
recommended that trial counsel pursue additional testing that he was not qualified
to perform and that they consult a neurologist. Id. ¶ 90. Nevertheless, the defense
team did not retain or consult any medical doctor with expertise in neurology or
anyone who had treated Mr. Muhammad for his seizure disorder. Id. ¶¶ 81, 91. The
defense team’s second testifying expert, Dr. Kelli Gray-Smith, a school psychologist,
did not meet with Mr. Muhammad and reviewed no medical records. Id. ¶¶ 93, 95.
Counsel did not consult with, retain, or present an expert in the field of childhood
development and trauma, who would have testified to the powerful compound effect
of childhood trauma, neurological damage, and severe seizures on Mr. Muhammad’s
life trajectory. Id. ¶ 170.
Mr. Muhammad’s defense team never obtained readily available and highly
relevant pediatric medical records corroborating family members’ anecdotal reports
that Mr. Muhammad had contracted meningitis as an infant, been hit by a car as
child, and sustained other significant childhood head injuries. Id. ¶¶ 97, 101, 142.
Moreover, trial counsel did not seek or obtain records of any kind related to anyone
7
other than Mr. Muhammad. Id. ¶¶ 142, 146. Although trial counsel claimed that
they had searched for Mr. Muhammad’s pediatric records, the defense team filed
only four subpoena applications for records, and just one of those, dated January 9,
2013, was for medical records. Id. ¶¶ 100, 142. The record does not reflect whether
this subpoena was ever served. Id.
Voir dire began on December 14, 2012. Id. ¶¶ 3-7. Senior Judge Webb Baird
and Senior Judge Quay Parker each handled some of the voir dire proceedings. Id.
¶ 7. Two months into jury selection, trial counsel submitted a stack of “boiler plate”
motions, which at times referenced the wrong client and cited an outdated version
of Texas’s capital sentencing scheme. At the hearing on these motions, Mr. Johnson
admitted that he did not prepare the motions himself, suggested that they did not
merit the court’s careful consideration, and presented no argument before they were
summarily denied. Id. ¶ 11.
Mr. Muhammad’s trial began on May 13, 2013. Id. ¶ 12. Although the
Honorable Dominique Collins took the bench of the Texas Criminal District Court
No. 4 on January 1, 2013, Senior Judge Parker presided over Mr. Muhammad’s
capital trial. Id. ¶¶ 8, 12.
B.
The Trial
After two days of testimony, the State rested its culpability-phase case. The
defense rested without presenting any witnesses and, during closing argument, told
the jury that the State had proved all the elements of the offense and Mr.
Muhammad was guilty. On May 15, 2013, the jury found Mr. Muhammad guilty of
capital murder. Id. ¶¶ 13-14.
8
1.
The State’s Penalty-Phase Case
The penalty phase began on the same day the jury returned the guilty
verdict. The State’s penalty-phase case focused on the crime and Mr. Muhammad’s
alleged prior bad acts, including 2009 charges stemming from an altercation with
his sister, Sekinah Muhammad. The State also offered evidence that Mr.
Muhammad did not follow the conditions of his probation after he pleaded guilty to
the assault charge. Kametra Sampson, the mother of Mr. Muhammad’s children,
testified about their relationship and incidents of domestic violence leading up to
the day of the offense. Additionally, the State introduced evidence of Mr.
Muhammad’s disciplinary history while incarcerated both as a juvenile in the
custody of the Texas Youth Commission and at the Dallas County Jail while
awaiting trial. The State presented further testimony from witnesses involved in
the investigation of this case and who had interviewed Mr. Muhammad following
his arrest. Id. ¶ 14.
2.
Mr. Muhammad’s Penalty-Phase Case and the Death Sentence
In response, Mr. Muhammad’s trial counsel relied primarily on lay witnesses.
The defense called Mr. Muhammad’s two sisters, Aqueelah Green and Sekinah
Muhammad, his brother Jamal Muhammad’s girlfriend, Marion Grayson, his
stepfather, Roger Mopping, and two neighbors. Id. at ¶ 17. These witnesses
described some of the dysfunction and instability that characterized Mr.
Muhammad’s childhood: Mr. Muhammad grew up without a biological father and
with a mother whose crack addiction led her to prostitute herself for drugs, often
leaving the children alone in whatever house or apartment they were living in at
9
the time. Mr. Muhammad’s sisters briefly testified that their oldest brother,
Abdullah, sexually abused them and their siblings. See id.; 47 RR 201-04; 48 RR 3841. The jury heard testimony that the adults in Mr. Muhammad’s life exposed him
to violence and drugs and taught him to resort to crime to make money. At the same
time, Mr. Muhammad’s relatives testified that, despite this traumatic background,
Mr. Muhammad was a supportive family member who genuinely loved and cared
for his boys. PFFCL at ¶ 17.
The defense also presented the testimony of two experts. Dr. Gilbert
Martinez testified about the results of his neuropsychological and IQ testing,
opining that Mr. Muhammad suffered from cognitive impairments that negatively
impacted his executive functioning and impulse control. Id. ¶¶ 18, 91. But because
trial counsel failed to obtain Mr. Muhammad’s pediatric records or family members’
medical records, Dr. Martinez’s belated assessment was based on an incomplete
medical and social history. His report recommended further testing and advised
trial counsel to consult with a qualified neurologist. Id. ¶¶ 18, 90-91. Ultimately,
however, the only person to testify about the symptoms of Mr. Muhammad’s seizure
disorder was Roger Mopping, Mr. Muhammad’s stepfather, who had no medical
training. Id. ¶ 80.
Dr. Kelli Gray-Smith, a special education director from the Plano
Independent School District, testified that Mr. Muhammad should have been placed
in special education classes during elementary school. Id. ¶ 19. Although Dr. GraySmith did not meet with Mr. Muhammad, his family, or any of his former teachers,
10
and only reviewed Mr. Muhammad’s school records before testifying, she also
offered the unsubstantiated opinion that this lack of special education intervention
likely caused him to develop “antisocial personality disorder” as an adult. Id. ¶¶ 19,
93. Then, on cross-examination, she agreed with the prosecutor that “antisocial
personality disorder” is the “same as a sociopath” “in a generic sense.” Id. ¶ 95.
During closing, the State repeatedly referred to Mr. Muhammad as a “sociopath”
incapable of change. Id. ¶ 21; 50 RR 29, 34, 89, 97.
On May 23, 2015, the same day that deliberations began, the jury returned
a verdict answering “Yes” to Special Issue One (the “future danger” special issue)
and “No” to Special Issue Two (the “mitigation” special issue). PFFCL at ¶¶ 22-23.
Immediately thereafter, the trial judge sentenced Mr. Muhammad to death. Id. ¶
22.
Because of trial counsel’s failure to retain a mitigation specialist and conduct
necessary investigation, the jury that sentenced Mr. Muhammad to death never
heard the whole story of Mr. Muhammad’s life—a childhood described by a seasoned
clinical psychologist and child abuse expert as the “worst” he had ever seen;
epileptic seizures so severe that another expert described the experience as akin to
Mr. Muhammad’s brain being “on fire”; and cognitive impairments and brain
damage that reduced Mr. Muhammad’s functioning to that of a child.
C.
State Post-Conviction Evidence: Trauma, Brain Damage, Epilepsy
On June 16, 2015, Mr. Muhammad filed his application for a writ of habeas
corpus under Article 11.071 of the Texas Code of Criminal Procedure, raising seven
claims, including a broad claim of ineffective assistance of trial counsel. Id. ¶ 25. On
11
January 11, 2016, the trial court designated the issue of “[w]hether [Mr.
Muhammad] was denied the effective assistance of trial counsel” as a claim meriting
further factual development at an evidentiary hearing. Id. ¶ 27.
During six days of testimony at the post-conviction hearing, numerous
witnesses told the story of Mr. Muhammad’s life that trial counsel—who never
retained a mitigation specialist—did not investigate and, consequently, the jury
never considered.
The writ record establishes that trial counsel failed to interview or present
readily available information from lay witnesses who could have provided the
defense team—and the jury—with information about Mr. Muhammad’s traumatic
childhood and seizure disorder, as well as positive testimony about his character.
Such witnesses could have provided vivid evidence that: Mr. Muhammad’s family
was mired in dysfunction, poverty, and extreme trauma; Mr. Muhammad was
exposed regularly to extreme violence, heavy drug use, and physical and sexual
abuse; Mr. Muhammad and at least two family members had a history of seizures;
and Mr. Muhammad was a loving and attentive father who cared deeply for his
children. See generally, 4 EHRR 233-67; 5 EHRR 4-128.
To contextualize and explain the clinical significance of this testimony, Mr.
Muhammad presented the testimony of Dr. George Holden, a developmental
psychologist with an expertise in childhood trauma. See 5 EHRR 129-241. In
assessing Mr. Muhammad’s social history before the jury, Dr. Holden could have
cited the many studies available at the time of Mr. Muhammad’s trial linking
12
adverse childhood experiences (ACEs) with negative effects on psychological,
emotional, and physical development later in life, as recognized by the Diagnostic
and Statistical Manual (“DSM-5”). 5 EHRR 158-60. At the evidentiary hearing, Dr.
Holden testified that he was “shocked” by Mr. Muhammad’s social history, noting
that he was able to document ACEs falling into every identified category. 5 EHRR
162, 192. For example, Mr. Muhammad lacked a secure bond with his abusive, drugaddicted mother; suffered sudden abandonment by his stepfather; and was exposed
to incarcerated relatives, family members with unresolved mental illnesses,
physical violence, sexual abuse, bullying, alcohol and drug abuse, including in utero,
as well as food insecurity, chronic poverty, overcrowding, and environmental
contaminations like lead. 5 EHRR 163-74, 210, 228-37. Dr. Holden further testified
that an exceptional amount of trauma was carried across generations in Mr.
Muhammad’s family. 5 EHRR 175-83. An expert like Dr. Holden could have
explained the significance of this unstable, chaotic childhood and family life to Mr.
Muhammad’s adult functioning. 5 EHRR 177. More specifically, childhood trauma
impacts sufferers’ “limbic system brain,” adversely affecting their ability to handle
cascading stressors. 5 EHRR 191, 218-19. Without this expert perspective, the jury
had no basis for understanding Mr. Muhammad’s horrific childhood as relevant to
his adult behavior. In short, Dr. Holden could have opined that Mr. Muhammad’s
childhood experiences—what he described as “the worst childhood I’ve ever seen”—
made it difficult for him to explain how Mr. Muhammad could function at all as an
adult. 5 EHRR 192, 198.
13
Mr. Muhammad also presented the testimony of Dr. Mark Agostini, a
neurologist with a specialty in seizures and epilepsy. While trial counsel offered
virtually no evidence related to Mr. Muhammad’s severe seizure disorder, an expert
neurologist like Dr. Agostini could have provided trial counsel and the jury with a
medical assessment of the profound impact of Mr. Muhammad’s uncontrolled and
improperly treated seizure disorder on his mood, behavior, and cognition in the
years leading up to the offense. Dr. Agostini could have testified that there is an
over ninety-percent medical certainty that Mr. Muhammad suffers from focal
epilepsy. 6 EHRR 45. Dr. Agostini identified several potential causes for Mr.
Muhammad’s epilepsy: genetics (Mr. Muhammad’s maternal aunt, Tina Butler, has
focal epilepsy), infant meningitis, and traumatic brain injury. 6 EHRR 85. He also
could have provided the jury with a timeline of Mr. Muhammad’s known seizure
events, tracking about a dozen seizures in the period between May 2009 and his
incarceration in August 2011, including a reported seizure around the day of the
crime. 6 EHRR 98. Dr. Agostini testified that the frequency of Mr. Muhammad’s
seizures created a very dangerous situation for him: Mr. Muhammad was
experiencing a minimum of one grand mal seizure every two months, so frequently
that his family stopped taking him to the hospital. 6 EHRR 98-100.
Dr. Agostini further testified that people who suffer from epilepsy show
enduring cognitive, emotional, and behavioral abnormalities as a result. For
example, Dr. Agostini explained, and Mr. Muhammad’s medical records confirm,
that epilepsy can affect executive functioning, causing behavioral and emotional
14
problems. 6 EHRR 67-69. People like Mr. Muhammad, who experience severe
seizures frequently, are more likely to suffer from these damaging effects on a
consistent basis because they never fully recover in between events. 6 EHRR 45-46.
Dr. Agostini could have explained to trial counsel and the jury that the “strange
behavior” and mood changes Mr. Muhammad’s relatives described—and often
incorrectly attributed to drug use—were consistent with his seizure disorder. 6
EHRR 96, 114-16. Dr. Agostini also could have testified that, while epilepsy is
treatable, Mr. Muhammad was inappropriately prescribed Keppra, a medication
with a well-documented high risk of causing or exacerbating aggression, hostility,
irritability, anxiety, depression, and psychosis, particularly in patients with prior
impulse control and behavioral problems. 6 EHRR 111-12, 116, 165-66. Dr. Agostini
could have explained to the jury that Keppra likely amplified the emotional and
behavioral issues Mr. Muhammad was already experiencing because of his seizures,
further lowering his ability to restrain aggressive thoughts and actions. Id. Without
this scientific explanation, the jury had no basis to consider Mr. Muhammad’s
seizure disorder in evaluating his moral culpability.
While Dr. Martinez testified at trial that Mr. Muhammad suffered from
cognitive impairments that impacted his executive functioning, he only told a small
part of the story. Dr. Martinez was unqualified to opine on other aspects of Mr.
Muhammad’s brain and, in fact, recommended further testing, which trial counsel
never pursued. During post-conviction, however, one expert described the effects of
epilepsy as equivalent to Mr. Muhammad’s brain being “on fire.” And Dr. Pamela
15
Blake, a neurologist, testified about the extent of Mr. Muhammad’s brain damage
and how it adversely affected his functioning in the years preceding the crime. Dr.
Blake could have explained to trial counsel and the jury that this widespread
damage affected nearly every region of Mr. Muhammad’s brain, directly impacting
the regions responsible for exercising judgment, making rational decisions,
controlling behavior, and learning from mistakes. 7 EHRR 41-44, 74-88. Academic
and other testing as a child and as an adult confirm that Mr. Muhammad’s brain
operates somewhere around a fourth-grade level. 7 EHRR 77.
Throughout his childhood, Mr. Muhammad’s brain suffered various insults
from which it did not recover. As a newborn, Mr. Muhammad was hospitalized with
meningitis, a disease of the brain that leads to permanent damage. At age three, he
was hospitalized for a head injury after falling down the stairs. At age five, he was
hit and dragged by a car, causing a concussion, skull fracture, and lasting damage.
In eighth and ninth grade, Mr. Muhammad took different standardized tests which
indicated significantly below-average intellectual functioning for his age group; to
wit, at age fifteen, he was reading and writing at a third-grade level, spelling at a
third-grade level, and performing arithmetic at a fifth-grade level. 7 EHRR 69-71.
Mr. Muhammad was at the bottom of his class in high school before dropping out.
He then tried to obtain his GED several times, failing each time. 7 EHRR 65-68. Dr.
Blake testified that, nearly twenty years later, these basic skills have not improved:
most critically for his every-day functioning, Mr. Muhammad can read most, but
not all, single-syllable words and almost no multi-syllable words—making it very
16
difficult for someone like Mr. Muhammad to get through life. 7 EHRR 77. Had trial
counsel retained a qualified neurologist like Dr. Blake, the jury would have heard
that Mr. Muhammad suffers from, at least, moderate persistent cognitive
impairment, not “mild neurocognitive disorder,” as Dr. Martinez testified.
Moreover, Dr. Blake could have presented a full picture of how Mr. Muhammad’s
brain damage, cognitive and executive dysfunction, seizure disorder, and depression
combined to prevent him from functioning successfully as an adult. Dr. Blake could
have testified that Mr. Muhammad’s neurocognitive deficits are so profound that
maturing “normally” would have been impossible. 7 EHRR 24-112.
Mr. Muhammad also presented the testimony of Dr. Bhushan Agharkar, a
neuropsychiatrist, who synthesized the cascading stressors that adversely affected
Mr. Muhammad at the time of the crime. In the year leading up to the offense, Mr.
Muhammad was exposed to added stressors that he was ill-equipped to manage,
e.g., the mother of his children was prostituting herself and abusing drugs while
neglecting the children and threatening to keep them from him, plus he lost two key
support figures—his grandmother and stepfather—to death and hospitalization,
respectively. 8 EHRR 115-17. Dr. Agharkar could have explained to the jury that
people like Mr. Muhammad who are chronically traumatized have “much less
capacity to deal with new stressors” in a meaningful way. 8 EHRR 122. Dr.
Agharkar also countered trial expert Dr. Gray-Smith’s misplaced reliance on
“antisocial personality disorder,” explaining that ASPD is a “character disorder”
involving a “pervasive problematic pattern of relating to people.” 8 EHRR 128. As
17
such, offering an opinion about ASPD based only on school records was, according
to Dr. Agharkar, not only ill-advised but “dangerous.” 8 EHRR 129-30.
Dr. Agharkar further testified that Mr. Muhammad’s epilepsy condition was
akin to his brain being “literally on fire” and explained that, with each repeated
seizure, his functioning deteriorated. 8 EHRR 107-08. Mr. Muhammad developed
symptoms that family members noticed, but it was some time before his seizure
disorder was diagnosed—and it was never brought under control, even while he was
in custody awaiting trial. Moreover, as both Dr. Agharkar and Dr. Agostini
emphasized, the medication Mr. Muhammad was given is known to cause
“behavioral disinhibition, aggression, [and] violence.” 8 EHRR 114-15. Dr. Agharkar
testified that Mr. Muhammad’s profile was so complex that full comprehension
required testimony from multiple experts—specific experts who could, for example,
fully explain Mr. Muhammad’s seizure disorder, brain damage, and childhood
trauma. 8 EHRR 107-08.
D.
The State Habeas Adjudication
Although Judge Collins, the elected district judge, initially signed the order
designating issues for an evidentiary hearing in this case, Senior Judge Parker, who
presided over the trial, quickly reassumed responsibility for the state habeas
proceedings. PFFCL at ¶ 30. Judge Parker heard evidence on February 28, March
1, March 2, March 5, June 20, and June 21, 2018. Id. ¶ 34. On March 1, 2018, prior
to the resumption of testimony, Judge Parker acknowledged on the record that he
had not yet read Mr. Muhammad’s initial writ application before continuing to hear
argument and make evidentiary rulings. Id. ¶ 37.
18
After Mr. Muhammad’s last witness was released on June 21, 2018, postconviction counsel asked for a final ruling on the admission of the affidavits that
Mr. Muhammad had filed with his initial application and offered during the
evidentiary hearing. Id. ¶ 49. Instead of ruling, Senior Judge Parker gave the State
more time to decide whether it would submit any affidavits of its own. Id. The writ
proceeding was recessed. Id. Before a complete record was prepared and before a
final ruling was made on the admission of Mr. Muhammad’s evidentiary proffers,
Senior Judge Parker passed away on October 20, 2018. Id. ¶ 51.
On December 14, 2018, Judge Collins—who had not presided over any part
of
Mr.
Muhammad’s
trial
or
post-conviction
proceedings—excluded
Mr.
Muhammad’s affidavits, ruling that they would be admitted for record purposes
only. Id. ¶ 53. The parties then rested and presented closing arguments. Id. On
November 21, 2019, Judge Collins entered a one-page order adopting the State’s
Proposed Findings of Fact and Conclusions of Law verbatim and denying relief on
all of Mr. Muhammad’s claims. Appendix C. Judge Collins cited “personal
experience and knowledge of the case” as a basis for its recommendation. Appendix
C at 17.
On November 18, 2020, at a time when court personnel indicated that the
TCCA had not yet received the complete reporter’s record of the writ proceedings, 2
2 On December 7, 2020, Mr. Muhammad requested that the Clerk of the TCCA
provide him with a complete copy of the entire record that had been sent to the
TCCA. The writ record provided in response by the TCCA records clerk was missing
six full volumes (3, 4, 5, 6, 10, and 11) out of twenty-two total volumes. See
Suggestion For the Court to Reconsider Writ on Its Own Initiative Because it
19
the TCCA nonetheless adopted the trial court’s findings of fact and conclusions of
law and denied relief. Appendix B. In so doing, the TCCA misapplied the standard
for evaluating constitutionally ineffective assistance of counsel this Court
articulated in Strickland. Compare Appendix B at 3 (“Applicant fails to meet his
burden . . . to show by a preponderance of the evidence that his counsel’s
representation fell below an objective standard of reasonableness and that there
was a reasonable probability that the result of the proceedings would have been
different but for counsel’s deficient performance.” (emphasis added)), with
Strickland, 466 U.S. at 694 (“The result of a proceeding can be rendered unreliable,
and hence the proceeding itself unfair, even if the errors of counsel cannot be
shown by a preponderance of the evidence to have determined the outcome.”
(emphasis added)). The TCCA committed further fundamental constitutional error
by adopting findings of fact and conclusions of law founded in part on Judge
Collins’s improper substitution of her own “personal experience and knowledge of
the case” for the evidence introduced at the evidentiary hearing, which she did not
oversee or observe. Appendix C at 17.
REASONS TO GRANT THE PETITION
A.
The State Courts’ Prejudice Inquiry Violated Strickland.
Denied Relief to Mr. Muhammad Without Having Reviewed Two Thirds Of The
Writ Hearing Transcript and Two Entire Exhibit Volumes, Ex parte Muhammad,
WR-85,343-01, at *10 n.7 (Tex. Crim. App. Feb. 2, 2021). On March 17, 2021, the
TCCA denied reconsideration, and asserted that Mr. Muhammad (and, presumably,
the TCCA records clerk) had been mistaken and that it had reviewed the entire writ
record.
20
1.
The State Courts Conflated Strickland’s Reasonable
Probability Standard of Proof for Prejudice with the More
Onerous Preponderance Standard.
The TCCA applied the wrong standard when it found that Mr. Muhammad
was not prejudiced by trial counsel’s deficiencies. Instead of using Strickland’s less
formidable “reasonable probability” standard, the TCCA applied a preponderance
of the evidence standard, thereby holding Mr. Muhammad to a heightened burden
in clear violation of this Court’s precedents. This misapplication of the Strickland
standard is a pervasive problem in both state and federal courts. Accordingly, this
Court should clarify that, under Strickland and its progeny, the correct standard of
proof for prejudice is a “reasonable probability,” not a “preponderance of the
evidence,” as the TCCA held in this case.
a.
The TCCA held Mr. Muhammad to a higher standard for
prejudice than the law requires.
Under this Court’s precedents, the standard for prejudice in evaluating
ineffective-assistance-of-counsel claims is whether “there is a reasonable
probability that, but for counsel’s ineffectiveness, the jury would have made a
different judgment about whether [the defendant] deserved the death penalty as
opposed to a lesser sentence.” Andrus v. Texas, 140 S. Ct. 1875, 1885-86 (2020)
(citing Wiggins, 539 U.S. 510, 536 (2003)). Strickland “specifically rejected the
proposition that the defendant had to prove it more likely than not that the outcome
would have been altered.” Woodford v. Visciotti, 537 U.S. 19, 22 (2002).
The TCCA deprived Mr. Muhammad of due process by holding him to a
higher standard of proof than the law requires. The TCCA held that, “Applicant
21
fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to
show by a preponderance of the evidence that his counsel’s representation fell below
an objective standard of reasonableness and that there was a reasonable probability
that the result of the proceedings would have been different but for counsel’s
deficient performance.” Appendix B at 3 (citing Ex parte Overton, 444 S.W.3d 632,
640 (Tex. Crim. App. 2014)). The trial court’s Findings of Fact and Conclusions of
Law, which the TCCA adopted in its opinion, also repeatedly cited this heightened
standard. See, e.g., Appendix C at 7 (“Applicant has failed to prove this claim by a
preponderance of evidence.”); Appendix C at 8 (“Applicant has failed to prove this
claim by a preponderance of evidence.”); Appendix C at 29 (“Applicant has failed to
prove this claim by a preponderance of evidence.”); Appendix C at 31 (“Applicant
has failed to prove this claim by a preponderance of evidence.”); Appendix C at 45
(“Applicant has failed to prove this claim by a preponderance of evidence.”);
Appendix C at 61 (“Applicant has failed to prove this claim by a preponderance of
evidence.”); Appendix C at 78 (“Applicant has failed to prove this claim by a
preponderance of evidence.”); Appendix C at 84 (“Applicant has failed to prove this
claim by a preponderance of evidence.”); Appendix C at 101 (Mr. Muhammad failed
to prove prejudice by failing to demonstrate trial counsel’s omissions “would have
changed the outcome of the trial or the appeal.”); Appendix C at 106 (“Applicant has
failed to prove this claim by a preponderance of evidence.”).
The TCCA’s application of the preponderance of the evidence standard placed
a higher burden on Mr. Muhammad to prove prejudice than the proper reasonable
22
probability standard and is contrary to this Court’s clearly established precedents.
See Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (“If a state court were to reject
a prisoner’s claim of ineffective assistance of counsel on the grounds that the
prisoner had not established by a preponderance of the evidence that the result of
his criminal proceeding would have been different, that decision would be
‘diametrically different,’ ‘opposite in character or nature,’ and ‘mutually opposed’ to
our clearly established precedent because we held in Strickland that the prisoner
need only demonstrate a ‘reasonable probability that . . . the result of the proceeding
would have been different.’” (quoting Strickland, 466 U.S. at 694)).
b.
Federal and state courts disagree about the proper
prejudice standard.
In light of confusion among the federal and state courts, this Court should
clarify the correct Strickland standard. The federal courts of appeals disagree about
the correct standard for assessing prejudice. While some circuits apply the
reasonable probability standard this Court announced in Strickland, the Fifth
Circuit continually applies the heightened preponderance of the evidence standard.
Compare Pierce v. Adm’r New Jersey State Prison, 808 Fed. App’x 108, 112 (3d Cir.
2020) (finding that the state court incorrectly required the petitioner to show
prejudice for his ineffective assistance claim by preponderance of the evidence
instead of by reasonable probability as Strickland requires), and Ellis v. Harrison,
947 F.3d 555, 559 (9th Cir. 2020) (finding error when the lower court required the
defendant to show prejudice by a preponderance of the evidence) (Nguyen, J.,
concurring), with, e.g., Rector v. Johnson, 120 F.3d 551, 563 (5th Cir. 1997) (“Rector
23
bears the burden of proving both prongs [of Strickland] by a preponderance of the
evidence.”), and Randoff v. United States, No. 9:13cv289, 2014 WL 12815048, at *1
(E.D. Tex. Oct. 27, 2014) (“Mere allegations of prejudice are insufficient; the movant
must affirmatively prove by a preponderance of the evidence that he was prejudiced
as a result of counsel’s deficient performance.”), report and recommendation adopted
2017 WL 3599539 (E.D. Tex. Aug. 21, 2017), and Hebert v. Rogers, 890 F.3d 213,
229 (5th Cir. 2018) (“In order to prevail on a claim for ineffective assistance of
counsel, a party must prove—by a preponderance of the evidence—her counsel
performed deficiently and that deficient performance caused her prejudice.”)
(Steward, J., concurring).
Beyond
the
TCCA,
state
courts
in
California,
Iowa,
Mississippi,
Pennsylvania, Minnesota, Oregon, New Jersey, and Tennessee likewise misapply
Strickland by requiring proof of prejudice by a preponderance of the evidence. See,
e.g., People v. Centeno, 338 P.3d 938, 950 (Cal. 2014) (defendant “bears the burden
of showing by a preponderance of the evidence that . . . counsel’s deficiencies
resulted in prejudice”); State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) (“[A]
claimant must establish by a preponderance of the evidence . . . ‘this failure
resulted in prejudice.’” (quoting State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012)));
Taylor v. State, 29 So. 3d 134, 136 (Miss. 2010) (“In order to prevail on a claim of
ineffective assistance of counsel [the defendant] has the burden of proof to show by
a preponderance of the evidence that . . . the deficiency did, in fact, prejudice the
defendant.” (quoting Moreno v. State, 967 So. 2d 701, 703 (Miss. Ct. App. 2007)));
24
Commonwealth v. Davido, 106 A.3d 611, 620 (Pa. 2014) (“[A] petitioner must satisfy,
by
a preponderance of the evidence,
the
Sixth
Amendment
performance
and prejudice standard set forth in Strickland.”); State v. Blanche, 696 N.W.2d 351,
376 (Minn. 2005) (“The prejudice prong of Strickland requires that a defendant
suffer
actual prejudice,
which
the
defendant
must
prove
by
a preponderance of the evidence.”); Lichau v. Baldwin, 39 P.3d 851, 856 (Or. 2002)
(“To prevail, petitioner must demonstrate, by a preponderance of the evidence, that
[trial counsel] failed to exercise reasonable professional skill and judgment, and
that petitioner suffered prejudice as a result.”); Ex parte Wolf, 296 S.W.3d 160, 168
(Tex. App. 2009) (“To establish ineffective assistance of counsel, [the petitioner] had
to prove by a preponderance of the evidence in the court below that . . . [trial
counsel]’s deficient performance resulted in prejudice to the defense.”); State v. L.A.,
76 A.3d 1276, 1283 (N.J. App. Div. 2013) (“[T]o set aside a conviction based upon a
claim of ineffective assistance of counsel, a petitioner must prove, by a
preponderance of the evidence, that . . . defendant suffered prejudice as a result.”);
Overall v. State, No. 88-215-III, 1988 WL 138228, at *1 (Tenn. Crim. App. Dec. 28,
1988) (“When the petitioner seeks to vitiate a conviction on the ground that
counsel’s representation was ineffective, the petitioner must establish by a
preponderance of the evidence . . . the unprofessional conduct of counsel enured to
the prejudice of the petitioner.”).
2.
The State Courts Further Violated Strickland and its Progeny
by Failing to Assess Prejudice Cumulatively.
25
This Court has held that, when evaluating prejudice, “the reviewing court
must consider ‘the totality of the available mitigation evidence—both that adduced
at trial, and the evidence adduced in the habeas proceeding.’” Andrus, 140 S. Ct. at
1886 (quoting Williams, 529 U.S. at 397-98); see also Sears v. Upton, 561 U.S. 945,
956 (2010) (“A proper analysis of prejudice under Strickland would have taken into
account the newly uncovered [mitigation] evidence . . . , along with the mitigation
evidence introduced during [the defendant’s] penalty phase trial, to assess whether
there is a reasonable probability that [the defendant] would have received a
different sentence after a constitutionally sufficient mitigation investigation.”).
Instead, in this case, the TCCA assessed each claim of ineffectiveness separately
and diluted the prejudice inquiry.
In Claim One of his post-conviction application, Mr. Muhammad alleged that
his trial counsel were ineffective for failing to investigate and present mitigating
information at the penalty phase of his trial; i.e., that trial counsel failed to “uncover
and present weighty evidence that Mr. Muhammad’s life trajectory was radically
impacted and impaired by the cumulative effect of seizures, neurological damage,
and childhood trauma.” Initial Application for Writ of Habeas Corpus, Ex parte
Muhammad, No. WR-85,343-01, at 17 (hereinafter “Initial Application”). The
habeas court, however, split this claim into four issues, each of which it considered
separately: (1) deficient performance in the mitigation investigation and selection
of experts; (2) failure to retain an epilepsy expert; (3) failure to retain a neurologist;
26
and (4) failure to retain a childhood development psychologist. Appendix C at 2122.
In so doing, the habeas court undercut Mr. Muhammad’s argument that trial
counsel failed to conduct a constitutionally appropriate investigation into the
cumulative effect of his trauma history, brain damage and seizure disorder,
reducing it to a complaint that his lawyers “unreasonably limited the scope of their
mitigation investigation by selecting experts prior to the completion of lay witness
interviews.” Appendix C at 22. Likewise, the habeas court found that Mr.
Muhammad raised three separate allegations that his trial lawyers were ineffective
for failing to consult with and present an epilepsy expert, a neurologist, and a
childhood development psychologist. Appendix C at 24-25, 27, 29-30. Mr.
Muhammad, however, did not allege that trial counsel’s performance was deficient
for failure to retain any of these experts; rather, trial counsel’s failure to conduct a
reasonable investigation into the long-term effects of his traumatic childhood, his
impaired cognitive functioning, and his severe seizure disorder cumulatively
prejudiced him. Initial Application at 17-55. After splitting Mr. Muhammad’s single
ineffective-assistance-of-counsel claim into four distinct, narrow issues, the habeas
court proceeded to analyze each of these deficiencies and the prejudice flowing from
them individually, rather than cumulatively.
A proper prejudice inquiry, however, has two parts. First, courts must assess
the effect of the deficiency in the context of the evidence introduced at trial and
determine whether there is a reasonable probability that the corrected evidentiary
27
picture would have swayed one juror. See, e.g., Sears, 561 U.S. at 956 (“A proper
analysis of prejudice under Strickland would have taken into account the newly
uncovered evidence . . . , along with the mitigation evidence introduced during [the]
penalty phase trial.”); Andrus, 140 S. Ct. at 1887 n.7. Second, prejudice must be
assessed cumulatively. See United States v. Cervantes, 706 F.3d 603, 619 (5th Cir.
2013) (“The cumulative error doctrine provides for reversal when an aggregation of
non-reversible errors, i.e., plain and harmless errors that do not individually
warrant reversal, cumulatively deny a defendant’s constitutional right to a fair
trial.”); Richards v. Quarterman, 566 F.3d 553, 564 (5th Cir. 2009) (“We will address
each aspect of Davis’s performance the district court found deficient before
considering whether Richards was cumulatively prejudiced thereby.”); Ex parte
Welborn, 785 S.W.2d 391, 396 (Tex. Crim. App. 1990) (en banc) (“Although, no one
instance in the present case standing alone is sufficient proof of ineffective
assistance of counsel, counsel’s performance taken as a whole does compel such a
holding.”).
Claim One alleged that the totality of trial counsel’s errors denied Mr.
Muhammad the right to effective assistance of counsel. Initial Application at 12, 17,
19, 52-55. The trial court, however, only considered the prejudice flowing from the
varied mistakes of trial counsel individually. See, e.g., Appendix C at 30-31
(“Applicant contends that counsel unreasonably limited the scope of their mitigation
investigation by selecting experts prior to the completion of lay-witness interviews.
The Court finds that Applicant has failed to prove this claim.”); Appendix C at 44-
28
45 (Applicant contends that counsel were ineffective for failing to retain an epilepsy
expert. . . . He claims [a qualified expert] could have explained that Applicant’s
seizures were mitigating and the medication he was prescribed to treat his seizures
may have contributed to his impulsive, aggressive behavior in the years leading up
to offense. . . . The Court finds Applicant has failed to prove this claim.”); Appendix
C at 60-61 (“Applicant contends that counsel were ineffective for failing to consult
with and present testimony from neurologist. . . . The Court finds that Applicant
has failed to prove this claim.”); Appendix C at 77-78 (“Applicant contends that
counsel were ineffective for failing to consult with and present testimony from a
childhood developmental psychologist. . . . The Court finds that Applicant has failed
to prove this claim by a preponderance of the evidence.”); Appendix C at 107
(“Having found no constitutional violations occurred in grounds one or four, the
Court finds that no ‘cumulative’ harm could have occurred.”).
The habeas court’s error unfairly weakened the prejudice prong of Mr.
Muhammad’s claim of ineffective assistance of counsel from the outset. Considering
the instances of deficient performance in conjunction, there is a reasonable
probability that they affected the outcome of Mr. Muhammad’s trial. See Strickland,
466 U.S. at 686. By erroneously splitting Claim One into four separate issues, the
state courts failed to consider Mr. Muhammad’s allegation of ineffective assistance
of counsel cumulatively. Thus, even though the TCCA determined that Mr.
Muhammad was not prejudiced by any one failure alone, the state courts have yet
to perform the cumulative inquiry the Constitution demands.
29
B.
The State Courts Violated this Court’s Longstanding Due Process
Precedents Requiring Judges to Serve as Independent and
Impartial Arbiters.
When a state opts to create a post-conviction adjudicatory procedure, due
process requires that the procedure provided be a fair one. This Court has held, “[i]n
short,” that, “when a State opts to act in a field where its action has significant
discretionary elements, it must nonetheless act in accord with the dictates of the
Constitution—and, in particular, in accord with the Due Process Clause.” Evitts v.
Lucey, 469 U.S. 387, 401 (1985). For example, purely discretionary welfare
programs are nevertheless subject to the protections of the Due Process Clause. See
Goldberg v. Kelly, 397 U.S. 254, 262 (1970). The same is true of competency and
parole proceedings. See Panetti v. Quarterman, 551 U.S. 930, 952 (2007); Ford v.
Wainwright, 477 U.S. 399, 413 (1986); Morrissey v. Brewer, 408 U.S. 471, 481-84
(1972). It would strain credulity to argue that less process is due during initial
collateral review in capital cases. See Goldberg, 397 U.S. at 262-63 (“The extent to
which procedural due process must be afforded the recipient is influenced by the
extent to which he may be ‘condemned to suffer grievous loss.’” (quoting Joint AntiFascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J.,
concurring))); see also Ford, 477 U.S. at 414 (review of capital cases characterized
by “heightened concern for fairness and accuracy”); Woodson v. North Carolina, 428
U.S. 280. 305 (1976) (holding that, because the death penalty is qualitatively
different from every other punishment due to its severity and finality, “there is a
corresponding difference in the need for reliability in the determination that death
is the appropriate punishment in a specific case.”).
30
The right to a fair hearing by a judge who adjudicates claims as an
independent arbiter, after an evaluation of their merits, is indispensable to due
process. Here, the habeas court did not preside over Mr. Muhammad’s trial. Judge
Collins did not observe the witnesses or hear any of the evidence presented at his
evidentiary writ hearing. When it came time for the court to make findings of fact
and conclusions of law, it issued a two-page order adopting the State’s proposed
findings of fact and conclusions of law in toto. Indeed, the findings of fact and
conclusions of law transmitted to the TCCA as the habeas court’s work product are
entitled, “State’s Proposed Findings of Fact and Conclusions of Law.” This Court
has criticized lower courts for wholesale adoption of the allegations and conclusions
offered by the State during post-conviction proceedings See Jefferson v. Upton, 560
U.S. 284, 293-94 (2010); Anderson v. Bessemer City, 470 U.S. 564, 572 (1985). By
rubber-stamping the State’s findings of fact and conclusions of law the habeas court
created an inherently unbalanced procedure. Due process does not allow the
outsourcing of the judicial function to the prosecution.
Compounding this initial fundamental error, Judge Collins then proceeded
to substitute her own extraneous and irrelevant personal “knowledge” and biases
for the evidence adduced at trial as grounds for denying relief. Although this Court
has recognized that particular weight should typically be given to a trial court’s
credibility determinations, see, e.g., Miller-El v. Cockrell, 537 U.S. 322, 339 (2003),
this is not a typical case. Because Judge Collins did not view or hear the testimony
of any trial or evidentiary hearing witnesses, and so did not observe their demeanor
31
firsthand, the habeas court was not uniquely situated to make credibility
determinations. Likewise, while a judge may, in limited circumstances consistent
with due process, resolve disputed factual issues through “personal recollection,”
see Tex. Code Crim. Proc. art. 11.071 § 9(a), a judge who did not preside over a
proceeding may not use her personal recollection, experience, knowledge, or beliefs
as a mere spectator to make factual determinations necessarily disconnected from
the record. 3 See Smith v. Dretke, 134 Fed. App’x 674, 681 n.1, 2005 WL 1349827, at
*7 (5th Cir. 2005) (noting obvious fact that trial court cannot exercise personal
recollection to resolve claims regarding trial over which it did not preside).
Furthermore, Article 11.071 section 9(a) never authorizes a judge to substitute her
“personal experience and knowledge” for the evidence adduced on the record.
Nevertheless, Judge Collins expressly grounded her findings of fact and
conclusions of law on her unspecified “personal experience and knowledge of the
case.” Appendix C at 17. In addition, Judge Collins’s only credibility determinations
were based on her personal belief that “trial counsel were and are experienced and
highly qualified criminal trial lawyers,” who “[o]ver the course of their
representation of [Mr. Muhammad] . . . devoted a significant amount of time and
effort to investigating [Mr. Muhammad’s] life and developing a defense.” Appendix
3 If, in fact, Judge Collins “was present in the courtroom and observed the entire
trial,” see Appendix C at 16-17 n.1 & 2, she would be a witness to those proceedings,
and a presiding judge may not testify as a witness at a proceeding over which she
is presiding, see Tex. R. Evid. 605; Joachim v. Chambers, 815 S.W.2d 234, 237 (Tex.
1991). Furthermore, a judge may not testify voluntarily as a character witness
without creating an impermissible appearance of impropriety. Tex. Code Jud. Cond.
Canon 2(B); In re Murchison, 349 U.S. 133, 139 (1955); Joachim, 815 S.W.2d at 237.
32
C at 20-21, 32. These findings were not supported by any citations to the record.
Judge Collins further found:
Although the Court did not hear their live testimony at
the writ hearing, the Court is familiar with Mr. Johnson,
Mr. Watson, and Mr. Warren. They are members of the
bar in good standing and officers of the court. They enjoy
good reputations for honesty and integrity amongst the
bench and bar, and the Court has no reason to doubt the
truthfulness of their testimony.
Appendix C at 22. Judge Collins also used her “personal knowledge of the
proceedings” to find that “no matters of substance were excluded from the record.”
Appendix C at 32.
The Due Process Clause guarantees litigants a fair and impartial judge. See
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (“It is axiomatic that ‘[a]
fair trial in a fair tribunal is a basic requirement of due process.’” (quoting In re
Murchison, 349 U.S. 133, 136 (1955))). Few guarantees are more fundamental to
the proper functioning and fairness of the judicial system than the presiding judge’s
independence and freedom bias. See, e.g., Mistretta v. United States, 488 U.S. 361,
407 (1989) (“The legitimacy of the Judicial Branch ultimately depends on its
reputation for impartiality and nonpartisanship.”); Tumey v. Ohio, 273 U.S. 510,
523 (1927) (denial of defendant’s right to impartial tribunal is structural error,
warranting automatic reversal). Accordingly, this Court has warned that, even
when a judge permissibly reviews and evaluates her own prior decisions, “a judge’s
‘personal knowledge and impression’ of a case may sometimes outweigh the parties’
arguments.” Isom v. Arkansas, 140 S. Ct. 342, 344 (2019) (Sotomayor, J., respecting
33
denial of certiorari) (quoting In re Murchison, 349 U.S. at 138); see also Liteky v.
United States, 510 U.S. 540, 562 (1994) (Kennedy, J., concurring) (“The acquired
skill and capacity to disregard extraneous matters is one of the requisites of judicial
office.”); cf. 28 U.S.C. § 455(b)(1) (requiring recusal when judge “has a personal bias
or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding); Scott v. Ohio, 480 U.S. 923, 925 (1987) (“[A]ny reference
to extrajudicial evidence
by
the
trial judge [before
the
jury]
destroys
the
fundamental premise of any trial—that the ultimate decision rests solely upon
evidence presented by the parties within the confines of the rules of evidence.”).
In this case, Judge Collins’s improper reliance on her own extrajudicial
“personal experience and knowledge of the case” and opinions about trial counsel
outweighed the actual evidence of trial counsel’s deficient performance adduced
during the hearing and violated Mr. Muhammad’s right to a fair trial in a fair
tribunal.
CONCLUSION
This Court should grant the petition, vacate the order below, and remand the
case with instructions to apply Strickland’s reasonable probability standard,
properly consider the cumulative effect of trial counsel’s deficient performance, and
impartially and independently evaluate the totality of the evidence without
reference to any non-presiding judge’s extraneous personal experience and
knowledge of the case.
34
Respectfully submitted,
August 16, 2021
/s/ Benjamin B Wolff
OFFICE OF CAPITAL & FORENSIC WRITS
1700 North Congress Avenue, Suite 460
Austin, Texas 78701
(512) 463-8600
Counsel for Petitioner,
Naim Rasool Muhammad
35
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.