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Ward v. Stephens

United States Court of Appeals, Fifth Circuit

January 22, 2015

ADAM KELLY WARD, Petitioner--Appellant

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Northern District of Texas.

For ADAM KELLY WARD, Petitioner - Appellant: David R. Dow, University of Houston, Houston, TX; Phillip Carl Umphres, Dallas, TX.

For WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee: Jefferson David Clendenin, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX.

Before JONES, CLEMENT, and PRADO, Circuit Judges.


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EDWARD C. PRADO, Circuit Judge:

Petitioner--Appellant Adam Kelly Ward has been afflicted with mental illness his entire life. He was diagnosed with bipolar disorder and placed on lithium as early as age four. Ward's aggressive and antisocial behavior continued and escalated through adolescence and into adulthood, culminating in him fatally shooting Code Enforcement Officer Michael Walker on June 13, 2005. A Texas jury found Ward guilty of capital murder and--after considering extensive lay and expert testimony about Ward's complicated mental-health history--sentenced him to death. The record shows that, in his criminal trial, Ward's defense had the benefit of appointed counsel and more than $136,000 in court-allocated funds to retain the assistance of investigators, expert witnesses, and consultants.

After availing himself of state postconviction remedies, Ward filed a petition for federal habeas relief under 28 U.S.C. § 2254. Ward claims that he was deprived of effective assistance of counsel at sentencing, that he was denied his right to trial by impartial jury due to an improper third-party contact, and that he was sentenced to death in violation of the Eighth Amendment because he is severely mentally ill. In a thorough opinion, the district court denied his petition. Ward now seeks a certificate of appealability (COA) under 28 U.S.C. § 2253(c)(2). After careful consideration, we deny his application.


Ward was convicted of capital murder for an incident involving a code citation for unsheltered storage that went tragically and horribly wrong. Ward was living with his father Ralph at the time. Ward had an unusually close relationship with his father, and, according to expert trial testimony, they suffered from similar shared delusions. They apparently believed that there was a conspiracy among the governing bodies in the City of Commerce against their family, and that the " Illuminati," an apocryphal secret society of enlightened individuals, essentially controlled

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the majority of government. The record indicates that the Ward family hoarded rubbish inside and outside their home, together with an arsenal of guns and ammunition.

The Ward family was cited numerous times for failing to comply with the City of Commerce's housing and zoning codes. Michael Walker, a City of Commerce Code Enforcement Officer, went to the Ward home to record a continuing violation for unsheltered storage on June 13, 2005. Wearing his City of Commerce work shirt and driving a marked truck, Walker approached the residence unarmed and carrying only his digital camera. When Walker arrived, Ward was washing his car in the driveway.

After Walker walked the perimeter of the property taking pictures, Walker and Ward began to argue. Ward's father came outside and attempted to calm the men down. Ward then sprayed Walker with water from the hose that he was using to wash his car. Walker then used his cell phone to call his office to request officer assistance. When Ward's father noticed that Ward was no longer outside, he advised Walker that it might be " best if he left the property." Ward's father then ran to look for Ward, believing that Ward kept a gun in his room. Ward's father did not warn Walker about this. Walker remained near the property waiting in the back of his truck for officer assistance to arrive.

Before Ward's father could intervene, Ward ran out of the house toward Walker and fired a .45 caliber pistol at him. Despite Walker's attempts to escape, Ward shot Walker several times. After Walker fell, Ward shot him again at close range. Walker sustained nine gunshot wounds in total and died.

Ward confessed to killing Walker shortly thereafter, explaining that he believed " the City" was after his family. He believed that Walker and the former Code Enforcement Director had threatened to tear down the family home. He claimed that he feared for his life because Walker had " threatened to call the cops," and to believe that, if the cops showed up to arrest him, he would probably end up dead. Ward believed this because he claimed to have been beaten up by the local police previously--though, there was no evidence to substantiate this claim.

In 2007, a jury convicted Ward of capital murder and sentenced him to death. His conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals (CCA). Ward v. State, No. AP-75750, 2010 WL 454980, at *1 (Tex.Crim.App. Feb. 10, 2010). While his direct appeal was pending, Ward sought state habeas relief. The state trial court issued a report and findings recommending denial of habeas relief without an evidentiary hearing. Ex parte Ward, No. WR-70651-02, 2010 WL 3910075, at *1 (Tex.Crim.App. Oct. 6, 2010). The CCA adopted the trial judge's findings and conclusions in part, and denied Ward's habeas petition in an unpublished decision. Id.

One year later, Ward filed the instant federal habeas corpus petition in federal district court. Ward asserted five federal claims for habeas relief. The district court denied his petition in its entirety and denied his request for a certificate of appealability. Ward now seeks our permission to appeal three of the five claims that the district court rejected.


To appeal the district court's denial of his habeas petition, Ward must first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36,

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123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward's claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller -El, 537 U.S. at 335-36.

A COA may issue " only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). " A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller -El, 537 U.S. at 327.

Specifically, " the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir. 2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). The issue is " the debatability of the underlying constitutional claim, not the resolution of that debate." Miller -El, 537 U.S. at 342. " Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Id. at 338. Thus, this Court's examination is a " threshold inquiry [that] does not require full consideration of the factual or legal bases adduced in support of the claims," but rather " an overview of the claims in the habeas petition and a general assessment of their merits." Id. at 336. In death-penalty cases, " any doubts as to whether the COA should issue are resolved in favor of the petitioner." Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir. 2008).

" [T]he determination of whether a COA should issue must be made by viewing the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d)." Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). Section 2254(d) provides that a state prisoner's application for a writ of habeas corpus " shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim" :

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

" A state court's decision is 'contrary to' clearly established federal law if 'the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.'" Hoffman v. Cain, 752 F.3d 430, 437 (5th Cir. 2014) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). By contrast, " [a] state court's decision involves an 'unreasonable application' of clearly established federal law if 'the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. at 437 (alterations

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in original) (quoting Williams, 529 U.S. at 413). As to this latter inquiry, " we focus on 'the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence.'" Id. (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam)). To determine whether the state court unreasonably applied a Supreme Court decision, a federal habeas court " must determine what arguments or theories supported or . . . could have supported . . . the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court]." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).

In addition to challenging the legal basis of the state court's decision, Ward challenges the state court's factual finding that the jury was not improperly influenced by a third party under § 2254(e)(1).[1] " [A] determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner " shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). " Section 2254(e)(1) is the 'arguably more deferential standard.'" Hoffman, 752 F.3d at 437 (quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010)). A factual determination is " not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood, 558 U.S. at 301.

Overall, § 2254(d) establishes a " highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (citation and internal quotation marks omitted). Indeed, state courts are presumed to " know and follow the law." Id. The petitioner has the burden of showing that " there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784.

The standard of review we apply depends on the state court's treatment of the federal claim.[2] If the claim was adjudicated on the merits, we apply § 2254(d)'s deferential standard of review. " For claims that are not adjudicated on the merits in the state court," however, we do not apply the deferential scheme laid out in § 2254(d) and instead " apply a de novo standard of review." Hoffman, 752 F.3d at 437.


Ward seeks a certificate to appeal three issues: (1) whether Ward received ineffective assistance of counsel (IAC) at sentencing because counsel failed to conduct a reasonable investigation into mitigation evidence, (2) whether Ward was denied his right to an impartial jury because a third party made ex parte contact with the jury, and (3) whether Ward's death sentence violates the Eighth Amendment because of his severe mental illness. The applicable legal standards and the facts pertaining to these claims are recited in greater detail in the discussion below.

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A. Ineffective Assistance at Sentencing

Ward argues that his trial counsel was ineffective because, " despite [Ward's] obvious signs of mental illness, trial counsel neither located nor interviewed numerous witnesses who could have testified about the depth and severity of that mental illness" and witnesses who could have explained " to a jury why mental illness . . . [was] not an aggravating factor." Ward also argues that the district court deprived him of his statutory right to investigation funding by its erroneous decision denying his funding application. Respondent--Appellee William Stephens, in his capacity as Director of Texas Corrections (" Texas" ), opposes the COA and argues that this claim is unexhausted and, alternatively, that the district court ...

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