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Rhoades v. Davis

United States Court of Appeals, Fifth Circuit

March 27, 2017

RICK ALLEN RHOADES, Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

         Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, Circuit Judge:

         Rick Allen Rhoades murdered two men on September 12, 1991. Roughly one month later, while in custody for burglarizing a school, he confessed to the murders. A Harris County jury convicted him of capital murder and sentenced him to die. The Texas Court of Criminal Appeals ("CCA") affirmed Rhoades's conviction and sentence on direct appeal.[1] He unsuccessfully petitioned a Texas state court for a writ of habeas corpus.[2] Having exhausted his state remedies, Rhoades petitioned a federal district court for federal habeas corpus relief. The district court rejected all of Rhoades's claims and declined to issue a certificate of appealability ("COA"). He now asks this court for a COA to appeal the district court's resolution of his claims. We will grant a COA in part.

         I.

         "A state prisoner whose petition for a writ of habeas corpus is denied by a federal district court does not enjoy an absolute right to appeal."[3] Federal law requires that he first obtain a COA.[4] A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right."[5] Until the applicant secures a COA, we may not rule on the merits of his case.[6]

The COA inquiry . . . is not coextensive with a merits analysis. At the COA stage, the only question is whether the applicant has shown 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." This threshold question should be decided without "full consideration of the factual or legal bases adduced in support of the claims." "When 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."[7]

         We limit our examination "'to a threshold inquiry into the underlying merit of [the] claims, ' and ask 'only if the District Court's decision was debatable.'"[8]

         "Where the petitioner faces the death penalty, 'any doubts as to whether a COA should issue must be resolved' in the petitioner's favor."[9] When the district court denied relief on procedural grounds, the petitioner seeking a COA must further show that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling."[10]

         II.

         Rhoades seeks a COA on five claims for federal habeas relief:

(1) that the convicting court unconstitutionally prevented him from presenting mitigating childhood photographs of himself to the jury during the sentencing phase;
(2) that the convicting court unconstitutionally permitted the jury to hear testimony about the possibility of release on furlough for capital defendants sentenced to life in prison;
(3) that the convicting court unconstitutionally prevented him from informing the jurors about the parole implications of a life sentence;
(4) that his trial counsel provided constitutionally ineffective assistance by failing to object to (a) comments by the prosecutor supposedly implicating Rhoades's right not to testify and (b) the guilt/innocence-phase discussion of Rhoades's extraneous offenses; and
(5) that the State violated Batson when it exercised racially motivated peremptory strikes against two prospective jurors.

         We will grant a COA on Rhoades's claims 1, 2, and 5, but deny a COA on his claims 3 and 4.

         1.

         Rhoades's first claim is that the convicting trial court unconstitutionally prevented him from presenting mitigating childhood photographs of himself to the jury during the sentencing phase of his trial. During sentencing, the defense's theory was that Rhoades was generally nonviolent and would do well in a prison environment. Rhoades called his adoptive mother to testify about his troubled childhood. Prior to her testimony, the defense offered into evidence eleven photographs depicting a young Rhoades doing normal, happy childhood things (like fishing, holding a trophy, and going to a dance). The trial court excluded the photographs as irrelevant.

         The CCA affirmed.[11] It said that Rhoades had no constitutional right to introduce the photographs because they were not relevant to Rhoades's moral blameworthiness for the murders, relying on Justice O'Connor's concurring opinion in Franklin v. Lynaugh.[12] Judges Clinton and Overstreet dissented, pointing out that the relevant-to-moral-blameworthiness standard embraced by the CCA majority had never been adopted by the Supreme Court in a majority holding.[13] They further observed that Skipper v. South Carolina seems to say that mitigating evidence can be relevant even when it does not touch on the defendant's culpability for the crime committed.[14] Those dissenting judges would have found that Rhoades had a constitutional right to introduce the photographs "even if the only purpose of their introduction was to solicit the mercy of the jury."[15]

         Rhoades contends on federal habeas that the state court unreasonably applied the Supreme Court's standard for what mitigating evidence capital defendants have a right to present to the jury. The district court analyzed the Supreme Court's jurisprudence in this area and found that it permitted state courts "to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense."[16] According to the district court, the state court could have reasonably applied that standard to find the photographs irrelevant, and in any event the exclusion of the photographs did not affect Rhoades's sentence, rendering any error harmless.

         Persuaded that Rhoades has made a substantial showing of the denial of a constitutional right, we grant a COA on this claim. In particular, we note the challenge of determining what information is "relevant to the sentencing decision" within the meaning of the Supreme Court's cases[17]-a challenge that divided the Texas CCA on this issue. "When a state appellate court is divided on the merits of the constitutional question, issuance of a certificate of appealability should ordinarily be routine."[18] A COA is granted on Rhoades's claim 1.

         2.

         Rhoades's second claim is that the State presented false or misleading sentencing evidence. During the sentencing phase of Rhoades's trial, the State put on testimony that Texas inmates convicted of capital murder but sentenced to life imprisonment are "eligible for furloughs"-the theory apparently being that the jury would be more likely to sentence Rhoades to death if it thought that sentencing him only to life imprisonment meant that he could take furloughs. Defense counsel objected, and the trial judge called for a bench conference to which the court reporter was evidently not invited; the record does not show what counsel said at the bench. At some point, the court reporter was summoned to the bench, whereupon defense counsel wrapped up his argument and the judge overruled any objection, noting "I don't know where your objection is in there."

         Rhoades raised this point on his direct appeal to the CCA, but it found the objection not preserved because "he failed to object to the line of questioning with ample specificity to notify the trial court of his contention."[19]Because the CCA held any objection to the furlough testimony defaulted, it did not reach the merits.[20] Rhoades nonetheless raised this claim on state habeas. The state habeas court recognized that the CCA's procedural ruling barred Texas habeas review, but went on to rule, in the alternative, that "the applicant fails to show that such claims have merit." On federal habeas, the district court avoided the procedural-bar issue, choosing instead to reject this claim on the merits.

         Rhoades seeks a COA to challenge the district court's determination that his challenge to the furlough testimony lacks merit. Texas maintains that the claim is both procedurally barred and should be rejected on the merits. We grant a COA for both the merits and procedural issues. Merits

         Capital defendants have the constitutional right to reliable sentencing proceedings, [21] which precludes the State from presenting false or misleading evidence to the sentencing jury.[22] The merits issue is whether the state court's factual finding that the furlough testimony was not false or misleading was "an unreasonable determination of the facts."[23] We presume that finding to be correct, and Rhoades bears the burden of rebutting it by clear and convincing evidence.[24]

         In support of this claim, Rhoades has offered evidence that, notwithstanding the nominal rule permitting Texas inmates serving a life sentence for capital murder to go on furlough, it was the de facto policy of the Texas Department of Criminal Justice ("TDCJ") not even to consider such inmates for any type of furlough. This evidence includes the affidavit of a TDCJ officer saying as much and the fact that at the time of Rhoades's trial, no Texas inmate serving a life sentence for capital murder had ever been granted a furlough of the kind that they are supposedly eligible for.

         We find that Rhoades has made a substantial showing of the denial of a constitutional right and grant a COA on the merits of this claim. Telling the jury that its giving Rhoades a life sentence would qualify him for furloughs in order to make it more likely to give him a death sentence, when in reality he would never be considered for a furlough, raises serious questions about the reliability of Rhoades's sentencing determination.

         Procedural Bar

         The district court opted to reach the merits of Rhoades's furlough-testimony claim, but Texas insists that we should deny a COA because it is procedurally barred as a result of the CCA's holding. The unique procedural posture of this claim gives rise to some ambiguity. The Texas CCA denied it solely on state procedural grounds, the contemporaneous-objection rule, and made no mention of the merits.[25] Then the state habeas court acknowledged the CCA's holding as a bar to state habeas review, but reached the merits anyway as an alternative holding.

         "When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court."[26]

State procedural bars are not immortal, however; they may expire because of later actions by state courts. If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.[27]

         Here, it appears that the Texas CCA created a procedural bar to federal habeas review of Rhoades's furlough-testimony claim.[28] However, it is not clear whether the state habeas court's subsequently reaching the merits as an alternative holding "removes any bar to federal-court review that might otherwise have been available."[29] We grant a COA on this issue.

         3.

         Rhoades's third claim is that the trial court unconstitutionally prevented him from informing the jury, if it sentenced him to life in prison instead of death, how long he would be imprisoned before becoming eligible for parole. In Texas at the time that Rhoades was convicted and sentenced, inmates convicted of capital murder but sentenced to life imprisonment would be eligible for parole after thirty-five years.[30] Prior to jury selection, the State moved in limine to prevent Rhoades from informing the jury of that fact-the theory being that the jury might feel more comfortable imposing a life sentence if the defendant's incarceration were guaranteed for thirty-five years. The trial court granted that motion. Rhoades's jury never knew about the parole implications of choosing a life sentence over a death sentence.

         On direct appeal, the Texas CCA affirmed based on state precedent.[31]Judge Overstreet dissented, penning a thorough analysis of why the CCA's ruling misapplied federal law.[32] The district court rejected this challenge on the merits. It noted that several capital habeas petitioners prior to Rhoades had made the same argument for the extension of Simmons to Texas's pre-2005 parole eligibility scheme, [33] but that the Fifth Circuit rejected them all.

         The Supreme Court said in Simmons v. South Carolina that when a capital defendant sentenced to life in prison will never be eligible for parole under state law, the jury must be informed of that fact.[34] Rhoades seeks to extend that reasoning to Texas's parole scheme as it existed at the time of his conviction, which forbade parole for thirty-five years for capital defendants sentenced to life in prison. Rhoades's argument is foreclosed by circuit precedent. In Kinnamon v. Scott, the habeas petitioner "assert[ed] constitutional error in his inability to argue to the jury in sentencing that if spared the death penalty [he] would be required to serve a minimum of 20 calendar years without good time before becoming eligible for parole."[35] He "rest[ed] this claim upon Simmons v. South Carolina, " just as Rhoades does.[36]We said "we would not extend Simmons beyond cases in which the sentencing alternative to death is life without parole."[37]

         Because Rhoades's claim 3 challenge is foreclosed, jurists of reason would not debate the district court's resolution of it. We deny a COA on claim 3.

         4.

         Rhoades's fourth claim is that he was denied effective assistance of trial counsel. To demonstrate a claim of ineffective assistance of trial counsel under Strickland v. Washington, the defendant must show both that counsel rendered deficient performance and that counsel's actions resulted in actual prejudice.[38] To demonstrate deficient performance, the defendant must show that, in light of the circumstances as they appeared at the time of the conduct, "counsel's representation fell below an objective standard of reasonableness" as measured by "prevailing professional norms."[39] There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."[40] Trial counsel's strategic decisions must be given a strong degree of deference.[41] On habeas review, if there is any "reasonable argument that counsel satisfied Strickland's deferential ...


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