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Young v. Davis

United States Court of Appeals, Fifth Circuit

June 20, 2017

CHRISTOPHER YOUNG, 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 Western District of Texas

          Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, Circuit Judge:

         After a Texas jury sentenced Christopher Young to death for the murder of Hasmukh Patel, he unsuccessfully challenged the constitutionality of his sentence in the Texas state courts and in the federal district court. We granted a certificate of appealability on two issues: (1) a Mills[1] claim that the omission of a jury instruction-required under Texas law-that jurors need not agree on what particular evidence they found mitigating created a substantial risk that the jurors may have mistakenly believed mitigating evidence needed to be accepted unanimously and (2) that Young's trial counsel's failure to object to the missing instruction constituted ineffective assistance of counsel under Strickland.[2] We hold that the state courts' rejection of these claims was not "an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States."[3]

         I.

         On the morning of November 21, 2004, Young forced his way into the apartment of Daphne Edwards, where she lived with her three young daughters.[4] Pressing a revolver to her head, he demanded money.[5] She gave him $28-all she had.[6] Young demanded Edwards undress.[7] When she did not do so fast enough, Young fired a shot into the ground at her feet.[8] He then sexually assaulted Edwards, with her girls nearby where he could keep an eye on them.[9] On leaving, he "walked over to the children and kissed each of them on the cheek and told them that their mommy would be back."[10]

         Young then forced Edwards, still at gunpoint, into her red Mazda Protégé and had her drive to the front of the apartment complex.[11] At that point, Young decided he wanted to drive.[12] He exited the passenger side of the car, telling Edwards not to drive off or he would go back to the apartment and kill her daughters.[13] Circling around to the driver's side, Young ordered Edwards to scoot over to the passenger seat.[14] Edwards seized her opportunity to escape through the still-open passenger-side door.[15] Young drove off in Edwards' car.[16]

         Minutes later, Young entered the mini-mart/dry cleaners owned by Patel.[17] Young moved behind Patel, threatening him: "Alright, give up the money. I'm not playing. I'm not f[******] playing."[18] Patel moved behind the counter toward the cash register.[19] While continuing to demand that he "give up the money, " Young shot Patel twice.[20] Patel tripped the alarm between shots as he attempted to flee.[21] Young pursued him momentarily, yelling once more for money, before concealing the revolver under his shirt and exiting the store.[22] All of the interactions between Young and Patel were captured by a surveillance camera.

         As Young fled, a customer in the parking lot was able to make out the letter "W" on the license plate of Edwards' car.[23] Another customer provided a description of Young and the red Mazda, leading to his arrest later that morning.[24] Patel died as a result of his wounds.[25]

         Convicted of capital murder and sentenced to death, Young, on direct appeal, alleged fifteen points of error, which the Texas Court of Criminal Appeals rejected.[26] The Supreme Court denied certiorari.[27] Young then sought state habeas relief. After an evidentiary hearing, the Texas trial court recommended rejection of each of his twenty claims for relief.[28] The Texas Court of Criminal Appeals adopted that recommendation.[29]

         In 2014, Young filed a petition for a writ of habeas corpus in the Western District of Texas. The petition, as amended, alleged in relevant part that the trial court's jury instructions were constitutionally deficient and that trial counsel was ineffective for failing to object to those deficiencies. After rejecting his request for an evidentiary hearing, the district court denied Young's claims and a certificate of appealability.[30] We in turn granted a certificate of appealability on claims of flawed jury instructions and ineffective assistance of counsel.[31] The Supreme Court denied certiorari on Young's other claims.[32]

         II.

         As all claims before us were adjudicated on the merits in the Texas courts, our review is constrained by the deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act.[33] The Supreme Court has instructed that "'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision"[34]; "that "'clearly established Federal law" for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'"[35]

         The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) provide two separate avenues for federal habeas relief.[36] A state court's decision is "contrary to" clearly established federal law of the Supreme Court if it either (1) "applies a rule that contradicts the governing law set forth" in the Supreme Court's opinions or (2) "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent."[37] "The 'unreasonable application' clause of § 2254(d)(1) applies when 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.'"[38]

         Our question is whether the Texas courts unreasonably applied the principles of Mills and Strickland to Young's claims.[39] In reviewing state court decisions, we are mindful that "[s]ection 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [the Supreme] Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error."[40] "[A]n 'unreasonable application of' those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice."[41] "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision."[42] We are also limited to claims for which the factual basis was developed in state court unless:

(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.[43]

         III.

         We turn first to whether the Texas trial court's failure to give a jury instruction required by Article 37.071, Section 2(f)(3) of the Texas Code of Criminal Procedure subjected Young to a substantial risk that the individual jurors would believe they had to unanimously agree on what evidence was mitigating in violation of Mills.

         A.

         In Lockett, the Supreme Court held that the Eighth and Fourteenth Amendments require that, in imposing a death sentence, the sentencer be able to consider all relevant mitigating evidence.[44] Ohio's then-applicable capital punishment statute required a death sentence unless the trial judge found, by a preponderance of the evidence, that "(1) the victim had induced or facilitated the offense, (2) it was unlikely that [the defendant] would have committed the offense but for the fact that she 'was under duress, coercion, or strong provocation, ' or (3) the offense was 'primarily the product of [the defendant's] psychosis or mental deficiency.'"[45] In striking down the Ohio law, the Court held that:

[A] statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.[46]

         Four years later, the Court extended Lockett, holding "[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence."[47] Another four years later, Skipper extended Lockett to evidentiary rulings.[48] The following year, the Court ruled that a Florida judge's instructions to the jury that Florida's death penalty law limited mitigation evidence to the types specifically enumerated in the statute violated the constitutional rights of the defendant.[49]

         In Mills, the Court applied Lockett to Maryland's capital murder jury instructions.[50] The verdict form there provided the instruction: "Based upon the evidence we unanimously find that each of the following mitigating circumstances which is marked 'yes' has been proven to exist by A PREPONDERANCE OF THE EVIDENCE and each mitigating circumstance marked 'no' has not been proven by A PREPONDERANCE OF THE EVIDENCE, " followed by a list of mitigating circumstances, each with an option to check either yes or no.[51] "No instruction was given indicating what the jury should do if some but not all of the jurors were willing to recognize something about the petitioner, his background, or the circumstances of the crime as a mitigating factor."[52] The Court held that the verdict form and jury instructions created "a substantial probability that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance."[53]

         In Boyde, the Court addressed the lack of clarity in its "standard for reviewing jury instructions claimed to restrict impermissibly a jury's consideration of relevant evidence" [54] under Mills, [55] Francis v. Franklin, [56] and California v. Brown.[57] In cases where the instructions were claimed to be "ambiguous, and therefore subject to an erroneous interpretation, " the Court provided that "the proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."[58] That same term, the Court struck down North Carolina's requirement that juries unanimously decide which evidence is mitigating, even where the jury could opt for life imprisonment without agreeing on mitigating evidence, because, as in Mills, "it would be the 'height of arbitrariness to allow or require the imposition of the death penalty' where 1 juror was able to prevent the other 11 from giving effect to mitigating evidence."[59] "Mills, " the Court explained, "requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death."[60]

         Most recently, the Court again examined jury forms and instructions in Smith v. Spisak.[61] There, the trial court gave the following jury instructions:

[Y]ou, the trial jury, must consider all of the relevant evidence raised at trial, the evidence and testimony received in this hearing and the arguments of counsel. From this you must determine whether, beyond a reasonable doubt, the aggravating circumstances, which [Spisak] has been found guilty of committing in the separate counts are sufficient to outweigh the mitigating factors present in this case.
If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstance in each separate count outweighs the mitigating factors, then you must return that finding to the Court.
. . .
On the other hand, if after considering all of the relevant evidence raised at trial, the evidence and the testimony received at this hearing and the arguments of counsel, you find that the State failed to prove beyond a reasonable doubt that the aggravating circumstances which [Spisak] has been found guilty of committing in the separate counts outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court.[62]

         Importantly, "the instructions did not say that the jury must determine the existence of each individual mitigating factor unanimously. Neither the instructions nor the forms said anything about how-or even whether-the jury should make individual determinations that each particular mitigating circumstance existed."[63] Still, the Court "conclude[d] that the state court's decision upholding these forms and instructions was not 'contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' in Mills."[64] In a per curiam opinion the following year, the Court again upheld "virtually the same Ohio jury instructions" under both Mills and Beck.[65]

         B.

         The Texas Code of Criminal Procedure provides:

(e)(1) The court shall instruct the jury that . . . it shall answer the following issue:
Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.
. . .
(f) The court shall charge the jury that in answering the issue submitted under Subsection (e) of this article, the jury:
. . .
(3) need not agree on what particular evidence supports an affirmative finding on the issue.[66]

         During the punishment phase of Young's trial, the judge instructed the jury as follows:

Ladies and gentlemen, as before, I'm going to read to you the Charge of the Court. This is the law that you need to apply to what you heard and believed on the witness stand. And, of course, you're to use everything you heard in the first phase of the trial as well as everything you heard in the second phase of the trial in determining the answers to these questions before you.
. . .
By your verdict returned in this case, you have found the defendant, Christopher Young, guilty of capital murder, as alleged in the indictment.
You are instructed that a sentence of life or death is mandatory upon conviction of a capital felony.
It now becomes your duty to consider all the evidence in this case and determine the answers to certain questions which will be set forth for your consideration. The questions will be termed "issues" in this charge, and must be answered "Yes" or "No"; the punishment to be assessed the defendant will be assessed based on your answers to these issues.
If the jury returns an affirmative finding on the first special issue submitted, and a negative finding on the second special issue, this Court shall sentence the defendant to death. If the jury returns a negative finding on the first special issue or an affirmative finding as to the second special issue, the Court shall sentence the defendant to confinement in the Institutional Division of the Texas Department of Criminal Justice for life.
In deliberating upon the special issues, you shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.
You are instructed that the State must prove the first issue beyond a reasonable doubt.
The jury may not answer the first issue "Yes" unless there is unanimous agreement of the individual jurors upon that answer. The jury may not answer the first issue "No" unless ten or more jurors agree upon that answer, however, the ten jurors need not agree on what particular evidence supports a "No" answer to the issue.
The first issue is:
Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, Christopher Young, would commit criminal acts of violence that would constitute a continuing threat to society?
Answer: We the jury unanimously find and determine beyond a reasonable doubt the answer to this special issue is "Yes". Or Answer: We the jury, because at least ten (10) jurors have a reasonable doubt as to the probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, answer this special issue "No".
If you have answered the first special issue "Yes", then you will answer special issue number two.
The second issue is:
State whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or are sufficient mitigating circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.
Answer: We, the jury, unanimously find and determine that the answer to this Special Issue is "No". Or Answer: We, the jury, because at least ten (10) jurors find that there is a sufficient mitigating circumstance or are sufficient mitigating circumstances to warrant that a sentence of life imprisonment rather than a ...

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