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Halprin v. Davis

United States Court of Appeals, Fifth Circuit

December 17, 2018

RANDY ETHAN HALPRIN, Petitioner - Appellant

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

          Before SMITH, DENNIS, and HAYNES, Circuit Judges.

          PER CURIAM.

         Randy Halprin, a state prisoner sentenced to death in 2003 in connection with the murder of police officer Aubrey Hawkins, seeks a certificate of appealability ("COA") with respect to five claims described below. Halprin also appeals the district court's denial of his request for an evidentiary hearing. For the reasons set forth below, we AFFIRM the district court's denial of Halprin's request for an evidentiary hearing and DENY the COA application.

         I. Background

         Halprin was a member of a group known as the "Texas Seven" who escaped from the Texas Department of Criminal Justice ("TDCJ") John B. Connally Unit (the "Connally Unit"). During their escape, the Texas Seven violently took hostages and stole guns and ammunition from the Connally Unit.

         Several days after the escape, the Texas Seven set out to rob a Texas store. Halprin alleges that he did not accompany the others when they went to buy ammunition in preparation for the robbery and that another conspirator did most of the planning. Halprin further alleges that he "didn't want to take a gun in or participate in the robbery." Nonetheless, he did. Halprin helped evaluate the layout of the store before the robbery, carried a gun during the robbery, and exited the store with stolen clothing, a bag of money, and some rifles that had been gathered during the robbery.

         During the robbery, an onlooker called the police. Officer Hawkins of the Irving Police Department then arrived on the scene. Officer Hawkins was shot at least eleven times almost immediately upon his arrival at the store. Halprin alleges other members of the Texas Seven shot at Officer Hawkins, but he did not. While fleeing the scene, the Texas Seven backed over Officer Hawkins's body in their vehicle, dragging it several feet. Officer Hawkins died from his gunshot wounds. A jury convicted Halprin of capital murder for his role in Officer Hawkins's killing and recommended the death penalty, and the trial court sentenced Halprin to death.

         Many of Halprin's arguments for obtaining a COA concern the "Ranking Document," a TDCJ report that lists the Texas Seven in order of most to least likely to lead the group. The Ranking Document identifies Halprin as the weakest of the Texas Seven in terms of leadership abilities, concluding that Halprin:

was quiet and never exhibited leadership qualities. Was consistently worried about whether his work was acceptable to the civilian workers. Very submissive characteristic. This worrisome attitude was seen to escalate a month before the escape. One civilian worker speculated whether [Halprin] was undergoing some type of depression.

         The Ranking Document was a summary compilation based on interviews with a number of civilian workers, correctional officers, and inmates who worked closely with the Texas Seven before their escape. Halprin's writ counsel indicated that sixty-seven people contributed to the report. The Ranking Document was one piece of paper among the approximately twenty boxes of TDCJ records the State produced to the defense.

         Halprin's counsel attempted to admit the Ranking Document at trial, but it was excluded as hearsay because of the lack of evidence about who created or otherwise contributed to the Ranking Document. The trial court noted that, while there was no question that the document was authentic, the conclusions in the document were all hearsay from unnamed sources, and Halprin's counsel had been unable to identify the author of the document.

         Halprin's counsel was unsuccessful in attempting to identify the author of the Ranking Document during trial, despite hiring a former TDCJ custodian of records, S.O. Woods, to investigate the issue and asking counsel for the State. Later, during habeas proceedings, the same former TDCJ custodian of records whom the defense retained during trial reviewed the TDCJ records again and found records identifying the Ranking Document's author.

         Although the Ranking Document itself was excluded, two witnesses testified to the same thing concluded in that document: that Halprin was weak, unintelligent, and likely a follower among the Texas Seven. Patrick Moczygemba, who worked at the Connally Unit at the time of the escape and was taken hostage during the escape, affirmed that following the escape he reported that Halprin was "dumb as a bag of rocks, [and] had to be told time after time how to complete a task." He agreed when asked that following orders was "about the best [Halprin] could do." Mark Burgess, also a Connally Unit employee who was taken hostage during the escape, testified that Halprin was "not a leader type."

         During the punishment phase of trial, the defense called Dr. Kelly Goodness, a forensic psychologist who had examined Halprin. Dr. Goodness primarily evaluates criminal defendants to help defense attorneys understand criminal defendants' behavior. Although Dr. Goodness was permitted to testify at length about factors contributing to Halprin's behavior, she was prevented on hearsay grounds from testifying to specific facts gathered from interviews and the specific contents of the records she reviewed.

         On direct appeal, Halprin's appellate counsel argued that the trial court violated his constitutional rights by excluding the Ranking Document.[1] The Court of Criminal Appeals affirmed the trial court. See Halprin v. State (Halprin I), 170 S.W.3d 111, 113 (Tex. Crim. App. 2005). It found that Halprin presented a significant amount of mitigating evidence that was cumulative of the mitigating evidence contained in the Ranking Document. Id. at 116. Specifically, the Court of Criminal Appeals pointed to Moczygemba's and Burgess's testimony. Id. The Court also noted that Halprin "testified at length that he was a follower and not a leader and that his participation in the victim's murder was minimal." Id.

         Halprin filed a state post-conviction writ on April 6, 2005. After two changes of presiding judge, the trial court adopted the State's proposed findings of fact and conclusions of law with minimal alterations. The Court of Criminal Appeals adopted the trial court's findings (with a few alterations not pertinent here) and denied relief. Ex Parte Halprin (Halprin II), No. WR-77, 175-01, 2013 WL 1150018, at *1 (Tex. Crim. App. Mar. 20, 2013) (per curiam).

         Halprin filed his amended federal habeas petition on June 17, 2014, asserting nine grounds for relief. The federal district court denied each claim for lack of merit, denied one claim on the additional ground that it was procedurally barred, and denied Halprin's request for a COA. Halprin v. Davis (Halprin III), No. 3:13-CV-1535-L, 2017 WL 4286042, at *1, *22 (N.D. Tex. Sept. 27, 2017).

         Halprin now seeks a COA on his claims that (1) the state trial court violated his constitutional rights by preventing him from offering the Ranking Document as mitigating evidence; (2) the State violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding the identity of the author of the Ranking Document; (3) Halprin's trial counsel were ineffective for failing to discover the author of the Ranking Document; (4) Halprin's death sentence is unconstitutional because he lacked intent to kill; and (5) Halprin's appellate counsel were ineffective for failing to argue on appeal that the trial court erroneously refused to admit certain portions of Dr. Goodness's testimony as mitigating evidence. In supplemental briefing, Halprin also ...

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