CA5

Brown v. Dretke (Benavides, J.)

This is an opinion denying a motion for a certificate of appealability ("COA").  Under AEDPA, a habeas petitioner needs a COA to appeal the denial of his petition.  The standard is basically whether reasonable jurists could debate whether the district court properly adjudicated the petition.  Here the Court of Appeals concludes that the district court opinion was not one that reasonable jurists could disagree about.

Brown, along with his buddy, robbed and shot a man.  Brown pulled the trigger.  They were tried together and sentenced to death.  The Court of Appeals concludes:

1) Brown did not exhaust his claim that the failure to sever the trial of the two defendants violated the Sixth Amendment because although he argued to the state court that a severance was appropriate, he didn't mention the Sixth Amendment.

2) Brown argued that the Eighth Amendment required severance because the jury might conclude that if it gave the death penalty to his accomplice, it had to give it to him also, and that they might get confused about what evidence applied to each defendant.  The Court of Appeals disagrees with the district court's decision that this claim was not exhausted, but concludes that the failure to grant severance did not prejudice Brown.  The trial court gave clear instructions to the jury and the evidence admitted against Foster was not likely to prejudice Brown.

3) Brown didn't receive ineffective assistance of counsel.  Brown challenges his lawyer's pretrial failure to investigate possible other shooters, but Brown had admitted to his lawyer prior to trial that he was the killer.  Brown next contends that the district court should have sua sponte aggregated this alleged deficiency with several others -- including the fact that his lawyer talked on his cell phone during the trial, wore inappropriate clothing, and arrived late to trial -- in considering whether he was prejudiced.   In addition, because the Court concludes that counsel's performance was not deficient, aggregation for purposes of prejudice is irrelevant.

4) Brown's confrontation clause rights were not violated when he was not permitted to impeach a prosecution witness on a collateral matter. 

5) Admission in the penalty phase of evidence of unadjudicated criminal activity did not violate due process.

6) Most interestingly, the father of the victim was a small campaign contributor to the judge who precided over Brown's state habeas proceeding.  Brown moved to recuse the judge, and the judge granted the motion, but only after relevant testimony had been taken.  The new judge declined to permit the parties to call all the witnesses again for his benefit, and instead relied on the transcript of the habeas hearing.  In his federal habeas petition, Brown argued that the new judge's factual findings were not entitled to AEDPA deference because he didn't observe the witnesses who testified.  The federal district court ruled that this claim was unexhausted, but the Court of Appeals tells us that the record the district court relied on was incomplete.  Brown had filed a motion objecting to the proceeding in state court.  Nevertheless, the ruling was correct because Brown's due process argument made in state court was conclusory and he cites no authority or argument in support in the federal court.  It seems to me, however, that the claim is at least plausible.  Part of the reason to give deference to state court factual findings is because the state judge had the chance to observe their testimony and assess their credibility.  When that isn't the case, the argument for deference weakens.  But we also grant deference to state trial judges when they make factual findings based solely on a cold record, such as affidavits.  Anyway, I wouldn't consider this argument so weak that a future petitioner shouldn't develop it more thoroughly.