REVISED JULY 18, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-11173
EMERSON EDWARD RUDD,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR OF THE TEXAS DEPARTMENT
OF CRIMINAL JUSTICE,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
June 28, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Applicant-Appellant Emerson Edward Rudd, a Texas death row
inmate, whose petition for habeas corpus relief and request for a
Certificate of Appealability (“COA”) were both denied by the
federal district court, now seeks a COA from this Court pursuant to
28 U.S.C. § 2253(c)(2). For the reasons set forth below, we deny
Rudd’s application for a COA.
I. BACKGROUND
On the evening of September 2, 1988, Rudd and three others
robbed a Captain D’s restaurant in Dallas, Texas. During the
course of the robbery, Rudd intentionally shot one of the
restaurant’s managers when that manager told Rudd that Captain D’s
had no large amounts of money. The manager died later that night
at a local hospital. After robbing the Captain D’s, Rudd and his
cohorts committed another aggravated robbery at another restaurant.
Rudd was ultimately tried and convicted of capital murder in
state court. He was sentenced to death, and the Texas Court of
Criminal Appeals affirmed his conviction on direct appeal. Rudd
filed a timely post-conviction writ of habeas corpus with the trial
court under Article 11.071 of the Texas Code of Criminal Procedure.
The trial court entered findings of fact and conclusions of law
adverse to Rudd, which the Court of Criminal Appeals adopted.
Thereafter, Rudd filed his federal petition for writ of habeas
corpus on May 1, 1998. The district court referred the matter to
a magistrate judge. On September 8, 2000, the district court
adopted the magistrate judge’s report and recommendation that
Rudd’s petition be denied. Rudd filed his notice of appeal and
motion for a COA on October 12, 2000. The district court denied
the COA request on November 13, 2000. As a result, Rudd filed the
instant application for a COA on January 3, 2001.
II. DISCUSSION
2
Rudd filed his petition for a writ of habeas corpus on May 1,
1998. Consequently, it is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh
v. Murphy, 117 S. Ct. 2059 (1997). Under the AEDPA, before an
appeal from the dismissal or denial of a § 2254 habeas petition can
proceed, the petitioner must first obtain a COA, which will issue
“only if the applicant has made a substantial showing of the denial
of a constitutional right.” See 28 U.S.C. § 2253(c)(2). An
applicant makes a substantial showing when he demonstrates that his
application involves issues that are debatable among jurists of
reason, that another court could resolve the issues differently, or
that the issues are suitable enough to deserve encouragement to
proceed further. See Clark v. Johnson, 202 F.3d 760, 763 (5th
Cir.) (citing Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.
1996), overruled in part on other grounds, Lindh, 117 S. Ct. 2059),
cert. denied, 121 S. Ct. 84 (2000). Specifically, if a district
court rejects a prisoner’s constitutional claims on the merits, the
applicant must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable
or wrong. See Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). If
the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim,
then a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition
3
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling. Id. But because the
present case involves the death penalty, any doubts as to whether
a COA should issue must be resolved in Rudd’s favor. See Clark,
202 F.3d at 764.
Unless rebutted by clear and convincing evidence, a state
court’s determination of a factual issue shall be presumed to be
correct. See 28 U.S.C. § 2254(e)(1); Davis v. Johnson, 158 F.3d
806, 812 (5th Cir. 1998). The presumption is particularly strong
when the state habeas court and the trial court are one and the
same. See Clark, 202 F.3d at 764.
In his application, Rudd presents three issues for which he
seeks a COA: 1) whether he was denied due process when he was not
permitted access to the State’s file; 2) whether he was denied his
constitutional rights by the trial court’s jury instructions at the
punishment phase; and 3) whether he was denied the effective
assistance of counsel by his trial counsel’s alleged failure to
elicit crucial mitigating testimony from two witnesses at the
punishment stage of trial. We now address those issues in light of
the standards for the issuance of a COA.
A. Access To The State’s Case File
Rudd first argues that he was denied due process when he was
not permitted access to the State’s case file during his state
4
habeas proceeding. Subsumed within this argument is another claim
that the Court of Criminal Appeals’ routine denial of motions to
compel without prejudice to file in trial court effectively denies
equal protection of the laws and creates unequal results because
individual trial courts now have the discretion to determine
whether defendants should have access to the State’s case files.
We cannot grant Rudd a COA on this two-pronged issue. A long
line of cases from our circuit dictates that “infirmities in state
habeas proceedings do not constitute grounds for relief in federal
court.” Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.) (quoting
Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997)) (internal
quotation marks omitted), cert. denied, 120 S. Ct. 22 (1999);
Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995); Duff-Smith v.
Collins, 973 F.2d 1175, 1182 (5th Cir. 1992); Millard v. Lynaugh,
810 F.2d 1403, 1410 (5th Cir. 1987); see also Vail v. Procunier,
747 F.2d 277, 277 (5th Cir. 1984). That is because an attack on
the state habeas proceeding is an attack on a proceeding collateral
to the detention and not the detention itself. Nichols, 69 F.3d at
1275. Rudd does not question the unavailability of the State’s
case file during the trial, but rather, its unavailability during
his state habeas proceeding. Accordingly, his challenge is merely
an attack on infirmities in the state habeas proceeding and is
foreclosed by our circuit precedent. Hence, Rudd has not made a
substantial showing of the denial of a constitutional right, and
5
his application for a COA on his first issue is denied.
B. Jury Instructions
In his second issue for which he seeks a COA, Rudd argues that
he was denied his constitutional rights by the trial court’s jury
instructions at the punishment phase.1 This claim is also two-
headed. First, Rudd maintains that the jury instructions violated
the Eighth Amendment doctrine of heightened reliability because
they did not provide the jury with any guidance about the meaning
of a life sentence and, therefore, allowed the jury to speculate
about the length of such a sentence. Second, he contends that the
jury instructions violated his due process rights. According to
Rudd, his entire argument that he did not pose a future danger and,
thus, should not be executed was premised on the State’s alleged
failure to present evidence suggesting that he would be a danger in
prison society. But Rudd charges that the trial court’s jury
instructions induced the jury to speculate about Rudd’s parole
eligibility. As a result, the future dangerousness issue extended
to free society, and Rudd contends that he should have been
afforded the opportunity to rebut the State’s argument by showing
the jury that he would not have been eligible for parole for at
least fifteen years.
1
According to Rudd, the trial court’s failure to instruct on
parole eligibility, i.e., define “life in prison,” spurred
speculation on the part of the jury. In addition, he maintains
that the trial court’s definition that society “also includes the
Texas Department of Corrections,” induced the jury to include free
society and to speculate about parole.
6
To support his claim, Rudd principally relies on Simmons v.
South Carolina, 114 S. Ct. 2187 (1994). In Simmons, a death
penalty case, a plurality of the Supreme Court observed that “where
the defendant’s future dangerousness is at issue, and state law
prohibits the defendant’s release on parole, due process requires
that the sentencing jury be informed that the defendant is parole
ineligible.”2 Id. at 2190. It, however, did not delve into
situations, such as here, where parole may be available. Id. at
2196. A compelling reason for the plurality’s holding was that
“[t]he Due Process Clause does not allow the execution of a person
‘on the basis of information which he had no opportunity to deny or
explain.’” Id. at 2192. More precisely, the plurality was
concerned that the jury instructions in Simmons created a mistaken
understanding on the part of the jury that it could only sentence
the defendant to death or sentence him to a limited period of
incarceration. Id. at 2193. As that was a false choice, the
defendant had to have the opportunity to deny or explain his
situation by proffering an instruction that he was ineligible for
parole. Id.
Here, the jury did not confront a false choice that needed to
be denied or explained. Under Texas law, Rudd would have been
2
This quote is from the plurality opinion by Justice Blackmun,
but Justice O’Connor’s concurrence, in which Chief Justice
Rehnquist and Justice Kennedy joined, also accepts this holding.
Simmons, 114 S. Ct. at 2201.
7
eligible for parole after serving fifteen years in prison.
Contrary to Simmons, the jury would not have been mistaken if it
believed that it could only sentence Rudd to death or to a limited
period of incarceration. And a jury instruction on Rudd’s parole
eligibility would not have denied or explained the State’s argument
that Rudd was a future danger to free society.3 Unlike in Simmons,
where the defendant was ineligible for parole and had virtually no
chance of being released from prison, a jury instruction in the
instant case would not have explicitly denied or rebutted the
State’s argument that Rudd was a future danger to free society
because Rudd would have been eligible for parole. Although Rudd
believes that information about his parole eligibility after
fifteen years could have made a great deal of difference, “how the
jury’s knowledge of parole availability will affect the decision
whether or not to impose the death penalty is speculative.”
Simmons, 114 S. Ct. at 2196. In fact, a jury instruction on parole
eligibility could just as well have reinforced the State’s argument
about future dangerousness because Rudd would have been eligible
for parole at the fairly young age of thirty-three.
Likewise, we found Simmons unavailing in a case similar to
Rudd’s. See Miller v. Johnson, 200 F.3d 274 (5th Cir.), cert.
denied, 121 S. Ct. 122 (2000). In Miller, the defendant argued
3
Interestingly, Rudd’s appellate brief states that his trial
counsel virtually conceded that Rudd would be a danger in free
society.
8
that, “had the jury been informed that a life sentence would
require him to spend fifteen calendar years in prison before
becoming eligible for parole, a member of the panel could have been
convinced that he would not pose a future danger.” Id. at 290. We
noted that “Simmons requires that a jury be informed about a
defendant’s parole ineligibility only when (1) the state argues
that a defendant represents a future danger to society, and (2) the
defendant is legally ineligible for parole.” Id. at 290. (emphasis
added). Because Simmons is distinguishable and because Rudd fails
to cite any other cases directly supporting his position, we return
to our long-held precedent that “‘neither the due process clause
nor the Eighth Amendment compels instructions on parole in Texas.’”
Id. at 291 (quoting Johnson v. Scott, 68 F.3d 106, 112 (5th Cir.
1995)). Accordingly, we see no substantial showing of the denial
of a constitutional right based on the trial court’s jury
instructions at the punishment phase and deny Rudd’s request for a
COA on his second issue.
C. Ineffective Assistance Of Counsel
Rudd’s final issue for which he seeks a COA concerns his trial
counsel’s alleged failure to elicit crucial mitigating testimony
from two witnesses at the punishment stage of trial. Specifically,
he charges that his counsel failed to elicit from his cousin
Tamekka Whitmore and his sister Olivia Rudd certain testimony about
his father’s improprieties, including raping and abusing his
9
mother, stealing from the family, and being found in bed with
another woman. Because of that purported failure, Rudd argues that
his counsel was ineffective under the standard announced in
Strickland v. Washington, 104 S. Ct. 2052 (1984).4
To satisfy the Strickland standard, a defendant must show 1)
that his counsel’s performance was deficient and 2) that the
deficient performance prejudiced his defense. Id. at 2064. Having
reviewed pertinent portions of the record and in light of the
deferential standard of review accorded the state habeas court’s
findings, we conclude that Rudd has not made out a substantial
showing that his Sixth Amendment right to counsel was violated.
Several individuals testified on behalf of Rudd at the
punishment phase, including Whitmore and Olivia Rudd. Both of
those women recounted how Rudd came from a disadvantaged background
and had suffered physical abuse from his father. Moreover,
testimony at trial indicated that Rudd grew up in an environment
full of drugs, prostitution, and violence. Thus, Rudd’s counsel
devoted a substantial amount of attention and resources to draw a
picture of Rudd’s impoverished childhood and inadequate parenting,
which are the same things that Whitmore’s and Olivia Rudd’s
testimony would have supported.
4
Rudd further asserts that his counsel’s failure to present this
mitigating evidence prevented appellate review of whether Article
37.071 of the Texas Code of Criminal Procedure was unconstitutional
as applied to him.
10
Here, the fact that not every item of so-called mitigating
evidence was not provided to the jury does not make Rudd’s
counsel’s performance deficient, especially when there is no proof
that either Whitmore or Olivia Rudd told Rudd’s counsel everything.
Rudd responds that we should not place the onus on the witnesses
for failing to come forth with all of the mitigating evidence.
According to him, a witness does not choose what she will testify
to, but only answers questions propounded by the counsel; hence,
the burden should be on the counsel to ask the appropriate
questions and to elicit information in support of the defendant’s
case. But when the record undeniably reveals that trial counsel
attempted to elicit information similar to that which was withheld
and the witnesses do not testify to those other items or fail to
disclose them, we cannot fault trial counsel for not providing
every piece of evidence remotely connected to mitigation.
Furthermore, Rudd has not substantially shown that prejudice
resulted from his counsel’s performance. The substance of
Whitmore’s and Olivia Rudd’s new testimony was essentially
presented to the jury. They would have been cumulative and would
not necessarily have resulted in a life sentence rather than a
death sentence.
As Rudd’s counsel’s performance was neither deficient nor
prejudicial, we deny a COA on his third and final issue.
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III. CONCLUSION
Rudd has failed to make a substantial showing of the denial of
a constitutional right with respect to the three issues raised in
his application for a COA; therefore, his application is DENIED.
12