United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS May 28, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-11094
GARY LYNN STERLING,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:01-CV-0228)
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner Gary Lynn Sterling was convicted of capital murder
in Texas and sentenced to death. Sterling filed a petition for
writ of habeas corpus in the United States District Court for the
Northern District of Texas pursuant to 28 U.S.C. § 2254. The
district court denied Sterling’s petition. The district court also
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
denied Sterling’s application for a certificate of appealability
(“COA”). Sterling now requests a COA from this Court pursuant to
28 U.S.C. § 2253(c)(2). For the following reasons, we GRANT
Sterling’s application for COA on the ineffective assistance of
counsel (“IAC”) issue regarding the admittance of a potentially
racially biased juror, but we DENY a COA as to the other issues
presented.
BACKGROUND
In February 1989 Sterling was convicted and sentenced to death
for the capital offense of murdering John W. Carthey in the course
of committing or attempting to commit robbery. On direct appeal in
1992, the Texas Court of Criminal Appeals affirmed Sterling’s
conviction and sentence; the Supreme Court of the United States
denied certiorari. In 1994 the district court dismissed Sterling’s
initial habeas corpus petition for failure to exhaust state court
remedies. This Court affirmed the dismissal of Sterling’s
unexhausted petition, but the Supreme Court granted certiorari,
vacated the judgment, and remanded for further proceedings. On
remand in 1995, this Court again affirmed the district court’s
dismissal of Sterling’s unexhausted petition.
In December 1996 Sterling filed his state habeas application.
After conducting an evidentiary hearing, the trial court entered
findings of fact and conclusions of law recommending the denial of
relief. In 2001 the Court of Criminal Appeals adopted the trial
2
judge’s findings and conclusions and denied habeas relief. Later
that same year, Sterling filed a subsequent application for state
habeas relief, which the Texas Court of Criminal Appeals dismissed
as an abuse of the writ. In 2002 the Supreme Court denied
certiorari. Sterling then filed his petition for a writ of habeas
corpus in district court, which the court denied after oral
argument in 2003. The district court also denied Sterling’s motion
to reconsider the judgment. Sterling then noticed his appeal, and
the district court denied his application for COA.
DISCUSSION
Sterling filed his Section 2254 petition for a writ of habeas
corpus after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Therefore, his petition is
subject to the procedures imposed by AEDPA; Sterling’s right to
appeal is governed by the COA requirements of § 2253(c). See Slack
v. McDaniel, 529 U.S. 473, 478 (2000).
Under AEDPA, a petitioner must obtain a COA before an appeal
can be taken to this Court. 28 U.S.C.A. § 2253(c) (West 2004); see
also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a
COA has been issued federal courts of appeals lack jurisdiction to
rule on the merits of appeals from habeas petitioners.”). When a
habeas petitioner requests permission to seek appellate review of
the dismissal of his petition, this Court limits its examination to
a “threshold inquiry into the underlying merit of his claims.”
3
Miller-El, 537 U.S. at 327. “This threshold inquiry does not
require full consideration of the factual or legal bases adduced in
support of the claims. In fact, the statute forbids it.” Id. at
336.
A COA will be granted if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.A.
§ 2253(c)(2) (West 2004). Meeting this standard requires a
petitioner to demonstrate that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 336 (internal quotes and citation omitted).
At issue is the debatability of the underlying constitutional
claim, but not the resolution of that debate. Id. at 342. “[A]
claim can be debatable even though every jurist of reason might
agree, after the COA has been granted and the case has received
full consideration, that petitioner will not prevail.” Id. at 338.
When the district court denies a petitioner’s petition on
procedural grounds without reaching the underlying constitutional
claim, a COA should issue if the petitioner demonstrates both that
reasonable jurists would find it debatable whether the district
court was correct in its procedural ruling and that reasonable
jurists would find it debatable whether the petition states a valid
claim of the denial of a constitutional right. Slack, 529 U.S. at
4
478. Here, because this case involves the death penalty, “any
doubts as to whether a COA should issue must be resolved in
[Sterling’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th
Cir. 2000).
Whether a COA should issue on Sterling’s IAC claim as to the
admittance of juror Victor Walther.
In order to establish a Sixth Amendment IAC violation, a
petitioner must prove both (1) that counsel rendered deficient
performance and (2) that counsel’s actions resulted in actual
prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 690
(1984); Moore v. Johnson, 194 F.3d 586, 591 (5th Cir. 1999). It is
well settled that “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Strickland, 466 U.S. at
689 (internal quotes and citation omitted). However, it is also
well settled that the Sixth Amendment ensures that “the accused
shall enjoy the right to a speedy and public trial, by an impartial
jury.” Id. at 685 (emphasis added). Thus, the Sixth Amendment
“envisions [defense] counsel’s playing a role that is critical to
the ability of the adversarial system to produce just results.”
Id.; see also Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003)
(reconfirming two-prong Strickland analysis in the context of
5
whether defense counsel conducted a reasonable investigation into
mitigating evidence).
Sterling is African-American; Victor Walther, who sat on
Sterling’s capital murder jury, is Caucasian; Sterling’s victim
Carthey was Caucasian. Sterling maintains that Walther is racist
as to African-Americans and that his prejudiced views link race
with criminal behavior. Sterling bases this contention on a post-
trial affidavit where Walther referenced the criminal behavior of
“some nig**rs who live a couple of blocks over.” At the state
habeas hearing, Walther testified that he likely used that term at
the time of Sterling’s trial. Sterling argues that one of his
defense counsel, Robert Dunn, was familiar with Walther’s attitude
toward African-Americans because he had known Walther since his
youth. Thus, Sterling asserts Dunn was ineffective in that he did
not question or press Walther during voir dire about his racial
bias, which bias subsequently tainted Sterling’s trial.
The state asserts that both sides asked numerous questions
about Walther’s ability to be fair and impartial during voir dire,
especially in light of Walther’s prior representation by Dunn on
several occasions; Walther indicated he could be fair to both
sides. Dunn testified at the state habeas hearing that despite any
potential prejudiced views, he considered Walther a “fair man” and
“probably a middle-of-the-road juror for Navarro County.” Both
Dunn and his co-counsel on Sterling’s defense, Kerri Anderson
6
Donica, testified that the decision that Walther would be a
favorable juror was a conscious and strategic trial tactic. Donica
felt Dunn was very pleased to have Walther on the jury because of
their prior attorney-client relationship. While Dunn did not
question any potential jurors about racial bias, he stated this
decision rested on his belief that he very seldom receives truthful
answers. Moreover, Walther testified at the state habeas hearing
that “the color [of a defendant] doesn’t make no difference” and
that he felt the same way at the time of Sterling’s trial and would
had said so if asked. Walther also stated he has some very close
friends who are African-American, the term “nig**r” is a “just a
figure of speech,” and using that term did not make him a racist.
The district court determined that considering the strategic
nature of Dunn’s conduct, Dunn’s personal knowledge about and
assessment of Walther, and Walther’s answers during voir dire, the
state habeas court was not unreasonable in its conclusion that
Dunn’s performance at voir dire did not amount to the deficient
performance required to show IAC. See id. at 687 (explaining that
failure to demonstrate either prong in the IAC analysis makes it
unnecessary to examine the other). The district court did not
undergo any prejudice analysis under Strickland.
Here, Sterling’s defense counsel had firsthand knowledge about
the potentially racially biased views of a possible juror to
Sterling’s murder trial. Strategy or not, the fact that Dunn did
7
not seem to delve at all into what effect the possibly racist views
he personally knew Walther to hold (toward African-Americans) would
have on the impartiality and outcome of Sterling’s trial creates
the following debatable questions, among reasonable jurists:
(1) did Sterling’s counsel’s treatment of Walther as a potential
juror and acceptance of him as a juror amount to deficient
performance; and (2) as a result of Walther serving on the jury,
was the proper functioning of the adversarial process undermined to
the extent that Sterling’s trial cannot be relied upon as a just
result under the Sixth Amendment. Thus, based upon the limited
threshold inquiry this Court performs under the mandate of Miller-
El, we find reasonable jurists would be able to debate whether this
issue should have been resolved in a different manner.
Whether a COA should issue on Sterling’s due process claim
regarding Deputy James Jones’ mistaken testimony about the time of
the murder.
Any prisoner who attempts to bring his constitutional claim
to federal court after procedurally defaulting in state court “must
demonstrate cause and actual prejudice before obtaining relief.”
Engle v. Isaac, 456 U.S. 107, 129 (1982); see also Wainwright v.
Sykes, 433 U.S. 72, 87-89 (1977). “[T]he existence of cause for a
procedural default must ordinarily turn on whether the prisoner can
show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986). “Where a plain
8
procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the
petition or that the petitioner should be allowed to proceed
further.” Slack, 529 U.S. at 484.
During Sterling’s trial, Deputy James Jones opined that the
murder had taken place between 11:00 p.m. on Friday, May 13, 1988,
and 1:00 a.m. on Saturday, May 14, 1988. Years later, Deputy Jones
realized his mistake and changed his opinion to reflect that the
murder took place earlier on that Friday evening. Deputy Jones
gave an affidavit stating such, which was filed in the state’s
response to Sterling’s state habeas petition, and testified at the
evidentiary hearing that he was mistaken about the time frame and
would have corrected himself earlier if the issue had been raised
at trial or otherwise. Sterling argues that this mistaken and then
changed testimony is tantamount to the prosecution suppressing
material evidence, which he contends violated his due process
rights under Brady v. Maryland, 373 U.S. 83, 87 (1963).
However, Sterling did not complain of this alleged
prosecutorial misconduct until he moved to amend his state habeas
petition on September 28, 1998, more than fourteen months after
Deputy Jones had given his affidavit, on July 17, 1997, which
affidavit had been included in the state’s response filed more than
90 days after Sterling’s first state habeas petition had been filed
9
on December 30, 1996. Sterling waited to attempt to amend his
petition more than four months after the state habeas evidentiary
hearing, which took place on May 28 and 29, 1998, and at which
Deputy Jones testified about his mistake. This amendment was not
allowed pursuant to the 90-day extension deadline prescribed by
state procedure. Tex. Code Crim. Proc. Ann. art. 11.071, § 4(f)
(Vernon 1997) (now located at art. 11.071, § 4(b)). Sterling’s
state habeas petition was denied in 2001. The Texas Court of
Criminal Appeals dismissed Sterling’s second habeas petition filed
later in 2001, which included his Brady claim regarding Deputy
Jones’ mistaken testimony, as an abuse of the writ. Id. § 5. That
court also found that Sterling had not shown cause and prejudice to
overcome the procedural default bar per the requirements of Article
11.071, § 5.
The state asserts that the district court was correct in its
deferral to the state procedural bar applied to Sterling’s Brady
claim by the Court of Criminal Appeals. See Emery v. Johnson,
139 F.3d 191, 196 (5th Cir. 1997) (holding that “violation of
Texas’s abuse-of-the-writ-doctrine constitutes an independent and
adequate procedural bar to [] consideration of his barred claims”).
The district court found no cause sufficient to excuse the
procedural default. The court noted: the lapse of more than
fourteen months between the written disclosure of Deputy Jones’
mistake and Sterling’s attempt to amend his petition; the lapse of
10
four months between Deputy Jones’ testimony about his mistake and
Sterling’s attempt to amend his petition; that there is no
allegation or evidence pertaining to the prosecution or Deputy
Jones suppressing or hiding the evidence contained in Deputy Jones’
affidavit; and that Sterling’s counsel could have interviewed and,
indeed, it would have been “sensible and advisable” to interview
Deputy Jones regarding his trial testimony, particularly because
one of Sterling’s initial state habeas claims specifically attacked
Deputy Jones’ testimony as it related to whether there was another
suspect who had not had an alibi and had been with Sterling at the
time of the murder.
Here, based upon the two-prong threshold inquiry this Court
performs under Slack, we find reasonable jurists would not be able
to debate whether the district court was correct in its procedural
ruling. We therefore do not need to address the possible validity
of Sterling’s Brady claim as he has not met one of the required
prongs under Slack. 529 U.S. at 485 (encouraging courts to analyze
the procedural prong first where possible).
Whether a COA should issue on Sterling’s due process and IAC claim
as to the lack of a lesser-included offense (“LIO”) instruction.
Again, Strickland governs Sixth Amendment IAC claims; both
deficient performance by counsel and resultant prejudice must be
established. 466 U.S. at 687-88, 690. “[T]he court should
recognize that counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
11
exercise of reasonable professional judgment.” Id. at 690. The
Supreme Court case Beck v. Alabama, 447 U.S. 625 (1980), has been
interpreted to mean that a death sentence does not comport with due
process and may not be imposed if the jury was not permitted to
consider an LIO instruction which was supported by the evidence.
Hopper v. Evans, 456 U.S. 605, 610-11 (1982). The defendant must
meet the state’s standard for entitlement to an LIO instruction, as
long as the standard is consistent with the Constitution. Id. at
611-12. Under Texas law, before an LIO instruction is warranted,
“there must be some evidence directly germane to a lesser-included
offense for the fact-finder to consider.” Dowthitt v. Johnson,
230 F.3d 733, 757 (5th Cir. 2000) (citation omitted) (applying
Texas law).
In Texas, a person commits murder if, inter alia, he
“intentionally or knowingly causes the death of an individual.”
Tex. Pen. Code Ann. § 19.02(a)(1) (Vernon 1988) (now located at
§ 19.02(b)(1)). A person commits capital murder if he commits
murder as defined in § 19.02(a)(1) and, inter alia, he
intentionally commits the murder in the course of committing
robbery. Id. § 19.03(a)(2). Capital murder requires that the
defendant have acted intentionally, not merely knowingly. A person
acts with intent “with respect to the nature of his conduct or to
a result of his conduct when it is his conscious objective or
desire to engage in the conduct or cause the result.” Id.
12
§ 6.03(a). A person acts with knowledge “with respect to the
nature of his conduct . . . when he is aware of the nature of his
conduct” and “with respect to a result of his conduct when he is
aware that his conduct is reasonably certain to cause the result.”
Id. § 6.03(b).
Sterling argues that the evidence presented at trial entitled
him to an LIO instruction on the crime of noncapital murder.
Because his counsel failed to request or object to the omission of
such an instruction, he asserts he was denied effective assistance
of counsel. Sterling contends that proof of his intent as to
murder is not clear because he did not bring a deadly weapon with
him, he only struck the victim once, and he claims he was unsure
whether the victim was still breathing. Sterling also points to
Dunn’s testimony at the state habeas hearing that the failure to
request the LIO instruction may have been an “oversight.”
The state responds that Donica testified at the hearing that
counsel would have requested the LIO instruction if they “felt [it]
was supported by the evidence.” The state contends Sterling cannot
demonstrate that the record contains any evidence permitting a
rational jury to find that Sterling’s conduct did not meet the
requisite level of intent. The state further argues that the
record evidence established that Sterling intentionally caved in
the skull of the elderly victim with a bumper jack, then dragged
the body through two barbed wire fences and secreted it more than
13
100 feet away from the road where it would not be found. If
Sterling only intended to commit robbery, not murder, there was no
need to crush Carthey’s head in with a heavy blunt object, as the
victim posed no physical threat.
The district court found that the state court was not
unreasonable in its conclusion that Sterling had not demonstrated
that there was any evidence submitted at trial to directly support
the inclusion of an LIO instruction such that he was entitled to
that instruction under Texas law; nor was the state court
unreasonable in its application of Strickland to find that
counsel’s failure to request or object to the omission of an LIO
instruction was not objectively unreasonable or prejudicial because
the evidence did not support that LIO. Here, based upon the
limited threshold inquiry this Court performs under the mandate of
Miller-El, we find reasonable jurists would not be able to debate
whether this issue should have been resolved in a different manner.
Whether a COA should issue on Sterling’s Sixth Amendment claim
regarding unconstitutional harm due to the delay in counsel being
appointed to represent him.
In cases of trial error, such errors are subject on habeas
review to harmless error analysis under Brecht v. Abrahamson,
507 U.S. 619 (1993), which permits relief in federal habeas only
upon a showing that a particular constitutional error had a
“substantial and injurious effect or influence in determining the
jury’s verdict.” Id. at 623 (citing Kotteakos v. United States,
14
328 U.S. 750, 776 (1946)). Trial error occurs during the
presentation of the case to the jury and is amenable to harmless
error analysis because it can be “quantitatively assessed in the
context of other evidence presented.” Id. at 629 (citation
omitted). In cases of trial error, a petitioner must explain how
“specific errors of counsel undermined the reliability of the
finding of guilt.” United States v. Cronic, 466 U.S. 648, 659 n.26
(1984). However, at the other end of the spectrum lie systemic or
structural errors that warrant automatic reversal, such as complete
denial of counsel, denial of counsel at a critical stage of the
criminal proceedings, or if counsel fails to subject the state’s
case to meaningful adversarial testing. Id. at 658-59. This type
of constitutional error requires automatic reversal without a
showing of harm; that is, prejudice is presumed. Id. at 659.
Sterling argues that the district court improperly applied the
harmless error analysis under Brecht when it considered whether a
few months’ delay in the appointment of his defense counsel on the
Carthey murder case prejudiced Sterling’s trial. Sterling asserts
the pretrial period from his arrest for the Carthey murder on May
20, 1988, to the time he was appointed counsel for the Carthey case
on October 3, 1988, was a critical stage of the proceedings in
which defense counsel should have been pursuing a detailed
investigation for mitigating evidence to present at his punishment
phase. See Wiggins, 123 S. Ct. at 2535 (noting defense counsel’s
15
obligation to thoroughly investigate defendant’s background).
Therefore, Sterling maintains the district court should have found
systemic or structural error and presumed prejudice as dictated by
Chronic.
The state responds first that it was Sterling himself who
injected Brecht’s harmless error standard into this proceeding in
his federal habeas petition, and thus any error is invited error.
The state argues moreover that because Sterling never alleged at
the state habeas level that harm should be presumed as a result of
counsel’s failure to discover or present mitigation evidence in the
state courts, such a claim is procedurally defaulted. The state
also contends the application of the harmless error standard by the
district court was proper; the delay in appointment of Sterling’s
counsel does not implicate any of the systemic Sixth Amendment
errors that “by their very nature cast so much doubt on the
fairness of the trial process that, as a matter of law, they can
never be considered harmless.” Satterwhite v. Texas, 486 U.S. 249,
256 (1988). The state asserts there is no record evidence that
officials in Navarro County knew of or were forwarded any request
for counsel that Sterling made on July 4, 1988, in Hill County
jail, where he was being detained and where he faced two other
counts of capital murder.
Also, the state argues both members of Sterling’s defense team
had adequate time to prepare his defense; Sterling makes no
16
allegation that they failed to subject the prosecution’s case to
meaningful adversarial testing at any critical stage of the trial.
Donica was appointed as one of his defense attorneys on October 3,
1998, less than a month after Sterling signed a pauper’s oath on
August 9, 1988, and two-and-a-half months after Sterling was
indicted for the Carthey murder in Navarro County on July 14, 1988.
Although Dunn was appointed to chair Sterling’s defense on December
28, 1998, and the trial began on February 8, 1989, Dunn testified
at the state habeas hearing that in spite of time constraints, he
was able to conduct a more than adequate investigation into
Sterling’s background. Donica never averred that the timing of her
appointment deprived her of adequate time to investigate; at the
state habeas hearing, she testified Sterling’s file contained
“notes from quite a few witnesses that we talked to. Most of them
punishment witnesses.”
The state maintains Sterling has also failed to establish that
prejudice resulted from any failure of counsel to investigate and
present mitigation evidence. In fact, the state points to the fact
that Sterling has never even suggested to this Court or the
district court what mitigating evidence should have been introduced
but was not investigated or discovered because of the delay in
appointment of counsel.
The district court assumed trial error regarding the delay in
the appointment of counsel for Sterling and proceeded to analyze
whether Sterling suffered any prejudice from such delay. The
17
district court determined that the state habeas court was not
unreasonable in its conclusion that the investigation of Sterling’s
case was not frustrated by the delay in appointment of his counsel
or that such delay contributed to his conviction. This Court notes
that the months-long delay in counsel being appointed in this case
is troubling; however, the type of Wiggins or Williams v. Taylor,
529 U.S. 362 (2000), IAC error Sterling ultimately alleges resulted
from the delay in the appointment of his counsel is one in which
Strickland’s prejudice/harmless error prong is clearly applied, not
automatically presumed.2 Here, based upon the limited threshold
inquiry we perform under the mandate of Miller-El, we find that
reasonable jurists would not be able to debate whether this issue
should have been resolved in a different manner.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing, for the reasons set forth above, we
conclude that Sterling has satisfied this Court that reasonable
jurists would find debatable the district court’s resolution of the
IAC issue regarding the admittance of a potentially racially biased
juror. Thus, we GRANT Sterling’s application for COA only as to
2
We address Sterling’s argument that prejudice should be
presumed without deciding whether such an argument would be
procedurally barred as an abuse of the writ under Texas law as
Sterling did not raise this legal argument in his first state
habeas petition, arguing only “Prejudicial Delay in the Appointment
of Counsel.”
18
that issue. However, Sterling has failed to satisfy this Court
that reasonable jurists would find debatable the district court’s
resolution of the other issues on which he requests a COA.
Therefore, we DENY Sterling a COA as to those issues. It is
further ORDERED that the Clerk shall establish a briefing schedule
and notify this panel when briefing is completed so that the panel
can fix a time for oral argument on the IAC issue, if necessary.
GRANTED in part. DENIED in part.
19