United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-70054
MAURICEO MASHAWN BROWN
Petitioner-Appellant
v.
DOUGLAS DRETKE, Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent-Appellee
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Appeal from the United States District Court
for the Western District of Texas
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
Petitioner Mauriceo Mashawn Brown was convicted in Texas
state court of capital murder and sentenced to death.
Subsequently, Brown filed a petition for habeas corpus relief in
a federal district court, which denied the petition and declined
to issue a certificate of appealability (“COA”) on any issue.
Brown now requests this court to grant a COA pursuant to 28
U.S.C. § 2253(c)(2). For the reasons that follow, Petitioner’s
Application for a Certificate of Appealability is denied.
I. BACKGROUND
On August 15, 1996, Brown, Kenneth Foster, DeWayne Dillard,
1
and Julius Steen perpetrated a series of armed robberies which
ultimately led to the fatal shooting of Michael LaHood, Jr.
According to evidence presented at trial, the four men had been
together, smoking marijuana, and driving around San Antonio in a
vehicle driven by Foster. In the early morning hours of August
15, Brown suggested, and the others agreed, to look for
individuals to rob. After they robbed four individuals in two
separate incidents, Foster began following a pair of vehicles
that ultimately stopped at the LaHood residence. Foster had
begun to turn the car around to exit the unfamiliar neighborhood,
when Mary Patrick exited one of the two vehicles Foster had been
following and confronted the occupants of the vehicle that had
been following her. After the brief confrontation, Patrick and
Michael LaHood, who had been driving the second followed vehicle,
began walking toward the entrance to the LaHood residence. Brown
subsequently exited the car and walked up to LaHood with a gun in
hand. According to Patrick, Brown demanded LaHood’s keys,
pointed the gun at LaHood’s face, and shot. LaHood died as a
result.
A jury subsequently found Brown and Foster guilty of capital
murder and sentenced Brown to death. Brown appealed his
conviction to the Texas Court of Criminal Appeals, which affirmed
the judgment of the trial court. In December of 1998, Brown
filed an application for state habeas corpus relief. After a
lengthy evidentiary hearing, the state habeas court denied
2
relief. Brown then filed a petition for habeas corpus relief in
federal district court. The district court denied relief and
declined to issue a COA.
Brown now asks this Court to grant a COA and raises several
grounds for relief: (1) the trial court’s failure to sever
Brown’s trial from that of his co-defendant (Grounds 1 and 6);
(2) his trial counsel’s ineffective assistance (Grounds 2 and 3);
(3) the trial court’s limitation of cross-examination of
prosecution witness Mary Patrick (Ground 4) ; (4) the trial
court’s admission of unadjudicated criminal conduct during the
punishment phase of trial (Ground 5); and (5) the adjudication of
his state habeas application by a judge who did not preside over
the trial or a portion of the state habeas hearing (Ground 7).
II. STANDARD FOR GRANTING A CERTIFICATE OF APPEALABILITY
Brown filed his § 2254 petition for a writ of habeas corpus
after the effective date of the Antiterrorism and Effective Death
Penalty Act ("AEDPA”). The petition, therefore, is subject to
the requirements, restrictions, and standards imposed by AEDPA.
See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Under AEDPA, a petitioner must obtain a COA before he can
appeal the district court’s denial of habeas relief. See 28
U.S.C. § 2253(c); 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
3
habeas petitioners.”).
The COA determination under § 2253(c) requires an
overview of the claims in the habeas petition and a
general assessment of their merits. We look to the
District Court’s application of AEDPA to petitioner’s
constitutional claims and ask whether that resolution was
debatable amongst jurists of reason. 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.
Miller-El, 537 U.S. at 336.
A COA will be granted only if the petitioner makes “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El, 537 U.S.
at 327. Where the district court has denied claims on procedural
grounds, a COA should issue only if it is demonstrated that
“jurists of reason would find it debatable whether the petition
states a valid claim of a denial of a constitutional right and
that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “The question is the
debatability of the underlying constitutional claim, not the
resolution of that debate.” Miller-El, 537 U.S. at 342.
“Indeed, a claim can be debatable even though every jurist of
4
reason might agree, after the COA has been granted and the case
has received full consideration, that petitioner will not
prevail.” Id. at 338. Moreover, “[b]ecause the present case
involves the death penalty, any doubts as to whether a COA should
issue must be resolved in [petitioner’s] favor.” Hernandez v.
Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
We further note that when reviewing the district court’s
assessment, we must be mindful of the deferential standard of
review of 28 U.S.C. § 2254(d). Under § 2254(d), a federal court
cannot grant habeas corpus relief with respect to any claim that
was adjudicated on the merits in state court proceedings unless
the adjudication of that claim either (1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme
Court of the United States, or (2) resulted in a decision that
was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding. 28
U.S.C. § 2254(d). With respect to the review of factual
findings, AEDPA significantly restricts the scope of federal
habeas review. Factual findings are presumed to be correct, and
a petitioner has the burden of rebutting this presumption with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. ANALYSIS
A. Non-Severance of Brown’s Jury Trial
5
In his first and sixth grounds for relief, Brown contends
that the trial court erred in refusing to sever Brown’s trial
from that of his co-defendant, Kenneth Foster. This, according
to Brown, resulted in (1) the jury being unable to render an
individualized sentencing determination in violation of the
Eighth Amendment and (2) a violation of his Sixth Amendment right
to confront witnesses against him.
The district court found that Brown had failed to exhaust
these claims before the state court and declined relief. As
discussed below, the district court’s ultimate resolution was one
which reasonable jurists could not debate.
Before seeking federal habeas relief, a state prisoner must
exhaust available state remedies. 28 U.S.C. § 2254(b)(1). The
exhaustion requirement is not met if the petitioner presents
legal theories or factual claims in his federal habeas petition
that were not asserted in his state application. Brown v.
Estelle, 701 F.2d 494, 495 (5th Cir. 1983). Also, the petitioner
must have reasonably alerted the state courts to the federal
nature of the claim. Wilder v. Cockrell, 274 F.3d 255, 260 (5th
Cir. 2001); Anderson v. Harless, 459 U.S. 4, 6-7 (1982).
1. Sixth Amendment Severance Claim
We first address Brown’s Sixth Amendment claim and conclude
that it was not properly exhausted in state court. While Brown
did assert a similar claim in his state habeas proceeding, that
6
claim was based entirely on Article 36.09 of the Texas Rules of
Criminal Procedure. Brown did not mention the Sixth Amendment.
Neither did Brown discuss any federal case law in support of his
complaint. See Harless, 459 U.S. at 6 (“It is not enough that .
. . a somewhat similar state-law claim was made.”). Thus, the
state court was not reasonably alerted to the possibility that
petitioner wished to assert a Sixth Amendment complaint regarding
the trial court’s failure to sever, and Brown’s current Sixth
Amendment claim was unexhausted in state court. Reasonable minds
could not debate that, under AEDPA, the district court was
correct in declining to grant federal habeas relief on Brown’s
claim. See 28 U.S.C. § 2254(b)(1)(A).
2. Eighth Amendment Severance Claim
We now turn to Brown’s Eighth Amendment-based claim
regarding the trial court’s failure to sever his trial from
Kenneth Foster’s trial. The district court erroneously believed
that Brown had failed to assert such a claim in his state habeas
application. However, a review of Brown’s state habeas
application reveals that Brown raised an Eighth Amendment-based
claim similar to the one he raised in the district court. In his
state habeas application, he argued that the trial court’s
failure to sever his trial from Foster’s may have allowed the
jury to believe that it had to impose the death penalty on Brown,
the triggerman, because it had imposed the death penalty on
7
Foster, the less-culpable non-triggerman. Further, he claimed
that the non-severance may have caused the jury to have
difficulty remembering which evidence applied to each defendant.
These consequences of non-severance, he argued, violated the
Eighth Amendment’s requirement of “precise and individualized
sentencing” in death penalty cases. See Stringer v. Black, 503
U.S. 222, 232 (1992).
Brown again raised an Eighth Amendment claim in his federal
petition. He argued that the jury was “overwhelmed[] and
frightened by the violent persona of Kenneth Foster while they
were trying to decide Mr. Brown’s fate.” In support, Brown
submitted several affidavits from jury members that were never
presented to the state habeas court. Arguably, the evidence and
theory behind Brown’s Eighth Amendment claim before the federal
habeas court was sufficiently different from that presented to
the state court to render his claim unexhausted. However, even
assuming that his claim was properly exhausted, we conclude that
the district court’s ultimate denial of relief on this claim was
proper and undebatable.
The United States Supreme Court has declined to mandate
severance any time co-defendants have conflicting defenses. See
Zafiro v. United States, 506 U.S. 534, 538-39 (1993). Often,
rather than sever a defendant’s trial from that of a co-
defendant, the trial court may simply provide a limiting
8
instruction to cure any risk of prejudice. Id. at 539. The mere
fact that co-defendants have “mutually antagonistic defenses”
does not require the trial court to sever the case. Id. at 538.
Severance should be granted “only if there is a serious risk that
a joint trial would compromise a specific trial right of one of
the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” Id. at 539.
The state habeas court found that the trial court had
properly exercised its discretion in denying Brown’s request for
severance and found that Brown had presented no evidence to the
trial court showing undue prejudice. Rather, the jurors were
repeatedly warned to consider the evidence in relation to the
defendant for or against whom it was admitted. Before reading
the punishment charge to the jurors, the trial court reminded
jurors that they were deliberating two separate causes and two
separate charges, and that the special issues submitted with both
charges differed.
Not only was any prejudice from trying the two cases
together cured by these warnings and instructions, but it is
unlikely that the evidence admitted against Foster could have
prejudiced Brown when Brown’s own record provided substantial
evidence of future dangerousness. The jury heard evidence of
Brown’s gang affiliations; evidence of possession and sale of a
pipe-bomb to an undercover officer; evidence that Brown had
9
previously attempted to break into a vehicle; and evidence that
he had participated in armed robberies on the night of LaHood’s
murder. Accordingly, Brown has not shown that “there [was] a
serious risk that a joint trial . . . compromise[d] a specific
trial right . . . or prevent[ed] the jury from making a reliable
judgment about guilt or innocence.” Id. Thus, reasonable jurists
would not disagree with the district court’s ultimate denial of
habeas relief on this issue.
B. Ineffective Assistance of Counsel
In his second and third grounds for relief, Brown contends
that the district court’s resolution of his ineffective
assistance of counsel claim was incorrect. He bases this
argument on two grounds. First, he argues that the district
court incorrectly applied the rule of Strickland v. Washington,
466 U.S. 668, 695-96 (1984), in failing to sua sponte aggregate
the prejudicial effect of each of the nine alleged instances of
deficient performance. Second, he argues that, contrary to the
district court’s findings, his trial counsel’s preparatory
investigation of Brown’s case was deficient. We find that
reasonable jurists would not debate the district court’s
resolution of these issues.
1. Aggregation Under Strickland
Brown’s first argument rests on a misunderstanding of
footnote 113 of the district court opinion. There, the district
10
court noted that Brown had alleged fewer incidents of allegedly
inappropriate conduct in his federal petition than he had in his
state application for habeas relief. Consequently, the instances
alleged in state court but not in federal court, which included
repeated late arrivals to court, derogatory comments about Brown
during closing arguments, inappropriate attire, and receipt of
cellular phone calls during trial, were not properly before the
district court in its adjudication of the ineffective assistance
of counsel claim. The district court noted, “While this Court
does not condone trial counsel’s behavior, nor the state trial
court’s apparent acquiescence, petitioner did not present this
Court with a similar broad-based, claim for relief herein
asserting that his trial counsel’s overall performance was
objectively unreasonable.”
Brown has construed the footnote to evidence the trial
court’s failure to consider the totality of the evidence as
required by Strickland, 466 U.S. at 695, in determining the
prejudicial effect of trial counsel’s allegedly deficient
performance. See Strickland, 466 U.S. at 687 (requiring a
claimant to show both deficient performance and prejudicial
effect to succeed in an ineffective assistance of counsel claim).
He claims that the district court should have considered all of
the alleged instances of deficient performance in the aggregate
to determine whether the prejudice prong of the Strickland test
11
was met.
This argument is flawed in three ways. First, the district
court’s footnote does not necessarily indicate that the district
court did not consider the totality of the circumstances in
resolving Brown’s ineffective assistance of counsel claim.
Rather, it simply indicates that the district court did not
consider evidence that was not properly before it, either
individually or in the aggregate, in resolving Brown’s claim.
Second, Brown has not referred to any case that requires a
district court to sua sponte aggregate the prejudicial effect of
all alleged instances of deficient performance in resolving the
second prong of the Strickland test. Brown’s reliance on
Strickland’s requirement that “a court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge
or jury,” id. at 695, is unpersuasive. As is apparent from the
discussion in Strickland, the “totality of the evidence” refers
to the type and weight of the evidence in favor of and against
the defendant at trial. Thus, to consider the “totality of the
evidence” means that a reviewing court must examine the
prejudicial effect of any alleged deficiency in light of the
strength or weakness of the prosecution’s case against the
defendant. See id. at 695-96 (“[A] verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.”).
12
The Court in Strickland in no way instructed courts to sua sponte
aggregate the prejudicial effect of all alleged deficiencies
urged by the claimant. Third, Brown’s concern over the
aggregation of prejudicial effects is moot in light of the fact
that the district court had already determined that Brown had not
shown deficient performance, as required by the first prong of
the test. Id. at 687 (“Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted
from a breakdown in the adversary process that renders the result
unreliable.”). Thus, Brown has failed to show that the district
court misapplied the rule of Strickland such that reasonable
jurists would disagree with the district court’s resolution of
Brown’s ineffective assistance of counsel claim.
2. Sufficiency of Trial Counsel’s Investigation
Brown also argues that the district court erred in
determining that trial counsel’s pre-trial investigation was
sufficient under the Sixth Amendment. Brown specifically claims
that trial counsel was deficient in failing to (1) interview all
of the witnesses on the government’s witness list, including Mary
Patrick, who had originally told police that Dillard, not Brown,
was the shooter, (2) interview Brown sufficiently, and (3)
explore the possibility that Brown was not the shooter. We find
that reasonable jurists would not disagree with the district
court’s denial of relief on these claims.
13
Claims of ineffective assistance of counsel are reviewed
under the two-prong test of Strickland v. Washington, 466 U.S. at
684-86. Under that test, a petitioner must show both that
counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Id.
To satisfy the first prong of the Strickland test, the
petitioner must show that counsel’s conduct falls beyond the
bounds of prevailing, objective professional standards. Id. at
688. However, there is a presumption that counsel rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. at 690.
Under the second prong, the petitioner must show that, as a
result of counsel’s errors, his trial was rendered unfair or
unreliable, i.e., petitioner must show “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Williams v. Taylor, 529
U.S. 362, 391 (2000) (citing Strickland, 466 U.S. at 694.)
The district court found that neither prong of the
Strickland test was met. First, the evidence before the state
habeas court and the district court did not show deficient
performance. While neither trial counsel nor trial counsel’s
investigator interviewed any of the prosecution witnesses prior
to trial, trial counsel reviewed all of the witness statements in
the prosecution’s case file. In addition, by Brown’s own
14
admission, his trial counsel attempted to locate and make contact
with prosecution witness Mary Patrick but was unsuccessful. The
district court also found that trial counsel had met with Brown
several times, but Brown had given trial counsel no reason to
explore the possibility that someone other than Brown was the
shooter. Rather, Brown consistently told his trial counsel that
he was the shooter. Thus, Brown cannot now challenge the
decision not to investigate the possibility of a different
shooter as unreasonable. Strickland, 466 U.S. at 691 (“[W]hen a
defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless. . ., counsel’s failure
to pursue those investigations may not later be challenged as
unreasonable.”).
Second, Brown failed to show that he suffered prejudice from
trial counsel’s allegedly deficient investigation. Brown
presented no evidence showing that Mary Patrick or any other
witness could have provided trial counsel with any helpful
information otherwise inaccessible. See Moawad v. Anderson, 143
F.3d 942, 948 (5th Cir. 1998). Nor did Brown identify any source
of testimony, other than himself and Patrick, which would show
that Brown was not the shooter. Accordingly, the district court
declined to grant relief.
In light of the evidence presented, reasonable jurists would
not disagree with the district court’s resolution of Brown’s
15
ineffective assistance of counsel claim.
C. Limitations on Cross-Examination of Mary Patrick
Brown’s fourth ground for relief alleges that the trial
court violated his Sixth Amendment right of confrontation by
limiting cross-examination of Mary Patrick regarding her marital
status. During Brown’s trial, both Brown and Foster cross-
examined Mary Patrick. Brown and Foster were able to elicit
information detrimental to Patrick’s credibility, including the
facts that Patrick had originally identified someone other than
Brown as the shooter; that she had provoked the confrontation
with the men in the car; that she failed to include in her police
statement that the shooter had worn a bandana over his face; and
that she had been drinking that night. However, Brown wished to
question Patrick regarding her marital status. Brown hoped to
call into question Patrick’s credibility by eliciting two pieces
of information: (1) while a detective was questioning her
immediately after LaHood’s shooting, Patrick told the detective
that she wished to speak to her husband, Kenneth Mox; and (2) in
a later affidavit unrelated to the case at bar, Patrick had said
she was married to Scott Rarick and had never been married to
Kenneth Mox. However, the district court denied Brown permission
to continue with such questioning.
As explained by the district court, the Confrontation Clause
of the Sixth Amendment guarantees the right of the accused in a
criminal proceeding to be confronted with the witnesses against
16
him. Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). Thus, a
criminal defendant has a constitutional right to cross-examine a
prosecution witness and thereby expose any information relating
to the reliability of the witness. Davis v. Alaska, 415 U.S.
308, 315-16 (1974). However, the right to cross-examine allows
the defendant “an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Pennsylvania v.
Ritchie, 480 U.S. 39, 53 (1987)(quoting Delaware v. Fensterer,
474 U.S. 15, 20 (1985)(emphasis in original). Trial judges may
impose limits on cross-examination based on concerns about
harassment, prejudice, confusions of the issue, the witness’s
safety, and interrogation that is repetitive or only marginally
relevant. Van Arsdall, 475 U.S. at 679.
The district court denied relief on Brown’s claim, reasoning
that even if Brown were able to elicit the information he hoped
to elicit, inconsistencies in Patrick’s representations about her
marital status were only marginally relevant. Brown presented no
evidence to the trial judge to indicate that Patrick had lied in
her affidavit. Additionally, there was no evidence that Patrick
intended to make any representation about her marital status by
asking to be given a moment to speak to someone during a very
stressful and emotional time.
In any event, Brown failed to show that the alleged error
17
was anything but harmless error. See id. at 684 (stating that an
erroneous limitation on cross-examination is subject to harmless
error analysis). In light of the substantial evidence against
Brown, the extensive amount of testimony elicited from Patrick
and other witnesses tending to damage Patrick’s credibility, and
the marginal relevance of Patrick’s marital status, there is no
likelihood that “the error had substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (internal quotations
omitted). Accordingly, we find that reasonable jurists would not
debate the district court’s resolution of Brown’s fourth ground
for relief.
D. Admission of Unadjudicated Criminal Condcut
In his fifth ground for relief, Brown argues that the trial
court’s admission of unadjudicated criminal conduct during the
punishment phase of trial violated his constitutional rights.
During the punishment phase of Brown’s trial, the prosecution
presented evidence showing that he had previously sold a pipe-
bomb to an undercover police officer, participated in a break-in
of a car in a parking garage, and participated in the armed
robbery of an individual just days before the crime in question.
The district court declined to grant relief on this claim, and we
find that reasonable jurists would not debate that outcome.
A federal court may grant habeas relief based on an
18
erroneous state court evidentiary ruling only if the ruling
violates a specific federal constitutional right or is so
eggregious such that it renders the petitioner’s trial
fundamentally unfair. See Wilkerson v. Cain, 233 F.3d 886, 890
(5th Cir. 2000); Castillo v. Johsnon, 141 F.3d 218, 224 (5th Cir.
1998). The district court found that Brown failed to show a
violation of a specific constitutional right or an error of such
magnitude to render the trial unfair. We agree with the district
court’s resolution of this issue and find that reasonable jurists
would not debate that decision.
As correctly explained by the district court, there is no
constitutional prohibition on the introduction at a trial’s
punishment phase of evidence showing that the defendant has
engaged in extraneous, unadjudicated, criminal conduct. Rather,
this Circuit has held that the “admission of unadjudicated
offenses in the sentencing phase of a capital trial does not
violate the eighth and fourteenth amendments.” Williams v.
Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987); see also Muniz v.
Johnson, 132 F.3d 214, 224 (5th Cir. 1998). Neither does the
U.S. Constitution require, as urged by Brown, that unadjudicated
extraneous offenses be proved beyond a reasonable doubt for
evidence of those offenses to be admitted at trial. Vega v.
Johnson, 149 F.3d 354, 359 (5th Cir. 1998); Turner v. Johnson,
106 F.3d 1178, 1189 (5th Cir. 1997). Accordingly, the district
19
court declined to adopt a contrary rule of constitutional law,
citing Teague v. Lane, 489 U.S. 288 (1989), which precludes
federal courts from adopting a new rule of constitutional law in
habeas proceedings.
Brown has also failed to show that the state trial court
violated state law so as to render his trial fundamentally
unfair. See Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir.
1999)(“In habeas actions, we do not sit to review the
admissibility of evidence under state law unless erroneous
evidentiary rulings were so extreme as to result in a denial of a
constitutionally fair proceeding.”). Brown’s claim that the
state trial court violated Texas law by admitting evidence of
prior unadjudicated offenses without proof beyond a reasonable
doubt is meaningless absent evidence that his trial was thereby
rendered unfair in violation of the Constitution. Brown
presented no evidence to the district court showing that there
was a “reasonable probability that the verdict might have been
different had the trial been properly conducted.” Guidroz v.
Lynaugh, 852 F.2d 832, 835 (5th Cir. 1988)(quoting Rogers v.
Lynaugh, 848 F.2d 606, 609 (5th Cir. 1988)). See also Harris v.
Johnson, 81 F.3d 535, 541 (5th Cir. 1996) (“We previously have
held that the use of evidence of unadjudicated extraneous
offenses, at the sentencing phase of Texas capital murder trials,
does not implicate constitutional concerns.”).
20
Under these circumstances, we find that reasonable jurists
would not debate the district court’s denial of relief on Brown’s
fifth claim.
E. State Habeas Judge’s Findings and Conclusions
In his final claim for relief, Brown argues that his due
process rights were violated by the original state habeas judge’s
failure to recuse himself until after the state habeas hearing,
which resulted in the findings of fact and conclusions of law
being made by the substituting judge, who was not present for
trial or the state habeas hearing. The district court denied
relief on this claim, and we find that reasonable jurists would
not debate that resolution.
During the state habeas hearing, Judge Sam Katz, who was
presiding over Brown’s state habeas proceedings, advised all
parties on the record that months prior to the hearing, he had
taken out a loan to pay off campaign debts and that one of the
two attorneys who signed as guarantors of the note was Michael
LaHood, Sr., the father of the murder victim. Brown subsequently
filed a motion for recusal, which was referred to Judge Michael
Curry for evidentiary hearing.
At that hearing, LaHood, Sr., testified that he signed as
guarantor of the Judge’s loan for $5,000 shortly after election
but before taking office. He also testified that he had served
as a guarantor for other attorneys in the past, had never
discussed Brown’s case with Judge Katz, and had no financial
21
interest in the outcome of Brown’s habeas proceeding. Judge
Curry denied Brown’s motion to recuse Judge Katz.
Six months later, upon invitation from Judge Katz, Brown’s
habeas counsel filed another motion for recusal. This second
motion was based on Judge Katz’s conduct during a hearing held on
May 12, 2000, in which Judge Katz berated Brown’s state habeas
co-counsel for allegedly accusing Judge Katz of bias and
financial improprieties in connection with Brown’s state habeas
proceeding. However, before the resulting recusal hearing had
concluded, Judge Katz entered an order recusing himself in
Brown’s habeas proceeding.
Judge James Barlow then became the presiding judge in
Brown’s state habeas proceeding. He allowed the parties to
supplement the evidence already presented to Judge Katz.
However, Judge Barlow declined to allow the parties to re-present
all the testimony that had previously been presented to Judge
Katz, advising the parties that he would review the record from
Brown’s trial and the record of the state habeas proceeding
before issuing findings of fact and conclusions of law.
In his federal habeas petition, Brown argued that Judge
Barlow’s factual findings deserved no deference because they were
impermissibly entered by a judge who did not preside over Brown’s
trial or the state habeas hearing. The district court found this
claim to be unexhausted in state court and therefore
inappropriate for federal habeas review under AEDPA. See 28
22
U.S.C. § 2254(b)(1). However, it based its conclusion on an
incomplete record which did not include a motion filed by Brown
in the state habeas court objecting to the state habeas
proceeding. From the supplemented record now before us, it is
clear that Brown did raise a claim in his state habeas proceeding
challenging Judge Barlow’s refusal to re-hear evidence and moving
for a new hearing.
Nonetheless, Brown’s argument raises no basis for federal
habeas corpus relief. Brown fails to make any argument as to how
the state habeas proceedings violated his due process rights but
instead makes conclusory statements to that effect. Apart from
his failure to point to any relevant authority in support of his
constitutional claim, Brown does not refer us to any authority or
precedent suggesting that a presiding judge’s use of evidence
heard by a previously recused judge is illegal under federal or
state law. We also note that Brown makes no argument and points
to no authority or precedent to support a conclusion that Judge
Katz’s initial failure to recuse was illegal based on federal or
state law.1 In any event, as correctly noted by the district
1
Had Brown’s claim for relief been based on Judge Katz’s initial failure to recuse, the
exhaustion doctrine would bar consideration of that claim in federal court under 28 U.S.C. §
2254(b)(1) because Brown did not present such a claim to the state habeas court. Brown’s
challenge to his state habeas proceeding, as contained in the motion for a new habeas hearing
submitted to the state habeas court, was based solely on the findings of fact and conclusions of
law being entered by a judge not present at Brown’s trial or state habeas proceeding. Brown did
not make any argument as to the propriety of Judge Katz presiding over the habeas hearing.
Thus, Brown did not “fairly present” that claim to the state habeas court such that this or any
other federal court could adjudicate that claim. See Anderson v. Harless, 459 U.S. 4, 6-7 (1982)
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court, we have previously held that alleged infirmities in state
habeas proceedings are not grounds for federal habeas relief.
See, e.g., Moore v. Dretke, 369 F.3d 844, 846 (5th Cir. 2004);
Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001); Nichols v.
Scott, 69 F.3d 1255, 1275 (5th Cir. 1995). Because Brown’s claim
does not allege any recognized basis for relief, reasonable
jurists would not debate the district court’s denial of relief on
this claim.
IV. Conclusion
Petitioner has not shown that reasonable jurists could
disagree with the district court’s denial of any of his claims,
nor could jurists conclude that any of Petitioner’s claims
deserve encouragement to proceed further. Accordingly, we deny
Petitioner’s Application for a Certificate of Appealability.
(holding that for purposes of exhaustion “[i]t is not enough that all the facts necessary to support
the federal claim were before the state courts,” but rather “the habeas petitioner must have ‘fairly
presented’ to the state courts the ‘substance’ of his federal habeas corpus claim”).
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