United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 23, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 04-70038
__________________________
ROBERT JAMES NEVILLE,
Petitioner-Appellant,
versus
DOUGLAS 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
___________________________________________________
Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
The petitioner, Texas death row prisoner Robert James Neville, has been convicted of murder
in the course of kidnapping and sentenced to death by a jury. The Texas Court of Criminal Appeals
affirmed his conviction on direct appeal,1 and denied his state habeas corpus petition which claimed
1
Initially, Neville requested a waiver of all appeals, and to be executed “as soon as legally
possible.” However, because criminal appeals in Texas are automatic, the Texas Court of Criminal
Appeals, without a brief from Neville, reviewed the record for fundamental error. Finding none, it
affirmed the conviction.
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ineffective assistance of counsel. Neville then filed a petition with the federal district court pursuant
to 28 U.S.C. § 2254, stating several claims in addition to his ineffective assistance of counsel claim.
The district court denied the ineffective assistance of counsel claim on the merits, and denied the
other claims on the grounds of procedural default. Neville requests a certificate of appealability
(“COA”) to allow him to appeal the denial of his petition.
I.
On February 15, 1998, in Arlington, Texas, Amy Robinson failed to report to work at the
Kroger grocery store at 1:00 p.m and was reported missing. She was last seen leaving her house on
her bicycle to ride to work. In the course of the investigation of Robinson’s disappearance, the police
contacted Robert James Neville and Michael Hall, Robinson’s former co-workers. Neville told the
police that he was acquainted with Robinson personally and professionally, but that he did not have
any information about her disappearance.
On February 28, the police were alerted by Hall’s mother that Hall had been missing for
several days. Hall’s stepbrother told police that Hall had confided that he and Neville had abducted
and killed Robinson. A warrant for their arrest was subsequently issued.
On March 3, Hall and Neville were arrested by the U.S. Customs Service in Eagle Pass,
Texas, near the Mexican border. Neville admitted that he saw Robinson while driving with Hall
around Arlington around 12:00 p.m. on February 15th, that he and Hall asked her if she wanted a ride
to work, and that she accepted the ride. He confessed that they stopped in a remote field in the
Moslier Valley around 12:45 p.m. where Hall first shot Robinson in the leg with pellet gun, and then
shot her with a seven round .22-caliber rifle. Neville told the police that he also shot Robinson, both
in the chest and the head with a rifle. He later revealed the location of Robinson’s body on a map, and
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the agents found her body.
Neville was tried for murder in the course of kidnapping, a capital offense under Texas state
law. TEX. PENAL CODE §§ 19.02(b)(1) (murder); 19.03(a)(2) (capital murder). A jury convicted him,
and sentenced him to death. The Texas Court of Criminal Appeals affirmed his conviction on direct
appeal, and denied a subsequent petition for writ of habeas corpus, which claimed ineffective
assistance of counsel. Neville filed a petition for writ of habeas corpus in federal district court, raising
five claims including that he is actually innocent of the charge of kidnapping; that he was denied
effective assistance of counsel because his counsel failed to question the jurors during voir dire about
lupus, a disease that Neville claims affects his personality; that the Texas death penalty scheme
unconstitutionally limits the jury’s discretion; that the Texas clemency procedures violate substantive
and procedural due process; and that the death penalty violates an international treaty, the
International Covenant on Civil and Political Rights (“ICCPR”), which is binding on the United
States. The federal district court denied his petition, dismissing the ineffective assistance of counsel
claim on the merits, and dismissing the other claims on grounds of procedural default. Neville seeks
a COA to appeal the denial.
II.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs our decision about
whether to issue a COA. 28 U.S.C. §§ 2241 et seq. See Lindh v. Murphy, 521 U.S. 320, 335 (1997)
(applying AEDPA to all habeas petitions filed on or after April 24, 1996). Under AEDPA, the
petitioner must obtain a COA before we consider an appeal of the district court’s denial of a petition.
28 U.S.C. § 2253(c)(2). A petitioner obtains a COA when he makes “a substantial showing of the
denial of a constitutional right.” Id. This standard is satisfied by demonstrating that reasonable jurists
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could debate the district court’s resolution of the constitutional claims or that jurists could conclude
the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Until a
COA has been issued, federal courts lack jurisdiction to rule on the merits of appeals from habeas
petitioners. Id. at 336.
A.
The district court concluded that the majority of Neville’s claims were procedurally defaulted.
This conclusion is not one that reasonable jurists might debate. We, therefore, decline to issue COAs
on any of the procedurally defaulted issues.
Neville did not present four of five of his habeas claims to the Texas state court. His state
habeas application did not assert that he was actually innocent of kidnapping; that the Texas death
penalty unconstitutionally limits jury discretion; that the Texas clemency procedures violate
substantive and procedural due process; or that the death penalty violates the ICCPR. These claims,
therefore, are not exhausted.
Under AEDPA, the district court cannot grant habeas relief unless the applicant has exhausted
available state court remedies. 28 U.S.C. § 2254(b)(1)(A). See Elizalde v. Dretke, 362 F.3d 323, 328
(5th Cir. 2004); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir. 2003). To exhaust, the applicant
must fairly present the substance of his claims to the state court. See Picard v. Connor, 404 U.S. 270,
275–76 (1971); Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997). The exhaustion requirement
is not satisfied, therefore, where the petitioner presents new legal theories or factual claims in his
federal habeas petition. Bagwell v. Dretke, 372 F.3d 748, 755; Nobels, 127 F.3d at 420; Anderson
v. Harless, 459 U.S. 4, 6–7 (1982).
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Neville argues that although he has not explicitly presented his actual innocence claim in state
court, it is exhausted nonetheless. He claims that the Texas Court of Criminal Appeals had a full and
fair opportunity to review his claim of actual innocence because, on direct appeal, the Texas Court
of Criminal Appeals reviewed the record for fundamental error. A review for fundamental error,
Neville argues, necessarily includes a review for actual innocence.
However, as Neville himself acknowledges, he has not presented the details of his actual
innocence claim to the state court for full and fair review. Rather, the state court, of its own initiative
pursuant to state law, reviewed his case without the assistance of a brief from the petitioner. To
suppose that they could have anticipated and carefully considered the particular claim that Neville
now makes—that his conviction for kidnapping was supported by constitutionally insufficient
evidence—is a stretch of the imagination.
In addition, the Supreme Court has found that not only must a petitioner present the state
court with his claim, but he must also alert the state court of the constitutional nature of the claims.
See Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If state courts are to be given the opportunity to
correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the
prisoners are asserting claims under the United States Constitution.”). Review for fundamental error,
however, is review for error under state law, and not federal law. See G.A.O. v. State, 854 S.W.2d
710, 715 (Tex. App.-San Antonio 1993) (noting that fundamental error is error that “directly and
adversely affects the interest of the public generally, as such interest is declared in statutes or the
constitution of the State.”). And even if a review for fundamental error included some sort of review
of the sufficiency of the evidence under state law, the mere similarity of claims is insufficient to satisfy
the exhaustion requirement. See id. (citing Picard, 404 U.S. at 276; Anderson v. Harless, 459 U.S.
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4, 6 (1982)). Because Neville neither explicitly presented his claim in state court nor alerted the state
court to the constitutional nature of his claims, the Texas court did not have fair opportunity to
review the substance of Neville’s particular argument of actual innocence and his claim was not
exhausted in state court.
B.
Neville acknowledges that his additional claims are unexhausted. He requested a stay from
the district court to file a successive habeas petition with Texas to exhaust his claims. The district
court, finding Neville’s unexhausted claims procedurally barred, declined to grant a stay. Neville now
requests a stay from this Court.
Such stays are available only under limited circumstances. “Because granting a stay effectively
excuses a pet itioner’s failure to present his claims first to state courts, stay and abeyance is only
appropriate when the district court determines there is good cause for the petitioner’s failure to
exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure,
the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims
are plainly meritless.” Rhines v. Weber, 125 S.Ct. 1528, 1535 (2005). Neville offers neither good
cause nor a potentially meritorious claim. A stay merely would prolong federal habeas review to no
avail, contravening AEDPA’s goal of “finality and speedy resolution of federal petitions.” Id. at 1535.
Therefore, the district court properly declined to grant a stay, and we decline to issue one as well.
C.
Neville’s unexhausted claims are “plainly meritless” because he is now procedurally barred
from raising those claims in state court. Except under extraordinary circumstances, Texas law does
not permit successive petitions. TEX. CODE CRIM. PROC. 11.071, § 5(a) (listing narrow exceptions
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to prohibition on successive claims). Neville had his opportunity to file all his claims in his first state
habeas petition, and failed to do so. He points to no good cause for his failure. Because he does not
fall into any of the narrow statutory exceptions, Texas law now precludes the state court from hearing
his additional claims. The claims will remain, therefore, unexhausted.
The unexhausted claims, which Neville no longer can raise in state court, have been
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (noting that a
procedural default occurs when a prisoner fails to exhaust available state remedies and “the court to
which the pet itioner would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred”). The procedural default doctrine has
its roots in the general principle that federal courts should not disturb state court judgments based
on adequate and independent state law procedural grounds. See Dretke v. Haley, 541 U.S. 386, 392
(2004); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). The doctrine derives from prudential concerns
about comity and the orderly administration of justice. See Haley, 541 U.S. at 392. Because our
concerns are prudential, and not jurisdictional, we reserve an equitable exception to the bar on federal
review of procedurally defaulted claims where a petitioner can demonstrate “cause for the default and
actual prejudice as a result of the alleged violation of federal law” or “that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
To establish cause, Neville must demonstrate that some objective factor external to the
defense impeded his counsel’s efforts to comply with the State’s procedural rule. See Murray v.
Carrier, 477 U.S. 478, 488 (1986). Neville failed to present evidence of such an external factor. In
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his direct appeal, he knowingly and willingly waived his right to raise any claims on appeal.2 At the
time his state habeas petition was filed, both the factual and legal bases of his claims were available,
and Neville made no allegations that an official or any other party interfered and prevented Neville
from filing all his claims in his first petition. Id. at 488 (elaborating external factors sufficient to
establish “cause”).
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the Supreme Court also has recognized a narrow exception for “actual
innocence.” In the capital sentencing context, that exception applies where the petitioner can show
“by clear and convincing evidence that, but for the constitutional error, no reasonable juror would
have found the petitioner eligible for the death penalty under the applicable state law.” See Sawyer
v. Whitley, 505 U.S. 333, 336 (1992). Neville contends that he is actually innocent of the kidnapping
conviction, the aggravating offense that made him eligible for the death penalty. TEX. PENAL CODE
§ 19.03(a)(2). Given the evidence presented at trial, he asserts that no rational juror could have
found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 315–16
(1979) (noting that the due process clause of the Fourteenth Amendment guarantees “that no person
shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as
evidence to convince a trier of fact beyond a reasonable doubt of the existence of every element of
the offense” (citing In re Winship, 397 U.S. 358, 364 (1970)).
2
Following the submission of a letter stating that he wanted to waive his right to appeal,
Neville was brought before the Texas state district court to be informed of his right to appeal and
questioned about his desire to waive his appeal. After questioning Neville, the court held that the
waiver was “voluntary and intelligently made.” The Texas Court of Criminal Appeals affirmed the
Texas district court’s finding that the waiver was informed and voluntary. Neville v. Texas, No.
73,368 (Tex. Crim. App. 1999) (unpublished).
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Neville errs when he asserts that there is “not one shred of evidence” to support the
kidnapping conviction. Under Texas law, kidnapping is the intentional or knowing abduction of
another person. TEX. PENAL CODE § 20.03. To “abduct” means to restrain a person with the intent
to prevent his liberation by either (1) secreting or holding her in place where she is not likely to be
found or (2) using or threatening to use deadly force. TEX. PENAL CODE § 20.01(2). “Restrain” means
to restrict a person’s movements without consent, so as to interfere substantially with her liberty, by
moving her from one place to another or by confining her. TEX. PENAL CODE § 20.01(1). Restraint
is without consent when it is accomplished by force, intimidation, or deception. TEX. PENAL CODE
§ 20.01(1)(A). Evidence exists that Neville and Hall indeed abducted Robinson. Neville does not
contest that he and Hall picked up Robinson in their car, that they deceived her by indicating that they
would take her to work, that at that time they had guns in their possession, that Robinson rode in the
car with them to a remote field, and that, once at the field, Neville and Hall shot and killed her. Given
these uncontested facts, viewed in a light most favorable to the prosecution, a reasonable juror could
have reached the conclusion that Neville had abducted the victim using deception. See Jackson, 443
U.S. at 319 (“The relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.”). See also Santellan v. Cockrell, 271 F.3d 190, 194–96 (5th Cir. 2001)
(finding evidence sufficient to uphold a jury verdict convicting the defendant of murder in the course
of attempted kidnapping, where the defendant had a gun, stalked his victim, and then shot her);
Rayford v. State, 125 S.W.3d 521, 526 (Tex. Crim. App. 2003) (finding sufficient evidence to uphold
a conviction for murder in the course of kidnapping where the defendant pursued the victim with a
knife, knocked her down, beat her, and then carried her 300 feet into a drainage pipe where he killed
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her). Therefore, reasonable jurists would agree that the “actual innocence” exception to the
procedural default doctrine does not apply in this case.
Reasonable jurists would agree with the district court conclusion that Neville has procedurally
defaulted those claims not raised in his first habeas petition. It is appropriate, therefore, to deny
Neville’s request for a COA on his unexhausted claims.
III.
In Rose v. Lundy, the Supreme Court held t hat federal district courts may not adjudicate
mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted
claims. 455 U.S. 509, 510 (1982). AEDPA retained this “total exhaustion” requirement as
prerequisite for a district court to grant a petition. 28 U.S.C. § 2254(b)(1)(A). See also Rhine v.
Weber, 125 S.Ct. 1528, 1532–34 (2005) (reaffirming the “total exhaustion” requirement). However,
consistent with its goal of providing for the speedy resolution of federal petitions, AEPDA provides
that applications may be denied on the merits, “notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). Therefore, it was within
the district court’s discretion to deny Neville’s ineffective assistance of counsel claim on the merits,
even though the claim was improperly presented to the federal district court as part of a mixed
petition.
To determine whether a COA should issue, we consider whether Neville made a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El, 537 U.S. at 327.
This inquiry is a threshold inquiry only, and does not require full consideration of the factual and legal
bases of Neville’s claim. Miller-El, 537 U.S. at 336. Rather, we issue a COA if Neville proves that
“‘reasonable jurists would find the district court’s assessment of the constitutional claims debatable
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or wrong.’” Id. at 338 (quoting Slack, 529 U.S. at 484).
A.
Neville claims that his trial counsel provided ineffective assistance by failing to question
potential jurors during voir dire about their position on lupus and the effect of the disease on the
personality of an individual. He claims that because his lupus defense was his “linchpin defense,” the
failure to question the jurors on the topic affected the outcome of the punishment phase.
The Sixth Amendment provides for the right to counsel, and the Supreme Court has
recognized that “‘the right to counsel is the right to effective assistance of counsel.’” Strickland v.
Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970)). A showing of ineffective assistance of counsel has two components. First, Neville must show
that his counsel’s performance was deficient. Id. at 687. Second, he must show that he was actually
prejudiced by the deficient performance. Id. The district court held that Neville failed to establish both
deficient performance and prejudice. We consider whether this conclusion is one that reasonable
jurists could debate.
B.
Deficient performance is determined by examining whether the challenged representation fell
below an objective standard of reasonableness under prevailing professional norms. Rompilla v.
Beard, 125 S.Ct. 2456, 2462 (2005) (citations omitted). Because there are countless ways to provide
effective assistance of counsel in any given case, Neville must overcome the presumption that, under
the circumstances, his lawyer’s failure to question the jurors during voir dire on the issue of lupus was
sound trial strategy. Strickland, 466 U.S. at 689.
Neville failed to overcome this presumption. Not questioning the potential jurors about their
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opinions on lupus certainly could have been a reasonable strategic decision. Neville’s counsel could
have been trying to keep secret his plan to introduce evidence of lupus as a defense, or he could have
been concerned that, if a potential juror responded in a favorable manner to the proposed lupus
defense, the prosecution might exercise a strike against that potential juror. Neville failed to introduce
any evidence that such strategies in fact were unreasonable.
Even if Neville had established that his counsel’s performance was deficient, he would also
have had to establish that “prejudice caused by the deficiency is such that there is reasonable
probability that the result of the proceedings would have been different.” Ransom v. Johnson, 126
F.3d 716, 721 (5th Cir. 1997). Neville made no such showing. First, he failed to show that any
particular juror was in fact prejudiced against the lupus defense. Second, he failed to establish that,
even if Neville’s counsel had indeed questioned the jurors about lupus, the jurors would have found
the lupus evidence persuasive enough to affect the outcome.3
Neville failed to establish that reasonable jurists could debate whether Neville satisfied the
Strickland test for ineffective assistance of counsel. He established neither deficient performance nor
prejudice. Therefore, we deny his request for a COA on his claim of ineffective assistance of counsel.
CONCLUSION
Because reasonable jurists could not debate the conclusions of the district court, that four of
Neville’s claims are procedurally barred, and that Neville has failed to put forward sufficient evidence
to establish that he was denied effective counsel, we DENY Neville’s application for a COA on each
of the issues raised. Without a COA, we lack jurisdiction to review the district court’s denial of
3
The evidence suggesting that Neville had lupus and that it affected his personality was
not conclusive. At trial, the prosecution put forward evidence both that Neville did not have
lupus, and that lupus was not the cause of his behavior.
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habeas relief.
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