REVISED October 27, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
October 13, 2009
No. 08-70024
Charles R. Fulbruge III
Clerk
COY WAYNE WESBROOK
Petitioner - Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
Appeal from the United States District Court
for the Southern District of Texas, Houston
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Coy Wayne Wesbrook was convicted of capital murder and sentenced to
death for murdering Gloria Coons and Antonio Cruz in the same criminal
episode. We granted a certificate of appealability (“COA”) authorizing him to
appeal the district court’s denial of federal habeas relief. We now AFFIRM the
district court’s denial of federal habeas relief for the reasons that follow.
No. 08-70024
I.
Wesbrook was convicted of capital murder and sentenced to death in
Harris County, Texas, in June 1998 for murdering Gloria Coons (his second wife)
and Antonio Cruz in the same criminal event. At trial, the State presented
evidence that Wesbrook, in addition to murdering Coons and Cruz, also, on the
same occasion, murdered Ruth Money, Anthony Rogers, and Kelly Hazlip.
Wesbrook was the only surviving witness to the shootings. He testified at
trial that he and Gloria Coons were married in 1995. They divorced in 1996, but
continued to see each other and began living together again at some point. In
August 1997, he moved out of the apartment they had shared. Around that
time, in an unrelated but stressful event, he discovered that his nine-year-old
daughter (by his first wife) had been sexually abused by his first wife’s boyfriend.
At trial, Wesbrook testified in his own defense that he had lunch with
Gloria Coons on November 12, 1997, and that she indicated that she was
interested in reconciliation. He went to her apartment that evening, hoping that
she would be alone. Instead, the other victims were present. Wesbrook testified
that he began to feel humiliated when Gloria flashed her breasts to the group
present at the apartment. She had sex with one of the victims and said that she
was going to have sex with another of the victims, so he decided to leave.
Antonio Cruz followed him out of the apartment and took the keys to his truck.
Wesbrook said that he grabbed his hunting rifle from his truck and followed
Cruz back into the apartment to get his keys. He claimed that, once he was back
inside the apartment, the others verbally harassed, threatened, and physically
abused him. He said that when someone threw a beer at him, the rifle “went
off.” After shooting all five of the victims, he went outside, announced that he
had committed the offense, and then waited for the police to arrive. He told the
jury that he just “lost it” and that he had no intention of killing anyone.
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No. 08-70024
Wesbrook’s father also testified. He told the jury that Wesbrook had
learning difficulties in school, that he was evaluated by a psychologist when he
was around ten years old, and that he dropped out of school in the eighth grade,
on the advice of the principal.
The jury convicted Wesbrook of capital murder.
At the punishment phase of Wesbrook’s trial, the State presented evidence
that Wesbrook had cut Gloria Coons’s telephone line, threatened to burn the
home of his first wife, Brenda Williams, attempted to burn the home of his ex-
landlords after they evicted him, and threatened Coons and her friends with a
gun. Phillip Jones, one of Wesbrook’s fellow inmates, testified that, while in jail
awaiting trial for capital murder, Wesbrook repeatedly talked about wanting to
have his ex-wife, Brenda Williams, and her husband killed. According to Jones,
Wesbrook planned to give his two cousins his truck in exchange for their killing
Williams and her husband. In addition, the State presented evidence, including
testimony and tape-recorded conversations, that Wesbrook was soliciting the
murders of three other people.1
Also at the punishment phase, the defense presented evidence, including
Wesbrook’s school records and some medical records. On cross-examination of
the State’s witness, Jones, the defense brought out the fact that Wesbrook
appeared genuinely to show remorse for the murders he had committed. Several
of Wesbrook’s former co-workers and supervisors testified that Wesbrook was a
dependable and reliable worker as a security guard and dispatcher for the
1
The opinion of the Texas Court of Criminal Appeals on direct appeal states that, in
addition to his first wife and her husband, Wesbrook wanted five additional individuals
murdered, four of whom were witnesses who had testified or were going to testify against him
at trial, and the fifth a fellow inmate at the Harris County Jail. The record reflects, however,
that the list of persons Wesbrook wanted to have killed included only five persons: his ex-wife
and her common-law husband, a witness who testified for the State at the guilt-innocence
phase of his trial (Bradley Smith) and his wife (Wendy), and another woman who was on the
State’s subpoena list (Angela Pinnell), who lived in the same apartment complex where the
murders of Coons and the other victims took place.
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No. 08-70024
volunteer fire department. The defense also presented evidence that Wesbrook
had a close relationship with his young daughter, that his first wife’s new
husband had molested that daughter, and that he was depressed around the
time of the shooting. Matthew James Nail, one of Wesbrook’s fellow inmates in
the Harris County Jail, testified that he and other inmates were concerned about
what Jones might be doing to Wesbrook, because Wesbrook seemed weak and
vulnerable. Nail testified that he never heard Wesbrook say anything about a
plan to kill witnesses. Wesbrook’s sister testified that he was slow as a child and
that he dropped out of school after the eighth grade. A psychologist, whose
testimony is described in detail infra, also testified for the defense that
Wesbrook had a major depressive disorder, with an underlying dependent
personality disorder, and that he had poor coping skills. She testified that he
was “very much at the end of his rope” at the time of the murders.
The jury answered the special punishment issue on future dangerousness
affirmatively and answered the special issue on mitigation negatively. On the
jury findings, the court imposed the death penalty.
Wesbrook’s conviction and sentence were affirmed on direct appeal.
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000). The Supreme Court
denied certiorari. Wesbrook v. Texas, 532 U.S. 944 (2001). The Texas Court of
Criminal Appeals denied Wesbrook’s first state habeas application in June 2002.
Ex parte Wesbrook, No. 52,120-01 (Tex. Crim. App. June 26, 2002).
Wesbrook filed his federal habeas petition in December 2002. In June
2003, he filed a successive state habeas application in which he claimed that he
is mentally retarded and exempt from execution. The district court dismissed
his federal petition without prejudice so that Wesbrook could seek relief on his
mental retardation claim in state court. The Texas Court of Criminal Appeals
denied Wesbrook’s successive state habeas application in March 2007. Ex parte
Wesbrook, No. WR-52,120-02 (Tex. Crim. App. March 21, 2007).
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No. 08-70024
On June 29, 2007, Wesbrook filed an amended petition for federal habeas
relief, asserting nine claims for relief. The district court granted summary
judgment for the state and denied relief and a COA.
Wesbrook requested a COA from this court to appeal the denial of relief
as to three claims. Based on our “threshold inquiry,” consisting of “an overview
of the claims in the habeas petition and a general assessment of their merits,”
Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003), we granted a COA for
Wesbrook’s claims that (1) his trial counsel rendered ineffective assistance by
failing to investigate fully his neurological impairments; (2) he was denied his
Sixth Amendment right to counsel by the State’s use of an undercover informant
to obtain incriminating statements while he was incarcerated and represented
by counsel; and (3) his due process rights were violated because the trial judge
engaged in ex parte communications with the prosecution and acted in a dual
role as both an investigator and an adjudicator. Wesbrook v. Quarterman, 318
F. App’x 265 (5th Cir. Feb. 17, 2009) (unpublished).
The parties were given the opportunity to submit supplemental briefs on
the merits of the claims, but did not submit supplemental briefs. Having
considered the briefs and based on our review of the record of the state court
trial, and the state and federal habeas proceedings, we conclude that the state
court’s decision to deny relief on these claims is not based on an unreasonable
determination of the facts in the light of the evidence presented, and is neither
contrary to, nor an unreasonable application of, clearly established federal law.
We therefore AFFIRM the district court’s denial of federal habeas relief.
II.
Wesbrook is not entitled to federal habeas relief on his claims unless the
state court’s adjudication of the claims
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
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No. 08-70024
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). A decision is “contrary to” clearly established federal law
“if the state court arrives at a conclusion opposite to that reached by th[e
Supreme] Court on a question of law or if the state court decides a case
differently than th[e Supreme] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). An “unreasonable
application” of clearly established federal law occurs “if the state court identifies
the correct governing legal principle from th[e Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. at
413. The state court’s factual determinations “shall be presumed to be correct,”
and the petitioner “shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
“In reviewing the district court’s application of § 2254(d) to the state court
decision, we review the district court’s findings of fact for clear error and its
conclusions of law de novo.” Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir.
2008).
We now turn to address each of Wesbrook’s claims, beginning with his
ineffective assistance claim.
A.
Wesbrook contends that his trial counsel rendered ineffective assistance
by failing to investigate fully his neurological impairments. To establish a Sixth
Amendment violation, Wesbrook must prove that his counsel rendered deficient
performance and that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance was
deficient if it “fell below an objective standard of reasonableness.” Id. at 688.
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No. 08-70024
“The proper measure of attorney performance remains simply reasonableness
under prevailing professional norms.” Id.
[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to
the extent that reasonable professional judgments
support the limitations on investigation. In other
words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to
investigate must be directly assessed for
reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.
Id. at 690-91. “In assessing counsel’s investigation, we must conduct an
objective review of their performance, measured for reasonableness under
prevailing professional norms, which includes a context-dependent consideration
of the challenged conduct as seen from counsel’s perspective at the time.”
Wiggins v. Smith, 539 U.S. 510, 523 (2003) (internal quotation marks and
citations omitted). There is a “strong presumption” that counsel’s conduct “falls
within the wide range of reasonable professional assistance,” Strickland, 466
U.S. at 689, and we may “not find ineffective assistance of counsel merely
because we disagree with counsel’s trial strategy.” Crane v. Johnson, 178 F.3d
309, 312 (5th Cir. 1999). “Strickland does not require counsel to investigate
every conceivable line of mitigating evidence no matter how unlikely the effort
would be to assist the defendant at sentencing.” Wiggins, 539 U.S. at 533.
To receive federal habeas relief on his ineffective assistance claim,
Wesbrook must establish that the decision of the Texas Court of Criminal
Appeals is either contrary to, or an unreasonable application of, Strickland. See
Blanton, 543 F.3d at 235. We now turn to the relevant facts of this case.
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No. 08-70024
At the punishment phase of trial, Dr. Ann Wheeler, a psychologist,
testified for the defense. Dr. Wheeler reviewed records of tests conducted on
Wesbrook by Dr. Kennett, a psychologist, when Wesbrook was ten years old.
According to Dr. Wheeler, those tests indicated that Wesbrook had average to
low-average intelligence and suffered from a learning disability, for which he
was punished by the school that he attended. She testified further that Dr.
Kennett’s testing showed that Wesbrook suffered from a neurological
impairment that caused significant problems with his academic development
and hampered his psychological and social development because it made it
difficult for him to make friends and caused him to be inept in social interaction.
She noted that Dr. Kennett had recommended further neurological follow-up,
including an EEG and a full neurological examination by a neurologist.
Furthermore, Dr. Kennett found that Wesbrook had a mixed dominance (left-
handed, right-footed, and left-eyed), which is very unusual and indicates a need
for further testing to see whether there are neurological problems that caused
the condition. According to Dr. Wheeler, Wesbrook would have been labeled as
learning disabled in today’s terms.
Based on limited testing that she conducted on Wesbrook, Dr. Wheeler
estimated that his IQ is about 90. She testified that the evidence indicated to
her that prior to the murder, Wesbrook abused alcohol and was clinically
depressed, and that the combination of the depression and alcohol abuse left
Wesbrook with very poor coping skills. She said that he also suffered from a
dependent personality disorder; as a result, he was never fully independent and
sought out relationships with women who would assume responsibility for him.
She said that the fact that Wesbrook’s daughter had been molested, as well as
several other significant stressors, likely resulted in a rapid deterioration of his
functioning around the time of the murders. She also testified that Wesbrook’s
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No. 08-70024
relations with Gloria Coons were very volatile and that, on the night of the
murders, Wesbrook was at the end of his rope.
Wesbrook argues that his trial counsel were on notice from two sources –
the early school reports and testing, and Dr. Wheeler – that he had possible
brain damage, but counsel failed to conduct a proper investigation and failed to
pursue neurological testing that would have produced significant mitigating
evidence. Instead, he maintains, his counsel chose to present a flimsy self-
defense case, based almost solely on the fact that one of the victims took
Wesbrook’s truck keys and would not return them to him. Wesbrook complains
that Dr. Wheeler did not test his IQ and did not conduct the neurological tests
recommended by Dr. Kennett in his 1968 report. He also contends that counsel’s
lack of preparation for Dr. Wheeler’s testimony resulted in a failure to bring the
fact of his severe neurological deficits before the jury, and allowed the
prosecution, on cross-examination, to twist her testimony to portray Wesbrook
as a sociopath and a future danger, rather than a borderline mentally retarded
man with no criminal history. He argues that, had trial counsel done a proper
investigation and followed up on the recommendation for neurological testing,
he would have been able to provide the jury with an explanation for his bizarre
behavior – that his actions on the night of the murders were attributable to
neurological impairment.
The state habeas court concluded that
Counsel was not ineffective for making the reasonable
trial decision to refrain from seeking additional
psychological evaluations of the applicant, particularly
in light of the two psychological evaluations already
completed. The evaluations performed by the two
mental health professionals indicated that any
additional investigation would not have assisted in the
applicant’s defense.
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No. 08-70024
Wesbrook maintains that if counsel had conducted a proper investigation,
they would have discovered evidence such as that he presented in connection
with his second state habeas application (in which he claimed to be mentally
retarded). In those successive habeas proceedings, Wesbrook obtained an expert
report from a psychologist, Dr. Stephen K. Martin. Dr. Martin’s report is
attached as an exhibit to Wesbrook’s federal habeas petition. In his report, Dr.
Martin stated that Wesbrook has damage to the frontal lobes of his brain and
that this frontal lobe damage, along with Wesbrook’s low intelligence, made it
more difficult for Wesbrook to moderate his reactions to emotionally charged
situations. Dr. Martin also stated that frontal lobe impairment has been
associated with anger control issues, and that persons who have frontal lobe
damage are at greater risk to engage in impulsive and potentially violent
behaviors without fully considering the consequences. He expressed his opinion
that this clinical information, had it been presented at trial, would have been
helpful to the jury in understanding how Wesbrook could have engaged in the
violent act of murdering five people.
We agree with the district court’s observation that Dr. Martin’s affidavit,
upon which Wesbrook relies as support for his claim, is “largely duplicative” of
Dr. Wheeler’s trial testimony, with the notable exception of Dr. Martin’s
discussion of Wesbrook’s frontal lobe damage. Because the jury had before it,
through Dr. Wheeler’s testimony, evidence of Wesbrook’s impairments, there is
not a reasonable probability that the outcome of the punishment phase would
have been different if the jury had been presented with evidence that Wesbrook
had “frontal lobe” damage. The state court’s determination that Wesbrook’s
counsel did not render ineffective assistance by failing to secure additional
expert testimony regarding those impairments is not an objectively unreasonable
application of Strickland. Accordingly, the district court did not err in denying
federal habeas relief on Wesbrook’s ineffective assistance of counsel claim.
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No. 08-70024
B.
We now turn to consider Wesbrook’s claim that he was denied his Sixth
Amendment right to counsel by the State’s use of an undercover informant to
obtain incriminating statements while he was incarcerated and represented by
counsel.
“The Sixth Amendment guarantees the accused, at least after the
initiation of formal charges, the right to rely on counsel as a ‘medium’ between
him and the State.” Maine v. Moulton, 474 U.S. 159, 176 (1985) (holding that
state’s use of informant to obtain incriminating evidence from defendant about
pending charges violated defendant’s Sixth Amendment right to counsel,
notwithstanding that state was also investigating other charges as to which the
Sixth Amendment right to counsel had not attached). “[I]ncriminating
statements pertaining to pending charges are inadmissible at the trial of those
charges, notwithstanding the fact that the police were also investigating other
crimes, if, in obtaining this evidence, the State violated the Sixth Amendment
by knowingly circumventing the accused’s right to the assistance of counsel.” Id.
at 180. However, evidence pertaining to charges as to which the Sixth
Amendment right to counsel has not attached at the time such evidence was
obtained, is admissible. Id. at 180 n.16.
Phillip Jones met Wesbrook approximately three months before
Wesbrook’s trial began, while both of them were incarcerated in the Harris
County Jail. They had a number of conversations in which Wesbrook spoke of
his desire to have his ex-wife and her husband killed. After Wesbrook was
moved to the county jail’s medical facility in May 1998, Jones contacted the
police and offered to serve as an informant. The police and the District
Attorney’s Office agreed to put Jones back in contact with Wesbrook. The plan
was for Jones to arrange a meeting between Wesbrook and an undercover law
enforcement officer, Gary Johnson, who was posing as a “hit” man.
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No. 08-70024
Jones was placed in Wesbrook’s cell block on June 11, 1998. By that time,
Wesbrook’s trial had started. Wesbrook told Jones he wanted three more people
added to the list of persons he wanted to have killed. Wesbrook gave Jones a list
of the names of those he wanted killed and the type of car each person drove.
Jones arranged to have Johnson speak to Wesbrook on the telephone, and
Wesbrook told Johnson what he wanted. The next day, Wesbrook was placed in
contact with Johnson again and he told Johnson he wanted to call off the plan
because he was afraid the call was being taped by jailers. Wesbrook’s
conversations with Johnson were recorded.
Immediately prior to the punishment phase of trial, Wesbrook moved to
suppress the evidence obtained by Jones. The trial court conducted a hearing
on the motion. At the hearing, Harris County Detective Harry Fikaris testified
that Jones was working for the State as an informant to obtain evidence for a
solicitation of murder case. He admitted, however, that the information and
evidence obtained would also be used against Wesbrook at the punishment
phase of his capital murder trial. At the conclusion of the hearing, the trial
judge denied Wesbrook’s motion to suppress and allowed the State to introduce
Jones’s testimony and audiotaped recordings of the telephone conversations
between Jones and Johnson at the punishment phase.
On direct appeal, the Texas Court of Criminal Appeals held that the
evidence obtained by Jones, while he was acting as an informant for the State,
was inadmissible as evidence of Wesbrook’s future dangerousness in his capital
murder trial, because it was obtained in violation of Wesbrook’s Sixth
Amendment right to counsel. 29 S.W.3d at 118-19. A majority of the court
concluded, however, that the error was harmless beyond a reasonable doubt:
To support a finding of future dangerousness . . .,
prosecutors relied on the facts of the crime itself, the
unadjudicated extraneous solicitation offense, and
several bad acts committed by appellant. Aside from
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No. 08-70024
evidence of a horrific killing spree that left five people
dead, jurors heard from Phillip Jones, who, before he
became an agent for law enforcement, independently
discovered appellant’s efforts to solicit the murders of
two individuals. Jones’ testimony about these
particular facts was free from any Sixth Amendment
concerns. The jury, at that point, validly possessed a
critical indicator of future dangerousness: that
appellant, despite his incarceration for a brutal
multiple homicide, was willing to arrange and condone
further murders, this time by proxy. Any additional,
inadmissible testimony of appellant’s hopes to expand
his list of desired targets was of minimal consequence.
In other words, because the jury possessed details of
both the crime itself and the solicitation to murder,
there is no reasonable likelihood that the inadmissible
portion of Jones’ testimony, considered either alone or
in context, moved the jury from a state of
nonpersuasion to persuasion regarding the issue of
future dangerousness.
29 S.W.3d at 119-20. Four judges dissented.
The district court held that, in the light of the horrific nature of
Wesbrook’s crime, the evidence of his longstanding habit of threatening others
with violence, and the untainted evidence of his plot to solicit two other murders,
Wesbrook had failed to demonstrate that the tainted evidence had a substantial
and injurious effect or influence on the jury’s verdict. See Brecht v. Abrahamson,
507 U.S. 619, 623 (1993).
Wesbrook argues that the admission of the evidence was not harmless
because, aside from Jones’s testimony and the damaging tape recording, the rest
of the testimony at the punishment phase consisted of allegations that he had
cut his ex-wife’s telephone wire and allegedly made some threats, none of which
were carried out. Wesbrook argues further that the state court failed to identify
correctly the appropriate governing legal principle because it applied a
sufficiency of the evidence test. He contends that the prosecution’s use of and
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No. 08-70024
reference to the illegally obtained tape recordings in its final argument, and the
fact that this evidence substantially bolstered the credibility of an otherwise
incredible jailhouse snitch, had a substantial or injurious effect on the jury’s
determination of the future dangerousness issue.
The State points out that, although both of the prosecutors discussed the
illegally-obtained evidence in their closing arguments, they also discussed at
length the facts of the crime and the impact of the murders on the victims’
families, the violent threats Wesbrook made against others, Wesbrook’s
mitigating evidence, and his lack of remorse.
Wesbrook is entitled to federal habeas relief on this claim “only if the
[Texas Court of Criminal Appeals] applied harmless-error review in an
‘objectively unreasonable’ manner.” Mitchell v. Esparza, 540 U.S. 12, 18 (2003)
(citations omitted). “[I]n § 2254 proceedings a court must assess the prejudicial
impact of constitutional error in a state-court criminal trial under the
‘substantial and injurious effect’ standard set forth in Brecht [v. Abrahamson,
507 U.S. 619 (1993)].” Fry v. Pliler, 551 U.S. 112, 121 (2007). In Fry, the
Supreme Court stated:
Given our frequent recognition that [the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”)]
limited rather than expanded the availability of habeas
relief, it is implausible that, without saying so, AEDPA
replaced the Brecht standard of actual prejudice with
the more liberal AEDPA/Chapman standard which
requires only that the state court’s harmless-beyond-a-
reasonable-doubt determination be unreasonable. That
said, it certainly makes no sense to require formal
application of both tests (AEDPA/Chapman and Brecht)
when the latter obviously subsumes the former.
Id. at 119-20 (internal quotation marks and citations omitted). Accordingly, in
assessing the reasonableness of the state court’s application of harmless error
review, we must resolve whether the violation of Wesbrook’s Sixth Amendment
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No. 08-70024
right to counsel had a substantial and injurious effect on the verdict at the
punishment phase. We conclude that it did not, and that the state court’s
application of harmless error review is neither contrary to, nor an unreasonable
application of, clearly established federal law. The evidence of Wesbrook’s
attempts to solicit the murders of his ex-wife and her husband was uncovered
prior to Jones becoming an agent for the State. In the light of the evidence that
Wesbrook murdered five people, and the untainted evidence that he attempted
to solicit the murders of his ex-wife and her husband, the erroneous admission
of evidence that Wesbrook attempted to solicit the murders of three more
individuals did not have a substantial or injurious influence on the jury’s
determination of the future dangerousness issue. Accordingly, the district court
did not err by denying federal habeas relief for this claim.
C.
We now consider Wesbrook’s final claim: that his due process rights were
violated because the trial judge engaged in ex parte communications with the
prosecution and acted in a dual role as both an investigator and an adjudicator.
A basic requirement of the Due Process Clause of the Fourteenth
Amendment is “[a] fair trial in a fair tribunal.” In re Murchison, 349 U.S. 133,
136 (1955). Recusal is required when “the probability of actual bias on the part
of the judge or decisionmaker is too high to be constitutionally tolerable.”
Withrow v. Larkin, 421 U.S. 35, 47 (1975). Due process is violated when a judge
has a dual role of both investigating and adjudicating a matter. See Murchison,
349 U.S. at 139 (holding that it violated due process for one adjudicator to act as
grand jury and judge for same defendants).
On June 12, 1998, in a pretrial hearing, defense counsel asked the trial
court to order the State to reveal any agreements it had made with any
witnesses in exchange for their testimony. The prosecutors requested an ex
parte meeting with the trial judge. During the ex parte meeting, which was
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No. 08-70024
transcribed by the court reporter, the prosecutors expressed concern about
complying with the defense’s request for disclosure because of an ongoing
investigation. The prosecutors explained that they had recently received
information from a fellow inmate (Jones) that Wesbrook had talked to Jones
about soliciting the murder of his former wife, Brenda Williams. The
prosecutors told the court that the only agreement they had made with the
inmate, at that point, was to tell the prosecutors on his case about his assistance.
The prosecutors said that they could not, at that time, disclose this information
to the defense because the investigation was still ongoing.
The trial judge stated that she did not want to interfere with an ongoing
investigation, and would not want to endanger the inmate, but that she was
concerned because the inmate was working as an agent of law enforcement and
that is a “very sticky area of the law.” She urged the prosecutors to be very
careful ethically and warned them that they had only a few days to make a
decision whether they were going to use any evidence developed as a result of
the investigation. She stated further that if the prosecutors were going to go
into the matter at trial, the defense would need some time to prepare and
respond. The court expressed the concern that “we have to make sure the
defense knows about that from a due process standpoint.” The judge decided to
tell defense counsel that no deal existed at that time, but that one was possible
and would be revealed if reached.
At the conclusion of the meeting, Wesbrook’s counsel objected to the ex
parte meeting and asked the trial court to disclose the content of the
communications and provide a transcript from the court reporter. The trial
court denied the request, but told Wesbrook that the prosecutors “informed me
that they have no agreements, they have informed me that there is some small
possibility some agreement might be coming in the future, and as soon as they
know that, they will notify the Court, and the defense, of course, would be
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No. 08-70024
informed.” Wesbrook’s counsel expressed concern about whether they would be
given sufficient time to prepare for the cross-examination of that witness, and
the trial court assured them that a continuance would be granted to give defense
counsel enough time to respond to the State’s evidence. Wesbrook requested
that, even if a deal were not made with the witness, his identity be revealed so
that he could be cross-examined about his attempt to seek a benefit from the
State. The State agreed.
Later during the same pre-trial hearing, the court inquired about the
defense motion to disclose the existence of any questioning, surveillance, or
observations of Wesbrook by State agents or representatives. The prosecutors
stated that they had tendered to the defense everything they had at that point.
The court asked to see the prosecutors and the court reporter in chambers, over
the defense’s objection.
At this second ex parte meeting, the trial judge stated that any
surveillance of Wesbrook by the State would fall within the scope of the defense’s
discovery motion and would have to be disclosed. The prosecutors responded
that nothing had happened yet and thus there was nothing to disclose. They
told the court that they did not know, at that point, whether Wesbrook would be
recorded during the investigation. The judge told the prosecutors that “as soon
as you do it, you have to inform them.” She urged the prosecutors to check on
the constitutional issues very carefully so there was nothing improper.
Ultimately, the trial judge interpreted Wesbrook’s motion as asking for “tests,
questioning, surveillance, or observations” that had already been done.
After the second ex parte meeting, the court sought clarification from
defense counsel about the disclosure requested. Wesbrook’s counsel indicated
that he sought access to information “regarding any jailers or anybody that
conducted any kind of special surveillance of him or if there were any individuals
that were inmates there that became agents of the State to specifically entice
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No. 08-70024
Wesbrook into conversations so that those individuals would now be coming in
and testifying on behalf of the State.” The trial court granted the motion and
instructed the prosecutors that, should any of those things come up during the
trial, they would need to inform defense counsel immediately.
Five days later, the State disclosed to Wesbrook the evidence it had
obtained in its investigation into his solicitation for the murder of his ex-wife.
The State provided the defense with a copy of tape-recorded telephone
conversations in which Wesbrook was soliciting the murder of his ex-wife and
her husband, as well as three other persons. The State also gave Wesbrook a
copy of a piece of paper on which Wesbrook had written the names and addresses
of the people he wanted killed, and copies of the agreement with the informant,
the informant’s criminal record, and an updated subpoena list.
The next day, Wesbrook’s counsel filed a motion to recuse the trial judge,
alleging that information received by the judge during the two ex parte meetings
with the prosecutors may have improperly influenced the judge and tainted the
judge’s ability to be fair and impartial. A visiting judge heard evidence on the
recusal motion. The trial judge testified that she had made it clear to the
prosecutors in the ex parte meetings that she was very concerned about
Wesbrook’s due process rights and that the prosecutors would have to inform
defense counsel about the investigation as quickly as possible. The court
reporter’s transcripts of the two ex parte meetings were unsealed and made a
part of the record of the hearing. The visiting judge found no grounds for recusal
and denied Wesbrook’s motion.
On direct appeal, Wesbrook argued that the trial judge’s ex parte
communications with the prosecutors violated the Code of Judicial Conduct and
that, by exposing herself to the potentially incriminating information, the judge’s
impartiality was compromised. He contended that the trial judge should have
recused herself because she was to rule on the admissibility of the evidence she
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No. 08-70024
permitted the State to generate, and this violated his Fourteenth Amendment
right to due process. 29 S.W.3d at 120. The Court of Criminal Appeals rejected
the claim, stating:
Even assuming arguendo that a violation of the Code of
Judicial Conduct did occur, and also assuming
arguendo that it is possible such a violation has the
potential to rise to the level of reversible error,
appellant has failed in this case to demonstrate
sufficient harm resulting from this alleged violation to
the degree a reversal would be warranted. It is true
that while sufficient bias can result in disqualification,
it does so only in those cases in which the bias is shown
to be of such a nature and to such an extent as to deny
a defendant due process of law. . . . The defendant
failed to demonstrate at the hearing, as was his burden,
that [the trial judge] possessed any bias, much less
sufficient bias that would have interfered with
appellant’s rights to due process. It is within the zone
of reasonable disagreement that the presumption of
judicial impartiality was not overcome by appellant.
29 S.W.3d at 121 (citations omitted).
In his state habeas application, Wesbrook claimed that he was deprived
of his right to an impartial and disinterested tribunal because the trial court had
effectively become a member of the prosecution team. The state habeas court
concluded that the claim need not be considered because it had been raised and
rejected on direct appeal. Alternatively, the state habeas court concluded that
Wesbrook had failed to establish that a reasonable person, knowing all the
circumstances involved, would harbor doubts about the impartiality of the trial
judge to the extent that Wesbrook was denied due process.
Wesbrook argues that the trial judge acted in a dual role of investigator
and adjudicator and that bias should therefore be presumed. Wesbrook
maintains that, to the extent that the state court focused on harm, its decision
was contrary to clearly established federal law because, in cases of presumed or
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No. 08-70024
actual bias, harm or prejudice is not relevant. He contends, therefore, that the
state court failed to identify correctly the appropriate governing legal principle
and its decision was contrary to or an unreasonable application of clearly
established federal law when it focused on whether Wesbrook had established
that the trial judge was, in fact, biased. Wesbrook contends that the trial judge’s
dual role is established by the fact that she sat silently while she allowed the
prosecution to lie to the defense that there was no deal with the informant, and
later when the prosecution again lied when it stated that it had nothing to
disclose about jailhouse informants. Wesbrook asserts that, by lending the
stature of her office to these misrepresentations, the trial judge was advancing
the cause of the prosecution and, in effect, assisting the prosecution in the
investigation and presentation of its case.
We agree with the district court that the record does not support
Wesbrook’s contention that the trial judge acted in a dual role as both
investigator and adjudicator. As we have noted, the ex parte meetings were
transcribed by the court reporter. As the district court held, the record reflects
that the trial judge remained neutral and made determined efforts to both
protect Wesbrook’s due process right to obtain material information and, at the
same time, avoid unnecessary interference with the State’s ongoing investigation
into Wesbrook’s solicitation of other murders. There is nothing in the record to
indicate that the trial judge improperly placed herself in the role as part of the
prosecution or in the investigation of Wesbrook’s solicitation of murder. During
the meetings, the trial judge repeatedly expressed her awareness of Wesbrook’s
due process rights. She expressed her concern for the rights of Wesbrook by
warning the prosecutors several times about the ethical and legal issues involved
in pursuing the solicitation investigation.
The state court’s rejection of Wesbrook’s due process claim is not contrary
to or an unreasonable application of clearly established federal law. Because the
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No. 08-70024
record does not support Wesbrook’s argument that the trial judge acted in a dual
role as both investigator and adjudicator, there is no basis for a presumption of
bias. The district court did not err by denying Wesbrook’s due process claim.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court
denying Wesbrook’s petition for federal habeas relief.
AFFIRMED.
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