Rudd v. Johnson

REVISED JULY 18, 2001

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-11173

EMERSON EDWARD RUDD,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR OF THE TEXAS DEPARTMENT
OF CRIMINAL JUSTICE,

Respondent-Appellee.

Appeal from the United States District Court
For the Northern District of Texas
June 28, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Applicant-Appellant Emerson Edward Rudd, a Texas death row

inmate, whose petition for habeas corpus relief and request for a

Certificate of Appealability (“COA”) were both denied by the

federal district court, now seeks a COA from this Court pursuant to

28 U.S.C. § 2253(c)(2). For the reasons set forth below, we deny

Rudd’s application for a COA.
 I. BACKGROUND

On the evening of September 2, 1988, Rudd and three others

robbed a Captain D’s restaurant in Dallas, Texas. During the

course of the robbery, Rudd intentionally shot one of the

restaurant’s managers when that manager told Rudd that Captain D’s

had no large amounts of money. The manager died later that night

at a local hospital. After robbing the Captain D’s, Rudd and his

cohorts committed another aggravated robbery at another restaurant.

Rudd was ultimately tried and convicted of capital murder in

state court. He was sentenced to death, and the Texas Court of

Criminal Appeals affirmed his conviction on direct appeal. Rudd

filed a timely post-conviction writ of habeas corpus with the trial

court under Article 11.071 of the Texas Code of Criminal Procedure.

The trial court entered findings of fact and conclusions of law

adverse to Rudd, which the Court of Criminal Appeals adopted.

Thereafter, Rudd filed his federal petition for writ of habeas

corpus on May 1, 1998. The district court referred the matter to

a magistrate judge. On September 8, 2000, the district court

adopted the magistrate judge’s report and recommendation that

Rudd’s petition be denied. Rudd filed his notice of appeal and

motion for a COA on October 12, 2000. The district court denied

the COA request on November 13, 2000. As a result, Rudd filed the

instant application for a COA on January 3, 2001.

II. DISCUSSION

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 Rudd filed his petition for a writ of habeas corpus on May 1,

1998. Consequently, it is governed by the provisions of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh

v. Murphy, 117 S. Ct. 2059 (1997). Under the AEDPA, before an

appeal from the dismissal or denial of a § 2254 habeas petition can

proceed, the petitioner must first obtain a COA, which will issue

“only if the applicant has made a substantial showing of the denial

of a constitutional right.” See 28 U.S.C. § 2253(c)(2). An

applicant makes a substantial showing when he demonstrates that his

application involves issues that are debatable among jurists of

reason, that another court could resolve the issues differently, or

that the issues are suitable enough to deserve encouragement to

proceed further. See Clark v. Johnson, 202 F.3d 760, 763 (5th

Cir.) (citing Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.

1996), overruled in part on other grounds, Lindh, 117 S. Ct. 2059),

cert. denied, 121 S. Ct. 84 (2000). Specifically, if a district

court rejects a prisoner’s constitutional claims on the merits, the

applicant must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable

or wrong. See Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). If

the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim,

then a COA should issue when the prisoner shows, at least, that

jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling. Id. But because the

present case involves the death penalty, any doubts as to whether

a COA should issue must be resolved in Rudd’s favor. See Clark,

202 F.3d at 764.

Unless rebutted by clear and convincing evidence, a state

court’s determination of a factual issue shall be presumed to be

correct. See 28 U.S.C. § 2254(e)(1); Davis v. Johnson, 158 F.3d

806, 812 (5th Cir. 1998). The presumption is particularly strong

when the state habeas court and the trial court are one and the

same. See Clark, 202 F.3d at 764.

In his application, Rudd presents three issues for which he

seeks a COA: 1) whether he was denied due process when he was not

permitted access to the State’s file; 2) whether he was denied his

constitutional rights by the trial court’s jury instructions at the

punishment phase; and 3) whether he was denied the effective

assistance of counsel by his trial counsel’s alleged failure to

elicit crucial mitigating testimony from two witnesses at the

punishment stage of trial. We now address those issues in light of

the standards for the issuance of a COA.

A. Access To The State’s Case File

Rudd first argues that he was denied due process when he was

not permitted access to the State’s case file during his state

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habeas proceeding. Subsumed within this argument is another claim

that the Court of Criminal Appeals’ routine denial of motions to

compel without prejudice to file in trial court effectively denies

equal protection of the laws and creates unequal results because

individual trial courts now have the discretion to determine

whether defendants should have access to the State’s case files.

We cannot grant Rudd a COA on this two-pronged issue. A long

line of cases from our circuit dictates that “infirmities in state

habeas proceedings do not constitute grounds for relief in federal

court.” Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.) (quoting

Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997)) (internal

quotation marks omitted), cert. denied, 120 S. Ct. 22 (1999);

Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995); Duff-Smith v.

Collins, 973 F.2d 1175, 1182 (5th Cir. 1992); Millard v. Lynaugh,

810 F.2d 1403, 1410 (5th Cir. 1987); see also Vail v. Procunier,

747 F.2d 277, 277 (5th Cir. 1984). That is because an attack on

the state habeas proceeding is an attack on a proceeding collateral

to the detention and not the detention itself. Nichols, 69 F.3d at

1275. Rudd does not question the unavailability of the State’s

case file during the trial, but rather, its unavailability during

his state habeas proceeding. Accordingly, his challenge is merely

an attack on infirmities in the state habeas proceeding and is

foreclosed by our circuit precedent. Hence, Rudd has not made a

substantial showing of the denial of a constitutional right, and

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his application for a COA on his first issue is denied.

B. Jury Instructions

In his second issue for which he seeks a COA, Rudd argues that

he was denied his constitutional rights by the trial court’s jury

instructions at the punishment phase.1 This claim is also two-

headed. First, Rudd maintains that the jury instructions violated

the Eighth Amendment doctrine of heightened reliability because

they did not provide the jury with any guidance about the meaning

of a life sentence and, therefore, allowed the jury to speculate

about the length of such a sentence. Second, he contends that the

jury instructions violated his due process rights. According to

Rudd, his entire argument that he did not pose a future danger and,

thus, should not be executed was premised on the State’s alleged

failure to present evidence suggesting that he would be a danger in

prison society. But Rudd charges that the trial court’s jury

instructions induced the jury to speculate about Rudd’s parole

eligibility. As a result, the future dangerousness issue extended

to free society, and Rudd contends that he should have been

afforded the opportunity to rebut the State’s argument by showing

the jury that he would not have been eligible for parole for at

least fifteen years.

1
According to Rudd, the trial court’s failure to instruct on
parole eligibility, i.e., define “life in prison,” spurred
speculation on the part of the jury. In addition, he maintains
that the trial court’s definition that society “also includes the
Texas Department of Corrections,” induced the jury to include free
society and to speculate about parole.

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 To support his claim, Rudd principally relies on Simmons v.

South Carolina, 114 S. Ct. 2187 (1994). In Simmons, a death

penalty case, a plurality of the Supreme Court observed that “where

the defendant’s future dangerousness is at issue, and state law

prohibits the defendant’s release on parole, due process requires

that the sentencing jury be informed that the defendant is parole

ineligible.”2 Id. at 2190. It, however, did not delve into

situations, such as here, where parole may be available. Id. at

2196. A compelling reason for the plurality’s holding was that

“[t]he Due Process Clause does not allow the execution of a person

‘on the basis of information which he had no opportunity to deny or

explain.’” Id. at 2192. More precisely, the plurality was

concerned that the jury instructions in Simmons created a mistaken

understanding on the part of the jury that it could only sentence

the defendant to death or sentence him to a limited period of

incarceration. Id. at 2193. As that was a false choice, the

defendant had to have the opportunity to deny or explain his

situation by proffering an instruction that he was ineligible for

parole. Id.

Here, the jury did not confront a false choice that needed to

be denied or explained. Under Texas law, Rudd would have been

2
This quote is from the plurality opinion by Justice Blackmun,
but Justice O’Connor’s concurrence, in which Chief Justice
Rehnquist and Justice Kennedy joined, also accepts this holding.
Simmons, 114 S. Ct. at 2201.

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eligible for parole after serving fifteen years in prison.

Contrary to Simmons, the jury would not have been mistaken if it

believed that it could only sentence Rudd to death or to a limited

period of incarceration. And a jury instruction on Rudd’s parole

eligibility would not have denied or explained the State’s argument

that Rudd was a future danger to free society.3 Unlike in Simmons,

where the defendant was ineligible for parole and had virtually no

chance of being released from prison, a jury instruction in the

instant case would not have explicitly denied or rebutted the

State’s argument that Rudd was a future danger to free society

because Rudd would have been eligible for parole. Although Rudd

believes that information about his parole eligibility after

fifteen years could have made a great deal of difference, “how the

jury’s knowledge of parole availability will affect the decision

whether or not to impose the death penalty is speculative.”

Simmons, 114 S. Ct. at 2196. In fact, a jury instruction on parole

eligibility could just as well have reinforced the State’s argument

about future dangerousness because Rudd would have been eligible

for parole at the fairly young age of thirty-three.

Likewise, we found Simmons unavailing in a case similar to

Rudd’s. See Miller v. Johnson, 200 F.3d 274 (5th Cir.), cert.

denied, 121 S. Ct. 122 (2000). In Miller, the defendant argued

3
Interestingly, Rudd’s appellate brief states that his trial
counsel virtually conceded that Rudd would be a danger in free
society.

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that, “had the jury been informed that a life sentence would

require him to spend fifteen calendar years in prison before

becoming eligible for parole, a member of the panel could have been

convinced that he would not pose a future danger.” Id. at 290. We

noted that “Simmons requires that a jury be informed about a

defendant’s parole ineligibility only when (1) the state argues

that a defendant represents a future danger to society, and (2) the

defendant is legally ineligible for parole.” Id. at 290. (emphasis

added). Because Simmons is distinguishable and because Rudd fails

to cite any other cases directly supporting his position, we return

to our long-held precedent that “‘neither the due process clause

nor the Eighth Amendment compels instructions on parole in Texas.’”

Id. at 291 (quoting Johnson v. Scott, 68 F.3d 106, 112 (5th Cir.

1995)). Accordingly, we see no substantial showing of the denial

of a constitutional right based on the trial court’s jury

instructions at the punishment phase and deny Rudd’s request for a

COA on his second issue.

C. Ineffective Assistance Of Counsel

Rudd’s final issue for which he seeks a COA concerns his trial

counsel’s alleged failure to elicit crucial mitigating testimony

from two witnesses at the punishment stage of trial. Specifically,

he charges that his counsel failed to elicit from his cousin

Tamekka Whitmore and his sister Olivia Rudd certain testimony about

his father’s improprieties, including raping and abusing his

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mother, stealing from the family, and being found in bed with

another woman. Because of that purported failure, Rudd argues that

his counsel was ineffective under the standard announced in

Strickland v. Washington, 104 S. Ct. 2052 (1984).4

To satisfy the Strickland standard, a defendant must show 1)

that his counsel’s performance was deficient and 2) that the

deficient performance prejudiced his defense. Id. at 2064. Having

reviewed pertinent portions of the record and in light of the

deferential standard of review accorded the state habeas court’s

findings, we conclude that Rudd has not made out a substantial

showing that his Sixth Amendment right to counsel was violated.

Several individuals testified on behalf of Rudd at the

punishment phase, including Whitmore and Olivia Rudd. Both of

those women recounted how Rudd came from a disadvantaged background

and had suffered physical abuse from his father. Moreover,

testimony at trial indicated that Rudd grew up in an environment

full of drugs, prostitution, and violence. Thus, Rudd’s counsel

devoted a substantial amount of attention and resources to draw a

picture of Rudd’s impoverished childhood and inadequate parenting,

which are the same things that Whitmore’s and Olivia Rudd’s

testimony would have supported.

4
Rudd further asserts that his counsel’s failure to present this
mitigating evidence prevented appellate review of whether Article
37.071 of the Texas Code of Criminal Procedure was unconstitutional
as applied to him.

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 Here, the fact that not every item of so-called mitigating

evidence was not provided to the jury does not make Rudd’s

counsel’s performance deficient, especially when there is no proof

that either Whitmore or Olivia Rudd told Rudd’s counsel everything.

Rudd responds that we should not place the onus on the witnesses

for failing to come forth with all of the mitigating evidence.

According to him, a witness does not choose what she will testify

to, but only answers questions propounded by the counsel; hence,

the burden should be on the counsel to ask the appropriate

questions and to elicit information in support of the defendant’s

case. But when the record undeniably reveals that trial counsel

attempted to elicit information similar to that which was withheld

and the witnesses do not testify to those other items or fail to

disclose them, we cannot fault trial counsel for not providing

every piece of evidence remotely connected to mitigation.

Furthermore, Rudd has not substantially shown that prejudice

resulted from his counsel’s performance. The substance of

Whitmore’s and Olivia Rudd’s new testimony was essentially

presented to the jury. They would have been cumulative and would

not necessarily have resulted in a life sentence rather than a

death sentence.

As Rudd’s counsel’s performance was neither deficient nor

prejudicial, we deny a COA on his third and final issue.

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 III. CONCLUSION

Rudd has failed to make a substantial showing of the denial of

a constitutional right with respect to the three issues raised in

his application for a COA; therefore, his application is DENIED.

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