Brown v. Dretke

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
--------------------

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

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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

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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

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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

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 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

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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

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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

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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

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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

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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

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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.”).

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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.

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 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

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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

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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

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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

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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.”).

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 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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