Braziel v. Stephens

631 F. App'x 225
Court of Appeals for the Fifth Circuit·Decided November 30, 2015·No. No. 15-70018·Published

Opinion

PER CURIAM: *

In 1993, Douglas White was robbed and murdered; his wife, Lora, was also brutally raped during the same incident, but she survived. The crime remained unsolved for several years until petitioner Alvin Avon Braziel, Jr. was arrested for an unrelated crime, and his DNA was linked to the White murder. In 2001, Braziel was tried for capital murder, convicted, and sentenced to death. He now petitions this court for a certificate of appealability (“COA”) limited to the issue of the correctness of the district court’s ruling that his claim of ineffective assistance of counsel (“IAC”) for failure to investigate and present mitigating evidence during the sentencing phase was procedurally defaulted (the district court alternatively denied relief on the merits). To obtain a COA on a claim found procedurally defaulted, Braziel must show that jurists of reason would debate the correctness of the district court’s procedural ruling and that his petition sets forth a valid underlying claim of a denial of a federal constitutional right. Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Applying well-settled standards for determining COA applications in death penalty cases, we DENY Braziel’s COA application.

We are mindful that our inquiry is a threshold one; we do not adjudicate the merits of the parties’ arguments. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Further, any doubts about the issuance of a COA in a death penalty case should be resolved in favor of granting it. Gomez v. Quarterman, 529 F.3d 322, 326 (5th Cir.2008). At the same time, we have a task to do that requires assessment of whether the applicant’s cláim “deserve[s] encouragement to proceed further.”. Slack, 529 U.S. at 484, 120 S.Ct. 1595.

Braziel concedes that he did not exhaust the particular IAC claim at issue here. Ordinarily, that concession would be fatal to his claim. 28 U.S.C. § 2254(b). However, Braziel contends that jurists of reason would debate whether he has shown cause and prejudice to excuse the procedural default due to the alleged ineffectiveness of state habeas counsel, citing Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, — U.S.-, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). Simply stated, these cases hold that if the failure to raise a meritorious claim of trial counsel IAC in the state habeas proceeding was due to the IAC of state habeas counsel, then the procedural default is not a bar to proceeding in federal court.

IAC claims are judged under the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That case requires a showing that counsel’s performance was deficient and that such deficiency prejudiced the defendant. Id. The law accords deference to strategic choices made by counsel following a “reasonable” investigation and informed decision not to pursue other avenues. Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also Allen v. Stephens, 805 F.3d 617, 636-37 (5th Cir.2015) (,Strickland review is highly deferential to counsel’s strategic decisions).

[227] With these general standards in mind, we turn to Braziel’s case. Following his unsuccessful state habeas case, he filed a federal petition. Braziel contended that trial counsel should have presented as mitigating evidence his “poor educational and work history, that he suffered a head injury as a child, resulting in hospitalization, that he was physically abused by his stepfather, and that there was a history of mental illness in his family.” Braziel v. Stephens, No. 3:09-CV-01591, 2015 WL 3454115, at *6, 2015 U.S. Dist. LEXIS 69571, at *14 (N.D.Tex. May 28, 2015). The timeframe of his federal case overlapped with the development of the law in Martinez and Trevino. After Trevino was decided, the district court conducted an evidentiary hearing on the issue of state habeas counsel’s effectiveness. Following that hearing and briefing by the parties, the district court found “that Braziel has not shown that this claim comes within an exception to [the] procedural bar.” Id. at *6, 2015 U.S. Dist. LEXIS 69571 at *11. The district court noted that Braziel conceded that his claim would be procedurally barred but for the Martinez/Trevino exception. Id. at *5, 2015 U.S. Dist. LEXIS 69571 at *13. The court explained that Braziel had to demonstrate that his constitutional claim was “substantial” and that his state habeas counsel’s ineffectiveness was the reason the claim was not presented to the state court. Id. at *5, 2015 U.S. Dist. LEXIS 69571 at *14. The district court concluded that Braziel failed on both counts. Id. at *10, 2015 U.S. Dist. LEXIS 69571 at *28-29. The court thus concluded in the alternative that even if the claim were not procedurally barred, it should be denied on the merits. Id.

In deciding this issue, the district court considered exhibits and the evidence at the evidentiary hearing.1 The district court found that the state trial court had appointed qualified trial counsel with death penalty experience who used a qualified investigator. Id. at *6-7, 2015 U.S. Dist. LEXIS 69571 at *17. In turn, counsel found evidence of a childhood brain injury. Braziel termed this evidence “B.S.” and refused to be examined by a mental health expert. Id. at *7, 2015 U.S. Dist. LEXIS 69571 at *18. Over Braziel’s objection, his counsel sought out family members who were also hostile and uncooperative. Id. at *7, 2015 U.S. Dist. LEXIS 69571 at *19-20.2 “Trial counsel diligently sought to investigate and present a mitigation case at trial, and attempted to obtain evidence of Braziel’s family history and any mental health problems and abuse that may have existed, but were prevented from doing so because of the refusal of Braziel and his family to cooperate with their efforts.” Id. at *18, 2015 U.S. Dist. LEXIS 69571 at *21. Counsel thus pursued an (ultimately unsuccessful) alternative strategy of bringing parents. of Bra-ziel’s friend to testify that he was a good person whom they trusted to have in their [228] house. Id. at *7-8, 2015 U.S. Dist. LEXIS 69571 at *20. The district court concluded that Braziel’s claim that trial counsel should have sought funding for a mental health expert was belied by the fact that his current counsel also has not requested such funding. Id. at *8, 2015 U.S. Dist. LEXIS 69571 at *21. Even at this late date, the district court concluded there was nothing to show “whether such testimony would have been favorable to Bra-ziel.” Id. The district court concluded that trial counsel was not ineffective.

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Related

Gomez v. Quarterman
529 F.3d 322 (Fifth Circuit, 2005)
Gregory v. Thaler
601 F.3d 347 (Fifth Circuit, 2010)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Slack v. McDaniel
529 U.S. 473 (Supreme Court, 2000)
Miller-El v. Cockrell
537 U.S. 322 (Supreme Court, 2003)
Wiggins v. Smith, Warden
539 U.S. 510 (Supreme Court, 2003)
Schriro v. Landrigan
550 U.S. 465 (Supreme Court, 2007)
Martinez v. Ryan
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Rompilla v. Beard
545 U.S. 374 (Supreme Court, 2005)
Trevino v. Thaler
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