Take the Fifth

Designated for publication

• Lucio v. Lumpkin, 16-70027, appeal from S.D. Tex.
  • 115 pages of opinions: Oldham, J., plurality op. of Court (joined by Owen, Jones, Smith, Ho, Duncan, Engelhardt, JJ.); Southwick, J., concurring (joined by Costa, Willett, JJ.); Higginbotham, J., dissenting; Elrod, J., dissenting (joined by Higginson, J.); Haynes, J., dissenting (joined by Higginbotham, Stewart, Dennis, Elrod, Graves, Higginson, JJ.); Higginson, J., dissenting (joined by Stewart, Elrod, JJ.); death penalty, habeas corpus
  • In an en banc decision, the Court split 7-3-7, with seven Judges on the “opinion of the Court,” three joining in a separate concurrence, and seven joining in an all-encompassing dissent (and three of those joining that dissent also filing their own dissents). The Court affirmed the denial of a § 2254 petition by a capital defendant who had been convicted and sentenced to death for the beating death of her two-year-old daughter, rejecting under AEDPA the petitioner’s argument that the state trial court denied her constitutional right to present a complete defense by excluding two expert witnesses from testifying at the guilt phase of her trial.
  • At the guilt phase, the district court had excluded expert testimony regarding the defendant’s psychological functioning and background, on the basis that it would only be relevant to the sentencing phase; and had excluded expert testimony from a social worker as to whether the defendant’s body language indicated that she was lying while on the telephone with her sister after her arrest, regarding whether she had beaten her daughter, on the basis that only a psychologist had the training in body language to render such an opinion.
  • Judge Oldham held that the panel opinion had been in error in determining that the petitioner’s complete-defense claim had been fairly presented to the state court, which had overlooked it, enabling the panel to engage in de novo review. Judge Oldham held that the federal court must afford a presumption that the state court did not overlook a fairly presented claim but that it adjudicated the merits of that claim. Judge Oldham held that, instead of the state court overlooking the petitioner’s complete-defense claim, the petitioner had instead shifted the focus of her claim from stage to stage and from court to court–that the state post-conviction court had actually ruled on her claim as presented. “That means, over the course of this litigation, different state courts adjudicated different claims.”
  • Judge Oldham held that the petitioner did not satisfy the narrow exceptions to AEDPA’s relitigation bar. As to her Due Process claim under Crane v. Kentucky, 476 U.S. 683 (1986), which would be a claim that the state court had erred in not allowing petitioner to attack the circumstances of her custodial interrogation, Judge Oldham held that the state court’s exclusion of the two experts’ testimony was not “contrary to” Crane under the AEDPA standard, because even petitioner’s counsel conceded during en banc questioning that Crane only “strongly supported” her argument but that no case was “on all fours.” He then held that the state court’s action was not “an unreasonable application” of Crane–that petitioner could not “show the state court was so wrong that the error was well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Judge Oldham noted that petitioner was not arguing that the state court had categorically prohibited her from introducing evidence to undermine her own inculpatory statements, but that it had merely exercised discretion as to certain of that evidence (namely, the experts’ testimony), which can rarely trigger the AEDPA exception. Judge Oldham found that applying the “unreasonable application” exception here would create a circuit-split with the Sixth, Eighth, Ninth, Tenth, and Eleventh circuits.
  • Judge Oldham then held that petitioner had not exhausted in her state post-conviction proceeding any non-Crane constitutional argument, i.e., that she was unconstitutionally deprived of the ability to present a complete defense. While the original panel opinion had held that petitioner had “flagged” the issue by citing to a Texas state court opinion that relied exclusively on the federal Constitution, Judge Oldham’s plurality opinion noted, “We disagree that ‘flagging’ a state-court case that in turn cites the U.S. Constitution is sufficient to exhaust a federal claim under 28 U.S.C. § 2254(b)(1).”
  • Judge Oldham then held that the complete defense claim did not show that the state court acted “contrary to” Chambers v. Mississippi, 410 U.S. 284 (1973), because petitioner’s counsel conceded in questioning “that the trial court excluded Villanueva and Pinkerman pursuant to ordinary rules of evidence concerning the admissibility of expert opinions—not pursuant to some idiosyncratic, arbitrary, archaic, and indefensible rule that prohibited her from impeaching her own witness.” He also held that petitioner could not meet the “unreasonable application” standard because “[t]he Supreme Court has never applied its complete defense cases to discretionary evidentiary decisions under rules that are themselves constitutional, like the rules of evidence involving the admissibility of expert opinions here.”
  • Judge Oldham’s plurality opinion took the panel decision to task for “whipsawing” the various stages of the state trial, direct appeal, and post-conviction records, “combin[ing] the facts in the Pinkerman affidavit (from state habeas) with the Crane claim (from direct appeal) to hold the exclusion of Pinkerman’s proffer (at trial) was arbitrary and ‘complete[ly] irrational[].'” Judge Oldham found that the only evidence properly before the state court, and therefore the federal habeas court, as to Pinkerman was his trial proffer, not his post-appeal affidavit, and that his proffer provided no discussion of testimony that would have provided a “basis upon which the state courts could have concluded that his testimony would have assisted the jury in understanding why Lucio made the statements that she did, why her demeanor was what it was, or whether she murdered her child.”
  • Judge Oldham then noted the presumption of correctness of factual findings by the state court, with regard to petitioner’s argument an unreasonable determination of facts in light of the evidence presented to the trial court, and petitioner’s heavy burden to rebut that presumption by clear and convincing evidence. He held that she failed to meet that burden because the post-appeal Pinkerman affidavit showed that her trial counsel failed to protect her rights by introducing a complete proffer of Pinkerman’s excluded testimony, that the trial court failed her through incorrect factual findings as to the scope of that testimony.
  • Judge Oldham then addressed the various dissenting opinions, characterizing them as being in disagreement with each other. “If the dissenters cannot agree amongst themselves, they cannot expect our court to reach the level of certitude necessary to grant habeas relief.” Judge Oldham opined that AEDPA precludes what he sees as the dissenters’ extensive relitigation of the facts. Judge Oldham also disagreed with the dissenters’ suggestion that his plurality opinion sua sponte raised various procedural bars not raised by the State, asserting that he only had addressed each of the various arguments raised by the petitioner at each stage of her case, which he wrote was required by a “hornbook law” approach. “The dissenters appear to believe that a state prisoner can raise different claims at different times with different facts in the state court, then smush them all together into a single claim in federal court. This belief has no basis in law. … [Lucio is precluded] from smushing together separate complete-defense claims to create a new one that amalgamates her factual and legal contentions at trial, on direct appeal, and in state habeas.” In rebutting the dissenters’ various Crane-based arguments, Judge Oldham noted, “Some might wish that Lucio litigated the case differently. But we are not free to condemn the state court for addressing Lucio’s claims as she presented them.”
  • Judge Southwick concurred on the basis that “current, clearly established Supreme Court authority falls short of permitting us to reject the state habeas court’s consideration of [the] issue” whether “the exclusion of testimony that might have cast doubt on the credibility of Lucio’s confession.” Noting that the basis for his concurrence is narrower than Judge Oldham’s decision, Judge Southwick argued that the crux of the decision is the applicability of Crane as the basis for a complete defense claim, but that “the interpretation of Crane that is necessary for relief in this case is not clearly established.”
  • Judge Southwick wrote: “One possible explanation of what was ‘clearly established’ by Crane, even if not with clarity, is that the decision invalidated the application of any evidentiary rule that creates a ‘blanket’ bar to a category of evidence and in the specific case prevented a defendant from presenting a meaningful defense. I agree with that sense of the Court’s opinion. Another possibility is that a federal court may grant relief based on an everyday evidentiary ruling, such as the one about relevance in this case, when that ruling prevented a defendant from introducing evidence that can be characterized as central to the defense. Based on Crane itself and on other caselaw, my view is that the opinion does not apply to a simple, discretionary, even if errant, evidentiary decision by a state-court judge. To make every evidentiary ruling a potential issue of constitutional dimension is beyond my understanding of Crane.”
  • Judge Higginbotham, writing separately to join the dissent by Judge Haynes, introduced his dissent by writing, “Dancing with words cannot mask the reality that we execute few with means and by metrics flowing from the pens of judges faithfully drawing upon fealty to an abstraction of our ‘federalism,’ one that screens the performance of poorly funded state judicial systems—themselves victims of political subscription to the death penalty while refusing to fund it. As the Court majority upholds the ending of one life at the hand of the state—Melissa Lucio’s, now on death row for twelve years—it perversely eases the slide to the end of the death penalty. It does so with a hawking, adversarial draw upon the jurisprudence of capital punishment with springs at every turn. This with a prosecution deeply flawed from its inception and leaving our hand as a failure at every level of government, shadowed by a threadbare narrative leaving backstage Melissa’s story, including the role in her life of Texas’s Department of Family and Protective Services, for good or naught. To these eyes, it need not and should not have happened, as the thoughtful dissenting opinions explain. I here add a few lines to bring to the fore Melissa’s life and her history with DFPS, specifically Child Protective Services, a history that frames this case.”
  • In her dissent, Judge Elrod framed the “lone issue in this case: Should a capital defendant be allowed to explain to a jury how to square her adamant profession of innocence today with her apparent confession of guilt yesterday?” In Judge Elrod’s view, “the state court failed to even identify the correct legal principle, let alone apply it, reasonably or otherwise.” Applying Crane, Judge Elrod opined, “Here, as in Crane, the State’s case relied principally on the defendant’s inculpatory statements to argue that she committed the crime. If the confession was false, then the State’s case crumbles. Also here, as in Crane, the trial court pointed to a rule of evidence to find the testimony inadmissible. The Crane Court unanimously held that trial courts commit constitutional error when they make such a determination.” Judge Elrod did not believe that this understanding of Crane went beyond the bounds set by AEDPA: “Federal habeas relief isn’t for correcting run-of-the-mill state law errors. But it is for correcting a state court’s evidentiary ruling that violates a defendant’s weighty interest in meaningfully presenting to the jury her version of the facts, particularly the circumstances surrounding her ‘confession,’ the State’s strongest piece of evidence.” Judge Elrod concluded, “Mariah suffered appalling abuse, including at the hands of her mother. Lucio is not without blame. But neither is she without rights. And the Sixth Amendment protects Lucio’s right to put on her defense. Sound criminal procedure must adhere to sacred first principles. The Supreme Court is rightly exacting in death penalty cases, and Lucio has a constitutional right to present a complete defense. In my view, the state court disregarded clearly established federal standards and ignored materially indistinguishable Supreme Court precedent.”
  • In Judge Haynes’s principal dissent, she noted, “It is ironic that the plurality opinion claims that the dissenting opinions disagree with each other when, in fact, the exact same number of judges join this dissenting opinion (7) as join the plurality opinion (7).” Indeed, the precedential effect of this en banc set of decisions will be very interesting to see play out in future cases.
  • To Judge Haynes, the issue of the petitioner’s entitlement to habeas relief is a simple one: “Is the conclusion that evidence refuting the core of the State’s case against the defendant is irrelevant an unreasonable application of clearly established Supreme Court precedent? Yes. Period. That is the crux of why the district court erred in rejecting Lucio’s complete defense claim.”
  • Judge Haynes wrote, of the approach of Judge Oldham’s plurality opinion, “[T]he plurality opinion drives down numerous backroads untraversed by the parties, basing its affirmance largely on issues that were never raised by either party and necessitating a lengthier response in this opinion. The plurality opinion makes procedural arguments on the State’s behalf that the State clearly (and intentionally) waived, ignoring the Supreme Court’s recent reminder that we are ‘passive instruments of government’ that should ‘decide only questions presented by the parties.'” She also addressed Judge Oldham’s accusation that the dissenters were relitigating facts: “This opinion does not engage in ‘relitigating’ facts or ‘weighing evidence. The reason to include a recitation of the facts is to understand why the absence of evidence is critical here. The jury was deprived of key evidence to weigh: that is the point.”
  • Judge Haynes argued that the state court had, under Crane, clearly deprived the petitioner of her right to present evidence attacking the credibility of her confession, an argument that had been properly litigated to the state court. “[T]he plurality opinion contends that Lucio whipsawed the state courts with her complete defense claim because Pinkerman never proffered at trial about the credibility of Lucio’s interrogation statements. But how could he have done so? The trial judge chose to leave and not hear the proffer, having already concluded that Pinkerman’s testimony was ‘irrelevant’ regardless.”
  • Judge Haynes then took issue with Judge Oldham’s opinion’s addressing of arguments that had been waived by the state–regarding whether the claim that Pinkerman’s testimony would go to undermine the credibility of the confession was raised to the state trial court, whether petitioner’s direct appeal claim was nearly identical to her complete defense claim, whether a procedural bar applied to claims in her state post-conviction claim that had been presented in her direct appeal, and whether Pinkerman’s post-trial affidavit could be considered. Judge Haynes observed, “As the Supreme Court recently reminded the circuit courts: ‘In our adversarial system of adjudication, we follow the principle of party presentation.’ Sineneng-Smith, 140 S. Ct. at 1579 (citation omitted). Thus, ‘in both civil and criminal cases, in the first instance and on appeal . . . , we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.’ Id. (quotation omitted). Departures from this principle are usually only warranted in criminal cases when doing so would ‘protect a pro se litigant’s rights.’ Id. (quotation omitted). This is not one of those cases; Texas is the largest state in our circuit and our second-biggest litigant. Its Attorney General’s office is chock-full of excellent attorneys who do nothing but habeas work. This court should not be making arguments on the State’s behalf, especially in a capital case.”
  • As to the merits of the complete defense claim, Judge Haynes opined, “The Supreme Court in Crane and Chambers made clear that a state court violates a defendant’s right to present a complete defense if (1) the excluded evidence was critical to the defense, Crane, 476 U.S. at 689, 691; Chambers, 410 U.S. at 302, and (2) the state court failed to provide a rational justification for its exclusion, Crane, 476 U.S. at 689, 690–91; Chambers, 410 U.S. at 296 & n.8, 302. Here, Pinkerman’s testimony was critical to Lucio’s defense because it was the centerpiece of her attempt to challenge the trustworthiness of her interrogation statement. Moreover, the state trial court provided no reason why the testimony was irrelevant and all indications are to the contrary, making its exclusion irrational.”
  • Judge Higginson also wrote a separate dissent, in addition to joining Judge Haynes’s dissent: “If we are to accept the death penalty as a practice, the Supreme Court has been exactingly clear that it is applied only to those whose cases leave no doubt that they are deserving of the ultimate punishment. I write separately for emphasis, an opportunity made possible by the comprehensiveness of Judge Haynes’s opinion, which I gratefully join, albeit with the caveat kindly noted in her third footnote. My emphasis is about what this case is, and what it is not. It is a death penalty case with one issue, namely Ms. Lucio’s effort to respond to the government’s insistence at trial that she confessed five hours into interrogation to killing her child. Legally, it is a case whose resolution should be controlled by the Supreme Court’s unanimous ruling in Crane v. Kentucky that the due process clause’s guarantee of an opportunity to be heard ‘would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence.’ … On the other hand, what this case is not is a criminal prosecution where the execution should proceed because, contrary even to Texas’s arguments, we say constitutional error was forfeited, waived, shifted, or, in the words of the court, ‘radically shifted,’ causing injury to ‘whipsaw[ed]’ and ‘sandbagg[ed]’ state courts.”

• Alvarado v. BP Exploration & Production, 19-30440, appeal from E.D. La.
  • per curiam (Higginbotham, Elrod, Haynes), Haynes, J., dissenting in part; BP spill, toxic torts
  • In the ongoing BP Deepwater Horizon spill litigation, affirming the dismissal with prejudice of two plaintiffs’ claims, and reversing and remanding the dismissal of three other plaintiffs’ claims, regarding response to MDL court’s show cause order to the members of the B3 cleanup/personal injury claim bundle to provide more particularized information regarding their claims and to address whether they were part of the Medical Benefits Class Action Settlement Class.
  • The Court held that the pretrial order at issue was not a discovery order, but a case management order. As to one dismissed plaintiff, the Court held there was a clear record of delay in complying with the PTO, and that it did “not appear that lesser sanctions would have served the best interests of justice here.” As to three other dismissed plaintiffs, the Court held there was no clear record of delay of contumacious conduct, and that there was a lack of aggravating factors to justify dismissal.
  • As to a fifth plaintiff, the Court held that there was no reasonable justification for his having missed the opt-out deadline from the Medical Benefits Settlement.
  • Judge Haynes dissented in part, opining that the majority failed to accord the “particular deference to the highly-involved district court’s views on issues like the propriety of a delay” to the three plaintiffs as to whom the majority reversed the dismissal with prejudice. Judge Haynes would have affirmed in full.

• Lefebure v. D’Aquilla, 19-30702, appeal from M.D. La.
  • Ho, J. (Owen, Graves, Ho), Graves, J., concurring (joined by Ho, J.); § 1983, standing
  • Reversing denial of motion to dismiss for lack of subject matter jurisdiction the claims against a District Attorney who failed to investigate and prosecute the plaintiff’s rapist, her cousin’s husband, an assistant warden at the state penitentiary, who raped the plaintiff multiple times at his house on the penitentiary grounds while the plaintiff had been evacuated there in the wake of the flooding of her home. Following the arrest of the rapist, the DA “(1) refused to collect and examine the rape kit; (2) made handwritten notes on the police report highlighting only purported discrepancies in Lefebure’s account of the events and presented that report to the grand jury; (3) declined to meet or speak with her about the alleged assaults before the grand jury proceeding; and (4) failed to call various witnesses who could have corroborated her version of the events.”
  • While the Court acknowledged that “[t]he allegations in this case are sickening,” it held that, under Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), “‘a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.'” The Court held that this precedent applied equally to a claim of failure to investigate as to a claim of failure to prosecute.
  • But the Court went on to observe: “Lefebure’s story is one that is shared by too many survivors who have been doubly victimized by the horrifying crime of sexual assault—first by their assailants, and then again by a criminal justice system that fails to enforce the laws on the books. … Moreover, Lefebure’s story is particularly appalling because her alleged perpetrator holds a position of significance in our criminal justice system as an assistant prison warden. We expect law enforcement officials to uphold the law, not to violate it—to protect the innocent, not to victimize them. … It is no doubt cold comfort to Lefebure, then, that the legal principles we are forced to apply today present no barrier to bringing her own suit against her assailant—which she reportedly has already done. For surely she expected to have the support of her state’s elected and appointed prosecutors, investigators, and other officials in her pursuit of justice. If her account is correct, then the system failed her—badly.”
  • Judge Graves concurred to “highlight the gravity of the allegations against the district attorney.” He concluded, “[I]f Lefebure’s allegations regarding the district attorney’s conduct are true, then his handling of the matter was substandard and less than ethical. And by (allegedly) engaging in this course of conduct, D’Aquilla, who occupies a position of public trust, may have caused inestimable harm to the public’s perception of the legal profession.” (Internal quotation marks and citation omitted).

• U.S. Department of Labor v. Five Star Automatic Fire Protection, LLC, 19-51119, appeal from W.D. Tex.
  • Willett, J. (Dennis, Higginson, Willett), Fair Labor Standards Act
  • Affirming district court’s judgment in favor of DOL awarding back pay, liquidated damages, and face-of-the-record violations of overtime payment requirements by the employer.
  • The Court applied the Mt. Clemens framework to hold that the employer’s bare-bones estimate by a company president as to hours worked by employees did not meet the company’s shifted burden to show the precise amount of hours worked, after six employees testified to fill in the gap left by the company’s insufficient record-keeping. “The adequacy of the records has to do with the evidence available to establish liability and damages, not the employer’s failure to conform to a certain recordkeeping standard.” The Court held that the employees’ testimony was sufficient and reliable, and based on first-hand knowledge, as to hours they and others worked. The Court then held that the district court correctly relied on that testimony: “Five Star mainly contests that the damages award was an approximated number. But that’s what Mt. Clemens allows when, as here, FLSA-required time records are incomplete.”

Unpublished

• U.S. v. Ward, 17-30243, appeal from E.D. La.
  • per curiam (Jolly, Elrod, Graves), habeas corpus
  • Vacating district court dismissal of § 2255 petition and remanding to district court to conduct an evidentiary hearing on petitioner’s ineffective assistance of counsel claim.

• Salomon v. Kroenke Sports & Entertainment, LLC, 19-10350, appeal from N.D. Tex.
  • per curiam (Jones, Smith, Elrod), jurisdiction
  • Holding appeal in abeyance and remanding for limited purpose of district court clarifying whether it intended to enter a final judgment as to claims against all defendants.

• Welsh v. Correct Care Recovery Solutions, 19-10825, appeal from N.D. Tex.
  • Higginson, J. (Stewart, Higginson, Wilson), prisoner suit
  • Affirming dismissal of § 1983 claims in large part, vacating in part, and remanding for further proceedings.

• Herschberger v. Lumpkin, 19-20481, appeal from S.D. Tex.
  • Higginson, J. (Stewart, Higginson, Wilson), prisoner suit
  • Vacating district court’s sua sponte dismissal of prisoner’s ADA claims, and remanding for further proceedings.

• Schertz v. U.S. Department of Agriculture, 19-51056, appeal from W.D. Tex.
  • per curiam (Haynes, Duncan, Engelhardt), standing
  • Affirming dismissal of municipality’s suit to enjoin closing of loan to provide wastewater treatment services.

• Arafat v. Wilkinson, 19-60638, petition for review of BIA order
  • per curiam (Barksdale, Southwick, Oldham), immigration
  • Dismissing in part and denying part Bangladeshi citizen’s petition for review of BIA affirmance of IJ denial of his application for asylum; withholding of removal; and relief under the Convention Against Torture.

• U.S. v. Meza, 20-10218, appeal from N.D. Tex.
  • per curiam (Haynes, Higginson, Oldham), criminal, sentencing
  • Denying petition for panel rehearing, withdrawing original opinion, and replacing it with new one affirming statutory-maximum sentence of 120 months for guilty-plea conviction of one count of possession, sale, and disposal of a stolen firearm; rejecting challenge that the district court improperly relied on a confidential source.

• U.S. v. Andrade-Lopez, 20-20023, appeal from S.D. Tex.
  • per curiam (Owen, Haynes, Costa), criminal, sentencing
  • Dismissing appeal of new sentence on remand, as waived under the appeal waiver.

• U.S. v. Zavala, 20-40133, appeal from S.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing, supervised release
  • Affirming in part sentence, but vacating in part and remanding to remove the option of “inpatient” from treatment program condition of supervised release.

• U.S. v. Mitchell, 20-40485, appeal from E.D. Tex.
  • per curiam (Clement, Elrod, Haynes), criminal, sentencing
  • Dismissing as frivolous appeal from denial of motion for sentence reduction.

• U.S. v. Hardee, 20-50480, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Affirming 365-month, within-guidelines sentence for conspiring to possess with intent to distribute 50 grams or more of methamphetamine.

• U.S. v. Quintanilla, 20-50552, appeal from W.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Affirming 24-month revocation sentence.