Take the Fifth: April 23, 2021 opinions

Designated for publication

  • Thomas v. Lumpkin, 17-70002, appeal from E.D. Tex.
    • Southwick, J. (Jones, Southwick, Higginson), Higginson, J., dissenting in part; habeas corpus, ineffective assistance of counsel
    • Affirming denial of federal habeas petition for death-row inmate, in ineffective assistance of counsel (“IAC”) issues.
    • The Court first held that it has jurisdiction, that the petitioner’s notice of appeal, filed after the denial of his timely filed Rule 59(e) motion, was timely because the Rule 59(e) motion cannot be considered instead to be a successive § 2254 petition.
    • The Court first held that there was no IAC in the failure to challenge the seating of three jurors who expressed opposition to interracial marriage (where the victims were the Black defendant’s white wife, their two children, and a step-child of the couple). The Court held that, even though the jurors had indicated on a juror questionnaire their opposition to interracial marriage, the juror who indicated the strongest feelings on the issue in his questionnaire then, during voir dire, expressly disclaimed that those feelings would affect his ability to fairly adjudge guilt or punishment; and the other two jurors indicated in more general fashion during voir dire that there was nothing that would impede them from viewing the evidence impartially and making a decision based solely on the evidence and no other factors. The Court then held that it was not objectively unreasonable for the district court to find that the trial attorneys had not rendered IAC in their decisions regarding how to question the jurors regarding potential racial bias: “The questionnaire answers could have been interpreted by counsel as not reflecting the kind of animosities to a black defendant that would motivate them to convict regardless of the evidence. Counsel also could have viewed further questioning of the potential jurors about their feelings on interracial relationships as likely to alienate jurors who would not be struck for cause. Counsel had experience with black defendants being found not guilty by all-white juries, and counsel’s actions can be interpreted as mindful of the potential negative effect of further questioning jurors in Grayson County on their racial biases.”
    • The Court then held that it was no objectively unreasonable for trial counsel to not question or challenge the competency of the defendant to stand trial after returning from the state prison system’s mental hospital unit following the initial determination that he was incompetent to stand trial, as the trial counsel attested that, upon defendant’s return, he was aware and capable of assisting in his defense and in understanding the proceedings against him.
    • The Court held that there was no IAC in trial counsel’s decisions to call one psychiatrist and then the government’s experts on the question of whether the defendant’s psychosis at the time of the murders was voluntarily-induced through ingestion of cough syrup or was organic; because trial counsel had called an expert of his own, even if there were multiple other experts who could have been called, and because trial counsel had a strategic basis (to defuse the government’s case) for calling the government’s experts.
    • The Court then held that the trial counsel’s decision as to who to call as witnesses in the punishment phase of the trial as part of the mitigation defense was a strategic decision based on months of preparation, rather than a dereliction of duty that rose to the level of IAC.
    • Judge Higginson dissented in part, dissenting from the majority’s conclusion that there was no error or IAC with regard to the seating of the three jurors who admitted to opposition to interracial marriage. “Where I disagree is with the majority’s compensating inference that Ulmer’s admitted-to racial bias was impliedly disclaimed by him as a ‘moral judgment’ he ‘could set aside … in determining guilt.’ Although Ulmer separately stated that he would not let the color of Thomas’s skin affect his judgment of him, the majority candidly acknowledges that he never retreated from his ‘beliefs about interracial marriage.’ ‘Belief’ is dignifying here. Ulmer admitted to racial animus—condemned by the unanimous Supreme Court one half century ago in Loving v. Virginia as ‘odious,’ ‘invidious’ and ‘repugnant’—here against the exact interracial circumstance of the offense Thomas was sentenced to death for.”


  • Alvarado-Ruiz v. Garland, 19-60697, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying Guatemalan citizens’ petition for review of BIA order dismissing their appeal of an order of the Immigration Judge (“IJ”) that denied asylum, withholding of removal, and protection under the Convention Against Torture.
  • Wease v. Ocwen Loan Servicing, LLC, 20-10476, appeal from N.D. Tex.
    • per curiam (Haynes, Graves, Willett), foreclosure
    • Affirming final judgment and denial of motion for reconsideration against plaintiff in claims arising from home foreclosure.
  • U.S. v. Zamora, 20-11086, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rodriguez, 20-50455, appeal from W.D. Tex.
    • per curiam (Jolly, Elrod, Graves), criminal, sentencing, supervised release
    • Affirming in part and vacating in part, remanding to conform the special conditions of the supervised release portion of defendant’s sentence to the oral pronouncement at sentencing.