Case: 11-70012 Document: 00511885201 Page: 1 Date Filed: 06/12/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit F I L E D June 12, 2012 No. 11-70012 Lyle W. Cayce Clerk ARTHUR BROWN, JR., Petitioner - Appellant v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee Appeal from the United States District Court for the Southern District of Texas Before JOLLY, GARZA, and STEWART, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Arthur Brown, Jr. was convicted and sentenced to death in Texas for the 1992 murders of Jessica Quinones, Jose Guadalupe Tovar, Frank Farias, and Audrey Brown. He has applied for a certificate of appealability (“COA”) from this Court so that he can appeal the district court’s denial of federal habeas relief on his claim that his trial counsel rendered ineffective assistance by failing to adequately investigate and present mitigating evidence at the punishment phase of his trial. After reviewing the record and the briefs, we conclude that reasonable jurists would not find debatable the district court’s conclusion that the state court did not unreasonably apply clearly established federal law on the Case: 11-70012 Document: 00511885201 Page: 2 Date Filed: 06/12/2012 No. 11-70012 record before it, and that Brown’s claims are not adequate to deserve encouragement to proceed further. We therefore DENY Brown’s request for a COA. I. Rachel Tovar and her husband, Jose, were drug dealers in Houston, Texas. They supplied marijuana and cocaine to other drug dealers, including Brown and his associates, who were from Tuscaloosa, Alabama. On June 19, 1992, Brown traveled from Tuscaloosa to Houston, accompanied by Marion Dudley, Antonio Dunson, and Maliek Travis. They arrived at the Houston residence of Brown’s sister, Grace, early in the morning on June 20. That evening, six people were bound and shot in the head at Rachel Tovar’s residence in Houston. Four of them died: Jessica Quinones, the pregnant common-law wife of Rachel Tovar’s son, Anthony; Jose Guadalupe Tovar, Rachel Tovar’s husband; Audrey Brown, one of Rachel Tovar’s neighbors; and Frank Farias, Rachel Tovar’s son. Rachel Tovar and Alexander Camarillo, also known as Nicolas Cortez Anzures, survived and testified at Brown’s trial. Both of them identified Brown and Dudley, whom Tovar knew, from previous drug deals, by the nicknames of “Squirt” and “Red,” as the shooters.1 Three of Brown’s sisters – Serisa Ann Brown, Grace Brown, and Carolyn Momoh – testified as witnesses for the State at the guilt-innocence phase. All three of them claimed that the police and prosecutors had threatened them in order to coerce their cooperation. Carolyn Momoh was held in contempt and incarcerated at one point during the trial for invoking the Fifth Amendment, despite the fact that she had been given immunity. After she eventually testified, she was convicted of perjury. The jury convicted Brown of capital murder. 1 Dudley was convicted of capital murder and sentenced to death. He was executed in January 2006. Dunson was convicted of capital murder and sentenced to life imprisonment. 2 Case: 11-70012 Document: 00511885201 Page: 3 Date Filed: 06/12/2012 No. 11-70012 At the punishment phase of Brown’s trial, the State re-offered all of the evidence presented at the guilt-innocence phase. The State also presented evidence that Brown had committed an armed robbery in Tuscaloosa four years earlier; that he had extorted other prisoners while in the Harris County Jail awaiting trial; and that he had assaulted a deputy at the Harris County Jail. The defense presented Brown’s school records, which reflected that he had a low IQ, suffered from learning disabilities, and performed poorly in special education classes.2 The defense also presented the testimony of a law professor that convicted, incarcerated offenders become less violent as they age. The jury answered affirmatively the special punishment issues on future danger and whether Brown actually caused the deaths, intended to kill the victims, or anticipated that human life would be taken. It answered negatively the special punishment issue on mitigating circumstances. The trial court sentenced Brown to death. The Texas Court of Criminal Appeals affirmed Brown’s conviction and sentence on direct appeal. Brown v. State, No. 71,817 (Tex. Crim. App. Dec. 18, 1996) (unpublished). The Supreme Court denied certiorari. Brown v. Texas, 522 U.S. 940 (1997).3 In his state habeas application, filed in March 1998, Brown claimed that his counsel rendered ineffective assistance at the punishment phase and that the state habeas court deprived him of due process and an impartial tribunal because the court denied adequate funding to develop his claims and refused to provide full and fair consideration of the claims. 2 During deliberations at the punishment phase, the jury sent out a note asking to see Brown’s school records. 3 Four Justices dissented from the denial of certiorari on Brown’s claim regarding parole eligibility. 3 Case: 11-70012 Document: 00511885201 Page: 4 Date Filed: 06/12/2012 No. 11-70012 On May 11, 2006, the trial court ordered the parties to submit proposed findings of fact and conclusions of law. Brown filed written objections to the state court’s inadequate fact-finding procedures and requested a hearing. The court conducted a telephonic hearing, but deferred ruling. On August 31, 2007, the state habeas trial court signed the State’s proposed findings of fact and conclusions of law, and recommended that post-conviction relief be denied. The Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions, except those relating to his claims that his state habeas counsel was rendered ineffective as a result of the denial of additional investigative funds, but nevertheless denied relief on all of his claims. Ex parte Brown, 2008 WL 2487788 (Tex. Crim. App. June 18, 2008) (unpublished). Brown filed a petition for federal habeas relief in January 2009. On February 28, 2011, the district court, in a thorough and well-reasoned opinion, denied Brown’s petition for federal habeas relief and denied his application for a COA. Brown v. Thaler, No. H-09-74 (S.D. Tex. Feb. 28, 2011) (unpublished). Brown filed a motion for a new trial, which the district court denied on May 9, 2011. II. Brown seeks from this Court a COA to appeal the denial of habeas relief on his ineffective assistance claim. To obtain a COA, Brown must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, . [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), “or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citation omitted). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has 4 Case: 11-70012 Document: 00511885201 Page: 5 Date Filed: 06/12/2012 No. 11-70012 been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338. In making the decision whether to grant a COA, this court’s examination is limited to a “threshold inquiry,” which consists of “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 327, 336. The court cannot deny a COA because it believes the petitioner ultimately will not prevail on the merits of his claims. Id. at 337. On the other hand, “issuance of a COA must not be pro forma or a matter of course.” Id. “While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner’s favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (brackets, internal quotation marks, and citations omitted). Before turning to Brown’s ineffective assistance claim, we first address his contention that the district court should have considered alleged deficiencies in the state habeas proceedings in determining whether the state court’s decision was reasonable. A. In the state habeas proceedings, Brown requested and received $2,500 for the services of an investigator, at a rate of $50 per hour. Brown’s state habeas counsel retained Lisa Milstein, a private investigator and mitigation specialist. In addition to interviewing witnesses and examining evidence in Houston, Milstein traveled to Tuscaloosa, Alabama, and interviewed Brown’s family and friends. She obtained an affidavit from Brown’s mother in which the mother described her consumption of alcohol during her pregnancy with Brown. Milstein did not obtain affidavits from anyone else. Milstein ran out of money and returned to Houston without completing her investigation. Brown sought additional funds from the Texas Court of Criminal Appeals. Milstein estimated that it would have cost an additional $2,700 to complete her 5 Case: 11-70012 Document: 00511885201 Page: 6 Date Filed: 06/12/2012 No. 11-70012 investigation. The Court of Criminal Appeals authorized reimbursement of Milstein’s expenses that she incurred in excess of the initial $2,500, but refused to provide additional funds for further investigation. In support of Brown’s state habeas application, Milstein submitted an affidavit in which she described the investigation that she had conducted.