     Case: 11-70012   Document: 00511885201      Page: 1   Date Filed: 06/12/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                     FILED
                                                                    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
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                                    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.

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       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.

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        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

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                                  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

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                                  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. She
also set out additional information she wanted to develop, including verification
of Brown’s mother’s drinking, investigation of the possibility that Brown suffered
from Fetal Alcohol Spectrum Disorder, corroboration of Brown’s sisters’ accounts
of police manipulation, investigation of the possibility that drug rivals may have
been involved in the murders, and an interview with Brown’s common-law wife
and mother of his children. According to Milstein, interviews must be conducted
in person rather than by telephone so that trust and rapport between the
investigator and witnesses can be developed. She further stated that repeat
interviews were necessary in order to obtain affidavits.
      The state habeas court concluded that Brown’s claim that the denial of
additional investigative funds rendered habeas counsel ineffective was not
cognizable in state habeas proceedings. Although the Texas Court of Criminal
Appeals did not adopt the trial court’s findings and conclusions with respect to
Brown’s claims of inadequate funding, it denied relief on Brown’s claim.
      In his federal habeas petition, Brown raised several claims alleging
constitutional violations based on the state court’s refusal to provide additional
funds for investigation. Although he acknowledged that those claims could not
support a grant of federal habeas relief, he nevertheless asserted that the
allegedly inadequate and unfair state court procedures were relevant to the
district court’s determination of the reasonableness of the state court’s decision.
He argued that the district court should review his ineffective assistance claim
de novo and allow him an opportunity to develop the factual basis for his claim
in federal court.

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      In his COA request in this Court, Brown argues that the district court
failed to address his contention that inadequate funding should be considered
in determining the reasonableness of the state court’s decision. Brown asserts
that he diligently sought to develop his claim in state court, but was prevented,
as a result of his indigence, from completing the necessary out-of-state
investigation.   He argues that this denial of funding and the resulting
inadequate investigation rendered the fact-finding process in this case seriously
suspect. Finally, in a footnote, Brown asserts that in determining whether a
claim has been “adjudicated on the merits,” this court should consider the
procedural fairness and whether the state court has provided a legitimate forum
to decide important constitutional claims.
      Contrary to Brown’s assertion, the district court considered and rejected
his contention. The district court held that a full and fair hearing in state court
is not a prerequisite for deference to a state court under either 28 U.S.C. §
2254(d), or under § 2254(e)(1). The district court further held that the state
procedures were not inadequate, stating:
             The Court finds that Brown has not shown that the state
      habeas process inadequately allowed for investigation into his
      background. State habeas counsel requested a reasonable amount
      of funds to investigate Brown’s background. The Court of Criminal
      Appeals approved all the funds initially requested. The approved
      expenditures only resulted in one piece of admissible evidence, but
      many unsubstantiated allegations. Brown fails to explain why Ms.
      Milstein could not have acquired an affidavit to substantiate the
      hearsay statements she included in her report. He has not shown
      why the initial expenditure of funds was insufficient to secure
      additional affidavits from Brown’s sisters as Ms. Milstein had with
      his mother. Brown’s arguments would require the Court not only to
      supervise the expenditure of state funds, but superintend the efforts
      of a state-funded investigator. A review of the state process does not
      give much confidence that additional funds would have resulted in
      evidence admissible in court, or even meaningfully supporting his
      claim.


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Brown v. Thaler, No. H-09-74 (Feb. 28, 2011), at 17-18.
       Similarly, Brown has failed to persuade us that reasonable jurists would
find debatable the district court’s conclusion.4 We now turn to consider Brown’s
request for a COA on his ineffective assistance of counsel claim.
                                              B.
       In his COA application, Brown argues that his trial counsel rendered
ineffective assistance by failing to investigate readily available mitigating
evidence concerning his difficult childhood and troubled background, including
his mother’s alcohol abuse. He asserts that trial counsel should have retained
mental health experts to evaluate his low intelligence and explore whether he
suffers from Fetal Alcohol Spectrum Disorder.
       Because Brown’s ineffective assistance of counsel claim was adjudicated
on the merits by the Texas Court of Criminal Appeals, the district court’s
consideration of Brown’s claim was governed by 28 U.S.C. § 2254(d). That
section provides:
             An application for a writ of habeas corpus on behalf of a
       person in custody pursuant to the judgment of a State court shall
       not be granted with respect to any claim that was adjudicated on
       the merits in State court proceedings unless the adjudication of the
       claim–

            (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




       4
        The Supreme Court’s recent decision in Martinez v. Ryan, 2012 WL 912950 (U.S. Mar.
20, 2012), does not assist Brown’s argument. In Martinez, the Court held that “[i]nadequate
assistance of counsel at initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.” 2012 WL 912950, at
*5. The Texas Court of Criminal Appeals did not find Brown’s ineffective assistance claim to
be procedurally defaulted, but instead considered the claim on its merits.

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            (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).
      Brown’s ineffective assistance of counsel claim is governed by the clearly
established law set forth in Strickland v. Washington, 466 U.S. 668 (1984). To
have been entitled to relief from the Texas Court of Criminal Appeals, Brown
had to
      show that counsel’s performance was deficient. This requires
      showing that counsel made errors so serious that counsel was not
      functioning as the “counsel” guaranteed the defendant by the Sixth
      Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that
      counsel’s errors were so serious as to deprive the defendant of a fair
      trial, a trial whose result is reliable. 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.
Strickland, 466 U.S. at 687.
      “[T]he proper standard for attorney performance is that of reasonably
effective assistance.”     Id.   “[T]he defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
             Judicial scrutiny of counsel’s performance must be highly
      deferential. It is all too tempting for a defendant to second-guess
      counsel’s assistance after conviction or adverse sentence, and it is
      all too easy for a court, examining counsel’s defense after it has
      proved unsuccessful, to conclude that a particular act or omission of
      counsel was unreasonable.         A fair assessment of attorney
      performance requires that every effort be made to eliminate the
      distorting effects of hindsight, to reconstruct the circumstances of
      counsel’s challenged conduct, and to evaluate the conduct from
      counsel’s perspective at the time. Because of the difficulties
      inherent in making the evaluation, a court must indulge a strong
      presumption that counsel’s conduct falls within the wide range of
      reasonable professional assistance; that is, the defendant must
      overcome the presumption that, under the circumstances, the

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         challenged action might be considered sound trial strategy. There
         are countless ways to provide effective assistance in any given case.
         Even the best criminal defense attorneys would not defend a
         particular client in the same way.
Id. at 689 (internal quotation marks and citations omitted).
         With respect to the duty to investigate, which was at issue in Strickland
and is also the focus of Brown’s claim,
         strategic choices made after thorough investigation of law and facts
         relevant to plausible options are virtually unchallengeable; and
         strategic choices made after less than complete investigation are
         reasonable precisely to the extent that reasonable professional
         judgments support the limitations on investigation. In other words,
         counsel has a duty to make reasonable investigations or to make a
         reasonable decision that makes particular investigations
         unnecessary. In any ineffectiveness case, a particular decision not
         to investigate must be directly assessed for reasonableness in all the
         circumstances, applying a heavy measure of deference to counsel’s
         judgments.
Id. at 690-91. See also Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v.
Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005). The
Supreme Court recently stated that these three post-Strickland cases, each of
which granted relief on ineffective assistance claims, did not establish “strict
rules”     for   counsel’s   conduct    “[b]eyond     the   general   requirement       of
reasonableness.” Cullen v. Pinholster, 131 S. Ct. 1388, 1406-07 (2011). “An
attorney need not pursue an investigation that would be fruitless, much less one
that might be harmful to the defense.” Harrington v. Richter, 131 S. Ct. 770,
789-90 (2011). Brown’s counsel were “entitled to formulate a strategy that was
reasonable at the time and to balance limited resources in accord with effective
trial tactics and strategies.” Id. at 789.
         To demonstrate prejudice, Brown
         must show that there is a reasonable probability that, but for
         counsel’s unprofessional errors, the result of the proceeding would


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                                  No. 11-70012

      have been different. A reasonable probability is a probability
      sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694. “The likelihood of a different result must be
substantial, not just conceivable.” Richter, 131 S. Ct. at 792 (citation omitted).
      “When a defendant challenges a death sentence, . . . the question is
whether there is a reasonable probability that, absent the errors, the
sentencer—including an appellate court, to the extent it independently reweighs
the evidence—would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695.
“In making this determination, a court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge or jury.” Id. When
considering the prejudice prong, the state habeas court’s task was to “evaluate
the totality of the available mitigation evidence–both that adduced at trial, and
the evidence adduced in the habeas proceeding in reweighing it against the
evidence in aggravation.” Williams v. Taylor, 529 U.S. 362, 397-98 (2000).
      For the district court, “[t]he pivotal question [was] whether the state
court’s application of the Strickland standard was unreasonable. This [question]
is different from asking whether defense counsel’s performance fell below
Strickland’s standard.” Richter, 131 S. Ct. at 785. “When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. at 788. “A state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court’s decision.” Id. at 786 (internal
quotation marks and citation omitted).




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                                        C.
      With these legal principles in mind, it is now time to consider the evidence
presented at trial, and the evidence that Brown claims should have been
discovered and presented by his trial counsel.
      As we have already noted, at the punishment phase of Brown’s trial, the
State re-offered all of the evidence it had presented at the guilt-innocence phase.
This evidence included that Brown had purchased marijuana and cocaine from
Rachel Tovar and her husband in the past; that he and his accomplices went to
Rachel Tovar’s residence on June 20 to buy drugs; that they bound her and five
others who were in her house with strips of sheets that Brown had cut with a
knife; and that they placed the victims in various rooms in the house and then
shot each one of them in the head, killing four of the six. The deceased included
Rachel Tovar’s husband, son, nearly nine-months pregnant daughter-in-law, and
a neighbor. 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.
      Brown’s trial counsel, Patricia Saum and Tom Moran, called only one
witness at the punishment phase: Dr. Peter Lewis, a professor at South Texas
College of Law. Dr. Lewis, who has a Ph.D. in criminology, explained the
concept of “maturational reform,” the theory that youthful offenders become less
violent as they age. He testified that maturational reform has a greater impact
on violent offenders than non-violent offenders and that a structured
environment, such as custody, seemed to be an important factor in the decrease
in violence. Trial counsel also introduced into evidence Brown’s school records,
which showed that he was in special education classes; that he repeated the
ninth grade; that he scored 70 on an IQ test in the third grade, 88 in the sixth



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                                 No. 11-70012

grade, and 87 in the ninth grade; and that teachers reported that he was
sometimes overactive physically, impulsive, and distractible.
      At the bench, trial counsel put on the record that she had asked Brown’s
mother to stay and testify, but that Brown had told his mother to go home
because he did not want to put her through testifying. Brown stated on the
record that he did not want to call his mother as a witness. The prosecutor
pointed out that Brown’s sister, Carolyn Momoh, was present. In response to a
question from the trial court, trial counsel acknowledged the presence of other
family members, but stated that the defense was going to rest without calling
any of them as witnesses.
      As the state habeas court pointed out, in addition to the evidence
presented at the punishment phase of the trial, trial counsel’s cross-examination
of Brown’s sister, Serisa Ann Brown, during the guilt-innocence phase of the
trial also resulted in the presentation of some mitigating evidence. Serisa
testified that she met Brown’s attorney, Saum, a month earlier when Saum was
in Alabama for four days, and that Saum also met with Brown’s other sisters,
Grace and Carolyn, as well as Serisa’s daughter and Brown’s mother and father.
Serisa also testified that Brown had 32 brothers and sisters; that Brown’s
mother was present in the courtroom during the trial; that Brown was only 23
years old; that Brown had three children; and that Brown was close to the
mother of his three children, SaDonah, A. J., and Josh.
      In her closing argument, Saum addressed the lack of testimony from
Brown’s family members as follows:
      I apologize if any of y’all wanted to hear from [Brown’s] family and
      you didn’t get to because I didn’t put anybody on. I don’t see how
      putting anyone on from [Brown’s] family is going to help you make
      a decision. Because anyone who would testify would tell you don’t
      kill my son.
Saum made the following argument on mitigation:


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      I’m going to ask you when you’re considering the mitigating
      circumstances to go back and look at Defendant’s Exhibit No. 132.
      They are the school records of Arthur Brown. They will tell you
      something about Arthur Brown and his background and his special
      education and when he dropped out of school and what kind of
      learning disability he had. And those again are things that you can
      take into consideration in determining his background and his
      moral culpability.

      Once again, there’s not a lot that anyone can say at this point. You
      have made a decision that based on the evidence that you heard that
      you believe that Arthur Brown is guilty of capital murder. Now, you
      have to go back with the same burden of proof and answer Special
      Issue No. 1, Special Issue No. 2, and you don’t have a burden of
      proof on Special Issue No. 3. I would ask that you consider all of the
      evidence and I would ask you that you think about the
      circumstances of the offense and consider that when you have
      capital murder there’s a wide range of ways that it can be
      committed.

      If you have victims that were just walking down the street and
      didn’t have any criminal acts that they were committing themselves,
      that could subject them to life in prison. That that might be a
      different consideration as far as circumstances, but that the
      circumstances in this case surrounding the crime are significant.
      And I would ask you to consider them and I would ask you to
      answer Special Issue No. 1 no and Special Issue No. 3 yes, that
      [there] are mitigating circumstances.

      In response, the State argued that Brown’s school records contained no
mitigating evidence: “He’s got an 80 IQ. There’s no reason he can’t function.
There’s no reason he can’t conform his behavior to the requirements of society
other than he doesn’t care.” The prosecutor also argued that nothing in Brown’s
background or character was mitigating: “[H]e’s an armed robber . . . a major
drug dealer in Tuscaloosa, Alabama.         That’s his background.     That’s his
character.”




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                                  No. 11-70012

      In his state habeas petition, Brown alleged that his trial counsel rendered
ineffective assistance by failing to retain an investigator or mitigation specialist
to investigate the case and his background and character. He also alleged that
counsel were ineffective because they did not use any experts to assist in
developing a mitigation case. In support of these allegations, he submitted only
the affidavits of his mother and Lisa Milstein, the investigator retained by his
state habeas counsel.
      As we have already noted, Brown’s state habeas counsel retained Lisa
Milstein to investigate guilt-innocence issues, as well as Brown’s family
background and personal circumstances. Milstein obtained only one affidavit,
from Brown’s mother. According to Milstein’s affidavit, submitted to the state
habeas court, she traveled to Tuscaloosa, where she interviewed Brown’s mother,
his father, three of his sisters, and one of his brothers. Milstein explained that
these were merely preliminary interviews and that she anticipated that another
trip to Tuscaloosa would be necessary. She stated that she planned to secure
affidavits from Brown’s family members on the second trip, but was unable to
return to Tuscaloosa because the state habeas court refused to provide
additional funds.    Milstein obtained a handwritten affidavit from Brown’s
mother concerning her alcoholism, but did not obtain any other affidavits. She
was unable to interview the remainder of Brown’s family or obtain work history
and medical records.
      In her affidavit, Milstein described the information she had learned from
interviewing Brown’s family. Milstein stated that Brown’s mother, Joe Mae
Brown, stated that Brown’s trial counsel, Saum, met with her prior to trial, but
did not question her about Brown’s family, background, and life history. Mrs.
Brown told Milstein that when Brown was three years old, he fell from a swing
and struck his head on a cement porch. Mrs. Brown took him to a hospital,
where the attending physician determined that he had a concussion. Milstein

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                                 No. 11-70012

stated that Mrs. Brown told her that Brown had headaches two to three times
a week for several months after the concussion, but they never took him for a
follow-up visit with the doctor. Mrs. Brown also told Milstein that she was
married to Brown’s father when Brown was born, but that they divorced when
he was twelve years old; that during the marriage, Brown’s father beat her; that
Brown was close to his father, and she started having problems with Brown after
the divorce; and that Brown threatened to commit suicide by jumping out of a
window at his school.
      According to Milstein, she did not learn of Brown’s mother’s history of
alcohol abuse while interviewing Mrs. Brown, but learned of it later from
interviews with other family members. Milstein stated that Brown’s sister,
Serisa, told her that Mrs. Brown often went out drinking at night, leaving the
children alone at home, and returning heavily intoxicated in the early morning.
Sometimes when she returned home she woke the children and made them pray
throughout the rest of the night. As a result, the children were frequently tired
at school. According to Milstein, Grace Brown, another of Brown’s sisters, stated
that Brown was exposed to his mother’s drinking as a child and was
embarrassed by her appearance in public while drunk. Milstein said that Grace
also told her that after the divorce, their mother’s drinking friends came around
more often.
      Milstein stated that when she confronted Mrs. Brown, Mrs. Brown
admitted that she drank on a daily, or near daily, basis; that she drank heavily
throughout her pregnancy with Brown; and that she obtained homemade bootleg
whiskey from one of her sisters. Milstein believed that Mrs. Brown was likely
an alcoholic. In her handwritten affidavit, Mrs. Brown stated that she drank
while pregnant with Brown, at least every weekend and often during the week.
She estimated that she consumed at least a pint of bootleg whiskey or brandy.
Milstein believed that Mrs. Brown’s alcohol abuse during her pregnancy with

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                                       No. 11-70012

Brown was an important mitigating fact, because it might have caused organic
brain damage called Fetal Alcohol Syndrome or Fetal Alcohol Effect.
       Milstein reported that she learned from her investigation that Brown had
an impoverished upbringing. After his parents’ divorce, he lived with his mother
and three other siblings in a small apartment in a poor area of Tuscaloosa, in a
neighborhood that contained drugs and violence. According to Milstein, Brown’s
childhood was one marked by deprivation, including lack of food, clothing,
guidance, and a father figure. Brown was devastated by his parents’ divorce and
was left in the hands of a drunken and abusive mother.
       Milstein stated that Brown had a stable relationship in Tuscaloosa with
his common-law wife and that he worked at legitimate jobs to provide for her
and their three children. Milstein stated that Brown’s sister Grace told her that
Brown had an intense work ethic and had on occasion worked two jobs at once
to support his family. Milstein reported that each of Brown’s sisters told her
that Brown’s trial counsel did not ask them any questions regarding mitigating
evidence.
       More than four years after Brown filed his state habeas application, the
State filed a motion in which it requested that the trial court order Brown’s trial
counsel to file an affidavit summarizing counsel’s trial strategy regarding
investigation and preparation for the punishment phase of the trial. The trial
court granted the State’s motion. Brown’s lead trial counsel, Patricia Saum,5
filed a two-page affidavit recounting her recollection of her representation of
Brown. Her affidavit stated:
             The offense in the case occurred in June of 1992. Arthur was
       arrested several months later. The trial of the case occurred
       approximately nine months after Arthur’s arrest. Between

       5
        Saum married after Brown’s trial and her affidavit contains her married surname,
“Nasworthy.” In order to avoid confusion, we, like the district court, will refer to her as Ms.
Saum.

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                               No. 11-70012

   November 1992 and the start of trial in 1993, I spent many hours at
   the Harris County District Attorney’s Office reading and taking
   detailed notes of every portion of the many police reports from the
   Houston Police, Alabama Police, FBI and all lab reports.

         I gave Arthur several large legal pads and asked him to write
   out his entire family history for me – the good, the bad and the ugly.
   Arthur wrote out 14 single spaced sheets of information. Arthur’s
   writings were coherent, intelligent, and very descriptive. He was
   able to give me detailed information regarding his childhood, his
   parents and his school years.

          Since Arthur did not testify at trial, and I have not requested
   nor received permission from Arthur to release this information, I
   am asserting that the information provided to me by Arthur is
   privileged information as both attorney-client communication and
   the attorney work-product.

           I made two trips to Tuscaloosa, Alabama. During those two
   trips, I went to the library and pulled every newspaper article
   written about the case to see if there were additional witnesses that
   had not been mentioned in the police reports. I went to the County
   courthouse and researched the criminal background relating to
   Arthur, his co-defendants, and the other potential suspects. I met
   with the Tuscaloosa detectives, viewed their physical evidence. I
   interviewed at least one of the potential suspects in the Tuscaloosa
   jail. I also met with Arthur’s probation officer who was supervising
   him while he served his probation for an aggravated robbery case
   committed in Tuscaloosa. I also met with another defense attorney
   who shared information about a shooting, not involving Arthur,
   which resulted in the discovery of the murder weapon from this
   case.

          I then met and interviewed Arthur’s sisters, (Serisa Brown,
   Grace Brown and Carolyn Momoh), his mother, father and
   girlfriend. We discussed the statements given by the sisters to the
   police in Houston and in Tuscaloosa and the conflicts within those
   statements and the sisters’ beliefs that the statements were coerced.

        I learned that Arthur attended a total of 6 different schools up
   through the 10th grade. I had the name of a contact person,


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                                      No. 11-70012

       Eleanor Wells, at Central High West and a special education
       teacher, Dr. Jane Searcy. I did not subpoena either of these
       witnesses for punishment testimony because I did not have any
       information that Arthur was of sufficiently low IQ to have affected
       his ability to determine right from wrong.

              When it came time to put on punishment evidence, I wanted
       to put Arthur’s mother on the stand to let the jury get to know
       Arthur and his background and to have her ask the jury to spare his
       life. Much to my dismay, Arthur requested that his mother not be
       called to testify. Arthur stated to me and to the court that he did
       not want to put his mother through the stress of testifying. I
       informed the court of Arthur’s decision and, to the best of my
       recollection, the court verified on the record that this was Arthur’s
       decision. (One of the newspaper articles attached to Arthur’s
       Petition for Habeas Corpus refers to this hearing outside of the
       presence of the jury. See Exhibit L.) Arthur’s sisters had been so
       shaken by their treatment on the witness stand during the guilt
       phase of the trial, they did not want to testify at the punishment
       phase and risk further contempt proceedings. I believe that
       Arthur’s brother did testify at punishment.6

              My strategy during the trial was focused on guilt/innocence.
       With 6 persons shot execution style and 4 of the 6 dead, including
       a pregnant teenager, I did not believe that there was any
       punishment evidence which would mitigate in favor of life. Due to
       the other drug dealers from Alabama who were in Houston at the
       same time to buy drugs from the Tovar family, I hoped to put some
       reasonable doubt into the record as to which drug dealers committed
       the crime. The jury, however, believed the 2 surviving victims when
       they identified Arthur as one of the gunmen. One of the jurors was
       quoted in the newspaper as saying “There was no reason for the
       shootings. When they tied those people up, they could’ve walked out
       of there with all their money, their drugs, their TV, anything they
       wanted, even the pet dog, but there was no reason to shoot them.
       What were they going to do, call the police and say someone just
       stole my cocaine and marijuana?” (See Exhibit L).



       6
         Contrary to Saum’s recollection in her affidavit, Brown’s brother did not testify at
either phase of Brown’s trial.

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                                 No. 11-70012

      The state habeas court found that Saum’s affidavit was credible, and
accepted her explanation that she had made a thorough investigation of the
facts, including interviewing Brown’s family members, researching his
educational history, and reviewing his criminal history. The state habeas court
found that Saum had interviewed Brown about his childhood, education, and
family and had obtained detailed information from Brown about his background;
that Saum had traveled to Tuscaloosa twice, where she reviewed police reports,
researched criminal histories of Brown, his co-defendants, and other potential
suspects, met with police, viewed physical evidence, met with Brown’s probation
officer, investigated Brown’s educational background, and interviewed Brown’s
mother, father, sisters, and girlfriend.   The court found that Brown had
prevented his trial counsel from calling his mother as a witness, and that his
sisters had been so shaken during their guilt-innocence phase testimony that
they chose not to testify during the punishment phase.
      In his response to the State’s summary judgment motion in federal court,
Brown submitted the affidavit of Dr. Natalie Novick Brown to support his claim
that trial counsel should have retained an expert to determine whether he
suffers from Fetal Alcohol Spectrum Disorder. In her affidavit, Dr. Brown stated
that “there is abundant preliminary information to support a conclusion that an
FASD diagnosis is LIKELY and that a multidisciplinary diagnostic assessment
to address this issue should be undertaken.” Dr. Brown’s affidavit was not
provided to the state habeas court.
      The district court stated that, aside from obvious concerns about the
exhaustion of remedies, Brown had not shown that a reasonable attorney would
have focused on this double-edged mitigation theory, or that the Texas courts
would have approved funds for the inquiry which would cost well over $20,000,
or that the information would have made any difference to the sentencing jury.



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                                  No. 11-70012

      A few months after the district court filed its opinion, the Supreme Court
held that federal habeas “review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits.” Pinholster,
131 S. Ct. at 1398. Accordingly, to prevail on his ineffective assistance claim,
Brown “must overcome the limitation of § 2254(d)(1) on the record that was
before the state court.” Id. at 1400. Thus, because Dr. Brown’s affidavit was not
presented to the state habeas court, the district court could not have considered
it in determining whether the state court’s rejection of Brown’s ineffective
assistance claim was reasonable.
      The district court analyzed the state habeas court’s decision in detail,
observing that the state habeas court had provided five reasons for denying relief
on Brown’s ineffective assistance claim:
      First, the state habeas court found that, considering the “horrific nature
of the offense wherein six people were shot execution style, resulting in four
deaths, including that of a pregnant teenager,” Brown’s trial counsel had made
a reasonable strategic decision to focus their efforts on the guilt/innocence phase
rather than punishment. The district court observed that winnowing out weaker
arguments to maintain credibility with the jury is an effective strategy and that
trial counsel did not completely forego a mitigation defense, but instead chose
to focus their investigation on creating reasonable doubt that Brown had
committed a particularly violent offense.      We note that although the jury
ultimately did not find it persuasive, Brown’s counsel adduced evidence that
rival drug dealers from Tuscaloosa, who were also customers of the Tovars, had
been in Houston around the time of the murders; and that another drug dealer
from Tuscaloosa, who was deceased by the time of Brown’s trial, had possessed
both of the murder weapons subsequent to the murders. The district court cited
Fifth Circuit precedent recognizing that “residual doubt may be a reasonable,
even highly beneficial, strategy in a capital case.” Martinez v. Quarterman, 481

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                                  No. 11-70012

F.3d 249, 256 (5th Cir. 2007) (citing Moore v. Johnson, 194 F.3d 586, 618 (5th
Cir. 1999)).
      Second, the state habeas court found that trial counsel effectively
presented mitigation evidence through the admission of Brown’s school records,
the expert testimony of Dr. Lewis on the concept of maturational reform, and the
cross-examination of Brown’s sisters during the guilt-innocence phase. The
district court concluded that, although the evidence presented at trial differed
from that contained in the admissible habeas evidence, the jury nevertheless
saw that Brown’s background could mitigate against a death sentence.
      Third, the state habeas court found that Brown’s trial counsel had hoped
to call Brown’s mother as a witness at the punishment phase to testify about
Brown and his background and to make a plea for mercy, but Brown asked her
to go home because he did not want her to testify. The district court agreed that
Brown himself prevented trial counsel from presenting testimony from the only
individual who had provided competent evidence to support his ineffective-
assistance claim. The state habeas court also found that Brown’s sisters did not
testify at the punishment phase because their testimony for the State during the
guilt-innocence phase had left them “shaken” and “fearful”. The district court
noted that one of the sisters, Carolyn Momoh, had committed perjury and had
later pleaded guilty to criminal charges. The district court pointed out that trial
counsel had observed the sisters’ testimony and evaluated their state of mind,
and that their prior testimony “could certainly give a defense attorney pause
when considering what they would add to the punishment phase.” The district
court held that Brown had not shown that the sisters would have testified even
if trial counsel had tried to question them about their recollections of Brown’s
background and his mother’s alcohol abuse.
      Fourth, the state habeas court concluded that trial counsel did not perform
deficiently by not calling some witnesses, including one of Brown’s special

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                                  No. 11-70012

education teachers.     The district court held that this conclusion was not
unreasonable because trial counsel had admitted Brown’s school records , which
allowed the jury to see that he had low intelligence, and in closing argument
trial counsel had urged the jury to look at his special education background and
poor performance in school as a mitigating factor.
      Finally, the state habeas court concluded that Brown had not shown
prejudice.   The district court held that the state court’s decision is not
unreasonable.    The district court stated that, even considering Milstein’s
hearsay-based statement and Brown’s mother’s affidavit as a valid measure of
what trial counsel should have presented, the evidence Brown claimed should
have been presented was not of such persuasive character that it would have
influenced the jury’s appraisal of his moral culpability. The district court stated:
      Plugging the new mitigating evidence into the case before the jury
      does not suggest a reasonable probability of a different result.
      Brown participated in an extremely violent attack and showed little
      remorse for his actions. While the trial evidence could not
      conclusively identify which man shot each victim, eyewitnesses saw
      Brown brandishing a weapon like that used in the killing and he
      played a major role in the crime. Brown obviously intended that six
      people would die, including a pregnant teenager. He had a criminal
      record and a history of involvement in the drug culture. His
      violence extended into the prison environment where he extorted
      other inmates and attempted violence against prison guards.

             Against those aggravating factors, Brown wishes that trial
      counsel had adduced evidence of his troubled, impoverished, and
      disadvantaged background. The jury had a peek into the difficult
      circumstances swirling about his early life, but did not have a
      plenary consideration of how that affected Brown. Nonetheless, the
      lawlessness of his violent life ensures that the state habeas court
      would not be unreasonable in concluding that Brown’s unpresented
      mitigation evidence would not end in a reasonable probability of a
      different result.
Brown v. Thaler, No. H-09-74 (Feb. 28, 2011), at 24-25 (footnote omitted).


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                                  No. 11-70012

      The district court concluded that the state habeas court was not
unreasonable in finding no Strickland deficient performance or actual prejudice
and that its decision was not contrary to, or an unreasonable application of,
federal law.
      Brown argues that, considering only the evidence before the state habeas
court – Milstein’s affidavit and his mother’s handwritten affidavit – there are
serious questions whether trial counsel made any inquiries of his family about
his background and family history. He asserts that Saum’s affidavit failed to
resolve these serious questions. Under Strickland, however, there is a strong
presumption that counsel’s performance was competent, and Brown bore the
burden of demonstrating that counsel’s performance was deficient. Strickland,
466 U.S. at 689. The state habeas court was “required not simply to give
[Brown’s] attorneys the benefit of the doubt, . . . but to affirmatively entertain
the range of possible reasons [Brown’s] counsel may have had for proceeding as
they did.” Pinholster, 131 S. Ct. at 1407 (internal quotation marks and citation
omitted). The evidence that Brown claims his counsel should have presented is
“double-edged” because, although it “might permit an inference that he is not as
morally culpable for his behavior, it also might suggest [that he], as a product
of his environment, is likely to continue to be dangerous in the future.” Ladd v.
Cockrell, 311 F.3d 349, 360 (5th Cir. 2002). Therefore, “it is uncertain whether
reasonable counsel would have used the evidence had it been available.” Id.
Furthermore, the aggravating evidence was overwhelming. See id. (stating that
where evidence of future dangerousness is overwhelming, “it is virtually
impossible to establish prejudice”). Brown and his accomplices bound and shot
six-people in the head, execution-style. Although two of the victims survived,
one of the four who died was a nearly nine-months pregnant teenager.
Considering the circumstances of the crime, the state habeas court reasonably
could have concluded that it is unlikely that the mitigating evidence Brown

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                                  No. 11-70012

claims his counsel should have presented would have had a significant
mitigating effect had counsel presented it.
      We thus conclude that reasonable jurists would not find debatable the
district court’s decision that the state habeas court (1) reasonably could have
found that Brown prevented his trial counsel from presenting his mother’s
testimony in mitigation, and (2) reasonably could have concluded that Brown’s
counsel, after conducting an adequate investigation under the circumstances,
reasonably could have decided that a mitigation defense would be a double-edged
sword and that the best chance to save his life was to try to persuade the jury
that Brown would not be dangerous in the future if he were imprisoned for life.
Reasonable jurists also would not find debatable the district court’s decision that
the state court reasonably could have concluded that, even if counsel performed
deficiently, Brown was not prejudiced, because there is no reasonable probability
that, had the jury heard the evidence contained in Brown’s mother’s affidavit
and in Milstein’s statement, it would have answered affirmatively the special
issue on mitigating circumstances.
                                       III.
      We end here. Brown has not demonstrated that reasonable jurists would
find the district court’s assessment of his claims debatable or wrong, or that the
issues presented are adequate to deserve encouragement to proceed further.
Accordingly, Brown’s request for a COA is
                                                                        DENIED.




                                        25
