     Case: 14-70021      Document: 00512896472         Page: 1    Date Filed: 01/09/2015




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

                                                                               FILED
                                                                           January 9, 2015
                                      No. 14-70021
                                                                            Lyle W. Cayce
                                                                                 Clerk
RICHARD ALLEN MASTERSON,

                                                 Petitioner-Appellant
v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correction Institutions Division,

                                                 Respondent-Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-2731


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Richard Allen Masterson was convicted by a Texas state court of capital
murder and sentenced to death for the 2001 strangulation death of Darin
Shane Honeycutt. Following an unsuccessful direct appeal and state habeas
proceedings, Masterson petitioned the federal district court for habeas relief
on several grounds. The district court denied relief and also denied a certificate



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-70021
of appealability (“COA”). Masterson filed a timely notice of appeal and now
seeks a COA from this court on four issues. For the reasons set forth below,
we DENY his request for a COA.
         I.    Facts
         Masterson met Honeycutt at a Houston, Texas, bar. The two men went
back to Honeycutt’s apartment.       The State alleges that Masterson put
Honeycutt into a chokehold and killed him in order to rob Honeycutt of his car
and other valuables. Masterson contends that the chokehold was part of a sex
act that went awry resulting in the unintentional death. Masterson fled the
scene in Honeycutt’s car after taking some items. Ultimately, Masterson was
apprehended driving a different stolen car in Florida, and Houston Police
Detective David Null went to Florida to interview him. During that interview,
Masterson confessed to the crime, stating that he intended to kill Honeycutt to
rob him. As more fully detailed below, the voluntary nature of the confession
was a disputed matter ultimately resolved by the state court in the State’s
favor.
         At trial, the State’s theory was that Masterson intended to kill
Honeycutt in order to rob him. Masterson testified in his own defense during
the guilt-innocence phase, contending that Honeycutt’s death was the
accidental result of a sex act. The jury returned a verdict of guilty on the
capital murder charge.
         In the ensuing punishment phase, records from Masterson’s time as a
juvenile (the “TYC Records”) were placed into evidence but little utilized by
either side. The State presented evidence of Masterson’s violent acts against
others. The defense presented testimony from two deputies who indicated that
Masterson had been a compliant prisoner in their care and testimony from
Masterson’s sister who described a bad childhood at the hands of their abusive
father. Against his attorneys’ advice, Masterson again took the stand. During
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                                    No. 14-70021
his testimony, he admitted (in so many words) to being a future danger to
others and that there was no mitigating evidence in his favor. The jury found
future dangerousness and lack of mitigating factors. Masterson was sentenced
to death.
      Pertinent to the issues here, on direct appeal, Masterson challenged the
admission of his confession to Detective Null.          In his first state habeas
application, he claimed ineffective assistance of counsel for failure to develop
and present certain mitigating evidence. He also argued that counsel was
ineffective for failing to introduce the TYC Records. During the first state
habeas proceeding, everyone apparently labored under the erroneous
impression that the TYC Records had not been admitted into evidence. It was
not until the federal habeas proceeding that it was noticed that these records
were introduced as Exhibit 54 at the beginning of the punishment phase of his
trial. Masterson returned to state court to raise the contention that counsel
was ineffective for failing to prepare a rebuttal to the State’s use of the
admitted records during the punishment phase; the state court dismissed this
application as an abuse of the writ.
      Before the federal district court, Masterson raised several issues
including the four questions, in the order asserted in the COA application, on
which he seeks a COA from this court:
      1. Whether Masterson was deprived of his Sixth Amendment right to
            the effective assistance of counsel at the punishment phase of the trial
            when trial counsel failed to adequately develop and present
            mitigating evidence.
      2. Whether Masterson’s Fifth Amendment right was violated by the
            admission of his confession which was given in exchange for a promise
            by police.


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           3. Whether trial counsel [and by extension habeas counsel] provided
                 ineffective assistance of counsel under the Sixth and Fourtheenth
                 Amendments for failing to introduce evidence of organic brain
                 dysfunction that “could would [sic]” have been admissible under
                 Jackson v. State.
           4. Whether trial counsel [and by extension habeas counsel] were
                 ineffective under Rompilla v. Beard for failing to adequately
                 investigate and prepare a rebuttal against the State’s use of juvenile
                 records during the punishment phase of his trial.
Issues 1 and 4 are asserted with respect to Masterson’s sentence, while 2 and
3 are asserted with respect to his guilt. Thus, we address those two issues
first. 1
           II.      Standards for a COA
           The standards for granting a COA in a death penalty case arising from
a state court judgment are well-established. Beatty v. Stephens, 759 F.3d 455,
461–62 (5th Cir. 2014) (outlining procedures). A COA must be based upon a
“substantial showing of the denial of a constitutional right.”                     28 U.S.C.
§ 2253(c)(2). To satisfy this standard, a habeas petitioner must demonstrate
that “jurists of reason” would find the district court’s decision “debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The decision at this stage
is a threshold one; thus, in arriving at our decision, we must not actually



          Masterson argues that the state proceedings were “inadequate” because the state
           1

court did not conduct a live hearing. It is unclear what relief he seeks in this regard. To the
extent he contends that he was, therefore, unable to fully develop his claim, 28 U.S.C.
§ 2254(e)(2)(B), he fails to cite to anything in the record showing a proper request for such a
live hearing under state law. Williams v. Taylor, 529 U.S. 420, 437 (2000) (“Diligence will
require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in
state court in the manner prescribed by state law.”); see Cullen v. Pinholster, 131 S. Ct. 1388,
1400 (2011) (limiting review under 28 U.S.C. § 2254(d) to consideration of the state court
record).
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adjudicate the merits of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). In a death penalty case, any doubts about whether to grant a COA
should be resolved in favor of granting it. Gomez v. Quarterman, 529 F.3d 322,
326 (5th Cir. 2008).
       Nonetheless, our COA analysis is guided by the deferential standards
mandated by the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
contained in 28 U.S.C. § 2241 et seq. Thus, “[w]e evaluate the debatability of
[Masterson’s] constitutional claims through the lens of AEDPA’s highly
deferential standard.” Beatty, 759 F.3d at 462.
       An application for a writ of habeas corpus [on a state judgment
       adjudicated on the merits] shall not be granted . . . 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 (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). With these standards in mind, we turn to an analysis of
Masterson’s application.
       III.   Discussion
              A. Fifth Amendment: Admission of Confession
       Masterson contends that the state trial court violated his Fifth
Amendment rights by admitting his confession to Detective Null during the
guilt-innocence phase of his trial. He bases his arguments upon the allegation
that promises were made to him in exchange for his confession that amount to
improper coercion in violation of the Fifth Amendment. 2                 Specifically, he
contends that he was told that if he confessed to capital murder, his nephew—


       2 Masterson mentions, but does not brief or renew, his allegation that his confession
was taken in violation of his right to counsel. Therefore, we address only the promise
allegation.
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                                        No. 14-70021
who was apprehended in the first stolen car which contained drugs—would go
free.
        We have held that certain types of statements by law enforcement
officials can constitute the type of coercion that results in suppression of a
confession. Streetman v. Lynaugh, 812 F.2d 950, 957 (5th Cir. 1987). Promises
may constitute such a statement if they are so attractive that they make any
subsequent confession involuntary. See, e.g., United States v. Rogers, 906 F.2d
189, 192 (5th Cir. 1990) (false promise of non-prosecution rendered subsequent
statements involuntary for purposes of a motion to suppress).
        Masterson’s arguments about his confession were the subject of a
pretrial hearing before the state trial court and, thereafter, were presented to
the jury at his trial. Conflicting evidence was presented. Detective Null stated
that he did not promise to do anything with respect to the nephew except pass
along Masterson’s statement that Masterson, not the nephew, was the owner
of the drugs.
        Masterson faces a high hurdle under section 2254(d)(2) in overcoming
adverse factual findings.          At most, he has shown that there was disputed
evidence of what happened. Accepting Null’s version of what happened as true,
which the state court judge and jury were entitled to do, there was no coercive
promise. Under section 2254(d)(1), he has not explained how the state court’s
ruling runs afoul of a Supreme Court opinion. See Howes v. Fields, 132 S. Ct.
1181, 1187 (2012) (reversing Sixth Circuit in a habeas proceeding challenging
a state conviction for relying on a “categorical” rule regarding when a suspect
was “in custody” for Miranda 3 purposes that had not been announced by the
Supreme Court). Reasonable jurists would not debate the district court’s




        3   Miranda v. Arizona, 384 U.S. 436 (1966).
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assessment of the state court’s determination of the voluntariness of his
confession. Accordingly, we deny a COA on this ground.


              B. Ineffective Assistance of Counsel regarding Organic Brain
                 Dysfunction Evidence
       Masterson argues that his attorneys were ineffective for failing to
introduce evidence during the guilt-innocence phase that he suffered from
organic brain dysfunction in an effort to show that he could not (or did not)
form the requisite intent to kill sufficient to support a verdict of capital murder,
relying on Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005)
(allowing a defendant to present diminished mental capacity evidence to
counter the State’s evidence of his state of mind). Ineffective assistance of
counsel claims are governed by Strickland v. Washington, 466 U.S. 668 (1984)
and its progeny. Strickland’s review of counsel’s conduct is deferential and,
because of AEDPA’s deferential review standard, our review of Strickland
claims for habeas petitions challenging state court judgments is “doubly”
deferential. Beatty, 759 F.3d at 463.
       Masterson relies upon the unsworn report of Dr. Jerome Brown to
support his claim of organic brain dysfunction. Dr. Brown’s report, offered in
the first state habeas proceeding, 4 states: “It is possible that some type of brain
anomaly or dysfunction has been present for some time and prior to the
offense.” Dr. Brown does not opine that this dysfunction impacted Masterson’s
ability to control his conduct or form an intent to kill. Nonetheless, Masterson
faults trial counsel for not discovering and developing this “evidence.” He also
states that his TYC psychiatrist, Dr. Day, noted “probable mild organic brain
dysfunction.” Again, he asserts that this evidence should have been developed.


       4 The report was proffered as part of Masterson’s argument that his counsel failed to
develop a proper mitigation case.
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                                      No. 14-70021
       The State contends that this argument has been procedurally defaulted
by the failure to raise it in the first state habeas proceedings. 5 Masterson
responds that any such failure would itself be ineffective assistance of
counsel—this time, state habeas counsel—entitling him to relief under
Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911
(2013). These cases hold that in certain circumstances, ineffectiveness of state
habeas counsel may be grounds to find cause and prejudice to excuse a
procedural default and reach the merits of an otherwise defaulted ground.
       The federal district court analyzed the organic brain dysfunction
argument on the merits and concluded that, even now, Masterson has failed to
proffer any evidence beyond the speculation contained in the Brown and Day
reports that Masterson suffered from an organic brain dysfunction that
affected his conduct or mindset on the date in question. Masterson v. Thaler,
No. 4:09-CV-2731, 2014 U.S. Dist. LEXIS 26226, at *76 (S.D. Tex. Feb. 28,
2014). Thus, the district court reasoned, “[t]he state habeas court was not
unreasonable in finding Masterson’s unverified claim of organic brain damage
to be speculative.” Id. We conclude that reasonable jurists would not debate
this conclusion and, thus, need not analyze the Martinez procedural default
question. Accordingly, a COA on this ground must be denied.
              C. Ineffective Assistance of Counsel in Mitigation Evidence
       Turning to the punishment phase, Masterson’s counsel faced an uphill
battle in trying to save his life because Masterson, against their advice,
insisted on testifying and then told the jury he was a future danger and that
there was nothing to mitigate his offense. We nonetheless accept for purposes


       5 Although Masterson raised the issue of organic brain dysfunction in his first habeas
with respect to his ineffective assistance of counsel in mitigation claim, the State contends
that he did not raise the argument now presented (that organic brain dysfunction was
relevant to guilt/innocence until a second habeas proceeding, where it was dismissed by the
state court).
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of this analysis Masterson’s current contention that            his attorneys were
required to investigate mitigation evidence, even in the face of a client who was
fighting all efforts at mitigation.
      In Wiggins v. Smith, 539 U.S. 510, 522–23 (2003), the Court held that
counsel must make a sufficient investigation to allow for an informed decision
regarding what evidence should be presented for mitigation purposes. In the
case at bar, state trial counsel made an investigation during which the lawyers
discovered that Masterson had been raised by an abusive father. Evidence of
this abuse was presented through Masterson’s sister.              Counsel hired an
investigator; they also hired a future dangerousness expert whom they
ultimately did not use because he found Masterson to be a future danger and
because the State agreed not to call its expert if they did not call their expert.
They also presented the testimony of two deputies to the effect that Masterson
was compliant and unthreatening in their custody. The state habeas court
found that Masterson’s state trial lawyers reviewed the TYC Records and
determined that the evidence there was more harmful than helpful.
      Masterson faults his state trial counsel for not hiring an expert to opine
about the TYC Records and his abusive childhood. His state trial counsel
determined that the best approach would be to offer this evidence through
Masterson’s sister.    The state habeas court and the federal district court
determined this to be a reasonable strategic decision. See Masterson, 2014 U.S.
Dist. LEXIS 26226, at *45–46. Masterson does not cite to any Supreme Court
case requiring expert testimony on this subject. Wiggins requires a reasonable
investigation, and the state habeas court found that such an investigation was
conducted and the evidence of Masterson’s difficult childhood was presented
through a sympathetic witness. Id. Reasonable jurists would not debate the
district court’s conclusion that the state habeas court’s decision was not an
unreasonable application of federal law as determined by the Supreme Court.
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                                  No. 14-70021
      Even if Masterson’s counsel was ineffective, the district court
determined that Masterson could not show prejudice since the substance of
what he contends should have been presented was, in fact, presented in some
form or fashion or was “double-edged,” doing more harm than good.           Id. at
*56–57; see Martinez v. Quarterman, 481 F.3d 249, 255 (5th Cir. 2007) (counsel
is not ineffective for failing to present “double-edged” evidence that helps in
part but also casts the defendant in a bad light).
      Finally, under Strickland, the prejudice prong requires a showing that
there is a “reasonable probability” that a juror would have decided the issue
differently but for the ineffectiveness of counsel. 466 U.S. at 694. In this case,
it was not reasonably probable that the outcome would have been different if
the alleged additional evidence were presented, given the heinous nature of
the crime, Masterson’s lack of remorse, and his inculpatory testimony to the
jury during the punishment phase. Newbury v. Stephens, 756 F.3d 850, 874
(5th Cir. 2013) (“In sum, reasonable jurists would not debate the district court’s
conclusion   that,   weighing   the   State’s    powerful   evidence   of   future
dangerousness and moral culpability against [Masterson’s] far weaker
mitigation evidence, a juror would not have been persuaded to answer the
special issues in a manner” that would have avoided the death penalty).
      We conclude that Masterson has not demonstrated that jurists of reason
would debate the district court’s conclusion on this issue, and we therefore
deny a COA on this ground.
             D. Ineffective Assistance of Counsel regarding TYC Records
      In his first state habeas proceeding, Masterson contended that his
counsel was ineffective for failing to introduce the TYC Records into evidence.
In the first state habeas proceeding, everyone apparently believed that these
records were not introduced. At some point, it was determined that they were
admitted as Exhibit 54 at the outset of the punishment phase (a fact clearly
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                                       No. 14-70021
reflected in the transcript). Masterson then switched his contention to an
argument under Rompilla v. Beard, 545 U.S. 374, 386 (2009), that counsel was
ineffective for failing to prepare a rebuttal to the State’s use of the TYC
Records. In Rompilla, the Court concluded that counsel was ineffective for
failing to review and prepare to address specific evidence the State clearly
intended to make a centerpiece of its case. Id. 6
       In this case, by contrast, the state habeas court found that state trial
counsel did review the TYC Records. Masterson, 2014 U.S. Dist. LEXIS 26226,
at *50. Further, contrasted with Rompilla, where the unreviewed records
played a central role, these records played such a small role in the punishment
phase of the trial that no one seemed to know they had even been admitted.
Indeed, it appears that the only use of these records by the State was to cross-
examine Masterson very briefly on prior criminal conduct.
       The state habeas court determined that counsel made the decision not to
use the records because it concluded that the material was either cumulative
or “double-edged.” Id. at *50–52. Even now, Masterson has difficulty pointing
to anything specific that the State used against Masterson from these records
that his counsel should have rebutted. See Coble v. Quarterman, 496 F.3d 430,
442 (5th Cir. 2007)(general allegation that counsel “should have been better
prepared” is insufficient to support a claim of ineffective assistance of counsel).
       We conclude that reasonable jurists would not debate the district court’s
determination of this issue. Accordingly, we deny a COA on this ground.
       In sum, Masterson’s application for a COA is DENIED.



       6  The State argues that this ground is procedurally defaulted for failure to raise it
timely in the state court. The district court determined that the issue was properly addressed
on the merits. Masterson, 2014 U.S. Dist. LEXIS 26226, at *41 n.8. Because the district
court analyzed the claim on the merits, and we readily conclude that it lacks merit, we need
not analyze the procedural default question. Busby v. Dretke, 359 F.3d 708, 720 (5th Cir.
2004).
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