     Case: 17-70029      Document: 00514691099         Page: 1    Date Filed: 10/22/2018




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

                                                                                FILED
                                      No. 17-70029                       October 22, 2018
                                                                           Lyle W. Cayce
BILLY JOE WARDLOW,                                                              Clerk


              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:04-CV-408


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       More than two decades after being sentenced to death for murdering an
82-year-old man, Billy Joel Wardlow seeks to appeal the district court’s denial
of his petition for writ of habeas corpus. He asks us to certify the following
questions: (1) whether his claims are procedurally barred; (2) whether the
state court’s factual findings are entitled to a presumption of correctness;
(3) whether the State substantially interfered with his codefendant’s decision


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-70029
not to testify; (4) whether his trial counsel was ineffective for not objecting to
the medical examiner’s testimony; and (5) whether his trial counsel was
ineffective at the punishment phase of trial.      Because the district court’s
holding that his claims are procedurally barred is not debatable, we do not
grant a certificate of appealability.
                                        I.
                                        A.
      Wardlow shot and killed Carl Cole while committing a robbery at Cole’s
home in the small east Texas town of Cason. When he was in jail awaiting
trial, Wardlow wrote a confession to the sheriff investigating the murder. The
State relied on that letter to prove the intent element required for a capital
murder conviction.    The letter stated that Wardlaw went to Cole’s house,
intending to steal a truck. Once inside the house, Wardlow said that he pulled
a gun on Cole. Wardlow added:
      Being younger and stronger, I just pushed him off and shot him
      right between the eyes. Just because he pissed me off. He was
      shot like an executioner would have done it. He fell to the ground
      lifeless and didn’t even wiggle a hair.
      Wardlow testified and confirmed he killed Cole but gave a different
reason for doing so. He told the jury that he did not intend to kill Cole when
he went to his house; instead, he and his girlfriend Tonya Fulfer only intended
to rob Cole and steal his truck. When Wardlow brought out the gun and told
Cole to go back inside the house, Cole lunged at Wardlow and grabbed his arm
and the gun, attempting to push Wardlow away. Wardlow testified that Cole
was stronger than he expected, so he was caught off balance and began falling
backwards. Wardlow said he shot the gun without aiming, hoping it would get
Cole off him. The bullet hit Cole right between the eyes.




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                                 No. 17-70029
      The state countered Wardlow’s claim about his intent by noting
inconsistencies in his story and testimony from a medical examiner
inconsistent with the gunshot occurring during a struggle.
      The jury found Wardlow guilty of capital murder. After the punishment
phase, during which it heard that Wardlow threatened to harm fellow inmates
and kill a guard as he awaited trial, it sentenced him to death.
                                      B.
      On direct review, the Texas Court of Criminal Appeals affirmed
Wardlow’s conviction and sentence. That same year (1997), the state trial
court conducted a hearing to determine whether Wardlow desired the
appointment of counsel to help with state postconviction review. Wardlow told
the court he did not want counsel appointed and did not want to pursue further
appeals. The trial court followed Wardlow’s wish after finding that he was
mentally competent and that his waiver of appointed counsel was voluntary
and knowing. The state trial court forwarded these findings to the Texas Court
of Criminal Appeals.
      Before the Court of Criminal Appeals issued an order confirming the
waiver, Wardlow entered into a legal representation agreement with attorney
Mandy Welch in which she agreed to notify the state courts that Wardlow did,
in fact, wish to pursue his post-conviction remedies.     The state trial court
entered supplemental findings confirming Wardlow’s change of heart, and the
Court of Criminal Appeals appointed Welch to represent Wardlow. It ordered
that his state habeas application be filed within 180 days.
      Eighteen days before that deadline, Wardlow changed his mind again.
He sent the Court of Criminal Appeals a letter expressing a desire to “waive
and forego all further appeals.” The court granted Wardlow’s waiver request.




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                                    No. 17-70029
          Despite the court’s granting the waiver Wardlow had requested, his
lawyer filed a state habeas application before the deadline. Accompanying the
application was a statement from Wardlow authorizing the filing of the
application.
          Nearly six years later, the state trial court issued an order addressing
the merits of Wardlow’s claims and recommending that his application be
denied.      Rather than review that ruling, the Court of Criminal Appeals
dismissed the application on the procedural ground that it had previously
granted Wardlow’s waiver request.
          Wardlow then filed this federal petition. Nearly eleven years and two
judges later, the district court concluded that the Court of Criminal Appeals’
dismissal of the state application operated as “a valid procedural bar to
consideration of his claims.”        It nonetheless also examined the merits
Wardlow’s claims and concluded they would not entitle him to federal habeas
relief.
                                         II.
          Under the Antiterrorism and Effective Death Penalty Act, a certificate
of appealability (COA) must issue to allow an appeal of the district court’s
refusal to grant the writ. 28 U.S.C. § 2253(c)(1)(A). To obtain a COA on
procedurally-defaulted claims, Wardlow must show that “jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”         Slack v.
McDaniel, 529 U.S. 473, 484 (2000). In a death penalty case, “any doubts as to
whether a COA should issue must be resolved” in the petitioner’s favor. Allen
v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015) (quoting Medellin v. Dretke, 371
F.3d 270, 275 (5th Cir. 2004)).


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                                  No. 17-70029
                                        A.
      The district court’s procedural dismissal is not debatable.       It followed
the longstanding rule that a “federal habeas court will not review a claim
rejected by a state court ‘if the decision of [the state] court rests on a state law
ground that is independent of the federal question and adequate to support the
judgment.’” Beard v. Kindler, 558 U.S. 53, 55 (2009) (quoting Coleman v.
Thompson, 501 U.S. 722, 729 (1991)). Only adequacy is contested here. A
state-law procedural bar is adequate to preclude federal consideration if it is
“firmly established and regularly followed.” Lee v. Kemna, 534 U.S. 362, 376
(2002) (citation omitted).
      Texas courts recognize that “an express waiver of the right to post-
conviction habeas corpus relief may be enforceable when it is ‘knowingly and
intelligently’ executed.” Ex parte Reedy, 282 S.W.3d 492, 494–96 (Tex. Crim.
App. 2009). Wardlow requested that waiver (for the second time) 18 days
before his state habeas deadline, and he does not contend that the state court
erred in finding that the waiver was valid at that time. Instead, he argues the
Texas Court of Criminal Appeals should have ignored or revoked the waiver
because Wardlow’s counsel ended up filing the state application in the trial
court. He describes the state high court’s procedural bar as an “ad hoc” ruling
because, in his view, it is contrary to two other cases from that court.
      We do not think that is a debatable critique of the district court’s ruling.
Wardlow never asked the Court of Criminal Appeals to rescind its waiver
order. That distinguishes the two cases Wardlow cites in his attempt to show
that Texas does not consistently hold petitioners to their waivers when they
change their mind. In neither of those cases had the Court of Criminal Appeals
even issued an order finding waiver. Ex parte Reynoso, 257 S.W.3d 715 (Tex.
Crim. App. 2008); Ex parte Murray, No. 73,454 (Tex. Crim. App. June 7, 2000)


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(not designated for publication). In Murray, only the state trial court had found
waiver, so it was able revoke its own order when the petitioner made that
request. Id. In Reynoso, the only official response to the petitioner’s desire to
waive habeas proceedings was the trial court’s withdrawing its order
appointing habeas counsel. 257 S.W.3d at 717. When the petitioner changed
his mind, the lawyer was reappointed. Id. at 718. There was never an order
finding waiver from either the trial court or Court of Criminal Appeals that
had to be rescinded.
       Although it did not involve a formal waiver finding, Reynoso explains in
dicta that “because an applicant can waffle in his decision until the day the
application is due, a ‘waiver’ is not truly effective until after that date has
passed.” Id. at 720 n.2. Wardlow emphasizes this quotation. It might have
helped Wardlow if he had ever asked the Court of Criminal Appeals to revoke
its waiver, but he never did. In saying a waiver is not “truly effective” until
the deadline for the habeas application has passed, Reynoso was recognizing
only that an applicant can withdraw his waiver up until the deadline. Id.
(emphasis added).      That is the only way to read it consistently with the
discussion later in the same footnote that a waiver can relieve a court of the
need to appoint habeas counsel (if a court could only enter a waiver finding the
day the application is due, an attorney would have to work up to that point).
Id.
       Wardlow identifies no case in which the Court of Criminal Appeals had
issued a waiver yet later ignored it even though the petitioner had not sought
to rescind it. As a result, he has not raised a colorable argument that this “case
falls within the small category of cases in which asserted state grounds are
inadequate to block adjudication of a federal claim.” Lee v. Kemna, 534 U.S.
362, 381 (2002).


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                                 No. 17-70029
      We therefore will not authorize an appeal of the district court’s ruling
that his claims are procedurally barred.
                                       B.
      Even if Wardlow could show that the procedural bar is debatable, he
would not be entitled to appeal for the additional reason that the merits of his
claims are not debatable. The district court also denied the petition on this
alternative ground. When assessing the substantive claims, it deferred to the
state trial court’s factual findings. Recognizing the obstacle that deference
poses, Wardlow maintains that Section 2254(e)(1)’s presumption of correctness
does not attach because the Court of Criminal Appeals vacated the trial court’s
findings when it dismissed the application on procedural grounds.
      But AEDPA requires deference to a state trial court’s factual findings
unless they are expressly rejected by, or are directly inconsistent with, the
highest state court’s ultimate resolution of the case.         See Williams v.
Quarterman, 551 F.3d 352, 358 (5th Cir. 2008). That is true even when the
state high court’s ultimate resolution is on procedural grounds. See Murphy v.
Davis, 901 F.3d 578, 596–97 (5th Cir. 2018) (holding that although the Court
of Criminal Appeals dismissed the application on procedural grounds, section
2254(e)(1) provides deference to the state trial court’s alternative merits
findings because they were not directly inconsistent with the Court of Criminal
Appeals’ dismissal based on abuse of the writ); Austin v. Davis, 876 F.3d 757,
776–79 (5th Cir. 2017) (applying section 2254(e)(1) deference to state-court fact
findings even when a state habeas application was rejected by the Court of
Criminal Appeals on procedural grounds as untimely). Because the Court of
Criminal Appeals’ procedural dismissal of Wardlow’s application did not cast
any doubt on the trial court’s factual findings, we must accept them unless




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                                No. 17-70029
Wardlow can rebut them by “clear and convincing evidence.” 28 U.S.C. §
2254(e).
      That deference to the state court factfinding that our caselaw and
AEDPA requires is a big part of why Wardlow cannot meet the COA threshold
on his substantive claims.    Essentially for the reasons the district court
provided when analyzing the merits of Wardlow’s claims under that deferential
lens, we do not find debatable its resolution of the three substantive claims
Wardlow seeks to appeal.
                                     ***
      The application for a certificate of appealability is DENIED.




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