     Case: 17-70020       Document: 00514467251         Page: 1     Date Filed: 05/10/2018




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

                                      No. 17-70020
                                                                                Fifth Circuit

                                                                              FILED
                                                                          May 10, 2018

BLAINE KEITH MILAM,                                                      Lyle W. Cayce
                                                                              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. 4:13-CV-545



Before ELROD, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       In 2010, Petitioner Blaine Keith Milam was convicted for the capital
murder of thirteen-month-old Amora Bain Carson and sentenced to death. His
direct appeal and state collateral proceedings were unsuccessful, as was his 28
U.S.C. § 2254 petition for a writ of habeas corpus in the district court. He now
applies for a certificate of appealability (COA), seeking to appeal the district
court’s denial of his petition. For the reasons that follow, we deny the application.



       *Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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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                                        I
      We provide only a brief summary of the underlying facts here. We discuss
the specific facts pertinent to each of the relevant COA issues in the appropriate
sections below.
      Milam was charged with capital murder for the death of Amora Bain Car-
son. During the guilt phase of his jury trial, the State’s evidence showed that
Amora died from homicidal violence, due to multiple blunt-force injuries and
possible strangulation. A search of Milam’s trailer, the scene of the murder, re-
vealed blood-spatter stains consistent with blunt-force trauma, blood-stained
bedding and baby clothes, blood-stained baby diapers and wipes, a tube of Astro-
glide lubricant, and a pair of jeans with blood stains on the lap. DNA testing
showed that the blood on these items was Amora’s. Milam’s sister visited Milam
in jail a few days after the murder, and that night she told her aunt that she
needed to get to Milam’s trailer because Milam told her to get evidence out from
underneath it. Milam’s aunt called the police, who immediately obtained a
search warrant and, in a search underneath the trailer, discovered a pipe wrench
inside a clear plastic bag that had been shoved down a hole in the floor of the
master bathroom. Forensic analysis revealed components of Astroglide on the
pipe wrench, the diaper Amora had been wearing, and the diaper and wipes
collected from the trailer. The State also proffered testimony from Shirley
Broyles, a nurse at the Rusk County Jail, who testified that Milam told her, “I’m
going to confess. I did it. But Ms. Shirley, the Blaine you know did not do this.
My dad told me to be a man, and I’ve been reading my Bible. Please tell Jesseca
[Amora’s mother] that I love her.” See generally Milam v. State, No. 76,379, 2012
WL 1868458, at *1–6 (Tex. Crim. App. May 23, 2012). The jury convicted Milam
of capital murder, in violation of Texas Penal Code section 19.03(a)(8).
      After a separate punishment hearing, the jury voted in favor of the death




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penalty, and the trial court sentenced Milam to death. The Texas Court of Crim-
inal Appeals affirmed the conviction and sentence on direct appeal. Milam did
not file a petition for a writ of certiorari.
      Milam filed an application for writ of habeas corpus in State court on May
21, 2012. On September 11, 2013, the Texas Court of Criminal Appeals adopted
the trial court’s recommended findings of fact and conclusions of law and de-
nied state habeas relief. Milam then filed a petition for habeas relief in federal
district court. On August 16, 2017, the district court denied the petition on all of
Milam’s twenty-one claims (some with multiple subclaims) and denied Milam
a certificate of appealability.
      Milam now seeks a COA in this court on six claims: (1) trial counsel was
ineffective for failing to request a jury instruction during the punishment phase
on voluntary intoxication as mitigation; (2) the trial court erred in failing to
include a jury instruction on voluntary intoxication; (3) appellate counsel was
ineffective for failing to raise, in a motion for new trial or on direct appeal, the
ineffectiveness of trial counsel for failing to request and the trial court’s failure
to include a jury instruction on voluntary intoxication; (4) state habeas counsel
was ineffective for failing to raise the first three claims in a state habeas ap-
plication; (5) appellate and state habeas counsel were ineffective for failing to
assert a sufficiency of the evidence claim on the issue of whether Milam was
intellectually disabled; and (6) appellate and state habeas counsel were ineffec-
tive for failing to allege claims on appeal that Milam’s death sentence violates
Roper v. Simmons, 543 U.S. 551 (2005), because the evidence demonstrated that
he was functioning on an emotional level of a person between eight and sixteen
years old.
                                          II
      Federal habeas proceedings are subject to the rules prescribed by the Anti-
terrorism and Effective Death Penalty Act (AEDPA). Matamoros v. Stephens,


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783 F.3d 212, 215 (5th Cir. 2015); see 28 U.S.C. § 2254. Under AEDPA, a certif-
icate of appealability is a jurisdictional prerequisite to appealing the denial of
habeas relief. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322,
335–36 (2003). A COA may issue upon “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). “At the COA stage, the only ques-
tion is whether the applicant has shown that ‘jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.’” Buck v. Davis, 580 U.S. —, —, 137 S. Ct. 759, 773 (2017) (quot-
ing Miller-El, 537 U.S. at 327). “When . . . the district court denies relief on pro-
cedural grounds, the petitioner seeking a COA must show both ‘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.’” Gonzalez v.
Thaler, 565 U.S. 134, 140–41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)).Whatever the basis for the denial, the court must bear in mind that
“[w]here the petitioner faces the death penalty, ‘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)), abrogated on other grounds by Ayestas v. Davis, 584 U.S. —, 138 S.
Ct. 1080 (2018).
      “In assessing whether the district court’s rejection of [a petitioner’s] claims
is debatable, we consider them under the deference AEDPA mandates federal
courts show their state peers.” Prystash v. Davis, 854 F.3d 830, 835 (5th Cir.
2017). “A federal court should not grant habeas relief unless the petitioner has
exhausted the remedies available in state court for reviewing the claim.” Id.; see
also 28 U.S.C. § 2254(b). If the state court has adjudicated a petitioner’s habeas
claim on the merits, a federal court may not grant habeas relief unless the state


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court’s adjudication of the claim was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an unrea-
sonable determination of the facts in light of the evidence presented in the State
court proceeding,” id. § 2254(d)(2). Regarding subsection (1), “[a] state court’s
decision is deemed contrary to clearly established federal law if it reaches a legal
conclusion in direct conflict with a prior decision of the Supreme Court[,] . . . if
it reaches a different conclusion than the Supreme Court based on materially
indistinguishable facts,” Gray v. Epps, 616 F.3d 436, 439 (5th Cir. 2010), or “if
the state court applies a rule different from the governing law set forth in [Su-
preme Court] cases,” Bell v. Cone, 535 U.S. 685, 694 (2002). And “[a] state court’s
decision constitutes an unreasonable application of clearly established federal
law if it is ‘objectively unreasonable.’” Gray, 616 F.3d at 439. “When, as here, a
habeas petitioner’s claim has been adjudicated on the merits in state court, re-
view under § 2254(d)(1) is limited to the record that was before the state court.”
Loden v. McCarty, 778 F.3d 484, 493 (5th Cir. 2015) (citation and internal quo-
tation marks omitted). Regarding subsection (2), a federal habeas petitioner
challenging the factual basis for a prior state court decision is successful only if
he rebuts the “presumption of correctness” of the state court’s factual findings
“by clear and convincing evidence.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)
(quoting 28 U.S.C. § 2254(e)(1)).
      “This is a ‘difficult to meet,’ and ‘highly deferential standard for evaluat-
ing state-court rulings, which demands that state-court decisions be given the
benefit of the doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations
omitted) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). For good reason: “Section 2254(d)
reflects the view that habeas corpus is a ‘guard against extreme malfunctions in
the state criminal justice systems,’ not a substitute for ordinary error correction


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through appeal.” Richter, 562 U.S. at 102–03 (quoting Jackson v. Virginia, 443
U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the judgment)); see also Wood
v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007) (“We have repeatedly admon-
ished that we do not sit as a super state supreme court on a habeas corpus pro-
ceeding to review error under state law.” (citation omitted)).
                                        III
      The district court and both parties discuss Milam’s first four claims to-
gether, so we do so, as well. Milam principally contends that trial counsel was
ineffective for presenting evidence regarding his drug use and “drug induced
psychosis” at the time of the crime, but then failing properly to seek a jury in-
struction on voluntary intoxication as mitigation at the punishment phase. The
other three claims grow out of claim one: he argues that the trial court failed to
include a requested voluntary intoxication instruction, that appellate counsel
was ineffective for failing to raise the first two issues in a motion for a new trial
or on direct appeal, and that state habeas counsel was ineffective for failing to
raise any of the previous three issues on collateral review.
      As the district court noted, Milam concedes that he exhausted none of
these claims. “As a rule, a state prisoner’s habeas claims may not be entertained
by a federal court ‘when (1) a state court [has] declined to address [those] claims
because the prisoner had failed to meet a state procedural requirement, and
(2) the state judgment rests on independent and adequate state procedural
grounds.’” Maples v. Thomas, 565 U.S. 266, 280 (2012) (quoting Walker v. Martin,
562 U.S. 307, 316 (2011) (internal quotation marks omitted)). But Milam argues
that the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012), per-
mits him to raise them on federal habeas review. In Martinez, the Court “held
that a petitioner may establish cause to excuse a procedural default as to an
ineffective-assistance-of-trial-counsel claim by showing that (1) his state habeas
counsel was constitutionally deficient in failing to include the claim in his first


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state habeas application; and (2) the underlying ineffective-assistance-of-trial-
counsel claim is ‘substantial.’” Reed v. Stephens, 739 F.3d 753, 774 (5th Cir.
2014) (quoting Martinez, 566 U.S. at 13–14). A claim is “substantial” where the
petitioner “demonstrate[s] that the claim has some merit,’” but a claim is “in-
substantial” where the claim “does not have any merit” or is “wholly without
factual support.” Martinez, 566 U.S. at 14, 16; see also generally Trevino v. Thaler,
569 U.S. 413 (2013) (applying Martinez to the Texas procedural system).
      So for our purposes, as to Milam’s first claim, we must decide whether
jurists of reason could debate whether his ineffective-assistance-of-trial-counsel
claim has some merit. The clearly established federal law governing ineffective
assistance claims is Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland, a petitioner must first prove that counsel’s performance was defi-
cient: “[t]he benchmark for judging any claim on ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial pro-
cess that the trial cannot be relied on as having produced a just result.” Id. at
686 (emphasis added). Counsel should be “strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reason-
able professional judgment,” and a petitioner cannot overcome that presump-
tion unless he shows that counsel failed to act “reasonabl[y] considering all the
circumstances.” Id. at 688, 690. The petitioner must also prove prejudice—“that
there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 691–92, 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome,” id. at 694, and ‘[t]he likelihood of a different result must be substan-
tial, not just conceivable,” Richter, 562 U.S. at 112. Review of the state court’s
decision on ineffective assistance is “doubly deferential”—the court “take[s] a
‘highly deferential’ look at counsel’s performance, through the ‘deferential lens
of § 2254(d).’” Pinholster, 563 U.S. at 190 (citation omitted) (quoting Strickland,


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466 U.S. at 689, and Knowles v. Mirzayance, 556 U.S. 111, 121 n.2, 123 (2009)).
We need not evaluate both prongs of the test if a petitioner fails to satisfy either
one. Strickland, 466 U.S. at 697.
      We agree with the district court that Milam has failed to show that his
ineffective-assistance-of-trial-counsel claim has any merit sufficient to overcome
the Martinez hurdle, and thus, he has failed to make the showing of debatability
required for issuance of a COA. The district court comprehensively detailed trial
counsel’s actions and appropriately concluded that those actions did not fall
below the standard set by Strickland. Trial counsel filed a pretrial motion ad-
dressing Texas Penal Code § 8.04—which provides that “temporary insanity
caused by intoxication” can be considered in mitigation of punishment—and
informed the trial court that he anticipated introducing evidence during the
punishment phase that Milam was voluntarily intoxicated at the time of the
offense. Trial counsel asked for an instruction on voluntary intoxication, but the
court carried the motion, along with fourteen others, until a later date.
      Then, during trial, trial counsel proffered several witnesses to testify re-
garding Milam’s history of drug use and his “drug induced psychosis” on the
night of the murder. After the close of punishment evidence, trial counsel stated
to the court, “You had carried a couple of motions that are appropriate to have
you rule on at this time,” and though he did not specifically mention the motion
seeking the voluntary intoxication instruction, he mentioned a motion regard-
ing Milam’s mental age and also referenced “other arguments made and set forth
in our motion that you carried.” The trial court denied the motion and did not
give the instruction.
      Despite this denial, one of Milam’s trial attorneys, during closing argu-
ment, still urged the jury to consider the voluntary intoxication evidence as
mitigating. Counsel mentioned the experts’ testimony on the effects of meth-
amphetamine, one expert’s opinion that the facts of the crime were “insanity,”


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and argued that there were mitigating circumstances which would justify im-
position of a life sentence rather than death, Milam’s other trial attorney argued
that Milam was prone to drug addiction because of family history of addiction
and told the jury, “You know, we talk about intoxication or drug use is not a
defense to the ultimate crime [sic]. It is a defense in mitigation to whether or
not you should kill somebody for what happened.” During punishment-stage
jury instructions, the court instructed the jurors to “consider mitigating evi-
dence to be evidence that a juror might regard as reducing the defendant’s moral
blameworthiness.” And the jury was asked in Special Issue Number Four whether
“there is a sufficient mitigating circumstance or circumstances to warrant a sen-
tence of life imprisonment rather than a death sentence be imposed.”
      The district court concluded, based on this record, that “[c]ounsel’s repre-
sentation cannot be viewed as ineffective simply because the trial court denied
the motion,” “counsel appropriately pursued this issue and presented it to the
jury,” and “[c]ounsel’s representation did not fall below an objective standard
of reasonableness.” We agree with the district court’s conclusion and find that
Milam has failed to show it is debatable whether he satisfies the deficiency prong
of Strickland. Milam faults his counsel for, in essence, not explicitly bringing
up again the motion for a jury instruction on voluntary intoxication. But despite
those specific words not being used, it cannot be said that trial counsel did not
emphasize repeatedly that the jury consider voluntary intoxication evidence as
mitigation. We therefore find that Milam’s first claim is insubstantial, does not
satisfy Martinez, and does not warrant a COA.
      We also agree with the district court’s conclusions regarding Milam’s
claims two through four. As to claim two, Martinez/Trevino allows circumven-
tion of a procedural bar only for claims of ineffective assistance of trial counsel,
see, e.g., Clark v. Davis, 850 F.3d 770, 780–81 (5th Cir. 2017), not a claim that
the trial court erred by failing to give a requested jury instruction. As to claim


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three, the Supreme Court has held that Martinez does not extend to ineffective
assistance of appellate counsel claims. Davila v. Davis, 582 U.S. —, 137 S. Ct.
2058, 2065 (2017). And as to claim four, Martinez “did not alter our rule that . . .
‘[b]ecause appointment of counsel on state habeas is not constitutionally re-
quired, any error committed by an attorney in such a proceeding cannot be con-
stitutionally ineffective.’” In re Sepulvado, 707 F.3d 550, 554 (5th Cir. 2013)
(quoting Fairman v. Anderson, 188 F.3d 635, 643 (5th Cir. 1999) (internal quo-
tation marks omitted)); see also Martinez, 566 U.S. at 8 (noting “the general rule
that there is no constitutional right to counsel in collateral proceedings”). Thus,
no standalone claim for ineffective assistance of state habeas counsel is permit-
ted under Martinez. Milam fails to show an entitlement to a COA on any of these
three claims.
                                        IV
      In claim five, Milam contends that the evidence at trial was sufficient to
demonstrate that he was intellectually disabled. And in claim six, he argues that
the evidence at trial was sufficient to demonstrate that he was functioning at
somewhere between an eight- and sixteen-year-old level, so his death sentence
contravenes the Supreme Court’s holding in Roper v. Simmons, 543 U.S. 551
(2005), that persons below the age of eighteen cannot be executed. On these bases,
in both claims, he argues that appellate counsel was ineffective for not pursuing
this claim on appeal, and that habeas counsel was ineffective for not bringing a
claim of ineffective assistance of appellate counsel. Milam concedes that these
claims are also unexhausted.
      Both claims five and six fail in part for the same reasons claims three and
four, respectively, failed: Martinez permits neither an ineffective assistance of
appellate counsel claim nor a standalone claim for ineffective assistance of state
habeas counsel. See Davila, 137 S. Ct. at 2065; In re Sepulvado, 707 F.3d at 554.
Reasonable jurists could not debate these findings.


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      Milam could theoretically bring claim five under Martinez if he could show,
as a threshold matter, a substantial claim that his trial counsel was ineffective
on this issue. But in his application, he makes but a single reference to trial
counsel in his discussion of claim five: “Trial counsel failed to challenge the use
of [one of the State expert’s intelligence tests] and was thus ineffective.” This
is not enough. See United States v. Demik, 489 F.3d 644, 646 (5th Cir. 2007)
(“[C]onclusory allegations are insufficient to raise cognizable claims of ineffec-
tive assistance of counsel.” (quoting Miller v. Johnson, 200 F.3d 274, 282 (5th
Cir. 2000))).
      And specifically as to claim six, the district court was also correct that the
question is closed in this circuit whether executing a defendant with a devel-
opmental age below eighteen violates the Constitution—it does not. See United
States v. Bernard, 762 F.3d 467, 483 (5th Cir. 2014) (“The Roper Court did not
hold that the Eighth Amendment prohibits a death sentence for an offender with
a ‘mental age’ of less than 18.” (alterations removed) (quoting In re Garner, 612
F.3d 533, 535–36 (6th Cir. 2010))). Milam has not established an entitlement to
a COA on either of these two claims.
                                        V
      Finally, Milam faults the district court for failing to order an evidentiary
hearing on his habeas petition. A hearing is required “[u]nless the motion and
the files and records of the case conclusively show that the prisoner is entitled
to no relief.” 28 U.S.C. § 2255(b). A district court’s decision not to hold an evi-
dentiary hearing is reviewed for abuse of discretion. Richards v. Quarterman,
566 F.3d 553, 562 (5th Cir. 2009). “A trial court abuses its discretion when its
ruling is based on an erroneous view of the law or a clearly erroneous assess-
ment of the evidence.” United States v. Murra, 879 F.3d 669, 678 (5th Cir. 2018)
(quoting Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 535 (5th Cir. 2013)). In light



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of the foregoing discussion, we conclude that reasonable jurists could not dis-
agree with the district court’s decision not to sua sponte order an evidentiary
hearing. No COA on this issue is warranted.
                                    *    *    *
      We conclude that reasonable jurists could not disagree with the district
court’s disposition of any of Petitioner’s claims. Accordingly, we DENY in full
Petitioner’s application for a certificate of appealability.




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