     Case: 15-70005   Document: 00513250826    Page: 1   Date Filed: 10/28/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 15-70005                   United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
TILON LASHON CARTER,                                           October 28, 2015
                                                                 Lyle W. Cayce
             Petitioner - Appellant                                   Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

             Respondent - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Petitioner-appellant Tilon Carter has filed a motion for a certificate of
appealability (COA). We DENY his motion.
                          FACTS AND PROCEEDINGS
      Carter and his girlfriend, Letheka Allen, needed money. Carter v. State,
No. AP-75603, 2009 WL 81328, at *1 (Tex. Crim. App. Jan. 14, 2009)
(unpublished). Allen’s mother suggested that they rob James Tomlin, an 89-
year-old man who was known to keep cash in his home. Id. After Carter and
Allen gained entry to Tomlin’s home, Carter bound Tomlin’s hands and feet
with duct tape. Id. Tomlin died and was found face down on the carpet with
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his hands and feet bound and a piece of tape on his cheek. Id. Carter gave two
confessions. Id. He contended that Tomlin was alive when Carter and Allen
left and suggested that Tomlin had not been smothered. Id. But the medical
examiner determined that the cause of Tomlin’s death was “smothering with
positional asphyxia.” Id. at *2.
      A Texas state jury convicted Carter of capital murder and sentenced him
to death. Id. at *1. He appealed to the Texas Court of Criminal Appeals (CCA),
which affirmed his conviction and sentence. Id. at *6. He then filed a post-
conviction application for writ of habeas corpus in state court. A state trial
judge entered findings of fact and conclusions of law and recommended that
the CCA deny relief. With a few exceptions, the CCA adopted the trial judge’s
findings of fact and conclusions of law and denied habeas relief. Ex Parte
Carter, No. WR-70722-01, 2010 WL 5232998 (Tex. Crim. App. Dec. 15, 2010)
(unpublished).
      Carter then filed a petition for writ of habeas corpus in federal district
court. Carter v. Stephens, No. 4:10-CV-969-Y, 2015 WL 918677, at *1 (N.D.
Tex. Mar. 4, 2015). The district court denied that petition and denied a COA.
Id. at *8.
                            STANDARD OF REVIEW
      A COA should be granted when a habeas petitioner “has made a
substantial showing of the denial of a constitutional right.”          28 U.S.C.
§ 2253(c)(2). “[A] petitioner must ‘sho[w] that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (alteration in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)) (some internal quotation marks omitted).


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      Because all of Carter’s claims have been rejected on the merits by state
courts, he can succeed only if the state courts’ adjudications either “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 “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). Thus, to be entitled to a COA, Carter must
demonstrate that it is debatable that the state court decisions were contrary
to or unreasonable applications of clearly established Supreme Court
precedent or were unreasonable determinations of the facts, or that Carter’s
arguments on these issues deserve further encouragement.
                                  DISCUSSION
      Carter requests a COA as to three issues. We deal with each in turn.
A. Ineffective Assistance of Counsel Regarding Expert Witness
      Carter first requests a COA on the issue of his counsel’s ineffectiveness
for failing “timely to contact, confer with, and produce in court the testimony
of a forensic pathologist to testify regarding the cause and manner of the
victim’s death.” The Tarrant County Medical Examiner, Dr. Nizam Peerwani,
performed an autopsy and testified that Tomlin’s death was caused by
“smothering with positional asphyxia.” Positional asphyxia involves a person
being stuck in a position that prevents him from breathing. By contrast,
smothering involves pressing something (such as a hand) against someone’s
nose and mouth to prevent breathing. Because smothering is an intentional
behavior, Dr. Peerwani’s testimony that Tomlin’s death was caused by both
smothering and positional asphyxia was important to prove that Carter had
the specific intent to cause Tomlin’s death, which was necessary for a capital
murder conviction.


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      Carter’s theory of the case was that he had not smothered Tomlin, but
that Tomlin had instead accidentally died of only positional asphyxia. Carter’s
counsel tried to find a forensic expert who would testify that Tomlin’s death
had been caused solely by positional asphyxia or some other accidental cause.
But his counsel did not move for the appointment of an expert until over a year
after his initial counsel was appointed. Starting about two months before trial,
Carter’s counsel contacted and spoke with eight potential expert witnesses.
Most of the contacted experts were too busy to take the case, although at least
one expert was “not interested in working for the defense” and another “was
reluctant to involve himself in the case in light of Dr. Peerwani’s involvement.”
      Eventually Carter’s counsel found a forensic pathologist, Dr. Charles
Harvey, whom they hired to look at the autopsy and other reports. Carter’s
counsel sent the relevant records to Dr. Harvey shortly before Carter’s trial
began. The day after testimony began, Dr. Harvey left Carter’s counsel a
phone message saying that he “agreed with Dr. Peerwani and that his findings
did not substantially differ from Dr. Peerwani’s.” Carter’s counsel decided not
to call Dr. Harvey. Carter ultimately was convicted of capital murder and
sentenced to death.
      Carter’s state habeas petition argued that his trial counsel had rendered
constitutionally ineffective assistance by failing “to timely contact, confer with,
and present the testimony of a forensic pathologist.” The state trial court held
a hearing on this matter and applied the familiar standard of Strickland v.
Washington, 466 U.S. 668 (1984), to determine whether trial counsel was
constitutionally ineffective. Under Strickland, a defendant asserting a claim
of constitutionally deficient counsel must first “show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
The defendant then must show not simply that “the errors had some
conceivable effect on the outcome of the proceeding,” but rather that “there is
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                                  No. 15-70005
a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 693–94. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694.
      The state habeas court rejected Carter’s claim under this standard. It
held that his counsel’s failure to call Dr. Harvey as a witness was not deficient
performance but was instead a reasonable strategic decision, given that Dr.
Harvey told them that he had “reviewed everything, agreed with Dr. Peerwani,
and could not help the defense.” But it held that counsel’s substantial delay in
procuring and consulting with a forensic expert was deficient performance.
The state habeas court went on to hold that the assistance was not
constitutionally deficient, however, because Carter had not been prejudiced
under Strickland’s second prong. In particular, the state habeas court found
that Dr. Harvey’s written report regarding Tomlin’s death “did not, and was
not intended to, dispute or contradict Dr. Peerwani’s autopsy findings because
Dr. Harvey agreed that the cause of death was smothering with positional
asphyxia.” Further, “[h]ad Dr. Harvey been called to testify at [Carter’s] trial,
he would not have rendered an opinion based on natural causes that would
have contradicted Dr. Peerwani’s conclusions regarding the cause and manner
of Tomlin’s death.” Thus, because Dr. Harvey did not contradict Dr. Peerwani’s
finding that Tomlin’s death was at least partly caused by smothering, there
was no “reasonable probability of changing the results of the proceedings” by
consulting with Dr. Harvey earlier.
      Carter argues that the state habeas court’s decision debatably involved
an “unreasonable determination of the facts.”           28 U.S.C. § 2254(d)(2).
Specifically, he argues that the state habeas court unreasonably determined




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                                       No. 15-70005
that Carter was not prejudiced by his counsel’s failure to introduce Dr.
Harvey’s expert testimony. 1
       At the state habeas proceeding, Dr. Harvey provided live testimony
about his expert opinion on the cause of Tomlin’s death. He repeatedly testified
that he did not disagree with Dr. Peerwani’s autopsy report. He also testified
that “[t]here is smothering that’s going on, and that’s volitional.” While Carter
points to a few inconsistencies between Dr. Harvey’s testimony and Dr.
Peerwani’s, reasonable jurists would not debate whether the state habeas
court’s decision was reasonable. In addition to repeatedly emphasizing that he
did not disagree with the prosecution’s expert witness, Dr. Harvey contradicted
Carter’s theory of the case by testifying that Tomlin had been smothered. The
state habeas court was undebatably reasonable when it determined that there
was no reasonable probability that Dr. Harvey’s testimony would have helped
the defense.
B. Challenge to Denial of Instruction that Jurors Find Absence of
Mitigating Circumstances Beyond a Reasonable Doubt
       Carter next complains that the trial judge refused to give a jury
instruction providing that the jurors had to find the absence of mitigating
circumstances beyond a reasonable doubt. Carter candidly admits that this



       1 Carter does not argue that his trial counsel could have found a better expert witness
if they had been quicker to discover that Dr. Harvey was unsuitable. Moreover, any such
argument would fail because Carter has not produced any evidence that another expert could
have provided better testimony for the defense.
        [W]e require petitioners making claims of ineffective assistance based on
        counsel’s failure to call a witness to demonstrate prejudice by “nam[ing] the
        witness, demonstrat[ing] that the witness was available to testify and would
        have done so, set[ting] out the content of the witness’s proposed testimony, and
        show[ing] that the testimony would have been favorable to a particular
        defense.”
Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010) (quoting Day v. Quarterman, 566 F.3d
527, 538 (5th Cir. 2009)) (all but first alteration in original). Cf. Hinton v. Alabama, 134 S.
Ct. 1081, 1089 (2014) (“We do not today launch federal courts into examination of the relative
qualifications of experts hired and experts that might have been hired.”).
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challenge is foreclosed by our precedent. See, e.g., Rowell v. Dretke, 398 F.3d
370, 378 (5th Cir. 2005) (“No Supreme Court or Circuit precedent
constitutionally requires that Texas’s mitigation special issue be assigned a
burden of proof.”). “We are bound by our precedent and must conclude that
[Carter] has not made a substantial showing with respect to the denial of his
right to a jury finding of beyond a reasonable doubt” regarding the lack of
mitigating factors. Avila v. Quarterman, 560 F.3d 299, 315 (5th Cir. 2009).
       Carter argues that we are not bound by circuit precedent because only
Supreme Court precedent is relevant for § 2254(d) purposes. He cites Parker
v. Matthews, 132 S. Ct. 2148 (2012) (per curiam), for this proposition. We
disagree with his reading of Parker. Parker merely held that circuit precedent
cannot create clearly-established law under § 2254(d)(1). But “an appellate
panel may, in accordance with its usual law-of-the-circuit procedures, look to
circuit precedent to ascertain whether it has already held that the particular
point in issue is clearly established by Supreme Court precedent.” Marshall v.
Rodgers, 133 S. Ct. 1446, 1450 (2013) (per curiam). We look to circuit precedent
only to determine that we have already held that Carter’s burden-of-proof
argument fails under § 2254(d)(1), so we do not run afoul of Parker.
C. Challenge to Instruction that Ten Jurors Must Agree to Sentence of
Life Imprisonment
       Carter’s final complaint is that the jury was instructed that ten jurors
had to agree on special issues in his favor before he could receive a sentence of
life imprisonment. 2 In fact, if the jurors had failed to agree on a sentence,
Carter would have received a life-imprisonment sentence. Carter argues that




       2 In contrast, all twelve jurors needed to agree before imposing a death sentence. This
rule is known as the “10-12 Rule” or the “12-10 Rule.” Druery v. Thaler, 647 F.3d 535, 542,
543 n.4 (2011).
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it was unconstitutional to mislead the jury “into believing that their failure to
agree [would] not result [in] a judgment for the defendant.”
       Binding circuit precedent forecloses Carter’s argument. See, e.g., Druery,
647 F.3d at 542–45. Supreme Court precedent forbids jury instructions that
misstate the jury’s role under local law, but we have held that the Texas jury
instruction about the 10-12 rule does not misstate the jury’s role. Id. We have
also held that this argument does not raise a substantial issue warranting the
issuance of a COA. Id. Accordingly, given the absence of any intervening
change in the law, we are bound by our precedent and must conclude that
Carter has not made a substantial showing with respect to the instruction that
ten jurors had to agree to impose a life sentence. 3
                                     CONCLUSION
       For the foregoing reasons, we DENY Carter’s motion for a COA.




       3We again look to circuit precedent only “to ascertain whether [we have] already held
that the particular point in issue is clearly established by Supreme Court precedent,”
Marshall, 133 S. Ct. at 1450 (2013).
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