     Case: 15-70037      Document: 00514413234         Page: 1    Date Filed: 04/03/2018




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

                                      No. 15-70037
                                                                                Fifth Circuit

                                                                              FILED
                                                                           April 3, 2018

BILLIE WAYNE COBLE,                                                      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 Western District of Texas
                              USDC No. 6:12-CV-39


Before STEWART, Chief Judge, DENNIS, and CLEMENT, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:*
       Billie Coble was convicted of capital murder and sentenced to death in a
Texas state court in 1990. This court granted him habeas relief and ordered a
retrial as to punishment. At his 2008 retrial, the State presented testimony
by two problematic witnesses. The first, Dr. Richard E. Coons, a psychiatrist,
testified that there was a probability that Coble would commit acts of violence



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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in the future. On direct appeal, the Texas Court of Criminal Appeals (CCA)
concluded that Coons’s testimony was unreliable and should have been
excluded. The second, A. P. Merillat, a Criminal Investigator with the Special
Prosecution Unit, testified about prison violence. Coble contends, and the
State does not dispute, that parts of Merillat’s testimony were fabricated.
Coble claims that the testimony of these witnesses violated his rights under
the Eighth Amendment. The CCA denied Coble’s state habeas application, and
the district court denied his application under 28 U.S.C. § 2254. This court
granted certificates of appealability as to whether “[t]he unreliable ‘junk’
science testimony of Dr. Coons” and “[t]he irrelevant, inflammatory, false, and
perjured testimony of A. P. Merillat” violated Coble’s constitutional rights.
Coble v. Davis, 682 F. App’x 261, 273–74 (5th Cir. 2017). This appeal followed. 1
                                I. Standard of Review
       We review the district court’s resolution of questions of law de novo,
applying the same standard as the district court. See Soffar v. Dretke, 368 F.3d
441, 463 (5th Cir. 2004). The district court’s factual findings are reviewed for
clear error. Id. As a general matter, federal courts may not grant habeas relief
unless “the applicant has exhausted the remedies available in the courts of the
State.” § 2254(b)(1)(A). Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), federal courts must give substantial deference to state
court decisions. See Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005). A
federal court cannot grant habeas relief regarding any claim adjudicated on
the merits in state court proceedings unless the state court’s adjudication
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme


       1The court’s order on Coble’s application for a certificate of appellability, Coble, 682
F. App’x at 263–73, provides a detailed factual and procedural background.
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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.” § 2254(d).
                                 II. Coons’s Testimony
A. Background
      At the punishment phase of Coble’s original trial, in 1990, Coons testified
as an expert witness for the State. Coble v. Quarterman, 496 F.3d 430, 446
n.14 (5th Cir. 2007). Coons opined that there was a probability that Coble
would continue to be dangerous in the future. Id. In 2008, following this
court’s grant of habeas relief to Coble, see id. at 448, Coble was retried, and
Coons again testified for the State.
      At the retrial, Coble objected to Coons’s testimony and requested a
Daubert 2 hearing. At the hearing, Coons testified that, in forming an opinion
about future dangerousness, his methodology consisted of looking at the
person’s history of violence, attitude about violence, the offense conduct, the
personality and general behavior of the person, the quality of their conscience,
whether they show remorse, and where the person will be located within the
prison system. He admitted that he had never published his methodology in
an academic journal and that he had not read any of the scholarly articles and
treatises provided by the State on the prediction of future dangerousness.
Following the Daubert hearing, the trial court held that Coons qualified as an
expert; that the subject matter of his testimony was appropriate for experts;
and that his testimony would assist the jury in deciding the case.
      In response to a lengthy hypothetical question that tracked the evidence
against Coble, Coons testified that there was a probability that Coble would



      2   Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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commit acts of violence in the future. The defense cross-examined Coons about
his methodology. During his cross-examination, Coons acknowledged that
Coble did not have a single disciplinary report during his eighteen years on
death row but theorized that death row inmates stay on good behavior while
their appeals and collateral proceedings are pending.
       The defense presented the testimony of Dr. Mark Cunningham, a
forensic psychologist, nationally recognized for his research concerning factors
that predict violence in prison and his research in capital sentencing.
Cunningham opined that Coble was in the group least likely to commit acts of
violence in the future. He detailed multiple factors that point to Coble having
a positive adjustment to prison and a reduced likelihood of serious violence in
prison. 3 Cunningham did not identify any factors that would put Coble at an
increased risk of violence. Cunningham’s opinion was that there is a “very,
very low probability” that Coble would commit serious violence if confined for
life in prison. He testified that his opinion is based on peer-reviewed scientific
methodology.
       Cunningham stated that, in contrast to his methodology, Coons’s
methodology for predicting violence in prison is notoriously unreliable and



       3 Cunningham testified that the risk of violence is high for inmates in their early
twenties and falls steadily as they get older—Coble was nearly sixty years old at the time of
the retrial in 2008. Cunningham noted that Coble had no disciplinary record during the
nineteen years he had been in prison, and there was no evidence that Coble had committed
any acts of violence in prison; he explained that the longer an inmate remains compliant and
without violent incidents the less likely it is that he will engage in violence in the future.
According to Cunningham, inmates who have earned a high school diploma or a GED, like
Coble has, have lower rates of violence in prison. Cunningham further testified that
individuals like Coble, who have had long-term employment in the community, are the best
adapted in prison and contribute to the order and stability of the prison setting. And
Cunningham noted that Coble had maintained contact with friends and relatives while in
prison and explained that inmates who continue to have links with the community tend to
have better adjustments in prison and are less likely to present a risk of violence.
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entirely speculative. He testified that the major psychological associations
considered Coons’s subjective risk-assessment method unreliable and
inconsistent with the standard of practice. Cunningham stated that there was
a 94.8 percent error rate in the accuracy of predictions of future dangerousness
and only a 1.4 percent error rate in the accuracy of predictions of improbability
of future dangerousness.
      Coble challenged the admission of Coons’s testimony on direct appeal
and in the state habeas proceedings. On direct appeal, he argued that Coons’s
testimony at Coble’s trial should have been excluded based on both Texas rules
of evidence and the Eighth Amendment. In its decision, the CCA stated:
      In points of error three and four, appellant contends that Dr.
      Richard      Coons’s    expert   testimony     concerning     future
      dangerousness was not admissible under Rule 702 because it was
      insufficiently reliable. We agree. In point of error five, appellant
      asserts that this type of evidence fails to meet the heightened
      reliability requirement of the Eighth Amendment, but the United
      States Supreme Court, in Barefoot v. Estelle, [463 U.S. 880 (1983)]
      rejected this argument, and we are required to follow binding
      precedent from that court on federal constitutional issues.
Coble v. State, 330 S.W.3d 253, 270 (Tex. Crim. App. 2010).
      Coble re-urged his constitutional claim in a state habeas petition, but the
CCA determined that it was procedurally barred, presumably as a claim
already presented and decided on appeal. Ex parte Coble, No. WR-39,707-03,
2012 WL 405481, at *1 (Tex. Crim. App. Feb. 8, 2012) (citing Ex parte Acosta,
672 S.W.2d 470 (Tex. Crim. App. 1984) (CCA need not address a habeas claim
that was raised and addressed on direct appeal)).
      Coble asserted the same constitutional claim in his § 2254 application.
The district court held that Coble failed to identify a constitutionally
cognizable claim for which federal habeas relief may be granted because the
evidence he complained of were not “so extreme that they constitute a denial
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of fundamental fairness.”          The court also concluded that any error was
harmless because Coble failed to show actual prejudice under the Brecht 4
standard, particularly in the light of the extensive and detailed cross-
examination to which Coons was subjected and the contradicting testimony of
Cunningham, Coble’s expert.
B. Analysis
       As an initial matter, Coble argues that our review of this claim is not
constrained by AEDPA because the CCA did not adjudicate his claim that
Coons’s testimony in this case violated the Eighth Amendment. Although the
State maintains that the CCA did adjudicate the claim on the merits, through
its determination that Barefoot forecloses the argument, Coble responds that
his claim that the admission of Coons’s testimony in his particular case was
unconstitutional was not addressed by the CCA’s conclusion that Barefoot
foreclosed a categorical challenge to psychological future-dangerousness
evidence. We need not decide, however, what standard applies because Coble’s
claim cannot succeed even under de novo review.
       Coble argues primarily that the introduction of Coons’s unreliable
testimony      violated     the    Eighth     Amendment’s          heightened      reliability
requirement for capital cases. We are bound to reject this argument. The
Supreme Court has recognized that the Eighth Amendment requires
heightened reliability in death penalty cases. E.g., Spaziano v. Florida, 468
U.S. 447, 456 (1984) (“We reaffirm our commitment to the demands of
reliability in decisions involving death.”). However, this court has explained,
“[W]here the [Supreme] Court discusses the need for reliability in the Eighth



       4 Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (holding that an error is harmless
unless it resulted in a “substantial and injurious effect or influence in determining the jury’s
verdict”).
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Amendment context, it is not talking about the appropriate sources for
information introduced at sentencing or even, more generally, about the
reliability of evidence.” United States v. Fields, 483 F.3d 313, 336 (5th Cir.
2007). Instead, “[r]eliable death sentences, under the Eighth Amendment, are
those that result from a sentencing scheme that guards against arbitrariness
by streamlining discretion at the eligibility stage, and then allows for the
exercise of wide-ranging discretion at the selection stage.” Id. Notably, Coble
does not point to a single case in which a court found the admission of
unreliable evidence to violate the Eighth Amendment. Accordingly, Coble
presents no cognizable Eighth Amendment claim.
      A constitutional claim concerning the admission of unreliable evidence
may be cognizable under the Due Process Clause of the Fourteenth
Amendment “when evidence ‘is so extremely unfair that its admission violates
fundamental conceptions of justice.’” Perry v. New Hampshire, 565 U.S. 228,
237 (2012) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)).
However, Coble does not argue in his brief on appeal that the admission of
Coons’s testimony violated the Due Process Clause, nor has he exhausted such
a claim before the state courts. We therefore cannot consider whether the
admission of Coons’s testimony violated Coble’s due process rights.          See
§ 2254(b)(1)(A).   Coble has therefore failed to establish a constitutional
violation.
                         III. Merillat’s Testimony
      The State presented Merillat’s testimony in its rebuttal to Cunningham’s
testimony at Coble’s penalty retrial. Merillat, a Criminal Investigator with the
Special Prosecution Unit, which prosecutes crimes committed in prisons or by
employees of the prison system, testified that many violent acts committed in
prison go unreported and that there are abundant opportunities for such

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violence. As an example of unreported prison violence, he testified that a
general-population inmate at the Telford Unit in Bowie County was beaten,
tortured, and starved to death by his cellmate and was discovered dead in his
cell long after he had died. Coble claims that Merillat fabricated the Telford
Unit incident.
        On direct appeal, Coble challenged the admission of Merillat’s testimony,
generally, on several grounds, though he did not contend that Merillat’s
testimony was fabricated. In his state habeas application, Coble asserted that
Merillat’s testimony was fabricated and that it violated the Eighth
Amendment’s heightened reliability requirement. The CCA rejected this claim
as procedurally barred, apparently as a claim already presented and decided
on appeal. Coble, 2012 WL 405481, at *1 (citing Acosta, 672 S.W.2d 470 (CCA
need not address a habeas claim that was raised and addressed on direct
appeal)). Coble advanced the same claim in his § 2254 application. The district
court denied relief after holding, inter alia, that any error in the admission of
Merillat’s testimony was harmless because it was only a small part of the
State’s case.
        Before this court, Coble argues that Merillat’s testimony regarding the
Telford Unit incident violated the Eighth Amendment’s heightened reliability
requirement. He disclaims any contention that the State knew of the false
nature of Merillat’s testimony at the time of his retrial. Coble raised this claim
in both his state and federal habeas application, and it is therefore properly
before us.
        As previously explained, this court has held that the Eighth Amendment
does not affect the admissibility of evidence vel non. See Fields, 483 F.3d at
336.     Coble provides no other support for his proposition that the State’s
unknowing presentation of materially inaccurate evidence violates a

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defendants constitutional rights.   Accordingly, Coble’s claim fails on the
merits.
                             IV. Conclusion
     For these reasons, we AFFIRM the district court’s judgment.




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