     Case: 16-20268      Document: 00515021897         Page: 1    Date Filed: 07/03/2019




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

                                                                               FILED
                                      No. 16-20268                          July 3, 2019
                                                                          Lyle W. Cayce
KEITH CHESTER HILL,                                                            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 Southern District of Texas
                                 USDC No. 4:15-CV-818


                         ON PETITION FOR REHEARING
Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PER CURIAM:*
       The petition for panel rehearing is denied. The opinion filed in this case,
Hill v. Davis, __ F. App’x __, 2019 WL2494528 (5th Cir. June 14, 2019) (per
curiam), is withdrawn, and the following opinion, which clarifies this court’s
alternative holding in Section II.B, is substituted.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20268
      Keith Chester Hill was sentenced by a Texas jury to ninety-nine years
for aggravated sexual assault. During the punishment phase, counsel failed to
object to multiple pieces of evidence that connected Hill to four additional
sexual assaults in the area. The state habeas court determined that while
Hill’s counsel performed deficiently in failing to object, the errors did not
prejudice Hill with the jury.
      Hill filed a 28 U.S.C. § 2254 habeas petition, arguing that the state
habeas court acted contrary to “clearly established federal law” when it
assessed the prejudicial impact of each error individually rather than
cumulatively. The district court denied the petition. It concluded that the
Supreme Court has never affirmatively adopted a cumulative error doctrine
with respect to ineffective assistance of counsel claims. Hill therefore did not
meet his burden under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA).
      We agree. Under AEDPA, a federal court may not grant habeas relief
unless the state court decision is “contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme
Court.” 28 U.S.C. § 2254(d) (emphasis added). Hill does not point to any
Supreme Court precedent that instructs lower courts to employ a cumulative
prejudice analysis. Moreover, we conclude that, in any event, the alleged
errors by counsel did not prejudice Hill, even if considered cumulatively.
                                       I.
      Keith Chester Hill was charged and convicted for aggravated sexual
assault after forcing a nineteen-year-old man at gunpoint to perform oral sex.
During the punishment phase, the government introduced evidence that
connected him to four additional attacks in the area. The government used
this evidence to argue for a life sentence, stressing that Hill was a calculated
and predatory robber, abductor, and rapist, from whom society needed to be
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                                  No. 16-20268
protected. The jury handed down a ninety-nine-year sentence, along with a
$10,000 fine..
      Hill does not contest his conviction. But he has initiated a series of direct
and post-conviction challenges to his sentence.
      In his first challenge, Hill appealed the state trial court’s decision to
enter into evidence Hill’s written confession wherein he admitted to
committing the four extraneous offenses. Hill contended that the confession
was obtained in violation of his Fifth Amendment right to counsel and that the
state trial court’s error was grave enough to warrant a new trial regarding his
sentence. The state intermediate court agreed that Hill sufficiently articulated
his desire for a lawyer, which investigators ignored when they reinitiated
contact. Hill v. State, 14-08-00062-CR, 2009 WL 2145833, at *5 (Tex. App.—
Houston [14th Dist.] July 21, 2009, pet. ref’d). The state trial court therefore
erred when it permitted the government to read the redacted confession to the
jury. The state intermediate court, however, rejected Hill’s argument that the
confession had a negative impact on the jury verdict in light of other evidence
presented at trial. It determined that the confession “was largely cumulative
and thus was relatively unimportant to the State’s case.” Id. at *6. The Texas
Court of Criminal Appeals (TCCA) refused discretionary review.
      Hill subsequently filed a state habeas corpus application, where he
asserted once again that the erroneous admission of his confession denied him
a fair trial at the punishment stage. Although the thrust of his argument was
the same as before, Hill raised several claims that were neither considered nor
addressed by the state intermediate court. In particular, Hill contended that
his counsel should have objected to multiple pieces of evidence introduced
during the punishment stage that linked him to the extraneous offenses, such
as newspaper clippings reporting on the sexual assaults and a class ring from
one of the victims found in Hill’s home, the search history found on his
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                                  No. 16-20268
computer, and an out-of-court statement from one of the four victims,
identifying Hill as his attacker. Because his counsel failed to do so, Hill argued
that the state intermediate court falsely believed that there was substantial
other evidence connecting Hill to the other attacks where in fact the record was
rather sparse. According to Hill, this lapse established two separate grounds
by which the state habeas court could provide relief. First, the state habeas
court could rule that the improper reading of the confession to the jury was
indeed prejudicial since much of the evidence that the jury would have
otherwise relied on was also inadmissible. Second, it could find that Hill was
denied effective assistance of counsel.
      The state habeas court rejected both theories. The court saw no reason
to relitigate whether the admission of Hill’s confession was a reversible error.
It adopted the conclusions of the state intermediate court and moved on
without additional comment. The state habeas court then determined that,
while Hill’s representation fell below an objective standard of reasonableness,
the errors made by counsel did not meet the standard laid out in Strickland v.
Washington, 466 U.S. 668 (1984). Hill’s counsel, it concluded, had no reason
to contest the search of Hill’s home. And counsel’s failure to challenge the
evidence procured from Hill’s computer as well as an out-of-court statement
from one of the four victims, identifying Hill as his attacker, did not affect the
jury’s deliberations.
      The state habeas court clarified in its additional written findings of fact
and conclusions of law that even if counsel had performed adequately, the
government still had compelling circumstantial evidence that Hill committed
the four additional sexual assaults. Each of the victims who testified, for
example, gave a general description of their attacker. One of the young men
testified that while he was not “a hundred percent” certain that Hill was the
individual who assaulted him, “if [he] had to say ‘yes’ or ‘no,’ [he]’d say ‘yes.’”
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                                  No. 16-20268
A class ring taken from one of the victims during the attack was found in Hill’s
home, as were newspaper clippings describing the assaults.            Police also
testified that the four extraneous offenses shared the same unique modus
operandi as the underlying crime for which Hill was convicted. Namely, each
involved a young white male being abducted from or restrained in his home, at
night, using zip ties, duct tape, and a gun, which culminated in a demand for
oral sex. The record, in short, was substantial enough for the jury to have
reasonably believed beyond a reasonable doubt that Hill was guilty of the
extraneous offenses. Based on these findings, the TCCA denied Hill’s habeas
application without a written order or a hearing.
      Hill then proceeded to file a habeas petition under 28 U.S.C. § 2254.
There, Hill protested the state habeas court’s refusal to reconsider the impact
that the confession may have exerted on the jury. He also maintained that his
right to a fair trial was compromised by his lack of competent counsel. The
heart of his argument was that Strickland requires a cumulative prejudice
analysis. Under that view, the state habeas court was obliged to consider the
collective impact of the errors that occurred during the trial, rather than assess
them individually. Under this approach, the blunders committed by Hill’s
counsel would be viewed in light of the state trial court’s decision to have the
jury hear Hill’s confession as well as in light of one another. The combination,
Hill argued, created a reasonable probability that but for his counsel’s deficient
performance, his sentence would have been significantly less harsh.
      The district court granted summary judgment in favor of the
government. It determined that the erroneous admission of Hill’s confession
“did not have a substantial effect or influence in determining the verdict at
punishment.” Hill v. Stephens, CV H-15-0818, 2016 WL 1312152, at *9 (S.D.
Tex. Mar. 31, 2016), supplemented sub nom. Hill v. Davis, CV H-15-0818, 2017
WL 2819887 (S.D. Tex. June 28, 2017). Like the state courts, the district court
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                                        No. 16-20268
noted that the government had compiled a sizeable case against Hill even
excluding the confession. Against this backdrop of evidence, it could not say
that the state habeas court’s determination of harmlessness was objectively
unreasonable.       Id. at *10.     With respect to Hill’s ineffective assistance of
counsel claim, the district court rejected the assertion that federal law required
a cumulative prejudice analysis. It noted that while this circuit has at times
applied such an analysis in the past, the Supreme Court never explicitly
adopted a cumulative error doctrine for ineffective assistance of counsel claims.
Id. at *14. The district court acknowledged, however, that the question of
actual prejudice was “a close and difficult one.” Id. It granted a certificate of
appealability (COA), which Hill now pursues.
                                               II.
       Hill petitions this court for post-conviction relief based on the ineffective
assistance of counsel he received during the punishment stage. 1 For that claim
to succeed, he would need to show (1) that his counsel’s performance “fell below
an objective standard of reasonableness” and (2) that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 688, 694. The state habeas court already held that Hill
satisfied the first prong in Strickland. Neither party has objected to this
finding, so our inquiry will focus on whether Hill was prejudiced by counsel’s
mistakes.
                                               A.
       Because the state habeas court previously adjudicated this matter, our
analysis is governed by AEDPA. Under AEDPA, federal courts must defer to


       1 The COA granted by the district court only pertained to Hill’s claim regarding his
counsel’s deficient performance. It did not extend to any questions over the erroneous
admission of Hill’s confession; nor did Hill petition this court to certify the matter. The claim
is therefore deemed abandoned.

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                                       No. 16-20268
the state court’s decision regarding a habeas claim unless the “decision . . . was
contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d). The
Court clarified in Williams v. Taylor that a decision is “contrary to” if it “applies
a rule that contradicts the governing law set forth in [Supreme Court] cases.”
529 U.S. 362, 405 (2000). A decision involves an “unreasonable application” if
it “identifies the correct governing legal principle” but “unreasonably applies
[it] to the facts of the prisoner’s case.” Id. at 407.
       The state habeas court’s determination of harmlessness in this case does
not qualify for either AEDPA exception.                The Supreme Court has never
squarely held that the cumulative error doctrine governs ineffective assistance
of counsel claims. The most that can be said is that several of our sister circuits
have recognized, to varying degrees, that relief can be had if the collective harm
from multiple errors adversely affected the verdict. See, e.g., Goodman v.
Bertrand, 467 F.3d 1022, 1030 (7th Cir. 2006); Stouffer v. Reynolds, 168 F.3d
1155, 1163–64 (10th Cir. 1999); Berryman v. Morton, 100 F.3d 1089, 1101–02
(3d Cir. 1996); Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991). Hill does
not disagree—he cites no Supreme Court precedent which affirmatively
instructs lower courts to calculate prejudice on a cumulative basis. 2




       2  Hill cites this court’s opinion in White v. Thaler that the state habeas court was
required to apply a cumulative prejudice analysis. 610 F.3d 890, 906 (5th Cir. 2010).
Although Hill is correct that we have employed a cumulative framework at times to assess
ineffective assistance of counsel claims, there is no hard and fast rule governing its use, even
as a matter of circuit precedent. On multiple occasions, this court has either declined to apply
a cumulative prejudice analysis or questioned its relevance altogether. See, e.g., Pondexter
v. Quarterman, 537 F.3d 511, 525 (5th Cir. 2008) (holding that “[m]eritless claims or claims
that are not prejudicial cannot be cumulated, regardless of the total number raised”)
(alteration in original); see also Allen v. Vannoy, 659 F. App’x 792, 818 (5th Cir. 2016) (per
curiam); Zimmerman v. Cockrell, 69 F. App’x 658, 2003 WL 21356018, at *12 (5th Cir. 2003)
(per curiam).
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                                  No. 16-20268
                                        B.
      On rehearing, Hill argues that Strickland and other Supreme Court
cases require a cumulative prejudice analysis. Even assuming arguendo that
he is correct, counsel’s errors, taken cumulatively, did not prejudice Hill to such
a degree that he qualifies for relief. The circumstantial evidence brought to
this case was considerable, as both the district court and state habeas court
observed. It provided ample reason for the jury to conclude that Hill committed
multiple sexual assaults and posed an ongoing threat to the community. The
jury heard from multiple victims, each of whom offered a general description
of their attacker, and one of whom tentatively identified Hill. The government
introduced into evidence the class ring police found at Hill’s house, which was
taken from one of the young victims. The government also introduced the
newspaper clippings that police obtained from Hill’s home, which reported on
the sexual assaults. The jury heard about the unique modus operandi that
governed each extraneous offense and how it bore telling similarities to the
underlying crime for which Hill was convicted. The jury also heard about the
short timeframe in which the attacks occurred and how police were convinced
all were committed by the same individual.
      The relevant inquiry in an ineffective assistance of counsel claim is
whether, absent counsel’s errors, there is a reasonable probability that the
defendant’s sentence would have been “significantly less harsh.” Spriggs v.
Collins, 993 F.2d 85, 88–89 (5th Cir. 1993) (per curiam). Taking into account
the evidence presented during the punishment stage, we find that the jury’s
verdict would have likely remained the same. The judgment is affirmed.




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