     Case: 09-70001    Document: 00511051699         Page: 1    Date Filed: 03/15/2010




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

                                                FILED
                                                                         March 15, 2010

                                      No. 09-70001                   Charles R. Fulbruge III
                                                                             Clerk

CLEVE FOSTER

                                                 Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                 Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:07-CV-210


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Cleve Foster, a Texas inmate sentenced to death, seeks a certificate of
appealability (“COA”) in order to appeal the district court’s denial of his petition
for a writ of habeas corpus. We DENY a COA.
                             FACTUAL BACKGROUND
        On February 13, 2002, Cleve Foster and Sheldon Ward met Nyanuer
“Mary” Pal at Fat Albert’s, a Fort Worth bar where all three were regular


*
 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-70001   Document: 00511051699     Page: 2    Date Filed: 03/15/2010

                                 No. 09-70001

customers. According to the bartender, Pal interacted primarily with Ward until
the bar closed at 2:00 a.m. She then walked to the parking lot with Ward where
they talked for a few minutes. Afterwards, Pal left in her car, which was
followed closely by Foster and Ward driving in Foster’s truck.
      Approximately eight hours later, Pal’s nude body was discovered in a ditch
far off a road in Tarrant County. She had been shot in the head. A wadded-up
piece of bloody duct tape lay next to her body. Her unlocked car was later found
in the parking lot of the apartment complex where she lived.
      The police investigation focused on Foster and Ward once police learned
that they had been with Pal that night. On February 21, 2002, police searched
the motel room shared by Foster and Ward. Only Foster was present. He
directed the police to a dresser drawer that contained a gun Ward had purchased
from a pawn shop in August 2001.
      Later that day, Foster voluntarily went to the police department to give
a statement and to provide a DNA sample. In his statement, Foster first denied
Pal had been inside his truck. However, he then admitted that she may have
leaned inside. Finally, he admitted that “they” went cruising, but that “they”
brought Pal back to her vehicle at Fat Albert’s. Police also obtained a DNA
sample from Ward sometime on the night of February 21, 2002.
      In the early morning hours of February 22, 2002, Ward called a friend to
ask if he could stay with him. Ward told the friend over the phone that he was
in trouble because he killed someone. The friend arrived at the motel around
2:00 or 2:30 a.m. to pick up Ward. While in the truck, Ward told his friend that
he followed a girl home from a bar, forced her into a truck at gunpoint, took her
out to the country, raped her, and shot her. Ward did not mention Foster. The
friend stopped the truck at a store and got the police to arrest Ward.
      Ward then told police that he had been drinking heavily and using cocaine
the night of the offense. He claimed that he and Pal arranged to meet after Fat

                                       2
    Case: 09-70001      Document: 00511051699      Page: 3   Date Filed: 03/15/2010

                                     No. 09-70001

Albert’s closed. Ward also told the police that he drove alone to Pal’s apartment
in Foster’s truck to pick up Pal, and that he and Pal had consensual vaginal and
anal sex on the front seat of Foster’s truck before they drove back to the motel
room where Foster was “pretty much passed out” on the bed. Ward claimed that
he and Pal had consensual vaginal sex again in the motel room before they left
to drive around. Ward recalled standing over Pal’s body lying on the ground
with a gunshot wound to her head and a gun in his hand. Ward claimed not to
remember firing the gun. He told police that he stripped her body and dumped
her clothes in a dumpster. Ward explained that he left a note in the motel
apologizing to Foster for involving him. Ward also stated that he told his friend
a few hours earlier that he had sex with a girl and killed her.
         On March 22, 2002, Foster gave another written statement to police in
which he claimed: (1) he and Ward followed Pal to her apartment after meeting
her at Fat Albert’s; (2) Pal voluntarily went with them to their motel room in his
truck; (3) after taking sleeping pills and drinking beer, Foster fell asleep
watching television while Ward and Pal kissed; and (4) Foster awoke to Pal
performing oral sex on him.1
         In addition to Foster’s and Ward’s statements, physical evidence also
linked the two to the offense. DNA tests established that semen found in Pal’s
vagina contained Foster’s DNA, and semen found in Pal’s anus contained Ward’s
DNA. Ward may also have been a minor contributor to the semen found in Pal’s
vagina. DNA testing also revealed that Pal’s blood and tissue were on the gun
recovered during the motel room search. In addition, a police detective and
medical examiner testified that Pal was not shot where her body was found
because there was no blood splatter in the area. Since the soles of her feet
indicated that she had not walked to the location where her body was found, the


1
         This March 22, 2002 statement was admitted only during the punishment phase of
trial.

                                            3
    Case: 09-70001     Document: 00511051699        Page: 4    Date Filed: 03/15/2010

                                     No. 09-70001

detective testified that he was “very comfortable” with stating that two people
carried Pal’s body to that location. In support of his testimony, the detective
noted that the raised-arm position of Pal’s body suggested she may have been
carried by her feet and hands. In addition, the detective noted that Pal was five-
seven and 130 pounds and Ward is only five-six and 140 pounds, while Foster is
six feet tall and around 225 pounds.
       In February 2004, Foster was convicted of the rape and capital murder of
Pal. Based on the necessary jury findings during the punishment phase, the
trial court sentenced Foster to death.2
       Foster’s conviction and sentence were affirmed on direct appeal. Foster v.
State, No. AP-74901, 2006 WL 947681 (Tex. Crim. App. Apr. 12, 2006). His state
habeas petition was denied by a summary order. Ex parte Foster, No. WR-
65799-01, 2007 WL 841611 (Tex. Crim. App. Mar. 21, 2007). Thereafter, his
petition for a federal writ of habeas corpus was denied by the U.S. District Court
for the Northern District of Texas. Foster v. Quarterman, No. 4:07-CV-210-Y,
2008 U.S. Dist. LEXIS 97492 (N.D. Tex. Dec. 2, 2008). Finally, on January 21,
2009, the district court denied Foster’s motion for a COA. Foster now seeks a
COA from this court on what he frames as eleven separate issues.
                                    DISCUSSION
       Foster must obtain a certificate of appealability in order to appeal the
district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). We will grant
a COA only if the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). That showing requires a petitioner
to “demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”               Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003) (citation omitted). “We resolve doubts about



2
       Separately tried, Ward was also convicted and sentenced to death.

                                            4
    Case: 09-70001      Document: 00511051699           Page: 5     Date Filed: 03/15/2010

                                        No. 09-70001

whether to grant a COA in favor of the petitioner, and we may properly consider
the severity of the penalty in making this determination.” Fuller v. Johnson,
114 F.3d 491, 495 (5th Cir. 1997) (internal citation omitted).
       The district court found that only two of Foster’s claims were exhausted
in state court: (1) Foster’s trial counsel provided ineffective assistance during the
penalty phase of trial, and (2) the Texas death penalty scheme is
unconstitutional, because it sends mixed signals to the jury.
       Before this court, Foster does not argue that any of the remaining nine
claims were exhausted. Ordinarily, he could not receive habeas relief on the
procedurally defaulted claims. 28 U.S.C. § 2254(b)(1)(A). Foster argues, though,
that he falls under a limited “miscarriage of justice” exception to the exhaustion
requirement. See Schlup v. Delo, 513 U.S. 298, 327-28 (1995). We will discuss
that possibility. In the alternative, he argues that he has shown cause and
prejudice for his failure to exhaust his claims, because his state habeas counsel
was ineffective in not presenting the claims in those proceedings. Therefore, he
claims his procedurally defaulted claims should be revived.                     See Moore v.
Quarterman, 534 F.3d 454, 463-64 (5th Cir. 2008).
       We address the issues concerning procedural default first.
       A.     Revival of Procedural Defaulted Claims
       If there is “evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the
trial was free of nonharmless constitutional error, the petitioner should be
allowed to pass through the gateway and argue the merits of the underlying
claims,” despite procedural defaults.3 Schlup, 513 U.S. at 316. To make this


3
       We have specifically rejected the argument that a showing of actual innocence would
warrant habeas relief absent a constitutional violation. Dowthitt v. Johnson, 230 F.3d 733,
741 (5th Cir. 2000). “This rule is grounded in the principle that federal habeas courts sit to
ensure that individuals are not imprisoned in violation of the Constitution — not to correct
errors of fact.” Id. at 741 n.4 (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)). Thus, the

                                               5
   Case: 09-70001     Document: 00511051699        Page: 6    Date Filed: 03/15/2010

                                    No. 09-70001

claim, a petitioner must “support his allegations of constitutional error with new
reliable evidence – whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not presented at
trial.” Id. at 324. Thus, the petitioner must demonstrate “that ‘a constitutional
violation has probably resulted in the conviction of one who is actually
innocent.’” Id. at 327 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
Actual innocence means that “in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
at 329.
      Foster provided the district court with the following evidence in an effort
to establish his actual innocence: (1) Ward’s February 22, 2002 confessions to his
friend and to the police; (2) a handwritten note left by Ward in the motel room
he shared with Foster; (3) a statement made by Ward in May 2005; and (4) a
police report summarizing interviews with Jalissa Polk and her daughter. The
district court found this evidence to be insufficient to meet the threshold
requirement of demonstrating actual innocence.
      First, Ward’s confessions to his friend and the detective were both
admitted at trial, and therefore neither confession was new evidence.
      Second, the handwritten note left by Ward for Foster in the motel room did
not constitute new, reliable evidence of actual innocence. In the note, Ward
admitted to drugging Foster with Foster’s own sleeping pills, having “Mary ride
you while you slept,” and “t[aking] your truck” all while Foster was passed out.
Thus, the potentially exculpatory note explained the presence of Foster’s semen
in Pal’s vagina and tended to show that he was passed out at the time of her
murder.




petitioner must first raise substantial doubt about his guilt, and then this allows us to
examine any procedurally barred constitutional claims. Id. at 741.

                                           6
    Case: 09-70001      Document: 00511051699    Page: 7   Date Filed: 03/15/2010

                                   No. 09-70001

       The contents of the note were not admitted into evidence,4 but its existence
was known and discussed at trial. However, simply because the evidence was
not admitted does not make it “new.” See Moore, 534 F.3d at 465 (evidence
“within   the   reach    of [petitioner’s] personal knowledge       or reasonable
investigation” is not new). Yet, even if it was new evidence, the district court
found that this was yet another statement contradicting statements made by
both Ward and Foster. Therefore, the district court concluded that it was not
persuasive evidence that Foster was actually innocent of Pal’s murder.
       In addition, the district court found that Ward’s May 2005 statement was
not a credible declaration of guilt. Ward explained that he and Foster had
consensual sex with Pal in their hotel room, that there was no kidnapping or
rape, that Foster later fell asleep, and that “if I used [Foster’s] truck later that
morning, he was not aware of it.” However, the district court noted that the May
2005 statement contradicted both Ward’s and Foster’s earlier statements. Based
on the numerous contradictory statements made by both Foster and Ward, the
district court concluded that “yet another statement by Ward in which he
minimizes both his and Foster’s role in the crime is not a credible admission of
guilt on his part.” Thus, although the May 2005 statement was new evidence,
it was not new, reliable evidence of Foster’s actual innocence.
       Finally, the district court found that the police report of Jalissa Polk and
her daughter was not persuasive evidence of Foster’s actual innocence.
According to the police report, at approximately 8:30 p.m. on February 12 or 13,
2002, Polk’s nine-year-old daughter witnessed a black man chase a nude black
woman into the woods and then heard a gun shot. Pal was alive, though, and at
Fat Albert’s at 2:00 a.m. on February 14, 2002.


4
      The trial court ruled the note was not an admissible statement against interest
pursuant to Texas Rule of Evidence 803(24) because Foster’s counsel was unable to
authenticate the note.

                                         7
   Case: 09-70001   Document: 00511051699        Page: 8   Date Filed: 03/15/2010

                                  No. 09-70001

      The district court found that Foster did not produce “new, reliable evidence
not presented at trial that establishes, that more likely than not, no reasonable
juror would have found” Foster guilty beyond a reasonable doubt. Even
considering the 2005 communication from Ward, and assuming that the other
statements are new, the evidence does not meet the high bar imposed by Schlup.
One more contradictory story would not have compelled jurors to find Foster not
guilty. To qualify under the miscarriage of justice exception, evidence must be
“‘material, not merely cumulative or impeaching.’” Vega v. Johnson, 149 F.3d
354, 364 (5th Cir. 1998) (quoting Lucas v. Johnson, 132 F.3d 1069, 1076 n.3 (5th
Cir. 1998)). In Moore, the court likewise considered both the lack of reliability
and the contradictory nature of affidavit evidence offered after a trial, and
concluded that such factors weighed against the persuasiveness of the evidence.
Moore, 534 F.3d at 465. In addition, the police report from Polk’s daughter does
not even appear to be related to this case.
      In the alternative, Foster claims that his otherwise defaulted claims
should be revived because he can demonstrate cause and prejudice for his failure
to exhaust them. Most of Foster’s unexhausted claims relate to ineffectiveness
of counsel. Foster contends that because Texas law does not typically permit
ineffective assistance of counsel claims to be raised on direct appeal, his state
habeas case was his first opportunity to raise them. See Thompson v. State, 9
S.W.3d 808, 814 (Tex. Crim. App. 1999). Petitioners are not typically entitled
to effective assistance of counsel in state habeas proceedings.        Coleman v.
Thompson, 501 U.S. 722, 752 (1991). On the other hand, Justice Scalia, at least,
has concluded that the Supreme Court “left open the question whether such
ineffective assistance   [in   post-conviction   proceedings] can     establish     a
constitutional violation” when the state habeas claims are the first time a state
court could examine a question on the merits. Daniels v. United States, 532 U.S.
374, 387 (2001) (Scalia, J. concurring).

                                           8
    Case: 09-70001     Document: 00511051699         Page: 9     Date Filed: 03/15/2010

                                      No. 09-70001

       We reject Foster’s alternate theory because he did not present the
argument in the district court. He first raised it here in his reply brief. Issues
raised for the first time in a reply brief are waived. Richards v. Quarterman,
566 F.3d 553, 562 n.2 (5th Cir. 2009).5
       Foster fails in the attempt to overcome the procedural bar of failing to
exhaust his claims in state court. He has not shown that he is qualified to pass
through the actual innocence gateway nor has he shown that he can successfully
use the cause and prejudice standard to revive these defaulted claims. The
district court was correct in holding that all but two of Foster’s claims were
procedurally defaulted.6 Reasonable jurists would not find the district court’s
assessment of this issue debatable or wrong. Accordingly, we will not issue a
COA for any of Foster’s procedurally defaulted claims.
       B.     Ineffective Assistance of Counsel Claim
       In a properly exhausted claim, Foster contends that his trial counsel were
ineffective by failing to conduct an adequate investigation into mitigating
evidence for use at the punishment phase of his trial, and because the mitigation
evidence they uncovered was not properly presented to the jury. The specific
defaults are these: (1) they failed to place his military records, school records,
and records from his successful completion of probation into evidence, and (2)
they failed to present evidence of the abuse and neglect he suffered as a child.
       To prevail on an ineffective assistance of counsel claim, a petitioner must
demonstrate that “(1) counsel’s performance was deficient and (2) counsel’s
deficient performance caused actual prejudice to the petitioner’s defense.”


5
       Foster’s argument would have failed even if it had been properly raised. We have
rejected this argument on the merits. Martinez v. Johnson, 255 F.3d 229, 241 (5th Cir. 2001).
6
       Despite finding that Foster did not meet the actual innocence threshold, the district
court did address the merits of his procedurally defaulted claims pursuant to 28 U.S.C. §
2554(b)(2). The district court concluded that Foster was not entitled to habeas relief on any
of these claims.

                                             9
  Case: 09-70001    Document: 00511051699     Page: 10    Date Filed: 03/15/2010

                                  No. 09-70001

Richards, 566 F.3d at 564 (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). Counsel’s performance was deficient if it was objectively unreasonable
at the time of the representation. Id.
      The complaint in Strickland about counsel was a failure to investigate
adequately for mitigation evidence. The Supreme Court analyzed that claim.
      [S]trategic choices made after thorough investigation of law and
      facts relevant to plausible options are virtually unchallengeable;
      and strategic choices made after less than complete investigation
      are reasonable precisely to the extent that reasonable professional
      judgments support the limitations on investigation. In other words,
      counsel has a duty to make reasonable investigations or to make a
      reasonable decision that makes particular investigations
      unnecessary. In any ineffectiveness case, a particular decision not
      to investigate must be directly assessed for reasonableness in all the
      circumstances, applying a heavy measure of deference to counsel’s
      judgments.

Strickland, 466 U.S. at 690-91. Thus, the key focus with this kind of claim is not
on what was presented at trial, but on whether the investigation preceding the
trial was reasonable. Wiggins v. Smith, 539 U.S. 510, 522-23 (2003).
      If it is determined that trial counsel’s performance was deficient, the
petitioner must then demonstrate that he was actually prejudiced by trial
counsel’s deficiencies. Richards, 566 F.3d at 564. “To demonstrate prejudice,
a petitioner ‘must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Id. (quoting Strickland, 466 U.S. at 694). “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id.
      In its opinion denying habeas relief, the district court examined all of
Foster’s claimed deficiencies along with the explanations provided by trial
counsel in their affidavits. First, the district court found that Foster’s trial
counsel made a strategic decision not to obtain and place his military records
into evidence. In their affidavits, his trial counsel explained that, based on

                                         10
  Case: 09-70001    Document: 00511051699     Page: 11    Date Filed: 03/15/2010

                                  No. 09-70001

knowledge gained from Foster and discussions with his military superiors and
colleagues, introducing the records in full would have opened the door to these
troublesome issues: (1) Foster’s Bronze Star was awarded for merit and not for
valor; (2) scant support for Foster’s claims to have been in combat; and (3)
allegations that Foster gave alcohol to underage students as a recruiter, and that
he had sex with an underage potential recruit. As a result of these allegations,
court-martial proceedings were instituted against Foster, and he was denied an
opportunity to re-enlist in the Army.
      Rather than introduce these records in full or provide them to the defense
psychologist, Foster’s counsel made what the district court determined was a
strategic decision to highlight the positive aspects of his military career by
having the mother of a solider he recruited testify about Foster’s positive impact
on her family’s life. Friends and family members also testified that Foster
served in the military for a substantial period of time, served in Iraq, received
a Bronze Star for his service, and experienced post-traumatic stress disorder
because of “gruesome experiences” he had in the military.
      As to the limited use of high school records, Foster’s counsel explained the
decision by noting the long period of time since Foster had graduated from high
school, that there was testimony from Foster’s friends and family about his
“struggles” in school, and that the defense was not alleging any mental defect or
impairment.
      As to the probation records, Foster’s trial counsel explained that they had
obtained a letter that had recommended Foster for an early discharge from
probation. They were concerned that introducing it would allow questions that
Foster’s probation had previously been in danger of being revoked due to a
failure to report and pay fees.    Moreover, even though the letter was not
introduced by defense counsel, it was introduced by the State as part of the
evidence concerning the conviction that gave rise to the probation.

                                        11
  Case: 09-70001    Document: 00511051699     Page: 12    Date Filed: 03/15/2010

                                  No. 09-70001

      Finally, Foster alleged that his counsel inadequately investigated and
failed to introduce evidence concerning his difficult childhood. This included
evidence gleaned from interviews of Foster’s mother and sister which had been
conducted by a psychologist hired during state habeas proceedings. The
psychologist also evaluated Foster and produced a report unifying his
observations of all three.   The investigation showed that Foster had been
physically abused as a child, including being hit with belts and tree branches;
that his father was an alcoholic; that Foster had witnessed his father sexually
abuse his brother on multiple occasions; and that Foster later learned his father
sexually abused his sisters as well. Foster has never claimed that he was
sexually abused himself.
      Foster’s counsel explained that they contacted all family members they
could locate, as well as numerous friends, to testify on Foster’s behalf. However,
they were unable to contact Foster’s sisters, because the sisters were homeless
and had long been out of contact with Foster.        Foster’s brother had been
murdered years earlier, and his mother could not travel to testify at trial
because she had medical problems. In addition, a number of Foster’s childhood
friends were either unable to travel or did not seem certain to give entirely
favorable testimony. Those who did testify for the defense at the penalty phase
included Foster’s father; Margaret Barnes, a family friend who helped raise
Foster; Barnes’s sister and brother-in-law, who knew the family; and Charles
Samples, Foster’s childhood friend. These witnesses provided testimony about
Foster’s positive characteristics and the trauma he suffered when he discovered
his murdered brother’s decomposing body parts ten years earlier. In addition,
the defense’s psychologist testified that Foster’s father was physically abusive
and that the children suffered in various ways because of both parents’ drinking.
The psychologist also mentioned the sexual abuse of Foster’s siblings.



                                       12
  Case: 09-70001     Document: 00511051699      Page: 13    Date Filed: 03/15/2010

                                   No. 09-70001

        Upon review of Foster’s claims of ineffective assistance and the trial
counsel’s affidavits, the district court concluded that the strategic decisions made
by Foster’s trial counsel were not so poorly chosen as to have “permeated
Foster’s trial with obvious unfairness.”
        On appeal, Foster argues that his counsel’s failure to obtain the military
and school records cannot be justified as a strategic choice, because such choices
can only be made after a full investigation. However, failure to obtain these
documents does not constitute ineffective assistance if trial counsel makes a
reasonable decision that the investigation is not necessary. See Strickland, 466
U.S. at 690-91. Here, trial counsel’s affidavits explain the basis for their decision
not to obtain the records; they already knew from others, including Foster, what
the records were likely to contain. Nothing now suggests that Foster’s trial
counsel were wrong about the contents of the records.
        The district court properly concluded that Foster failed to meet the first
prong of the Strickland test by failing to demonstrate deficient performance.
Reasonable jurists would not find the district court’s assessment of Foster’s
ineffective assistance claim debatable or wrong. Accordingly, a COA will not be
issued for this claim.
        C. Claim that the Texas Death Penalty Scheme Sends Mixed Signals
        Foster’s second properly exhausted claim is that the Texas death penalty
scheme is unconstitutional because it sends mixed signals to the jury. Without
providing any citations, Foster’s counsel argues that this claim is foreclosed by
Fifth Circuit precedent, but that she wishes to preserve it for possible future
review. In the district court, Foster cited Penry v. Texas, 532 U.S. 782 (2001).
However, he failed to explain what “mixed signals” the special issues sent to his
jury.   In addition, the district court held that the mitigation special issue
presented to Foster’s jury did not suffer from the same defects that concerned
the Supreme Court in Penry.

                                         13
  Case: 09-70001   Document: 00511051699     Page: 14   Date Filed: 03/15/2010

                                No. 09-70001

      Reasonable jurists would not find the district court’s assessment of this
claim debatable or wrong. Therefore, a COA will not be issued for this claim.
      We DENY a COA on all of Foster’s claims.




                                      14
