     Case: 17-70013      Document: 00514282125         Page: 1    Date Filed: 12/21/2017




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

                                      No. 17-70013
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 21, 2017

MARK ROBERTSON,                                                            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 Northern District of Texas
                              USDC No. 3:13-CV-728


Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Mark Robertson applies for a certificate of appealability (“COA”) to
appeal the denial of his federal petition for a writ of habeas corpus. He claims
that his death sentence was based on materially inaccurate evidence from the
State’s witness, Warden Melodye Nelson. For the reasons that follow, we deny
a COA.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-70013
                                       I
      Mark Robertson was convicted and sentenced to death in 1991 for the
murder of Edna Brau in the course of committing a robbery in Dallas County,
Texas. The Texas Court of Criminal Appeals (“TCCA”) affirmed Robertson’s
conviction on direct review. Robertson v. State, 871 S.W.2d 701, 714 (Tex. Crim.
App. 1993). Robertson’s first attempts at state and federal habeas relief were
unsuccessful; however, the TCCA ultimately granted him a new punishment
hearing under Penry v. Johnson, 532 U.S. 782 (2001). See Robertson v. State,
No. AP-71,224, 2011 WL 1161381, at *1 (Tex. Crim. App. Mar. 9, 2011). At
Robertson’s second sentencing proceeding, the State submitted multiple
confessions and other evidence to establish that Robertson was a future danger
to society. The TCCA summarized the evidence as follows:
       The State presented evidence of other offenses and bad acts,
       including evidence that [Robertson], as a young teenager,
       brought a gun to school and threatened to shoot other students.
       [Robertson] had strangled cats and had stomped birds to death.
       He had also committed armed robbery and a wide variety of
       drug-related offenses. While he was on deferred adjudication for
       an aggravated robbery, [Robertson] killed 7-Eleven store
       employee Jeffrey Saunders.

Id. (footnotes omitted).
      The State also relied on its witness, Warden Melodye Nelson. She
testified about the prison’s classification system, which ranges from G1 (least
restrictive) through G5 (most restrictive), and administrative segregation.
Warden Nelson testified that an inmate convicted of capital murder who
received a life sentence with the benefit of parole, or who received a sentence
of 50 years or greater who has not served a minimum of ten years of that
sentence, would be classified as a G3 prisoner. She further explained that once
an inmate has served ten years of that sentence, he may be promoted to G2
status. Warden Nelson testified that Robertson, who had served 18 years and
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                                 No. 17-70013
had only minor infractions, would be in the pool to receive the “automatic
promotion” to G2 status. Warden Nelson testified that prison employees are
underpaid and the prisons are under-staffed. She also stated that she believed
that the year prior, the prison system was under-staffed by nearly 4,000
correctional officers. She explained the prison’s system for tracking the
whereabouts of inmates. As to Robertson specifically, she testified to the minor
prison infractions which Robertson violated, and she stated that the incidents
of prison violence were more common in general population than in
administrative segregation or death row. After considering the evidence, the
jury sentenced Robertson to death. Id.
      Robertson filed a motion for a new trial on the grounds that some
testimony from the State’s witness was false and misleading. At the motion
hearing, the Assistant District Attorney first brought to the court’s attention
new information regarding certain testimony from Warden Nelson, given in a
different trial. The State also informed the court that it had turned over the
information to defense counsel. Relevantly, the State informed the court that
Warden Nelson testified in a different trial that prisoners sentenced to life
without parole could be eligible for G2 prison status. After the trial, however,
Warden Nelson learned that capital offenders who receive a life without parole
sentence can never receive a prison status below G3. Both the prosecutor and
defense counsel acknowledged, on the record, that Robertson would not have
been eligible for a life without parole sentence, so a rule prohibiting a life-
sentenced inmate from receiving a less-restrictive classification did not apply
to Robertson. After considering Robertson’s evidence, including the testimony
from his expert, S.O. Woods, Jr., the court ultimately denied Robertson’s
motion for a new trial.




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                                        No. 17-70013
       On appeal, the TCCA affirmed the sentence. Id. The TCCA again denied
Robertson’s renewed petition for state habeas relief. Ex Parte Robertson, No.
WR-30,077-03, 2013 WL 135667 (Tex. Crim. App. Jan. 9, 2013).
       Robertson returned to federal court and filed a petition for writ of habeas
corpus, which was denied. In his petition, Robertson made two claims for
federal habeas relief, 1 only one of which is relevant to this court: whether his
death sentence was based on materially inaccurate evidence. The district court
construed this claim as a Due Process claim. Robertson asserted five matters
to which the State’s witness, Warden Nelson, had testified as grounds for relief:
(1) Robertson would automatically enter the prison system at a G3 level
prisoner; (2) prison personnel were underpaid and prisons were short-staffed;
(3) there was more violence in general population than in administrative
segregation; (4) inmates are free to travel to and from their cells; 2 and (5)
prisons are filled with psychopaths. Robertson, 2011 WL 1161381, at *7–10.
Robertson relied on his expert, Woods, to prove the falsity of Warden Nelson’s
testimony at the hearing on his motion for a new trial. The district court
concluded that Robertson’s expert failed to present hard evidence or statistics
that contradicted Warden Nelson’s testimony on any matter. Rather, Woods
expressed that he disagreed with certain word choices and merely indicated
that he thought Warden Nelson was inaccurate. Importantly, Woods never
accused Warden Nelson of perjury. Accordingly, the district court denied


       1  Robertson also asserted that trial counsel failed to adequately investigate and
develop mitigating evidence. The district court dismissed the claim as unexhausted and
procedurally barred, and alternatively, denied it for lack of merit notwithstanding any failure
to exhaust. Robertson does not raise this issue in his motion for a COA.
        2 The district court classified ground four, from those listed above, as: “a year ago the

Texas Department of Criminal Justice was 4,000 correctional officers short.” However, the
fourth ground the TCCA reviewed was whether inmates can come and go from their cells to
work. Robertson, 2011 WL 1161381, at *9. We will address the testimony regarding whether
the prison system was under-staffed with ground two and address the inmates’ freedom to
travel to and from their cells as ground four.
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                                    No. 17-70013
Robertson’s claim that his sentence was based on inaccurate, material evidence
in violation of the Constitution.
      In addition to the five areas of concern that Robertson raised in his state
habeas petition, the district court recognized that Robertson asserted two
additional concerns: (1) Warden Nelson’s false testimony in a different trial
that affected her credibility in his trial—a credibility issue that was never
raised to the jury in his trial—and (2) Warden Nelson testified to a “parade of
horribles”—i.e., examples of Robertson’s alleged misconduct, such as altering
a coffee pot to produce boiling water that could be used to scald a guard and
breaking headphone wires to transmit alleged gang behavior—with no
evidence to support the misconduct allegations. The district court determined
that, as to these new allegations, “Robertson argues only that the state court’s
decision was unreasonable under § 2254(d).” The district court limited itself to
the § 2254(d) inquiry and determined that it could not consider the new
evidence and arguments because they were not submitted to the TCCA on
appeal. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (“Provisions like §§
2254(d)(1) and (e)(2) ensure that federal courts sitting in habeas are not an
alternative forum for trying facts and issues which a prisoner made insufficient
effort to pursue in state proceedings.” (internal quotations and alterations
omitted)). Alternatively, the district court determined that Robertson’s new
allegations lacked merit because Robertson failed to show that Warden
Nelson’s inaccurate testimony in a different trial would have affected or been
relevant to her testimony in Robertson’s trial. Robertson’s second new
allegation also lacked merit, the district court held, because he failed to
establish that Warden Nelson’s testimony about his “parade of horribles” was




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                                      No. 17-70013
false or misleading. 3 The district court therefore denied Robertson relief on his
two new issues.
       Robertson timely appealed the district court’s denial of his petition for
writ of habeas corpus. He seeks a COA on his second claim, relating to the
alleged material, false information upon which his death sentence was based.
                                            II
       “[W]hen a habeas corpus petitioner seeks to initiate an appeal of the
dismissal of a habeas corpus petition . . ., the right to appeal is governed by the
certificate of appealability (COA) requirements.” Slack v. McDaniel, 529 U.S.
473, 478 (2000). Section 2253 of the Antiterrorism and Effective Death Penalty
Act addresses appeals of denials of habeas corpus petitions and provides that
an “appeal may not be taken” from a final order in a habeas corpus proceeding
without a COA. 28 U.S.C. § 2253(c)(1). A COA may issue “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
       “Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack, 529
U.S. at 484. “When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial




       3 Robertson also takes issue with the TCCA’s characterization of these alleged
infractions as “minor.” The district court determined that Robertson’s complaint about the
TCCA’s characterization failed to establish that the TCCA unreasonably determined that
Warden Nelson’s testimony was not false or misleading; thus, Robertson’s claim lacked merit.
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                                  No. 17-70013
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id.
                                       III
      Robertson asserts that the district court erred in holding that Warden
Nelson’s testimony was not false or misleading, but rather a mere
disagreement between experts that is not normally sufficient to demonstrate
falsity. “[A] conviction obtained through use of false evidence, known to be such
by representatives of the State, must fall under the Fourteenth Amendment.”
Napue v. Illinois, 360 U.S. 264, 269 (1959). “The principle that a State may not
knowingly use false evidence, including false testimony, to obtain a tainted
conviction . . . does not cease to apply merely because the false testimony goes
only to the credibility of the witness.” Id. To prove a due process violation under
Napue, Robertson must establish that: (1) the testimony was false, (2) the
government knew the testimony was false, and (3) the testimony was material.
See Summers v. Dretke, 431 F.3d 861, 872 (5th Cir. 2005) (citing United States
v. Mason, 293 F.3d 826, 828 (5th Cir. 2002)).
A. Robertson would be classified as a G3 inmate
      Warden Nelson testified at Robertson’s punishment trial that if
Robertson were sentenced to life with parole, he would be classified as a G3
inmate. However, because Robertson had served more than 10 years of the
sentence and because he had only minor disciplinary infractions during his
time on death row, Robertson would “automatically be categorized as a G2 if
given a life sentence.” Robertson, 2011 WL 1161381, at *7. Robertson relied on
Woods to refute Warden Nelson’s classification during the hearing on
Robertson’s motion for a new trial. Id. at *8. Woods, however, only indicated
that he “disagreed with Warden Nelson’s use of the word ‘automatic,’ stating
that it ‘was not a good choice of words.’” Id. Although Woods disagreed with
Warden Nelson’s word choice, “the evidence indicate[d] that [Robertson] was
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                                  No. 17-70013
eligible for G2 status if given a life sentence.” Id. As the district court found,
the state court’s determinations appear to be correct. The district court
correctly held that Woods’s mere disagreement with Warden Nelson’s language
was not enough to show that the state court unreasonably determined that
Warden Nelson’s testimony was not false or misleading. See Boyle v. Johnson,
93 F.3d 180, 186 (5th Cir. 1996).
B. Prison personnel are underpaid and under-staffed
      Warden Nelson testified that prison employees are underpaid, that there
is rapid turnover, and that there is under-staffing to the point where one staff
member may be in charge of up to 150 offenders. Robertson, 2011 WL 1161381,
at *8. In response, Woods testified that his investigation did not indicate that
there would have ever been one guard supervising 150 inmates as a typical
situation. Id. He further stated that the complexity of the prison system makes
it nearly impossible to establish a sound guard-to-inmate ratio. Id. Because
Woods did not present concrete evidence to refute Warden Nelson’s testimony,
the district court agreed with the TCCA that the jury would not have been
misled or misinformed by the Warden’s testimony. See id.
C. General population is more violent than administrative segregation
      Warden Nelson testified at trial that the general population had more
incidents of violence than administrative segregation or death row. Id. at *9.
Although Woods testified that it is “common sense” that inmates on
administrative segregation are more dangerous, there is a higher opportunity
for violent incidents in general population simply because there are more
inmates in general population. Id. Woods ultimately “conclud[ed] that the
warden’s testimony did not give a false impression about the amount or nature
of violence in prison.” Id. The district court necessarily could not have erred in
agreeing with the TCCA that the Warden’s testimony on this issue was not


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                                 No. 17-70013
false or misleading when Robertson’s own expert agreed with the Warden. See
id.
D. Inmates’ ability to come and go from their cells to work
       At trial, Warden Nelson thoroughly described the process used for an
inmate to travel from his cell to his respective job. See id. at *9–10. She
explained that each inmate was accounted for before leaving his cell and then
accounted for again by his job supervisor. Id. She testified that each inmate
was accounted for “eight times in a 24-hour period.” Id. at *9. When Woods
testified on this issue, his testimony nearly mimicked that of Warden Nelson’s.
Id. at *10. The district court correctly relied on the TCCA’s determination that
Woods’s testimony was “substantially identical to that presented by the
warden at trial.” Id. Accordingly, Robertson failed to establish that the jury
relied on inaccurate information presented by Warden Nelson.
E. Prison filled with psychopaths
       As the TCCA aptly summarized, defense counsel objected to a document
on relevance, arguing “that the law requires individualized punishment and
. . . appellant can’t help it if there are a bunch of psychopaths in prison.” Id.
(internal quotations and alteration omitted). The court sustained the defense’s
objection. Id. Later in Warden Nelson’s examination, the prosecution brought
up the defense counsel’s comment about prison being filled with psychopaths.
Id. Warden Nelson stated that she remembered the characterization, and
when the prosecution asked if she agreed, Warden Nelson replied, “Yes, sir.”
Id. Robertson relies on Woods’s testimony, “that it would be inaccurate to say
that every inmate is a psychopath,” as evidence that Warden Nelson provided
false testimony. Id. But, Woods agreed “that there are probably more
psychopaths in prison.” Id. The district court agreed with the TCCA that
Woods’s testimony does not demonstrate that Warden Nelson’s testimony was
false or misleading to the jury. Id. In fact, Woods’s testimony, that it would be
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                                      No. 17-70013
inaccurate to characterize all inmates as psychopaths, is irrelevant to Warden
Nelson’s testimony—she never even offered such testimony. See id.
Accordingly, the district court did not err in denying habeas relief on this issue.
F. Robertson’s two new claims
       The district court correctly noted that because Robertson failed to
present two of his assertions—the warden’s inaccurate testimony in a different
trial as evidence she was unreliable and the warden’s speculations as to his
conduct violations—to the TCCA on direct appeal, these claims are barred from
consideration by the federal courts through his habeas petition. Cullen v.
Pinholster established that § 2254 “imposes a limitation on the discretion of
federal habeas courts to [consider] new evidence.” 563 U.S. at 185. The record
supports the district court’s determination that it could not consider these two
new grounds for relief. 4
                                            IV
       For the reasons explained above, Robertson failed to demonstrate that
the district court erred in determining that the TCCA reasonably concluded
that Warden Nelson’s testimony was not false or misleading. Reasonable
jurists would not find the district court’s determination debatable or wrong, see



       4  The district court also considered the new claims on the merits, as alternative
grounds upon which to deny habeas relief. First, the district court determined that Robertson
failed to demonstrate how Warden Nelson’s inaccurate testimony would have been relevant
and admissible to impeach her in Robertson’s case. Thus, the court found the claim lacked
merit. On appeal Robertson contends that he wanted to use her inaccurate testimony as
evidence that she was an unreliable witness. In response, the State contends that Robertson’s
argument fails because impeachment evidence does not form the basis for a claim of false
testimony. See Giglio v. United States, 405 U.S. 150, 154–55 (1972). We refrain from reaching
the merits of this argument because it was not properly raised before the state court. See
Pinholster, 563 U.S. at 185–86.
        Second, the district court determined that Robertson did not exhibit how Warden
Nelson’s testimony regarding his disciplinary infractions was in any way false or misleading.
He presents no evidence to demonstrate that her testimony regarding the infractions was
inaccurate and does not indicate where his expert, Woods, contradicted the Warden’s
testimony on this issue. Again, we need not reach the merits of this argument. See id.
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Slack, 529 U.S. at 484, and mere disagreement between experts is insufficient
to show that testimony is false or misleading. See Boyle, 93 F.3d at 186.
Accordingly, Robertson’s petition for a COA is DENIED.




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