     Case: 12-70025       Document: 00512303440         Page: 1     Date Filed: 07/10/2013




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

                                                                            FILED
                                                                            July 10, 2013
                                       No. 12-70025
                                                                           Lyle W. Cayce
                                                                                Clerk



ANTHONY DEWAYNE DOYLE,

                                                  Petitioner–Appellant,

versus

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
                              USDC No. 3:08-CV-138




Before SMITH, DENNIS, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Anthony Doyle was convicted of capital murder and sentenced to death for
the robbery and fatal beating of Hyun Cho. After exhausting his direct appeals

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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and petitions for state habeas corpus relief, Doyle petitioned for federal habeas
relief, which was denied. He seeks a certificate of appealability (“COA”) pur-
suant to 28 U.S.C. § 2253. We deny the request.


                                        I.
      In 2003, Doyle placed an order for delivery with the Chaha Donut shop,
disguising his voice and saying his name was Mary. When Cho arrived to
deliver the food, Doyle beat her to death with a baseball bat, put her body into
a trash can, and attempted to clean the blood from the walls and floor. He took
her car, cell phone, and credit cards and drove to meet his friends, to whom he
indicated he had murdered someone, stating that he was not “playing” anymore.
They attempted to use Cho’s credit cards to make purchases.
      When Doyle learned that police had found Cho’s body, he fled. Police
searched the house where he had committed the murder and found his blood-
stained clothes, blood spatters on the floor and walls, marks from the trash can’s
wheels, and other evidence. Doyle later abandoned Cho’s car at a carwash and
threw her possessions into a nearby dumpster. The police found those items and
the original receipt for the donut delivery.
      Doyle’s mother tried to convince him to come to the police station to talk
to officers, and although he agreed, he never did but was arrested shortly
thereafter. He eventually orally confessed to the crime under police questioning,
taking more than two hours to write a ten-page confession.
      Doyle was convicted and sentenced to death. During the punishment
phase of the trial, significant evidence was produced by prosecution and defense
pertaining to Doyle’s character and history. The prosecution presented evidence
of Doyle’s violent past, including numerous violent outbursts in school and at
home; there was evidence of Doyle’s ties to a violent gang. The defense pre-
sented numerous witnesses who testified to Doyle’s good character and difficult

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upbringing. On cross-examination, one of the defense experts admitted that
Doyle was not mentally retarded, had a normal IQ, and understood right from
wrong.
      Doyle initially appealed to the Texas Court of Criminal Appeals (“TCCA”),
alleging eleven points of error; his sentence was affirmed. His challenges
focused exclusively on two areas: the members of the jury pool and the constitu-
tionality of the death penalty. See Doyle v. State, 2006 WL 1235088 (Tex. Crim.
App. May 10, 2006), cert. denied, 549 U.S. 976 (2006). The TCCA denied Doyle’s
petition for state habeas relief. See Ex parte Doyle, 2008 WL 217985 (Tex. Crim.
App. Jan. 23, 2008). Doyle next filed a federal habeas petition alleging eight
claims, which was denied.


                                        II.
      A COA is appropriate only where a petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must
also demonstrate that “reasonable jurists” could agree, or at least debate, that
the denial of habeas relief was erroneous “or that the issues presented [are] ade-
quate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal citations omitted). We apply the strict standards
in 28 U.S.C. § 2254(e), which provides that facts decided by the state court are
controlling unless rebutted by clear and convincing evidence.


                                       III.
      Doyle requests a COA on three of the claims denied by the district court.
First, he contests the voluntariness of his confession and the admissibility of his
statements made to friends (Claim 3). Second, he argues that he received inef-
fective assistance of counsel (“IAC”) related to that claim (Claim 4). Finally, he
claims that his sentence violates the Eighth and Fourteenth Amendments

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because he was developmentally a juvenile (Claim 6).


                                            A.
       Doyle’s first claim is procedurally barred:
       In all cases in which a state prisoner has defaulted his federal
       claims in state court pursuant to an independent and adequate state
       procedural rule, federal habeas review of the claims is barred unless
       the prisoner can demonstrate cause for the default and actual preju-
       dice as a result of the alleged violation of federal law, or demon-
       strate that failure to consider the claims will result in a fundamen-
       tal miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). In the first place, Doyle never
objected to the admission of the statements he made to his friends wherein he
confessed his crimes. Second, though he objected to the voluntariness of his con-
fession based on his mental state, he did not raise his current theorySScoercion
by the conditioning of state officialsSSat trial. Nor did he raise those issues on
direct appeal. In his state habeas proceedings, the court found that Claim 3
could have been raised on direct appeal and that Doyle had thus defaulted on it.
Texas bars all record-based claims not raised on direct appeal.1 It also requires
contemporaneous objection. We “ha[ve] consistently held that the Texas con-
temporaneous objection rule constitutes an adequate and independent state
ground that procedurally bars federal habeas review . . . .” Fisher v. Texas, 169
F.3d 295, 300 (5th Cir. 1999).
       Doyle makes no real response to his default of Claim 3, nor does he
attempt to demonstrate actual prejudice or good cause for the default. He
instead urges that his IAC claim, Claim 4, is necessarily tied to the merits of
Claim 3. That, however, does not satisfy Texas caselaw regarding the default,

       1
         See Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1996) (“‘[T]he writ of
habeas corpus should not be used to litigate matters which should have been raised on direct
appeal.’”) (citation omitted).

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so Doyle has procedurally defaulted as to the substantive issues of Claim 3, and
we deny a COA.


                                        B.
      Doyle’s next contention, Claim 4, is that he received IAC in violation of the
Sixth Amendment regarding a failure to object and preserve Claim 3. To estab-
lish IAC, a petitioner must show (1) that his counsel’s performance was deficient
to the extent that he failed to function as “counsel” and (2) that that deficient
performance prejudiced his defense so much that it deprived him of a fair trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a “strong presump-
tion” that counsel’s actions “fall[] within the wide range of reasonable profes-
sional assistance.” Id. at 689. Where, as here, the state court applied the stan-
dard in Washington and concluded that counsel was not ineffective, the test is
whether the state court’s decision was “contrary to, or an unreasonable appli-
cation of” clearly established federal law. Schaetzle v. Cockrell, 343 F.3d 440,
444 (5th Cir. 2003).
      The first requirement of Washington was not met. Counsel explained that
he purposefully did not challenge Doyle’s confession after it had been admitted
into evidence, because the lynchpin of the defense was that Doyle did not have
the requisite mens rea for murder—specifically, Doyle only planned and
attempted to rob rather than murder Cho.
      Moreover, the claim Doyle seeks to advance regarding the voluntariness
of his confession is without merit. Doyle maintains that counsel should have
raised a claim that his oral and written confessions were the product of coercion,
were involuntary, and thus violated his rights. He claims that a confession may
be rendered coerced and involuntary based on the actions of those outside the
immediate interrogation context. He contends that the “state actors” that
coerced his confession included his school principal, a probation officer, and staff

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                                  No. 12-70025

at a juvenile correction agency in which he resided. Years before, he claims,
those actors had taught him to confess his misdeeds, in the case of the school
principal, and to talk to his peers about what he had done wrong and why, in the
case of the juvenile corrections agency. Doyle was held in the principal’s office,
sometimes for hours, until he confessed to misbehavior attributed to him. While
at the juvenile facility, he had participated in frequent “huddle ups” where the
youths were encouraged to explore with their peers, in narrative form, what they
had done wrong, which “exerted peer pressure to confess and conform.” Those
“coercive” activities inculcated in Doyle a habit of confession.
      Doyle points to Townsend v. Sain, 372 U.S. 293 (1963), overruled in part
by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), in support. The Court there held
that, where a confession was the product of a “truth serum”-type drug, it was
involuntary. Id. at 307–08. It did not matter that the state actor who had given
the defendant the “truth serum” was different from the individual who interro-
gated him and that there was some slight separation in time between the admin-
istration of the drug and the confession. Id. Doyle argues that the previous
cultures of concession imposed on him by state actors were the same type of pre-
interrogation coercion found in Townsend.
      That claim is an impermissible broadening of Townsend and plainly out-
side settled law. In Townsend, the truth serum was administered as part of the
interrogation for the specific purpose of extracting information during the inter-
rogation. Townsend stands for the principle that an interrogation will not be
considered non-coercive just because the coercive aspects of the interrogation are
delegated to an individual who does not ask any questions. The “coercion” Doyle
complains of was far removed from his confession, both in terms of time and
causation. Challenged police conduct must be “causally related to the confes-
sion.” Colorado v. Connelly, 479 U.S. 157, 164 (1986). Where it is not, there “is
simply no basis for concluding that any state actor has deprived a criminal

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                                  No. 12-70025

defendant of due process of law.” Id.
      There was no direct causal relationship between the state actors and
Doyle’s confession. Even assuming the actions of the principal and the coun-
selors constitute relevant state action, they were too remote in time and were not
at all proximately related to Doyle’s confession. In Townsend, the truth serum
was administered for the purpose of the interrogation by police officers and in
contemplation of drawing out that specific confession. Under Doyle’s theory, any
action by a government employee that tended to encourage confession in general,
no matter how remote in time to the confession challenged, would be sufficient
to classify the confession as coerced. That interpretation strains law and reason.
      Doyle’s counsel was not ineffective for failing to raise that claim; it was a
reasonable trial strategy to focus on the mens rea, and counsel did initially chal-
lenge the admissibility of the confession. Moreover, the state court’s analysis
hewed to settled standards for determining effectiveness of counsel. Doyle has
not shown the denial of a constitutional right, and there is no room for reason-
able jurists to debate. We therefore deny a COA on Claim 4.


                                         C.
      Doyle’s final claim, Claim 6, asks us to ignore clear Supreme Court prece-
dent and inaccurately presents Eighth Amendment jurisprudence. Doyle con-
tends that the Eighth Amendment prohibits applying the death penalty to one
who is “developmentally” a minor. Doyle argues that, in spite of Roper v. Sim-
mons, 543 U.S. 551 (2005), the Eighth Amendment forbids bright-line rules. The
Court there held, however, as follows:
      Drawing the line at 18 years of age is subject, of course, to the objec-
      tions always raised against categorical rules. The qualities that dis-
      tinguish juveniles from adults do not disappear when an individual
      turns 18. By the same token, some under 18 have already attained
      a level of maturity some adults will never reach. For the reasons we


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                                       No. 12-70025

       have discussed, however, a line must be drawn. . . . The age of 18 is
       the point where society draws the line for many purposes between
       childhood and adulthood. It is, we conclude, the age at which the
       line for death eligibility ought to rest.

Id. at 574 (emphasis added).
       Doyle misinterprets Simmons. He argues that the government and the
state courts applied Simmons as though it had created a rule of per se constitu-
tionality of death sentences for those over eighteen, but that is not so. Simmons
established a lower boundary: No one under eighteen may be executed, meaning
only that, based on that single metric, a defendant is not disqualified from
receiving the death penalty. The jury must still consider other factors during
the punishment phase, including mitigating factors.
       That correct interpretation is precisely what the state court applied and
what the state here argues. Doyle was over eighteen, so he cannot use Simmons
as a shield. He is entitled to and did present evidence of his age and purported
psychological and developmental shortcomings as mitigating factors.2 He has
not shown that he was denied a constitutional right, and there is no room for
reasonable jurists to debate Claim 6.3
       The request for a COA is DENIED.




       2
        See Johnson v. Texas, 509 U.S. 350, 367 (1993) (“A sentencer in a capital case must
be allowed to consider the mitigating qualities of youth in the course of its deliberations over
the appropriate sentence.”).
       3
         Doyle asks us to undermine Simmons and adopt a new rule that it is the “developmen-
tal age,” not the true age, that matters. That is an unreasonable interpretation of Simmons,
and Doyle’s citations to Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132
S. Ct. 2455 (2012), are entirely unhelpful. In Miller, for instance, the Court again drew a
bright line at eighteen as a lower bound for punishment. Miller, 132 S. Ct. at 2460 (“We there-
fore hold that mandatory life without parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’“).
The Court reiterated, though, the importance of considering all of the individual circumstances
in fashioning a sentence.

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