     Case: 17-70009      Document: 00514354075         Page: 1    Date Filed: 02/20/2018




                        REVISED February 20, 2018

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

                                      No. 17-70009
                                                                                Fifth Circuit

                                                                              FILED
                                                                      December 20, 2017

WILLIE TERION WASHINGTON,                                                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 Southern District of Texas
                              USDC No. 4:07-CV-721


Before CLEMENT, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioner, Willie Washington, seeks a Certificate of Appealability
(“COA”) on two ineffective assistance of trial counsel (“IATC”) claims, which
the district court concluded were procedurally barred. Washington also argues
the district court prevented him from having a “meaningful opportunity” to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-70009
demonstrate cause for his procedural default by denying his petition for
discovery and a hearing. We are persuaded that his petitions are meritorious.
                                       I.
      Washington was convicted of capital murder and sentenced to death in
1986 by a Texas jury. The conviction and sentence were affirmed in 1989 by
the Texas Court of Criminal Appeals (“TCCA”) on direct appeal.
      Then Washington commenced collateral proceedings. During his now
two-decades-long pursuit of habeas relief, Washington has raised numerous
claims on habeas petitions before both state and federal courts. But the present
motion concerns only two IATC claims. In the first, Washington challenges his
trial counsel’s failure to raise a timely Batson claim despite evidence of the
violation (“IATC-Batson”). In the second, Washington argues his trial counsel
failed to conduct a competent investigation into his background, which would
have unearthed important sentence mitigation evidence (“IATC-sentence”).
      Neither of the claims has been adjudicated on the merits. The IATC-
Batson claim was rejected by the TCCA as procedurally barred under Texas’s
abuse of the writ statute. Although Washington’s state habeas counsel raised
an initial IATC claim regarding trial counsel’s failure to investigate mitigating
evidence, he significantly altered his IATC-sentence claim when he (with the
assistance of new counsel) raised it in his federal habeas petition. Accordingly,
the district court declined to review both.
      We initially agreed with the court’s decision. Washington v. Thaler, 464
F. App’x 233 (5th Cir. 2012). But, after our ruling, the Supreme Court decided
Trevino v. Thaler, which established a new basis for overriding a procedural
default in Texas criminal proceedings: ineffective assistance of habeas counsel.
133 S. Ct. 1911 (2013). The Supreme Court granted Washington’s certiorari
petition and remanded for further consideration in light of Trevino. This court


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                                     No. 17-70009
then granted a COA and remanded to the district court to review his IATC
claims anew.
      In his supplemental briefing ordered by the district court, Washington
only raised the IATC-Batson and IATC-sentence claims. He sought 90 days of
discovery and “an opportunity to plead allegations relating to cause for the
procedural default” on those claims. Such discovery would allow him to
“acquire information about and plead with more specificity” his state habeas
counsel’s ineffectiveness.
      But he also noted evidence of deficiency already in the record. Regarding
the adequacy of counsel’s representation, Washington argued that “[s]tate
habeas counsel appears to have conducted no investigation into trial counsel’s”
failure to raise a Batson objection. He noted this failure prevented him from
raising an IATC claim that this court found to be potentially meritorious. See
Washington, 464 F. App’x at 239–40 (noting that there was sufficient evidence
at trial to raise a prima facie Batson claim and that “[t]he failure to raise a
Batson challenge at voir dire may have been ineffective assistance”).
Regarding the IATC-sentence claim, Washington conceded that his state
habeas counsel raised the claim initially. But he contended that this challenge
relied exclusively on an affidavit Washington had signed, suggesting his state
habeas counsel’s challenge was based on insufficient efforts.
      Turning to prejudice, Washington noted that federal habeas counsel had
been able to unearth information that supported the merits of both IATC
claims. The IATC-Batson claim was supported by the discovery of the
prosecutor’s jury questionnaires from the trial, which appeared to be racially
coded. 1 Federal habeas counsel also discovered that the same prosecutor had



      1 Specifically, the questionnaires of black jurors had the letter “b” written in the
margins.
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                                  No. 17-70009
been found guilty of a Batson violation in another proceeding, wherein he made
similar markings. Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1989).
Regarding the IATC-sentence claim, Washington’s federal habeas counsel had
unearthed a “plethora of mitigating information” based on a more thorough
investigation, suggesting that the deficient investigation impacted the outcome
of his IATC-sentence claim. These discoveries suggested that a more extensive
investigation by habeas counsel would have led to a different result.
      The district court interpreted his petition as seeking an evidentiary
hearing and denied relief. The court neither considered the underlying merits
of Washington’s IATC claims, nor investigated the underlying state record.
Instead, it focused on Washington’s petition, noting he “offered little other than
a generalized hope that additional investigation and an evidentiary hearing
might lead to something relevant.” The court further noted that he “offer[ed]
no explanation as to how [the newly-discovered] evidence relates to the
defaulted claims, or how state habeas counsel was deficient for failing to raise
the defaulted claims.”
      The court then reaffirmed its prior decision that the claims were
procedurally barred. Specifically, the court found that Washington had made
“no showing that [habeas] counsel was ineffective,” and thus had not
demonstrated cause for the default. The court also denied Washington’s
petition for a COA. This motion followed.
                                       II.
      Washington’s motion requests a COA to review the procedural default of
the IATC claims, but he primarily seeks to overturn the district court’s denial
of a “meaningful opportunity” to demonstrate that his procedural default
should be excused. Specifically, he argues that he should have been entitled to
some amount of discovery and an evidentiary hearing to establish that his


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                                  No. 17-70009
state habeas counsel was ineffective, which, in turn, would establish cause for
his procedural default of the IATC claims under Trevino.
      A COA may not be issued unless “the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). But this
requirement does not entail a full merits analysis. As the Supreme Court has
recently warned, “[w]hen a court of appeals sidesteps [the COA] process by first
deciding the merits of an appeal, and then justifying its denial of a COA based
on its adjudication on the actual merits, it is . . . deciding an appeal without
jurisdiction.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal quotations and
citation omitted). Instead, “[w]hen 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 . . . that
jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Since this is a death-
penalty case, “any doubt as to whether a COA should issue . . . must be resolved
in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005).
      But COAs (and the standard of review governing them) apply only to
“final orders that dispose of the merits of a habeas corpus proceeding.”
Harbison v. Bell, 556 U.S. 180, 183 (2009). By contrast, “a [habeas] petition
challenging an evidentiary ruling may only be entertained as corollary to a
constitutional violation.” Norman v. Stephens, 817 F.3d 226, 234 (5th Cir.
2016) (internal quotations and citation omitted). We may only consider such
petitions after we have granted the underlying COA. The decision to hold an
evidentiary hearing is reviewed for abuse of discretion. Segundo v. Davis, 831




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                                       No. 17-70009
F.3d 345, 351 (5th Cir. 2016). 2 The petitioner bears the burden. Young v.
Herring, 938 F.2d 543, 559 (5th Cir. 1991).
              A. COA regarding the procedurally defaulted IATC claims
       Turning first to the merits of the COA, we are mindful of Buck’s warning
against a probing review of the merits. Such hesitancy seems particularly
prudent in the present circumstances, where neither Washington’s IATC nor
his ineffective habeas counsel claims have been evaluated on the merits by
either state habeas courts or the district court. We are also required to provide
Washington the benefit of any doubt regarding his COA. In light of that
deferential review, we are inclined to grant it.
       Federal habeas petitioners cannot overcome a state procedural default
unless they show “cause for the default and actual prejudice” from the
underlying violation. Coleman v. Thompson, 501 U.S. 722, 749–50 (1991). In
Trevino, the Supreme Court ruled that, in Texas, ineffective assistance of the
initial habeas counsel can qualify as “cause.” 133 S. Ct. at 1921. Such a claim
of ineffective assistance entails a two-part showing: (1) that counsel “made
errors so serious that [he or she] was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment,” and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S.
668, 687, 694 (1984).




       2  The State argues that 28 U.S.C. § 2254(e) of the Antiterrorism and Effective Death
Penalty Act governs our review of the district court’s denial of the evidentiary hearing. But
this restrictive standard should not apply here. Since ineffective assistance of habeas counsel
was not a relevant legal consideration for Washington’s petition prior to Trevino, his need for
further information can hardly be considered a “fail[ure] to develop the factual basis of a
claim in State court proceedings” under § 2254(e). See McDonald v. Johnson, 139 F.3d 1056,
1059 (5th Cir. 1998) (“[A] petitioner cannot be said to have ‘failed to develop’ a factual basis
for his claim unless the undeveloped record is a result of his own decision or omission.”).
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                                  No. 17-70009
      Here, the defaulted claims are both IATC claims, and, as this court has
explained, “in the COA context, we have held that to succeed in establishing
cause, the petitioner must show (1) that his claim of [IATC] is substantial—
i.e., has some merit—and (2) that habeas counsel was ineffective in failing to
present those claims in his first state habeas proceeding.” Segundo, 831 F.3d
at 350 (internal quotations and citations omitted). In other words, the prisoner
seeking to override his procedural default must demonstrate that his habeas
counsel’s errors and his trial counsel’s errors were both “serious,” Strickland,
466 U.S. at 694, and had a substantial likelihood of producing a different
result, Harrington v. Richter, 562 U.S. 86, 112 (2011).
      Although the district court found that Washington had failed to
demonstrate his habeas counsel was ineffective, it did not discuss the basis in
the record for this conclusion. Moreover, the district court did not discuss the
underlying merit of Washington’s IATC claims. But we see at least a debatable
merit in these claims.
      Regarding the IATC-Batson claim, we have already admitted there
might be a plausible IATC-Batson claim (or, at the very least, that Washington
had a prima facie case for one) when we last considered the argument on
appeal. Washington, 464 F. App’x at 240. Moreover, as noted supra, the
presence of race-identifying marks on the prosecutor’s jury questionnaires is
evidence of a Batson violation—as both the Supreme Court, Foster v. Chatman,
136 S. Ct. 1737 (2016), and the TCCA, Whitsey, 796 S.W.2d 707, have found.
There is admittedly little evidence that trial counsel’s failure to raise a timely
Batson challenge was a dereliction of duty, aside from the fact that most of the
prosecution’s peremptory strikes (six of ten) were used on minorities and the
final jury was all white. But this only weakens the IATC-Batson claim on the
merits; it does not render it so futile as to be beyond reasonable debate. See
Buck, 137 S. Ct. at 773.
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                                  No. 17-70009
      Regarding the IATC-sentence claim, Washington notes, with cites to the
state record, that trial counsel’s only investigation with respect to sentencing
was a brief discussion with Washington’s parents. This fact is not controverted
by the State. Because of this insufficient investigation, substantial mitigating
evidence regarding his rough upbringing and schooling, his devotion as a
father, etc., was never brought to light. Thus, it is at least debatable that trial
counsel failed to “undertake a reasonable investigation” or “ignore[d] pertinent
avenues of investigation.” Escamilla v. Stephens, 749 F.3d 380, 390 (5th Cir.
2014). And, with the benefit of federal habeas counsel’s more probing
investigation, Washington has provided details about his upbringing and
character that might have had an impact on his sentence.
      Turning to his state habeas counsel claim, there is again a basis in the
record to find the representation was debatably ineffective. The mere fact that
state habeas counsel failed to raise two potentially meritorious IATC claims
evidences both his ineffectiveness and the prejudice that resulted. Moreover,
as noted by Washington in his brief, although habeas counsel did challenge the
IATC-sentencing claim, his own research into mitigating evidence involved
perhaps less investigation than trial counsel’s: he merely interviewed
Washington himself. This fact is also not controverted by the State.
      The State argues—with persuasive force—that the foregoing claims are
unlikely to succeed on the merits. But, in so doing, it proves that Washington’s
claims are “debatable” and thus warrant a COA.
            B. Evidentiary Hearing and Discovery
      Having decided that the underlying COA is meritorious, we now turn to
the remaining evidentiary issues. The district court found that Washington’s
request for an evidentiary hearing regarding his initial habeas representation
was little more than a fishing expedition and denied the petition. This was an
abuse of discretion.
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                                  No. 17-70009
      As a guiding principle when reviewing evidentiary petitions, this court
has held that “where specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully developed, be able to
demonstrate he is . . . entitled to relief, it is the duty of the courts to provide
the necessary facilities and procedures for an adequate inquiry.” Murphy v.
Johnson, 205 F.3d 809, 813–14 (5th Cir. 2000) (internal quotations and citation
omitted). When a habeas petitioner seeks further discovery in particular, he
must establish “good cause” to do so. Id. at 814. Although we have never fully
defined the boundaries of this term’s application, “good cause” may be satisfied
upon a prima facie showing that the petitioner is entitled to relief. Id.
Additionally, we have required that the discovery requests be “specific, as
opposed to merely speculative or conclusory.” Id.
      When a petitioner seeks “an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to prove the
petition’s factual allegations, which, if true, would entitle the applicant to
federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); see
Young, 938 F.2d at 560 n.12 (“[A] petitioner need not receive an evidentiary
hearing if it would not develop material facts relevant to the constitutionality
of his conviction.”). But “[a] petitioner is not entitled to an evidentiary hearing
. . . if his claims are merely conclusory allegations unsupported by specifics.”
Young, 938 F.2d at 560 (internal quotations and citation omitted). Finally, if a
petitioner squanders prior opportunities to expand the record and conduct
discovery, his subsequent petition asserting such need is not persuasive. Id.
      Accordingly, the considerations guiding our review of Washington’s
petitions for an evidentiary hearing and for limited discovery are the same. We
conclude those considerations require us to overturn the district court’s denial
of both petitions. The evidence sought by Washington—pertaining to his state
habeas counsel’s efforts—is central to his attempt to overcome the procedural
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                                  No. 17-70009
default in light of Trevino. And, notably, there has never been a state hearing
on this issue, nor did Washington have a reasonable opportunity to discover
this information prior to his petition. After all, prior to Trevino, the Supreme
Court had held that the ineffectiveness of habeas counsel’s representation
could not establish cause for a procedural default. Coleman, 501 U.S. at 757.
      Moreover, the equitable principles that advise against a hearing and
further discovery are not applicable. Washington’s request was not open-
ended, but was specifically limited to the efforts habeas counsel made when
representing Washington’s initial collateral appeal. Nor was it, as the district
court suggested, based on “conclusory allegations unsupported by specifics,”
lacking any clear relation to Washington’s ineffective habeas counsel or IATC
claims. To the contrary, it was based on other evidence that, as noted supra,
suggested both his habeas and trial counsel were inept. And, as just noted,
Washington has never had the opportunity to discover this information.
      It is true that this court in Segundo “decline[d] to hold that Martinez
mandates an opportunity for additional fact-finding in support of cause and
prejudice.” 831 F.3d at 351. But the mere fact that an evidentiary hearing is
not mandated in all cases does not mean it is not required here. Notably, when
this court explained its decision not to overturn the district court’s denial of an
evidentiary hearing in Segundo, it noted that “the district court thoroughly
reviewed the record of the state-court proceedings, and made specific findings
of fact in denying relief.” Id. This court also observed that there had been
extensive “factual development during trial and during the state habeas
proceedings,” so “the district court did not abuse its discretion in determining
it had sufficient evidence.” Id. The court also noted that the petitioner’s IATC
claims were patently meritless. Id. at 352.
      Here, the district court engaged in no evaluation of the record. Nor did
the district court find that there was sufficient evidence in the record to deny
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                                No. 17-70009
Washington’s ineffective assistance of habeas counsel claim. Instead, the
district court rejected the request solely on the unpersuasive grounds that it
was overbroad. Moreover, as noted above, Washington has at least raised
debatable IATC and ineffective habeas counsel claims. Accordingly, the court’s
denial of Washington’s evidentiary petition was in error.
                                     III.
      In light of the specific circumstances of this case, we GRANT
Washington’s COA, VACATE the district court’s denial of an evidentiary
hearing and dismissal of Washington’s habeas petition, and REMAND for
further discovery and an evidentiary hearing on Washington’s ineffective
habeas counsel claims.




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