                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                                                                                           October 15, 2003
                                                  In the
                                                                                       Charles R. Fulbruge III
                         United States Court of Appeals                                        Clerk
                                       for the Fifth Circuit
                                            _______________

                                              m 03-20129
                                            _______________




                                          CHARLES D. RABY,

                                                               Petitioner-Appellant,

                                                 VERSUS

                                             DOUG DRETKE,
                        DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                              CORRECTIONAL INSTITUTIONS DIVISION,

                                                               Respondent-Appellee



                                     _________________________

                              Appeal from the United States District Court
                                  for the Southern District of Texas
                                            m H-02-0349
                                   _________________________



Before HIGGINBOTHAM, SMITH, and                           Charles Raby applies for a certificate of ap-
  CLEMENT, Circuit Judges.                             pealability (“COA”) pursuant to 28 U.S.C.

JERRY E. SMITH, Circuit Judge:*
                                                           *
                                                            (...continued)
                                                       determined that this opinion should not be pub-
  *
      Pursuant to 5TH CIR. R. 47.5, the court has      lished and is not precedent except under the limited
                                     (continued...)    circumstances set forth in 5TH CIR. R. 47.5.4.
§ 2254. We deny the request.                                   Although Raby originally cited thirteen
                                                           grounds for habeas corpus relief, he now seeks
                      I.                                   a COA based on the following: (1) ineffective
   In June 1994, a jury convicted Raby of the              assistance of counsel at the punishment phase;
capital murder1 of seventy-two-year-old Edna               (2) improper prosecutorial comments
Franklin, who “had been severely beaten[,] re-             regarding Raby’s silence surrounding his
peatedly stabbed[,] and undressed . . . below              arrest; (3) ineffective assistance of trial counsel
the waist.” Raby v. Stone, 970 S.W.2d 1                    during the guilt phase of the trial; (4)
(Tex. Crim. App. 1998). Although Raby                      insufficient evidence; (5) the alleged
pleaded not guilty, the state introduced a                 unconstitutionality of Texas law in not
signed statement in which he admitted to                   allowing an intoxication defense; and (6) not
attacking Franklin and to the general                      being able to inform the jury about his future
circumstances surrounding the crime.2 During               parole eligibility in a life sentence. The district
the punishment phase, prosecution and defense              court dismissed all of Raby’s claims on a
witnesses testified to aggravating and                     motion for summary judgment.
mitigating factors, respectively. The jury
answered that Raby posed a future danger and                  The first two grounds were dismissed be-
that sufficient mitigating evidence was not                cause Raby had failed to exhaust his options in
presented. Raby was sentenced to death.                    state proceedings. The third ground was dis-
                                                           missed based on procedural defaults and an
                          II.                              application of Strickland v. Washington, 466
                                                           U.S. 668 (1984). The district court dismissed
                                                           the fourth ground after determining that the
   1                                                       evidence “was nearly compelling in showing
     TEX. PENAL CODE ANN. § 19.03(a)(2) (“A
                                                           that Franklin was killed during the commission
person commits an offense if he commits murder as
defined under Section 19.02(b)(1) and . . . (2) the        or attempted commission of a robbery or
person intentionally commits the murder in the             sexual assault.” The district court cited valid
course of committing or attempting to commit               Supreme Court and Fifth Circuit precedent3
kidnapping, burglary, robbery, aggravated sexual           stating the precise opposite of what Raby
assault, arson, or obstruction or retaliation.”).          claimed in his fifth ground. Finally, the court
                                                           cited Green v. Johnson, 160 F.3d 1029, 1045
   2
       The statement read, in part:                        (5th Cir. 1998), to dispel Raby’s argument that
                                                           he had the constitutional right to inform the
   I went to a little store and bought some wine           jury as to his parole eligibility under a life
   . . . . I drank the wine . . . . I knocked on the
   door. I did not hear anyone answer. I just went
   inside . . . . I wa lked into the kitchen and
   grabbed Edna. Edna’s back was to me and I
   just grabbed her. I remember struggling with
                                                              3
   her and I was on top of her. I know I had my                 Montana v. Egelhoff, 518 U.S. 37 (1996);
   knife but I do not remember taking it out. We           Goodwin v. Johnson, 132 F.3d 162, 190-91 (5th
   were in the living room when we went to the             Cir. 1998) (applying Egelhoff to a capital case in
   floor. I saw Edna covered in blood and un-              which the defendant unsuccessfully claimed that a
   derneath her. I went to the back of the house           Texas statute foreclosing voluntary intoxication
   and went out the back door . . . .                      violated due process).

                                                       2
sentence.4                                                insufficiency claim has the primary problem
                                                          that Raby confessed, fully, to attacking
                       III.                               Franklin. The crime scene contains sufficient
                       A.                                 evidence to suggest that either a sexual assault
   “[U]ntil a COA has been issued federal                 or a robbery was attempted.
courts of appeals lack jurisdiction to rule on
the merits of appeals from habeas petitioners.”               If one ignores the procedural bar of his
Miller-El v. Cockrell, 537 U.S. 322, ___, 123             third ground (ineffective assistance at the trial
S. Ct. 1029, 1039 (2003). To receive a COA,               phase), Raby’s third ground fails because it
“a petitioner must ‘show that reasonable jurists          could not possibly overcome Washington’s
could debate whether (or, for that matter,                second prong. Under Washington, a habeas
agree that) the petition should have been re-             petitioner “must show that his counsel’s
solved in a different manner or that the issues           assistance was deficient and that the deficiency
presented were “adequate to deserve                       prejudiced him.” Hopkins v. Cockrell, 325
encouragement to proceed further.”’” Id.                  F.3d 579, 586 (5th Cir. 2003).
(quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000) (citations omitted)).                              Raby listed a variety of ways in which
                                                          counsel5 allegedly erred. Perhaps the most sig-
                      B.                                  nificant alleged error occurred when counsel
   As discussed in part IV, infra, the district           conceded that Raby entered Franklin’s house
court validly dismissed Raby’s first three                through a door rather than a window. Raby
grounds because he failed to exhaust them at              felt that his counsel premised this approach on
the state level. Assuming, arguendo, that such            a mistaken belief that entering through a door
a procedural bar can be circumvented, none of             would preclude a finding of burglary.
Raby’s substantive claims warrants a COA.
                                                              Even assuming, arguendo, that such a tac-
   The district court correctly dismissed Ra-             tical decision was ineffective assistance, there
by’s fourth, fifth, and sixth grounds. All three          was no prejudice, because Raby cannot show
are foreclosed by relevant authorities. In addi-          that his attorney’s malfeasance brought about
tion to the cases cited previously, the                   his conviction. He signed a confession to ev-
                                                          ery aspect of the relevant charge, with the
                                                          exception of the explicit act of stabbing. Even
   4
      The district court, and this court, in Green,       during his attempt to exclude the statement, he
distinguished a Texas life sentence from a South          admitted, in the words of the district court,
Carolina life sentence, as referenced in Simmons v.       “that his confession was knowing, voluntary,
South Carolina, 512 U.S. 154 (1994). In Sim-              and true. Counsel were not deficient for
mons, the Court held that a defendant had the right
                                                          choosing not to falsely argue that the
to inform the jury of the fact that a life sentence
would not carry the right of parole. The jury, con-
sequently, would have two options to remove a
                                                             5
potentially dangerous individual from society. The             Raby also alleges that one of his counsel,
Texas system, however, does not afford a life             Fosher, “was impaired by debilitating pain and
sentence without the possibility of parole. Thus,         medication use during trial” to such an extent that
the Simmons right does not apply to a defendant           Fosher could not remember any elements of the
such as Raby.                                             direct appeal.

                                                      3
confession was involuntary or untrue.” Thus,                    In Cotton, we granted a COA on the
Raby’s signed statement precludes a finding of               prosecution’s referring to the defendant as an
prejudice during the guilt phase.                            expert who could have refuted a co-
                                                             conspirator’s testimony, but we promptly
    The statement similarly blocks Raby’s                    dispatched of the point on grounds of harmless
second ground, whereby he claims that the                    error. In Raby’s situation, the prosecution’s
prosecution improperly commented on his                      comment did not paint the defendant in a more
silence surrounding his arrest. The prosecutor               negative light than in Cotton, and the
stated:                                                      harmlessness is similarly obvious.

   [Is] it any wonder that a person who would                   Consequently, given the manner in which
   attack a helpless, fragile, arthritic little old          Cotton disposed of a similar prosecutorial
   lady and stab her as many times as he did,                comment, reasonable jurists could not debate
   brutalize her, slit her throat, ripped her                the outcome of this issue. Finally, even
   clothes off, ripped her panties, anyone who               assuming that the procedural default could be
   would do something so cowardly, is it any                 excused, we should not grant a COA based on
   wonder that when he runs, that he is silent               the substance of the first claim, as discussed in
   after he runs? He doesn’t go to the police.               part IV, infra.
   He isn’t filled with remorse. When he gets
   the call that the police are coming, when he                                    IV.
   gets that call from his mother, he flees, in-                Given the weight of his signed confession,
   dicating guilty knowledge. Is it any wonder               Raby’s strongest argument focuses on the pun-
   that that type of coward would not fess up                ishment phase of his trial. The district court
   to all the details of his confession to the               barred this ground based on Raby’s failure to
   police? Of course not.                                    exhaust his state remedies, as required by 28
                                                             U.S.C. § 2254(b)(1)(B)(i). Raby attempts to
Even if one ignores the procedural bar6                      excuse his procedural default by invoking
invoked by the district court, disregards the                § 2254(b)(1)(B)(ii), which provides an
fact that Raby’s counsel apparently did not                  exception to the regular exhaustion
object to the prosecutor’s comment, and                      requirement where “circumstances exist that
assumes that the prosecution improperly                      render [state] process ineffective to protect the
commented on Raby’s silence, any possible                    rights of the applicant.” Raby claims that his
error was harmless.7                                         state-appointed state habeas counsel, James
                                                             Keegan, actively interfered with his attempts
   6
                                                             to pursue his habeas claims.8 Raby lists eleven
      The procedural bar discussion appears in
part IV, infra.
   7                                                            7
     See Cotton v. Cockrell, 343 F.3d 746, 752                   (...continued)
(5th Cir. 2003) (“Given the overwhelming evidence            fendant’s] guilt.”).
of guilt and the court’s cautionary instruction to the
                                                                8
jury, we conclude that the prosecution’s statement                Raby claims that “the CCA blocked his access
had no substantial and injurious effect or influence         to the courts by appointing a lawyer who refused to
in the determination of [de                                  investigate and raise meritorious claims in the state
                                       (continued...)                                              (continued...)

                                                         4
ways in which Keegan allegedly “thwarted” his              by calling “notorious state expert Walter Qui-
attempts to present habeas claims in state                 jano, who . . . prejudicially labeled Raby a
court.9         An unresponsive, insensitive               ‘psychopath.’”
lawyer does not excuse a procedural default
under § 2254 (b)(1)(B)(ii).10 The facts in                     Counsel’s performance does not satisfy
Martinez are similar to those presented here, in           Washington’s requirements for ineffective as-
regard to Raby’s claims regarding Keegan.11                sistance. Raby’s trial counsel called witnesses
Thus, Martinez forecloses debate on the use of             to testify “to his troubled upbringing, including
alleged ineffectiveness of state habeas counsel            his mother’s mental problems, his commitment
to circumvent the state exhaustion                         to foster care and institutions, and episodes of
requirement.                                               physical abuse.” Raby v. Stone, 970 S.W.2d 1,
                                                           3 (Tex. Crim. App. 1998). Additional
                       V.                                  witnesses testified “that [defendant] had a
    Raby claims that his drug-addicted counsel             peaceful disposition and that his problems dur-
failed to provide him with effective assistance.           ing incarceration had been provoked by jail-
Specifically, Raby asserts that his attorney               ers.” Id. Thus, counsel did not underperform
failed to investigate his case adequately and              in attempting to mitigate Raby’s sentence.
points to eighteen mitigating factors that such
an investigation would have uncovered. He                      Although the decision to call Quijano did
also asserts that his lawyer egregiously erred             not help Raby, “judicial scrutiny of counsel's
                                                           performance must be highly deferential, and
                                                           courts must indulge in a strong presumption
   8
    (...continued)                                         that counsel's conduct falls within the wide
habeas proceedings and precluding him from                 range of reasonable professional assistance.”
otherwise asserting those claims.”                         Hopkins, 325 F.3d at 586. Additionally, “in-
   9                                                       formed strategic decisions are given a heavy
     These problems include failing to investigate
extra-record claims, to hire an investigator, to re-       measure of deference.” Boyle v. Johnson, 93
quest a separate evidentiary hearing, to forward           F.3d 180, 187 (5th Cir. 1996) (citing Mann v.
court documents to Raby, and to accept Raby’s              Scott, 41 F.3d 968, 984 (5th Cir. 1994)). Ra-
mail.                                                      by’s counsel met with Quijano before the pun-
                                                           ishment phase and apparently (though wrong-
   10
       See Martinez v. Johnson, 255 F.3d 229, 239          ly) thought that his testimony would help es-
n.10 (5th Cir. 1991) (“[U]nder these facts, failure        tablish that the Texas prison system would
to provide ‘competent’ counsel for a state habeas          contain any future dangerousness on Raby’s
petition does not fall under the general catch-all         part. No COA is justified on this issue.
exception provided in 28 U.S.C. § 2254(b)(1)(B)-
(ii).”).                                                      The application for COA is DENIED.
   11
     Id. at 238 n.9 (“(1) Rhodes did not respond to
any of Martinez’s letters, nor did he accept or
return any of Martinez’s phone calls; (2) Rhodes
did not hire an investigator or an expert to develop
extra-record evidence; (3) Rhodes did not send
Martinez any of the copies of documents he filed
on his client’s behalf.”).

                                                       5
