     Case: 16-70013   Document: 00513938784     Page: 1   Date Filed: 04/04/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                 No. 16-70013                          FILED
                                                                    April 4, 2017

THOMAS BARTLETT WHITAKER,                                         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


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Petitioner-Appellant Thomas Bartlett Whitaker appeals the district
court’s grant of summary judgment on his federal habeas claims. Whitaker v.
Stephens, 2015 WL 1282182 (S.D. Tex. 2015). Based on our review of the briefs,
the applicable law, oral argument before us, and the full record, we AFFIRM
the judgment of the district court denying relief on Whitaker’s due process
claim for the reasons stated in its forty-nine page opinion entered on March
20, 2015. We deny Whitaker’s request for a certificate of appealability alleging
ineffective assistance of counsel because he fails to show the district court’s
resolution of that claim against him is debatable among reasoned jurists. 28
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U.S.C. § 2253(c).    And we write separately to elaborate analysis of the
prosecutorial misconduct issue for which the district court granted Whitaker a
certificate of appealability (“COA”).
      As the district court noted, there is no dispute about the facts of
Whitaker’s crime, which the Texas Court of Criminal Appeals (“TCCA”)
summarized as follows:
             The evidence shows that [Mr. Whitaker] led his family to
      believe that he was enrolled in college and was about to graduate.
      None of this was true. On December 10, 2003, [Mr. Whitaker] and
      his father, mother and younger brother went out to dinner to
      celebrate [Mr.Whitaker]’s “graduation.” When they arrived home,
      [Mr. Whitaker]’s roommate ([Christopher] Brashear) was inside,
      and he shot and killed [Mr. Whitaker]’s mother and brother and
      wounded [Mr. Whitaker]’s father as they entered the home. [Mr.
      Whitaker] knew that Brashear was waiting inside the home
      intending to murder [Mr. Whitaker]’s entire family. He knew that
      another individual ([Steven] Champagne) was waiting outside in a
      getaway car. Since at least 2000, [Mr. Whitaker] had planned with
      several other individuals, at different times, to murder his family.
      He made at least one unsuccessful attempt to murder his family
      prior to December 10, 2003. His motive was money.
             In June 2004, as the police investigation focused on [Mr.
      Whitaker], [Mr. Whitaker] stole $10,000 from his father and fled
      to Mexico where he was apprehended about 15 months later.
      …
             At the punishment phase, [Mr. Whitaker]’s mitigation case
      was, among other things, that [Mr. Whitaker] was sorry and that
      neither his father nor members of his mother’s side of the family
      wanted him to be sentenced to death and that these family
      members had to bear the ordeal of a trial because the State would
      not accept [Mr. Whitaker]’s offer to plead guilty in exchange for ...
      two consecutive life sentences. Emphasizing that the State did not
      seek the death penalty against the shooter (Brashear), the defense
      also seemed to suggest that the prosecution unfairly sought the
      death penalty against [Mr. Whitaker] over issues related to [a]
      proffer [of guilt made during plea negotiations].



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Whitaker v. Stephens, 2015 WL 1282182, *1 (quoting Whitaker v. State, 286
S.W.3d 355, 357-58 (Tex. Crim. App. 2009) (footnotes omitted)).
      A Texas jury convicted Whitaker of capital murder on March 5, 2007,
and he was sentenced to death. The TCCA affirmed on direct appeal. Whitaker
v. State, 286 S.W.3d 355. Subsequently, the state trial court and the TCCA
denied state habeas claims. See Ex parte Whitaker, No. WR-73421-01, 2010
WL 2617806 (Tex Crim. App. June 30, 2010). Whitaker then filed his original
federal habeas petition, which he amended once, on October 14, 2011. As
noted, the district court granted summary judgment in favor of Respondent-
Appellee Lorie Davis, denying Whitaker a COA on all claims except for his
claim of prosecutorial misconduct.
      Whitaker’s assertion of prosecutorial misconduct relates to references at
trial and during Whitaker’s penalty phase to a plea discussion proffer. The
question is whether the TCCA decision denying relief on this ground was
contrary to, or an unreasonable application of, clearly established federal law
under 28 U.S.C. § 2254(d)(1).
I.    Relevant Background
A.    The Plea Discussion Proffer
      Taking the facts as asserted by Whitaker in his federal habeas filing, the
district court summarized the background and trial use of the plea discussion
proffer as follows:
            According to Mr. Whitaker, plea negotiations began when
      Mr. Whitaker's original trial attorneys, Dan Cogdell and James
      Ardoin, ran into Mr. Felcman at a local store. According to Mr.
      Cogdell and Mr. Ardoin, Mr. Felcman stated that he would
      consider not seeking the death penalty if Mr. Whitaker gave a
      written statement limited to the facts of the case, with no
      expressions of remorse or contrition. See Cogdell Affidavit,
      Amended Petition (“Am.Pet.”), Exh. A at 2; Ardoin Affidavit, Am.
      Pet., Exh. B at 2. Mr. Ardoin drafted a proffer and presented it to
      Mr. Felcman. According to Mr. Ardoin, Mr. Felcman then rejected
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 the proffer because it did not contain any expressions of remorse.
 Ardoin Affidavit, Am. Pet., Exh. B at 2.
 …
        The proffer was discussed in front of the jury at least three
 times during the course of Mr. Whitaker's trial. First, Mr.
 Whitaker contends that Mr. Felcman baited his father, Kent
 Whitaker (“K.Whitaker”), into mentioning the proffer during the
 guilt-innocence phase by asking him to confirm that Mr. Whitaker
 never confessed to the murders. 25 Tr. at 104–05. When Mr. K.
 Whitaker brought up the proffer in his answer, Mr. Felcman
 proceeded to characterize the proffer as “legal maneuvering on
 your son's part” that did not express “repentance.” Id. at 104–06.
        Second, Mr. Felcman used the proffer to cross-examine Mr.
 Whitaker during the penalty phase. After Mr. Felcman handed the
 proffer to Mr. Whitaker and asked him if it was true, the following
 exchange took place:
        A. I did not write that.
        Q: You didn't write it?
        A. No. I—I wanted to write the proffer. That was some
 confusion between me and Mr. Cogdell at the time when initially—
 I guess it was your office that suggested that if we wrote the
 proffer, we could all end this. It was my impression that I would
 write this admission of guilt.
        Q. It wasn't my suggestion.
        A. I'm sorry.
        Q. Your father poured his heart out to me, and I saw no
 remorse on your part.
        A. I didn't actually write that. The one that I wrote was in
 my cell, and it did have remorse. It was really how I felt at the
 time, and I didn't—I was under the impression that I was going to
 be giving that copy to Mr. Cogdell, and then I find out—I guess I
 didn't see him for a few weeks. I found out the next time that I
 talked to him that a proffer had been rejected. I was very confused,
 because it was my understanding that I would be writing it myself.
        Q. The proffer that presented—that you didn't even have
 anything to do with. You understand how insulting that is to
 somebody that has to listen to the father plea, and I see no remorse
 on the Defendant?
        A. Yes, extremely insulting. I knew it would be, if it had been
 done that way. I wouldn't have agreed to that at all. I was very
 upset about that. 31 T.R. at 257–58.

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             Third, Mr. Felcman's second chair, Mr. Strange, invoked the
       proffer during the State's closing in the penalty phase. Mr. Strange
       argued to the jury that Mr. Whitaker's actions throughout the case
       and trial—including the proffer—were “manipulation” and
       “gamemanship.” 32 T.R. at 31–32.

Whitaker v. Stephens, 2015 WL 1282182, *3-6.
B.     District Court Assessment of the Proffer
       The district court correctly set forth disputed issues of fact relating to
the plea discussion process and then confirmed it would consider Whitaker’s
federal habeas argument “in light of the facts alleged in [Whitaker’s pretrial
defense counsel] Mr. Cogdell’s and Mr. Ardoin’s affidavits.” Id. *5. The district
court understood Whitaker’s argument that the TCCA’s denial of habeas relief
violated federal law as determined by Supreme Court law to include Santobello
v. New York, 404 U.S. 257 (1971), Town of Newton v. Rumery, 480 U.S. 386
(1987), and United States v. Mezzanatto, 513 U.S. 196 (1995). The district court
noted “critical distinctions” with Santobello, notably that “[b]ecause Mr.
Felcman’s offer did not induce Mr. Whitaker to plead guilty, Santobello
provides no basis for habeas relief.” Id. at *6-7. The district court continued
its analysis by observing that
       Town of Newton v. Rumery concerns the propriety of prosecutor-
       instigated ‘release-dismissal agreements’—an issue not present in
       or invoked by Mr. Whitaker's case. See 480 U.S. 386 (1987).
       [Finally,] United States v. Mezzanatto resolves that the protections
       of Federal Rule of Evidence 410 are waivable, see 513 U.S. 196
       (1995), but sheds no light on the constitutional implications of
       prosecutorial use of evidence covered by the rule in the absence of
       waiver.

Id. at 7 (footnote omitted).

II.    AEDPA, Standard of Review, and Procedural Default
       Under the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”),
federal habeas relief based upon claims that were adjudicated on the merits by
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                                  No. 16-70013
the state courts, as here, cannot be granted unless the state court's decision (1)
“was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United
States” or (2) “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
        We review de novo a district court’s ruling granting summary judgment
denying a state petitioner’s request for habeas relief.         See Goodrum v.
Quarterman, 547 F.3d 249, 255 (5th Cir. 2008).
        Texas makes the threshold argument that because the TCCA on direct
appeal held that Whitaker had procedurally defaulted his prosecutorial
misconduct claim by failing to object when the proffer came up, federal habeas
review is barred altogether.     Procedural default, however, is inapplicable
because Texas did not argue in the district court that Whitaker’s due process
claim was defaulted. See United States v. Drobny, 955 F.2d 990, 995 (5th Cir.
1992) (“To invoke the procedural bar…the government must raise it in the
district court.”); Randall v. Collins, 5 F.3d 1494, *1 n.1 (5th Cir. 1993).
III.    Analysis
        We affirm the district court’s analysis and holding, summarized above,
that the TCCA’s resolution of Whitaker’s allegation of prosecutorial
misconduct was not contrary to, or an unreasonable application of, clearly
established federal law.
        At trial, the plea discussion proffer came up once briefly during
Whitaker’s father’s testimony. No objection was made. The proffer was not
read to the jury nor introduced into evidence, and the government drew no
attention to it in closing or rebuttal closing arguments.        Defense counsel
highlighted that Whitaker did not forcefully contest guilt at trial, stating to
the jury in closing: “No one, no one has come in here and told you Bart
Whitaker is not guilty. We didn’t even plead not guilty…. You listened to all
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                                 No. 16-70013
those facts last week.    I listened to all those facts last week.     Factually,
factually, he’s guilty.” Indeed, the district court confirmed the “overwhelming”
proof of guilt. Whitaker v. Stephens, 2015 WL 1282182, *8 n.8. We hold that
any improper passing reference at trial to the proffer (or omissions in it) was
harmless. No clearly established federal law suggests otherwise.
      By contrast, Whitaker’s guilty plea overtures featured prominently
during the penalty phase.       Defense counsel highlighted that Whitaker
repeatedly had tried to communicate his desire to plead guilty even to multiple
life sentences. Neither government witness testified about the pretrial proffer.
Consistent with Whitaker’s mitigation opening, however, each of the three
defense witnesses―the defendant’s uncle, the defendant’s father, and then the
defendant himself―testified forcefully that pretrial guilty plea overtures and
offers were made to the prosecution.       Whitaker himself began his direct
testimony by stating to the jury he was unsurprised to have been “convicted of
capital murder” because he had instructed defense counsel throughout to
confer with the prosecution to plead guilty to “[a]s many life sentences as they
wanted.” His counsel then finished direct examination with two admonitions
to Whitaker, anticipating cross-examination: “Q. You know [the prosecutor] is
going to come up here and talk about all the ways that you’ve manipulated
people or told lies and all that stuff. You’ve admitted that?” “A. Yes sir.”
      Texas then did seek to elicit that Whitaker’s guilty plea overtures were
insincere and that his motivation was never remorse, with one example being
the pretrial proffer. Whitaker rejected the negative characterization of him as
remorseless, both in his direct examination, and in answer to cross-
examination, but, nonetheless, drawing inference from the entirety of
Whitaker’s familicide, and subsequent actions, including his Christmas card
to the prosecutor, Texas urged in closing argument that the jury perceive
“manipulation” and “gamesmanship.”
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      Preliminarily, we agree with the district court that the competing
inferences drawn at the punishment phase from Whitaker’s pretrial guilty plea
overtures, including the defense proffer―Whitaker suggesting favorably that
he sought to acknowledge guilt; Texas, perceiving instead manipulation—are
not inconsistent with Texas Rule of Evidence 401, which, like its federal
counterpart, contemplates admission of plea bargaining statements when, in
fairness, other statements made during the same discussions are admitted.
After the defense opening emphasized that Whitaker repeatedly had sought to
plead guilty, the jury then heard corroborating testimony of the victim father,
the uncle, and then Whitaker himself, all concertedly insisting that Whitaker
had made guilty plea overtures to the prosecution from the start. Cf. Whitaker
v. State, 286 S.W.3d 355, 362 (“Appellant's complaint about the testimony
referring to the proffer and to the plea negotiations is difficult to understand
since it appears that this information formed a significant part of his
mitigation case.”).
      Nevertheless, Whitaker contends that impeachment of him using the
proffer was misconduct and contrary to “principles” from Santobello and
equivalent to an involuntary confession because the prosecutor’s direction to
leave out remorse came with the implied promise not then to use lack of
remorse against him. On appeal, Whitaker continues to argue that Santobello
applies, especially as cited in United States v. Ross, 493 F.2d 771, 775 (5th Cir.
1974). He also now relies on the due process line of authority announced in
Giglio v. United States, 405 U.S. 170 (1972), and Napue v. Illinois, 360 U.S.
264 (1959). And third, he cites New Jersey v. Portash, 440 U.S. 450 (1979), and
Mincey v. Arizona, 437 U.S. 385 (1978), for the proposition that references to
the proffer equated to use of an involuntary confession.              Whitaker’s
overarching due process argument is less that impeachment occurred of his
guilty plea overtures, and more that impeachment using the proffer was
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                                 No. 16-70013
improper because it was premised on sentiment he contends his attorneys were
told to remove.
      Santobello’s due process rule that a guilty plea requires fulfillment of
terms agreed to by the government is inapposite because Whitaker did not
plead guilty. Notably, also, our reference to Santobello in Ross was simply to
the important observation that “plea bargaining is an essential component of
justice and, properly administered, it is to be encouraged….” Ross, 493 F.2d at
775. Regardless, even if our decisions could be the source of clearly established
federal law for AEDPA purposes, contra Renico v. Lett, 559 U.S. 766, 778-779
(2010), Ross was a straightforward prohibition against the direct introduction
of plea bargaining discussions, and did not address the situation here involving
the prosecution’s use of such discussions after the defense presented them.
      The Supreme Court due process decision in Giglio―or as further
condemned in Napue, when withheld evidence is compounded by trial proof
elicited that would be contradicted by that evidence―also is distinguishable
because no evidence was kept from Whitaker. Defense counsel engaged in plea
discussions, sending the proffer in question to the prosecution with the scope
delimitation they allege they were given, i.e. crime facts only, no sentiment
about remorse. The suppression or withholding of evidence determinative for
Giglio and Napue claims did not occur, therefore.
      Finally, Whitaker contends that denial of habeas relief is inconsistent
with the Supreme Court’s due process prohibition against use of a defendant’s
involuntary confession, as stated in New Jersey v. Portash, supra, and Mincey
v. Arizona, supra. Whitaker’s proffer is distinct from these cases, however,
because his attorneys initiated the plea discussion and gave the proffer to the
prosecution voluntarily, hoping to have life imprisonment considered instead
of the death penalty.    There is no suggestion the proffer was submitted
involuntarily, by government threat or coercion. In fact, the district court
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                                  No. 16-70013
noted the record consistency, including the defense counsel affidavits, that
Whitaker “made a proffer of evidence in exchange for the prosecutor’s promise
to consider not seeking the death penalty,” and that finding is not clearly
erroneous. Whitaker offers no caselaw that extends New Jersey v. Portash and
Mincey v. Arizona involuntary confession caselaw to apply to his allegation
here, where a defendant initiates a plea overture, then defense counsel submit
a proffer conforming to a scope delimitation, and upon cross-examination about
omitted remorse, the defendant has full “opportunity to testify on his own
behalf and explain that he did not personally write or approve the proffer, and
to express his own feelings about his crime.” Whitaker v. Stephens, 2015 WL
1282182, *8 n.8.    Any misleading impression intimated by Texas’s cross-
examination taking the proffer out of the context of its alleged terms did not
circumscribe Whitaker’s right to answer as he did, with supporting testimony
from his father and uncle, to develop the mitigation argument that he
repeatedly made overtures acknowledging his guilt.
                                  Conclusion
      Because Whitaker identifies no pertinent authority showing the TCCA’s
resolution of his allegation of misconduct was contrary to, or an unreasonable
application of, clearly established federal law, and for the reasons stated by the
district court, we AFFIRM the judgment of the district court denying relief on
his due process claim. We also deny Whitaker’s request for a certificate of
appealability as to his allegation of ineffective assistance of counsel for the
reasons stated by the district court, which Whitaker fails to show are debatable
among reasoned jurists.




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