     Case: 14-70023      Document: 00512973544         Page: 1    Date Filed: 03/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-70023
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
PAUL DAVID STOREY,                                                        March 18, 2015
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

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. 4:11-CV-00433


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Paul Storey was convicted of capital murder and sentenced to death. He
seeks a certificate of appealability (COA) from the district court’s denial of his
petition for writ of habeas corpus. Because reasonable jurists would not find
the district court’s assessment of the constitutional claims debatable or wrong,
we deny the application.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                               BACKGROUND
      Storey and a co-defendant were charged with intentionally causing the
shooting death of Jonas Cherry while committing or attempting to commit a
robbery on October 16, 2006, at Putt-Putt Golf and Games in Hurst, Texas.
Storey, who was 22 years old at the time of the murder, had previously worked
at the business. A Tarrant County jury found Storey guilty of capital murder
and he was sentenced to death.       Storey’s conviction and sentenced were
affirmed on appeal. Storey v. State, No. AP-76018, 2010 WL 3901416 (Tex.
Crim. App. Oct. 6, 2010).
      The Texas Court of Criminal Appeals denied Storey’s state application
for writ of habeas corpus. Ex parte Storey, No. WR-75828-01, 2011 WL 2420707
(Tex. Crim. App. June 15, 2011). He then filed a petition for writ of habeas
corpus under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254, in federal district court. The district court denied
the petition and his request for a COA by Memorandum Opinion and Order on
June 9, 2014. Storey v. Stephens, No. 4:11-CV-433-O, (N.D. Tex. June 9, 2014).
Subsequently, Storey filed this appeal and asks this court to grant a COA.
                            STANDARD OF REVIEW
      Under AEDPA, a petitioner must obtain a COA as a jurisdictional
prerequisite to appeal the denial of habeas relief. 28 U.S.C. § 2253(c)(1);
Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S.Ct. 1029, 154 L.Ed.3d 931
(2003). A COA will be granted only “if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
court conducts a threshold inquiry and issues a COA if “reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” Miller-El, 537 U.S. at 336, 338. This threshold inquiry
does not require full consideration of the factual or legal bases supporting the
claims. Id. at 336. In death penalty cases, any doubt about whether a COA
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                                No. 14-70023
should issue is resolved in the petitioner’s favor. Pippin v. Dretke, 434 F.3d
782, 787 (5th Cir. 2005).
      A federal court shall not grant a writ of habeas corpus as to any claim
that was adjudicated on the merits in state court “unless the adjudication of
the claim resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law” or “resulted in a
decision that 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)(1), (2). “A state court’s decision is an unreasonable application of
clearly established federal law whenever the state court identifies the correct
governing legal principle from the Supreme Court’s decisions but applies that
principle to the facts of the prisoner's case in an objectively unreasonable
manner.” Young v. Dretke, 356 F.3d 616, 623 (5th Cir. 2004) (internal marks
omitted). “An unreasonable application may also occur if the state court either
unreasonably extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Id. (internal marks omitted)
(alteration in original). The state court’s determination of factual issues is
presumed correct unless the petitioner rebuts the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
                               DISCUSSION
I. Whether petitioner’s death sentence violates the Sixth Amendment
guarantee of effective assistance of counsel because his trial counsel
failed to adequately investigate and, therefore, failed to discover
important mitigating evidence relevant to the penalty phase of trial.

      Storey asserts that trial counsel failed to investigate significant
mitigating factors including petitioner’s “extremely low level of intellectual
functioning, the scientific data and research supporting his lack of future

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                                       No. 14-70023
dangerousness, his negative diagnosis for anti-social personality disorder, his
severe clinical depression, and his tendency to follow rather than lead, as
revealed in standardized personality testing.”
       Storey takes issue with counsel’s use of Dr. J. Randall Price, a forensic
neuropsychologist, as a defense expert and offers as support the reports of
clinical psychologist Dr. Emily Fallis, who interviewed Storey in 2010 for the
state habeas proceeding and in 2012 for the federal proceeding. 1 Specifically,
Storey points to: Price’s characterization of his overall IQ of 81 as “low average”
rather than “borderline intellectual functioning” 2; Fallis’ diagnosis of “possible”
Major Depressive Disorder; Fallis’ determination that Storey does not have a
diagnosis of Antisocial Personality Disorder; Fallis’ evaluation that Storey was
a low risk of future danger; and Fallis’ determination that Storey had a
“significantly greater than average ‘suggestibility’ and is a follower and not a
leader” – thus bearing on the fact that the crime was committed with a co-
defendant. Storey also offers an affidavit from a juror indicating that, based
upon Fallis’ report, he would not have voted that Storey was a future danger. 3
       Storey raised this issue in his state petition for writ of habeas corpus. In
responding to Storey’s petition, the State included affidavits from trial counsel
and Price’s interview notes, test results, and letter reports. Trial counsel
acknowledged various mitigating factors, including Storey’s depression,


       1  Fallis’ 2012 report was not first presented to the state court.
       2  Testing by Fallis resulted in the overall IQ score of 83 in 2012.
        3 This affidavit was stricken by the state court pursuant to Texas Rules of Evidence

606(b) and 402. Rule 606 states that upon inquiry into the validity of a verdict, “a juror may
not testify as to any matter or statement occurring during the jury’s deliberations, or to the
effect of anything on any juror’s mind or emotions or mental processes, as influencing any
juror’s assent to or dissent from the verdict or indictment.” Tex. R. Evid. 606(b). Further, a
juror’s affidavit or statement about any matter the juror would be precluded from testifying
to may not be admitted into evidence for any of these purposes. Id.
        Rule 402 states: “All relevant evidence is admissible, except as otherwise provided by
Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory
authority. Evidence which is not relevant is inadmissible.” Tex. R. Evid. 402.
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                                       No. 14-70023
obesity, domestic life, and lack of a father figure. Counsel believed, however,
that these facts could not be presented to the jury in the best light without an
admission of guilt from Storey, which never came. Regardless, these factors
and others were introduced through the testimony of the twelve defense
witnesses presented during the punishment phase. Counsel also indicated
that they decided against further personality testing and testing regarding
future dangerousness because Price believed Storey would score fairly high on
future dangerousness and likely meet the criteria for Antisocial Personality
Disorder. Counsel determined that Price could not provide helpful testimony
on punishment because of the possible harm on cross-examination or through
the evaluation and testimony of an expert for the State. Counsel indicated that
these decisions were made as a matter of trial strategy.
      The state habeas court denied relief on this issue. Storey asserts that,
in doing so, the state habeas court improperly considered the affidavits of his
trial counsel, responding to his state petition and Fallis’ report, without
providing Storey with prior notice or an opportunity to respond. Storey asserts
that there were “controverted, previously unresolved factual issues material”
in violation of section 9(a) of article 11.071 of the Texas Code of Criminal
Procedure. 4




      4   Section 9(a) states:

                 If the convicting court determines that controverted, previously
             unresolved factual issues material to the legality of the applicant's
             confinement exist, the court shall enter an order, not later than the
             20th day after the last date the state answers the application,
             designating the issues of fact to be resolved and the manner in which
             the issues shall be resolved. To resolve the issues, the court may
             require affidavits, depositions, interrogatories, and evidentiary
             hearings and may use personal recollection.

      Tex. Code. Crim. P. art 11.071, § 9(a).
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                                 No. 14-70023
      Ineffective assistance of counsel claims are examined under the clearly
established test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).       Under this test, Storey must show (1) “counsel’s
representation fell below an objective standard of reasonableness” and (2)
prejudice, i.e., a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 688, 694.
      Further, “counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690. “In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Id. at 691.
      Storey must demonstrate that it was necessarily unreasonable for the
state court to conclude that he did not overcome the strong presumption of
counsel’s competence and that he failed to undermine confidence in the jury’s
sentence of death. See Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011). Storey
also must demonstrate that the state court’s decision was contrary to or
involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d).
      The district court thoroughly analyzed Storey’s various arguments and
found the following main points: Storey provided no authority for his
contention that the state court could not consider counsel’s affidavits attached
to the State’s answer; Storey’s arguments based on Fallis’ 2012 affidavit
contravene Pinholster as the section 2254 review is limited to the record before
the state court that adjudicated the issue on the merits, see Pinholster, 131
S.Ct. at 1398; Storey’s claims regarding individual factual findings and
conclusions are subsumed by the substantive ineffective assistance of counsel
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                                 No. 14-70023
claim and did not result in an unreasonable state court decision; and because
the record supports the conclusion that counsel relied upon a qualified mental
health expert and conducted a reasonable investigation into Storey’s
background, the state court could reasonably determine that counsel had an
adequate basis to conclude that additional mental-health testing was not the
best strategy. Thus, the district court found that Storey had failed to show
both that the state habeas court unreasonably concluded that counsel was not
deficient and, assuming counsel had been ineffective, that the state court’s
conclusion as to the lack of prejudice was unreasonable.
      The record indicates that trial counsel made the decisions on the
selection of the expert witness and further testing after a thorough
investigation of the relevant law and facts.      These strategic choices are
“virtually unchallengeable.” Strickland, 466 U.S. 690. Further, as the district
court correctly found, “trial counsel was not deficient by not canvassing the
field to find a more favorable defense expert.” Dowthitt v. Johnson, 230 F.3d
733, 748 (5th Cir. 2000). The record also indicates that relevant evidence
regarding the mitigating factors on which Storey relies was admitted during
the testimony of other witnesses.
      After conducting a threshold inquiry, we conclude that reasonable jurists
would not find the district court’s assessment of the ineffective assistance of
counsel claim debatable or wrong.
II. Whether petitioner’s Fourteenth Amendment rights to equal
protection and due process were violated when the State was allowed
to use a pretextual peremptory strike on an African American juror
that petitioner argues was based on race.

      Storey asserts the State struck an African American venireman on the
basis of race in violation of Batson v. Kentucky, 476 U.S. 79 (1986).



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                                 No. 14-70023
      Under Batson, a defendant must establish a prima facie case of
purposeful discrimination as follows:
             To establish such a case, the defendant first must show that
      he is a member of a cognizable racial group, and that the
      prosecutor has exercised peremptory challenges to remove from
      the venire members of the defendant’s race. Second, the defendant
      is entitled to rely on the fact, as to which there can be no dispute,
      that peremptory challenges constitute a jury selection practice
      that permits “those to discriminate who are of a mind to
      discriminate.” Finally, the defendant must show that these facts
      and any other relevant circumstances raise an inference that the
      prosecutor used that practice to exclude the veniremen from the
      petit jury on account of their race.

Batson, 476 U.S. at 96 (citations omitted). Once the defendant has established
a prima facie case of discrimination, the burden shifts to the State to provide
a race-neutral reason for each strike. Id. at 97. The trial court then makes a
determination of whether the defendant has established purposeful
discrimination. Id. at 98.
      During voir dire, the State challenged venireman number 50 for cause
under two special issues. Specifically, the State said:
            Special issue number one, that the juror would always
      require – would increase our burden of proof and require that we
      prove that the person would murder again before we could impose
      the death penalty.
            We’d also move that he’s challengeable for cause because he
      would impose a burden of proof on the State in special issue
      number three to show that the person would again kill before he
      could impose – answer that question no.


      The court denied the motion for cause and the State used a peremptory
strike to remove the prospective juror. Defense counsel then asked the court
to inquire as to whether the State had race-neutral reasons for the striking the
prospective juror, who is African-American like Storey.

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                                  No. 14-70023
      After recounting that number 50 was the third African-American
member of the venire who had come before the court in voir dire, with one being
seated on the jury and another being disqualified based on her views of the
death penalty, the State offered its reasons for the strike. Those reasons
included the belief that the venireman would increase the State’s burden of
proof with regard to special issues numbers one and three by looking for
evidence of “the probability that the Defendant would commit a future
homicide against an employee of the prison system or someone else at the
prison system.” The State further offered that “given the case that we have
and this venireman’s answers, we don’t think that we could ever prove to his
satisfaction that the answer should result in the death penalty.”
      The venireman made several statements during voir dire in response to
questions regarding the imposition of a sentence of death and future
dangerousness. Some of the statements included the following:
      •     It has a lot to do with – if the person, to me, is going to go out
        and do all this over again, if – it has a lot to do with, you know,
        just like I say, his background, everything. Because this all has
        to play in there whether he’s going to continue to do this.
      •     Well, I can – you know, I can see a life sentence for all that’s
        been done, but as far as if you give him the death penalty, that’s
        – you going to have to – you know, to me, I have to see in my
        mind that he’s going to be worse in the – in the prison system
        and go out there and hurt the population in the prison system
        to even go death penalty.
      •     You – but as far as I’m concerned, I mean, there’s a
        population inside prison, there’s a population outside of prison.
        And the person shows repentance as he’s going to prison and I
        know he’s not going to hurt anybody else, well, then, you know,
        life sentence seems reasonable.
      •     Now, if he’s a real bad character to the point where he’s rabid
        and he’s going to hurt even the prison population, you know,
        there’s no point – you already convicted him. All you can do is
        give him life, okay, sentence.


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                                   No. 14-70023
            He gets in there, he decides, I’m already here, might as well
        kill a few people while I’m here, hey, just go ahead and give him
        the death penalty and be done with it.
      •     Okay. If – if there’s a reasonable doubt that he’s not likely
        to commit any criminal acts, I – I don’t see it.
            But if he’s – his behavior is so bad that if he’s in the penal
        system that he’s likely to hurt someone else, you know, why are
        you going to put him in a situation where he’s going to go and
        hurt someone [later clarified as “taking a life”] else in the penal
        system? You know what I mean?

      The State also took issue with specific answers on the venireman’s
questionnaire, including: his response that “mass murderers” were his best
argument in favor of the death penalty; indications of a general mistrust of the
system by answers that a “good lawyer” or “enough money” were determinative
of outcomes; and that punishment should be the last of the four goals of the
criminal justice system.    The State also raised a concern that there was
evidence the venireman had previously served on a jury in a felony case where
the defendant was found not guilty but that he had not disclosed or recalled
this information during voir dire. In summary, the State argued that the
cumulative effect of all of the answers, rather than a single answer or response,
formed the basis for the strike.
      The trial court then found that the State had offered race-neutral
reasons for the strike and denied the Batson motion. The court said that it
“didn’t think he disqualified himself, but he – he obviously said some things
that the State would be very concerned with.”
      Storey raised this issue on direct appeal and the Court of Criminal
Appeals of Texas (CCA) found that the State did not violate Batson in
exercising the peremptory strike, saying “[t]aking into consideration all
relevant circumstances, we find that the trial court’s determination that



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                                  No. 14-70023
appellant failed to prove discrimination is supported by the record and is not
clearly erroneous.” Storey, 2010 WL 3901416 at *24.
      On federal habeas, the district court also analyzed this claim under the
AEDPA deferential standard because it had been adjudicated on the merits in
state court. 28 U.S.C. § 2254(d)(1), (2). The district court took issue with
Storey’s unsupported implication that a trial court could never reject a State’s
argument for cause and then accept that same argument to justify a
peremptory strike, as a strike may be made without assigned reason and it is
reasonable to conclude that the State was merely trying to avoid using one of
its limited strikes if the juror was subject to challenge for cause.        After
analyzing the facts of the case, the applicable law, and the CCA opinion, the
district court concluded that Storey had “not shown that the state court was
unreasonable for crediting the prosecutor’s race-neutral explanations under
Batson” and that it could not grant relief under Section 2254(d).
      For the same reasons the district court articulated in its thorough and
well-reasoned opinion, we believe the statements made by the venireman
during voir dire and in his questionnaire establish a reasonable basis for the
State’s use of the peremptory strike. Thus, the district court’s conclusion is not
debatable among jurists of reason.
      Accordingly, we decline to issue a COA on either Storey’s ineffective
assistance of counsel or his Batson claims.




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