     Case: 18-70012      Document: 00515001552         Page: 1    Date Filed: 06/19/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                     United States Court of Appeals

                                      No. 18-70012
                                                                              Fifth Circuit

                                                                            FILED
                                                                        June 19, 2019

JOHN STEVEN GARDNER,                                                   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 Eastern District of Texas
                             USDC No. 1:10-CV-610


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       John Steven Gardner seeks a certificate of appealability (COA) to
challenge the denial of his petition for habeas corpus under 28 U.S.C. § 2254
alleging that his trial counsel were ineffective. Because reasonable jurists
would not debate the district court’s resolution of Gardner’s ineffective
assistance of trial counsel (IATC) claims, we DENY his application for a COA.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-70012
                                        I.
      A Texas jury convicted Gardner of the capital murder of his wife, Tammy
Gardner, in the course of committing or attempting to commit burglary or in
retaliation for her service or status as a prospective witness in their divorce
proceeding.   The jury sentenced Gardner to death.          The Texas Court of
Criminal Appeals affirmed Gardner’s conviction and death sentence.            See
Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009). The Supreme Court
denied Gardner’s petition for certiorari. See Gardner v. Texas, 562 U.S. 850
(2010). Gardner then filed a state petition for a writ of habeas corpus, which
was denied. See Ex parte Gardner, No. WR-74030-01, 2010 WL 3583072, at *1
(Tex. Crim. App. Sept. 15, 2010). He next filed the instant federal habeas
petition, which the district court denied and denied a COA. See Gardner v.
Director, TDCJ-CID, No. 1:10-CV-610 (E.D. Tex. Mar. 1, 2018). Gardner now
seeks a COA from this court.
      “A state prisoner whose petition for a writ of habeas corpus is denied by
a federal district court does not enjoy an absolute right to appeal. Federal law
requires that he first obtain a COA from a circuit justice or judge.” Buck v.
Davis, 137 S. Ct. 759, 773 (2017) (citing 28 U.S.C. § 2253(c)(1)). “A COA may
issue ‘only if the applicant has made a substantial showing of the denial of a
constitutional right.’” Id. (quoting 28 U.S.C. § 2253(c)(2)).
      “At the COA stage, the only question is whether the applicant has shown
that ‘jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.’” Id. (quoting Miller-
El v. Cockrell, 537 U.S. 322, 327 (2003)). Federal courts cannot grant habeas
relief if a claim was adjudicated on the merits in state court unless the state-
court decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
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                                  No. 18-70012
United States” or “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). When, as here, “the last state court to decide a prisoner’s federal
claim explains its decision on the merits in a reasoned opinion . . . a federal
habeas court simply reviews the specific reasons given by the state court and
defers to those reasons if they are reasonable.” Wilson v. Sellers, 138 S. Ct.
1188, 1192 (2018).
      Gardner claims that reasonable jurists would debate whether his trial
counsel was ineffective in (1) failing to present the theory of abandonment rage
as a defense during the guilt phase of his trial; (2) failing to develop and present
abandonment rage as a consistent theory of the case in both guilt and
punishment phases; (3) failing to investigate and develop mitigating evidence
for the punishment phase of trial; and (4) failing to get the work product of
their mitigation specialist. The state habeas court and the federal district
court rejected these claims.
                                        II.
      To succeed on his ineffective assistance of trial counsel (IATC) claims,
Gardner must establish that his counsel’s performance (1) was deficient, and
(2) resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Strickland’s first prong sets a high bar.” Buck, 137 S. Ct. at 775. Trial counsel
is “strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citation and internal quotation
marks omitted). Failure to establish either deficient performance or prejudice
defeats a petitioner’s claim. Strickland, 466 U.S. at 697. In federal habeas
proceedings, a petitioner must also show that “the state court’s application of
the Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S.
86, 101 (2011); see also 28 U.S.C. § 2254(d)(1).
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                                   No. 18-70012
                                           A.
      The bulk of Gardner’s argument turns on the theory of abandonment
rage, a condition that Gardner claims causes men to kill their female
companions with excessive force when faced with recent or imminent
abandonment. First, Gardner argues that his counsel performed deficiently in
failing to present the theory of abandonment rage at the guilt phase of his trial
because he claims that the theory “would have allowed [him] to negate the
mens rea element of capital murder” and negate the enhancement elements of
burglary and retaliation.
      Trial counsel’s strategy during the guilt phase was to challenge the
aggravating elements of capital murder—that the murder was committed in
the course of either a burglary or retaliation. In preparing for trial, counsel
employed a fact investigator, a mitigation specialist, a consulting mental
health expert, a testifying mental health expert, and a risk assessment expert.
No investigator or expert raised abandonment rage “as an issue or potential
trial strategy.” Additionally, trial counsel attested in affidavits prepared for
the habeas proceedings that even if the experts had raised the theory, counsel
would not have relied on the theory at trial because it would have opened the
door to evidence of Gardner’s prior history of violence, including the murder of
his second wife Rhoda and his abuse of his wives Margaret and Sandra.
      The state habeas court found that trial counsel were not deficient in
failing to argue abandonment rage at trial for several reasons, including that
the experts employed by counsel never raised the theory and “counsel’s
decision   to   pursue    a   fact-based    rather   than      psychological   defense
. . . was a reasoned, strategic choice” based on counsel’s experience and
knowledge of jurors in Collin County. The court also explained that the theory
was not supported by the evidence and noted several pieces of evidence that
were not consistent with abandonment rage, as Gardner has a history of
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                                  No. 18-70012
violence unconnected to any abandonment. Further, the court concluded that
abandonment rage supplied only psychological context, not legal justification,
for Tammy’s murder and “did not address the independent aggravating
element of murder committed in the course of a burglary, which was sufficient
to support the jury’s verdict.” The district court found that the state habeas
court’s findings on this claim were not unreasonable. We agree.
      “Counsel should be permitted to rely upon the objectively reasonable
evaluations and opinions of expert witnesses without worrying that a
reviewing court will substitute its own judgment, with the inevitable hindsight
that a bad outcome creates, and rule that his performance was substandard for
doing so.” Smith v. Cockrell, 311 F.3d 661, 676-77 (5th Cir. 2002), abrogated
on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).              We have
previously found on habeas review that counsel was not deficient in failing to
argue that abandonment rage was a mitigating factor because “a tactical
decision not to pursue and present potential mitigating evidence on the
grounds that it is double-edged in nature is objectively reasonable, and
therefore does not amount to deficient performance.” Rayford v. Stephens, 622
F. App’x 315, 337 (5th Cir. 2015) (quoting Lamb v. Johnson, 179 F.3d 352, 358
(5th Cir. 1999)).
      Given trial counsel’s investigation and reliance on reasonable expert
evaluations, Gardner cannot overcome the strong presumption that counsel’s
representation fell within the wide range of reasonable professional assistance,
and counsel’s performance was therefore not deficient. Strickland, 466 U.S. at
689; Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000) (holding counsel is
entitled to rely on the opinions of their experts and is not required to “canvass[]
the field to find a more favorable defense expert”). Reasonable jurists would
not debate the propriety of granting a COA on this issue.


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                                 No. 18-70012
                                      B.
      Second, Gardner argues that his trial counsel were ineffective in failing
to develop and present abandonment rage as a consistent theory of the case in
both guilt and punishment phases. Counsel pursued separate strategies at the
guilt and punishment phases—during the guilt phase, counsel’s strategy was
to challenge the aggravating elements that elevated the crime to capital
murder, namely whether the murder was committed in the course of a burglary
or retaliation, while at the punishment phase, counsel challenged the State’s
claim of future dangerousness and humanized Gardner to the jury. The state
habeas court found that counsel’s choice of strategies during punishment was
a reasoned decision based on the evidence, their investigation, and their
experience in practicing criminal law, and though Gardner’s attorneys utilized
one strategy for guilt and another for sentencing, those strategies were not
inconsistent. The district court found that the state habeas court’s findings on
this claim were not unreasonable. We agree.
      As discussed in the previous section, there were numerous weaknesses
in Gardner’s proposed abandonment rage theory. Counsel was not deficient in
declining to present abandonment rage because it was not raised by any of the
experts or investigators after a diligent investigation, was unsupported by the
evidence, and would have likely permitted the prosecution to elaborate on
Gardner’s violent history. See Rayford, 622 F. App’x at 337. Accordingly,
Gardner has failed to raise a substantial claim that counsel’s “representation
fell below an objective standard of reasonableness” in utilizing different
strategies at guilt and punishment instead of relying on abandonment rage in
both phases. See Strickland, 466 U.S. at 687-88. Reasonable jurists would not
debate the propriety of granting a COA on this issue.




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                                      No. 18-70012
                                            C.
       Third, Gardner argues that his trial counsel were ineffective in failing to
investigate and present mitigating evidence for the punishment phase of trial. 1
As for the investigation, Gardner asserts that the interviews were limited to
Gardner’s parents, his sister, and primarily Gardner himself, and the
mitigation specialist “failed to do a diverse investigation and interviews of
corroborating witnesses” and “did not adequately investigate [Gardner’s]
former friends, and other life history informants.”               As for presentation,
Gardner argues that his counsel were deficient in failing to make a mitigation
presentation at the punishment phase because the witnesses that the defense
called “provided very limited testimony with no unifying theme that explained
why [Gardner] was less morally culpable and not deserving of death.” He
argues that new potential witnesses uncovered through his state habeas
investigation were familiar with and could have provided evidence relating to
his mental health and would have supported a sentence less than death.
       The state habeas court analyzed the extent of Gardner’s counsel’s
investigation and determined it was adequate.                The court found that in
preparation for trial, Gardner’s counsel compiled a team of experts to assist
them—a fact investigator, a mitigation specialist, a consulting mental-health
expert, a testifying mental-health expert, and a risk-assessment expert.
Counsel, the mitigation specialist, and the fact investigator traveled to
Mississippi to develop specific mitigation witnesses.             Counsel investigated
Gardner’s prior childhood accidents, injuries, and illnesses; any history of
sexual abuse toward Gardner; any drug or alcohol abuse by Gardner or his


       1 He also argues that his other ineffectiveness claims—failing to argue abandonment
rage at the guilt phase and failing to present a consistent theory of the case through guilt
and punishment—resulted from counsel’s inadequate investigation. Because we determine
that the investigation was adequate, we deny a COA on those claims to the extent that they
rely on the allegation of insufficient investigation.
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                                     No. 18-70012
family; Gardner’s mental health treatment; the cohesiveness of Gardner’s
family and their living conditions; Gardner’s military background; and his
memberships in religious, social, educational, and charitable groups. Counsel
also attempted to investigate Gardner’s school records but could not locate
them. Counsel acknowledged that their mitigation specialist was “overly close”
with Gardner’s family and refused to turn over her notes because she was
concerned about what would be discoverable by the State.                       Counsel’s
investigation uncovered evidence of Gardner’s childhood physical abuse.
Gardner’s parents denied any abuse and claimed that though Gardner had few
friends growing up, he was a “normal kid,” which Gardner’s attorneys say led
to “very little of importance being developed through the time spent with
them.” 2
      The defense presented the following witnesses at the punishment phase:
(1) Bill Miles, Gardner’s former co-worker, who testified that Gardner was a
diligent, responsible employee and that he believed Gardner had “Christ in his
heart”; (2) Kelly Dowdy, Gardner’s former co-worker, who worked with
Gardner at Wal-Mart and testified that he was a diligent, responsible
employee; (3) Juan Sewell, Tammy’s ex-husband, who testified that Tammy
could be manipulative; and (4) Elaine Holifield, Gardner’s sister, who described
the death of their sister as a source of stress on the family and described
repeated incidents where Gardner was abused by his father and where there
was violence between his parents.            For example, Holifield testified that
Gardner’s father, a Baptist preacher, would interrupt a church service to take




      2   The state habeas court’s “determination of a factual issue [is] presumed to be
correct,” and Gardner has “the burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1). He has made no such showing here.
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                                 No. 18-70012
Gardner to the fellowship hall to beat him with a belt while the congregants
listened.
      Gardner’s attorneys did not present expert testimony at the punishment
phase. After hearing the testimony of some of the State’s witnesses, one of the
mental health experts hired by counsel “decided she didn’t want to testify
because of lack of information and [because she] felt that [Gardner] was
psychotic.”
      The state habeas court found that counsel were not deficient in their
investigation and presentation of evidence. The court concluded that counsel’s
investigation uncovered significant harmful information that counsel
reasonably concluded did not merit further investigation, including Gardner’s
prior sexual relationship with a drag queen and his history of violence in his
previous relationships. The court credited counsel’s affidavit attesting that
they thought the information about Gardner’s relationship with a drag queen
would be more harmful than helpful in the conservative county where Gardner
was tried, and that his history of violence in prior relationships would be
harmful. The court also concluded that Gardner’s parents, who denied any
childhood abuse, would not have been helpful had they been called to testify
on Gardner’s behalf, nor would the mental health expert who believed Gardner
was psychotic. The district court found that the state habeas court’s findings
on this claim were not unreasonable. We agree.
      A petitioner alleging ineffective assistance of counsel on the basis of a
failure to investigate “must allege with specificity what the investigation would
have revealed and how it would have changed the outcome of the trial.” Miller
v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005) (citing United States v. Green, 882
F.2d 999, 1003 (5th Cir. 1989)). The state habeas investigation revealed the
following witnesses that Gardner argues his trial counsel should have
discovered and presented at the sentencing phase: Sylvia Reeves, Gardner’s
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                                        No. 18-70012
former sister-in-law via his third wife Margaret Westmoreland, and her
husband Donald “Red” Reeves, both of whom lived with Gardner and could
“have revealed the manipulation of his first wife, Rhoda, detailed [his] remorse,
and revealed [his] use of codeine in cold medication . . . prior to the shooting”
of Rhoda; and Louise Lillis, a former parishioner of the church where Gardner’s
father was the pastor, who Gardner argues could “have corroborated . . . that
[his] father physically abused him” by testifying to “a particularly harsh
whipping” she overheard during a church service. 3 The Reeves family had no
contact with Gardner after he assaulted Sylvia’s niece, Becky, nearly twenty
years before trial, and Lillis knew Gardner as a child because she was friends
with his parents thirty-five years earlier.
       “Complaints of uncalled witnesses are not favored, because the
presentation of testimonial evidence is a matter of trial strategy and because
allegations of what a witness would have testified are largely speculative.”
Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981) (quoting Buckelew v. United
States, 575 F.2d 515, 521 (5th Cir. 1978)) (alteration omitted).                     Counsel’s
decision not to present cumulative testimony does not constitute ineffective
assistance, nor does counsel’s failure to present evidence that is more harmful
than helpful to the defense. Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.




       3  Gardner argued to the state habeas court and federal district court that the
investigation should have uncovered two additional witnesses: Randy Reeves, the son of
Sylvia and Donald who knew Gardner, and Billy Stone, Gardner’s friend from when he served
in the Army. He presents no argument that the district court erred with respect to its finding
that counsel was not deficient for failing to locate and present these witnesses and has
therefore abandoned any such argument. See, e.g., Crose v. Humana Ins. Co., 823 F.3d 344,
351 n.5 (5th Cir. 2016) (“We have consistently held that failure to brief an issue in the opening
brief abandons that issue on appeal. This rule is applied regardless of whether the claims
are intertwined or related.” (internal citations omitted)).


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                                 No. 18-70012
1984); Mitchell v. Epps, 641 F.3d 134, 143 (5th Cir. 2011) (quoting Harrington,
562 U.S. at 789-90).
      Gardner’s counsel was not ineffective in failing to present these
witnesses. Lillis would have presented cumulative testimony already provided
by Gardner’s sister Elaine, who testified to the harsh whippings Gardner took
from his father as a child. As for the Reeveses, they attested that Gardner took
Red’s gun to shoot Rhoda; that he became “increasingly unstable and treated
Margaret [Westmoreland] like she was property”; and that they wanted
nothing to do with Gardner after he assaulted Sylvia’s niece, Becky. As the
state habeas court explained, the Reeveses’ affidavits contained “significant
harmful evidence that would have been explored by the state had counsel
presented their testimony,” such as reinforcing the parallels between Rhoda’s
and Tammy’s murders, including Gardner stealing the murder weapon from
the person he was living with, showing premeditation and planning in the
murders, immediately claiming remorse and crying to family members, and
later changing his story about the murders.
      Gardner also alleges that counsel’s investigation should have uncovered
abandonment rage. There is no evidence suggesting that Gardner’s counsel
conducted less than a reasonable investigation, and we have already explained
why the state court’s findings on counsel’s failure to uncover and present
abandonment rage are not unreasonable. See Segundo v. Davis, 831 F.3d 345,
352 (5th Cir. 2016); Rayford, 622 F. App’x at 337. Reasonable jurists would
not debate the propriety of granting a COA on this issue.
                                      D.
      Finally, Gardner argues that his trial counsel were ineffective in failing
to get the work product of their “recalcitrant mitigation specialist.”        The
mitigation specialist allegedly “developed an overly close relationship with
Gardner’s family,” “refused to share notes from her mitigation investigation[,]
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                                      No. 18-70012
and refused to summarize her findings in a report to the attorneys” because
“[s]he was overly concerned with what could be discoverable by the state.”
Gardner argues that trial counsel were deficient because they did not demand
that the specialist turn over her notes or prepare a report.
       Under AEDPA, a federal court may not grant habeas relief to a state
prisoner unless “the applicant has exhausted the remedies available in the
courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Gardner argues that this IATC
argument was not exhausted in the state habeas court, but this procedural
default should be excused under Martinez v. Ryan, 566 U.S. 1 (2012), and
Trevino v. Thaler, 569 U.S. 413 (2013). 4 The district court found that Gardner’s
claim was presented to and adjudicated by the state habeas court and therefore
“Martinez/Trevino does not apply to this case.” We agree with the district court
that this claim was adjudicated by the state habeas court and therefore is not
procedurally defaulted, and that the state court’s determination on the merits
of this claim was not unreasonable. See 28 U.S.C. § 2254(d)(1).
       The Supreme Court has held that to exhaust a claim, a “habeas
petitioner must have ‘fairly presented’ to the state courts the ‘substance’” of
that claim, and must have “provide[d] the state courts with a ‘fair opportunity’
to apply controlling legal principles to the facts bearing upon his constitutional
claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citing Picard v. Connor, 404
U.S. 270, 275, 277-78 (1971)). To satisfy the “fairly presented” requirement,
“[a] federal court claim must be the ‘substantial equivalent’ of one presented to



       4 In Martinez, the Supreme Court held: “Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” 566 U.S. at 17. Trevino applied this
rule to habeas proceedings in Texas, where it is “virtually impossible for an ineffective
assistance claim to be presented on direct review.” 569 U.S. at 417 (internal quotation marks
omitted).
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                                  No. 18-70012
the state courts.” Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998).
While “[i]t is not enough that all the facts necessary to support the federal
claim were before the state courts, or that a somewhat similar state-law claim
was made,” Anderson, 459 U.S. at 6 (citations omitted), it is not necessary for
the habeas petitioner to “spell out each syllable of the claim before the state
court to satisfy the exhaustion requirement.” Whitehead, 157 F.3d at 387. The
question here is whether the state habeas court “had a fair opportunity to
consider the . . . claim and to correct that asserted constitutional defect in
[Gardner’s] conviction.” Picard, 404 U.S. at 276.
         We agree with the district court’s conclusion that Gardner fairly
presented this claim to the state habeas court. The state habeas petition
asserted that counsel were deficient in part because of the close relationship
the mitigation specialist developed with Gardner and his family and her
refusal to share notes. Gardner himself provides support for the fact that this
IATC claim was before the state court, explaining that much of the information
presented in support of this claim was presented in the state court and
repeatedly citing to the state habeas court record in his brief to the district
court.
         In addressing the merits of Gardner’s IATC claim for failure to
adequately investigate and present mitigating evidence, the state habeas court
referenced the mitigation specialist’s actions, which provides further support
for the district court’s finding that the question was adjudicated. Gardner does
not assert a new claim of IATC that was not raised or adjudicated by the state
habeas court so much as he highlights a fact supporting the claim already
adjudicated by the state habeas court. This is insufficient to render his claim
unexhausted. See Whitehead, 157 F.3d at 387; Vollmer v. Davis, 673 F. App’x
406, 410 (5th Cir. 2016) (“Greater specificity or better framing of a claim in the
federal application as compared to the state petition does not necessarily
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                                 No. 18-70012
render the claim unexhausted.”).      Thus, we conclude that this claim was
exhausted because the court “had a fair opportunity to consider the . . . claim.”
Picard, 404 U.S. at 276. Accordingly, Martinez/Trevino does not apply. See
Escamilla v. Stephens, 749 F.3d 380, 394 (5th Cir. 2014) (concluding that
“Martinez does not apply to claims that were fully adjudicated on the merits
by the state habeas court because those claims are, by definition, not
procedurally defaulted”).
                                      ***
      For the foregoing reasons, Gardner’s application for a COA is DENIED.




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