     Case: 18-70004     Document: 00514729102    Page: 1   Date Filed: 11/19/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 18-70004                 United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                              November 19, 2018
JOHN HUMMEL,
                                                                 Lyle W. Cayce
               Petitioner - Appellant                                 Clerk


v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

               Respondent - Appellee




                  Appeal from the United States District Court
                       for the Northern District of Texas


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      John Hummel seeks a certificate of appealability to appeal the district
court’s denial of his federal habeas corpus petition under 28 U.S.C. § 2254. We
find that Hummel has not shown that jurists of reason could debate whether
the district court erred in denying his petition, and so we must deny his
application.
                                        I
      Kennedale, Texas authorities responded to a fire at Hummel’s house
shortly after midnight on December 18, 2009. Hummel’s pregnant wife, father-
in-law, and five-year-old daughter were found dead inside. Hummel was not
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inside the house, and approached an officer outside around 4:30 a.m. He told
police that he was away from the house the entire night because he was
checking prices for Christmas presents. During the interview, police observed
what appeared to be blood on his pants; they took his clothing for testing and
observed more blood on one of his socks and scratch marks on his back. After
leaving the police department, Hummel picked up a paycheck from his
employer and subsequently went missing.
      Two days later, Hummel attempted to enter the United States on foot at
a port of entry between Tijuana, Mexico, and San Ysidro, California, without a
passport or other acceptable proof of citizenship. Upon entering his name and
date of birth into the computer system, the Customs and Border Protection
officer was alerted that Hummel was a missing person and might be armed
and dangerous. The alert stated that if Hummel was located, CBP should
contact the Kennedale Police Department, but should not arrest or detain him.
The officer called the Kennedale Police Department, which said to hold
Hummel based on an arson arrest warrant, though no warrant had been
approved at that point. CBP learned shortly after that there was no active
warrant, but continued to detain Hummel until a warrant was issued later
that day. After the warrant was issued, Kennedale police officers traveled to
the San Diego jail where Hummel was being held, read him his Miranda rights,
and interrogated him. Hummel confessed orally and in writing to killing all
three victims, setting the house on fire, dumping the weapons he had used, and
driving to several Walmart stores “to be seen on camera.” Based on this
information, authorities found several weapons in a dumpster that tested
positive for DNA from Hummel and his family members. Hummel’s clothing
from that night tested positive for DNA from Hummel’s wife.
      The prosecution presented this evidence at trial, in addition to testimony
from Kristie Freeze, who had a relationship with Hummel while divorcing her
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husband. She said that she had told Hummel not to contact her after she
learned his wife was pregnant, about a week before the murders, but he
continued to call and text her. She also testified that she told Hummel on
December 16 that her divorce became final—two days before the murders.
      The jury convicted Hummel of capital murder. At the punishment stage
of the trial, the jury was asked to determine whether there was a probability
that Hummel “would commit criminal acts of violence that would constitute a
continuing threat to society” and whether “[t]aking into consideration all of the
evidence, including the circumstances of the offense, [Hummel’s] character and
background, and [Hummel’s] personal moral culpability,” it found sufficient
mitigating circumstances to warrant life imprisonment rather than death. It
found that Hummel was likely to be a future danger and that there were no
such mitigating circumstances. The Texas Court of Criminal Appeals affirmed
the judgment and sentence on direct appeal. Hummel’s state habeas
application was subsequently denied by the trial court and the Court of
Criminal Appeals. 1 The district court denied Hummel’s federal habeas petition
and denied his application for a COA.
                                        II
      A state prisoner does not have “an absolute right to appeal” from a
federal district court decision denying a petition for a writ of habeas corpus. 2
Instead, the prisoner must obtain a certificate of appealability. 3 This requires
a “substantial showing of the denial of a constitutional right” 4—that “jurists of
reason could disagree with the district court’s resolution of [the applicant’s]
constitutional claims or that jurists could conclude the issues presented are


      1  Ex parte Hummel, No. WR-81,578-01, 2016 WL 537608 (Tex. Crim. App. Feb. 10,
2016) (per curiam) (Alcala, J., dissenting).
       2 Buck v. Davis, 137 S. Ct. 759, 773 (2017).
       3 28 U.S.C. § 2253(c).
       4 Id. § 2253(c)(2).

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adequate to deserve encouragement to proceed further.” 5 We undertake a
threshold inquiry, not a full-fledged merits analysis, to determine whether the
applicant’s claims are reasonably debatable. 6
      Hummel’s petition is “also subject to the deferential standards of
AEDPA.” 7 For Hummel to be entitled to federal habeas relief under 28
U.S.C. § 2254(d), he must show that the state court’s decision was “contrary
to” or “involved an unreasonable application of” clearly established federal law,
or that it “was based on an unreasonable determination of the facts” given the
record before the state court. 8 It is not enough for the state court to have been
incorrect in its application of law or determination of facts; it must also have
been unreasonable. 9
      In sum, we must determine whether jurists of reason could debate the
district court’s conclusion that the state court decision in Hummel’s case was
not contrary to clearly established federal law, did not unreasonably apply that
law, and did not unreasonably determine the facts. Finding that no reasonable
jurist could debate this, we deny Hummel’s application for a COA.
                                            III
      First, Hummel argues that he received ineffective assistance of trial
counsel in violation of the Sixth Amendment. Under Strickland v. Washington,
to show constitutionally deficient assistance of counsel, Hummel must
establish “(1) that counsel’s representation fell below an objective standard of
reasonableness and (2) that the deficient representation caused prejudice,
which requires a showing that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been


      5 Buck, 137 S. Ct. at 773 (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).
      6 See id. at 773–74.
      7 Charles v. Stephens, 736 F.3d 380, 387 (5th Cir. 2013) (per curiam).
      8 Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. § 2254(d)(1)–(2)).
      9 Coble v. Quarterman, 496 F.3d 430, 435 (5th Cir. 2007).

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different.” 10 Our scrutiny of counsel’s performance is “highly deferential,” 11 and
“doubly” so when the ineffective-assistance claim is raised on federal review of
a state court decision that rejected the Strickland claim on the merits. 12
      Reasonable jurists cannot debate the reasonableness of the district
court’s conclusion that Hummel failed to clear this high bar. Hummel argues
that the defense should have presented testimony from jail deputies who
interacted with Hummel prior to trial, to testify that he was not a high-risk
inmate and was unlikely to be a future danger. He also argues that trial
counsel should have presented expert mental health testimony that he was
unlikely to be a future danger, in part based on an assessment that the crime
was triggered by complex post-traumatic stress disorder due to attachment
trauma. But trial counsel presented extensive evidence from expert and lay
witnesses that Hummel was unlikely to be a future threat, including evidence
of his good behavior while in jail and his nonviolent and non-criminal history. 13
Counsel made a reasonable strategic decision not to seek testimony from jail
personnel, as Hummel had indicated he had no especially positive




      10   Id. (internal quotation marks omitted).
      11   Strickland v. Washington, 466 U.S. 668, 689 (1984).
        12 See Richter, 562 U.S. at 105.
        13 Hummel’s trial counsel called nine lay witnesses who knew Hummel at various

points of his life. Several testified that both of Hummel’s parents had physically punished
him and that his mother was very strict with her children. The defense also presented two
expert witnesses. Frank Aubuchon, a former classifications officer for the correctional
department, testified that based on Hummel’s lack of disciplinary issues while in jail and
other factors, Hummel would likely adjust well to life in prison and be classified at the
minimum level an inmate could receive for a life sentence without parole. Dr. Antoinette
McGarrahan, a forensic psychologist, conducted a neuropsychological and personality and
emotional evaluation on Hummel, reviewed relevant records, and interviewed his mother and
sister. She testified that environmental factors led Hummel to repress his emotions, which
had suddenly flooded out and caused him to kill his family. Dr. McGarrahan did not testify
specifically about her opinion on Hummel’s future dangerousness or perform a formal
violence risk assessment, because trial counsel had concluded that doing so would open the
door to damaging rebuttal testimony from the State’s expert.
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relationships with anyone at the jail, 14 and a similarly reasonable decision not
to present specific expert testimony based on methods that could have opened
the door to powerful rebuttal testimony from the state’s expert. 15 As the State
observes, Hummel’s argument boils down to a matter of degree. He argues not
that the defense should have adopted an entirely different theory, but that it
failed to present available, helpful evidence on the theory it had adopted—a
difficult route by which to demonstrate ineffective assistance. 16
       Several of Hummel’s other ineffective-assistance arguments fail for the
same reason. He argues that counsel should have presented expert testimony
on Hummel’s social history beyond the neuropsychological evaluation Dr.
McGarrahan provided; that it should have called additional lay witnesses to
testify to his childhood trauma and nonviolent nature; and that it should have
presented further evidence of his military service. We cannot debate the
district court’s deference to the state court’s conclusions that counsel presented
considerable evidence of Hummel’s life circumstances—and that counsel was
not constitutionally deficient in failing to package this evidence in exactly the
way Hummel may now prefer. We also cannot debate its deference to the
conclusion that counsel made acceptable strategic choices not to present




       14  Trial counsel based this decision on past experience suggesting that testimony from
jail personnel was unlikely to be helpful to a defendant’s case without a strong personal
relationship. See Wiggins v. Smith, 539 U.S. 510, 533 (2003) (“Strickland does not require
counsel to investigate every conceivable line of mitigating evidence no matter how unlikely
the effort would be to assist the defendant at sentencing . . . . We base our conclusion on the
much more limited principle that strategic choices made after less than complete
investigation are reasonable only to the extent that reasonable professional judgments
support the limitations on investigation.” (internal quotation marks omitted)).
        15 Similarly, trial counsel was entitled to rely on another expert’s opinion that

Hummel did not exhibit post-traumatic stress disorder prior to committing the murders. See
Segundo v. Davis, 831 F.3d 345, 352 (5th Cir. 2016).
        16 See Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000) (“We must be particularly

wary of arguments that essentially come down to a matter of degrees.” (internal alterations
omitted)); accord Skinner v. Quarterman, 576 F.3d 214, 220 (5th Cir. 2009).
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testimony that could have been double-edged, such as further evidence about
Hummel’s military service. 17
       Hummel finally argues that trial counsel should have contested the
sufficiency of the State’s evidence of future dangerousness. The prosecution’s
future-dangerousness case centered on the murders themselves, evidence that
Hummel had attempted to poison his family two days before the murders by
placing rat poison in their food, and evidence of Hummel’s sexually deviant
activity and illegal drug use. Trial counsel argued to the jury that the State
had not proved future dangerousness, repeatedly noting the lack of evidence
that Hummel had ever been violent previously. Hummel offers no reason to
doubt the state court’s determination that the State’s evidence was sufficient
to support a finding of future dangerousness, so he has not shown that
reasonable jurists could debate the district court’s conclusion that counsel was
not deficient in failing to further object to the sufficiency of the evidence. 18
       On the record before the state court—and especially with the “double”
deference we afford to a Strickland claim on habeas review—reasonable jurists
could not debate the district court’s decision not to grant habeas relief on
Hummel’s claim for ineffective assistance of trial counsel.
                                            IV
       Second, Hummel argues that he received ineffective assistance of
appellate counsel. We review an ineffective-assistance-of-appellate-counsel


       17 We do not dispute that evidence of military service may have mitigating value, but
counsel made a reasonable strategic decision to attempt to present limited evidence of
Hummel’s military service, instead of presenting other witnesses about Hummel’s service
who could also have fueled the prosecution’s narrative that Hummel was a substandard
Marine who disobeyed the “simplest of orders” and once had an unauthorized absence of
under 20 hours.
       18 See Miller v. Johnson, 200 F.3d 274, 286–87 (5th Cir. 2000) (denying a COA to

challenge sufficiency of the evidence where the COA applicant had no past criminal history
but the crime itself was brutal and the applicant had taken affirmative steps to cover up his
involvement after the fact, among other evidence presented by the prosecution).
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claim on habeas review in much the same way that we review claims for
ineffective assistance of trial counsel, but we are mindful that “winnowing out
weaker arguments on appeal and focusing on those more likely to prevail, far
from being evidence of incompetence, is the hallmark of effective appellate
advocacy.” 19
       At trial, Hummel unsuccessfully moved to suppress the statements he
made to police after being apprehended, claiming in part that Customs and
Border Protection had unlawfully detained him before an arrest warrant was
issued. His appellate counsel appealed the denial of the motion to suppress,
but focused on the Kennedale Police Department’s false representation to CBP
that they had already secured an arrest warrant, arguing that without that
false representation CBP would not have detained Hummel. Hummel avers
that his appellate counsel was unconstitutionally deficient in failing to argue
specifically that CBP lost jurisdiction to detain Hummel once they learned that
no warrant had been issued.
       The state habeas court concluded that Hummel failed to demonstrate
that he would have prevailed on appeal if his appellate counsel had raised more
clearly the “jurisdiction-dropping”            argument—both because Hummel’s
“detention by CBP pending the issuance of an arrest warrant was justified on
several grounds based on federal law and CBP’s policies,” and because even if
appellate counsel had successfully argued that Hummel’s detention was
illegal, Hummel’s confession was sufficiently attenuated from the detention
that it should not have been suppressed regardless. Hummel does not point to
federal law clearly prohibiting CBP from detaining him upon learning that


       19Smith v. Murray, 477 U.S. 527, 536 (1986) (internal quotation marks omitted); see
also Smith v. Robbins, 528 U.S. 259, 288 (2000) (explaining that to prove ineffective
assistance of appellate counsel for failing to raise an argument in a brief, a petitioner must
generally show “that a particular nonfrivolous issue was clearly stronger than issues that
counsel did present”).
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there was no active warrant for Hummel’s arrest, given that he had attempted
to enter the United States without a passport. 20 He similarly does not present
clearly established law undercutting the state court’s conclusion that his
confession was sufficiently attenuated from any illegality in the detention. 21
       The federal courts’ task is not to establish whether CBP had authority
to detain Hummel, whether the state court reasonably concluded that CBP had
authority to detain Hummel, or whether Hummel’s appellate counsel was
unconstitutionally deficient in failing to straightforwardly raise this specific
argument on direct appeal. We must instead determine whether the district
court erred in determining that the state court did not unreasonably conclude
that Hummel’s appellate counsel’s strategy fell within the “wide range of
reasonable professional assistance” and that any failures by appellate counsel




       20  The district court approved of the state habeas court’s implicit reliance on 8 C.F.R.
§ 235.1, which provides that “[a] person claiming U.S. citizenship must establish that fact to
the examining officer’s satisfaction and must present a U.S. passport or alternative
documentation as required by 22 C.F.R. part 53.” 8 C.F.R. § 235.1(b). It also provides that
“[a] U.S. citizen must present a valid unexpired U.S. passport book upon entering the United
States, unless he or she presents [another valid document for entry].” Id. Hummel does not
give us sufficient grounds to debate the district court’s conclusion that the state habeas court
did not unreasonably interpret this provision to authorize CBP to detain Hummel when he
failed to present a passport or other authorized documentation.
        21 Hummel argues that the attenuation doctrine solely applies when independent

probable cause develops after an illegal arrest. This is a misinterpretation of our precedent,
which has consistently noted—following the Supreme Court’s decision in Brown v. Illinois,
422 U.S. 590, 598–99 (1975)—that the development of independent probable cause is one
factor to be considered in assessing attenuation. See United States v. Mendez, 885 F.3d 899,
909–10 (5th Cir. 2018) (“A district court must consider each factor [in Brown v. Illinois] and
determine the cumulative effect of all factors in each case.”); United States v. Cherry, 794
F.2d 201, 206 (5th Cir. 1986) (“The development of independently procured probable cause
following an illegal arrest is a critical factor attenuating the taint of the initial illegal
arrest.”). Here, as the district court observed, many facts weighed in favor of finding that
Hummel’s confession admissible: “the acquisition of a warrant, the length of time between
the warrant issuing and Petitioner confessing, the change of environs from the border
crossing to the jail, the Miranda warning, the apparent good faith of arresting officers, and
the lack of any flagrant official misconduct.”
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did not prejudice Hummel. 22 None could debate its holding that the state court
was not unreasonable in drawing these conclusions.
                                                V
       Third, Hummel argues that Texas Code of Criminal Procedure Article
37.071, the basis for the jury instructions on the special questions at the
punishment phase, unconstitutionally limits the jury’s ability to consider
mitigating       evidence       that     goes       beyond      a     defendant’s       “moral
blameworthiness.” 23 We have consistently concluded, in the face of similar
arguments, that “[t]he statute does not unconstitutionally restrict the
mitigating evidence that Texas juries are allowed to consider.” 24 We have held
that Article 37.071 § 2(e)(1) offers a “broad definition of mitigating evidence”
that is not limited by § 2(f)(4)’s reference to “moral blameworthiness.” 25
Hummel’s argument cannot support a holding that the state court
unreasonably applied clearly established federal law. 26
                                              VI
       We deny Hummel’s application for a certificate of appealability.




       22  Strickland, 466 U.S. at 689.
       23  See Tex. Code Crim. P. art. 37.071 § 2(f)(4).
        24 Rockwell v. Davis, 853 F.3d 758, 763 (5th Cir. 2017); see Blue v. Thaler, 665 F.3d

647, 666–68 (5th Cir. 2011); Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir. 2001).
        25 See, e.g., Blue, 665 F.3d at 666.
        26 See id. at 666–67 (“Beazley forecloses Blue’s claim for relief in two ways. First, its

conclusion that the new special-issue scheme is constitutional is very strong evidence that it
was reasonable for the CCA to reach the same conclusion. Second, Beazley also held, on facts
materially indistinguishable from those presented here, that the petitioner was not entitled
to the issuance of a COA. That holding binds this panel and compels rejection of Blue’s claim.
Therefore, jurists of reason would not debate the district court’s determination that the CCA’s
rejection of Blue’s Penry claim is entitled to deference under § 2254(d)(1).”
                                              10
