Burton v. Stephens

ARTHUR LEE BURTON, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

No. 12-70021

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Filed: October 28, 2013

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CV-1314

Before JONES, SOUTHWICK, and HAYNES, Circuit Judges.

EDITH H. JONES, Circuit Judge:^*

Arthur Lee Burton was convicted and sentenced to death for the 1997 murder of Nancy Adleman. Burton filed a federal habeas petition pursuant to 28 U.S.C. § 2254, asserting, inter alia, a Miranda violation, an Eighth Amendment claim related to the trial court's denial of Burton's request to make an unimpeached allocution statement, and ineffective assistance of counselclaims. After careful review, the district court denied the petition and did not certify any questions for appellate review. Burton now seeks a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c)(2). For the following reasons, we DENY the COA application.

BACKGROUND

1. Factual

Nancy Adleman went jogging on the night of July 29, 1997. Her body was found the next day in a heavily wooded area near Braes Bayou in Houston where she often ran. Witnesses saw an individual (later identified as Burton) riding a bicycle along the bayou around the same time that Ms. Adleman was jogging there. When he was brought in for questioning, Burton initially denied involvement in the crime. After being confronted with inconsistencies in his story, Burton provided the following confession:

About a week and a half ago I was riding my step mom's bike on the bayou behind my house. I rode around for a while and I seen this woman jogging. She was an older white woman wearing some shorts and some tennis shoes and a top. I think they were blue. I rode up behind her and pushed my bike down the hill into the bayou. I ran up behind her and grabbed her and pulled her in the woods. I threw her down and she started screaming and I choked her with my hands. She went unconscious for a little while. I took her shorts off and her panties and I left them there. She came back to and I got on top of her and I was trying to have sex with her but I got so nervous that I couldn't do it. Then she started screaming again. She was asking me did I know about God. She said I forgive you. She told me to just leave. She asked me why was I doing it and that I didn't have to do it and saying that I was a handsome man. I got up and I was fixing to leave. She grabbed my ear and she started screaming and I choked her until she went unconscious again. Then I drug her and we both fell in a hole. I got out and I was leaving and I saw somebody a man walking by himself. I went back and I took a shoestring out of her shoe. I left her shoe on and tied her shoestring around her neck. Then I went and got my bike and I went on. . . . I rode back down the bayou to the street . . . . It was starting to get dark then. I didn't tell anybody.

2. Procedural

The state charged Burton with capital murder because the strangling took place during the commission of, or attempted commission of, a kidnaping or aggravated sexual assault. The confession and eyewitnesses placing Burton near the scene of the crime provided the jury with sufficient evidence to convict on the capital charge. Following a separate punishment phase, he was sentenced to death.

On direct appeal to the Texas Court of Criminal Appeals ("TCCA"), Burton's conviction was upheld but his sentence was overturned based on ineffective assistance of counsel. Burton v. State, No. 73,204 (Tex. Crim. App. Mar. 7, 2001) (unpublished). TCCA remanded for a second punishment hearing.

While the direct appeal was pending before TCCA, Burton participated in a classification interview with a "prison sociologist." In the interview he stated that he had killed Adleman because it was "[j]ust something [he] couldn't help." The statement was admitted at the second punishment trial as evidence of Burton's continued dangerousness. At that proceeding, the judge also held that Burton could not make an allocution statement without subjecting himself to cross-examination.

The jury answered Texas's special issues unfavorably to Burton, and he was again sentenced to death. The TCCA upheld the second sentence on direct appeal. Burton v. State, No. 73,204 (Tex. Crim. App. May 19, 2004) (unpublished). The TCCA next turned to an initial state habeas claim — filed during the pendency of the first direct appeal — and a second state habeas claim filed after the second sentence was rendered. The first application was denied on all points. The second was denied with respect to all claims except whether Burton's counsel was ineffective for failing to object to the use of the sociologist's statement at the second punishment trial. Ex parte Burton, No. WR 64,360-01 (Tex. Crim. App. Nov. 7, 2007). After additional briefing and oral argument, thecase was remanded for factual development on the remaining issue. Ex parte Burton, AP-75,790 (Tex. Crim. App. June 20, 2008). Additional briefing followed once again, and the state district court found that the interview was not custodial, and that the sociologist was not an agent of the State such that Miranda warnings would be required. On appeal, the TCCA declined to adopt the lower court's findings, but denied relief nonetheless, stating: "This particular underlying Fifth Amendment issue is unsettled; therefore, counsel cannot be found deficient under the facts involved here." Ex parte Burton, AP-75,790 (Tex. Crim. App. Apr. 1, 2009).

Burton next sought habeas review in federal district court. He raised the following arguments:

1. The State elicited testimony in violation of Burton's Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel when the sociologist asked Burton, without the benefit of Miranda warnings or counsel, why he committed the crime.

2. Burton's Sixth Amendment right to effective assistance of counsel was denied by his trial attorney's failure to preserve the error in Claim 1 when that testimony was presented at the second trial.

3. The court's denial of Burton's request to make an allocution statement at the second trial without subjecting himself to cross-examination violated his Eighth Amendment right to present mitigating evidence.

4. Burton's right to effective assistance of counsel was violated when his attorney failed to raise Claim 3 on direct appeal.

5. Burton's claim of actual innocence entitles him to habeas relief.

Applying the appropriate standards of deference, the district court throughly reviewed the state court proceedings and denied each claim. Burton now seeks a COA on each of the questions in order to advance the same arguments to this court.

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a state court prisoner must obtain a COA before appealing a federal district court's denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). This is warranted upon a "substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). When a district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows that reasonable jurists "would find it debatable whether the petition states a valid claim of the denial of a constitutional right . . . and whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000) (emphasis added). The "threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it." Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003). In cases involving the death penalty, "any doubts as to whether a COA should issue must be resolved in [the petitioner's] favor." Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted).

AEDPA's standard for the district court is highly deferential to state-court decisions and demands that they "be given the benefit of the doubt." Renico v. Lett, 130 S. Ct. 1855, 1862 (2010). To prevail, the petitioner must prove that the adjudication by the state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of theevidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Under AEDPA, it is not enough that a federal habeas court would reach a different conclusion than the state court. Williams v. Taylor, 529 U.S. 362, 411, 120 S. Ct. 1495, 1522 (2000). The question for the appellate court on COA, however, is only whether "reasonable jurists could debate whether (or, for that matter, agree that)" the district court should have handled the issues differently. Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039.

DISCUSSION

Burton advances the same theories here as in his petition to the district court. We examine each in turn.

1. Miranda Objection

Burton first contests the admission of the prison sociologist's testimony in his second punishment trial. The prison sociologist asked Burton why he committed the crime and he responded that it was "[j]ust something [he] couldn't help." The State used this evidence to argue that Burton lacked remorse and could not stop himself from killing again. Burton contends that the admission of his statement, made in prison, without Miranda warnings and in the absence of counsel, violated his Fifth and Sixth Amendment rights.

The TCCA rejected the Miranda claim on direct appeal. The court did not address the substance of the claim because Burton did not object to the statements at trial, and thereby failed to preserve the...