Milam v. Davis

BLAINE KEITH MILAM, Petitioner-Appellant, v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENTOF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION Respondent-Appellee.

No. 17-70020

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

May 10, 2018

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

USDC No. 4:13-CV-545

Before ELROD, GRAVES, and HIGGINSON, Circuit Judges.

PER CURIAM:^*

In 2010, Petitioner Blaine Keith Milam was convicted for the capital murder of thirteen-month-old Amora Bain Carson and sentenced to death. His direct appeal and state collateral proceedings were unsuccessful, as was his 28 U.S.C. § 2254 petition for a writ of habeas corpus in the district court. He now applies for a certificate of appealability (COA), seeking to appeal the district court's denial of his petition. For the reasons that follow, we deny the application.

I

We provide only a brief summary of the underlying facts here. We discuss the specific facts pertinent to each of the relevant COA issues in the appropriate sections below.

Milam was charged with capital murder for the death of Amora Bain Carson. During the guilt phase of his jury trial, the State's evidence showed that Amora died from homicidal violence, due to multiple blunt-force injuries and possible strangulation. A search of Milam's trailer, the scene of the murder, revealed blood-spatter stains consistent with blunt-force trauma, blood-stained bedding and baby clothes, blood-stained baby diapers and wipes, a tube of Astroglide lubricant, and a pair of jeans with blood stains on the lap. DNA testing showed that the blood on these items was Amora's. Milam's sister visited Milam in jail a few days after the murder, and that night she told her aunt that she needed to get to Milam's trailer because Milam told her to get evidence out from underneath it. Milam's aunt called the police, who immediately obtained a search warrant and, in a search underneath the trailer, discovered a pipe wrench inside a clear plastic bag that had been shoved down a hole in the floor of the master bathroom. Forensic analysis revealed components of Astroglide on the pipe wrench, the diaper Amora had been wearing, and the diaper and wipes collected from the trailer. The State also proffered testimony from Shirley Broyles, a nurse at the Rusk County Jail, who testified that Milam told her, "I'm going to confess. I did it. But Ms. Shirley, the Blaine you know did not do this. My dad told me to be a man, and I've been reading my Bible. Please tell Jesseca [Amora's mother] that I love her." See generally Milam v. State, No. 76,379, 2012 WL 1868458, at *1-6 (Tex. Crim. App. May 23, 2012). The jury convicted Milam of capital murder, in violation of Texas Penal Code section 19.03(a)(8).

After a separate punishment hearing, the jury voted in favor of the deathpenalty, and the trial court sentenced Milam to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence on direct appeal. Milam did not file a petition for a writ of certiorari.

Milam filed an application for writ of habeas corpus in State court on May 21, 2012. On September 11, 2013, the Texas Court of Criminal Appeals adopted the trial court's recommended findings of fact and conclusions of law and denied state habeas relief. Milam then filed a petition for habeas relief in federal district court. On August 16, 2017, the district court denied the petition on all of Milam's twenty-one claims (some with multiple subclaims) and denied Milam a certificate of appealability.

Milam now seeks a COA in this court on six claims: (1) trial counsel was ineffective for failing to request a jury instruction during the punishment phase on voluntary intoxication as mitigation; (2) the trial court erred in failing to include a jury instruction on voluntary intoxication; (3) appellate counsel was ineffective for failing to raise, in a motion for new trial or on direct appeal, the ineffectiveness of trial counsel for failing to request and the trial court's failure to include a jury instruction on voluntary intoxication; (4) state habeas counsel was ineffective for failing to raise the first three claims in a state habeas application; (5) appellate and state habeas counsel were ineffective for failing to assert a sufficiency of the evidence claim on the issue of whether Milam was intellectually disabled; and (6) appellate and state habeas counsel were ineffective for failing to allege claims on appeal that Milam's death sentence violates Roper v. Simmons, 543 U.S. 551 (2005), because the evidence demonstrated that he was functioning on an emotional level of a person between eight and sixteen years old.

II

Federal habeas proceedings are subject to the rules prescribed by the Anti-terrorism and Effective Death Penalty Act (AEDPA). Matamoros v. Stephens,783 F.3d 212, 215 (5th Cir. 2015); see 28 U.S.C. § 2254. Under AEDPA, a certificate of appealability is a jurisdictional prerequisite to appealing the denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). A COA may issue upon "a substantial showing of the denial of a constitutional right." 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.'" Buck v. Davis, 580 U.S. —, —, 137 S. Ct. 759, 773 (2017) (quoting Miller-El, 537 U.S. at 327). "When . . . the district court denies relief on procedural grounds, the petitioner seeking a COA must show both 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).Whatever the basis for the denial, the court must bear in mind that "[w]here the petitioner faces the death penalty, 'any doubts as to whether a COA should issue must be resolved' in the petitioner's favor.'" Allen v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015) (quoting Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir. 2004)), abrogated on other grounds by Ayestas v. Davis, 584 U.S. —, 138 S. Ct. 1080 (2018).

"In assessing whether the district court's rejection of [a petitioner's] claims is debatable, we consider them under the deference AEDPA mandates federal courts show their state peers." Prystash v. Davis, 854 F.3d 830, 835 (5th Cir. 2017). "A federal court should not grant habeas relief unless the petitioner has exhausted the remedies available in state court for reviewing the claim." Id.; see also 28 U.S.C. § 2254(b). If the state court has adjudicated a petitioner's habeas claim on the merits, a federal court may not grant habeas relief unless the statecourt's adjudication of the claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). Regarding subsection (1), "[a] state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court[,] . . . if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts," Gray v. Epps, 616 F.3d 436, 439 (5th Cir. 2010), or "if the state court applies a rule different from the governing law set forth in [Supreme Court] cases," Bell v. Cone, 535 U.S. 685, 694 (2002). And "[a] state court's decision constitutes an unreasonable application of clearly established federal law if it is 'objectively unreasonable.'" Gray, 616 F.3d at 439. "When, as here, a habeas petitioner's claim has been adjudicated on the merits in state court, review under § 2254(d)(1) is limited to the record that was before the state court." Loden v. McCarty, 778 F.3d 484, 493 (5th Cir. 2015) (citation and internal quotation marks omitted). Regarding subsection (2), a federal habeas petitioner challenging the factual basis for a prior state court decision is successful only if he rebuts the "presumption of correctness" of the state court's factual findings "by clear and convincing evidence." Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. § 2254(e)(1)).

"This is a 'difficult to meet,' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). For good reason: "Section 2254(d) reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correctionthrough appeal." Richter, 562 U.S. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the judgment)); see also Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007) ("We have repeatedly admonished that we do not sit as a super state supreme court on a habeas corpus proceeding to review error under state law." (citation omitted)).

III

The district court and both parties discuss Milam's first four claims together, so we do so, as well. Milam principally contends that trial counsel was ineffective for presenting evidence regarding his drug use and "drug induced psychosis" at the time of the crime, but then failing properly to seek a jury instruction on voluntary intoxication as mitigation at the punishment...