Cade v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TYRONE CADE,
Petitioner,
VS.
ERIC GUERRERO, Director, Texas
Correctional Institutions Division,
Department of Criminal Justice,
Respondent.
)
)
)
)
) CIVIL ACTION NO.
)
) 3:17-CV-3396-G-BT
)
)
)
)
MEMORANDUM OPINION AND ORDER
Petitioner Tyrone Cade (“Cade”) filed this federal habeas corpus action under
28 U.S.C. § 2254 challenging his August 2012, Dallas County, Texas, capital murder
conviction and death sentence. Cade’s recent wave of motions challenging the
constitutionality of the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
(ECF nos. 150, 151, 152, 158) are untimely and lacking in arguable merit. For the
reasons set forth below, the court determines that Cade is not entitled to federal
habeas corpus relief or a Certificate of Appealability (“COA”).
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I. BACKGROUND
In the early morning hours of March 27, 2011, Cade stabbed to death his
romantic partner, Mischell Fuller (“Fuller”), and Fuller’s teenage daughter, Desaree
Hoskins (“Desaree”).1 Cade also raped Fuller after he repeatedly stabbed her in the
neck and chest. Although mortally wounded, Desaree was alive and close enough to
Fuller to witness her rape. Later the same day, Cade turned himself in by calling 911
from a pay phone in a police station lobby. After receiving Miranda warnings, Cade
gave officers two video-recorded statements in which he confessed to the killings in
detail. On April 19, 2011, a Dallas County grand jury indicted Cade in cause no.
F-11-33962-R on a charge of capital murder.2
The guilt-innocence phase of Cade’s capital murder trial began on August 20,
2012. In addition to Cade’s recorded confessions, which were played for the jury, the
evidence included handwritten notes recovered from a notebook found in a bathroom
near the bodies of the victims with a bloody knife. The notes explained that Cade
killed Fuller because she “kicked [him] to the curb” and because he could not live
without Fuller, he took Fuller from himself and “from . . . anyone else.” The medical
examiner (“ME”) also testified that Fuller died from being stabbed twenty-eight
1 The opinion of the Texas Court of Criminal Appeals (“TCCA”) on
direct appeal contains a detailed and accurate summary of the evidence introduced
during Cade’s trial. Cade v. State, No. AP-76,883, 2015 WL 832421, *1-*2 (Tex.
Crim. App. Feb. 25, 2015), cert. denied, 577 U.S. 1105 (2016).
2 ECF no. 68-5, 16.
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times, and that several of Fuller’s wounds were between four and five inches deep.
Desaree’s death resulted from thirty-nine stab wounds, many of which were also
between four and five inches deep. The ME testified that the perpetrator used a
great deal of force in inflicting Desaree’s injuries, noting the wounds penetrated her
bones.
The defense presented numerous witnesses to support Cade’s argument that he
was insane at the time he murdered Fuller and Desaree. The jury watched portions
of a videotaped deposition of Cade’s father who was then suffering from ill-health,
including symptoms of schizophrenia, and heard an excerpt from that same
deposition in which Cade’s father testified that Cade’s mother sexually abused Cade
when he was about two years old and, around the same time period, Cade witnessed
an incident in which his father struck his mother in the head with a hammer.3
Cade’s older half-brother Gregory Scott also testified that (1) Cade’s father
was abusive toward Cade and frequently beat Cade’s mother; (2) both of Cade’s
parents abused drugs and alcohol; (3) both of Cade’s parents beat Cade as a child;
(4) Cade has a brother, Jerry Scott, who has mental problems; (5) their family likes
to say they have a “crazy” bloodline; (6) in a pair of incidents Cade witnessed when
he was age two to two-and-a-half, Cade saw (a) his mother pin his father against a
3 Statement of Facts from Trial (henceforth “R.R. Trial”), Volume 47
[ECF no. 69-47], at 82-85.
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wall by stabbing him with a knife, and (b) his father strike his mother in the head
with a hammer; (7) after the latter incident, Cade’s mother took her children and left
the family’s home; (8) Fuller took care of Cade’s daughter Tyra while Cade was in
prison for a prior offense; (9) when Cade left prison, he moved in with Fuller;
(10) Cade was worse emotionally – more standoffish – when he came out of prison;
(11) Cade used experimental pain patches for his back pain; and (12) he did not
believe Cade understood what he was doing was wrong when he stabbed Fuller and
Desaree.4
Dr. David Altman, a psychologist who had not evaluated Cade and offered no
diagnosis of Cade’s condition, testified regarding the heritability of schizophrenia and
schizoaffective disorder.5 Dr. Michael Gottlieb, another psychologist who did not
interview or evaluate Cade and offered no opinion regarding Cade’s sanity, testified
that children who are sexually abused often develop serious emotional disturbances,
bipolar disorder, some psychoses, mental illness, long term depression, difficulties
maintaining intimate relationships, and chronic post-traumatic stress disorder
(“PTSD”).6
4 46 R.R. Trial [ECF no. 69-46] at 77-109.
5 Id. at 134-43.
6 47 R.R. Trial [ECF no. 69-47] at 48-81.
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The defense also called psychologist Dr. Gilda Kessner, who like Cade’s other
mental health experts, had neither interviewed nor evaluated Cade. Dr. Kessner
testified based upon information privately conveyed to her by Cade’s defense team,
her review of Cade’s journal writings after the offense, and her review of a report
prepared by prosecution expert Dr. Timothy James Proctor, that (1) Cade was likely
traumatized as a child; (2) Cade thereafter likely developed symptoms of PTSD;
(3) at the time of his offense Cade also suffered from depression and a variety of
stressors; (4) as a result, at the time of his offense, Cade likely experienced a mental
disease or defect – specifically abandonment rage; (5) Cade’s abandonment rage
consisted of an uncontrollable emotional state originating in childhood which became
incorporated into his personality as he matured into adulthood and rendered him
vulnerable to feelings of insecurity in his intimate personal relationships, depression,
and an inability to control his emotions when stressed; (6) while suffering from
abandonment rage, Cade experienced an inability to volitionally control his emotions,
i.e., Cade experienced a state of “autonomic arousal” in which he engaged in
uncontrollable “fight or flight” behavior divorced from any rational thought
processes; (7) Cade’s abandonment rage began when Fuller saw the knife he was
holding and screamed, and this condition lasted until all the violence ceased;
(8) during Cade’s episode of abandonment rage, he was unable to understand that his
conduct was wrong; and (9) Cade’s later writings in his journal and comments to
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Dr. Proctor that he understood that his conduct was wrong were ex post facto
rationalizations by Cade, were based entirely on hindsight, and did not accurately
reflect Cade’s actual thought processes at the time of his offense.7
In rebuttal, the prosecution called Dr. Proctor, a forensic psychologist who had
interviewed and evaluated Cade. Dr. Proctor testified that (1) Cade was not suffering
from a severe mental disease or defect at the time of the capital offense; (2) Cade
understood at that time that his actions were wrong; and (3) he was confident of
both of his conclusions based upon his clinical interview and psychological testing of
Cade, his interviews of Cade’s family members, and his review of Cade’s audiotaped
911 call, Cade’s recorded post-arrest police interviews, Cade’s handwritten journals,
and Cade’s voluminous school, medical, jail, probation, prison, and employment
records.8
On August 24, 2012, the jury returned its verdict, unanimously finding Cade
guilty of capital murder and implicitly rejecting Cade’s claim of insanity.9 The
punishment phase of Cade’s trial began three days later.
7 48 R.R. Trial [ECF no. 69-48] at 36-105.
8 Id. at 109-79.
9 Id. at 231-32. The guilt-innocence phase jury charge and verdict form
appear at ECF no. 68-5 at 404-10.
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During the punishment phase, the jury heard the prosecution’s punishment
phase evidence, as well as the evidence of Cade’s future dangerousness.10 This
evidence showed that Cade stabbed Fuller twenty-eight times and Desaree thirty-nine
times, using great force to inflict deep, painful wounds. Fuller and Desaree both lived
between thirty and forty minutes before they died. For Fuller, this interval included
a sexual assault while she was dying but still conscious and able to experience pain
and fear. While sexually assaulting Fuller, Cade was aware that Desaree was alive,
within close proximity of her mother’s ongoing sexual assault, and sufficiently
conscious to speak.
The jury heard evidence concerning Cade’s prior criminal history, which
included a 1987 juvenile adjudication of delinquent conduct for burglary of a
habitation, evidence that Cade committed aggravated assault with a deadly weapon
when he shot a man with a shotgun in 1993, and a 1999 conviction for aggravated
sexual assault.
The jury also heard evidence of Cade’s behavior and attitude following his
1999 aggravated-sexual-assault conviction. Cade’s community supervision officer for
that offense asserted that, while Cade was incarcerated, he was critical of his past
decisions and expressed willingness to adhere to his community-supervision
10 The TCCA analyzed this evidence on direct appeal. See Cade v. State,
2015 WL 832421, at *6-*8.
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conditions. However, following Cade’s release from jail, he “had an about face,” told
the officer he would not adhere to the conditions, and denied his guilt. Another
counselor who led the sex-offender treatment program that Cade was required to
attend, testified that he found Cade to be extremely manipulative. At his first
session, Cade attempted to cry in front of the group, a behavior that the counselor
surmised was not a genuine emotional response; and thereafter, Cade was evasive,
argumentative, disruptive, and manipulative. Cade was terminated from the program
after only three scheduled sessions, one of which he failed to attend. In the discharge
summary, the counselor wrote that Cade’s recidivism risk was extremely high.
Following Cade’s termination from the treatment program, the court revoked his
community supervision and sentenced him to three years in prison. Cade’s
disciplinary records while incarcerated showed that Cade was found in possession of
contraband and had an altercation with another inmate, during which Cade suffered
a black eye, and the other inmate suffered a fractured thumb.
The defense played another excerpt from the videotaped deposition of Cade’s
father for the jury before calling an acquaintance and former coworker of Cade who
testified Cade was able to learn the skills necessary to do his job and follow
instructions and, from what he could tell from talking with Cade frequently and
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attending one birthday party for Cade’s daughter Tyra, Cade was a good father to his
daughter.11
The defense also called a former prison inmate who had been exonerated based
on DNA evidence who testified about the daily living conditions within TDCJ, the
security conditions applicable to inmate movement within a unit, and, on
cross-examination, the fact that inmates have access to many items they can turn into
weapons, and some inmates have escaped from TDCJ facilities.12
A Dallas County Jail supervisor testified Cade had not caused any problems
during the year and a half he had supervised him (under 23-hour a day lockdown
conditions).13 A retired TDCJ official testified regarding the inmate classification
system used to control inmates, and he reported there was nothing remarkable about
Cade’s disciplinary records during his previous term of incarceration in the TDCJ,
including the absence of any disciplinary citation arising from the fight with another
inmate in which Cade was involved.14
Cade’s childhood friend and high school teammate testified that Cade was a
phenomenal athlete in high school until Cade was injured playing football his junior
11 50 R.R. Trial [ECF no. 69-50] at 56-67.
12 Id. at 79-109.
13 Id. at 119-25.
14 Id. at 126-53, 176-78, 181-82.
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year and forced to give up football due to partial paralysis and dizziness that was
later attributed to a genetic condition. Prior to his injury Cade had been extremely
popular, but afterward Cade had a difficult time adjusting.15 Cade’s cousin Rhea
Scott testified she had been raised with Cade and knew him her entire life; she knew
Cade to be a good and loving father to his daughter who still loved Cade very much;
many members of their family had visited Cade in jail during his pretrial detention;
and their family would have supported Cade had he asked them for help prior to the
murders because they had supported Cade during his childhood when his mother was
in and out of his life.16
In rebuttal, the prosecution called Fuller’s son Michael Hoskins, who testified
regarding the impact of the murders of his mother and sister on his family and him.17
On August 29, 2012, Cade’s jury found (1) unanimously and beyond a
reasonable doubt there was a probability Cade would commit future acts of violence
that would constitute a continuing threat to society, and (2) unanimously there was
no mitigating circumstance which warranted the imposition of a term of life
imprisonment for Cade.18
15 51 R.R. Trial [ECF no. 69-51] at 22-31.
16 Id. at 31-42.
17 Id. at 48-57.
18 Id. at 125-27. The jury charge and verdict form from the punishment
(continued...)
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Cade appealed his conviction and sentence.19 The TCCA affirmed,20 and the
United States Supreme Court denied Cade’s petition for writ of certiorari on January
19, 2016.21
The Texas Office of Capital and Forensic Writs filed Cade’s initial state habeas
corpus application on September 9, 2014, asserting sixteen claims for relief.22 The
state habeas trial court held an evidentiary hearing on some of Cade’s claims on June
22-28, 2016, and November 17, 2016, during which it heard testimony from Cade’s
three trial counsel, Cade’s mitigation specialist (psychologist Dr. Kristi L. Compton),
Cade’s expert attorney, a clinical and forensic psychiatrist who evaluated Cade (Dr.
Seth Silverman), Cade’s older half-brother (Jerry Scott), a licensed social worker who
interviewed Cade (Laura Sovine), a forensic psychologist who evaluated Cade (Dr.
Proctor), and a neuropsychologist who evaluated Cade (Dr. J. Randall Price). On
April 10, 2017, the state trial court issued its findings of fact, conclusions of law, and
18(...continued)
phase of Cade’s capital murder trial appear at ECF no. 68-5 at 415-30.
19 On December 19, 2013, attorney Catherine Bernhard filed Cade’s
appellate brief in the TCCA, asserting forty-four points of error. A copy of the brief
appears at ECF no. 68-17.
20 Cade v. State, 2015 WL 832421, at *41.
21 Cade v. Texas, 577 U.S. 1105 (2016).
22 A copy of Cade’s initial state habeas application appears at ECF no.
71-4.
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a recommendation that Cade’s state habeas application be denied.23 The TCCA
adopted most but not all of the trial court’s findings and conclusions and denied
Cade state habeas relief.24
Cade filed his first amended federal habeas corpus petition in this court on
March 28, 2019 (ECF no. 79), asserting twenty claims for relief. Respondent filed an
answer (ECF no. 82); Cade filed his reply (ECF no. 98). The court granted
Respondent leave to file a sur-reply (ECF no. 110). Thereafter, Cade filed his final
reply brief on the merits (ECF no. 114).
While his first amended petition was pending, Cade filed a motion requesting
a stay and abeyance to permit him to return to state court and exhaust state habeas
corpus remedies on five of his claims in his first amended petition (ECF no. 100).
The court stayed this proceeding to permit Cade to exhaust state remedies on several
unexhausted claims (ECF no. 119).
On November 19, 2020, Cade filed his first subsequent state habeas corpus
application, in which he asserted twenty-two claims for relief. Four and a half
months later, the TCCA summarily dismissed Cade’s first subsequent state habeas
23 The state trial court’s order containing its findings, conclusions, and
recommendation in Cade’s initial state habeas corpus proceeding (“FFCL”) appears at
ECF no. 71-9 and at ECF no. 134-2 at 113-216.
24 Ex parte Cade, No. WR-83,274-02, 2017 WL 4803802 (Tex. Crim. App.
Oct. 25, 2017) (per curiam). A copy of the TCCA’s unpublished order accepting
most of the trial court’s findings appears at ECF no. 134-2 at 217-23.
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application pursuant to the Texas abuse-of-the-writ statute, i.e., Article 11.071, § 5(a)
of the Texas Code of Criminal Procedure.25 The United States Supreme Court
denied Cade’s petition for writ of certiorari.26
Cade filed his second amended federal habeas petition in this court on August
10, 2021 (ECF no. 127), asserting seventeen grounds for relief. Respondent filed its
original answer (ECF no. 132) and a supplemental answer (ECF no. 141). Cade filed
his reply brief (ECF no. 146).
Cade filed a pair of motions on July 23, 2025, seeking to have this court
declare AEDPA unconstitutional and void (ECF nos. 150, 151), along with a motion
for leave to file same (ECF no. 152). Cade later renewed his motion for leave to file
his challenges to the constitutionality of AEDPA (ECF no. 158). Respondent
opposes Cade’s motions for leave to challenge AEDPA constitutionality as untimely
and lacking in merit (ECF no. 159).
II. LEGAL STANDARDS
For the reasons discussed in Section IV below, this court’s review of Cade’s
federal habeas corpus claims is governed by AEDPA.27
25 Ex parte Cade, No. WR-83,274-03, 2021 WL 1202479, at *2 (Tex.
Crim. App. Mar. 31, 2021) (per curiam).
26 Cade v. Texas, __ U.S.__, 142 S. Ct. 783 (2022).
27 Penry v. Johnson, 532 U.S. 782, 792 (2001) (“Penry II”). For the reasons
discussed at length below, Cade’s requests that this court declare AEDPA
(continued...)
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The legislative history of AEDPA indicates it was intended as a limitation
upon the scope of federal habeas review, not as an enactment intended to broaden
the scope of federal habeas review or to reconfigure federal habeas courts as super
state appellate courts. One of the principal purposes of AEDPA is to reduce delays in
the execution of state and federal criminal sentences, especially capital sentences.28
Another purpose of AEDPA is to encourage litigants to pursue claims in state court
prior to seeking federal collateral review.29 AEDPA is also intended to prevent
“piecemeal litigation and gamesmanship.”30 Thus, under AEDPA, federal habeas
review of claims is limited to the record that was before the state court which
adjudicated the prisoner’s claims on the merits.31 “The AEDPA statute of limitations
promotes judicial efficiency and conservation of judicial resources, safeguards the
accuracy of state court judgments by requiring resolution of constitutional questions
while the record is fresh, and lends finality to state court judgments within a
27(...continued)
unconstitutional and null and void lack any arguable merit.
28 Ryan v. Gonzales, 568 U.S. 57, 76 (2013); Schriro v. Landrigan, 550 U.S.
465, 475 (2007); Rhines v. Weber, 544 U.S. 269, 276 (2005).
29 Duncan v. Walker, 533 U.S. 167, 181 (2001); see also Hernandez v.
Johnson, 108 F.3d 554, 558 n.4 (5th Cir.), cert. denied, 522 U.S. 984 (1997).
30 Magwood v. Patterson, 561 U.S. 320, 334 (2010).
31 Cullen v. Pinholster, 563 U.S. 170, 182 (2011).
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reasonable time.”32 Collectively, the provisions of AEDPA “‘further the principles of
comity, finality, and federalism.’”33
Under AEDPA’s standard of review, this court cannot grant Cade federal
habeas corpus relief in connection with any claim that was adjudicated on the merits
in state court proceedings (either on direct appeal or during a state habeas corpus
proceeding), unless the adjudication of that claim either: (1) 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 (2) 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.34
The Supreme Court has concluded the “contrary to” and “unreasonable
application” clauses of Title 28 U.S.C. § 2254(d)(1) have independent meanings.35
Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state
32 Wood v. Milyard, 566 U.S. 463, 472 (2012) (quoting Day v. McDonough,
547 U.S. 198, 205-06 (2006) (quoting Acosta v. Artuz, 221 F.3d 117, 123 (2nd Cir.
2000))).
33 Panetti v. Quarterman, 551 U.S. 930, 945 (2007) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 337 (2003) (“Miller-El I”) (internal quotation marks
omitted)).
34 Brown v. Davenport, 596 U.S. 118, 135-36 (2022); Brown v. Payton, 544
U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C.
§ 2254(d).
35 Bell v. Cone, 535 U.S. 685, 694 (2002).
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court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or (2) the state court decides a case differently than the Supreme
Court on a set of materially indistinguishable facts.36 A state court’s failure to cite
Supreme Court authority does not, per se, establish the state court’s decision is
“contrary to” clearly established federal law: “a state court need not even be aware of
our precedents, ‘so long as neither the reasoning nor the result of the state-court
decisions contradicts them.’”37
Under the “unreasonable application” clause, a federal habeas court may grant
relief if the state court identifies the correct governing legal principle from the
Supreme Court’s decisions but unreasonably applies that principle to the facts of the
petitioner’s case.38 A federal court making the “unreasonable application” inquiry
should ask whether the state court’s application of clearly established federal law was
“objectively unreasonable.”39 The focus of this inquiry is on whether the state court’s
36 Brown, 544 U.S. at 141; Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)
(“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule
that contradicts the governing law set forth in our cases’ or it ‘confronts a set of facts
that are materially indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent.’”) (quoting Williams, 529 U.S. at
405-06).
37 Mitchell, 540 U.S. at 16 (quoting Early v. Packer, 537 U.S. 3, 8 (2002)
(per curiam)).
38 Brown, 544 U.S. at 141; Wiggins v. Smith, 539 U.S. 510, 520 (2003).
39 McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (“A federal habeas
(continued...)
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application of clearly established federal law was objectively unreasonable; an
“unreasonable” application is different from a merely “incorrect” one.40 “Under the
Antiterrorism and Effective Death Penalty Act of 1996, a state prisoner seeking a writ
of habeas corpus from a federal court ‘must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.’”41
Legal principles are “clearly established” for purposes of AEDPA review when
the holdings, as opposed to the dicta, of Supreme Court decisions existing at the time
of the relevant state court decision establish those principles.42
39(...continued)
court can only set aside a state-court decision as ‘an unreasonable application of . . .
clearly established Federal law,’ § 2254(d)(1), if the state court’s application of that
law is ‘objectively unreasonable[.]’”) (quoting Williams, 529 U.S. at 409); Wiggins,
539 U.S. at 520-21.
40 Schriro, 550 U.S. at 473 (“The question under the AEDPA is not
whether a federal court believes the state court’s determination was incorrect but
whether that determination was unreasonable – a substantially higher threshold.”);
Wiggins, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) (“[I]t is the
habeas applicant’s burden to show that the state court applied [that case] to the facts
of his case in an objectively unreasonable manner.”) (citation omitted).
41 Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington v. Richter,
562 U.S. 86, 103 (2011)).
42 Brown, 596 U.S. at 136 (“It is not enough that the state-court decision
offends lower federal court precedents. This Court’s dicta cannot supply a ground for
relief.”) (citation omitted); Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004)
(continued...)
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AEDPA also significantly restricts the scope of federal habeas review of state
court fact findings. Subsection 2254(d)(2) of Title 28, United States Code, provides
federal habeas relief may not be granted on any claim that was adjudicated on the
merits in the state courts unless the state court’s adjudication of the claim resulted in
a decision based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.43 Even if reasonable minds
reviewing the record might disagree about the factual finding in question (or the
implicit credibility determination underlying the factual finding), on habeas review,
this does not suffice to supersede the trial court’s factual determination.44
In addition, § 2254(e)(1) provides that a federal habeas petitioner challenging
state court factual findings must establish by clear and convincing evidence that the
state court’s findings were erroneous.45 It remains unclear at this juncture whether
42(...continued)
(“We look for ‘the governing legal principle or principles set forth by the Supreme
Court at the time the state court renders its decision.’”) (quoting Lockyer v. Andrade,
538 U.S. 63, 71-72 (2003)).
43 Wood v. Allen, 558 U.S. 290, 301 (2010) (“[A] state-court factual
determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.”); Williams, 529 U.S. at 410
(“[A]n unreasonable application of federal law is different from an incorrect application
of federal law.”) (emphasis in the original).
44 Wood, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).
45 Schriro, 550 U.S. at 473-74 (“AEDPA also requires federal habeas courts
to presume the correctness of state courts’ factual findings unless applicants rebut
(continued...)
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§ 2254(e)(1) applies in every case presenting a challenge to a state court’s factual
findings under § 2254(d)(2).46
The deference to which state court factual findings are entitled under AEDPA
“does not imply an abandonment or abdication of federal judicial review.”47
Before a federal court may grant a state prisoner habeas corpus relief on a
claim that was adjudicated on the merits in state court, the petitioner must not only
satisfy the requirements of AEDPA but must also convince the court that the error
committed by the state court during its adjudication of the petitioner’s criminal case
was not “harmless” within the meaning of Brecht v. Abrahamson.48 In Shinn v.
45(...continued)
this presumption with ‘clear and convincing evidence.’”) (quoting 28 U.S.C.
§ 2254(e)(1)); Rice, 546 U.S. at 338-39 (“State-court factual findings, moreover, are
presumed correct; the petitioner has the burden of rebutting the presumption by
‘clear and convincing evidence.’”) (quoting 28 U.S.C. § 2254(e)(1)); Miller-El v.
Dretke, 545 U.S. 231, 240 (2005) (“Miller-El II”) (“[W]e presume the Texas court’s
factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness
by clear and convincing evidence.’”) (quoting 28 U.S.C. § 2254(e)(1)); 28 U.S.C.
§ 2254(e)(1).
46 See Wood, 558 U.S. at 300-01 (choosing not to resolve the issue of
§ 2254(e)(1)’s possible application to all challenges to a state court’s factual
findings); Rice, 546 U.S. at 339 (likewise refusing to resolve the Circuit split
regarding the application of § 2254(e)(1)).
47 Miller-El I, 537 U.S. at 340 (“Even in the context of federal habeas,
deference does not imply abandonment or abdication of judicial review. Deference
does not by definition preclude relief.”); see also Miller-El II, 545 U.S. at 240 (“The
standard is demanding but not insatiable[.]”).
48 Brown, 596 U.S. at 122 (discussing the persistent relevance of the
(continued...)
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Ramirez,49 the Supreme Court held that when a federal habeas petitioner has properly
exhausted state court remedies on a federal constitutional claim through direct appeal
or a state habeas corpus proceeding, federal habeas review of that claim is “highly
circumscribed” in that the federal court is limited to reviewing the record before the
state court which resolved the claim on the merits, and the petitioner must establish
that, under Supreme Court precedent, no fair-minded jurist could have reached the
same result as the state court.50
Absent a showing that there is an absence of available state corrective process
or that circumstances exist that render such process ineffective to protect the rights of
a petitioner, this court is statutorily precluded from granting federal habeas corpus
relief on any claim that has not been fairly presented to the state courts.51
48(...continued)
harmless error standard announced in Brecht v. Abrahamson, 507 U.S. 619 (1993),
within the context of AEDPA review).
49 596 U.S. 366 (2022).
50 Id. at 378; see also id. at 371 (where a petitioner failed to develop the
factual bases for his claims in state court, he is entitled to present new evidence in
support of his claims before the federal habeas court only two limited circumstances
outlined in 28 U.S.C. § 2254(e)(2)(A)); Shoop v. Twyford, 596 U.S. 811, 819-20
(2022).
51 Davila v. Davis, 582 U.S. 521, 527 (2017) (“The exhaustion
requirement is designed to avoid the ‘unseemly’ result of a federal court ‘upset[ting] a
state court conviction without’ first affording the state courts an ‘opportunity to . . .
correct a constitutional violation[.]”) (quoting Rose v. Lundy, 455 U.S. 509, 518
(1982)); 28 U.S.C. § 2254(b)(1).
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Nonetheless, this court is authorized to deny federal habeas relief on the merits
notwithstanding a petitioner’s failure to exhaust available state court remedies.52
If the state courts failed to adjudicate a claim on the merits that Cade now
presents to this court (such as claims (1) the state courts summarily dismissed under
the Texas writ-abuse statute or Texas rules of procedural default or (2) which Cade
failed to fairly present to the state courts), then this court’s review of the
unadjudicated claim is de novo.53
III. ANALYSIS
A. Batson Claims
In his first claim in his second amended federal habeas petition, Cade argues
the state courts erred in overruling his objections to the prosecution’s exercise of
peremptory challenges against two black members of the jury venire: V_ B_ and
52 See Rhines, 544 U.S. at 277 (a federal habeas court abuses its discretion
if it grants a petitioner a stay when his unexhausted claims are plainly meritless); 28
U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”).
53 See Porter v. McCollum, 558 U.S. 30, 39 (2009) (de novo review of the
allegedly deficient performance of petitioner’s trial counsel was necessary because the
state court failed to address the prejudice prong of Strickland v. Washington, 466 U.S.
668 (1984)); Rompilla v. Beard, 545 U.S. 374, 390 (2005) (de novo review of the
prejudice prong of Strickland was required where the state court rested its rejection of
an ineffective assistance claim on the deficient performance prong and never
addressed the issue of prejudice); Wiggins, 539 U.S. at 534 (holding same).
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L_ P_.54 Cade presented a pair of Batson claims involving the same two venire
members, V_ B_ and L_ P_, as his sixteenth and seventh points of error on direct
appeal.55 The TCCA denied both of Cade’s Batson claims on the merits in an opinion
which detailed the exchange between the parties throughout voir dire and during the
multiple Batson hearings held in Cade’s case.56 Cade’s first claim in his first
subsequent (second) state habeas corpus application re-urged his Batson claims with
regard to venire members V_ B_ and L_ P_.57 The TCCA summarily dismissed this
claim pursuant to the Texas writ-abuse statute.58
In Batson v. Kentucky,59 the United States Supreme Court extended the equal
protection principle barring the purposeful exclusion of racial minorities from
criminal jury service to the prosecution’s use of peremptory challenges during petit
jury selection.60 Batson provides a three-step process for a trial court to use in
54 ECF no. 127, 29-49.
55 Appellant’s Brief [ECF no. 68-17], 83-104.
56 Cade v. State, 2015 WL 832421, at *19-*24.
57 Second State Habeas Application [ECF no. 134-17], 18-39.
58 Ex parte Cade, 2021 WL 1202479, at *2.
59 476 U.S. 79 (1986).
60 See id. at 89 (“[T]he Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race or on the assumption that
black jurors as a group will be unable impartially to consider the State’s case against a
black defendant.”).
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adjudicating a claim that a peremptory challenge was based on race: first, the
defendant must make out a prima facie case of discriminatory jury selection by the
totality of the relevant facts concerning a prosecutor’s conduct during the defendant’s
own trial; second, once the defendant makes the prima facie showing, the burden
shifts to the State to come forward with a race-neutral explanation for challenging
jurors within the arguably targeted class; finally, the trial court must determine if the
defendant established purposeful discrimination by the prosecution.61
A trial judge’s findings in connection with a Batson challenge turn primarily
upon an evaluation of the prosecutor’s credibility and are entitled to deference.62
Under AEDPA, even more deference must be shown.63
This court has independently reviewed the voir dire testimony of V_ B_ in its
entirety and finds the prosecution’s proffered race-neutral reasons for peremptorily
striking V_ B_ are fully supported by V_ B_’s voir dire testimony.64 V_ B_ repeatedly
61 See Foster v. Chatman, 578 U.S. 488, 499 (2016); Snyder v. Louisiana,
552 U.S. 472, 476-77 (2008); Miller-El II, 545 U.S. at 239; Batson, 476 U.S. at
94-98.
62 Davis v. Ayala, 576 U.S. 257, 271 (2015) (“The opponent of the strike
bears the burden of persuasion regarding racial motivation and a trial court finding
regarding the credibility of an attorney’s explanation of the ground for a peremptory
challenge is entitled to ‘great deference.’”) (citation omitted, quoting Felker v. Jackson,
562 U.S. 594, 598 (2011)); Batson, 476 U.S. at 98 n.21.
63 Id. at 271-72.
64 The voir dire testimony of V_ B_ (i.e., juror no. 33) appears at 7 R.R.
(continued...)
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indicated that, while she could perform the duties of a juror in Cade’s trial, she was
personally against the imposition of the death penalty. V_ B_ also volunteered
during voir dire (and acknowledged that she had written in her questionnaire
responses) that she believed African Americans had been “railroaded” into the death
penalty. The prosecution’s other race-neutral reasons for striking V_ B_ were also
supported by V_ B_’s voir dire testimony, including her admissions that she had
worked for several law firms, had served as a mediator, and was trained as a paralegal.
The prosecution’s explanation that V_ B_ often attempted to rephrase the
prosecutor’s question is also confirmed by review of V_ B_’s voir dire exchanges.
This court has also independently reviewed the voir dire testimony of L_ P_
and finds the prosecution team’s proffered race-neutral reasons for peremptorily
striking L_ P_ were also fully supported by L_ P_’s voir dire testimony.65 L_ P_
repeatedly used words during his voir dire examination by the State suggesting he
would be “trouble[d],” “bother[ed],” and “distract[ed]” by the prospect of voting to
impose a death sentence. L_ P_ repeatedly stated that he believed the Bible teaches
64(...continued)
Trial [ECF no. 69-7] 47-124. The record of the State’s announcement of its exercise
of a peremptory strike against V_ B_, the prosecution’s explanation of its reasons for
using that strike, and the trial court’s subsequent discussions with counsel for both
parties appear at 7 R.R. Trial [ECF no. 69-7] 125-37.
65 The voir dire testimony of L_ P_ (i.e., juror no. 198) appears at 11 R.R.
Trial [ECF no. 69-11] 14-81. The State’s two challenges for cause to L_ P_ and the
trial judge’s and defense counsel’s discussions regarding same appear at 11 R.R. Trial
[ECF no. 69-11] 81-88.
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us not to judge others. L_ P_ testified repeatedly that he had a difficult time
imagining a scenario in which he could vote to convict based solely on circumstantial
evidence. L_ P_ testified that he believed black men receive the death penalty
disproportionately to “white guys” and found this unfair.
Thus, both V_ B_ and L_ P_ testified during their voir dire examination that
while they could perform their civic duty and serve as jurors, they were reluctant to
participate as jurors in a capital sentencing proceeding. The TCCA’s factual findings
on that point were reasonable in view of the evidence before that court on direct
appeal.66
The state court was entitled to “take into account, among other things, any
observations of the juror that the judge was able to make during voir dire.”67 The
state trial court’s rejections of Cade’s Batson challenges were fully supported by the
evidence before that court. The same is true for the record before the TCCA on
direct appeal. Cade has failed to present this court with clear and convincing
evidence showing the state trial court’s implicit credibility findings (regarding the
prosecution’s race-neutral reasons for its peremptory strikes of venire members V_ B_
and L_ P_) were erroneous. In sum, the state trial and appellate courts reasonably
66 Cade v. State, 2015 WL 832421, at *19-*24.
67 Thaler v. Haynes, 559 U.S. 43, 48 (2010).
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could have believed the prosecution’s concerns that V_ B_ and L_ P_ were at best
reluctant jurors with a potentially negative view of the death penalty.
On direct appeal, Cade called the TCCA’s attention to juror J_ N_ and argued
that his voir dire answers were similar to those of venire members V_ B_ and L_ P_.68
Insofar as Cade points out that all three of these jurors expressed reservations about
their willingness to rely upon purely circumstantial evidence, Cade is correct. All
three did express at least some confusion about, if not antagonism toward,
circumstantial evidence. With regard to their respective views on the efficacy of the
death penalty and their willingness to participate in a capital sentencing proceeding,
however, Cade is mistaken. Juror J_ N_ did not express any views during his voir dire
examination as (1) hostile toward the imposition of the death penalty, as did both
V_ B_ and L_ P_ during their voir dire examinations or (2) reflecting a desire to avoid
being part of a capital sentencing jury, as did both V_ B_ and L_ P_. On the
contrary, J_ N_ not only expressed full support for the death penalty, he expressed a
desire to see the scope of that form of punishment expanded to include rape and
child abuse. In contrast to both V_ B_ and L_ P_, both of whom expressed reluctance
to serve as jurors in a capital sentencing proceeding, when asked by defense counsel
whether he wanted to serve as a juror in this case, J_ N_ answered, “I think it would
68 J_ N_’s voir dire testimony appears at 20 R.R. Trial [ECF no. 69-20]
301-68.
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be interesting.”69 At its core, a Batson claim is an equal protection challenge to the
prosecutor’s actions. With regard to their views on the efficacy of the death penalty
and their willingness to serve on a capital sentencing jury, J_ N_ was not similarly
situated for equal protection purposes with venire members V_ B_ and L_ P_.
The same is true for juror K_ T_, identified by Cade in his pleadings in this
court.70 During his voir dire examination K_ T_ expressed no reservations about
serving as a juror in a capital sentencing proceeding and expressed no personal qualms
with the Texas definition of capital murder or the Texas capital sentencing special
issues. Nor has Cade identified anything in juror K_ T_’s questionnaire responses
similar to the comments adverse to the death penalty contained in the questionnaire
answers of venire members V_ B_ and L_ P_ discussed during their voir dire
testimony.
It is particularly important that a federal habeas court pay deference to the
state trial court’s evaluation of the prosecution’s credibility.71
69 Id. at 367.
70 K_ T_’s voir dire examination appears at 14 R.R. Trial [ECF no. 69-14]
8-84.
71 See, e.g., Miller-El I, 537 U.S. at 340 (“‘[T]he trial court’s decision on
the ultimate question of discriminatory intent represents a finding of fact of the sort
accorded great deference on appeal[.]’”) (quoting Hernandez v. New York, 500 U.S.
352, 364 (1991)); Blanton v. Quarterman, 543 F.3d 230, 246-47 (5th Cir. 2008)
(recognizing that the state trial court’s acceptance of the prosecution’s race-neutral
reasons for striking a venire member involve, at least in part, a credibility
(continued...)
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The pattern of the prosecution’s peremptory challenges likewise supports the
state courts’ conclusion that the prosecution’s peremptory strikes of V_ B_ and L_ P_
were not based on racial animus. The prosecution used less than half of its allotted
peremptory strikes, and only two of its strikes were directed against any of the six
black venire members who reached the individual voir dire stage of jury selection.
Thus, the prosecution accepted four black venire members as jurors while striking
only two. Furthermore, one of the five white venire members peremptorily stricken
by the prosecution, venire member L_ S_, was a special education teacher, which
lends credibility to the prosecution’s contention that one of its race-neutral reasons
for striking venire member V_ B_ was that her occupation and training (as a mediator
and paralegal) appeared problematic.72
Cade argues that the prosecution questioned some black venire members more
aggressively on the subject of their views of circumstantial evidence than white venire
members. Cade asserts this demonstrates racial animus, citing Miller-El I and
71(...continued)
determination) (citing Goodwin v. Johnson, 224 F.3d 450, 457 (5th Cir. 2000)
(recognizing the high burden that a habeas petitioner faces in order to reverse an
initial fact-finder’s credibility determination), cert. denied, 531 U.S. 1120 (2001)), cert.
denied, 556 U.S. 1240 (2009); Ortiz v. Quarterman, 504 F.3d 492, 502 (5th Cir.
2007) (noting that Texas appellate courts pay particular deference when a
prospective juror’s answers are vacillating, unclear, or contradictory and holding that
a federal habeas court’s respect for such a finding “certainly should be no less”), cert.
denied, 553 U.S. 1035 (2008).
72 The voir dire testimony of L_ S_ appears at 19 R.R. Trial [ECF no.
69-19] 7-69.
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Miller-El II. Those two opinions addressed jury selection during Miller-El’s 1986
capital murder trial in Dallas County. The Supreme Court concluded the lower
courts had erred in denying federal habeas relief on a Batson claim involving the
striking of ten of eleven black venire members. The evidence relied upon by the
Supreme Court to find the prosecution’s proffered reasons for the strikes of such a
high percentage of black venire panelists were pretextual was compelling: (1) the
prosecution requested and obtained a jury shuffle which moved at least four black
venire members significantly back in the order in which they were to appear for
individual voir dire; (2) a side-by-side comparison showed a contrasting pattern of
voir dire questions for black and non-black venire members (i.e., 6% of white
panelists received a graphic script describing the methods of execution available
under Texas law while 53% of black panelists were read the graphic script describing
the execution process; 27% of white panelists received trick questions while 100% of
black panelists received trick questions); (3) side-by-side comparisons of the answers
given by black venire members who were stricken with the questionnaire answers of
non-black venire members allowed to sit on the jury showed similarities on the very
questions identified by the prosecution as justifying its strikes (i.e., three of the
prosecution’s proffered race-neutral rationales for striking black jurors applied just as
well to some white panelists who were not challenged and who did serve as jurors);
and (4) numerous former employees of the Dallas County District Attorney’s Office,
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including a pair of former Dallas County judges, testified (a) an official policy of
excluding blacks from Dallas County juries existed in the late 1950s to the early
1960s; (b) a systemic policy of excluding blacks from Dallas County juries still
existed in 1976-78; and (c) a training manual created in 1968 which explained the
reasons the Office excluded minorities from criminal juries was still circulating within
that Office until at least 1976 and was available to at least one prosecutor at the time
of Miller-El’s 1986 trial.73
Cade has not identified any specific facts or evidence showing that a
systematic pattern or policy of excluding black venire members from capital jury
service still existed in Dallas County at the time of his own 2012 capital murder trial.
Nor does Cade offer any evidence of purposeful racial discrimination by his
prosecution team’s attorneys which approaches the conduct of Dallas County
prosecutors in 1986.
On the contrary, Cade’s allegation of disparate questioning of some (but not
all) black venire members regarding circumstantial evidence does little to address the
fact that the prosecution, which had the majority of its peremptory strikes still
available by the conclusion of individual voir dire, elected not to strike four of the six
black venire members who reached that stage of jury selection. Nor does Cade
identify any white venire member whom the prosecution failed to strike who offered
73 See Miller-El II, 545 U.S. at 240-66; Miller-El I, 537 U.S. at 331-35.
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negative views during voir dire on capital punishment or who demonstrated clear
reluctance to serve on a capital sentencing jury which were similar to the testimony
offered by venire members V_ B_ and L_ P_.
The TCCA’s denial on the merits of Cade’s Batson claims regarding venire
members V_ B_ and L_ P_ on direct appeal was neither contrary to, nor involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, nor resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in Cade’s
trial and state direct appeal proceedings. Under AEDPA, Cade’s multifaceted Batson
claim does not warrant federal habeas corpus relief. Cade’s first claim in his second
amended petition lacks arguable merit and is denied.
B. Fair Cross-Section Claim
In his second claim in his second amended federal habeas petition, Cade
argues that his right to a jury selected from a fair cross-section of the community was
violated when his trial counsel jointly stipulated with the prosecution to allow the
trial court to excuse peremptorily any venire members whose questionnaire answers
placed them at the extremes in terms of their support for, or opposition to, the death
penalty.74 Cade asserted a similar ineffective assistance claim as his second claim in
74 ECF no. 127, 49-56. Respondent construed this claim as sounding
primarily in ineffective assistance attributed by Cade to his trial counsel (ECF no.
(continued...)
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his first subsequent (second) state habeas application.75 The TCCA summarily
dismissed this claim when it dismissed Cade’s first subsequent (second) state habeas
application based on state writ-abuse principles.76 Here, Cade complains that his
trial counsel stipulated to the summary dismissal of 57 venire members (out of more
than 540) based upon the attitudes toward the death penalty reflected in their
answers to the juror questionnaire.77
The Supreme Court has declared that the Sixth Amendment guarantees a
criminal defendant the right to have his or her jury chosen from a venire or panel
representing a “fair cross-section” of the community.78 The Supreme Court reached
this conclusion by recognizing: (1) “the Sixth Amendment’s provision for jury trial is
74(...continued)
132, 48-54). This court construes Cade’s claim as a blend of both ineffective
assistance and fair cross-section principles. Out of an abundance of caution, this
court will liberally construe Cade’s second claim as asserting claims under both fair
cross-section and ineffective assistance theories. As explained hereinafter, neither
claim possesses any arguable merit.
75 First Subsequent (Second) State Habeas Application 39-46 [ECF no.
134-17, 139-53 of 794]. While the briefing in support of this state habeas claim
includes a citation to the Supreme Court’s opinion in Strickland, the thrust of Cade’s
arguments in both state and federal court is on the fair cross-section component of
the Sixth Amendment.
76 Ex parte Cade, 2021 WL 1202479, at *1-*2.
77 ECF no. 127, 53.
78 Taylor v. Louisiana, 419 U.S. 522, 527-30 (1975).
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made binding on the States by virtue of the Fourteenth Amendment[;]”79 (2) “the
American concept of the jury trial contemplates a jury drawn from a fair cross section
of the community[;]”80 and (3) the selection of a petit jury from a representative
cross-section of the community is an essential component of the Sixth Amendment
right to a jury trial.81 The Supreme Court cited its long line of equal protection cases
outlawing the purposeful exclusion of racial and ethnic groups from service on grand
and petit juries in support of its interpretation of the Sixth Amendment’s fair
cross-section requirements. The Supreme Court has acknowledged its holding in
Taylor announced a new rule of constitutional criminal procedure.82
The fair cross-section requirement exists separate and apart from the equal
protection rights recognized in Batson. Likewise, the fair cross-section requirement
exists separate and apart from the equal protection principles forbidding systematic
exclusion of identifiable racial or ethnic groups from grand jury service.83
79 Id. at 526.
80 Id. at 527.
81 Id. at 528.
82 Id. at 535-36 (“[U]ntil today no case had squarely held that the
exclusion of women from jury venires deprives a criminal defendant of his Sixth
Amendment right to trial by an impartial jury drawn from a fair cross section of the
community.”).
83 See Holland v. Illinois, 493 U.S. 474, 478-83 (1990) (distinguishing the
principles governing the Supreme Court’s equal protection case law forbidding the
(continued...)
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The Supreme Court has repeatedly refused to extend the Sixth Amendment’s
fair cross-section requirement to the selection of a petit jury once a jury panel or
venire has been constituted that satisfies this requirement.84
A criminal defendant has standing to challenge an exclusion resulting in a
violation of the fair cross-section requirement, whether or not he or she is a member
of the excluded class.85 The Supreme Court has emphasized its construction of the
Sixth Amendment does not deprive the states of the opportunity to grant exemptions
from jury service in cases of special hardship or incapacity or to persons engaged in
83(...continued)
systematic discriminatory exclusion of identifiable groups from grand juries and petit
jury venires from the Sixth Amendment’s fair cross-section of the community
requirement and holding that the latter did not prohibit the use of peremptory
challenges in an allegedly racially discriminatory manner akin to the Equal Protection
Clause’s prohibition recognized in Batson).
84 See id. at 486-87 (holding the Sixth Amendment’s fair cross-section
requirement does not mirror the Equal Protection Clause’s proscription against racial
discrimination in the exercise of peremptory challenges); Teague v. Lane, 489 U.S.
288, 314-15 (1989) (recognizing the denial of the right to a fair cross-section of the
community in a jury venire does not undermine the fundamental fairness that must
underlie a criminal conviction); Lockhart v. McCree, 476 U.S. 162, 173 (1986) (“We
have never invoked the fair cross-section principle to invalidate the use of either
for-cause or peremptory challenges to prospective jurors, or to require petit juries, as
opposed to jury panels or venires, to reflect the composition of the community at
large.”).
85 Duren v. Missouri, 439 U.S. 357, 359 n.1 (1979); Taylor, 419 U.S. at
526.
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particular occupations whose uninterrupted performance of their duties is critical to
the community’s welfare.86
To establish a prima facie violation of the fair cross-section requirement, a
defendant must demonstrate “(1) that the group alleged to be excluded is a
‘distinctive’ group in the community; (2) that the representation of this group in
venires from which juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and (3) that this underrepresentation is
due to systematic exclusion of the group in the jury-selection process.”87
Rule 2(c)(2) of the Rules Governing Section 2254 Cases in the United States
District Courts requires that the petition “state the facts supporting each ground.”88
86 See Taylor, 419 U.S. at 534 (“The States are free to grant exemptions
from jury service to individuals in case of special hardship or incapacity and to those
engaged in particular occupations the uninterrupted performance of which is critical
to the community’s welfare.”) (citation omitted); see also id. at 538 (“The States
remain free to prescribe relevant qualifications for their jurors and to provide
reasonable exemptions so long as it may be fairly said that the jury lists or panels are
representative of the community.”).
87 Duren, 439 U.S. at 364; see also United States v. Alix, 86 F.3d 429, 434
n.3 (5th Cir. 1996) (“We note that a defendant cannot establish a prima facie
violation of the fair-cross-section requirement by relying solely on the composition of
the jury panel at his own trial.”) (citation omitted).
88 Mayle, 545 U.S. 644, 655 (2005); Harper v. Lumpkin, 64 F.4th 684, 691
(5th Cir.) (per curiam), cert. denied, __ U.S.__, 144 S. Ct. 429 (2023).
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This is very different from the “notice pleading” requirement of Rule 8, FED. R. CIV.
P.89 The Fifth Circuit has reaffirmed this rule in a wide variety of contexts.90
Here, Cade fails to allege specific facts, or present evidence, showing that his
trial counsel were required or felt coerced by any rule of procedure, statute, ordinance,
or other governmental edict to consent to the summary excusal of those members of
the venire panel who filled out juror questionnaires in ways indicating they were
either extremely in support of, or extremely opposed to, the death penalty. Instead,
Cade speculates that financial pressures might have motivated his trial counsel:
“Appointed capital defense counsel in Dallas County exercising his client’s right to a
selection process allowing for rehabilitation, conducted entirely on the record, and
89 See, e.g., Murphy v. Dretke, 416 F.3d 427, 436-38 (5th Cir. 2005)
(holding generic reference to individual voir dire of entire jury venire insufficient to
support a Batson claim) (citing Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990)
(conclusory allegations fail to establish a valid claim of ineffective assistance of
counsel) and Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (per curiam)
(conclusory allegations do not raise a constitutional issue in a habeas proceeding)),
cert. denied, 546 U.S. 1098 (2006).
90 See, e.g., Fahle v. Cornyn, 231 F.3d 193, 196-97 (5th Cir. 2000)
(conclusory due process allegations that petitioner was denied the presumption of
innocence insufficient to support claims for federal habeas relief), cert. denied, 532
U.S. 1043 (2001); Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998) (conclusory
assertions regarding alleged destruction of exculpatory evidence failed to show State
destroyed the evidence in bad faith, i.e., with knowledge of its exculpatory value), cert.
denied, 526 U.S. 1118 (1999); Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996) (“A
habeas petitioner must make specific allegations; ‘conclusory allegations unsupported
by specifics,’ or ‘contentions that in the face of the record are wholly incredible’ will
not entitle one to discovery or a hearing.”) (quoting Blackledge v. Allison, 431 U.S. 63,
74 (1977)).
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overseen by an impartial judge, faces the practical consideration that he may be
passed over for future capital appointments and thereby undermine his livelihood.”91
Cade alleges no facts, and presents no evidence, showing how or when the purported
“long-held practice in Dallas County capital cases” about which he complains
originated.92 More significantly, Cade alleges no specific facts showing that the
stipulation which his trial counsel made jointly with the prosecution has ever
occurred in any other capital murder trial held in Dallas County, before or after his
own.
Nor does Cade allege anything more than conjecture to support his assertion
that his trial defense team felt compelled by any third party or outside force to
stipulate in the manner they did. For instance, Cade offers no affidavit from any of
his trial counsel or anyone else claiming to possess personal knowledge regarding the
circumstances under which Cade’s trial counsel chose to stipulate to the summary
excusal of any individuals from Cade’s jury venire.
Likewise, Cade alleges no specific facts, and presents no evidence, showing that
any attorney who refused to agree to the stipulation at issue has ever been sanctioned
or otherwise harmed in any manner by any judge as a result of their refusal to so
stipulate. Mere speculation and conjecture about “practical considerations” are not
91 ECF no. 127, 55.
92 Id. at 50.
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substitutes for specific facts and evidence. Nor does such speculation satisfy Rule
2(c)’s requirement of factual specificity in federal habeas pleadings. Thus, Cade fails
to allege specific facts showing that there has been any systematic or systemic
exclusion of an identifiable group from participation in Dallas County jury venires in
capital murder cases.
Even more significantly, Cade fails to allege specific facts identifying a
“distinctive” group in the community subjected to systematic or systematic
exclusion.93 The Supreme Court has never extended the Sixth Amendment’s fair
cross-section jurisprudence to address the exclusion of groups composed of
individuals with particular political views or party affiliation (as opposed to groups
distinguished by their race or ethnicity). Duren and Taylor addressed the exclusion of
women from jury service. Holland addressed a defendant’s challenge to a prosecutor’s
use of peremptory strikes to exclude black venire members from the jury.
In Lockhart v. McCree,94 the Supreme Court addressed an issue much more
analogous to Cade’s claim: “Does the Constitution prohibit the removal for cause,
prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose
opposition to the death penalty is so strong that it would prevent or substantially
impair the performance of their duties as jurors at the sentencing phase of the
93 Duren, 439 U.S. at 364.
94 476 U.S. 162 (1986).
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trial?”95 The Supreme Court concluded that exclusion of such individuals did not
violate the fair cross-section requirement.96 Because Cade fails to identify a
“distinctive” group whom he claims has been excluded from jury service, he fails to
allege specific facts which show a violation of his Sixth Amendment rights under the
prima facie test set forth in Duren.
As the Supreme Court’s analysis in Lockhart makes evident, a citizen
vehemently opposed to capital punishment at one point in his or her life may change
their opinion on that subject on a weekly, daily, or hourly basis; the same holds for
individuals who pronounce their equally unfaltering support for the death penalty.
Neither group constitutes a “distinctive” group within the meaning of term as used in
Duren.97 The Supreme Court’s fair cross-section jurisprudence deals almost
exclusively with exclusions premised on race or ethnicity. The Supreme Court has
not extended the fair cross-section requirement to guarantee a criminal defendant
that the political views of his jury venire will accurately reflect the overall political
95 Id. at 165.
96 See id. at 174-77; see also id. at 174 (explaining that “groups defined
solely in terms of shared attitudes that would prevent or substantially impair
members of the group from performing one of their duties as jurors . . . are not
‘distinctive groups’ for fair-cross-section purposes”).
97 Id. at 175-76; see also United States v. Sanders, 133 F.4th 341, 376 (5th
Cir. 2025), petition for cert. docketed (Dec. 30, 2025) (No. 25-6451).
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views of the local community.98 Cade’s fair cross-section claim is foreclosed by the
Supreme Court’s holding in Lockhart.
Furthermore, extending the Supreme Court’s Sixth Amendment fair
cross-section jurisprudence to amorphous groups distinguished not by objective
criteria but, instead, by their answers to questionnaires designed to measure their
views on the efficacy and desirability of the death penalty would violate the
nonretroactivity doctrine in Teague. Finally, Cade’s complaint that his trial counsel’s
stipulation removed 57 individuals with extreme views on the death penalty from his
jury venire does not rise above the level of harmless error.99 Insofar as it is premised
upon his conclusory and speculative Sixth Amendment’s fair cross-section
requirement, Cade’s second claim does not warrant federal habeas corpus relief.
C. Rulings on Challenges for Cause/Biased Juror Claim
In his third claim in his second amended federal habeas petition Cade argues
the trial court erred in denying his challenges for cause to seventeen members of the
jury venire and, as a result of the exhaustion of his peremptory challenges, he was
forced to proceed to trial with a biased juror who will be identified herein as juror
98 Lockhart, 476 U.S. at 175-77.
99 Brecht, 507 U.S. at 623 (The test for harmless error in federal court is
“whether the . . . error ‘had substantial and injurious effect or influence in
determining the jury’s verdict.’”) (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946)).
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K_ A_.100 Cade presented a similar set of arguments in his eighteenth through
thirty-fourth points of error on direct appeal.101 The TCCA rejected these points of
error on the merits when it affirmed Cade’s conviction and sentence on direct appeal,
making detailed factual findings after reviewing the voir dire testimony of each venire
member in question.102
A potential juror’s personal viewpoints on a wide variety of subjects, including
the propriety of the death penalty, do not justify exclusion of that potential juror as
biased unless he or she is unable to set aside their viewpoint and render a verdict
based on the law and evidence: “It is sufficient if the juror can lay aside his
impression or opinion and render a verdict based on the evidence presented in
court.”103
In Adams v. Texas,104 the Supreme Court emphasized the limitations its
previous holding in Witherspoon v. Illinois,105 imposed on the ability of the State to
exclude members of a jury venire from service on a capital sentencing jury:
100 ECF no. 127, 56-65.
101 Appellant’s Brief 103-22 [ECF no. 68-17] 127-45.
102 See Cade v. State, 2015 WL 832421, at *24-*39.
103 Irvin v. Dowd, 366 U.S. 717, 722 (1961) (citations omitted).
104 448 U.S. 38 (1980).
105 391 U.S. 510 (1968).
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[A] juror may not be challenged for cause based on his
views about capital punishment unless those views would
prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath. The State may insist, however, that jurors will
consider and decide the facts impartially and
conscientiously apply the law as charged by the court.106
The Supreme Court emphasized in Adams that the State could, consistent with
Witherspoon, exclude prospective jurors whose views on capital punishment are such
as to make them unable to follow the law or obey their oaths; but excluding jurors on
broader grounds based on their opinions concerning the death penalty is
impermissible.107
In Wainwright v. Witt,108 the Supreme Court further clarified its holdings in
Witherspoon and Adams, holding the proper inquiry when faced with a venire member
who expresses personal, conscientious, or religious views on capital punishment is
“whether the juror’s views would ‘prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his oath.’”109 The
Supreme Court also emphasized that considerable deference is to be given the trial
court’s firsthand evaluation of the potential juror’s demeanor, and that no particular
106 Adams, 448 U.S. at 45.
107 Id. at 44-48.
108 469 U.S. 412 (1985).
109 Id. at 424 (footnote omitted).
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phrasing or word choice need necessarily be followed in interrogating the potential
juror in this regard.110
More recently, the Supreme Court has identified the following “principles of
relevance” from its Witherspoon-Witt line of opinions:
First, a criminal defendant has the right to an impartial
jury drawn from a venire that has not been tilted in favor
of capital punishment by selective prosecutorial challenges
for cause. Second, the State has a strong interest in having
jurors who are able to apply capital punishment within the
framework state law prescribes. Third, to balance these
interests, a juror who is substantially impaired in his or her
ability to impose the death penalty under the state-law
framework can be excused for cause; but if the juror is not
substantially impaired, removal for cause is impermissible.
Fourth, in determining whether the removal of a potential
juror would vindicate the State’s interest without violating
the defendant’s right, the trial court makes a judgment
based in part on the demeanor of the juror, a judgment
owed deference by reviewing courts.111
In Uttecht v. Brown, the Supreme Court admonished reviewing courts to defer to the
trial court’s resolution of questions of bias arising from a potential juror’s conflicting
voir dire answers because the trial court had the opportunity to observe the demeanor
of the potential juror.112 “Courts reviewing claims of Witherspoon-Witt error, however,
110 Id. at 430-35.
111 Uttecht v. Brown, 551 U.S. 1, 9 (2007) (citations omitted).
112 Id. at 20 (“[W]here, as here there is a lengthy questioning of a
prospective juror and the trial court has supervised a diligent and thoughtful voir dire,
the trial court has broad discretion.”).
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especially federal courts considering habeas petitions, owe deference to the trial court,
which is in a superior position to determine the demeanor and qualifications of a
potential juror.”113 Moreover, judicial determinations of whether a potential juror
possesses disqualifying bias is a question of fact to which a federal habeas court is
required to give deference.114
Insofar as Cade complains about the state trial court’s failure to grant defense
challenges for cause made against venire members against whom Cade later exercised
peremptory challenges, Cade’s complaints must fail.115 If a criminal defendant
exercises a peremptory challenge to exclude an allegedly biased venire member from
service on the jury, no constitutional violation occurs.116 Thus, this court’s focus is
limited to examining the propriety of the state trial court’s ruling on Cade’s challenge
for cause to the only member of the jury venire Cade identifies in his federal habeas
petition as biased who ultimately served on his petit jury, i.e., qualified juror K_ A_.
113 Id. at 22.
114 Skilling v. United States, 561 U.S. 358, 396 (2010); Witt, 469 U.S. at
423-24; Patton v. Yount, 467 U.S. 1025, 1036-38 (1984).
115 See Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (“So long as the jury that
sits is impartial, the fact that the defendant had to use a peremptory challenge to
achieve that result does not mean the Sixth Amendment was violated.”).
116 United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000) (“[I]f the
defendant elects to cure such error by exercising a peremptory challenge, and is
subsequently convicted by a jury on which no biased juror sat, he has not been
deprived of any rule-based or constitutional right.”).
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The TCCA made thorough findings regarding the voir dire examination and
alleged disqualifying bias of juror K_ A.117 This court has undertaken a careful review
117 The TCCA thoroughly analyzed Cade’s challenge to K_ A_ and
concluded the trial court did not abuse its discretion is denying defense counsel’s
three challenges for cause:
First, defense counsel argued that [K_ A_] would
automatically vote for the death penalty. Defense counsel
acknowledged that, during the State’s voir dire, [K_ A_]
had indicated that he could and would follow all the law
applicable to sentencing, but defense counsel asserted that,
during the defense’s voir dire, [K_ A_] “differentiated and
went back and forth and vacillated on his true feelings,”
such that counsel believed [K_ A_]’s “true opinion [was]
that if somebody kills somebody, that they deserve to die.”
After reviewing [K_ A_]’s entire voir dire, we disagree that
he took positions during defense questioning that were
materially different than the answers he gave during the
State’s questioning. But even if we were to accept [Cade]’s
argument, we give particular deference to the trial court’s
ruling when a prospective juror vacillates or gives equivocal
or contradictory answers concerning his ability to follow
the law.
Second, defense counsel argued that [K_ A_] would hold
[Cade] to a higher burden of proof than the law required
regarding insanity. Defense counsel based his assertion on
[K_ A_]’s response when the prosecutor questioned him
about his answer to Question 38 of the juror questionnaire.
Question 38 informed potential jurors that a person with
mental illness can receive life without parole or the death
penalty for committing capital murder, then asked for the
juror’s thoughts. [K_ A_] wrote, “Life without parole no
death penalty on a person with mental illness.” The
prosecutor questioned [K_ A_] as follows:
(continued...)
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117(...continued)
[PROSECUTOR]: First of all, would you
agree with me that anyone can just claim they
have a mental illness?
[K_ A_]: Yes.
[PROSECUTOR]: Okay. Would you agree
with me that mental illness exists on a range
of very mild, like a person with mild
depression, all the way up to severe where a
person just doesn’t even understand the
difference between right and wrong?
[K_ A_]: Right.
[STATE]: Okay. Now, are you saying to me
that, no matter what the extent of the mental
illness is, that you’ll never consider the death
penalty, or are you saying if they are on a far
end of that scale that you wouldn’t consider
it?
[K_ A_]: No, on a far end.
This line of questioning and [K_ A_]’s “far end” response
concerned a punishment issue rather than the affirmative
defense of insanity. [Cade] identifies nothing else in
[K_ A_]’s voir dire suggesting that he would elevate the burden
of proof regarding the insanity determination, and we find nothing
in our independent review.
Third, defense counsel asserted that [K_ A_]’s testimony
when questioned about his written response to Question
17 of the questionnaire showed that he would require any
evidence of remorse to come through [Cade]’s testimony.
Question 17 asked jurors what would be important to
(continued...)
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117(...continued)
them in deciding whether a person received a death
sentence rather than a life sentence in a capital-murder
case. In pertinent part, [K_ A_] indicated that a lack of
remorse would be significant to him.
The prosecutor informed [K_ A_] that a defendant has a
constitutional right not to testify and that if the defendant
elects not to testify, a juror may not hold that choice
against him. [K_ A_] stated that he could and would
follow the law. When defense counsel questioned [K_ A_],
counsel noted his mention of remorse in response to
Question 17. Defense counsel asked whether [K_ A_]
would require a defendant “to actually testify and say,
look, I’m sorry I did that, or something like that, in the
punishment stage?” [K_ A_] said that he would not, but
he struggled to explain:
[K_ A_]: No, I think the remorse would – I
don’t know if that’s a state of mind or it goes
along with like their moral [culpability]. I
think it’s, you know, like they have no feeling
when they do it, you know, like they are not
remorse[ful] about killing another human
being.
Defense counsel then suggested that a defendant’s
testimony might be the only way for him to provide
evidence of remorse:
[DEFENSE]: Okay. Do you see where I’m
coming from? To actually – I mean the way
we give information to each other is either
through, you know, some kind of gesture,
words, or writings.
[K_ A_]: Right, right, right. I guess –
(continued...)
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117(...continued)
[DEFENSE]: And, so, I guess my question is,
you know, how would you receive the
information about if a person was remorseful,
you know, if you didn’t require him to testify
or give you some information about remorse,
like I’m sorry or something?
[K_ A_]: I guess explaining through the act of
violence, I guess that would be –
[DEFENSE]: Are you saying that, during the
act of violence, they would have to say, I’m
sorry, or something like [that]?
[K_ A_]: No, just, or their mental, trying to
say their state of mind at the time of doing
the crime.
[DEFENSE]: Okay. I guess I’m confused. I
am totally confused in that sense.
[K_ A_]: I’m a little confused myself.
When defense counsel again asked [K_ A_] to explain how
one would know whether someone was remorseful or not,
[K_ A_] responded, “I guess through their actions, maybe
you could tell. I don’t know, if they were crying or I guess
however you could tell whether they are remorse[ful] or
not.”
It was within the trial court’s discretion to deny [Cade]’s
challenge for cause. The proponent of a cause-based
challenge must show that the challenge is proper and does
not meet this burden until, among other things, he
demonstrates that the law was explained to and
understood by the venire member. When the prosecutor
(continued...)
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of the entire record from K_ A_’s voir dire testimony.118 At no point during his voir
dire examination did K_ A_ suggest that he was unable to set aside his personal views
and decide Cade’s case based solely on the applicable law and the evidence presented
in court. On the contrary, as accurately reflected in the portion of the TCCA’s
opinion,119 K_ A_ indicated in his questionnaire responses and voir dire testimony
that he supported use of the death penalty but also recognized that in certain cases,
117(...continued)
explained a defendant’s constitutional right not to testify,
[K_ A_] stated that he could and would follow the law.
When defense counsel discussed the topic, it was in the
context of how jurors could ascertain whether a defendant
felt remorse. Defense counsel did not explain to [K_ A_]
that jurors could determine whether a defendant felt
remorse at the time of the offense by drawing reasonable
inferences from circumstantial evidence presented at trial.
Rather, it seems that counsel inaccurately implied through
his questions that only the defendant, by testifying, could
supply such evidence. Despite the apparent misdirection,
[K_ A_] evinced an understanding that circumstantial
evidence may provide a basis for inferring remorse. [Cade]
points to nothing in the record to show that [K_ A_] could
not or would not consider such circumstantial evidence, if
it were offered, or that he would require evidence of
remorse to come from [Cade] himself. Point of error
thirty-four is overruled.
Cade v. State, 2015 WL 832421, at *37-*39 (citations omitted).
118 The voir dire testimony of juror K_ A_ appears at 39 R.R. Trial [ECF
no. 69-39] 35-109.
119 See supra.
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life without parole “is the right result.”120 After the prosecution explained the Texas
capital sentencing process, he testified that he believed that process was fair.121 He
also promised to answer the capital sentencing issues based on the evidence and not
to give any “automatic” answers.122 After the prosecution explained that a defendant
has the right to choose not to testify, he testified that he would not hold the
defendant’s decision to not testify against the defendant.123 After the prosecution
explained the presumption of innocence and burden of proof was on the State to
prove all the elements of capital murder, he testified he understood same and would
take his oath seriously.124 He also testified during voir dire in response to questions
from the defense that, while he had answered his questionnaire by indicating that he
believed in “an eye for an eye,” after being informed of the nature of the Texas capital
sentencing scheme he no longer believed that was the case.125
120 39 R.R. Trial [ECF no. 69-39] 44-46.
121 Id. at 47-48.
122 Id. at 48-49, 67-70, 100. K_ A_ also promised to keep an open mind
and consider the entire range of potential punishment for the offense of ordinary
murder in the event the jury convicted Cade of a lesser-included offense. Id. at
49-53.
123 Id. at 53-54.
124 Id. at 55-58.
125 Id. at 89-91, 94-98.
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The TCCA assumed for the purpose of argument that Cade’s appellate
counsel’s characterization of K_ A_ as a “vacillating juror” was accurate, but held
that, in such instances, deference to the trial judge’s implicit credibility finding was
appropriate. For two, equally compelling reasons, the TCCA’s determination
regarding K_ A_’s lack of disqualifying bias is beyond reproach: first, unlike the
TCCA, this court’s independent review of the entire record from K_ A_’s voir dire
examination compels a finding that K_ A_ never vacillated in any legitimate regard
about his ability to follow applicable law and decide Cade’s case based upon the
evidence; second, the deference the TCCA applied to the state trial court’s implicit
credibility finding was reasonable.126
The deference the TCCA paid to the state trial court’s implicit factual finding
that K_ A_ possessed no disqualifying bias was both reasonable and fully supported
by the evidence before the TCCA during Cade’s direct appeal. Even under
pre-AEDPA case law, a state trial court’s ruling on the credibility of a potential juror
was entitled to special deference in a federal habeas corpus proceeding.127 Under
126 O’Bryan v. Estelle, 714 F.2d 365, 406 (5th Cir. 1983) (explaining that
specific fact findings and credibility determinations must be given deference under
§ 2254(d) because “the typed transcript cannot accurately reflect the all-too-typical
vacillating juror’s true feelings about the death penalty”), cert. denied sub nom. 465
U.S. 1013 (1984).
127 See, e.g., Patton, 467 U.S. at 1038 (recognizing a presumption of
correctness applies to a trial court’s factual findings (which are essentially credibility
determinations) regarding whether a venire member possessed disqualifying bias).
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AEDPA, specifically § 2254(e)(1), these implicit factual findings are presumed
correct.128
At no point during his voir dire examination did K_ A_ categorically or
unequivocally assert that he was unable to set aside his personal views and decide
Cade’s case based solely on the applicable law and the evidence presented in court.
Nor did K_ A_ testify in any manner implicitly suggesting that he would be unable to
set aside his personal views and decide Cade’s case, including answering the capital
sentencing special issues, based solely on the law and evidence. The record from
K_ A_’s voir dire examination fully supports the TCCA’s rejection on the merits of all
three arguments Cade’s trial counsel made in support of the challenge for cause to
venire member and future juror K_ A_. With regard to Cade’s arguments about
K_ A_’s views on the burden of proof on the insanity defense and the nature of
evidence sufficient to demonstrate remorse, the TCCA’s opinion on direct appeal
accurately described K_ A_’s voir dire testimony and reasonably concluded the state
trial court implicitly found no disqualifying bias. At best, K_ A_’s voir dire testimony
128 Wood, 558 U.S. at 293 (a determination of a factual issue made by a
state court is presumed correct and the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence); Chester v. Thaler, 666
F.3d 340, 348 (5th Cir.), pet. for rehearing and pet. for rehearing en banc denied, 671 F.3d
494 (5th Cir. 2011) (per curiam), cert. denied, 568 U.S. 978 (2012); Richards v.
Quarterman, 566 F.3d 553, 563 (5th Cir. 2009) (holding a state court’s factual
findings, including credibility determinations, are entitled to the presumption of
correctness under § 2254(e)(1)); Coleman v. Quarterman, 456 F.3d 537, 541 (5th Cir.
2006), cert. denied, 549 U.S. 1343 (2007).
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with regard to the burden of proof on the insanity defense and the type of evidence
needed to establish remorse shows he was vacillating on those two issues. Cade has
failed to present any clear and convincing evidence showing that either of the state
trial court’s implicit factual findings on those two topics (rejecting Cade’s assertion of
bias) were erroneous.
Cade’s reliance upon the Supreme Court’s holding in Morgan v. Illinois129 is
unpersuasive because that decision is inapposite to the facts in Cade’s case. Morgan
held merely that it was constitutional error for a state trial court to deny a defendant
the opportunity to conduct voir dire into whether a potential juror would
automatically vote to impose the death penalty in every case of capital murder.130
Morgan did not establish a new standard for evaluating the propriety of a challenge
for cause to a venire member in a capital case. Instead, the Supreme Court
reaffirmed its prior holdings that (1) the proper standard for determining when a
potential juror may be excused for cause is “whether the juror’s views would ‘prevent
or substantially impair the performance of his duties as a juror in accordance with his
instructions and oath[;]”131 (2) “a juror who in no case would vote for capital
punishment, regardless of his or her instructions, is not an impartial juror and must
129 504 U.S. 719 (1992).
130 See id. at 729-34.
131 Id. at 728 (quoting Witt, 469 U.S. at 424) (quoting Adams, 448 U.S. at
45)).
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be removed for cause[;]”132 and (3) a juror who would automatically vote for the
death penalty in every capital murder case will fail in good faith to consider the
aggravating and mitigating circumstances as the instructions require and must also be
excused for cause.133
The TCCA’s rejection on the merits during Cade’s direct appeal of Cade’s
complaints about the state trial court’s denial of his challenges for cause and the
alleged bias of juror K_ A_ was neither contrary to, nor involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of
the United States, nor resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in Cade’s trial and state
direct appeal proceedings. Under AEDPA, Cade’s third claim does not warrant
federal habeas corpus relief.
D. Intellectual Disability Claim
In his ninth claim in his second amended federal habeas petition, Cade argues
the Eighth Amendment forbids his execution because he is intellectually disabled.134
Cade did not assert that he is intellectually disabled in any state court until he
included that argument as his ninth claim in his first subsequent (second) state
132 Id. (noting the standard made “clear from Witt and Adams, [and] the
progeny of Witherspoon”).
133 Id. at 728-29 (citing Ross, 487 U.S. at 85).
134 ECF no. 127, 112-19.
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habeas application.135 The TCCA summarily dismissed Cade’s first subsequent state
habeas application pursuant to the Texas writ-abuse statute.136
Where the state courts failed to adjudicate a claim on the merits, possibly
because it was not fairly presented to the state courts or it was otherwise procedurally
defaulted, this court’s review of the unadjudicated claim is de novo.137
135 First Subsequent (Second) State Habeas Application, 111-19 [ECF no.
134-17, 283-99 of 794].
136 See Ex parte Cade, 2021 WL 1202479, at *2.
137 See Porter, 558 U.S. at 39 (de novo review of the allegedly deficient
performance of petitioner’s trial counsel was necessary because the state courts had
failed to address this prong of Strickland analysis); Rompilla, 545 U.S. at 390 (de novo
review of the prejudice prong of Strickland was required where the state courts rested
their rejection of an ineffective assistance claim on the deficient performance prong
and never addressed the issue of prejudice).
Although the parties dispute in their pleadings in this court whether Cade
procedurally defaulted on his intellectual disability claim, it is unnecessary for this
court to resolve that issue because Cade’s intellectual disability claim lacks arguable
merit. The Supreme Court has made clear that federal habeas courts may deny writs
of habeas corpus by engaging in de novo review when it is unclear whether AEDPA
deference applies because a federal habeas petitioner will not be entitled to a writ of
habeas corpus if his claim is rejected on de novo review. Berghuis v. Thompkins, 560
U.S. 370, 390 (2010). The Supreme Court has declined to address an issue of
procedural default and chosen, instead, to resolve a claim on the merits, holding that
an application for a writ of habeas corpus may be denied on the merits
notwithstanding a petitioner’s failure to exhaust in state court. See Bell, 543 U.S. at
451 n.3 (citing § 2254(b)(2)); Rhines, 544 U.S. at 277. This court has followed the
same procedure in disposing of multiple meritless claims which were also arguably
procedurally defaulted. See, e.g., Brewer v. Director, No. 2:15-CV-0050-Z-BR, 2021
WL 6845600, at *11 n.39 (N.D. Tex. Sept. 30, 2021) (Reno, M.J.), report and
recommendation accepted, 2022 WL 398414 (N.D. Tex. Feb. 8, 2022) (Kacsmaryk, J.),
COA denied, 66 F.4th 558 (5th Cir. 2023), cert. denied, __ U.S. __, 144 S. Ct. 354
(continued...)
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During his capital murder trial, Cade presented testimony from several
different mental health experts. None suggested Cade is intellectually disabled.138
Instead, all of the mental health experts who testified during Cade’s trial or initial
state habeas corpus proceeding stated that, based upon their evaluations of Cade (at
least by those who did evaluate him) and testing performed during Cade’s pretrial
detention by neuropsychologist Dr. Antoinette McGarrahan, Cade’s intellectual
functioning fell within the low average to borderline range. The record currently
before this court likewise includes no diagnosis or opinion from any mental health
expert expressing the view that Cade falls within the range of intellectual functioning
identifying him as intellectually disabled.
Here, Cade fails to present any records, affidavits, or other evidence showing
that he was ever referred for special education screening or special education services
during his years as a student. Cade’s academic records from his trial and state habeas
proceedings reveal that he earned a GPA of 1.93 in high school (which Cade now
137(...continued)
(2023); Broadnax v. Davis, 2019 WL 3302840, at *29 n.41 (N.D. Tex. July 23, 2019)
(Godbey, J.), COA granted, 813 Fed. Appx. 166 (5th Cir. 2020), aff’d sub nom. 987
F.3d 400 (5th Cir. 2021), cert. denied, __ U.S. __, 142 S. Ct. 859 (2022).
138 While the parties’ pleadings in both the state habeas court and this
court occasionally employ the terms “mental retardation” and “mentally retarded[,]”
this opinion uses the terms “intellectual disability” and “intellectually disabled” to
describe the identical phenomenon. See In re Cathey, 857 F.3d 221, 223 n.1 (5th Cir.
2017) (per curiam) (“The term ‘intellectual disability’ has replaced ‘mental
retardation.’”) (citing Brumfield v. Cain, 576 U.S. 305, 308 n.1 (2015)).
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insists was inflated) and ranked only 309 in his high school graduating class of 342.
But these statistics, standing alone, reveal little about Cade’s intellectual ability. The
same is true for Cade’s insistence that he earned a GPA of 1.64 while attending a
junior college after his high school graduation.
The record currently before this court reveals that Cade obtained a Texas
driver’s license and was carrying a forklift operator’s certificate at the time of his
arrest. Cade’s friend and former supervisor at one of Cade’s job sites testified at trial
that Cade was fully capable of learning the skills he needed to perform his work
duties and following instructions.139 Cade’s childhood friend and former high school
teammate testified Cade was well-liked by students and teachers alike on their high
school campus, and was decidedly popular and socially active in high school prior to
Cade being diagnosed with a spinal condition which prematurely ended Cade’s
once-promising football career.140
In Atkins v. Virginia,141 the United States Supreme Court concluded that the
execution of intellectually disabled persons failed to fulfill either of the two
justifications for capital punishment, i.e., retribution and deterrence, and held the
139 Testimony of James Kemp, 50 R.R. Trial [ECF no. 69-50] 56-67.
140 Testimony of Jason Shanks, 51 R.R. Trial [ECF no. 69-51] 12-31.
141 536 U.S. 304 (2002).
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Eighth Amendment forbids the execution of intellectually disabled persons.142 The
Supreme Court cited two clinical definitions of “mental retardation” with approval143
142 Id. at 318-21.
143 In Atkins, the Court identified two clinical definitions of “mentally
retarded” as follows:
The American Association on Mental Retardation (AAMR)
defines mental retardation as follows: “Mental retardation
refers to substantial limitations in present functioning. It
is characterized by significantly subaverage intellectual
functioning, existing concurrently with related limitations
in two or more of the following applicable adaptive skill
areas: communication, self-care, home living, social skills,
community use, self-direction, health and safety,
functional academics, leisure and work. Mental
retardation manifests before age 18.” Mental Retardation,
Definition, Classification, and Systems of Supports 5 (9th
ed. 1992).
The American Psychiatric Association’s definition is
similar. “The essential feature of Mental Retardation is
significantly subaverage general intellectual functioning
(Criterion A) that is accompanied by significant limitations
in adaptive functioning in at least two of the following skill
areas: communication, self-care, home living,
social/interpersonal skills, use of community resources,
self-direction, functional academic skills, work, leisure,
health and safety (Criterion B). The onset must occur
before age 18 years (Criterion C). Mental Retardation has
many different etiologies and may be seen as a final
common pathway of various pathological processes that
affect the functioning of the central nervous system.”
Diagnostic and Statistical Manual of Mental Disorders 41
(4th ed. 2000). “Mild mental retardation” is typically
used to describe people with an IQ of 50-55 to
approximately 70. Id., at 42-43.
(continued...)
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but, ultimately, left “‘to the State[s] the task of developing appropriate ways to
enforce the constitutional restriction upon their execution of sentences.’”144
Nonetheless, the Supreme Court recognizes that “an IQ between 70 and 75 or
lower” is “typically considered the cutoff IQ score for the intellectual function prong
of the mental retardation definition.”145 Thus, an IQ score of 75 is “squarely in the
range of potential intellectual disability.”146
With regard to the first prong of the Atkins analysis, i.e., establishing
significantly subaverage intellectual functioning, the Supreme Court has held that,
because of the imprecision inherent in IQ testing, a court must consider the standard
error of measurement (“SEM”) when assessing intellectual disability.147 In Moore v.
Texas (“Moore I”),148 the Supreme Court further restricted states’ ability to
143(...continued)
Id. at 308 n.3.
144 Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)). In
Bobby v. Bies, 556 U.S. 825, 831 (2009), the Supreme Court pointed out that Atkins
did not provide definitive procedural or substantive guides for determining “when a
person who claims intellectual disability will be so impaired as to “fall within Atkins’
compass.”
145 Brumfield, 576 U.S. at 315 (quoting Atkins, 536 U.S. at 309 n.5).
146 Id.; see also id. at 316.
147 See Hall v. Florida, 572 U.S. 701, 721-22 (2014).
148 581 U.S. 1 (2017) (“Moore I”).
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circumscribe the legal definition of “intellectual disability” holding that (1) a state’s
determination under Atkins must be guided by current medical standards, and
(2) states are not free to adopt criteria unsupported by medical science to evaluate a
defendant’s alleged subaverage intellectual functioning or deficits in adaptive skills.149
More specifically, the Supreme Court held the TCCA erred in applying a set of
non-clinical criteria known as the Briseno factors in evaluating a defendant’s claim of
intellectual disability because (1) some of the Briseno factors had implicitly been
rejected by the medical community (in part because they were based on outdated
stereotypes), and (2) all of the Briseno factors were little more than lay perceptions of
intellectual disability untethered to any clinical medical standard.150 Two years later,
in Moore v. Texas (“Moore II”),151 the Supreme Court again struck down as a violation
of the Eighth Amendment a new TCCA determination that Moore was intellectually
disabled, finding the TCCA had committed many of the same analytical errors
identified in Moore I.152
The only IQ test score identified by Cade as supporting his intellectual
disability claim was a full-scale score of 80 obtained by Dr. McGarrahan during
149 Id. at 11-20.
150 Id. at 15-20.
151 586 U.S. 133 (2019) (“Moore II”).
152 See id. at 135-42.
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Cade’s pretrial detention, when Cade was in his mid-thirties. Dr. McGarrahan
testified without contradiction at trial that there was a ninety-five percent probability
Cade’s actual IQ fell within the range of 76 to 84.153 Thus, Cade accurately alleges
that he has tested in the 76-80 range on a standardized IQ test. Other than his low
GPAs in high school and community college, however, Cade offers no firm factual
allegations showing that he demonstrated any deficits in adaptive behavior during his
developmental period.
The record demonstrates that Cade graduated from high school; obtained
admission to, and earned academic credits from, a community college; obtained a
Texas driver’s license; obtained gainful employment, including work as a forklift
operator after earning the necessary certification; and expressed in written journal
entries (from the notebook found at the crime scene) his unwillingness to accept
responsibility for his criminal conduct and his disdain for Fuller’s ex-husband. The
affidavits of Cade’s high school football coaches suggesting that Cade had difficulty
learning football plays are unpersuasive to show Cade’s alleged intellectual ability fell
significantly below the average. When directly asked, Dr. McGarrahan, Dr. Kessner, Dr.
Silverman, and all of Cade’s other mental health professionals who testified at trial or during
153 Testimony of Dr. Antoinette McGarrahan, 47 R.R. Trial [ECF no.
69-47] 18-20, 92-95, 102. Dr. McGarrahan also testified that Cade’s academic
records showed that he earned fourteen hours of college credit at Ranger College,
albeit with a GPA of 1.64. Id. at 123.
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Cade’s initial state habeas proceeding, consistently denied that Cade is intellectually disabled.
The only full-scale IQ test score obtained by a neuropsychologist and purporting to
definitively measure Cade’s level of intellectual functioning identified in the
voluminous evidence now before this court is a score of 80, which is within a second
SEM of the top-level cut-off for a diagnosis of intellectual disability. Cade offers no
evidence or analysis of the possible impact of the so-called Flynn factor on his test
score of 80. Under such circumstances, Cade has failed to allege specific facts which
satisfy the first prong of Atkins, i.e., he has failed to establish that he displays
significantly subaverage intellectual functioning. Nor has Cade alleged specific facts
establishing that he has ever convinced a qualified mental health expert that he has
demonstrated significant limitations in adaptive functioning in at least two of the
following skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work,
leisure, health, and safety.
Cade’s intellectual disability claim lacks arguable merit. His IQ test score of
80 does not reach into the upper range of intellectual disability, even when
considering the SEM. He offers no support for his claim from any qualified mental
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health expert.154 Under a de novo standard of review, Cade’s ninth claim in his second
amended federal habeas petition does not warrant federal habeas corpus relief.
E. Insufficient Evidence of Future Dangerousness
In his thirteenth claim in his second amended federal habeas petition, Cade
argues there was legally insufficient evidence to support the jury’s affirmative answer
to the future dangerousness special issue.155 Cade asserted an insufficient evidence
claim as his fifteenth point of error on direct appeal, challenging the sufficiency of the
evidence supporting the jury’s affirmative answer to the future dangerousness special
issue.156 The TCCA rejected this argument on the merits when it affirmed Cade’s
conviction and sentence.157
In Jackson v. Virginia,158 the Supreme Court declared the proper standard for
evaluating the sufficiency of the evidence to support a criminal conviction is
“‘whether, after viewing the evidence in the light most favorable to the prosecution,
154 See Green v. Davis, 414 F. Supp. 3d 892, 912-13 (N.D. Tex. 2019)
(Lynn, C.J.) (state court reasonably rejected Atkins claim on the merits where
petitioner presented an IQ test score of 78 but no expert opinion diagnosing
petitioner with intellectual disability), aff’d sub nom. 860 Fed. Appx. 930 (5th Cir.
2021) (per curiam), cert. denied, __ U.S. __, 142 S. Ct. 1234 (2022).
155 ECF no. 127, 146-48.
156 Appellant’s Brief [ECF no. 68-17] 80-82.
157 Cade v. State, 2015 WL 832421, at *6-*8.
158 443 U.S. 307 (1979).
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any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.’”159 “Under Jackson, federal courts must look to state law for ‘the
substantive elements of the criminal offense,’ but the minimum amount of evidence
that the Due Process Clause requires to prove the offense is purely a matter of federal
law.”160
On direct appeal, the TCCA carefully reviewed the entire record from Cade’s
capital murder trial and found the evidence, when viewed in the light most favorable
to the jury’s verdict, showed (1) the undisputed details of Cade’s capital offense were
“brutal[ ] and deprav[ed];” (2) the prosecution’s punishment phase evidence
established that Cade had engaged in an escalating pattern of violence starting when
he was a juvenile and culminating in his murders of Fuller and Desaree; and (3) Cade
admitted that he sexually assaulted Fuller after stabbing her and while both Fuller
and Desaree were conscious.161 This court has undertaken a careful review of the
159 Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson, 443 U.S. at
319) (emphasis in the original, citation omitted)).
160 Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 443 U.S.
at 324 n.16).
161 See Cade v. State, 2015 WL 832421, at *6 (“Here, the evidence showed
that [Cade] stabbed Fuller twenty-eight times and Desaree thirty-nine times, using
great force to inflict deep, painful wounds. By [Cade]’s own estimate, Fuller and
Desaree both had between thirty and forty minutes to experience the pain and terror
of his attack before they died. For Fuller, this interval included a vaginal and anal
sexual assault while she was dying but still conscious and able to experience pain and
fear. While sexually assaulting Fuller, [Cade] was aware that Desaree was still alive,
(continued...)
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entire record from Cade’s trial. Each of the TCCA’s foregoing factual determinations
is fully supported by the trial record.
Furthermore, this court has also carefully reviewed the recordings from Cade’s
post-arrest interviews by police and Cade’s notebooks left at the crime scene in which
he described his emotional state before, during, and after his capital offense. While
Cade’s trial counsel and federal habeas counsel characterize the contents of Cade’s
post-arrest interviews and post-murder writings as some evidence that Cade was
remorseful for his actions, no rational juror could construe Cade’s statements as
anything other than an attempt to cast blame on Fuller and her ex-husband for
Cade’s assaults on Fuller and Desaree.
The extreme level of violence involved in Cade’s knife attacks on Fuller and
Desaree were also sufficient to support the jury’s affirmative answer to the future
dangerousness special issue. Cade stabbed his victims dozens of times with great
force. Then he sexually assaulted Fuller as she bled to death but while she was still
conscious and while Desaree also was conscious.
The TCCA’s on-the-merits rejection on direct appeal of Cade’s attack on the
sufficiency the evidence supporting the jury’s affirmative answer to the future
dangerousness special issue was neither contrary to, nor involved an unreasonable
161(...continued)
within close proximity of her mother's ongoing sexual assault, and sufficiently
conscious to speak.”).
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application of, clearly established federal law, as determined by the Supreme Court of
the United States, nor resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in Cade’s trial and state
direct appeal proceedings. Under AEDPA, Cade’s thirteenth claim does not warrant
federal habeas corpus relief.
F. Mitigating Evidence Instruction
In his seventeenth claim in his second amended federal habeas petition, Cade
argues that the Texas statutory definition of mitigating circumstance or mitigating
evidence is unconstitutionally narrow because it limits the jury’s consideration to
evidence which reduces the defendant’s moral blameworthiness.162 Cade presented a
substantially similar argument as point of error thirty-seven in his appellant’s brief.163
The TCCA rejected this argument on the merits in its opinion affirming Cade’s
conviction and sentence on direct appeal.164 Cade re-urged essentially the same
argument as his thirteenth claim in his initial state habeas application.165 The state
habeas trial court concluded the claim was without merit and recommended it be
162 ECF no. 127, 247-50.
163 Appellant’s Brief 128-30 [ECF no. 68-17] 151-53.
164 See Cade v. State, 2015 WL 832421, at *41.
165 Initial State Habeas Application 121-26 [ECF no. 71-4, 124-29].
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denied.166 The TCCA expressly adopted the trial court’s findings and conclusions
and denied this claim on the merits when it denied Cade’s initial state habeas
application.
The standard for evaluating the constitutionality of a capital sentencing jury
charge is whether “there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consideration of constitutionally
relevant evidence.”167
Article 37.071, § 2(f)(4), of the Texas Code of Criminal Procedure directs a
trial court to instruct a capital sentencing jury that it “shall consider mitigating
evidence to be evidence that a juror might regard as reducing the defendant’s moral
blameworthiness.” At the punishment phase of his capital murder trial, Cade’s trial
court instructed his capital sentencing jury in precisely this manner.168 Furthermore,
the state trial court also instructed Cade’s jury at the punishment phase of trial as
follows: “In determining your answers to the special issues, you shall consider all the
evidence admitted in this whole trial, which includes that phase of the trial wherein
you were called upon to determine the guilt or innocence of the defendant, and this
166 FFCL, pp. 94-96, ¶¶ 520-28 [ECF no. 71-2, 733-35].
167 Boyde v. California, 494 U.S. 370, 380 (1990); see also Sprouse v.
Stephens, 748 F.3d 609, 618-19 (5th Cir.), cert. denied, 574 U.S. 993 (2014).
168 ECF no. 68-5, 417: “In arriving at your answer [to Special Issue no. 2],
you shall consider mitigating evidence to be evidence that a juror might regard as
reducing the defendant’s moral blameworthiness.”
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punishment phase of the trial wherein you are now called upon to determine the
answers to the special issues submitted to you by the Court.”169
Cade does not identify with any reasonable degree of specificity any evidence
actually before his capital sentencing jury which his capital sentencing jury was
unable to consider adequately or unable to give mitigating effect based upon the
foregoing “allegedly narrow” definition of mitigating evidence contained in his
punishment phase jury charge. On the contrary, the state trial court expressly
instructed his jury, in answering both the special issues, to consider “all of the
evidence,” including evidence from both phases of trial. The punishment phase
verdict form instructed Cade’s jury that, when answering the mitigation special issue
to consider “all of the evidence, including the circumstances of the offense, the
defendant’s character and background, and the personal moral culpability of the
defendant . . . .”170
The court is to presume that juries follow their instructions.171 There is no
reasonable likelihood Cade’s capital sentencing jury considered itself unable to
consider or give mitigating effect to any of the evidence properly before it at the
punishment phase of his capital murder trial.
169 Id. at 418.
170 Id. at 429.
171 Zafiro v. United States, 506 U.S. 534, 540 (1993) (citation omitted).
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Cade argues that the term mitigating evidence employed in the Texas capital
sentencing scheme’s mitigation special issue is unconstitutionally narrow in that it
requires a nexus to the capital offense.172 Cade relies primarily upon the Supreme
Court’s holding in Tennard v. Dretke,173 a decision which applied the Supreme Court’s
holding in Penry II,174 to a capital murder defendant with a low IQ. Tennard was
tried before the Texas Legislature enacted amendments to the capital sentencing
statute mandating submission of the current mitigation special issue at the
punishment phase of capital murder trials. Thus, the Supreme Court’s opinion in
Tennard was a straightforward application of its prior holding in Penry II. Tennard
does not purport to address the definition of “mitigating evidence” or “mitigating
circumstance” as those terms are employed in the Texas capital sentencing statute’s
mitigation special issue.
In the years since the Supreme Court decided Tennard, the Fifth Circuit has
expressly and repeatedly rejected the same argument raised by Cade in this portion of
his seventeenth claim for federal habeas relief, i.e., that the definition of mitigating
evidence or mitigating circumstance furnished by Texas law is unconstitutionally
narrow because it focuses the jury’s attention on evidence reducing the defendant’s
172 ECF no. 127, 248-49.
173 542 U.S. 274 (2004).
174 532 U.S. 782 (2001).
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moral blameworthiness.175 The Fifth Circuit has also repeatedly rejected numerous
related arguments suggesting the Texas capital sentencing scheme’s definition of
“mitigation” is too narrow.176
175 See, e.g., Rhoades v. Davis, 914 F.3d 357, 367 (5th Cir.) (“This court has
never accepted that it is unconstitutional to define mitigating evidence as evidence
that reduces moral blameworthiness.”) (citation omitted), cert. denied, 589 U.S. 956
(2019); Hummel v. Davis, 908 F.3d 987, 994 (5th Cir. 2018) (rejecting the argument
that the Texas capital sentencing special issue unconstitutionally limits a jury’s ability
to consider mitigating evidence that goes beyond the defendant’s moral
blameworthiness), cert. denied, 589 U.S. 930 (2019); Rockwell v. Davis, 853 F.3d 758,
763 (5th Cir.), cert. denied, 583 U.S. 882 (2017); Sprouse, 748 F.3d at 622 (noting the
Fifth Circuit has repeatedly rejected this same constitutional challenge to the
allegedly narrow construction of the mitigation special issue when viewed in
conjunction with the future dangerousness special issue); Blue v. Thaler, 665 F.3d
647, 667 (5th Cir. 2011) (rejecting the argument that Supreme Court precedent
requires a definition of mitigating evidence that includes something more than
evidence which reduces a defendant’s moral blameworthiness), cert. denied, 568 U.S.
828 (2012).
176 See, e.g., Sprouse, 748 F.3d at 622-23 (denying a COA on the same
issue); Blue, 665 F.3d at 665-66 (“[A]rticle 37.071 ‘does not unconstitutionally
‘preclude the jury from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that the defendant
proffers as a basis’” for a life sentence.) (emphasis in the original) (quoting Beazley v.
Johnson, 242 F.3d 248, 260 (5th Cir.), cert. denied sub nom. 534 U.S. 945 (2001)
(quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978))); Beazley, 242 F.3d at 260 (“The
definition of mitigating evidence does not limit the evidence considered under the
third special issue (whether mitigating circumstances warrant a life, rather than a
death, sentence). ‘[V]irtually any mitigating evidence is capable of being viewed as
having some bearing on the defendant’s ‘moral culpability’ apart from its relevance to
the particular concerns embodied in the Texas special issues’.”) (emphasis in the
original) (quoting Graham v. Collins, 506 U.S. 461 (1993)). Cade fails to distinguish
this line of Fifth Circuit authority rejecting his argument that the Texas definition of
mitigating evidence is unconstitutionally narrow. For that reason, his seventeenth
claim for federal habeas relief violates Rule 11. Williams v. Lumpkin, 339 F.R.D. 383,
389-90 (N.D. Tex. 2021) (Godbey, J.) (legal arguments which ignore the existence of
(continued...)
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Furthermore, the Supreme Court has consistently used the term “relevant
mitigating evidence” to describe evidence which, by its very nature, tends to diminish
a convicted capital murder defendant’s moral blameworthiness or lessen the
reprehensible nature of the offense – i.e., evidence which relates to the defendant’s
character or background or to the circumstances of the offense.177 Cade does not
identify any Supreme Court opinion to date which purports to require that a capital
sentencing jury give “mitigating” consideration to any evidence or circumstance
wholly unrelated to a defendant’s moral blameworthiness or personal moral
culpability.
Finally, Respondent correctly points out that insofar as Cade argues in favor of
a definition of “mitigating evidence” or “mitigating circumstances” that goes beyond
evidence which reduces a defendant’s moral blameworthiness, Cade’s claim runs afoul
of the nonretroactivity doctrine announced in Teague v. Lane,178 which forecloses
176(...continued)
long-standing Circuit precedent fail to (1) present a good faith effort to distinguish
adverse existing case law or (2) furnish a rational argument for “extending, modifying,
or reversing existing law or for establishing new law.”).
177 See, e.g., Brewer v. Quarterman, 550 U.S. 286, 293-96 (2007)
(depression, troubled childhood, substance abuse); Abdul-Kabir v. Quarterman, 550
U.S. 233, 259 (2007) (childhood deprivation and lack of self-control); Tennard, 542
at 283-88 (low intellectual functioning); Penry II, 532 U.S. at 796-804 (“mental
retardation” and history of childhood abuse); Lockett, 438 U.S. at 604-05, 608 (lack
of intent to kill, relatively minor role in the offense, and age).
178 489 U.S. 288 (1989).
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adoption of the new principles of federal constitutional criminal procedure in federal
habeas corpus proceedings. Under the holding in Teague, federal courts are generally
barred from applying new constitutional rules of criminal procedure retroactively on
collateral review.179 A “new rule” for Teague purposes is one not dictated by
precedent existing at the time the defendant’s conviction became final.180 Under this
doctrine, unless reasonable jurists hearing the defendant’s claim at the time his
conviction became final would have felt compelled by existing precedent to rule in his
favor, a federal habeas court is barred from doing so on collateral review.181 A
conviction becomes final for Teague purposes when either the United States Supreme
179 Caspari v. Bohlen, 510 U.S. 383, 389-90 (1994).
180 Before a state prisoner may upset his state
conviction or sentence on federal collateral
review, he must demonstrate as a threshold
matter that the court-made rule of which he
seeks the benefit is not “new.” We have
stated variously the formula for determining
when a rule is new. See, e.g., Graham v.
Collins, 506 U.S. 461, 467 [] (1993) (“A
holding constitutes a ‘new rule’ within the
meaning of Teague if it ‘breaks new ground,’
‘imposes a new obligation on the States or the
Federal Government,’ or was not ‘dictated by
precedent existing at the time the defendant's
conviction became final’ ”) (quoting Teague,
489 U.S. at 301[]) (emphasis in original).
O’Dell v. Netherland, 521 U.S. 151, 156 (1997).
181 Id.
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Court denies a certiorari petition on the defendant’s direct appeal or the time period
for filing a certiorari petition expires.182 Cade’s conviction became final for Teague
purposes no later than January 19, 2016, i.e., the date the United States Supreme
Court denied Cade’s certiorari petition on direct appeal.183
Teague remains applicable after the passage of AEDPA.184 As of the date Cade’s
conviction and sentence became final for Teague purposes, no federal court had ever
held a Texas capital sentencing jury was constitutionally required to consider as
“mitigating” any evidence or circumstance which did not bear on the defendant’s
personal moral culpability or moral blameworthiness. Likewise, as of the same date,
no federal court had ever held that a Texas trial court was required to instruct a
capital sentencing jury to consider as “mitigating” any evidence or circumstances that
were unrelated to the defendant’s character, background, or personal moral
culpability, i.e., the defendant’s personal moral blameworthiness. Thus, in addition
182 Caspari, 510 U.S. at 390.
183 See Beard v. Banks, 542 U.S. 406, 411-12 (2004); Caspari, 510 U.S. at
390 (“A state conviction and sentence become final for purposes of retroactivity
analysis when the availability of direct appeal to the state courts has been exhausted
and the time for filing a petition for a writ of certiorari has elapsed or a timely filed
petition has been finally denied.”).
184 See Horn v. Banks, 536 U.S. 266, 268-72 (2002) (applying Teague in an
AEDPA context); Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir.) (recognizing the
continued vitality of the Teague nonretroactivity doctrine under AEDPA), cert. denied,
539 U.S. 979 (2003).
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to being without arguable merit, the new rule advocated by Cade in his seventeenth
claim is also foreclosed by the holding in Teague.
The TCCA’s denials, both on direct appeal and in Cade’s initial state habeas
proceeding, of Cade’s challenges to the statutory definition of mitigating evidence in
the Texas capital sentencing statute were neither contrary to, nor involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, nor resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in Cade’s
trial, state direct appeal, and initial state habeas proceedings. Under AEDPA, Cade’s
seventeenth claim does not warrant federal habeas corpus relief. Alternatively, Cade’s
seventeenth claim is foreclosed by Teague.
G. Future Dangerousness Special Issue
In his sixteenth claim in his second amended federal habeas petition, Cade
argues that the Texas capital sentencing statute’s future dangerousness special issue is
unconstitutionally vague (1) under the Eighth Amendment because of the lack of
definitions of multiple key terms and (2) because of the Supreme Court’s holdings in
Johnson v. United States,185 Sessions v. Dimaya,186 and United States v. Davis.187 Cade
185 576 U.S. 591 (2015).
186 584 U.S. 148 (2018).
187 588 U.S. 445 (2019).
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raised the first portion of this constitutional challenge to the future dangerousness
special issue as his forty-third point of error in his appellant’s brief.188 The TCCA
denied this point of error on the merits when it affirmed Cade’s conviction and
sentence on direct appeal.189 Cade re-urged the same basic argument in his fifteenth
claim in his initial state habeas application.190 The state habeas trial court noted that
the claim had been rejected on the merits on direct appeal before rejecting it on the
merits and recommending denial.191 The TCCA expressly adopted the trial court’s
findings and conclusions when it denied Cade’s initial state habeas application.192
Cade presented the state courts with his vagueness arguments premised on the
Supreme Court’s holdings in Johnson, Dimaya, and Davis as his twenty-first claim in
his first subsequent (second) state habeas application.193 The TCCA summarily
dismissed this claim when it dismissed Cade’s first subsequent (second) state habeas
application.194
188 Appellant’s Brief 137-40 [ECF no. 68-17, 160-63].
189 Cade v. State, 2015 WL 832421, at *41.
190 Initial State Habeas Application 136-40 [ECF no. 71-4, 139-43].
191 FFCL, pp. 97-98, ¶¶ 539-43 [ECF no. 71-9, 736-37].
192 Ex parte Cade, 2017 WL 4803802, at *3.
193 First Subsequent (Second) State Habeas Application 294-311 [ECF no.
134-17, 649-83].
194 Ex parte Cade, 2021 WL 1202479, at *2.
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“The Constitution allows capital punishment.”195 The manner in which the
Supreme Court has analyzed the constitutionality of the Texas capital sentencing
scheme under the Eighth Amendment has evolved over time. In Furman v. Georgia,196
the Supreme Court struck down capital sentencing schemes in several southern
states, including Texas, but failed to reach any degree of consensus in terms of an
analytical approach to the Eighth Amendment. Four years later, the Supreme Court
upheld the capital scheme adopted by the Texas Legislature in response to Furman.197
More specifically, the Supreme Court held the Texas statutory scheme “‘limits the
circumstances under which the State could seek the death penalty to a small group of
narrowly defined and particularly brutal offenses.’”198 In answering the Texas capital
sentencing special issues, a jury was permitted to consider any mitigating evidence
the defendant wished to present.199 In sum, the new Texas system constitutionally
narrowed the circumstances under which the defendant could be found guilty of
capital murder and focused the jury’s objective consideration on the particularized
195 Bucklew v. Precythe, 587 U.S. 119, 129 (2019).
196 408 U.S. 238 (1972).
197 See Jurek v. Texas, 428 U.S. 262, 268 (1976) (holding imposition of the
death penalty does not per se violate the Eighth Amendment’s proscription on “cruel
and unusual punishment”).
198 Id. at 270 (quoting Jurek v. State, 522 S.W.2d 934, 939 (Tex. Crim. App.
1975).
199 Id. at 271-74.
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circumstances of the individualized offense and individualized offender before
imposing a sentence of death.200
In Boyde v. California,201 the Supreme Court settled on a single standard for
reviewing the adequacy of jury instructions in a capital sentencing proceeding:
We think the proper inquiry in such a case is whether
there is a reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.
Although a defendant need not establish that the jury was
more likely than not to have been impermissibly inhibited
by the instruction, a capital sentencing proceeding is not
inconsistent with the Eighth Amendment if there is only a
possibility of such an inhibition. This “reasonable
likelihood” standard, we think, better accommodates the
concerns of finality and accuracy than does a standard
which makes the inquiry dependent on how a single
hypothetical “reasonable” juror could or might have
interpreted the instruction. There is, of course, a strong
policy in favor of accurate determination of the appropriate
sentence in a capital case, but there is an equally strong
policy against retrials years after the first trial where the
claimed error amounts to no more than speculation. Jurors
do not sit in solitary isolation booths parsing instructions
for subtle shades of meaning in the same way that lawyers
might. Differences among them in interpretation of
instructions may be thrashed out in the deliberative
process, with commonsense understanding of the
instructions in the light of all that has taken place at the
trial likely to prevail over technical hairsplitting.202
200 Id. at 273-74.
201 494 U.S. 370 (1990).
202 Id. at 380-381 (footnote omitted).
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And in Tuilaepa v. California,203 the Supreme Court clarified that the Eighth
Amendment addresses two different, but related, aspects of capital sentencing: the
eligibility decision and the selection decision:
To be eligible for the death penalty, the defendant must be
convicted of a crime for which the death penalty is a
proportionate punishment. To render a defendant eligible
for the death penalty in a homicide case, we have indicated
that the trier of fact must convict the defendant of murder
and find one “aggravating circumstance” (or its equivalent)
at either the guilt or penalty phase. The aggravating
circumstance may be contained in the definition of the
crime or in a separate sentencing factor (or in both). As we
have explained, the aggravating circumstance must meet
two requirements. First, the circumstance may not apply
to every defendant convicted of a murder; it must apply
only to a subclass of defendants convicted of murder.
Second, the aggravating circumstance may not be
unconstitutionally vague.
* * *
We have imposed a separate requirement for the selection
decision, where the sentencer determines whether a
defendant eligible for the death penalty should in fact
receive that sentence. “What is important at the selection
stage is an individualized determination on the basis of the
character of the individual and the circumstances of the
crime.” That requirement is met when the jury can
consider relevant mitigating evidence of the character and
record of the defendant and the circumstances of the
crime.204
203 512 U.S. 967 (1994).
204 Id. at 971-73 (emphasis in the original, citations omitted).
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Thus, the Supreme Court declared its view that “the States may adopt capital
sentencing procedures which rely upon the jury, in its sound judgment, to exercise
wide discretion.”205 The Supreme Court also concluded, at the selection stage, “the
States are not confined to submitting to the jury specific propositional questions”
but, rather, may direct the jury to consider a wide range of broadly-defined factors,
“such as ‘the circumstances of the crime’ or ‘the background of the defendant[,]’” and
“‘all facts and circumstances presented in extenuation, mitigation, and aggravation of
punishment[.]’”206
In Loving v. United States,207 the Supreme Court described the first part of the
Tuilaepa analysis, i.e., the eligibility decision, as follows:
The Eighth Amendment requires, among other things, that
“a capital sentencing scheme must ‘genuinely narrow the
class of persons eligible for the death penalty and must
reasonably justify the imposition of a more severe sentence
on the defendant compared to others found guilty of
murder.’” Some schemes accomplish that narrowing by
requiring that the sentencer find at least one aggravating
circumstance. The narrowing may also be achieved,
however, in the definition of the capital offense, in which
circumstance the requirement that the sentencer “find the
205 Id. at 974.
206 Id. at 978 (citations omitted).
207 517 U.S. 748 (1996).
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existence of an aggravating circumstance in addition is no
part of the constitutionally required narrowing process.”208
The Supreme Court subsequently elaborated on the distinction between the
narrowing function or “eligibility decision” and the “selection phase” of a capital
sentencing proceeding in Buchanan v. Angelone:209
In the eligibility phase, the jury narrows the class of
defendants eligible for the death penalty, often through
consideration of aggravating circumstances. In the
selection phase, the jury determines whether to impose a
death sentence on an eligible defendant. Petitioner
concedes that it is only the selection phase that is at stake
in his case. He argues, however, that our decisions indicate
that the jury at the selection phase must both have
discretion to make an individualized determination and
have that discretion limited and channeled. He further
argues that the Eighth Amendment therefore requires the
court to instruct the jury on its obligation and authority to
consider mitigating evidence, and on particular mitigating
factors deemed relevant by the State.
No such rule has ever been adopted by this Court. While
petitioner appropriately recognizes the distinction between
the eligibility and selection phases, he fails to distinguish
the differing constitutional treatment we have accorded
those two aspects of capital sentencing. It is in regard to
the eligibility phase that we have stressed the need for
channeling and limiting the jury’s discretion to ensure that
the death penalty is a proportionate punishment and
therefore not arbitrary or capricious in its imposition. In
contrast, in the selection phase, we have emphasized the
need for a broad inquiry into all relevant mitigating
evidence to allow an individualized determination.
208 Id. at 755 (citations omitted).
209 522 U.S. 269 (1998).
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In the selection phase, our cases have established that the
sentencer may not be precluded from considering, and may
not refuse to consider, any constitutionally relevant
mitigating evidence. However, the state may shape and
structure the jury’s consideration of mitigation so long as it
does not preclude the jury from giving effect to any
relevant mitigating evidence. Our consistent concern has
been that restrictions on the jury’s sentencing
determination not preclude the jury from being able to give
effect to mitigating evidence.
* * *
But we have never gone further and held that the state
must affirmatively structure in a particular way the manner
in which juries consider mitigating evidence. And indeed,
our decisions suggest that complete jury discretion is
constitutionally permissible.210
The Fifth Circuit has repeatedly rejected challenges to the key terms in the
Texas capital sentencing statute’s future dangerousness special issue identified by
Cade as allegedly unconstitutionally vague.211 All of the key terms in Cade’s
210 Id. at 275-77 (citations omitted).
211 See, e.g., Sprouse, 748 F.3d at 622-23 (denying a COA on complaints
about the lack of definitions of “‘probability,’ ‘criminal acts of violence,’ and
‘continuing threat to society’” in a Texas capital sentencing jury charge); Paredes v.
Quarterman, 574 F.3d 281, 294 (5th Cir. 2009) (per curiam) (holding the terms
“probability,” “criminal acts of violence,” and “continuing threat to society” “‘have a
plain meaning of sufficient content that the discretion left to the jury is no more than
that inherent in the jury system itself’”) (quoting Milton v. Procunier, 744 F.2d 1091,
1095-96 (5th Cir. 1984), cert. denied, 471 U.S. 1030 (1985)), aff’d sub nom. 617 F.3d
315 (5th Cir. 2010), cert. denied, 562 U.S. 1203 (2011); Turner v. Quarterman, 481
F.3d 292, 299-300 (5th Cir.) (rejecting claims that the terms “probability,” “criminal
acts of violence,” and “continuing threat to society” were so vague as to preclude a
capital sentencing jury’s consideration of mitigating evidence), cert. denied, 551 U.S.
(continued...)
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punishment phase jury charge about which he complains in his sixteenth claim have a
common understanding in the sense that they ultimately mean what the jury says by
their final verdict they mean and do not require further definition.212 Thus, Cade’s
constitutional complaints about the trial court’s failure to define the terms
“probability,” “criminal acts of violence,” and “continuing threat to society” have
repeatedly been rejected by the Fifth Circuit.
The constitutional standard for evaluating the propriety of a capital sentencing
jury charge is set forth in Boyde, in which the Supreme Court held the test for
determining whether jury instructions satisfy the Constitution is “whether there is a
reasonable likelihood that the jury has applied the challenged instruction in a way
that prevents the consideration of constitutionally relevant evidence.”213 Cade
211(...continued)
1193 (2007); Leal v. Dretke, 428 F.3d 543, 553 (5th Cir. 2005) (listing numerous
Fifth Circuit opinions rejecting complaints about the failure of Texas courts to define
the terms “probability,” “criminal acts of violence,” and “continuing threat to
society”), cert. denied, 547 U.S. 1073 (2006). All of the key terms in Cade’s
punishment phase jury charge about which he complains in his sixteenth claim have a
common understanding in the sense that they ultimately mean what the jury says by
their final verdict they mean and do not require further definition. James v. Collins,
987 F.2d 1116, 1120 (5th Cir.), cert. denied, 509 U.S. 947 (1993); Milton, 744 F.2d
at 1096. Cade’s constitutional complaints about the trial court’s failure to define the
terms “probability,” “criminal acts of violence,” and “continuing threat to society”
have repeatedly been rejected by the Fifth Circuit.
212 See James, 987 F.2d at 1120; Milton, 744 F.2d at 1096.
213 Johnson v. Texas, 509 U.S. 350, 367-68 (1993) (quoting Boyde, 494 U.S.
at 380).
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identifies no potentially mitigating evidence before the jury at the punishment phase
of his trial which he contends the jury was unable to properly consider in answering
one or more of the Texas capital sentencing special issues because of the lack of
definitions of the terms “personal moral culpability,” “moral blameworthiness,” or
“mitigating circumstances.”214 Cade’s complaints about the lack of definitions of key
terms and alleged vagueness in the Texas capital sentencing special issues and his
punishment phase jury charge are without merit.
The TCCA’s rejections on the merits during Cade’s direct appeal and initial
state habeas proceedings of his complaints about the lack of definitions of key terms
in the future dangerousness special issue were neither contrary to, nor involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, nor resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in Cade’s
trial and direct appeal. Cade’s sixteenth claim does not warrant federal habeas corpus
relief.
Cade further argues the Texas future dangerousness special issue is
unconstitutionally vague under due process principles for the same reasons the
Supreme Court struck down the residual clause of the federal Armed Career Criminal
214 See Blue, 665 F.3d at 665-66; Beazley, 242 F.3d at 260.
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Act of 1984 (“ACCA”) in Johnson v. United States,215 and subsequent Supreme Court
decisions construing its earlier holding in Johnson, including Dimaya and Davis.
Cade’s analogy to this line of cases is unpersuasive.
In Johnson, the Supreme Court reversed a long line of its own decisions
construing the ACCA’s residual clause and declared that clause unconstitutionally
vague under the Fifth Amendment’s Due Process Clause.216 While federal law
forbade certain individuals, including convicted felons, from shipping, possessing, or
receiving firearms, the Court confronted statutory language which mandated a higher
minimum and maximum sentence for an individual convicted of violating the ACCA
if that person had three or more prior convictions for a “serious drug offense” or a
“violent felony.”217
215 576 U.S. 591 (2015).
216 Id. at 606.
217 Id. at 593.
The ACCA define[d] ‘violent felony’ as
follows:
“any crime punishable by imprisonment for a
term exceeding one year . . .that –
“(i) has as an element the use, attempted use,
or threatened use of physical force against the
person of another; or
“(ii) is burglary, arson, or extortion, involves
(continued...)
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The Johnson Court recognized the difficulty that court and other federal
appellate courts had experienced attempting to consistently construe the statute’s
residual clause.218 That problem was exacerbated dramatically by the Supreme
Court’s application of the “categorical approach” chosen by the Supreme Court in
Taylor v. United States,219 as its preferred method for determining whether an offense
qualified as a “violent felony” under the ACCA’s residual clause. Under this
approach, a federal sentencing court “assesses whether a crime qualifies as a violent
felony ‘in terms of how the law defines the offense and not in terms of how an
individual offender might have committed it on a particular occasion.’”220 The
Supreme Court concluded that, as viewed through the lens of the categorical
approach, the ACCA’s residual clause suffered from two defects: first, it deprived
217(...continued)
use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical
injury to another.” § 924(e)(2)(B) (emphasis
added).
The closing words of this definition, italicized
above, have come to be known as the
[ACCA]’s residual clause.
Id. at 593-94.
218 See id. at 594-601.
219 495 U.S. 575, 600 (1990).
220 Johnson, 576 U.S. at 596 (quoting Begay v. United States, 553 U.S. 137,
141 (2008)).
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defendants of fair notice; and second, it invited arbitrary enforcement by judges.221
More specifically, application of the categorical approach resulted in uncertainty with
regard to (1) how to estimate the risk posed by a crime, and (2) how much risk it
takes for a crime to qualify as a violent felony.222 Accordingly, the Supreme Court
struck down the ACCA’s residual clause as unconstitutionally vague because of the
difficulty the federal courts had experienced in applying the clause in a consistent and
even-handed manner.223
In Sessions v. Dimaya,224 the Supreme Court confronted statutory language
similar to that in the ACCA’s residual clause. The Immigration and Nationality Act
(“INA”) made deportable any alien convicted of an “aggravated felony” after entering
the United States.225 The INA defined “aggravated felony” by furnishing a long list
of offenses.226 One item in that long list was “a crime of violence” as defined by 18
U.S.C. § 16 for which the term of imprisonment is at least one year. Section 16, in
221 Id. at 597-98.
222 Id.
223 Id. at 606.
224 584 U.S. 148 (2018).
225 See 8 U.S.C. § 1227(a)(2)(A)(iii).
226 Dimaya, 584 U.S. at 153-54.
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turn, defined “crime of violence” in two parts, commonly known as the “elements
clause” and the “residual clause”:
(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in
the course of committing the offense.227
The Supreme Court again applied the categorical approach, this time to its
construction of the residual clause of § 16’s definition of a crime of violence.228 The
Court explained this judicial construct prohibited an immigration judge not only
from considering whether the facts of a prior offense posed the substantial risk
identified in § 16, but from considering whether the statutory elements of a crime
required or entailed the creation of such a risk.229 Instead, the categorical approach’s
application required a court to determine whether a hypothetical “ordinary case” of
an offense posed the requisite risk under § 16.230
The Supreme Court then concluded that, like the ACCA’s residual clause, the
definition of “crime of violence” could not withstand scrutiny under the categorical
227 Id. at 153 (citing 18 U.S.C. § 16).
228 Id. at 153 (citing Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)).
229 Id. at 153-54.
230 Id. at 154.
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approach. The Court acknowledged that it is impossible for any court to divine the
conduct entailed in a crime’s ordinary case, and found that § 16(b) “possesse[d] the
second fatal feature of ACCA’s residual clause: uncertainty about the level of risk
that makes a crime ‘violent.’”231 As with the ACCA’s residual clause, “the ‘ordinary
case’ remain[ed] . . . an excessively ‘speculative,’ essentially inscrutable thing.”232
Citing Johnson, the Supreme Court struck down § 16(b) as unconstitutionally vague,
holding:
Johnson tells us how to resolve this case. That decision held
that “[t]wo features of [ACCA’s] residual clause
conspire[d] to make it unconstitutionally vague.” Because
the clause had both an ordinary-case requirement and an
ill-defined risk threshold, it necessarily “devolv[ed] into
guesswork and intuition,” invited arbitrary enforcement,
and failed to provide fair notice. Section 16(b) possesses
the exact same two features. And none of the minor
linguistic disparities in the statutes makes any real
difference. So just like ACCA’s residual clause, § 16(b)
“produces more unpredictability and arbitrariness than the
Due Process Clause tolerates.”233
In United States v. Davis,234 the Supreme Court likewise invalidated as
unconstitutionally vague 18 U.S.C. § 924(c), which threatened long prison sentences
for anyone using a firearm in connection with certain other federal crimes. The
231 Id. at 159-61.
232 Id. at 160-61 (citing Johnson, 576 U.S. at 597).
233 Id. at 174-75 (citations omitted).
234 588 U.S. 445 (2019).
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statute’s list of those federal crimes triggering possible enhanced punishment
included a residual clause that identified felonies which by their nature involve a
“substantial risk that physical force against the person or property of another may be
used in the course of committing the offense.”235 The statute also included a
provision authorizing enhanced penalties for carrying a firearm during and in relation
to, or possessing a firearm in furtherance of, any federal “crime of violence” or drug
trafficking crime.236 According to § 924(c)(3), a crime of violence is “an offense that
is a felony” and “(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (B) that by its nature,
involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.”
Just as in Johnson and Dimaya, the Supreme Court employed a categorical
approach to analyzing the statutory requirements of § 924(c):
“In determining whether petitioner’s conviction falls
within the ambit of § 16, the statute directs our focus to
the ‘offense’ of conviction. See § 16(a) (defining a crime of
violence as ‘an offense that has as an element the use . . . of
physical force against the person or property of another’
(emphasis added)); § 16(b) (defining the term as ‘any other
offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of
committing the offense’ (emphasis added)). This language
235 18 U.S.C. § 924(c)(3)(B).
236 18 U.S.C. § 924(c)(1)(A).
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requires us to look to the elements and the nature of the
offense of conviction, rather than to the particular facts
relating to petitioner’s crime.”237
The Supreme Court concluded the term “crime of violence” as employed in § 924(c)’s
residual clause suffered from the same constitutional vagueness as did § 16’s residual
clause.238 Accordingly, the Supreme Court affirmed the Fifth Circuit’s conclusion
that § 924(c)(3)(B) was unconstitutionally vague.239
Cade’s attempt to analogize the Texas capital sentencing statute’s future
dangerousness special issue with the three federal statutes struck down as
unconstitutionally vague in Johnson, Dimaya, and Davis fails for a variety of reasons.
Most of those reasons arise from Cade’s misapprehension of the constitutional role
the future dangerousness special issue plays within the Texas capital sentencing
scheme.
First, in sharp contrast to each of the foregoing cases in which the Supreme
Court struck down a statutory term as unconstitutionally vague under a “categorical
approach” to statutory construction, the Texas capital sentencing statute’s future
dangerousness special issue does not require a Texas capital sentencing jury to make
237 Davis, 588 U.S. at 455 (quoting Leocal, 543 U.S. at 7) (emphasis in the
original).
238 Id. at 459-62 (discussing the legislative history showing Congress
borrowed § 16’s “crime of violence” when it enacted § 924(c)(3)(B)).
239 Id. at 469-70.
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any determinations regarding the nature of, or level of violence or risk of physical
force involved in, a defendant’s prior criminal convictions. Nor does the future
dangerousness special issue require a capital sentencing jury to make any discrete
factual findings regarding a capital defendant’s prior unadjudicated criminal
misconduct. Instead, the future dangerousness special issue requires a capital
sentencing jury to (1) examine all of the evidence addressing the circumstances of a
capital offense and the defendant’s background, character, and personal moral
culpability, and then (2) make an informed decision regarding the defendant’s likely
propensity to commit future criminal acts of violence. Thus, unlike the three federal
statutes struck down by the Supreme Court, the future dangerousness special issue is
forward-looking or predictive, not retrospective, in nature.
Second, unlike the three federal statutes in question, a Texas capital
sentencing jury’s affirmative answer to the future dangerousness special issue does
not automatically increase the potential range of a capital defendant’s sentence.
Instead, an affirmative answer to the future dangerousness special issue merely opens
the gate to allow the capital sentencing jury to proceed forward to consideration and
resolution of the mitigation special issue, which ultimately determines the convicted
capital murderer’s fate. Thus, resolution of the future dangerousness special issue
does not, standing alone, enhance a defendant’s potential punishment. The Texas
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future dangerousness special issue performs a wholly different purpose than the
sentence enhancement provisions of the ACCA’s residual clause.
Third, the federal statutes struck down as unconstitutionally vague in Johnson,
Dimaya, and Davis required federal sentencing judges to employ a “categorical
approach” to ascertaining whether a defendant’s prior convictions rose to the level of
a “violent felony” or “crime of violence.” Nothing in the Texas capital sentencing
statute or any judicial interpretation of that statute compels a Texas capital
sentencing jury to engage in any type of guesswork like that required of federal
sentencing judges under the Supreme Court’s categorical approach to federal
statutory construction. Texas capital sentencing juries are routinely instructed to
base their answers to the special issues on all the evidence before them; they are not
required to imagine hypothetical scenarios and ponder whether the statutory
elements of a particular offense necessarily could have been committed without the
application of physical force or a threat of same. Thus, Texas capital sentencing
juries are not required to apply the categorical approach adopted by the Supreme
Court in Taylor and its progeny or to do the same “inscrutable thing” federal
sentencing judges were required to do under the categorical approach when applying
the federal statutes struck down in Johnson, Dimaya, and Davis. The Supreme Court’s
categorical approach to judicial construction of federal statutes does not apply to a
Texas capital sentencing jury’s answer to the future dangerousness special issue.
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Fourth, contrary to the suggestions in Cade’s second amended petition, there
is nothing inherently unconstitutional or legally suspect about a predictive judgment
in a criminal proceeding. State and federal courts routinely make both express and
implicit factual findings regarding a host of potential future events when addressing a
wide range of issues. Included among these are determinations as to whether a
criminal defendant should be released on bond pending trial (which necessarily
includes consideration of whether the defendant poses a risk of flight or a threat to
the community). State and federal courts also engage in predictive decision-making
when determining whether to issue a temporary restraining order (“TRO”) or
preliminary injunction.240 To obtain a preliminary injunction in federal court, the
moving party must show a substantial likelihood of success on the merits, a
substantial threat of irreparable injury in the absence of preliminary relief, the
balance of equities tips in the movant’s favor, and the grant of an injunction will not
disserve the public interest.241 Thus, both the TRO and preliminary injunction
standards require courts to engage in forward-looking, predictive judgments. The fact
the future dangerousness special issue requires a Texas capital sentencing jury to
240 See FED. R. CIV. P. 65(b)(1)(A) (requiring a showing that the movant
will suffer “immediate and irreparable injury, loss, or damage” before a federal court
may issue a temporary restraining order).
241 Ramirez v. Collier, 595 U.S. 411, 421 (2022) (citation omitted).
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make a forward-looking, predictive determination does not inherently render such a
decision constitutionally suspect.242
Fifth, in Texas the “eligibility” determination described in Tuilaepa and
discussed above is accomplished at the guilt-innocence phase of a capital murder trial
by virtue of the manner with which Texas defines the offense of capital murder in
§ 19.03 of the Texas Penal Code.243
242 Tuilaepa, 512 U.S. at 974 (holding that the State’s future dangerousness
element is not unconstitutionally vague) (quoting Jurek, 428 U.S. at 274-76); see also
Johnson v. Lumpkin, 76 F.4th 1037, 1038 n.1 (5th Cir. 2023) (per curiam), cert. denied,
__ U.S. __, 144 S. Ct. 829 (2024); Buntion v. Lumpkin, 982 F.3d 945, 948-50 (5th
Cir. 2020) (per curiam) (concluding that developments in social science have not
altered the proposition that a jury can accurately determine future dangerousness),
cert. denied, __ U.S. __, 142 S. Ct. 3 (2021); id. at 950-51 (explaining that a prisoner’s
non-violent conduct after conviction does not undermine the jury’s determination
that the prisoner poses a future threat of danger); Rowell v. Dretke, 398 F.3d 370, 378
(5th Cir.) (upholding the constitutionality of not requiring the State to disprove
mitigation beyond a reasonable doubt), cert. denied, 546 U.S. 848 (2005); Sprouse,
748 F.3d at 622; Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007).
243 Johnson, 509 U.S. at 362 (holding its previous opinions upholding the
Texas capital sentencing scheme found no constitutional deficiency in the means
used to narrow the group of offenders subject to capital punishment because the
statute itself adopted different classifications of murder for that purpose); Lowenfield
v. Phelps, 484 U.S. 231, 243-47 (1988) (comparing the Louisiana and Texas capital
murder schemes and noting they each narrow those eligible for the death penalty
through narrow statutory definitions of capital murder); Jurek, 428 U.S. at 268-75
(plurality opinion recognizing the Texas capital sentencing scheme narrows the
category of murders for which a death sentence may be imposed and this serves the
same purpose as the requirements of other statutory schemes which require proof of
aggravating circumstances to justify the imposition of the death penalty); Woods v.
Johnson, 75 F.3d 1017, 1033-34 (5th Cir.), cert. denied, 519 U.S. 854 (1996)
(recognizing the Texas capital sentencing special issues “do not function as
aggravating circumstances . . . but rather adequately ‘guide and focus the jury’s
(continued...)
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Sixth, Texas is not a weighing jurisdiction in which aggravating circumstances
must be proved by the State and then weighed against mitigating factors to
determine the propriety of a capital sentence.244 A capital sentencing jury’s
affirmative answer to the Texas future dangerousness special issue does not constitute
a factual finding on an aggravating circumstance which then must be weighed against
mitigating circumstances or mitigating evidence.245 Thus, Cade’s implicit attempt to
analogize the Texas future dangerousness special issue to an unconstitutionally vague
aggravating circumstance lacks arguable merit.
Seventh, any factual error in a Texas capital sentencing jury’s predictive answer
to the future dangerousness special issue does not render a death sentence
243(...continued)
objective consideration of the particularized circumstances of the individual offense
and the individual offender before it can impose a sentence of death’”) (quoting Jurek,
428 U.S. at 274). Thus, the constitutionally required narrowing function described
in Tuilaepa as the “eligibility determination” is accomplished at the guilt-innocence
phase of trial by virtue of the narrow manner with which Texas has statutorily
defined the offense of capital murder. Johnson, 509 U.S. at 362; Jurek, 428 U.S. at
268-72; Turner, 481 F.3d at 299-300 (“The terms about which Turner complains are
not invoked until after the defendant has been judged death-eligible and the jury is
being instructed how to decide whether selection of the death penalty is
appropriate.”); Woods, 75 F.3d at 1033-34 (the Texas capital sentencing special issues
do not function as aggravating circumstances but rather guide and focus the jury’s
objective consideration of particularized circumstances of the individual offense and
the individual offender).
244 Turner, 481 F.3d at 299-300; Woods, 75 F.3d at 1033-34; James, 987
F.2d at 1120.
245 Turner, 481 F.3d at 299-300; Woods, 75 F.3d at 1033-34.
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unconstitutional. The Supreme Court “‘has never intimated that the factual
correctness of the jury’s prediction on the issue of future dangerousness . . . bears
upon the constitutionality’ of a death sentence.”246
Eighth, because the eligibility decision recognized in Tuilaepa is made in Texas
at the guilt-innocence phase of trial, and because an affirmative answer to the future
dangerousness special issue does not in any way foreclose the jury’s consideration of
mitigating circumstances or mitigating evidence, any vagueness in the language of the
future dangerousness special issue is necessarily harmless under Brecht v.
Abrahamson.247 A negative answer to the future dangerousness special issue does not
harm a defendant within the meaning of Brecht – it effectively guarantees the
defendant a sentence of life imprisonment. Even if premised upon an
unconstitutionally vague set of key terms, an affirmative answer to the future
dangerousness special issue likewise does not deprive a Texas capital defendant of any
constitutional right; it merely permits the jury to proceed to the selection phase of
the capital sentencing process by addressing the mitigation special issue.248 An
affirmative answer to the future dangerousness special issue merely furnishes a Texas
246 Buntion, 982 F.3d at 950 (emphasis added) (quoting Lincecum v. Collins,
958 F.2d 1271, 1281 (5th Cir.), cert. denied, 506 U.S. 957 (1992)).
247 507 U.S. at 623-24 (1993) (the test for harmless error in federal court is
whether the error “had a substantial and injurious effect or influence in determining
the jury’s verdict”).
248 Turner, 481 F.3d at 299-300; Woods, 75 F.3d at 1033-34.
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capital sentencing jury with an opportunity to consider all mitigating evidence and
then determine whether to engage in the selection determination described in
Tuilaepa. Thus, any ambiguity in the future dangerousness special issue is harmless
within the meaning of Brecht.
Finally, for the reasons discussed at length in Respondent’s answer,249 Cade’s
attempts to apply the holdings in Johnson, Dimaya, and Davis to the Texas capital
sentencing special issues are foreclosed by the Teague nonretroactivity doctrine. The
“categorical approach” to statutory construction is a judicial construct created by the
Supreme Court in Taylor and Leocal to be employed by federal courts when construing
the meaning of terms contained in specific federal criminal sentencing statutes. As
explained above, in Taylor and Leocal, the Supreme Court imposed the categorical
approach on federal courts based upon a confluence of (1) its conclusion that
Congress intended to require a categorical approach to the federal criminal sentencing
statutes in question and (2) its application of the rule of lenity. The categorical
approach to federal statutory construction recognized in Taylor and Leocal and applied
in Johnson, Dimaya, and Davis has never been applied by any court to the statutory
construction of any part of a state capital sentencing statute, such as Article 37.071,
§ 2(b)(1) of the Texas Code of Criminal Procedure. Doing so in Cade’s case would
violate Teague.
249 ECF no. 132, 148-51.
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In conclusion, the Texas capital sentencing statute’s future dangerousness
special issue functions in a manner wholly dissimilar to the federal sentencing
enhancement statutes struck down in Johnson, Dimaya, and Davis. An affirmative
answer to the future dangerousness special issue does not constitute an aggravating
circumstance to be weighed by Texas capital sentencing juries against mitigating
evidence. There is nothing unconstitutionally vague about a capital sentencing
statute which requires a jury to make a forward-looking, predictive evaluation based
upon an examination of evidence showing the circumstances of a capital offense and
the defendant’s background, character, and personal moral culpability. Any
ambiguity in the future dangerousness special issue is harmless under Brecht. Teague
forbids application of the categorical approach to federal statutory construction
employed in Johnson, Dimaya, and Davis to the Texas capital sentencing special issues.
For the foregoing reasons, Cade’s sixteenth claim does not warrant federal habeas
relief under de novo review.
H. Lesser-Included Offense Instruction
In his eighth claim in his second amended petition, Cade argues his trial court
erred in denying his request for a jury instruction on the lesser-included offense of
ordinary murder, in part because the jury could have concluded Cade was legally
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insane when he fatally stabbed Desaree.250 Cade presented essentially the same
argument as his sixth point of error on direct appeal.251 The TCCA rejected this
argument on the merits when it affirmed Cade’s conviction and sentence on direct
appeal.252
A capital murder defendant is constitutionally entitled to an instruction on a
lesser-included offense if the evidence would permit a jury rationally to find the
defendant guilty of the lesser offense and acquit him of the greater.253 “Due process
requires a jury charge on a lesser included offense ‘when the evidence unquestionably
establishes that the defendant is guilty of a serious, violent offense – but leaves some
doubt with respect to an element that would justify conviction of a capital offense . . .
.”254 A defendant is constitutionally entitled to the instruction if the jury could
250 ECF no. 127, 109-12.
251 Appellant’s Brief 50-54 [ECF no. 68-17, 73-77].
252 Cade v. State, 2015 WL 832421, at *11 (“[T]he evidence does not
support a finding that [Cade]’s state of mind when he killed Desaree was different
from his state of mind when he killed Fuller.”).
253 See Hopper v. Evans, 456 U.S. 605, 611-12 (1982) (holding “due process
requires a lesser included offense instruction be given only when the evidence
warrants such an instruction”) (emphasis in the original); Beck v. Alabama, 447 U.S.
625, 637-38 (1980) (holding unconstitutional a state statutory prohibition against
the submission of lesser-included offense instructions in capital murder cases).
254 Pippin v. Dretke, 434 F.3d 782, 791 (5th Cir. 2005) (quoting Beck, 447
U.S. at 637), cert. denied, 549 U.S. 828 (2006); see also Reed v. Quarterman, 504 F.3d
465, 488-89 (5th Cir. 2007); Aguilar v. Dretke, 428 F.3d 526, 531 (5th Cir. 2005),
(continued...)
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“rationally acquit” that defendant on the capital crime and convict on the non-capital
crime.255 This inquiry necessarily requires careful review of the elements of each
offense and other applicable provisions of state law.256
The TCCA reasonably concluded that no rational jury could have found Cade
was sane when he fatally stabbed one of his two victims but insane when he stabbed
his other victim. This conclusion was fully supported by the evidence from Cade’s
trial. Cade’s own statements to police shortly after his arrest established that he
stabbed both victims during the same attack: first he stabbed Fuller multiple times;
then he stabbed Desaree multiple times when she attempted to respond to her
mother’s screams; Cade then returned to Fuller; when Desaree attempted to crawl
254(...continued)
cert. denied, 547 U.S. 1136 (2006).
255 Jones v. Johnson, 171 F.3d 270, 274 (5th Cir.) (citations omitted), cert.
denied, 527 U.S. 1059 (1999); see also Foster v. Dretke, No. 05-70016, 2006 WL
616980, at *8 (5th Cir. Mar. 13, 2006) (citing Hopper, 456 U.S. 611-12; Beck, 447
U.S. at 637-38; Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.), cert. denied, 486
U.S. 1061 (1988)), cert. denied sub nom. 549 U.S. 859 (2006); Reed, 504 F.3d at
488-89; Aguilar, 428 F.3d at 531; Ransom v. Johnson, 126 F.3d 716, 724-25 (5th Cir.),
cert. denied, 522 U.S. 944 (1997).
256 See Livingston v. Johnson, 107 F.3d 297, 312-13 (5th Cir.) (analyzing the
difference under Texas law between felony murder and capital murder in the course
of rejecting a Beck claim), cert. denied, 522 U.S. 880 (1997); East v. Scott, 55 F.3d 996,
1005-06 (5th Cir. 1995) (examining the distinction under Texas law between murder
and felony murder, as well as the impact under Texas law of evidence of voluntary
intoxication, in analyzing a Beck claim); Cordova, 838 F.2d at 768-70 (analyzing the
distinction under Texas law between capital murder and murder, as well as the Texas
law of parties, while granting federal habeas relief based on Beck error).
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away from her mother’s bedroom, Cade stabbed Desaree more times; he then
returned to Fuller and stabbed her additional times.257 By his own admission Cade’s
assaults on Fuller and Desaree were virtually simultaneous.
The TCCA then turned to the expert testimony presented by both parties:
Dr. Proctor, the State’s expert, testified that [Cade] was
sane during both killings. [Cade]’s expert, Dr. Kessner,
opined that [Cade] was insane during both killings because
he was in a state of “abandonment rage” and autonomic
arousal from the moment Fuller screamed (upon seeing
[Cade] in her bed with a knife) until “the violence
stopped.” For the jury to find [Cade] guilty of the
lesser-included offense, it would necessarily have to
disregard both Proctor’s and Kessner’s testimony. It would
have to find that [Cade] was thinking rationally when he
began to stab Fuller, but he then entered a state of
autonomic arousal (i.e., became insane) when Desaree
entered the bedroom, and he began stabbing her. He then
regained rational thought when he stopped stabbing
Desaree and returned to stabbing Fuller. Finally, he
returned to a state of autonomic arousal (i.e., became
insane again) when Desaree began to get up, and he
stabbed her multiple additional times. In short, the
evidence could not allow a rational jury to find [Cade]
guilty of only murder.258
The TCCA’s opinion on direct appeal accurately summarized the evidence from the
guilt-innocence phase of Cade’s trial and reasonably concluded that no rational juror
could have found Cade guilty of only one murder while sane.
257 Cade v. State, 2015 WL 832421, at *2.
258 Id. at *11.
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The TCCA’s rejections on the merits during Cade’s direct appeal of his
complaint about the trial court’s failure to submit a lesser-included offense
instruction on murder were neither contrary to, nor involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of
the United States, nor resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in Cade’s trial and direct
appeal. Cade’s eighth claim does not warrant federal habeas corpus relief.
I. Exclusion of the Defendant’s Experts’ Testimony
In his eleventh claim in his second amended petition Cade argues the trial
court erred in excluding the testimony of two experts his trial counsel proffered at the
punishment phase of trial: Dr. Jonathan Sorensen and Dr. Mark Vigen.259 Cade
presented the same complaints as his eighth and ninth points of error on direct
appeal.260
In its opinion affirming Cade’s conviction and sentence, the TCCA explained
the trial court held a hearing outside the jury’s presence to determine the
admissibility of testimony to be offered by several defense witnesses, including
Dr. Sorensen and Dr. Vigen, as experts. Dr. Sorensen proposed to testify that
inmates convicted of intimate-partner homicides are less likely to commit acts of
259 ECF no. 127, 134-46.
260 Appellant’s Brief 58-66 [ECF no. 68-17, 81-89].
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violence in prison than other inmates.261 His opinion was based on his own study of
TDCJ inmates convicted of intimate-partner homicides. The State elicited testimony
that Sorensen’s study was the first of its kind, incomplete, had not been peer-
reviewed or published, and no one had replicated his study’s results. Dr. Sorensen
acknowledged that, although successful peer review is some indication of a study’s
reliability, replication of a study’s results, rather than peer review, validates the study.
After recessing to review Kelly v. State,262 the trial judge excluded Dr. Sorensen’s
testimony.
Dr. Vigen proposed to testify that TDCJ “has a high probability of controlling
individual inmates.”263 He based his opinion on thirty-five years of working as a
psychologist in Texas prisons; articles on prison violence written by other people,
including Dr. Sorensen; Dr. Vigen’s own co-authored article which “summariz[ed]
research indicating that a majority of death row inmates do not exhibit violence in
prison even in more open institutional settings[;]” and other trial testimony regarding
TDCJ’s inmate-classification system and ability to control inmates, including the
testimony of defense expert S.O. Woods (“Woods”) and prosecution witness Travis
261 The proffered testimony of Dr. Sorensen appears at 50 R.R. Trial [ECF
no. 69-50], 112-18, 183-216.
262 824 S.W.2d 568, 572-73 (Tex. Crim. App. 1992) (en banc).
263 The proffered testimony of Dr. Vigen appears at 50 R.R. Trial [ECF no.
69-50] 218-34.
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Turner (“Turner”). Turner testified regarding the availability of weapons to TDCJ
inmates inside penal facilities and some of the procedures TDCJ employed in an
attempt to maintain control over its inmate population.264 Woods agreed with
Turner that TDCJ inmates were creative when it came to fashioning weapons from
commonplace items (e.g., eyeglasses, shoelaces, plastic combs, handkerchiefs)
available inside TDCJ facilities.265
Although Dr. Vigen initially asserted that he would not offer an opinion
specific to Cade, he ultimately stated that he would testify that there was a high
probability that TDCJ could control Cade, in particular. When asked whether he
based his opinion on anything specific to Cade, Dr. Vigen acknowledged that he had
not evaluated Cade but noted that had listened to listened to the testimony of
Turner and Woods. The State objected to Dr. Vigen’s proposed testimony. It
argued that Dr. Vigen was not “qualified” to render an opinion about the probability
that TDCJ could control Cade because Dr. Vigen had reviewed little information
about the case, had not been present throughout the entire trial, and had not
interviewed Cade.266 Cade’s trial counsel countered that the State’s argument
concerned the weight to be given to Dr. Vigen’s opinion, rather than Dr. Vigen’s
264 Testimony of Travis Turner, 49 R.R. Trial [ECF no. 69-49] 232-99.
265 Testimony of S.O. Woods, 50 R.R. Trial [ECF no. 69-50] 126-82.
266 See 50 R.R. Trial [ECF no. 69-50] 235.
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qualifications to render it.267 The trial judge ruled Dr. Vigen’s testimony was
inadmissible.268
On appeal, Cade argued that the trial court should have permitted Dr. Vigen
to testify about TDCJ’s ability to control Cade because Dr. Vigen reviewed, and
based his opinion on, Cade’s prison records, some offense reports concerning Cade’s
aggravated-sexual-assault conviction, Woods’s and Turner’s testimony, and relevant
research in his field. Alternatively, Cade asserted that the trial court should have
permitted Dr. Vigen to testify through answers to hypotheticals that Cade would not
be a future danger in prison. The TCCA rejected these arguments.269
267 Id.
268 Id. at 237.
269 The TCCA concluded, in pertinent part, as follows:
To the extent Vigen proposed to testify about the
probability that TDCJ could control [Cade], the trial
court’s ruling fell within the zone of reasonable
disagreement. The record does not support [Cade]’s
assertion that Vigen based his opinion on any information
specific to [Cade]. At the admissibility hearing, the State
asked Vigen repeatedly about the bases for his opinion,
and Vigen responded by listing his own experience, articles
that were not specific to [Cade], and Turner’s and
Woods’s testimony before the jury. Vigen did not include
his review of [Cade]’s prison record and offense reports
related to [Cade]’s aggravated-sexual-assault conviction as
a basis for his opinions. Further, neither Turner nor
Woods offered testimony specific to [Cade]. The trial
court did not abuse its discretion when it precluded Vigen
(continued...)
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269(...continued)
from testifying about the probability that TDCJ could
control [Cade].
To the extent [Cade] argues that the trial court should
have allowed Vigen to testify via hypotheticals that [Cade]
would not be a future danger in prison, the record does not
show that [Cade] suggested this alternative to the trial
court. In responding to the State’s objection to Vigen’s
proposed testimony, defense counsel argued:
Many times mental health professionals are
given hypotheticals and asked to render
opinions about future dangerousness and [sic]
certainly qualifies within that category and
meets the test of [Nenno] on the soft sciences
that he’s qualified to give an expert opinion.
Any objection would go to the weight.
There’s no question about his qualifications
and he’s been qualified to testify in other
death penalty cases [sic] the same or similar
type of issues.
Although counsel mentioned the word “hypotheticals,” it
was in the context of an argument that the trial court
should allow Vigen to testify that TDCJ would be able to
control [Cade]. The trial court cannot be fairly expected
to have known from counsel’s argument that, if the trial
court did not allow Vigen to testify about TDCJ’s ability to
control [Cade], then [Cade] wished to put Vigen on the
stand to testify about [Cade]’s future dangerousness via
hypotheticals. And when the trial court ruled that Vigen’s
testimony was inadmissible, [Cade] did not seek
clarification of the ruling’s scope. To the extent he would
have otherwise presented Vigen’s testimony in the form of
hypotheticals, [Cade] failed to preserve any complaint. See
TEX. R. APP. P. 33.1(a). Point of error eight is overruled.
(continued...)
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The TCCA also rejected Cade’s arguments regarding the exclusion of Dr.
Sorensen’s testimony.270
Cade argued in his fourth claim in his initial state habeas application that
exclusion of the testimony of Dr. Sorensen and Dr. Vigen violated his due process
rights.271 The state habeas trial court held the exclusion of Drs. Sorensen’s and
Vigen’s proffered testimony did not violate Cade’s due process right based on its
findings that (1) their testimony was inadmissible under Texas Rule of Evidence 702;
(2) Cade failed to show that the proffered testimony of Dr. Sorensen and Dr. Vigen
was both relevant and reliable; (3) Dr. Sorensen’s proffered testimony was based on
an incomplete, unpublished study which had not been peer-reviewed and involved
comparing the entire TDCJ disciplinary records of 189 prisoners convicted of
intimate-partner homicides with the disciplinary records of more than ninety
269(...continued)
Cade v. State, 2015 WL 832421, at *14-*15.
270 The TCCA held as follows:
Sorensen proposed to offer an opinion based on the results
of a novel and incomplete study that had not been
peer-reviewed, published, or replicated. The trial court
acted within its discretion when it found Sorensen’s
testimony inadmissible under Rule 702. Point of error
nine is overruled.
Id. at *15 (footnote and citations omitted).
271 Initial State Habeas Application 77-82 [ECF no. 71-4, 80-85].
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thousand TDCJ inmates covering only a single year of their incarceration (an
untested methodology); (4) Dr. Vigen’s proffered testimony at the hearing pertained
almost exclusively to prison’s ability to control inmates generally; (5) Dr. Vigen’s
proffered testimony regarding Cade was based on a limited review of records relating
to Cade and not on a mental health evaluation of Cade; (6) Dr. Vigen’s opinion
regarding the ability of TDCJ to control Cade was based his review of articles on
prison violence, his 35 years of work as a psychologist inside Texas prisons, his
observation of the trial testimony of Woods and Turner, and a 2002 article he
co-authored which concluded a majority of death row inmates do not exhibit violence
even in more open institutional setting; (7) the exclusion of Drs. Sorensen’s and
Vigen’s proffered opinion testimony did not prevent Cade from presenting a defense
at the punishment phase of his trial; (8) the exclusion of Drs. Sorensen’s and Vigen’s
proffered opinion testimony was harmless in light of (a) the substantial and
compelling evidence showing Cade’s propensity for violent misconduct, (b) the fact
that only 24 of the inmates studied by Dr. Sorensen had killed both an intimate
partner and a non-intimate victim, (c) Cade not only murdered two victims in the
same criminal episode but also repeatedly sexually assaulted Fuller – both as she was
dying and after her demise, and (d) the fact other evidence was offered by the defense
regarding the ability of the TDCJ to reduce the risk of violence among its inmates;
(9) the proffered opinions of Dr. Sorensen and Dr. Vigen added nothing substantial
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to the punishment phase evidence already before the jury; and (10) the State’s
evidence of Cade’s violent past and the facts and circumstances of Cade’s capital
murder “constituted strong and persuasive evidence of Cade’s future
dangerousness.”272 The TCCA expressly adopted all of the foregoing factual findings
when it denied Cade’s initial state habeas application.273 The TCCA also expressly
held that Cade’s fourth claim was procedurally defaulted because it had been raised
and rejected on the merits on direct appeal.274
Cade re-urged his due process challenge to the exclusion of proffered testimony
of Dr. Sorensen and Dr. Vigen in the twelfth claim of his first subsequent (second)
state habeas application.275 The TCCA summarily dismissed Cade’s first subsequent
(second) state habeas application.276
“A federal court may grant habeas relief based on an erroneous state court
evidentiary ruling only if the ruling violates a specific federal constitutional right or is
272 FFCL pp. 51-61, ¶¶ 271-320 [ECF no. 71-9, 697-707].
273 Ex parte Cade, 2017 WL 4803802, at *2-*3.
274 Id. at *2.
275 First Subsequent (Second) State Habeas Application 142-53 [ECF no.
134-17, 345-67].
276 See Ex parte Cade, 2021 WL 1202479, at *2.
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so egregious such that it renders the petitioner's trial fundamentally unfair.”277
Federal habeas relief does not exist for the purpose of correcting errors of state law.278
In the course of reviewing state criminal convictions in federal habeas corpus
proceedings, federal district courts “do not operate as super state supreme
courts[.]”279
The TCCA’s conclusion in the course of Cade’s direct appeal that the proffered
opinion testimony of Dr. Sorensen and Dr. Vigen was inadmissible under Texas
evidentiary rules is binding upon this court in this federal habeas corpus
277 Brown v. Dretke, 419 F.3d 365, 376 (5th Cir. 2005), cert. denied, 546 U.S.
1217 (2006); see also Payne v. Tennessee, 501 U.S. 808, 825 (1991); Darden v.
Wainwright, 477 U.S. 168, 179-83 (1986); Wood v. Quarterman, 503 F.3d 408, 414
(5th Cir. 2007), cert. denied, 552 U.S. 1314 (2008).
278 See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding complaints
regarding the admission of evidence under California law did not present grounds for
federal habeas relief absent a showing that admission of the evidence in question
violated due process); Lewis, 497 U.S. at 780 (recognizing that federal habeas relief
will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41 (1984)
(holding a federal court may not issue the writ on the basis of a perceived error of
state law).
279 Davis v. Guerrero, 798 F. Supp. 3d 633, 655 (N.D. Tex. Sept. 5, 2025)
(Boyle, J.); see also Cruz v. Johnson, 159 F.3d 1355 (5th Cir.) (per curiam), cert. denied,
524 U.S. 983 (1998); Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986)
(“[F]ederal courts do not sit as courts of appeal and error for state court
convictions.”).
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proceeding.280 Thus, the question before this court is not whether the state trial
court properly applied state evidentiary rules but, rather, whether Cade’s federal
constitutional rights were violated by the state trial court’s rulings on evidentiary
matters.281
As the Fifth Circuit has explained “[d]ue process is implicated only for rulings
‘of such a magnitude’ or ‘so egregious’ that they ‘render the trial fundamentally
unfair.’”282 Due process does not grant federal habeas courts authority to review the
“mine run of evidentiary rulings of state trial courts.”283 “Relief will be warranted
only when the challenged evidence ‘played a crucial, critical, and highly significant
role in the trial.’”284 Further, the due process inquiry considers the significance of the
280 See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly
held that a state court’s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.”) (citing Estelle, 502 U.S. at 67-68; Mullaney v. Wilbur, 421 U.S. 684, 691
(1975)); Garza v. Stephens, 738 F.3d 669, 677 (5th Cir. 2013) (holding a Texas
habeas court’s interpretation of evidentiary rules was binding in a federal habeas
case), cert. denied, 573 U.S. 949 (2014); Paredes, 574 F.3d at 291.
281 See Bigby v. Dretke, 402 F.3d 551, 563 (5th Cir.), cert, denied, 546 U.S.
900 (2005).
282 Gonzales v. Thaler, 643 F.3d 425, 430-31 (5th Cir. 2011) (quoting
Pemberton v. Collins, 991 F.2d 1218, 1226, 1227 (5th Cir.), cert. denied, 510 U.S. 1025
(1993)); Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.), cert. denied sub nom. 429
U.S. 850 (1976)).
283 Id. (citations omitted).
284 Id. (quoting Little, 162 F.3d at 862) (citing Andrade v. McCotter, 805
(continued...)
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challenged evidence “in the context of the entire trial.”285 There is no relief under the
Due Process Clause in situations where the challenged evidence was not the principal
focus at trial and the errors were not “‘so pronounced and persistent that it permeates
the entire atmosphere of the trial.’”286
The TCCA concluded on direct appeal that the opinion testimony of Dr.
Sorensen and Dr. Vigen was inadmissible under state evidentiary rules because
neither was sufficiently relevant and reliable under Rule 702 of the Texas Rules of
Evidence. During Cade’s initial state habeas proceeding, the state habeas trial court
expressly found a wide range of reasons justified the exclusion of the proffered
testimony of Dr. Sorensen and Dr. Vigen. The TCCA expressly adopted all those
findings.
This court has reviewed the entire record from Cade’s trial, initial state habeas
proceeding, and first subsequent (second) state habeas proceedings. This court
concludes, as did the state habeas court during Cade’s initial state habeas proceeding,
that the state trial court’s exclusion of the proffered testimony of Dr. Sorensen and
Dr. Vigen did not render Cade’s trial fundamentally unfair. Both Dr. Sorensen and
Dr. Vigen proposed to offer expert opinions that Cade would not pose a risk of future
284(...continued)
F.2d 1190, 1193 (5th Cir. 1986)).
285 Id.
286 Id. (citations omitted).
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violence if sentenced to serve a life sentence without parole in the custody of the
TDCJ. Neither proposed to offer any new mitigating testimony impacting Cade’s
moral blameworthiness for his capital offense. That is, neither of these experts could
point to any evidence directly addressing Cade’s background or character which
supported their opinions. Thus, their proffered expert opinion testimony related
exclusively to the future dangerousness special issue.
Dr. Sorensen, an educator trained in prison administration, offered the results
of a “[f]irst study of its kind” which he admitted (1) had been commissioned for the
purpose of being introduced during Cade’s trial; (2) included review of the
disciplinary records of 189 randomly selected inmates in the TDCJ who had killed an
intimate partner but only 24 of whom he identified as having murdered both an
intimate partner and a second, non-intimate, victim; (3) had never been published,
replicated, or peer-reviewed; (4) involved comparison of the entire disciplinary
records of an extremely small sample size of double-murderers against a much larger
cohort of TDCJ inmates whose disciplinary records were reviewed for a period of only
a single year; and (5) included virtually no information focused on Cade’s conduct,
either in or out of a penal facility.287
Dr. Vigen, a psychologist, offered no opinion based upon a mental health
evaluation of Cade which he had conducted. Instead, Dr. Vigen reviewed a limited
287 See 50 R.R. Trial [ECF no. 69-50] 113-18, 183-218.
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array of records relating to Cade and purported to rely primarily upon his experience
as a practicing psychologist to support his opinion that Cade would not pose a
significant risk of future violence if incarcerated for life inside a TDCJ facility. Dr.
Vigen’s proffered testimony did not include any suggestion that he had ever taken
any academic courses in prison administration like Dr. Sorensen. Likewise, Dr. Vigen
did not testify that he had ever been employed in actual prison administration like
defense witness Woods or prosecution witness Turner.
The state habeas trial court and TCCA expressly found the evidence of Cade’s
violent criminal history presented during Cade’s trial was substantial and compelling.
This court’s independent review of the record from Cade’s trial compels the same
conclusion reached by the TCCA in Cade’s direct appeal – the evidence at trial
established Cade engaged in an escalating pattern of violent criminal misconduct
culminating in his double-murder of Fuller and Desaree.288 Cade’s statements to
police following his arrest included a detailed account of how he (1) planted a
recording device under his and Fuller’s bed; (2) later retrieved that device; (3)
listened for hours to Fuller’s telephone conversation with her ex-husband; and (4)
then obtained a knife before he confronted Fuller about the contents of that recorded
conversation. This court’s independent review of Cade’s writings, apparently written
during the aftermath of Cade’s crimes and left at the crime scene, establishes those
288 Cade v. State, 2015 WL 832421, at *4.
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writings included numerous statements in which Cade declared that the blame for his
murderous conduct rested with Fuller and her ex-husband. Thus, the evidence
introduced at trial show Cade’s violent actions toward Fuller on the night of the
murders was premeditated. The trial evidence also showed that, despite his verbal
expressions of sorrow and remorse to police, in the immediate aftermath of his
offense, Cade remained unrepentant and unwilling to accept responsibility for his
criminal misconduct. The TCCA reasonably concluded on direct appeal that the
evidence of Cade’s future dangerousness was legally sufficient to support the jury’s
affirmative answer to the future dangerousness special issue.289 This evidence was not
merely sufficient to support the jury’s answer to the future dangerousness special
issue. It was compelling.
As the TCCA pointed out both on direct appeal and in the factual findings it
adopted during Cade’s initial state habeas corpus proceeding, numerous witnesses
testified for both parties in a manner relevant to the future dangerousness special
issue. Defense expert Woods countered some, but not all, of the things included in
prosecution expert Turner’s descriptions of the TDCJ inmate classification system,
i.e., the TDCJ’s policy for managing inmates. The mental health experts who testified
at Cade’s trial agreed that Cade functioned intellectually in the low average to
borderline range yet had managed to graduate from high school, earn college credits,
289 Id. at *8.
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obtain a Texas driver’s license, and earn a forklift operator’s certification. What none
of the expert or lay witnesses who testified on behalf of Cade at trial could do,
however, was effectively negate the prosecution’s unchallenged evidence showing
both the depraved circumstances of Cade’s capital offense and Cade’s lengthy history
of escalating violence, especially toward women.
The proffered opinions of Dr. Sorensen and Dr. Vigen were premised upon
extremely sparse information relating to Cade personally and would have done little
to diminish the prosecution’s evidence of Cade’s future dangerousness. The state
trial court reasonably concluded the speculative opinions in question lacked
demonstrated methodologies to support them, were not based upon mental health
evaluations of Cade, were not based on adequate information about Cade personally,
and were unreliable and inadmissible.
The TCCA’s rejections on the merits during Cade’s direct appeal and initial
state habeas proceeding of his complaint about the trial court’s exclusion of the
expert testimony of Dr. Sorensen and Dr. Vigen were neither contrary to, nor
involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States, nor resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in Cade’s trial, direct appeal, and initial state habeas proceedings. Under
AEDPA, Cade’s eleventh claim does not warrant federal habeas corpus relief.
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For the same reasons, even under a de novo standard of review, the exclusion of
the proffered testimony of Cade’s experts (Dr. Sorensen and Dr. Vigen) did not
render Cade’s capital murder trial fundamentally unfair. The exclusion of their
proffered testimony was not crucial or critical to the outcome of the punishment
phase of Cade’s trial.290 Furthermore, the evidence at trial showing Cade’s propensity
for future violence was compelling. Any error resulting from the exclusion of the
proffered expert testimony in question was harmless under Brecht.
Texas courts generally decline to admit expert opinion testimony in a capital
sentencing proceeding that is unrelated to the defendant’s individual characteristics
or unsupported by established research methodologies and theory.291 The state trial
court did not render Cade’s capital murder trial fundamentally unfair by excluding
the proffered expert opinion testimony in question. Nor did it harm Cade within the
meaning of Brecht. Cade’s eleventh claim does not warrant federal habeas relief even
when reviewed under a de novo standard.
290 See Gonzalez, 643 F.3d at 431.
291 See Coble v. State, 330 S.W.3d 253, 277-80 (Tex. Crim. App. 2010)
(holding trial court erred in admitting opinion testimony on future dangerousness
from a forensic psychiatrist where the expert (1) identified no objective source
material to substantiate his methodology and (2) evaluated the defendant eighteen
years before but retained no contemporaneous notes of that evaluation and
presumably had no independent recollection of same), cert. denied, 564 U.S. 1020
(2011).
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J. Punishment Phase Prosecutorial Jury Argument
In his fourteenth claim in his second amended petition Cade argues the trial
court erred in overruling his trial counsel’s objections to various closing jury
arguments made by the prosecution at the punishment phase of trial.292 Succinctly
stated, Cade contends that the State misstated the law by suggesting that the death
penalty would be a proper verdict based only on an affirmative answer to the
future-dangerousness special question. Cade presented a similar argument as his
fourteenth point of error on direct appeal.293 The TCCA rejected this argument on
the merits when it affirmed Cade’s conviction and sentence on direct appeal.294
292 ECF no. 127, 148-50.
293 Appellant’s Brief 78-80 [ECF no. 68-17, 101-03].
294 The TCCA concluded as follows:
The record shows that, after correctly stating the two
special issues, the prosecutor linked the evidence presented
at trial to them. See Art. 37.071, § 2(b)(1), 2(e)(1). The
prosecutor first focused on the offense facts, arguing that
the “horrific[,] senseless, unjustified violence” [Cade] had
inflicted was relevant to both special issues and showed
that [Cade] was the type of person who “deserv[ed] a
death sentence” – “exactly what Special Issue 1 and 2 are
about.” She also drew the jury’s attention to the evidence
of [Cade]’s extraneous offenses and other bad acts, arguing
that they constituted additional reasons for the jury to
return an affirmative answer to the future-dangerousness
special issue. After asking the jury to return an affirmative
answer on future dangerousness, the prosecutor segued
into her argument concerning the mitigation issue:
(continued...)
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Improper jury argument by a prosecutor furnishes a sufficient basis for federal
294(...continued)
The answer to Special Issue No. 1 is yes.
What the State of Texas asks [is] that you
vote that way, all of you, and you move on to
Special Issue No. 2.
Now on this special issue, we don't have the
burden of proof, [and] neither does the
defense. It’s left up to you. And [Special
Issue No. 2] really asks you is there anything
that is sufficiently mitigating to warrant that
he shouldn’t have the death sentence that
you’ve already determined that he deserves by
the answer of yes to Special Issue No. 1.
[Cade] objected to the last sentence of the passage set
forth above, arguing that it misstated the law because “the
death sentence is not imposed until all questions are
answered.” The trial court overruled the objection.
We perceive no misstatement of law. The prosecutor did
not argue that [Cade] could lawfully receive a death
sentence based only on an affirmative answer to the
future-dangerousness special issue. The State’s argument
was reasonably understood as a hypothetical, in which it
posited that the jury had already answered “yes” to the
future-dangerousness special issue and was beginning to
deliberate on the mitigation issue. Once the jury has made
an affirmative finding concerning future dangerousness, a
defendant’s sentence is presumptively death unless, after
considering the mitigating evidence presented to it, the
jury also answers the mitigation special issue in the
affirmative or deadlocks on that issue. See Art. 37.071,
§ 2(g). Point of error fourteen is overruled.
Cade v. State, 2015 WL 832421, at *18.
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habeas relief only if the prosecutor’s remarks are “‘so prejudicial that they [violate the
defendant’s due process rights] and render the trial fundamentally unfair.’”295 “‘To
establish that a prosecutor’s remarks are so inflammatory as to prejudice the
substantial rights of a defendant, the petitioner must demonstrate either persistent
and pronounced misconduct or that the evidence was so insubstantial that (in
probability) but for the remarks no conviction would have occurred.’”296 Under
Texas law, proper prosecutorial jury argument takes four forms: (1) summation of
the evidence; (2) reasonable inference or deduction from the evidence; (3) response
or rebuttal to the arguments of the defense; and (4) plea for law enforcement.297
The TCCA’s conclusion in its opinion on direct appeal that the prosecutor’s
punishment phase jury argument to which Cade’s trial counsel objected accurately
stated Texas law is binding on this court in this federal habeas corpus action.298 The
TCCA’s assessment of Texas law is consistent with the Supreme Court’s construction
295 Hughes v. Quarterman, 530 F.3d 336, 347 (5th Cir. 2008) (quoting
Harris v. Cockrell, 313 F.3d 238, 245 (5th Cir. 2002), cert. denied, 540 U.S. 1218
(2004)), cert. denied, 556 U.S. 1239 (2009); see also Romano v. Oklahoma, 512 U.S. 1,
12-13 (1994).
296 Bridge v. Lynaugh, 838 F.2d 770, 774 (5th Cir. 1988) (per curiam)
(quoting Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986)).
297 Ward v. Dretke, 420 F.3d 479, 497 (5th Cir. 2005) (citations omitted),
cert. denied, 547 U.S. 1040 (2006); see also Hughes, 530 F.3d at 347; Milton v. State,
572 S.W.3d 234, 239 (Tex. Crim. App. 2019) (citation omitted).
298 See Bradshaw, 546 U.S. at 76; see also Garza, 738 F.3d at 677; Paredes,
574 F.3d at 291.
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of the Texas capital sentencing special issues.299 The TCCA reasonably concluded
there was no error under Texas law in the prosecution’s closing punishment phase
jury argument in question.
Furthermore, the prosecution’s punishment phase jury argument in question
did not preclude the jury from giving effect to any of the mitigating evidence before
the jury at the punishment phase of Cade’s trial. Cade’s arguments to the contrary
are unpersuasive. Cade relies on the Supreme Court’s decisions in Smith v. Texas300
and Brewer v. Quarterman,301 but his reliance on these opinions is misplaced. Both of
those decisions dealt with Texas capital sentencing proceedings conducted prior to
the Texas Legislature’s adoption of the Texas capital sentencing statute’s mitigation
special issue.302
Cade’s capital sentencing jury, in contrast, had before it the mitigation special
issue and trial court instructions directing the jury to consider all of the evidence
299 See Andrus v. Texas, 590 U.S. 806, 821 (2020) (“In Texas, a jury cannot
recommend a death sentence without unanimously finding that a defendant presents
a future danger to society (i.e., that the State has made a sufficient showing of
aggravation). Tex. Code Crim. Proc. Ann., Art. 37.071, § 2(b)(1). Only after a jury
makes a finding of future dangerousness can it consider any mitigating evidence.
Ibid.”).
300 543 U.S. 37 (2004).
301 550 U.S. 286 (2007).
302 Brewer, 550 U.S. at 290-91; Smith, 543 U.S. at 39-40.
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addressing the circumstances of Cade’s capital offense and all of the evidence
addressing Cade’s background, character, and personal moral culpability when
answering the special issues.303 Under such circumstances, the failure of the trial
court to sustain Cade’s trial counsel’s objection in question did not render the
punishment phase of Cade’s capital murder trial fundamentally unfair.
The TCCA’s rejection on the merits during Cade’s direct appeal of his
complaint about the trial court’s overruling of his objection to the prosecution’s
punishment phase jury argument in question was neither contrary to, nor involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, nor resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in Cade’s
trial and state direct appeal proceedings. Under AEDPA, Cade’s fourteenth claim
does not warrant federal habeas corpus relief.
K. Ineffective Assistance Claims
Cade asserts several complaints about the performance of his trial counsel,
including that his trial counsel: stipulated to the summary excusal of several venire
members based on their answers to juror questionnaires (Claim 2); failed to present a
defense at the guilt-innocence phase of trial based upon the assertion that Cade was
303 Cade’s punishment phase jury charge appears at ECF no. 68-5 at
415-421.
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“not sufficiently conscious at the time of the killings” to possess the requisite mental
state to be liable for the offense (Claim 4); elicited testimony at the guilt-innocence
phase of trial showing Cade was a convicted felon (Claim 5); failed to timely object at
the guilt-innocence phase of trial to victim impact testimony (Claim 6); failed to
object to the prosecution’s outside-the-record jury argument drawing the jury’s
attention to the conduct of defense witness Gregory Scott after Scott exited the
witness stand (Claim 7); failed to adequately investigate Cade’s background and
present all available mitigating evidence, including the proffered testimony of
Dr. Vigen relating to future dangerousness (Claim 10); and failed to adequately
investigate Cade’s background and present all available mitigating evidence, including
evidence showing Cade’s offense was out-of-character for him, Cade was profoundly
remorseful, Cade experienced an impoverished, neglected and abusive childhood, and
Cade suffered from a variety of psychological and neurological conditions (low
intellectual functioning, frontal lobe brain damage, post-traumatic stress symptoms,
and symptoms of schizophrenia) (Claim 15).304
Many of these ineffective assistance claims reference or are premised upon
Cade’s trial counsels’ alleged failure to comply with the ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases. Insofar
as Cade relies upon the ABA’s Guidelines, those recommendations for the
304 See ECF no. 127, 48-56, 65-109, 119-134, 151-232.
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performance of trial counsel do not set forth the operative standard of judicial review
for the performance of trial counsel.305 Indeed, “[n]o particular set of detailed rules
for counsel’s conduct can satisfactorily take account of the variety of circumstances
faced by defense counsel or the range of legitimate decisions regarding how best to
represent a criminal defendant. Any such set of rules would interfere with the
constitutionally protected independence of counsel and restrict the wide latitude
counsel must have in making tactical decisions.”306
The constitutional standard for determining whether a criminal defendant has
been denied the effective assistance of trial counsel, as guaranteed by the Sixth
Amendment, was announced by the Supreme Court in Strickland:
A convicted defendant’s claim that counsel’s assistance was
so defective as to require reversal of a conviction or death
sentence has two components. First, the defendant must
show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the
305 Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (per curiam) (the ABA
Guidelines “are ‘only guides’ to what reasonableness means, not its definition”)
(quoting Strickland, 466 U.S. at 688); Druery v. Thaler, 647 F.3d 535, 541 n.2 (5th
Cir. 2011) (“Petitioner relies upon ABA Guidelines and State Bar of Texas Guidelines
to support his ineffective-assistance-of-counsel claim. We note that while these may
be ‘useful as ‘guides’ to what reasonableness entails,’ they certainly do not define
reasonableness. . . . Best practices urged by the ABA do not necessarily track the
contours of the Sixth Amendment. Consequently, the guidelines do not function as
‘inexorable commands’ with which all capital defense counsel ‘must fully comply.’”)
(quoting Bobby, 558 U.S. at 7, 8)), cert. denied, 565 U.S. 1207 (2012).
306 Strickland, 466 U.S. at 688-89.
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defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in
the adversary process that renders the result unreliable.307
To satisfy the first prong of Strickland, a convicted defendant must show that
counsel’s representation “fell below an objective standard of reasonableness.”308 In so
doing, a convicted defendant has the burden of proof and must overcome a “strong
presumption” that the conduct of his trial counsel “falls within [a] wide range of
reasonable professional assistance[.]”309 “That standard is necessarily a general one.
‘No particular set of detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a criminal defendant.’”310 Under
the well-settled Strickland standard, the Supreme Court recognizes a strong
presumption that counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.”311
307 Id. at 687.
308 Id. at 688; see also Wiggins, 539 U.S. at 521.
309 Strickland, 466 U.S. at 689.
310 Bobby, 558 U.S. at 7 (quoting Strickland, 466 U.S. at 688-89).
311 Strickland, 466 U.S. at 690; see also Cullen, 563 U.S. at 189.
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To satisfy the “prejudice” prong, a convicted defendant must establish “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”312 “Reasonable probability” means “a
probability sufficient to undermine confidence in the outcome of the proceeding.”313
In those instances in which the state courts failed to adjudicate either prong of
the Strickland test, such as those complaints the state courts summarily dismissed
under the Texas writ-abuse statute or which the petitioner failed to fairly present to
the state courts, this court’s review of the unadjudicated prong is de novo.314
Under AEDPA’s deferential standard of review, claims of ineffective assistance
adjudicated on the merits by a state court are entitled to a doubly deferential form of
federal habeas review. AEDPA, by setting forth necessary predicates before state
court judgments may be set aside, “erects a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state court.”315 Under 28 U.S.C.
§ 2254(d)(1), “‘a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error
312 Strickland, 466 U.S. at 694.
313 Id.
314 See Porter, 558 U.S. at 39 (citing Rompilla, 545 U.S. at 390).
315 Burt v. Titlow, 571 U.S. 12, 19 (2013).
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well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.’”316
As the Supreme Court explained in Harrington v. Richter:
The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable.
This is different from asking whether defense counsel’s
performance fell below Strickland’s standard. Were that
the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim on
direct review of a criminal conviction in a United States
district court. Under AEDPA, though, it is a necessary
premise that the two questions are different. For purposes
of § 2254(d)(1), “an unreasonable application of federal law
is different from an incorrect application of federal law.” A
state court must be granted a deference and latitude that
are not in operation when the case involves review under
the Strickland standard itself.
A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as “fairminded
jurists could disagree” on the correctness of the state
court’s decision. And as this Court has explained,
“[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” “[I]t is not an
unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that
has not been squarely established by this Court.”317
316 White v. Wheeler, 577 U.S. 73, 77 (2015) (quoting White v. Woodall, 572
U.S. 415, 419-20 (2014) (quoting Harrington, 562 U.S. at 103)).
317 Harrington, 562 U.S. at 101 (citations omitted, emphasis in the
original).
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1. Stipulation to Excusing Venire Members (Claim 2)
In his second ground for relief in his second amended federal habeas petition,
Cade argues his trial counsel rendered ineffective assistance by agreeing to a
stipulation with the prosecution under which those venire members whose juror
questionnaire answers fell into the extreme at both ends of the spectrum in terms of
their support for or opposition to the death penalty would be excused without having
to be examined during voir dire.318 Cade did not present this complaint of ineffective
assistance to any state court until he included it as his second claim in his first
subsequent (second) state habeas application.319 The TCCA summarily dismissed
this claim when it dismissed Cade’s first subsequent (second) state habeas application
based on state writ-abuse principles.320
Here, Cade complains that his trial counsel stipulated to the summary
dismissal of 57 venire members (out of more than 540) based upon the attitudes
toward the death penalty reflected in their answers to the juror questionnaire.321
318 ECF no. 127, 49-56.
319 See First Subsequent (Second) State Habeas Application 39-46 [ECF no.
134-17, 139-53].
320 Ex parte Cade, 2021 WL 1202479, at *1-*2.
321 ECF no. 127, 53.
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Cade alleges further that a May 2012 survey found 42% of Dallas County residents
strongly supported the death penalty while 10% strongly opposed it.322
Assuming the accuracy of the polling numbers cited by Cade, the decision by
his trial counsel to remove those venire members whose views on the death penalty as
expressed in their juror questionnaires fell into either extreme of the spectrum, that
decision was objectively reasonable. Such a strategy was likely to result in the
removal of far more venire members who were strongly in favor of the death penalty
than in the removal of venire members who were strongly opposed to the death
penalty. This statistical assumption is supported by the fact that Cade’s trial counsel
utilized all fifteen of their peremptory strikes during jury selection and then
requested and obtained additional peremptory strikes – all of which they exhausted.
Meanwhile, the prosecution used only seven of its fifteen peremptory strikes. It was
objectively reasonable for Cade’s trial counsel to assume that the majority of the
Dallas County citizens called to serve as potential jurors in his capital murder trial
who held strong views on the death penalty would likely be supporters of the death
penalty.
In fact, the disparate use of peremptory strikes by both sides during jury
selection in Cade’s case confirms it was objectively reasonable for Cade’s trial counsel
to stipulate to the dismissal of a group of venire members likely to favor the death
322 Id. at 53-54.
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penalty quite strongly (versus opposing it) by a ratio of more than four-to-one. Based
on the polling data alleged by Cade in his second amended federal habeas petition,
his trial counsels’ decision to stipulate to removal of all venire members with strongly
held opinions on the death penalty was a sound, objectively reasonable, strategic
decision.
Cade’s statistics and arguments are insufficient to overcome the presumption
that the decision by his trial counsel to enter the joint stipulation with the
prosecution fell within the wide range of objectively reasonable trial strategy
permissible under Strickland.323 Cade’s second claim does not satisfy the deficient
performance prong of Strickland.
Cade has alleged no specific facts showing that, but for his state trial counsels’
decision to enter into the stipulation in question, there is a reasonable probability the
outcome of either phase of Cade’s capital murder trial would have been any different.
Cade can only speculate that a juror favorable to the defense might have been
discoverable during individual voir dire within the group of venire members removed
by stipulation. The premise underlying this ineffective assistance claim appears to be
that Cade possessed a Sixth Amendment right to have his jury selected from a jury
venire constructed without consideration of the views those venire members
possessed on the propriety of capital punishment. As the Supreme Court explained
323 Strickland, 466 U.S. at 689.
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in Lockhart, however, prosecution challenges for cause or peremptory strikes based
upon a venire member’s views on capital punishment do not violate the
Constitution.324 The evidence presented by the prosecution at both phases of Cade’s
capital murder trial was not just compelling but overwhelming. Cade’s second claim
also fails to satisfy the prejudice prong of Strickland.
Cade’s second claim fails to satisfy either prong of Strickland and does not
warrant federal habeas relief under a de novo standard of review.
2. Failure to Present a Diminished Capacity Defense at Guilt-Innocence Phase (Claim 4)
In his fourth claim in his second amended federal habeas petition, Cade argues
that his trial counsel should have avoided presenting his “nonviable” insanity defense
and, instead, should have presented a defense at the guilt-innocence phase of trial
arguing that Cade was insufficiently conscious at the time of the killings to possess
the requisite criminally liable mental state.325
Cade presented a somewhat similar set of ineffective assistance complaints as
his first, third, and fifth claims in his initial state habeas application.326 In those
324 Lockhart, 476 U.S. at 176-77 (“In sum, “Witherspoon-excludables,” or for
that matter any other group defined solely in terms of shared attitudes that render
members of the group unable to serve as jurors in a particular case, may be excluded
from jury service without contravening any of the basic objectives of the
fair-cross-section requirement.”).
325 ECF no. 127, 65-98.
326 See Initial State Habeas Application 31-44, 59-76, 82-85 [ECF no. 71-4,
(continued...)
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three claims, Cade argued that his trial counsel rendered ineffective assistance by (1)
asserting an insanity defense that was without merit, thereby losing credibility with
the jury; (2) failing to present a detailed account of Cade’s abusive, neglected, and
impoverished childhood and tying same to Cade’s emotional difficulties during his
offense through the testimony of a social historian; and (3) failing to present the
testimony of Dr. McGarrahan at the punishment phase of trial to establish that Cade
suffered from depression, sleep deprivation, and suicidal ideation.
The state habeas trial court made numerous factual findings concerning the
conduct of Cade’s trial counsel. In connection with Cade’s complaint about his trial
counsels’ assertion of an insanity defense unsupported by expert opinion testimony,
the state habeas trial court concluded that “counsel’s investigation into an insanity
defense was timely initiated, diligently pursued, and thorough [and] certainly
fell within reasonable professional norms and was not deficient[,]” finding in part as
follows:
• Cade informed his lead defense counsel shortly after said counsel’s
appointment that Cade had recorded his girlfriend talking via Skype
with her ex-husband, his girlfriend had previously threatened Cade with
a knife, so he did likewise, but he “got out of control,” and when her
daughter came into the room “to help mom . . . he lost it with her too.”
• Early in their representation of Cade, his trial counsel hired an
experienced clinical and forensic psychologist, Dr. Compton, to serve as
defense mitigation specialist “because she was experienced at
326(...continued)
34-47, 62-79, 85-88].
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evaluating for insanity and competency.”
• Cade’s defense team early on “sought out the services of and ultimately
employed numerous psychological experts” to assist in developing an
insanity defense.
• Cade’s defense explored the defenses of insanity and sudden passion,
including retaining the services of multiple mental health experts but
ultimately chose not to assert a sudden passion defense.
• After evaluating Cade, Dr. McGarrahan reported that Cade functioned
in the borderline to low-average range intellectually, was depressed,
reported symptoms of PTSD, and his ability to process information was
mildly impaired.
• Dr. Lisa Clayton, a board certified psychiatrist, evaluated Cade for the
defense and concluded Cade was not legally insane.
• The defense retained Dr. Michael Gottlieb, a psychologist, to examine
what effects that childhood sexual abuse might have had on Cade.
• A June 2012 MRI of Cade’s brain revealed “nothing of significance.”
• In an email to defense counsel dated June 9, 2012, Dr. Compton
hypothesized that Cade’s offense could be explained as “an emotional
hijacking in which rage overtook rational thought processes and
diminished behavior control [and thus was] a sudden passion offense
which rendered [Cade] temporarily insane.”
• In furtherance of the insanity defense “premised on abandonment rage
and amygdala highjacking,” the defense hired additional experts,
including Dr. William Flynn.
• Dr. Flynn conducted and recorded an evaluation during which Cade
“reenacted [his] victims’ screams while he was stabbing them.”
• To avoid prosecution access to the recording of Dr. Flynn’s evaluation
session, the defense chose not to employ Dr. Flynn as a testifying
witness.
• The defense retained another forensic psychologist, Dr. Emily Fallis, to
evaluate Cade for sudden passion and other defenses, but she reported
her conclusion that Cade was not insane at the time of his capital
offense.
• The defense retained the services of psychologist Dr. Daniel Altman to
testify regarding the chances of inheriting a mental disease or defect
(such as Cade’s father’s schizophrenia).
• The defense retained the services of Dr. Gilda Kessner, initially to assist
with the insanity defense but later chose to employ her as an expert on
abandonment rage. “Counsel did not send her in to personally evaluate
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[Cade] or render a professional opinion as to whether [Cade] was, in
fact, insane at the time of the offense.”
• Cade’s trial counsel chose to assert an insanity defense despite the
absence of any expert opinion testimony corroborating same, in part,
because doing so (1) allowed the defense to voir dire potential jurors
with regard to insanity and mental health issues, and (2) it allowed the
defense to “frontload” its case in mitigation through guilt-innocence
phase presentation of testimony detailing Cade’s (a) abusive, neglected,
and impoverished childhood, (b) history of childhood sexual abuse,
(c) depression, (d) PTSD symptoms, and (e) father suffered from
schizophrenia.
• Because Texas law does not require expert opinion testimony to
establish insanity, Cade’s defense team was able to rely on lay witness
testimony and the grisly circumstances of Cade’s capital offense to argue
that Cade was insane at the time of his offense.
• Cade’s insanity defense was premised upon the extremely violent nature
of the crime, the level of overkill involved therein, and the abandonment
rage theory, which suggested Cade’s traumatic childhood caused him to
experience an overwhelming fear when Fuller threatened to end their
relationship, which morphed into uncontrolled rage and a need to
protect himself.
• Cade’s defense team reasonably concluded that “an insanity-qualified
jury would be more receptive to” Cade’s mental health mitigating
evidence.
• Cade’s insanity defense had the potential to result in a conviction for
the lesser-included offense of murder if the jury believed Cade’s murder
of Desaree was the product of uncontrollable abandonment rage
resulting in temporary insanity.327
With regard to Cade’s complaint about his trial counsels’ failure to present
testimony detailing Cade’s childhood trauma and abuse through a social historian,
the state habeas trial court concluded that Cade “fail[ed] to demonstrate by a
preponderance of the evidence any deficiency in trial counsel’s decision not to
327 See FFCL pp. 11-27, ¶¶ 14-66 [ECF no. 71-9, 650-66]; see also id. pp.
20-27, ¶¶ 67-115 [ECF no. 71-9, 666-673].
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present the testimony of a social historian[, but e]ven assuming counsel’s decision
was deficient, [Cade] fail[ed] to demonstrate by a preponderance of the evidence any
resulting prejudice[,]” finding in part that:
• Cade’s trial counsel presented extensive testimony through expert and
lay witnesses showing Cade’s history of (1) childhood neglect and abuse,
including sexual abuse, (2) a lack of adult supervision throughout
childhood, (3) physical abuse by both his parents, (4) exposure to
violence as a child, (5) parental drug and alcohol abuse, and (6) a lack
of a stable environment at home.
• Cade’s trial counsel also presented expert and lay testimony showing
Cade experienced many psycho-social stressors at the time of his
offense, including back pain which had rendered him unable to work,
emotional trauma arising from Fuller’s rejection of their romantic
relationship, and other psychological issues which combined to cause
Cade to lose control of his emotions at the time of his offense.
• Utilizing the testimony of a social historian to furnish a comprehensive
overview of Cade’s entire life story had the potential to disclose a wealth
of aggravating evidence of which the prosecution was unaware, including
evidence showing that (1) Cade had worked as a drug dealer, (2) Cade
once intentionally dropped a bowling ball on a cat’s head, and (3) Cade
left the crime scene hours after the murders, obtained lubricant,
returned to the crime scene, watched pornography, and then sexually
assaulted Fuller’s corpse.
• The testimony from social historian and social worker Laura Sovine
during Cade’s state habeas proceeding regarding her biopsychosocial
assessment of Cade offered little of substance in terms of mitigating
evidence about Cade’s background that was new or genuinely helpful to
the defense.
• The affidavit of Dr. Scott Bowman, a professor of criminal justice,
attached to Cade’s initial state habeas application [found at ECF no.
71-4, 158-81] discussed general theories about the causes and risks of
criminal behavior, which Dr. Bowman unsurprisingly associated with a
turbulent, unstable childhood lacking in parental guidance, which often
leads to an adult who lacks self-control.
• The record from Cade’s trial is inconsistent with Dr. Bowman’s
characterization of Cade as a person lacking in the ability to plan;
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“[r]ather, the record shows [Cade to be] a man capable of patience and
forethought.”
• Dr. Bowman’s opinions would have supported an affirmative finding on
the future dangerousness special issue if offered at Cade’s trial “and,
thus, would have harmed [Cade]’s defense, not helped it.”
• Social worker Laura Sovine’s assessment of Cade was based exclusively
on Cade’s life history from birth to age eighteen, did not include any
consideration of Cade’s behavior during the remainder of his life, and,
thus, was of limited utility.
• Laura Sovine “would also have had to acknowledge [Cade]’s prior drug
dealing [, and] she would have had to acknowledge that Al Merchant, a
sex offender treatment provider and social worker who treated [Cade]
after his conviction for the sexual assault of Charity Trice, rightly
predicted that [Cade] would reoffend.”
• The prosecution’s evidence of Cade’s violent past and the facts and
circumstances of the capital murder constituted strong and persuasive
evidence of Cade’s future dangerousness which rendered it improbable
that testimony such as that proffered by Laura Sovine or included in
Dr. Bowman’s affidavit would have altered the outcome of the
punishment phase of Cade’s trial.328
With regard to Cade’s trial counsels’ decision not to present a mental health
expert like Dr. McGarrahan, who had actually evaluated Cade, to testify regarding
Cade’s propensity for future violence, the state habeas trial court concluded that
counsels’ “concerns about offering Dr. McGarrahan’s testimony in the punishment
phase were well-founded[,]” finding in part that:
• Dr. McGarrahan proffered testimony during the guilt-innocence phase
of trial which showed Cade suffered from depression, reported
symptoms of PTSD, scored in the borderline to low-average range of
intellectual functioning, and appeared remorseful.
• Cade’s defense team chose not to present Dr. McGarrahan’s testimony
at the punishment phase of trial because they believed doing so would
328 See id. pp. 43-51, ¶¶ 220-70 [ECF no. 71-9, 689-97].
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require them to allow a prosecution mental health expert to evaluate
Cade with regard to mitigation, a much wider form of evaluation than
that conducted on insanity.
• The prosecution confirmed that, if Dr. McGarrahan had testified at the
punishment phase of trial, it would have sought to conduct further
expert evaluation of Cade on future dangerousness and mitigation; the
trial court would have granted such a request by the State.
• Defense counsels’ decision not to present Dr. McGarrahan’s testimony
at the punishment phase of trial was “a sound and reasonable strategic
choice” and did not prejudice Cade.
• Under Lagrone v. State, 942 S.W.2d 602, 609-12 (Tex. Crim. App.), cert.
denied, 522 U.S. 917 (1997), if a defendant plans to introduce expert
testimony on future dangerousness, the State is entitled to compel the
defendant to undergo an examination by the State’s expert for rebuttal
purposes.
• By offering Dr. McGarrahan’s testimony for the purpose of showing
mitigation or a lack of future dangerousness the defendant would have
“open[ed] the door to the State offering its own expert rebuttal·
testimony on those issues.”
• An evaluation of Cade by a State expert for purposes of rebutting
mitigation or lack of dangerousness testimony by a defense expert would
have risked disclosing to the prosecution additional aggravating
evidence, including evidence Cade had informed others that he left the
scene after the murders, purchased lubricant, returned later, watched
pornography, and sexually assaulted Fuller’s corpse.
• Cade told some of the defense’s other experts things which contradicted
the information he had related to Dr. Compton.
• Dr. McGarrahan’s proffered testimony was largely repetitious of the
testimony of other witnesses, such as Dr. Kessner and Dr. Proctor, and
would have afforded Cade little benefit.
• Cade’s trial counsel presented evidence of Cade’s remorse through
Cade’s recorded post-arrest interviews.329
329 See id. pp. 61-66, ¶¶ 321-50 [ECF no. 71-9, 707-12].
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The TCCA expressly adopted all of the foregoing factual findings when it
denied Cade’s initial state habeas application on the merits.330 Cade has not alleged
any specific facts or presented this court with clear and convincing evidence showing
that any of the foregoing factual findings were erroneous.
Cade included an expanded and revamped version of this ineffective assistance
claim, supported by new affidavits and other exhibits, as his fourth claim in his first
subsequent (second) state habeas application.331 The TCCA summarily dismissed
this claim when it dismissed Cade’s first subsequent (second) state habeas application
based on state writ-abuse principles.332
This court will undertake AEDPA analysis of the portion of Cade’s fourth
claim in his second amended habeas corpus petition that was fairly presented to the
state courts during Cade’s initial state habeas corpus proceeding. Insofar as Cade’s
fourth federal habeas claim incorporates the expanded version of this ineffective
assistance claim included in Cade’s dismissed first subsequent (second) state habeas
application or any additional materials submitted by Cade for the first time in this
proceeding, this court will undertake de novo review of the expanded claim.
330 Ex parte Cade, 2017 WL 4803802, at *3.
331 First Subsequent (Second) State Habeas Application 56-95 [ECF no.
134-17,173-251].
332 Ex parte Cade, 2021 WL 1202479, at *1-*2.
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Cade’s fourth claim in his second amended federal habeas petition is premised
upon an erroneous view of applicable Texas law. More specifically, Cade cites Bradley
v. State333 for the proposition that Texas recognizes a defense to a charge of murder
based on a showing the defendant experienced confused thoughts of awakening
consciousness at the time of the offense.334 Cade argues his trial counsel should have
presented evidence showing Cade was experiencing “confusional arousal” at the time
of his offense. Cade misconstrues the holding in Bradley and its progeny. Bradley was
decided almost a half-century before the Texas Legislature adopted the Texas Penal
Code, which limits the availability of diminished capacity defenses in criminal
proceedings.
In Bradley, the TCCA recognized as a defense in a criminal proceeding based
upon a showing that the defendant was engaged in somnambulism or sleepwalking,
and therefore in a state of unconsciousness or automatism at the time of the
offense.335 A few years before deciding Bradley, the TCCA held in Zimmerman v.
State336 that evidence showing the defendant was experiencing an epileptic seizure at
the time of the offense was a viable defense in a Texas criminal prosecution.
333 102 Tex. Crim. 41, 277 S.W. 147, 149 (Tex. Crim. App. 1925).
334 ECF no. 127, 80-82.
335 Bradley, 277 S.W. at 148-49.
336 85 Tex. Crim. 630, 215 S.W. 101, 105-06 (Tex. Crim. App. 1919).
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Although the TCCA’s early-twentieth-century opinions in Bradley and Zimmerman
referred to these defenses as forms of “insanity,”337 the TCCA used the term
“insanity” to describe a concept inconsistent with the narrow statutory definition of
that term currently found in § 8.01(a) of the Texas Penal Code.
At present, Texas law recognizes no “diminished capacity” defense except when
evidence shows a defendant suffered from a mental disease or defect so severe as to
rebut or disprove the culpable mental state for the offense.338 Section 8.01(a) of the
Texas Penal Code provides: “[Insanity] is an affirmative defense to prosecution that,
at the time of the conduct charged, the actor, as a result of severe mental disease or
defect, did not know that his conduct was wrong.”339
All of the TCCA opinions citing Bradley since the adoption of the Texas Penal
Code either addressed other aspects of that decision or discussed Bradley for the
principle that an affirmative defense to a criminal prosecution exists under Texas law
based upon a showing that the defendant experienced a condition which made it
337 See Bradley, 277 S.W. at 149 (“Somnambulism is recognized as a
species of insanity.”); Zimmerman, 215 S.W. at 105-06 (rejecting argument that the
defendant was not guilty by reason of “insanity” due to epilepsy because no evidence
suggested the defendant actually experienced an epileptic seizure at the time of the
offense).
338 See Ruffin v. State, 270 S.W.3d 586, 593 (Tex. Crim. App. 2008)
(“Insanity is the only ‘diminished responsibility’ or ‘diminished capacity’ defense to
criminal responsibility in Texas.”) (citation omitted).
339 TEX. PENAL CODE § 8.01(a); see also Ruffin, 270 S.W.3d at 593.
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physically impossible for the defendant to form the requisite mental state to commit
the offense, i.e., a condition which rendered the defendant unconscious and his
physical movements involuntary.340 The TCCA has never held that evidence showing
a criminal defendant was sleepwalking, experiencing an epileptic seizure, or otherwise
unconscious at the time of an offense satisfies the statutory definition of insanity
contained in § 8.01(a).
Instead, the TCCA has explained the type of evidence necessary to establish
that an otherwise sane criminal defendant lacked the necessary mens rea to commit an
offense under Texas law as follows:
The Texas Legislature has not enacted any affirmative
defenses, other than insanity, based on mental disease,
defect, or abnormality. Thus, they do not exist in Texas.
But both physical and mental diseases or defects may
affect a person’s perception of the world just as much as
they may affect his rational understanding of his conduct
or his capacity to make moral judgments. For example,
suppose that a blind person is sitting on his front porch
340 See Lugo-Lugo v. State, 650 S.W.2d 72, 76 (Tex. Crim. App. 1983) (en
banc) (citing Bradley in the course of explaining that an indictment need not allege
voluntariness as an element of a criminal offense because it is an affirmative defense
to prosecution); Jernigan v. State, 585 S.W.2d 701, 704 (Tex. Crim. App. 1979)
(citing Bradley for the principle that evidence of a wife’s infidelity was admissible in a
matricide prosecution only if there was evidence showing the husband/defendant was
aware of the wife’s infidelity); Bermudez v. State, 533 S.W.2d 806, 807 (Tex. Crim.
App. 1976) (citing Bradley in the course of discussing why voluntariness need not be
alleged in a criminal indictment); Brumfield v. State, 445 S.W.2d 732, 736 (Tex. Crim.
App. 1969) (citing Bradley in the course of discussing the proper scope of
cross-examination of a defendant who chose to testify at his trial).
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and hears what he thinks is a trespasser coming up his
walk. He shoots at the person to scare him away, knowing
that it is illegal to shoot at people, even trespassers. The
“trespasser” turns out to be a uniformed police officer who
is coming to serve a subpoena. The blind man may be
prosecuted for aggravated assault with a deadly weapon,
but he cannot be convicted of aggravated assault of a police
officer if, because of his blindness, he did not see the
uniform and did not know that the person was a police
officer. Evidence of the defendant’s blindness would, of
course, be relevant and admissible to rebut the State’s
assertion that the defendant intended to shoot at a police
officer. Such evidence might be elicited from the
defendant, a lay witness – mother, brother, friend, or
neighbor – or from an expert, an optometrist, physician,
etc. Courts routinely admit evidence of a physical
abnormality offered to prove a lack of mens rea.
In Texas, the same rule applies to evidence of a mental
disease or defect offered to rebut or disprove the
defendant’s culpable mens rea. If, instead of blindness, the
defendant suffers from mental delusions such that he sees
a “trespasser” . . . when everyone else around him sees a
police officer, he cannot be convicted of intentionally
shooting at a police officer, although he may be convicted
of intentionally shooting at a trespasser . . . . Guilt of the
greater offense requires that the State prove, beyond a
reasonable doubt, that the defendant intended to shoot a
police officer, not a trespasser . . . . That is the required
mens rea and that is the State’s constitutional burden of
proof.341
Thus, while the TCCA has recognized the continued vitality of the holdings in
Bradley and Zimmerman on the question of the voluntariness of alleged criminal
conduct, those opinions provide little cover for Cade. There was no evidence at trial
341 Ruffin, 270 S.W.3d at 593-94 (footnotes omitted).
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showing that Cade was sleepwalking, experiencing an epileptic or any other types of
seizure, or otherwise unconscious at the time he stabbed Fuller and Desaree dozens
of times each and then sexually assaulted Fuller. Nor does Cade identify any
opinions or conclusions by any of the numerous defense mental health experts who
evaluated him prior to trial showing that any of them were available and willing to
testify at trial that Cade was either sleepwalking, suffering a seizure, or otherwise
unconscious at the time of his offense. The undisputed fact Cade was able to
describe his offense in detail both to law enforcement officers after his arrest and to
his own defense team belies any contention that he was sleepwalking, suffering from
a seizure, or otherwise unconscious at the time of his offense.
The decision by Cade’s trial counsel to refrain from presenting a defense based
upon Cade’s lack of mens rea to commit capital murder was objectively reasonable for
another reason: it would have been futile.342 A pair of TCCA decisions both handed
down after the advent of the Texas Penal Code explain why the decision not to
present mental health evidence and a defense theory of the type Cade now complains
his trial counsel should have presented at the guilt-innocence phase of trial was
objectively reasonable. In Wagner v. State,343 the TCCA recognized that “diminished
342 See Coble v. Quarterman, 496 F.3d 430, 437 (5th Cir. 2007) (“[C]ounsel
was not ineffective for failing to present a diminished capacity defense because
diminished capacity is not cognizable in Texas.”).
343 687 S.W.2d 303 (Tex. Crim. App. 1984).
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capacity” defenses, as recognized in other jurisdictions, are inapplicable under Texas
penal law:
Many jurisdictions that recognize different degrees of
murder based upon whether or not “deliberation” and
“premeditation” are present will admit evidence of
abnormal mental capability where it may contribute to a
reduction from first to second degree murder. However,
V.A.P.C., § 19.02 recognizes no such “degrees” of murder.
Hence, the doctrine of diminished responsibility will not
justify admission of appellant’s proffered evidence to
establish a lesser “degree” of murder.344
After the Texas Legislature amended the Penal Code to make “sudden passion” a
sentencing issue instead of an affirmative defense, the TCCA clarified its holding in
Wagner as follows:
This case does not really present us with a reason to
determine whether the doctrine of diminished capacity
exists in Texas because the evidence of mental illness in
this case does not negate mens rea. Rather, the evidence
presented an excuse for the crime, i.e., that Appellant
killed his brother because he was so paranoid that he
thought his brother was out to get him. In fact, this
evidence makes it even more apparent that Appellant
intended to cause serious bodily injury or death to his
brother. The evidence of appellant’s paranoia simply
provides a motive for the intentional act. The evidence
presented was the type of excuse-based evidence that
would be raised as an affirmative defense. As even
Appellant acknowledges, Texas law does not recognize a
lesser form of the insanity affirmative defense. However,
we will address Appellant’s claims.
344 Id. at 311 (citation omitted).
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First, we disagree with Appellant’s contention that the
opinion of the court of appeals conflicts with our opinion
in Wagner. As in the case before us, Wagner did not raise
an insanity defense. He did, however, want to admit
evidence of a physical injury which may have caused
impaired mental function and lack of impulse control. We
stated that the evidence may have been admissible if it
showed that Wagner acted with sudden passion arising
from an adequate cause. However, because it did not, we
held that admitting evidence of impaired mental function
at the guilt phase of the trial would have confused the jury
and therefore, it was not admissible. We note that this has
changed because sudden passion is now a punishment
issue. As a result, even the part of Wagner which states
that the doctrine of diminished capacity might require the
admission of evidence of sudden passion arising from an
adequate cause now would apply only to the punishment
phase of trial and does not require evidence of mental
illness falling short of insanity to be admitted at the guilt
phase. Under Penal Code section 19.02(d), sudden
passion and adequate cause are raised at the punishment
stage of a trial to reduce the offense to a second-degree
felony.345
The TCCA reasonably concluded that the decision by Cade’s trial counsel to
present an insanity defense, as opposed to a diminished capacity defense, was
objectively reasonable. None of the many mental health experts retained by the
defense prior to trial concluded that Cade was insane at the time of his capital
offense. Moreover, during his initial state habeas proceeding Cade presented the
state courts with no testimony, affidavits, or other evidence from a qualified mental
345 Jackson v. State, 160 S.W.3d 568, 572-73 (Tex. Crim. App. 2005)
(citations and footnote omitted).
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health professional showing that, at the time of his capital offense, Cade was so
psychotic, hallucinatory, or delusional that he was incapable of either forming the
intent to kill Fuller and Desaree or of recognizing that his conduct was illegal. The
details of Cade’s capital offense and the contents of Cade’s writings and statements
to the police in the hours and days immediately following his offense refute any
assertion that Cade’s actions were not intentional. Cade stabbed both of his victims
dozens of times with great force. As the TCCA explained in Jackson, impaired mental
function and a lack of impulse control are not defenses to murder under Texas law.346
During Cade’s initial state habeas proceeding, his forensic psychiatrist, Dr.
Seth Silverman, testified as follows:
• Cade reported that he was hearing voices at that time, usually when he
was isolated from other inmates.
• Cade exhibited some symptoms of schizophrenia, but he could not
diagnose Cade as a schizophrenic.
• Cade has never been to a psychiatric facility for treatment or been
prescribed anti-psychotic medications.
• Cade exhibited emotional lability, impulsivity, and rebelliousness.
• While he had seen evidence indicating Cade’s mother drank excessively
while pregnant with Cade, he could not diagnose Cade with Fetal
Alcohol Syndrome.
• Cade exhibited memory problems.
346 Accord Roberson v. State, No. AP-74,761, 2002 WL 34217382, at *8
(Tex. Crim. App. June 20, 2007) (trial court in capital murder trial did not abuse
discretion in excluding proffered mental expert testimony regarding organic brain
syndrome and poor impulse control “not relevant to the defendant’s ability to form
the requisite mens rea for the offense[;] evidence was offered “as a mental-health
defense not rising to the level of insanity”), cert. denied, 552 U.S. 1314 (2008).
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• He was unfamiliar with the term “abandonment rage” and first
encountered it when reading a portion of the record from Cade’s trial.
• Based on Cade’s reports of multiple head injuries, his clinical interview
with Cade, and his review of Cade’s medical and penal records, he
diagnosed Cade with frontal lobe disinhibition exacerbated by stress,
which resulted in Cade having an impaired ability to control his
emotions.347
Prosecution forensic psychologist Dr. Timothy Proctor testified during Cade’s
initial state habeas proceeding that he re-evaluated Cade in light of Dr. Silverman’s
testimony and concluded that:
• He hypothesized that the voices Cade reported hearing were the
thoughts in Cade’s head, i.e., Cade’s internal dialogue, and not auditory
hallucinations.
• He found Cade displayed no evidence of paranoia.
• Cade’s emotions were within the normal range.
• While Cade reported being involved in two automobile accidents, he
reported no loss of consciousness in either incident.
• Between seventy and eighty-five percent of incarcerated individuals
display anti-social personality disorder.348
Prosecution neuropsychologist Dr. Randall Price testified during Cade’s initial
state habeas proceeding that:
• He evaluated Cade in August 2016 and concluded Cade functioned
intellectually in the low average to average range.
• Cade displayed mild impairment in verbal and visual processing,
primarily with recall of information.
• Nothing in Dr. McGarrahan’s report or data suggested Cade suffered
from brain damage.
347 Dr. Silverman’s testimony during Cade’s initial state habeas proceeding
appears at 6 R.R. Initial State Habeas Hearing [ECF no. 72-6] 7-90.
348 Dr. Proctor’s testimony during Cade’s initial state habeas proceeding
appears at 6 R.R. Initial State Habeas Hearing [ECF no. 72-6] 91-135.
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• Cade displayed some frustration during testing but scored average to
slightly above average when compared with persons of similar education.
• He observed no mood swings by Cade.
• He found no indication of frontal lobe damage or brain dysfunction.
• While multiple concussions can cause brain damage, he believed the
“stingers” reported by Cade during his football career were likely
temporary loss of sensation or paralysis unrelated to brain injury.349
Cade’s defense team had him evaluated prior to trial by multiple mental health
experts. None of them testified that Cade was insane or incapable of forming the
mens rea necessary for murder. Nonetheless, as the state habeas trial court and TCCA
found during Cade’s initial state habeas proceeding, there were legitimate, objectively
reasonable, strategic reasons which fully supported the decision by Cade’s trial
counsel to proceed with presenting an insanity defense in the absence of expert
testimony to support same. Asserting insanity furnished the defense an opportunity
to attack the prosecution’s case at the guilt-innocence phase of trial instead of sitting
back and tacitly admitting guilt. An insanity defense allowed the defense an
opportunity to furnish an explanation for the grisly and repulsive aspects of the
offense. Asserting insanity also allowed defense counsel to voir dire the jury venire
on insanity and, hopefully, obtain a jury more receptive to mental health evidence.
Asserting insanity also allowed the defense to “front load” much of its mitigating
evidence during the guilt-innocence phase of trial without having to make Cade
349 Dr. Price’s testimony during Cade’s initial state habeas proceeding
appears at 6 R.R. Initial State Habeas Hearing [ECF no. 72-6] 136-64.
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available for a mental evaluation by defense experts on any subject other than
insanity.
Cade’s trial counsel and mitigation specialist testified to the foregoing strategic
rationale chosen by Cade’s defense team. More specifically, Dr. Compton testified in
pertinent part during Cade’s initial state habeas proceeding that:
• The defense team retained nine experts to assist in defending Cade and
thoroughly explored Cade’s background but were thwarted at some
points by the fact (1) one of Cade’s brothers (Jerry Scott) was
incarcerated and the defense team did not believe having him testify in
prison garb would be helpful, (2) some of the people to whom they
reached out did not respond back (e.g., Carolyn Singley), (3) when the
defense team contacted him, one relative of Cade (i.e., Karl Rogers)
appeared to be too impaired to be interviewed reliably; (4) some of
Cade’s family members people to whom they reached out informed
them there were no problems with Cade’s childhood (e.g., Mary Rogers);
and (5) Cade’s ex-wife stated that Cade had sexually assaulted her,
making her a problematic potential witness.
• The defense team fully explored the insanity defense.
• As the trial date approached, Cade told other defense experts different
information than he told Dr. Compton and his defense attorneys.
• That problem became so acute both Dr. Kessner and she suspected that
Cade was attempting to undermine his own defense.
• Cade himself indicated early on that he wanted to go with the insanity
defense.
• Asserting an insanity defense allowed the defense to front load
mitigating evidence into the guilt-innocence phase of trial.
• Cade’s capital offense was so explosively violent it cried out for a mental
health defense.
• Asserting an insanity defense allows more in-depth voir dire on venire
members’ views of mental health evidence.
• The defense team was aware that Cade (1) had dealt drugs; (2) was
involved in a shooting of which they thought the prosecution was
unaware; and (3) dropped a bowling ball on a cat.
• Cade also told the defense team that there were multiple sexual assaults
on Fuller, both while she was dying and after her death, and, at one
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point Cade left the crime scene to purchase lubricant, returned to the
crime scene, watched pornography, and then sexually assaulted Fuller’s
corpse.
• The defense team was concerned about and wished to keep from the
jury the foregoing additional aggravating evidence.
• When she administered the Minnesota Multiphasic Personality
Inventory (“MMPI”) to Cade, his score on the Psychopathic Deviate
Scale was elevated.
• The defense team did not want to introduce testimony that would open
the door to a second, more expansive, mental health evaluation by a
prosecution expert because that could result in a diagnosis of Cade as
psychopathic.
• The defense team believed introducing Dr. McGarrahan’s testimony
about future dangerousness based upon her evaluation of Cade might
open that door.
• The defense team believed that employing a social historian to testify
about Cade’s background could also open the door to admission of
much of the foregoing, additional, aggravating evidence unknown by the
prosecution.
• Cade satisfied the criteria for a diagnosis of antisocial personality
disorder (“ASPD”).350
Cade’s lead defense counsel at trial testified during Cade’s initial state habeas
proceeding as follows:
• The defense team hired many mental health experts to evaluate Cade
and assist in the defense.
• Dr. McGarrahan was retained to help show Cade’s relatively low
intellectual functioning and help front load other mitigating evidence
but her testimony was excluded by the trial court at the guilt-innocence
phase of trial.
• While the defense did not call Dr. McGarrahan to testify at the
punishment phase of trial, the defense was able to introduce many of
her conclusions through cross-examination of prosecution expert Dr.
Proctor, who relied on Dr. McGarrahan’s report.
350 Dr. Compton’s testimony during Cade’s initial state habeas proceeding
appears at 2 R.R. Initial State Habeas Hearing [ECF no. 72-2] 19-170.
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• Introducing Dr. McGarrahan’s testimony at the punishment phase of
trial on the issue of future dangerousness would have been problematic
because under Lagrone it could have opened the door to a more
expansive evaluation of Cade by Dr. Proctor and might result in a
diagnosis of ASPD.
• The defense’s mental health experts believed Cade might qualify for a
diagnosis of ASPD.
• There was a recorded telephone conversation between Cade and his
ex-wife in which Cade brought up the insanity defense early on and
demonstrated that Cade was proactive in asserting such a defense.
• Cade wanted the defense team to assert an insanity defense.
• The defense team presented former TDCJ official Woods to show that
TDCJ could control Cade in prison.
• Typically, a social historian will interview a wide range of a defendant’s
family and friends in the search for mitigating evidence – as a result a
social historian often uncovers significant double-edged or overtly
harmful evidence.
• The defense team chose not to have a social historian testify at Cade’s
trial because doing so could open the door to cross-examination
revealing the substantial additional aggravating evidence discovered by
the defense team of which the prosecution was unaware.
• The defense team managed to keep out substantial additional
aggravating evidence detailing Cade’s other bad acts.
• The defense was aware Cade had participated in experimental drug trials
relating to his chronic back pain, but their investigation revealed no
causal relationship between those trials and Cade’s capital offense.
• Asserting the insanity defense allowed the defense to obtain a jury more
favorably disposed toward mental health evidence.
• The defense chose not to call one of Cade’s former high school football
coaches to testify because the coach personally knew Desaree and might
have offered harmful testimony on cross-examination.
• The defense did not pursue having Cade’s daughter Tyra testify at trial
because Cade did not want her involved, Cade’s ex-wife and Tyra’s
mother would not permit the defense to contact Tyra, and Cade had
made statements known to the prosecution suggesting that, if Tyra had
been present at the time of the offense, he likely would have killed her
too.
• In a pretrial ruling, the state trial court announced its plan to admit
evidence at the guilt-innocence phase of trial showing Cade’s status as a
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registered sex offender; this necessarily meant the jury would be aware
that Cade had a prior conviction for a sex offense.351
The foregoing testimony, corroborated by the testimony of Cade’s other two
trial counsel, fully supported the state habeas trial court’s factual findings
summarized above.352
The TCCA reasonably concluded that the failure of Cade’s trial counsel to
present a defense (diminished capacity) which was unavailable under Texas law did
not cause the performance of his trial counsel to fall below an objective level of
reasonableness. Failure to make a meritless motion or objection cannot be grounds
for a finding of deficient performance.353
For similar reasons, the TCCA’s conclusion that Cade’s complaints about his
trial counsel’s failure to present a diminished capacity defense failed to satisfy the
prejudice prong of Strickland was eminently reasonable. Cade was not prejudiced
within the meaning of Strickland by his trial counsels’ failure to raise a factually
351 The lengthy testimony of attorney Lalon “Clipper” Peale during Cade’s
initial state habeas proceeding appears at 2 R.R. Initial State Habeas Hearing [ECF
no. 72-2] 170-269 and 3 R.R. Initial State Habeas Hearing [ECF no. 72-3] 12-48.
352 The testimony of attorney John Tatum during Cade’s initial state
habeas proceeding appears at 3 R.R. Initial State Habeas Hearing [ECF no. 72-3]
49-94. The testimony of attorney Richard Franklin appears at 3 R.R. Initial State
Habeas Hearing [ECF no. 72-3] 95-132. Significantly, Franklin testified without
contradiction that Cade refused to plead guilty and would not concede his guilt with
regard to Desaree’s murder. Id. at 127.
353 Clark v. Thaler, 673 F.3d 410, 429 (5th Cir.), cert. denied, 568 U.S. 850,
(2012); Paredes, 574 F.3d at 291.
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meritless, legally unavailable, diminished capacity defense at the guilt-innocence
phase of trial.354
The TCCA’s rejections on the merits during Cade’s initial state habeas
proceeding of Cade’s ineffective assistance claims complaining about his trial
counsels’ presentation of an insanity defense, failure to present a diminished capacity
defense, failure to present the testimony of Dr. McGarrahan at the punishment phase
of trial, and failure to present the testimony of a social historian incorporating a more
encyclopedic account of Cade’s unstable and abusive childhood were neither contrary
to, nor involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States, nor resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in Cade’s trial, direct appeal, and initial state habeas proceedings. Under
AEDPA, the exhausted portion of Cade’s fourth claim does not warrant federal
habeas corpus relief.
Cade’s fourth claim in his second amended federal habeas petition, as with his
fourth claim in his first subsequent (second) state habeas application, includes a more
expanded set of legal arguments and is supported by new and additional evidence
that was not fairly presented to the state habeas courts during Cade’s initial state
habeas proceeding. This court has undertaken de novo review of all the legal
354 Garza, 738 F.3d at 677; Paredes, 574 F.3d at 291.
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arguments, factual assertions, and new evidence submitted to this court in support of
Cade’s fourth claim herein.
The failure of Cade’s trial team to offer the diminished capacity evidence and
defense now proffered by Cade in his fourth claim in his second amended petition
did not cause the performance of Cade’s trial counsel to fall below an objective level
of reasonableness. Cade’s legal arguments misconstrue applicable Texas law. There
is no diminished capacity defense available under Texas law absent a showing of a
serious mental disease or defect which satisfies the statutory definition of insanity in
§ 8.01(a).355 Likewise, Cade has alleged no specific facts showing his criminal
misconduct was involuntary under Texas law. Cade offers no specific facts, much less
any evidence, showing that he was rendered effectively unconscious by
somnambulism, a seizure disorder, or some other medical or mental disease, defect,
or ailment at the time of his capital offense. Cade’s trial counsel diligently and
exhaustively investigated Cade’s background and retained the services of numerous
mental health experts to evaluate Cade (e.g., Dr. McGarrahan, Dr. Fallis, and Dr.
Clayton) or to testify about a wide range of mental health issues, including the
inheritability of serious mental diseases such as schizophrenia (Dr. Altman), the
impact of childhood trauma on emotional stability in adults (Dr. Gottlieb), and
abandonment rage (Dr. Kessner).
355 Coble, 496 F.3d at 437-38.
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The strategic decision-making detailed above in the uncontroverted testimony
of Dr. Compton and Cade’s lead trial counsel establishes the objective reasonableness
of the decisions made by Cade’s defense team at trial with regard to choosing a
defensive strategy and presenting available mitigating evidence. Their testimony also
establishes that Cade’s defense team took great pains to avoid actions that might
open the door to the revelation and admission of evidence showing Cade’s additional
criminal misconduct and the details of his behavior in the hours immediately
following his stabbings of Fuller and Desaree. In sum, this was reasonable.356
Likewise, for the same reasons discussed above, Cade was not prejudiced
within the meaning of Strickland by his trial counsels’ failure to raise a factually
meritless, legally unavailable, diminished capacity defense at the guilt-innocence
phase of trial.357
After de novo review of all of the legal and factual arguments contained in
Cade’s fourth claim for federal habeas relief, this court concludes that Cade’s
complaints about the performance of his trial counsel in connection with the
guilt-innocence phase of trial fail to satisfy either prong of Strickland. The evidence of
Cade’s guilt was overwhelming. As Dr. Proctor opined during his trial testimony,
356 See Kansas v. Cheever, 571 U.S. 87, 94 (2013) (“When a defendant
presents evidence through a psychological expert who has examined him, the
government likewise is permitted to use the only effective means of challenging that
evidence: testimony from an expert who has also examined him.”).
357 Garza, 738 F.3d at 677; Paredes, 574 F.3d at 291.
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Cade’s anger over what Cade perceived as Fuller’s “cheating” on him with her
ex-husband did not preclude Cade from understanding what he was doing was
wrong.358 The jury, which was accurately instructed on the insanity defense, agreed
with Dr. Proctor when it convicted Cade. That verdict was fully supported by the
evidence presented during the guilt-innocence phase of Cade’s capital murder trial.
There is no reasonable probability that, but for the failure of Cade’s trial counsel to
present any or all of the new evidence identified by Cade in support of his fourth
claim in his second amended federal habeas petition, the outcome of the
guilt-innocence phase of Cade’s capital murder trial would have been any different.
Even under de novo review, Cade’s fourth claim in his second amended federal habeas
petition satisfies neither prong of Strickland. It does not warrant federal habeas relief.
3. Eliciting Testimony Showing Cade was a Convicted Felon (Claim 5)
In his fifth claim in his second amended federal habeas petition, Cade argues
that his trial counsel rendered ineffective assistance at the guilt-innocence phase of
trial by eliciting testimony showing that Cade was a convicted felon.359 Cade
358 48 R.R. Trial [ECF no. 69-48] 171-77. As the TCCA explained in its
opinion in Jackson, “sudden passion” is no longer a defense at the guilt-innocence
phase of a Texas murder trial; it is now a sentencing issue under the Texas Penal
Code. Jackson, 160 S.W.3d at 573.
359 See ECF no. 127, 98-101.
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presented essentially the same ineffective assistance claim as his eighth claim in his
initial state habeas application.360
The state habeas trial court found:
• During a pretrial hearing, the court ruled that the State would be
permitted to introduce evidence regarding Cade’s status as a sex
offender.
• During the guilt-innocence phase of trial, the defense called Cade’s
half-brother Gregory Scott and elicited testimony that Cade had
previously been charged and tried for aggravated sexual assault.
• Cade’s trial counsel testified that the defense team decided to introduce
evidence of Cade’s prior conviction because (1) by the time Gregory
Scott testified at the guilt-innocence phase of trial, the jury had already
been informed that Cade was a registered sex offender; (2) most people
know that if a person is a sex offender, that necessarily means the
person was convicted of a sex offense; (3) evidence of Cade’s conviction
for aggravated sexual assault was likely to be admitted at the
punishment phase of trial; and (4) the defense did not want to appear
less than transparent in front of the jury.
• Other evidence at the guilt-innocence phase of trial showed that Cade’s
status as a registered sex offender was part of the reason for his break-up
with Fuller, which in turn was one source of Cade’s alleged
abandonment rage.
• Gregory Scott’s testimony merely confirmed what the jury already knew
or could have surmised.
• The evidence of Cade’s guilt was “overwhelming.”
• The decision by Cade’s trial counsel to elicit the testimony in question
did not cause the performance of said counsel to fall below an objective
level of reasonableness and did not prejudice Cade within the meaning
of Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999)
(applying Strickland).361
360 Initial State Habeas Application 93-97 [ECF no. 71-4, 96-100].
361 FFCL pp. 72-75, ¶¶ 394-414 [ECF no. 71-9, 718-21].
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The TCCA expressly adopted all of the foregoing factual findings and
conclusions when it denied Cade’s initial state habeas application on the merits.362
Cade has alleged no facts and presented this court with no clear and convincing
evidence showing that any of the foregoing factual findings were erroneous.
The uncontroverted testimony of all three of Cade’s trial counsel during Cade’s
initial state habeas proceeding supports all of the state habeas trial court’s factual
findings adopted by the TCCA.363 The TCCA reasonably concluded that Cade’s
ineffective assistance complaint about his trial counsels’ solicitation of the testimony
in question at the guilt-innocence phase of trial failed to satisfy either prong of
Strickland. Cade’s trial counsel had objectively reasonable strategic reasons to elicit
testimony from Gregory Scott. The testimony in question occurred in the course of
Gregory Scott’s guilt-innocence testimony explaining that Fuller was aware of Cade’s
status as a registered sex offender when the couple began their romantic relationship
because Fuller was physically present during Cade’s prosecution for aggravated sexual
assault.364 The evidence of Cade’s guilt was overwhelming.
This court independently concludes there is no reasonable probability that, but
for his trial counsel’s solicitation of Gregory Scott’s testimony, the outcome of the
362 Ex parte Cade, 2017 WL 4803802, at *3.
363 3 R.R. Initial State Habeas Hearing [ECF no. 72-3] 29-30, 86-87,
129-30.
364 46 R.R. Trial [ECF no. 69-46] at 86-89.
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either phase of Cade’s capital murder trial would have been any different. By the
time Gregory Scott testified, the jury was already aware that Cade was a registered
sex offender. The jury was also aware from admission of Cade’s writings found at the
crime scene that his status as a sex offender had been a key factor in the break-up of
his romantic relationship with Fuller. The TCCA reasonably concluded that Cade’s
complaint about his trial counsels’ solicitation of the testimony in question did not
satisfy either prong of Strickland.365
Cade’s trial counsel knew evidence of Cade’s prior conviction for aggravated
sexual assault would be introduced at the punishment phase of trial. The jury was
already aware that Cade was a registered sex offender. Other evidence already before
the jury showed the negative reaction of Fuller’s family upon learning that fact had
played a role in the dissolution of Cade’s romantic relationship with Fuller. Cade’s
statements to police and his post-offense writings found at the crime scene attested to
same. The evidence also showed that Fuller had taken care of Cade’s daughter Tyra
during the time Cade served his term of incarceration.
365 See Rhoades v. Davis, 852 F.3d 422, 433-34 (5th Cir. 2017) (denying a
COA on ineffective assistance claim based on trial counsel’s failure to object to
admission of other bad acts contained in defendant’s confession, i.e., multiple
burglaries and auto thefts, where the evidence would inevitably be admitted at the
punishment phase of trial and defense counsel made a strategic decision to allow
admission of same at guilt-innocence phase of trial in an attempt to “de-sensitize” the
jury to the bad acts and reduce aggravating impact of it had been sprung on the jury
for the first time at the punishment phase), aff’d, 914 F.3d 357 (5th Cir.), cert. denied,
589 U.S. 956 (2019).
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There was, therefore, nothing objectively unreasonable with the decision of
Cade’s trial counsel to employ evidence of Fuller’s long-standing knowledge of Cade’s
prior criminal conviction as a way of putting their estrangement in proper context.
Likewise, Cade was not prejudiced within the meaning of Strickland by the admission
of Gregory Scott’s acknowledgment that Cade had previously been convicted of a
felony.
The TCCA’s rejection on the merits during Cade’s initial state habeas
proceeding of Cade’s ineffective assistance claim complaining about his trial counsels’
solicitation of the testimony in question from Gregory Scott was neither contrary to,
nor involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States, nor resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in Cade’s trial, direct appeal, and initial state habeas proceedings. Under
AEDPA, Cade’s fifth claim does not warrant federal habeas corpus relief.
4. Admission of Victim Impact Testimony at Guilt-Innocence Phase (Claim 6)
In his sixth claim in his second amended federal habeas petition, Cade argues
that his trial counsel rendered ineffective assistance by failing to object to victim-
impact testimony at the guilt-innocence phase of trial.366 Cade presented essentially
366 ECF no. 127, 102-06.
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the same ineffective assistance claim as his tenth claim in his initial state habeas
application.367
The state habeas trial court made the following findings and conclusions:
• Fuller’s mother and Desaree’s grandmother, Elena Belcher, testified
about Fuller’s and Desaree’s backgrounds, including the fact that
Desaree was scheduled to graduate from high school and planned to join
the United States Marine Corps.
• Fuller’s sister and Desaree’s aunt, Marva Slider, furnished additional
background testimony about Fuller, including testifying about Fuller’s
successful effort to obtain United States citizenship.
• A friend and coworker of Fuller, Sandra Hopkins, testified about her
relationship with Fuller and about the emotional reaction of Fuller’s son
Michael when he learned of the murders of Fuller and Desaree.
• ”Victim-impact” evidence concerns “the effect of the victim’s death on
the victim’s family and others.”
• ”Victim-character” evidence, on the other hand, is evidence showing the
victim’s good character qualities and that the victim was a unique
human being.
• Both victim-impact and victim-character evidence are admissible in
rebuttal of the defendant’s mitigating evidence.
• Such evidence may be admissible at the guilt-innocence phase of trial to
show the framework and context of the offense.
• An objection to most of the testimony in question was that
“victim-impact” evidence would have been meritless.
• Much of the testimony in question was simply background information
regarding the victims and the circumstances of the offense.
• Cade’s trial counsel could have reasonably concluded that objecting to
the testimony of the victim’s relatives and friend would risk alienating
the jury.
• The decision not to object to the testimony in question did not
prejudice Cade within the meaning of Strickland; evidence of the offense
itself was sufficient to engender sympathy for the victims and
antagonize the jury against Cade.
367 Initial State Habeas Application 106-11 [ECF no. 71-4, 109-14].
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• The facts of the offense were gruesome, and there was no question as to
the identity of the person who killed both victims.
• Cade’s complaints about his trial counsels’ failure to object to the
foregoing testimony as improper victim-impact testimony failed to
satisfy either prong of Strickland. See Thompson, 9 S.W.3d at 812-13.368
The TCCA expressly adopted the foregoing factual findings and legal conclusions
when it denied Cade’s initial state habeas application on the merits.369 Cade has
alleged no facts and presented this court with no clear and convincing evidence
showing that any of the foregoing factual findings were erroneous.
The TCCA reasonably concluded that the failure of Cade’s trial counsel to
object to all of the testimony in question as premature victim-impact testimony did
not cause the performance of said counsel to fall below an objective level of
reasonableness. In Payne v. Tennessee,370 the Supreme Court recognized that states
have “‘a legitimate interest in counteracting the mitigating evidence which the
defendant is entitled to put in, by reminding the sentencer that just as the murderer
should be considered as an individual, so too the victim is an individual whose death
represents a unique loss to society and in particular to his family.’”371 The Supreme
Court determined that a state may properly conclude that, “for the jury to assess
368 FFCL pp. 81-86, ¶¶ 445-71 [ECF no. 71-9, 727-32].
369 Ex parte Cade, 2017 WL 4803802, at *3.
370 501 U.S. 808 (1991).
371 Id. at 825 (quoting Booth v. Maryland, 482 U.S. 496, 517 (1987)
(White, J., dissenting) (citation omitted)).
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meaningfully the defendant’s moral culpability and blameworthiness, it should have
before it at the sentencing phase evidence of the specific harm caused by the
defendant.”372
Even if some of the testimony in question (specifically, Sandra Hopkins’s
account of Fuller’s son Michael’s emotional reaction upon learning of the murders of
his mother and sister) did constitute premature victim-impact evidence, Cade’s trial
counsel could reasonably have believed that objecting to that testimony (and the
remaining character testimony in question) risked alienating the jury.373 Review of
ineffective assistance claims under the AEDPA is doubly deferential.374 AEDPA, by
setting forth necessary predicates before state-court judgments may be set aside,
“erects a formidable barrier to federal habeas relief for prisoners whose claims have
been adjudicated in state court.”375
372 Id.; see also id. at 827 (“We . . . hold that if the State chooses to permit
the admission of victim impact evidence and prosecutorial argument on that subject,
the Eighth Amendment erects no per se bar. A State may legitimately conclude that
evidence about the victim and about the impact of the murder on the victim’s family
is relevant to the jury’s decision as to whether or not the death penalty should be
imposed.”).
373 See Williams v. Beto, 354 F.2d 698, 703 (5th Cir. 1965) (recognizing
that “he who often objects, only to have his objections over-ruled, risks alienating the
jury”).
374 Harrington, 562 U.S. at 101.
375 Burt, 571 U.S. at 19.
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The TCCA also reasonably concluded Cade was not prejudiced within the
meaning of Strickland by his trial counsels’ failure to object to testimony regarding the
victims’ character and backgrounds or by the limited victim-impact testimony about
Michael Hoskins.376 The evidence of Cade’s guilt was overwhelming. It included
many crime scene photographs which corroborated Cade’s recorded statements to
police, in which he detailed his stabbings of both victims. Cade’s recorded interviews
by the police, Cade’s writings left at the crime scene, and Cade’s admission to Dr.
Proctor that he understood what he was doing was wrong at the time of the murders
left no doubt as to Cade’s awareness of the illegality of his actions, thus effectively
negating his insanity defense. This court independently concludes there is no
reasonable probability that, but for the failure of his trial counsel to object to any of
the testimony of these witnesses, the outcome of the guilt-innocence phase of Cade’s
capital murder trial would have been any different.
The TCCA’s rejection on the merits of this ineffective assistance claim in the
course of Cade’s initial state habeas proceeding was neither contrary to, nor involved
376 See Busby v. Davis, 925 F.3d 699, 723-26 (5th Cir. 2019) (no showing
of prejudice where it was “highly likely” the same result would have occurred absent
trial counsels’ allegedly deficient conduct), cert. denied, 589 U.S. 1141 (2020);
Thompson v. Davis, 916 F.3d 444, 460 (5th Cir. 2019) (holding failure to object to the
admission of additional bad acts evidence did not prejudice the defendant where
there was “no shortage of other evidence” indicating the defendant’s violent
relationship with the victim, including evidence showing the defendant shot his
victim in the face and left her bleeding profusely), aff’d, 941 F.3d 813 (5th Cir.
2019), cert. denied, __ U.S. __, 141 S. Ct. 977 (2021).
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an unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, nor resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in Cade’s
trial, direct appeal, and initial state habeas proceedings. Under AEDPA, Cade’s sixth
claim does not warrant federal habeas corpus relief.
5. Failure to Object to Prosecution’s Outside-the-Record Jury Argument (Claim 7)
In his seventh claim in his second amended federal habeas petition, Cade
argues that his trial counsel rendered ineffective assistance by failing to object to the
prosecution closing guilt-innocence phase jury arguments commenting on (1) the
conduct of defense witness Gregory Scott inside the courtroom immediately after
Scott left the witness stand and (2) conversations the prosecution had with Cade’s
relatives.377 Cade presented essentially the same ineffective assistance claim as his
eleventh claim in his initial state habeas application.378
The state habeas trial court made the following findings and conclusions:
• Cade failed to rebut the presumption that his trial counsels’ failure to
object to the jury arguments in question constituted sound trial strategy.
• Cade’s trial counsel failed to object to the prosecution’s jury argument
on Gregory Scott’s allegedly rude comment to a member of the audience
after Scott left the witness stand: “Did you folks see what Gregory
Scott did when he was walking out of this courtroom? How he treated
the woman who was in the middle row? ‘Get up.’ That’s meanness.
377 ECF no. 127, 106-09.
378 Initial State Habeas Application 111-15 [ECF no. 71-4, 114-18].
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That’s control. That’s domination. That’s Tyrone Cade.” (quoting 48
R.R. Trial [ECF no. 69-48] 227).
• The prosecution’s argument concerning Gregory Scott’s behavior was
outside the record and objectionable.
• Cade’s trial counsel testified that objecting to an argument may simply
draw more attention to the argument that counsel does not want to
emphasize.
• Cade suffered no prejudice with regard to his trial counsels’ failure to
object to any of the prosecution’s jury arguments in question.
• The evidence of Cade’s guilt was overwhelming.
• The prosecution’s arguments in question did little to damage or harm
Cade’s insanity defense.
• In finding Cade guilty the jury necessarily rejected Cade’s insanity
defense.379
The TCCA expressly adopted the foregoing factual findings and conclusions
when it denied Cade’s initial state habeas application on the merits.380 Cade has
alleged no facts and presented this court with no clear and convincing evidence
showing that any of the foregoing factual findings were erroneous.
Cade’s lead trial counsel testified during Cade’s initial state habeas proceeding
that (1) he objects to opposing counsel’s jury argument primarily to preserve
constitutional claims; (2) if opposing counsel is addressing matters outside the record,
sometimes it is better not to object but to then turn the argument against an
opponent by suggesting in reply or rebuttal that opposing counsel was attempting to
create a smokescreen; and (3) he did not specifically recall the incident involving
379 FFCL pp. 86, 88-90, ¶¶ 472-75, 480-94 [ECF no. 71-9, 725, 727-29].
The TCCA expressly disavowed FFCL ¶¶ 476-79 when it adopted the state habeas
trial court’s other findings.
380 Ex parte Cade, 2017 WL 4803802, at *3.
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Gregory Scott after Scott left the stand.381 His co-counsel testified that sometimes
objecting to an opposing counsel’s jury argument draws more attention to an
argument that counsel does not want to emphasize.382
Cade’s lead trial counsel testified that, as a general rule, he only objected to a
prosecutor’s jury arguments when it was necessary to preserve a constitutional
claim.383 Improper prosecutorial jury argument constitutes a deprivation of due
process only when it renders the entire trial fundamentally unfair, i.e., “‘the petitioner
must demonstrate either persistent and pronounced misconduct or that the evidence
was so insubstantial that (in probability) but for the remarks no conviction would
have occurred.’”384 Cade’s lead trial counsel’s strategic approach is objectively
reasonable. Cade’s trial counsel reasonably could have concluded the prosecutor’s
comments on matters outside the record were insufficient to meet this high standard.
Cade’s trial counsel also reasonably could have believed that objecting to the
prosecution’s comments on matters outside the record would have drawn more
attention to the comments in question than they deserved and, thereby, distracted
the jury and worked against the defense. The TCCA reasonably concluded that the
381 3 R.R. Initial State Habeas Hearing [ECF no. 72-3] 28-29.
382 Id. at 85-86.
383 Id. at 28.
384 Bridge, 838 F.2d at 774 (quoting Felde, 795 F.2d at 403).
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failure of Cade’s trial counsel to object to the prosecution’s jury arguments on
matters outside the record did not overcome the presumption that trial counsels’
decision was within the wide range of strategic decisions which are objectively
reasonable.385
For the same reason discussed above in connection with Cade’s complaint
about his trial counsels’ failure to object to victim-impact testimony, the TCCA
reasonably concluded the current ineffective assistance complaint failed to satisfy the
prejudice prong of Strickland. The evidence of Cade’s guilt was overwhelming.
Furthermore, the trial court instructed Cade’s jury at the guilt-innocence phase of
trial as follows:
You are charged that it is only from the witness stand that
the jury is permitted to receive evidence regarding the case,
and no juror is permitted to communicate to any other
juror anything he may have heard regarding the case from
any source other than the witness stand.386
As previously noted, juries are presumed to follow their instructions.387 This
court independently concludes there is no reasonable probability that, but for the
failure of Cade’s trial counsel to object to the prosecution’s comments on matters
385 Harrington, 562 U.S. at 101 (“A state court must be granted a deference
and latitude that are not in operation when the case involves review under the
Strickland standard itself.”).
386 ECF no. 68-5, 408-09.
387 Zafiro, 506 U.S. at 540.
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outside-the-record during closing jury argument, the outcome of the guilt-innocence
phase of Cade’s capital murder trial would have been any different.
The TCCA’s rejection on the merits of this ineffective assistance claim in the
course of Cade’s initial state habeas proceeding was neither contrary to, nor involved
an unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, nor resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in Cade’s
trial, direct appeal, and initial state habeas proceedings. Under AEDPA, Cade’s
seventh claim does not warrant federal habeas corpus relief.
6. Failure to Challenge Future-Dangerousness-Related Evidence at Punishment Phase
(Claim 10)
In his tenth claim in his second amended federal habeas petition, Cade argues
that his trial counsel rendered ineffective assistance by inadequately investigating
Cade’s background and presenting all available mitigating evidence relating to future
dangerousness, including the testimony of Dr. Vigen which had been proffered but
partially excluded during the guilt-innocence phase of trial.388 Cade did not present
this complaint of ineffective assistance to any state court until he included it as the
thirteenth claim of his first subsequent (second) state habeas application.389 The
388 ECF no. 127, 119-34.
389 First Subsequent (Second) State Habeas Application 153-72 [ECF no.
134-17, 367-405].
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TCCA summarily dismissed this claim when it dismissed Cade’s first subsequent
(second) state habeas application based on state writ-abuse principles.390
Because no state court has addressed the merits of this ineffective assistance
claim, this court’s review of the claim is necessarily de novo.391 This court has
independently reviewed the entire record from Cade’s trial, direct appeal, initial, and
first subsequent (second) state habeas proceedings, as well as all of the documents
accompanying Cade’s initial, first amended, and second amended federal habeas
petitions filed in this court. The following discussion and analysis constitute this
court’s findings of fact and conclusions of law:
In the context of penalty phase mitigation in capital cases, the Supreme Court
has held that it is unreasonable not to investigate further when counsel has
information that suggests additional mitigating evidence – such as mental illness or a
history of childhood abuse – may be available.392
390 Ex parte Cade, 2021 WL 1202479, at *1-*2.
391 See Porter, 558 U.S. at 39; Rompilla, 545 U.S. at 390; Wiggins, 539 U.S.
at 534.
392 See, e.g., Porter, 558 U.S. at 39-40 (trial counsel failed to interview any
witnesses or to request any of the defendant’s school, medical, or military records and
ignored information in a report on the defendant’s competency evaluation suggesting
possible mitigating evidence – including evidence of mental illness – could be gleaned
from investigation into the defendant’s family background and military service);
Wiggins, 539 U.S. at 524-26 (counsel failed to investigate the defendant’s background
beyond review of summary records from competency evaluation, presentence report,
and records from the state foster care system, failed to compile a social history of the
(continued...)
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Cade’s trial counsel undertook an extensive investigation into Cade’s
background, including hiring numerous mental health experts to either evaluate Cade
or to testify about the deleterious impact of Cade’s unstable and abusive childhood.
Cade argues that his trial counsel failed to pursue all available avenues of
investigation in a search for evidence of future dangerousness beneficial to the
defense. He also complains that his trial counsel failed to present a portion of
Dr. Vigen’s testimony proffered during the guilt-innocence phase of trial which the
trial court had ruled would be admissible at the punishment phase of trial.
There are several problems with Cade’s arguments. First, Cade mistakenly
argues that his defense team was required to exhaustively interview (and present
testimony from) more of Cade’s acquaintances and family members. Cade’s defense
counsel was not obligated to engage in a wide-ranging exploration for every
conceivable source of information potentially beneficial to the defense.393 Counsel in
392(...continued)
defendant, and presented no mitigating evidence concerning the defendant’s
background); Williams, 529 U.S. at 395-96 (counsel failed to conduct even a cursory
investigation into the defendant’s background which would have shown the
defendant’s parents had been imprisoned for the criminal neglect of the defendant
and his siblings, the defendant had been severely beaten by his father, and had been
returned to his parents’ custody after they were released from prison). Such claims of
ineffective assistance of counsel are commonly referred to as Wiggins claims.
393 See Thomas v. Lumpkin, 995 F.3d 432, 456 (5th Cir. 2021) (“[T]he duty
to investigate does not force defense lawyers to scour the globe on the off chance
something will turn up.”) (quoting Rompilla, 545 U.S. at 383)), cert. denied, __ U.S.
__, 143 S. Ct. 4 (2022).
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death penalty cases have a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.394 “‘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.’”395
Cade’s mitigation specialist and lead trial counsel testified during Cade’s initial
state habeas proceeding and detailed the extensive nature of Cade’s defense team’s
deep dive into Cade’s lengthy and violent criminal history, as well as Cade’s unstable
and abusive childhood. Cade’s defense team then presented an extensive case in
mitigation. The defense’s case in mitigation was front loaded into both phases of
trial and included lay witnesses with personal knowledge of Cade’s background –
Cade’s older half-brother Gregory Scott, a female cousin who grew up with Cade,
and, via deposition, Cade’s mentally ill father. Cade’s defense team also presented
testimony from mental health experts addressing the heritability of schizophrenia,
the deleterious impact of Cade’s difficult childhood (including his history of repeated
childhood sexual abuse by his relatives) on Cade’s development, and the implications
of the concept of abandonment rage on Cade’s capital offense. One of Cade’s experts
394 Andrus, 590 U.S. at 814; Bobby, 558 U.S. at 11-12; Wiggins, 539 U.S. at
521; Strickland, 466 U.S. at 688-91.
395 Andrus, 590 U.S. at 814 (quoting Wiggins, 539 U.S. at 521-22); see also
Strickland, 466 U.S. at 688-91.
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opined that Cade was incapable of rational thought, i.e., legally insane, at the time of
his offense, and Cade’s sexual assaults on a dying Fuller were “understandable” under
the circumstances.396
As is readily apparent from the trial testimony of Cade’s mental health experts,
Cade’s defense team managed to obtain a wealth of documentation and other
information about Cade’s background which they communicated to Cade’s mental
health experts. Cade’s mental health experts, especially Dr. Kessner, Dr. Altman, and
Dr. Gottlieb, testified extensively about the factual bases for their opinions. Their
trial testimony included many details of Cade’s unstable, violent, and abusive
childhood. Cade’s trial counsel also presented eyewitness testimony from Cade’s ill
father (via deposition), and Cade’s older half-brother Gregory Scott detailing Cade’s
difficult childhood. In addition, Cade’s trial counsel presented the jury with lay
testimony from Cade’s cousin, a former coworker, and a local attorney who had
known Cade during childhood and been Cade’s football teammate in high school.
These witnesses furnished testimony about Cade’s good character.
396 Dr. Kessner made both of these assertions during her testimony at
Cade’s trial. See 48 R.R. Trial [ECF no. 69-48] 39-47, 55, 61-62, 65-69, 82-83,
87-88, 92-93, 98-99, 101, 104. Dr. Kessner also dismissed the fact Cade told
Dr. Proctor that he understood his conduct was wrong at the time he was murdering
his victims as a form of “hindsight,” which did not alter her diagnosis of
abandonment rage. Id. at 61-63. She likewise dismissed Cade’s writings as reflecting
insights acquired or developed after the murders. Id. at 71, 81-83, 93, 98-99.
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Thus, Cade’s trial counsel presented an extensive case in mitigation. This
distinguishes Cade’s case from the scenarios the Supreme Court addressed in Porter,
Wiggins, and Williams. Equally significantly, it distinguishes Cade’s case from the
Supreme Court’s recent decision in Andrus, in which defense counsel made no effort
to investigate or present evidence of the defendant’s extremely difficult childhood.
Cade’s defense team, in sharp contrast, discovered and presented extensive mitigating
evidence showing Cade was the product of a childhood characterized – not only by
physical, emotional, and sexual abuse – but also which included Cade witnessing acts
of extreme violence between his parents, both of whom were described as alcoholics
and drug abusers.
In contrast to the jury in Andrus, Cade’s capital sentencing jury was well aware
of the difficulties Cade faced as a child. Defense witnesses recounted a knife attack
by Cade’s mother on his father and a hammer attack by Cade’s father on Cade’s
mother, both of which Cade witnessed. Cade’s father’s deposition included an
accusation that Cade’s mother sexually abused Cade as a child. Cade’s mother was
described by defense experts as an unstable alcoholic who often left Cade in the care
of his aunts for extended periods. Cade’s father’s schizophrenia was also made
evident to Cade’s jury, both through the testimony of a former caregiver to Cade’s
father and the deposition of Cade’s father. Through their trial testimony,
Dr. Altman, Dr. Gottlieb, and Dr. Kessner explained to the jury how the difficulties
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Cade faced as a child detrimentally impacted his conduct as an adult, particularly his
inability to handle fear of abandonment and other emotional stressors.
Admittedly, a substantial portion of Cade’s case in mitigation was presented
through his expert witnesses. But the decision to present such evidence through
expert witnesses rather than a parade of relatives, family friends, and other lay
witnesses was objectively reasonable in this case. The circumstances of Cade’s capital
offense were horrific. According to Dr. Compton, when called to testify by the
defense, Cade’s half-brother Gregory Scott reacted on cross-examination in a manner
which shocked the jury. The transcript from trial confirms that Scott reacted badly
when the prosecution confronted him with grisly crime scene and autopsy
photographs.
Given the potential for similar reactions on cross-examination from other lay
witnesses, it was objectively reasonable for Cade’s trial counsel to choose to present a
substantial portion of its mitigating evidence regarding Cade’s background through
experts. Generally, the decision whether to introduce mitigating evidence through lay
witnesses versus expert witnesses lies within the sound discretion of trial counsel.397
397 See Hummel, 908 F.3d at 991-92 (recognizing the wide range of
discretion counsel generally enjoy regarding how best to present mitigating evidence
and holding trial counsel was not ineffective for making reasonable decisions
regarding the manner in which mitigating evidence was presented, including the steps
taken by defense counsel to avoid opening the door to admission of harmful rebuttal
evidence).
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In this particular case, Cade’s trial counsels’ decision to rely primarily upon experts to
build its case in mitigation was objectively reasonable. As explained previously, in
addition to hopefully avoiding harmful reactions like Gregory Scott’s to the graphic
crime scene evidence, this also allowed the defense to front load a substantial portion
of its case in mitigation (through expert testimony) into the guilt-innocence phase of
trial.
Dr. Compton and Cade’s lead trial counsel also testified during Cade’s initial
state habeas proceeding about both (1) the difficulties the defense team encountered
in seeking cooperation from Cade’s relatives, many of whom insisted Cade’s
childhood had not been abusive or neglectful, and (2) the practical problems they
encountered with Cade’s tendency to tell each new defense mental health expert who
evaluated him new information that Cade had not previously disclosed to his
mitigation specialist or attorneys. The reasonableness of counsel’s strategic decisions
is substantially influenced by the defendant’s own statements.398
In addition, Cade’s lead counsel and Dr. Compton both testified some of
Cade’s friends and family interviewed by the defense team’s investigators had the
potential to offer testimony harmful to the defense, including family members who
denied that Cade had been abused as a child and one of Cade’s former coaches who
398 Strickland, 466 U.S. at 691; Carter v. Johnson, 131 F.3d 452, 465 (5th
Cir. 1997) (“The duty of trial counsel to investigate is tempered by the information
provided to counsel by the defendant.”), cert. denied, 523 U.S. 1099 (1998).
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knew Desaree. Cade’s trial counsel acted in an objectively reasonable manner in
choosing not to call such witnesses out of concern for what might happen on
cross-examination. An informed decision by trial counsel not to proceed with a
particular strategy that has the potential for a “double-edged” outcome is objectively
reasonable.399
Cade has failed to allege any specific facts or furnish any evidence showing his
trial counsels’ decision to present mitigating evidence in the particular manner and
scope they did at Cade’s trial was not an informed strategic decision made after (1)
numerous and extensive consultations and interviews with Cade, (2) an objectively
reasonable investigation into Cade’s background, and (3) consultation with multiple
399 See, e.g., Mejia v. Davis, 906 F.3d 307, 316 (5th Cir. 2018) (“This
‘double-edged’ principle extends to counsel’s tactical decision to forego a
lesser-included-offense instruction to which his client would otherwise be entitled.”),
cert. denied, 586 U.S. 1170 (2019); Chanthakoummane v. Stephens, 816 F.3d 62, 70 (5th
Cir.) (informed decision not to present testimony from the defendant’s family
because of concern that calling family members to testify could invite the prosecution
to present evidence of the defendant’s gang affiliation and history of violence), cert.
denied, 580 U.S. 844 (2016); St. Aubin v. Quarterman, 470 F.3d 1096, 1103 (5th Cir.
2006) (informed decision not to present evidence that could be construed by jury as
both mitigating and aggravating), cert. denied, 550 U.S. 921 (2007); Rector v. Johnson,
120 F.3d 551, 564 (5th Cir. 1997) (informed decision not to present evidence
showing the defendant suffered from child abuse, family instability, a poor
educational background, low IQ, gunshot injuries, and the defendant’s mother was
severely and chronically mentally ill), cert. denied, 522 U.S. 1120 (1998); Mann v.
Scott, 41 F.3d 968, 983-84 (5th Cir. 1994) (informed decision not to present
evidence of low intelligence and abusive childhood entitled to “a heavy measure of
deference in a subsequent habeas corpus attack”) (citations omitted), cert. denied, 514
U.S. 1117 (1995).
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mental health experts. The fact that Cade’s initial state habeas counsel and federal
habeas counsel have identified new experts willing to furnish a slightly different
diagnosis of Cade’s mental health or propose a different etiology for Cade’s condition
(i.e., Chronic Traumatic Encephalopathy instead of PTSD or schizoaffective disorder)
does not mean there was anything professionally deficient about the extensive
investigation undertaken by Cade’s trial team. Cade has alleged no specific facts and
presented no evidence showing it was objectively unreasonable for his trial counsel to
rely on the information and opinions furnished by the many mental health experts
with whom Cade’s defense team consulted.
This conclusion is further supported by the evidence presented during Cade’s
initial state habeas proceeding showing there was substantially more aggravating
evidence potentially available to the prosecution which Cade’s trial counsel
endeavored to conceal from the prosecution. Dr. Compton and Cade’s lead trial
counsel both testified Cade had admitted to his defense team that he left the crime
scene, purchased lubricant, returned to the scene, watched pornography, and then
sexually assaulted Fuller’s corpse both vaginally and anally. Cade’s defense team
reasonably chose to conceal this information from the jury.
Dr. Compton and Cade’s attorney testified that, as trial approached, Cade’s
statements to defense mental health experts became more erratic. Cade’s defense
team was concerned that, by presenting a mental health expert at trial who had
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evaluated Cade, the defense might open the door to a new mental health evaluation
by a prosecution expert. The defense feared that such an evaluation could reveal
Cade’s admission that he had engaged in other bad acts, all potentially devastating to
the defense because such evidence could form the basis for a diagnosis of antisocial
personality disorder (“ASPD”).400 Cade’s lead trial counsel testified, without
400 The Fifth Edition of the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders (“DSM-5”) describes antisocial personality
disorder as “a pervasive pattern of disregard for, and violation of, the rights of others
that begins in childhood or early adolescence and continues into adulthood.” DSM-5
at 659. “[D]eceit and manipulation are central features of antisocial personality
disorder[.]” Id. The DSM-5 diagnostic criteria for the disorder are as follows:
A. A pervasive pattern of disregard for and violation of the rights of others,
occurring since age 15 years, as indicated by three (or more) of the
following:
1. Failure to conform to social norms with respect to lawful
behaviors, as indicated by repeatedly performing acts that are
grounds for arrest.
2. Deceitfulness, as indicated by repeatedly lying, use of aliases, or
conning others for personal profit or pleasure.
3. Impulsivity or failure to plan ahead.
4. Irritability and aggressiveness, as indicated by repeated physical
fights or assaults.
5. Reckless disregard for safety of self or others.
6. Consistent irresponsibility, as indicated by repeated failure to
sustain consistent work behavior or honor financial obligations.
7. Lack of remorse, as indicated by being indifferent to or
rationalizing having hurt, mistreated, or stolen from another.
B. The individual is at least age 18 years.
C. There is evidence of conduct disorder with onset before age 15 years.
D. The occurrence of antisocial behavior is not exclusively during the
(continued...)
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contradiction, that the defense’s mental health experts were concerned Cade would
be diagnosed with ASPD.401 The objective reasonableness of Cade’s defense team’s
concern about avoiding a possible ASPD diagnosis is inferentially supported by the
fact that, when Cade’s initial state habeas counsel retained Dr. Silverman to evaluate
Cade, they did not request that Dr. Silverman evaluate Cade for personality disorders
on Axis II (where a diagnosis of ASPD could appear).402 Cade’s trial counsel acted
reasonably in choosing not to present testimony from a mental health expert who had
evaluated Cade because doing so could have opened the door to evidence of Cade’s
ASPD.403
Cade’s trial counsel also acted reasonably when they chose to present evidence
of Cade’s relatively low intellectual functioning through cross-examination of
prosecution witness Dr. Proctor rather than calling Dr. McGarrahan to testify at the
punishment phase of trial (after the trial court excluded her testimony at the
400(...continued)
course of schizophrenia or bipolar disorder.
Id.
401 2 R.R. Initial State Habeas Hearing [ECF no. 72-2] 246-47.
402 4 R.R. Initial State Habeas Hearing [ECF no. 72-4] 90.
403 See Smith v. Davis, 927 F.3d 313, 337 (5th Cir. 2019) (trial counsel
acted reasonably in choosing not to present mental health testimony that would have
opened the door to evidence the defendant had confessed to other offenses and could
be diagnosed as ASPD), cert. denied, 589 U.S. 1265 (2020).
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guilt-innocence phase). Calling Dr. McGarrahan (or another mental health expert),
who had evaluated Cade, would have potentially opened the door to a new mental
health evaluation by Dr. Proctor or another prosecution expert.404 While Dr. Proctor
did evaluate Cade for insanity, a second evaluation relating to mitigation and future
dangerousness could well have revealed evidence of ASPD that Cade’s trial counsel
reasonably wished to conceal from the prosecution and the jury.405
When the defense proffered the testimony of Dr. Sorensen and Dr. Vigen, the
trial court excluded Dr. Sorensen’s still-in-progress study and Dr. Vigen’s opinion on
Cade’s future dangerousness as unreliable. Cade now argues his trial counsel should
have sought to introduce Dr. Vigen’s testimony about TDCJ’s effectiveness in
controlling its inmates generally. It was objectively reasonable for Cade’s trial
counsel to choose a different path, however.
The defense presented testimony about the ability of TDCJ to control inmates
generally through a former TDCJ inmate (Johnny Lindsay) and a former TDCJ
administrator (S.O. Woods). It was objectively reasonable for Cade’s trial counsel to
rely on these witnesses, who possessed personal knowledge of TDCJ facilities and
their operations from both sides of the bars, rather than through a mental health
expert who was unable to offer an opinion on Cade’s future dangerousness because he
404 Cheever, 571 U.S. at 94.
405 Smith, 927 F.3d at 337.
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had not evaluated Cade. Dr. Vigen had visited TDCJ facilities in his capacity as a
psychologist but possessed no formal education or training in prison administration,
criminal justice, or corrections. Furthermore, testimony from mental health experts
on the likelihood of future dangerousness is viewed as “rather shaky by in general
because studies have shown that such testimony is wrong more often than it is
right.”406 Cade’s trial counsel reasonably could have concluded the proffered
testimony of Dr. Vigen was of little utility at the punishment phase of Cade’s trial
once it was stripped of an opinion on Cade’s future dangerousness.
With regard to the prejudice prong of Strickland, the Supreme Court held the
petitioners in Wiggins, Porter, and Williams were prejudiced by the failure of their trial
counsel to fully investigate, develop and present available mitigating evidence. More
specifically, the Supreme Court found in Wiggins that his trial counsel failed to
discover, develop, and present available mitigating evidence showing:
Wiggins experienced severe privation and abuse while in
the custody of his alcoholic, absentee mother and physical
torment, sexual molestation, and repeated rape while in
foster care. His time spent homeless and his diminished
mental capacities further augment his mitigation case. He
thus has the kind of troubled history relevant to assessing a
defendant’s moral culpability.407
406 See Harper, 64 F.4th at 698 (citing Barefoot v. Estelle, 463 U.S. 880, 901
(1983)).
407 Wiggins, 539 U.S. at 512-13 (citation omitted).
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In Porter, the new mitigating evidence undiscovered and undeveloped by trial
counsel included lay and expert testimony showing (1) Porter routinely witnessed his
father beat his mother, one time so severely that she had to go to the hospital and
lost a child; (2) Porter’s father was violent every weekend, and Porter was his father’s
favorite target, particularly when Porter tried to protect his mother; (3) on one
occasion, Porter’s father shot at him for coming home late but missed and beat Porter
instead; (4) Porter attended classes for slow learners until he left school at age 12 or
13; (5) to escape his horrible family life, Porter enlisted in the United States Army at
age 17 and fought in the Korean War; (6) Porter suffered a gunshot wound to the leg
yet fought heroically through two battles; (7) after the war, Porter suffered dreadful
nightmares and would attempt to climb his bedroom walls at night with knives;
(8) Porter developed a serious drinking problem and began drinking so heavily that
he would get into fights and not remember them at all; (9) Porter suffered from brain
damage that could manifest in impulsive, violent behavior; (10) at the time of the
capital offense, Porter was substantially impaired in his ability to conform his
conduct to the law and suffered from an extreme mental or emotional disturbance;
and (11) Porter had substantial difficulties with reading, writing, and memory.408
Prejudice was established in Williams through testimony showing trial counsel
failed to discover and develop available mitigating evidence showing (1) Williams
408 See Porter, 558 U.S. at 449-51.
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experienced a nightmarish childhood; (2) Williams’s parents had been imprisoned for
criminal neglect of Williams and his siblings; (3) Williams had been severely beaten
by his father, committed to the custody of the social services bureau for two years
during the incarceration of his parents, and then returned to his parents after they
were released from prison; (4) Williams was “‘borderline mentally retarded’ and did
not advance beyond the sixth grade[;]” (5) Williams received commendations for
helping to crack a prison drug ring and for returning a guard’s missing wallet;
(6) Williams was among the inmates least likely to act in a violent, dangerous or
provocative way; (7) Williams seemed to thrive in a more regimented and structured
environment; and (8) Williams earned a carpentry degree while in prison.409
More recently, the Supreme Court held in Andrus that a defendant was
prejudiced by his trial counsel’s failure to undertake any significant investigation into
the defendant’s background for mitigating evidence beyond communicating with
Andrus’s parents, neither of whom counsel met in person until they showed up at
court to testify.410 Defense counsel in that case failed to follow up on a mitigation
report indicating Andrus had serious mental health issues, including PTSD,
depression, mood lability, emotional dysregulation, and a diagnosis of affective
409 Williams, 529 U.S. at 395-96.
410 See Andrus, 590 U.S. at 814-18.
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psychosis.411 The Supreme Court explained the failure of Andrus’s trial counsel to
investigate his client’s background resulted in the jury hearing nothing about
Andrus’s mother’s spiraling drug addiction and prostitution; his mother’s
abandonment of Andrus and his siblings for weeks at a time while she binged drugs;
the parade of abusive boyfriends his mother brought into the home; or the fact
Andrus became the de facto caregiver for his four siblings when he was only twelve
years old.412 Nor did the jury hear any evidence showing Andrus’s difficult
experiences as an inmate of the Texas Youth Commission, which included a suicide
attempt and medication with psychotropic drugs.413 The Supreme Court concluded
that Andrus was prejudiced by his trial counsel’s unprofessional failure to investigate
many avenues for available mitigating evidence, in part, because of what it
characterized as likely impact of the “tidal wave” of new mitigating evidence on the
jury’s appraisal of Andrus’s moral culpability.414
In making the prejudice determination under Strickland in the context of a
capital sentencing proceeding, the Supreme Court has instructed federal habeas
courts to examine all of the mitigating evidence introduced at trial and all new
411 Id.
412 Id. at 806-08.
413 Id. at 809-12.
414 Id. at 823-24.
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mitigating evidence presented in the habeas proceeding “and ‘reweig[h] it against the
evidence in aggravation.’”415 Thus, a federal habeas court must reweigh all the
evidence in aggravation against the totality of available mitigating evidence (had the
petitioner’s trial counsel chosen a different course).416 Strickland does not require the
State to “rule out” or negate a sentence of life in prison to prevail; “[r]ather,
Strickland places the burden on the defendant, not the State, to show a ‘reasonable
probability’ that the result would have been different.”417 Within the context of
Strickland analysis, “prejudice” means a reasonable probability the result of the
proceeding would have been different.418 To satisfy the prejudice prong, “[t]he
likelihood of a different result must be substantial, not just conceivable.”419
There are several problems with Cade’s tenth claim from a prejudice
perspective. First, Cade argues that a more expansive investigation into his
background would have disclosed additional evidence showing that Cade’s capital
offense was “out of character” for him and he was, therefore, likely not to pose a risk
415 Id. at 821-22 (quoting Williams, 529 U.S. at 397-98); Sears v. Upton,
561 U.S. 945, 956 (2010).
416 Wong v. Belmontes, 558 U.S. 15, 20 (2009); Wiggins, 539 U.S. at 534.
417 Wong, 558 U.S. at 27.
418 Hinton v. Alabama, 571 U.S. 263, 275 (2014).
419 Harrington, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 693).
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of future violence.420 The record from Cade’s trial and initial state habeas
proceedings belies that contention. As the TCCA correctly concluded on direct
appeal, the evidence at trial showed Cade had engaged in an escalating pattern of
violence, particularly toward women, which included juvenile burglaries, a
particularly violent sexual assault, stalking, and making a terroristic threat. In the
latter instance, Cade threatened to burn down Fuller’s house with her inside if she
made him move out of the house. The record now before this court establishes Cade
was not peaceful or law-abiding prior to his current incarceration.
Likewise, as the TCCA pointed out on direct appeal, the circumstances of
Cade’s capital offense were particularly brutal. They involved dozens of stab wounds
reflecting considerable force being administered, not as a sudden reaction to an
unexpected affront, but hours after Cade placed a recording device under Fuller’s side
of their bed and spent hours listening to the recordings of Fuller and her ex-husband
thereon “over and over” in Cade’s word. Cade then obtained a knife and woke a
sleeping Fuller for the express purpose of threatening her. The crime scene and
autopsy photographs reveal the degree of savagery Cade inflicted on both Fuller and
Desaree. Cade’s admission, known at trial, that he sexually assaulted Fuller as she
bled to death in Desaree’s presence evidences a depraved mindset. Additionally,
there was aggravating evidence before the state habeas court, and now this court,
420 ECF no. 127, 122.
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showing Cade informed his defense team that he left the crime scene, purchased
lubricant, returned to the crime scene, watched pornography for hours, and then
sexually assaulted Fuller’s corpse.
Much of Cade’s “new” mitigating evidence is, in fact, repetitious or only
slightly more expansive than the extensive case in mitigation presented by his trial
counsel during both phases of trial. For example, Cade complains that his trial
counsel did not present mitigating evidence showing that Cade performed well in a
highly structured environment or social setting.421 But Cade’s trial counsel did
present testimony from Dallas County Jail correctional official Austin Jackson
establishing that Cade had not posed any disciplinary problems during his pretrial
detention. Cade’s trial counsel cannot reasonably be faulted for failing to present
mitigating evidence that was largely duplicative of, or only slightly more detailed
than, the extensive mitigating evidence of Cade’s background actually presented at
trial.422 Evidence of Cade’s good behavior during his pretrial detention also must be
viewed in the context of the other evidence presented at trial showing Cade was once
involved in a fight in prison that resulted in his adversary suffering a broken thumb.
421 Id.
422 Howard v. Davis, 959 F.3d 168, 173 (5th Cir. 2020) (citing Richards,
566 F.3d at 568), cert. denied sub nom. __ U.S. __, 141 S. Ct. 1085 (2021); Norman v.
Stephens, 817 F.3d 226, 233 (5th Cir. 2016) (defendant not prejudiced by failure of
counsel to present cumulative evidence), cert. denied, 580 U.S. 1161 (2017).
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Insofar as Cade identifies new witnesses whom he claims his defense team
failed to contact or to discover, for the most part, Cade’s new witness affidavits fail to
establish those witnesses were available and willing to testify at the time of Cade’s
capital murder trial. Ordinarily, to prove prejudice under Strickland in connection
with an ineffective assistance claim premised upon an uncalled witness, a criminal
defendant must do more than make naked assertions – the petitioner must (1) name
the witness, (2) demonstrate that the witness was available to testify and would have
testified, (3) set out the content of the witness’s proposed testimony, and (4) show
the testimony would have been favorable to a particular defense.423
Cade’s “new” good character testimony must be viewed in the context of the
“good character” testimony Cade’s trial counsel presented at the punishment phase of
trial from a former coworker, a former childhood friend and high school teammate,
and from Cade’s cousin Rhea Scott. New witnesses testifying about Cade’s allegedly
gentle character (which Cade now urges should have been presented at trial) would
likely have confronted the same type of cross-examination which caused defense
423 See., e.g., Nelson v. Davis, 952 F.3d 651, 669 (5th Cir. 2020), aff’d sub
nom. 72 F.4th 649 (5th Cir. 2023), cert. denied, __ U.S. __, 144 S. Ct. 1344 (2024);
King v. Davis, 883 F.3d 577, 590 (5th Cir.), cert. denied, 586 U.S. 965 (2018); Trevino
v. Davis, 829 F.3d 328, 338 (5th Cir. 2016), aff’d, 861 F.3d 545 (5th Cir. 2017), cert.
denied, 584 U.S. 1019 (2018); United States v. Fields, 761 F.3d 443, 461 (5th Cir.
2014), cert. denied, 576 U.S. 1004 (2015); Woodfox v. Cain, 609 F.3d 774, 808 (5th
Cir. 2010); Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir.), cert. denied, 562 U.S. 911
(2010); Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (citation omitted).
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witness Gregory Scott to erupt awkwardly. Moreover, Cade’s new lay witnesses offer
very little information that was not already before Cade’s capital sentencing jury.424
At trial, Cade’s expert Dr. Kessner opined, without the benefit of having
evaluated Cade, that Cade suffered from “confusional arousal” and “abandonment
rage” at the time of his capital offense. In support of this assertion, Dr. Kessner
pointed to evidence showing Cade suffered an abusive and neglected childhood; was
the victim of childhood sexual abuse perpetrated by his mother and two cousins;
Cade’s father suffered from schizophrenia; and Cade suffered from symptoms of
PTSD resulting from the fact, as a child, he witnessed acts of extreme violence
inflicted by his parents on each other, including a knife attack by his mother on his
father, and his father striking his mother in the head with a hammer.425 To the
foregoing, Cade now adds allegations that he has a history of multiple concussions
and head injuries arising from a lengthy career playing football and automobile
accidents as an adult which results in him suffering from Chronic Traumatic
Encephalopathy (“CTE”), symptoms of which include Myoclonic Movement
Disorder and sleep disorders.
424 See United States v. Bernard, 762 F.3d 467, 475 (5th Cir. 2014)
(cumulative positive character evidence could not form the basis for an ineffective
assistance claim), cert. denied, 577 U.S. 1101 (2016).
425 48 R.R. Trial [ECF no. 69-48] 36-105.
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The “new” medical or mental health evidence Cade proffered in his initial and
second state habeas proceedings and which Cade presents to this court is, for the
most part, double-edged in nature. For instance, Dr. Silverman testified during
Cade’s initial state habeas proceeding that:
• Cade suffers from frontal lobe impairment (disinhibition) as a result of
recurring head trauma.
• This condition results in cognitive impairment.
• Cade also suffers from traits of schizophrenia (hearing voice) and
symptoms of PTSD.
• Cade’s brain damage renders him susceptible to wide ranges of extreme
emotions which Dr. Silverman described as “off the charts.”
• Cade experienced childhood trauma as a result of rampant drug use in
his family and frequent instances in which Cade was abandoned by his
mother by being left with an aunt.
• Cade’s mother frequently beat him.
• Cade’s mother was a heavy drinker.
• Cade’s cognitive disorder includes indications of paranoia.
• Individuals such as Cade are easily overwhelmed, often give illogical
responses, display confusion, and have a hard time interpreting the
world.
• Cade experienced many risk factors in childhood, including in utero
alcohol exposure; a need to receive oxygen immediately after birth;
physical, emotional, and sexual abuse; deprivation; a lack of parenting;
inconsistent nutrition; frequent head injuries; and exposure to a violent
drug-laden environment.
• The type of abuse Cade experienced as a child often leads to an
individual being impulsive, rebellious, and emotionally labile, i.e.,
subject to swift and dramatic mood swings not necessarily in response to
stimuli.426
426 3 R.R. Initial State Habeas Hearing [ECF no. 72-3] 6-42, 55-90; 4 R.R.
Initial State Habeas Hearing [ECF no. 72-4] 7-90.
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Dr. Silverman’s description of Cade is an example of what the Fifth Circuit has
termed “double-edged” mitigation evidence.427 The Fifth Circuit has identified
several other forms of double-edged evidence.428
Dr. Silverman diagnosed Cade as suffering from frontal lobe damage which he
attributed to a long history of multiple head injuries. He also explained that Cade’s
frontal lobe brain damage meant Cade experienced cognitive difficulties and was
inherently unable to control his emotions (emotional lability). Other, undisputed,
evidence in the record shows Cade functions intellectually in the
low-average-to-borderline range. This supports the first of Dr. Silverman’s
observations. The undisputed facts of Cade’s capital offense support the latter. In
the eyes of some jurors, such evidence might tend to reduce Cade’s moral culpability.
But it most assuredly would have been viewed by all rational jurors as supporting an
427 See Brown v. Thaler, 684 F.3d 482, 499 (5th Cir. 2012) (explaining that
mitigating evidence is “double-edged” when it “‘might permit an inference that [the
defendant] is not as morally culpable for his behavior [but], it also might suggest
[that he], as the product of his environment, is likely to continue to be dangerous in
the future”) (quoting Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002)), cert. denied,
568 U.S. 1164 (2013).
428 See, e.g., Broadnax v. Lumpkin, 987 F.3d 400, 413 (5th Cir. 2021)
(evidence of intoxication and defendant’s troubled upbringing), cert. denied, __ U.S.
__, 142 S. Ct. 859 (2022); Howard, 959 F.3d at 173 (evidence of head injury); Smith,
927 F.3d at 337 (evidence of mental illness); Fields, 761 F.3d at 459 (evidence of
mental illness); Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir. 2002) (evidence of
alleged brain injury), cert. denied, 538 U.S. 926 (2003); Kitchens v. Johnson, 190 F.3d
698, 703 (5th Cir. 1999) (evidence of substance abuse).
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affirmative finding on the future dangerousness special issue. It is clearly
doubled-edged in nature.
The problem with Dr. Silverman’s diagnosis (and with Cade’s current assertion
that he suffers from CTE) is the absence of any evidence in the record now before
this court showing that Cade actually sustained any of the concussions or head
injuries that are the foundation of this diagnosis. The record includes no medical
records or other evidence showing Cade has ever been diagnosed or treated for a
concussion. The only source of information relating to Cade’s two alleged
automobile accidents is Cade himself. No other witness identified in the record
claims to have personal knowledge of same.429 The same is true for Cade’s assertions
of multiple head injuries while playing football.430 Cade presents no evidence he
sustained any injury playing football until his junior year in high school when he
experienced an episode of temporary paralysis during a game and was diagnosed with
429 Cade offers no police reports or insurance records memorializing the fact
that he was involved in any automobile accident. Nor does he offer any medical
records confirming that he was ever examined or treated for any injury, much less a
concussion, as a result of any automotive accident. Likewise, Cade offers no affidavit
from any witness corroborating his involvement in an automotive accident and any
injuries Cade allegedly sustained therein.
430 As noted by Dr. Price in his testimony during Cade’s initial state habeas
proceeding, Cade’s statements to Dr. Silverman that he experienced numerous
“stingers” throughout his football career is hardly surprising given his congenital
spinal condition. See 6 R.R. Initial State Habeas Hearing [ECF no. 72-6] 162-64
(explaining that the term “stinger,” used by Cade to describe his football injuries, is
commonly associated with a temporary numbness or paralysis, usually of an
extremity, not a concussion).
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a congenital narrowing of the spinal column which effectively ended his football
career. Had Cade’s former high school coaches testified at trial as Cade now suggests
they would – i.e., that they routinely forced their players to continue to play through
injuries – they undoubtedly would have been met with cross-examination focused on
how they could have ignored a serious medical injury like a concussion. Such an
admission may have been construed by Cade’s jury as an admission of unprofessional
conduct and, therefore, constituted impeachment evidence.
An informed decision by Cade’s trial counsel not to introduce double-edged
mental health testimony, such as evidence of mental illness and substance abuse, will
not support an ineffective assistance claim.431 Cade’s trial counsel presented
extensive mental health testimony at trial, including testimony showing (1) Cade
operates intellectually in the low-average to borderline range (Dr. Proctor’s trial
testimony based on Dr. McGarrahan’s testing and report); (2) there was a risk Cade
could inherit his father’s schizophrenia (Dr. Altman’s trial testimony); (3) as a victim
of childhood sexual abuse, Cade was likely to experience serious emotional
disturbances, difficulty in long-term intimate relationships, and feelings of shame and
low-self-confidence (multiple witnesses); (4) Cade was also likely to experience
long-term emotional disorders such as chronic PTSD and emotional disorders
431 Ayestas v. Davis, 933 F.3d 384, 392 (5th Cir. 2019), cert. denied, 589
U.S. 1203 (2020).
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(multiple witnesses); (5) Cade was also potentially a candidate for long-term
depression, bipolar disorder, psychosis, and mental illness (Dr. Gottlieb’s trial
testimony); and (6) as a result of autonomic arousal attributable to his history of
abandonment as a child, at the time of his capital offense, Cade was experiencing
limited cognition, loss of volitional control, and extreme emotions – i.e.,
abandonment rage (Dr. Kessner’s trial testimony). While suggesting a slightly
different etiology or causal origin from Dr. Gottlieb for Cade’s emotional lability and
cognitive difficulties, Dr. Silverman’s testimony offered little that was genuinely new
in terms of mitigating evidence.
Cade’s trial counsel made an informed decision not to present any testimony
from a mental health expert who had evaluated Cade. They did so out of reasonable
concern that doing so would open the door to a new evaluation by a prosecution
expert which could result in a diagnosis of ASPD. Cade has alleged no specific facts
and presented no evidence showing it was objectively unreasonable for Cade’s defense
team to circumscribe the defense’s case in mitigation in the manner they did.
Introducing at trial the type of expert testimony offered during Cade’s initial state
habeas proceeding by Dr. Silverman, i.e., the product of an evaluation, could have
opened the door to the prosecution discovering some very harmful information.
Moreover, it would have offered little that was genuinely new in terms of mitigation.
Both Dr. Kessner and Dr. Silverman agreed that Cade displayed cognitive difficulties
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and emotional lability. They merely disagreed as to the cause. Cade’s latest
allegation of CTE likewise offers little that is truly new. Cade has not alleged any
specific facts or presented any evidence showing the strategic decision by his trial
counsel to limit its mental health evidence to only experts who had not evaluated
Cade was objectively unreasonable.
Nor has Cade alleged any specific facts or furnished any evidence showing
there is a reasonable probability that, but for the failure of his trial counsel to present
testimony like Dr. Silverman’s (or any of the other new medical or mental health
evidence now before the court), the outcome of the punishment phase of Cade’s trial
would have been any different. On the contrary, there is reason to believe that
presenting a testifying mental health expert for the defense who, like Dr. Silverman,
had evaluated Cade could have turned the already disturbing nature of Cade’s capital
offense into something even worse. Cade’s trial counsel had compelling reasons to
avoid the course Cade now argues they should have followed: it could have resulted
in disclosure of Cade’s other depraved acts. In all reasonable probability, such
evidence would have increased the likelihood the jury would render an affirmative
answer to the future dangerousness special issue and a negative answer to the
mitigation special issue.
Cade’s complaint about his trial counsels’ failure to present additional
evidence addressing the future dangerousness special issue, including testimony from
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an evaluating mental health expert and the proffered testimony of Dr. Vigen that had
been excluded from the guilt-innocence phase of trial, satisfies neither prong of
Strickland.432 Cade’s tenth claim does not warrant federal habeas relief.
7. Failure to Adequately Investigate and Present All Available Mitigation (Claim 15)
In his fifteenth claim in his second amended federal habeas petition, Cade
argues that his trial counsel failed to adequately investigate Cade’s background and to
present all available mitigating evidence.433 Cade presented a somewhat streamlined
version of his current Wiggins claim in his second, third, and fifth claims in his initial
state habeas application, wherein he argued his trial counsel were ineffective for
failing to investigate and present mitigating evidence (Claim 2); failing to present a
social historian to explain the impact of Cade’s social history (Claim 3); and failing to
present Dr. McGarrahan’s testimony (Claim 5), all at the punishment phase of
trial.434
In connection with Cade’s Wiggins claim (Claim 2), the state habeas trial court
found and concluded, in pertinent part, as follows:
• Cade failed to demonstrate by a preponderance of the evidence any
deficiency in his trial counsels’ investigation and presentation of
mitigating evidence.
432 See, e.g, id.
433 ECF no. 127, 151-232.
434 Initial State Habeas Application 44-76, 82-85 [ECF no. 71-4, 47-79,
85-88].
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• Cade also failed to demonstrate any resulting prejudice arising from his
trial counsels’ investigation for, and presentation of, mitigating
evidence.
• Cade’s trial counsel reasonably chose not to call Cade’s daughter Tyra
to testify at trial because at the time of Cade’s trial, Tyra was only
eleven or twelve years old; Cade had indicated he did not want her to
testify; Tyra’s mother would not allow the defense team to interview
Tyra; and Cade’s trial counsel feared that if called to testify, Tyra might
learn on cross-examination that Cade had made statements following his
arrest in which he stated that he would have also killed Tyra if she had
been present at the time of the murders.
• Testimony from Tyra to Cade’s qualities as a good father was irrelevant
to Cade’s moral blameworthiness for the murders of Fuller and Desaree.
• Testimony about Tyra’s love for her father and desire to see him live
would have been inadmissible as irrelevant to Cade’s own personal
moral culpability.
• Counsel was not deficient for not offering inadmissible evidence, and
trial counsels’ decision not to present Tyra’s testimony constituted
sound trial strategy.
• Evidence consisting of expressions of mere sympathy or emotional
responses may not be considered by a capital sentencing jury.
• Cade’s half-brother Gregory Scott testified Cade always had a job
because Cade wanted to provide for Tyra.
• Cade’s friend and former coworker James Kemp testified Cade appeared
to be a good father.
• Cade’s cousin Rhea Scott also testified Cade was a good father to Tyra
and good with her children.
• Additional details from Tyra regarding her relationship with Cade would
have been of little benefit to Cade, in part because there was no dispute
as to the positive nature of Cade’s relationship with Tyra.
• Cade’s trial counsels’ investigation into Cade’s background was not
deficient.
• The defense team made reasonable efforts to contact potential witnesses
Karl Rogers, Debora Tennell, and Carolyn Singley.
• The day Dr. Compton attempted to interview Karl Rogers, Rogers
appeared to be intoxicated and the decision was made not to pursue
Rogers as a witness because of concerns, based on his substance abuse,
about his overall ability to be a good witness.
• The defense team attempted without success to contact Debora Tennell.
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• A defense investigator attempted to reach Carolyn Singley and
contacted a relative who stated that Singley was still alive; the relative
agreed to give Singley Dr. Compton’s office number, but the defense
never heard from Singley.
• The defense made a strategic decision not to contact Cade’s half-brother
Jerry Scott because Scott was incarcerated, and the defense team
reasonably did not believe Scott’s testimony would benefit Cade.
• The defense team interviewed Mary Rogers and made a reasonable
decision not to call her to testify because she denied there was anything
really difficult about Cade’s childhood or that Cade’s mother was
physically or emotionally abusive.
• The defense called Rhea Scott to testify but reasonably limited the
scope of her testimony in an effort to avoid disclosing that Cade once
had been a drug dealer.
• Additional evidence showing substance abuse by family members other
than Cade’s parents would have only minimal benefit to Cade.
• Calling Jerry Scott to testify would have been problematic because he
may have reacted to learning the shocking details of Cade’s capital
offense in the same way Gregory Scott had.
• Most of the evidence Cade alleged the foregoing witnesses could have
furnished was already before the jury.
• There was no evidence suggesting Cade had witnessed heavy drug or
alcohol abuse by anyone in his family other than his parents.
• The defense team contacted Cade’s former high school coach Jim
Bennett but reasonably chose not to call Bennett to testify because (1)
Bennett knew both Fuller and her daughter and thought highly of them,
which may have been used by the prosecution on cross-examination,
and (2) Bennett’s testimony that Cade experienced a difficult home life
and experienced depression after being forced to give up football would
have had only meager value because it was cumulative of other evidence
the defense did present through other witnesses.
• Defense witness James Kemp appeared upset when, on
cross-examination, he learned for the first time of the gruesome nature
of Cade’s offense.
• Cade’s trial counsel reasonably chose not to cross-examine prosecution
witness Justus Rogers, Cade’s second cousin and Desaree’s friend,
because such cross-examination would have produced little benefit to
the defense, could have revealed that Desaree did not like Cade, and
thus might rebut Cade’s contention that he was seeking to improve his
relationship with her.
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• The defense did not call Cade’s chiropractor Dr. Marcum because,
despite the fact Cade communicated with Dr. Marcum on the phone
from jail, Cade never informed his defense team of Dr. Marcum.
• The defense did not need testimony from Dr. Marcum or Karl Rogers
about Cade’s back injury and Cade’s chronic pain; such evidence was
available from other sources and was introduced at trial; thus, further
testimony on those subjects from Dr. Marcum and Rogers would have
been cumulative.
• Dr. Kessner testified Dr. Proctor’s report (which was admitted into
evidence) established Cade experienced many stressors in his life,
including back injury and chronic back pain.
• The prosecution’s evidence supporting the death sentence was
overwhelming: the undisputed facts of the crime demonstrated Cade
was capable of extreme and gruesome violence and his capital offense
was simply the latest in a line of increasingly violent behavior.435
In connection with Cade’s complaint about his trial counsels’ failure to present
testimony of the social historian (Claim 3), the state habeas trial court found and
concluded in pertinent part as follows:
• Cade failed to show the decision by his trial counsel not to call a social
historian to testify at trial was objectively unreasonable.
• Cade was not prejudiced by the absence of a social historian as defense
trial witness.
• The ABA Guidelines do not require that evidence of a defendant’s social
history be presented through expert testimony.
• Through lay and expert testimony, Cade’s trial counsel introduced
testimony showing that Cade’s offense was the culmination of a violent
and deprived childhood, loss of opportunity and adult support in high
school, and the stress of physical injury, loss of income, and rejection by
Fuller.
• Cade’s trial counsel reasonably chose not to present testimony through
a social historian because using a social historian as a trial witness posed
the potential to disclose additional bad acts evidence theretofore
unknown to the prosecution, such as the fact Cade had once been a
435 FFCL pp. 27-42, ¶¶ 116-219 [ECF no. 71-9, 673-88].
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drug dealer, had intentionally dropped a bowling ball on a cat’s head,
and the details of his sexual assault of Fuller’s corpse.
• Presenting testimony such as that offered during the initial state habeas
proceeding by criminal justice professor Dr. Scott Bowman would have
been of little utility to the defense, in part, because Dr. Bowman based
his conclusion that Cade would not pose a risk of future violence on a
general theory of crime associating low self-control with
crime/delinquency and which describes most crime as unplanned and
opportunistic.
• Dr. Bowman’s characterization of Cade’s offense as lacking in planning
was belied by the evidence at trial, which showed considerable
forethought including planting a recording device and getting a knife
before Cade confronted Fuller.
• Cade’s aggravated sexual assault on Charity Trice likewise demonstrated
considerable forethought and discipline on Cade’s part.
• The evidence at trial contradicted Dr. Bowman’s characterization of
Cade as lacking self-control; Cade was described by his former coaches
and an adult acquaintance as being very much under control during his
years in high school.
• Social worker Laura Sovine’s testimony during Cade’s initial state
habeas proceeding consisted of descriptions of Cade’s deprived
childhood that were cumulative of other evidence admitted at trial and
would have been of little utility at trial because Sovine’s biopsychosocial
history of Cade concluded at the point Cade was eighteen years of age;
another social worker who did testify at trial, prosecution witness Al
Merchant, accurately predicted Cade would reoffend after Cade was
convicted of aggravated sexual assault.436
In connection with Cade’s complaint about his trial counsels’ decision not to
present Dr. McGarrahan’s testimony at the punishment phase of trial (Claim 5), the
state habeas trial court found and concluded in pertinent part as follows:
• Dr. McGarrahan opined that Cade exhibited symptoms of PTSD,
including depression and scored in the low average to borderline range
of intellectual functioning.
436 Id. at pp. 43-51, ¶¶ 220-70 [ECF no. 71-9, 689-97].
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• Cade’s trial counsel attempted to introduce Dr. McGarrahan’s
testimony at the guilt-innocence phase of trial, but the trial court
excluded it.
• Cade’s trial counsel made a reasonable strategic decision not to present
Dr. McGarrahan’s testimony at the punishment phase of trial because
she had evaluated Cade and introducing her testimony would have
opened the door to a new evaluation by a prosecution mental health
expert.
• Evidence of Cade’s low intellectual functioning was introduced through
cross-examination of Dr. Proctor.
• On inquiry in open court, the prosecution advised the court it would
seek a new mental health evaluation of Cade by a prosecution expert if
the defense chose to introduce testimony from an evaluating mental
health expert.
• The risk of the prosecution discovering additional aggravating evidence
had Dr. McGarrahan testified at the punishment phase of trial was real:
at trial the prosecution was unaware that Cade had admitted he sexually
assaulted Fuller’s corpse several times, including after he left the scene,
purchased lubricant, returned to the scene, and then watched
pornography for several hours to get aroused.
• Dr. McGarrahan’s diagnosis of Cade was cumulative of other evidence
showing Cade was depressed, was at risk for PTSD, and functioned in
the low average to borderline range of intellectual functioning.
• Despite not calling Dr. McGarrahan to testify at the punishment phase,
Cade’s trial counsel were able to argue plausibly that Cade was
remorseful; Cade was depressed at the time of his offense; and Cade’s
low IQ prevented him from planning his offense.437
The TCCA expressly adopted all of the foregoing factual findings and
conclusions when it denied Cade’s initial state habeas application on the merits.438
Cade has alleged no facts and presented this court with no clear and convincing
evidence showing that any of the foregoing factual findings were erroneous.
437 Id. at pp. 61-66, ¶¶ 321-50 [ECF no. 71-9, 707-12].
438 Ex parte Cade, 2017 WL 4803802, at *3.
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The TCCA reasonably concluded that Cade’s complaints about his trial
counsels’ investigation into Cade’s background for mitigating evidence and
presentation of mitigating evidence at trial fail to satisfy either prong of Strickland.
Cade’s trial counsel conducted an objectively reasonable investigation into Cade’s
background and made informed, strategically reasonable, decisions with regard to the
mitigating evidence they chose to present at trial and how to present same. The
TCCA’s factual findings and legal conclusions on Cade’s Wiggins claims summarized
above are fully supported by the evidence that was before the state habeas court
during Cade’s initial state habeas proceeding.
The TCCA’s rejections on the merits during Cade’s initial state habeas
proceeding of Cade’s ineffective assistance claims complaining about his trial
counsels’ failures to investigate and present mitigating evidence (Claim 2), present
the testimony from a social historian to explain the impact of Cade’s social history
(Claim 3), and present Dr. McGarrahan’s testimony (Claim 5) were neither contrary
to, nor involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States, nor resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in Cade’s trial, direct appeal, and initial state habeas proceedings. Under
AEDPA, Cade’s fifteenth claim does not warrant federal habeas corpus relief.
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Alternatively, even when reviewed under a de novo standard (including review
of all new factual allegations and new evidence presented by Cade in conjunction
with his federal habeas pleadings in this cause), Cade’s ineffective assistance
complaints in his fifteenth claim in his second amended petition fail to satisfy either
prong of Strickland. Cade’s fifteenth claim does not warrant federal habeas relief
under a de novo standard of review.
L. CUMULATIVE ERROR CLAIM
In his twelfth claim in his second amended federal habeas petition, Cade
argues his constitutional rights were violated by the cumulative effect of various
adverse trial court rulings and the ineffective assistance of his trial counsel.439 Cade
did not present his cumulative error claim to any state court until he included it as
his seventeenth claim in his first subsequent (second) state habeas application.440
The TCCA summarily dismissed this claim when it dismissed Cade’s first subsequent
(second) state habeas application based on state writ-abuse principles.441
439 ECF no. 127, 144-46.
440 First Subsequent (Second) State Habeas Application 189-91 [ECF no.
134-17, 439-43].
441 Ex parte Cade, 2021 WL 1202479, at *1-*2.
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The cumulative error doctrine requires a showing that constitutional error
occurred during the defendant’s state court trial.442 For the reasons discussed, all of
Cade’s complaints about the performance of his trial counsel fail to satisfy either
prong of Strickland. Further, for the reasons discussed, all of Cade’s remaining claims
are without arguable merit. His challenges to the constitutionality of the Texas
capital sentencing scheme are foreclosed by Fifth Circuit or Supreme Court authority
and are legally meritless. Thus, under the cumulative error doctrine recognized in the
Fifth Circuit, there is nothing for this court to cumulate. Cade’s cumulative error
claim is without arguable merit and does not warrant federal habeas relief even under
a de novo standard of review.
442 See Young v. Stephens, 795 F.3d 484, 494 (5th Cir. 2015) (noting
petitioner’s failure to demonstrate any constitutional error committed during his
trial, as required to satisfy the cumulative error doctrine) (citation omitted), cert.
denied, 577 U.S. 1220 (2016); Coble, 496 F.3d at 440 (“Federal habeas relief is only
available for cumulative errors that are of a constitutional dimension.”) (citations
omitted); Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.) (absent constitutional
error, there is nothing to cumulate), cert. denied, 531 U.S. 849 (2000); Jackson v.
Johnson, 194 F.3d 641, 655 n.59 (5th Cir. 1999) (“The cumulative error doctrine
provides relief only when the constitutional errors committed in the state court trial
so fatally infected the trial that they violated the trial’s fundamental fairness.”)
(citing Spence v. Johnson, 80 F.3d 989, 1000 (5th Cir.), cert. denied, 519 U.S. 1012
(1996)), cert. denied, 529 U.S. 1027 (2000); Derden v. McNeel, 978 F.2d 1453, 1454
(5th Cir. 1992) (“[F]ederal habeas corpus relief may only be granted for cumulative
errors in the conduct of a state trial where (1) the individual errors involved matters
of constitutional dimension rather than mere violations of state law; (2) the errors
were not procedurally defaulted for habeas purposes; and (3) the errors ‘so infected
the entire trial that the resulting conviction violates due process.’”) (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)), cert. denied, 508 U.S. 960 (1993).
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IV. MOTIONS ATTACKING THE CONSTITUTIONALITY OF AEDPA
On July 23, 2025, Cade filed a motion requesting leave to file a pair of
motions attacking the constitutionality of AEDPA.443 In one of his proposed
motions, Cade argues his constitutional rights would be violated by application of
AEDPA to his federal habeas petition.444 In his other proposed motion, Cade argues
Congress lacked the constitutional authority to enact AEDPA and that, for a plethora
of policy considerations, the restrictions AEDPA imposes on federal habeas review of
petitions filed by state prisoners are unwise and inconsistent with history.445 Because
both of Cade’s proposed motions lack any arguable merit, his motion for leave to file
will be granted, and his substantive motions will be denied.
Cade’s arguments that the Supreme Court’s recent decision in Loper Bright
Enterprises v. Raimondo446 renders unconstitutional AEDPA ignore the history of the
writ of habeas corpus in the federal courts of this nation, ignore clearly established
federal law as pronounced by the Supreme Court, and are without arguable merit.
The only reason this court has any authority to entertain Cade’s federal habeas
corpus petition is that Congress has enacted statutes, currently codified at Title 28,
443 See docket entry 152.
444 See docket entry 150.
445 See docket entry 151.
446 603 U.S. 369 (2024) (“Loper Bright”).
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United States Code, Subsections 2241(a) and 2254(a), which authorize federal
district courts to grant the writ of habeas corpus to prisoners held in custody by the
states. The circumstances under which this court, or any federal district court, may
grant federal habeas corpus relief are likewise established by statute, specifically Title
28, United States Code, Sections 2241-55. This is because the Constitution, in
Article I, Section 8, Clause 9, vests the authority to create federal district courts, in
fact all federal courts other than the United States Supreme Court, in the United
States Congress.447
Federal district courts are courts of limited jurisdiction.448 As an inferior
federal court, this court’s authority to entertain actions filed by state prisoners
seeking federal habeas relief is dependent upon congressional authorization. Federal
district courts have not always been authorized to grant habeas corpus relief to state
prisoners. In fact, as explained below, Congress did not grant federal district courts
the authority to issue writs of habeas corpus to state prisoners under any
circumstances until 1867.
447 See U.S. CONST. art. I § 8, cl. 9 (“The Congress shall have Power . . . To
constitute Tribunals inferior to the supreme Court[.]”).
448 Smith v. Spizzirri, 601 U.S. 472, 476 n.2 (2024) (citing Exxon Mobil
Corporation v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005) (observing that
“‘[t]he district courts of the United States . . . are ‘courts of l imited jurisdiction’” and
“‘possess only that power authorized by Constitution and statute’”)); Badgerow v.
Walters, 596 U.S. 1, 7 (2022) (“The district courts of the United States are courts of
limited jurisdiction, defined (within constitutional bounds) by federal statute.”).
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The jurisprudence of the Supreme Court confirms the limited historical scope
of federal habeas review which the inferior federal courts may exercise. The Supreme
Court has explained this principle in Shinn v. Ramirez as follows:
A state prisoner may request that a federal court order his
release by petitioning for a writ of habeas corpus. See 28
U.S.C. § 2254. The writ may issue “only on the ground
that [the prisoner] is in custody in violation of the
Constitution or laws or treaties of the United States.”
§ 2254(a). To respect our system of dual sovereignty, see
Printz v. United States, 521 U.S. 898, 918 [] (1997), the
availability of habeas relief is narrowly circumscribed, see
Brown v. Davenport, []596 U.S. [] (2022). Among other
restrictions, only rarely may a federal habeas court hear a
claim or consider evidence that a prisoner did not
previously present to the state courts in compliance with
state procedural rules.449
The Supreme Court’s earlier decision the same term in Brown v. Davenport,450
cited with approval in Shinn, is informative with regard to the scope of a federal
district court’s authority to issue a writ of habeas corpus. In Brown, the Supreme
Court held that a federal district court may not issue a writ of habeas corpus to a
state prisoner unless the prisoner satisfies both the harmless error test adopted by the
Supreme Court in Brecht v. Abrahamson,451 and the test set forth by Congress in
449 Shinn, 596 U.S. at 375-76.
450 596 U.S. 118 (2022).
451 507 U.S. 619 (1993).
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AEDPA.452 The Supreme Court emphasized the authority to grant federal habeas
relief is proscribed by federal statute:
When Congress supplies a constitutionally valid rule of
decision, federal courts must follow it. In AEDPA,
Congress announced such a rule. It instructed that a
federal court “shall not . . . gran[t]” relief with respect to a
claim that has been adjudicated on the merits in state
court “unless” the state court’s decision was (1) “contrary
to” or an “unreasonable application of ” clearly established
federal law, as determined by the decisions of this Court,
or (2) based on an “unreasonable determination of the
facts” presented in the state-court proceeding. § 2254(d)
(emphasis added).453
Justice Gorsuch’s opinion for the Court in Brown discussed the history of the
writ of habeas corpus in the federal courts of this nation:
Some background helps explain this arrangement. From
the founding, Congress authorized federal courts to issue
habeas writs to federal custodians. § 14, 1 Stat. 81-82.
After the Civil War, Congress extended this authority,
allowing federal courts to issue habeas writs to state
custodians as well. See Act of Feb. 5, 1867, ch. 28, § 1, 14
Stat. 385. But these statutes used permissive rather than
mandatory language; federal courts had the “power to”
grant writs of habeas corpus in certain circumstances. That
same structure lives on in contemporary statutes, which
provide that federal courts “may” grant habeas relief “as
law and justice require.” 28 U.S.C. §§ 2241, 2243; Wright
v. West, 505 U.S. 277, 285 [](1992) (plurality opinion).454
452 Brown, 596 U.S. at 122.
453 Id. at 127 (emphasis in the original).
454 Id. at 127-28.
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Following a brief discussion of the history of the writ of habeas corpus in both
England and this nation, Justice Gorsuch discussed the Court’s holding in Brown v.
Allen.455 Significantly, he noted that the 1953 decision in Brown marked a significant
shift in the nature of habeas corpus jurisprudence in this nation: “The traditional
distinction between jurisdictional defects and mere errors in adjudication no longer
restrained federal habeas courts. Full-blown constitutional error correction became
the order of the day.”456 This shift effectively granted to federal habeas courts the
authority to review the validity of criminal judgments and to grant relief not just for
jurisdictional error but for any violation of a defendant’s federal constitutional rights
which might have taken place at or before trial.457
Justice Gorsuch’s opinion for the majority in Brown v. Davenport noted the
sweeping change in federal habeas practice resulting from the Court’s 1953 Brown v.
Allen decision led to the federal courts being inundated with petitions for federal
habeas relief filed by state prisoners.458 Justice Gorsuch explained that the Court
began adopting procedural devices in an attempt to ameliorate the flood of federal
habeas petitions with which the federal courts were battling, specifically citing the
455 344 U.S. 443, 458 (1953).
456 Brown, 596 U.S. at 130.
457 Id.
458 Id. at 130-31.
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Court’s adoption of rules of procedural default and the harmless error announced in
Brecht.459 In his opinion for the Court, Justice Gorsuch also explained these
procedural rules were aimed at restoring the writ of habeas corpus to its status prior
to 1953, by re-emphasizing both (1) the powerful and legitimate interest states
possess in “punishing the guilty[,]”460 and (2) the reality that the “[g]ranting of
[federal] habeas relief to a state prisoner ‘intrudes on state sovereignty to a degree
matched by few exercises of federal judicial authority.’”461 It was with those
considerations in mind, Justice Gorsuch declared, the Court adopted its harmless
error rule in Brecht in 1993.462
Within that context, Justice Gorsuch recognized that Congressional enactment
of AEDPA in 1996 “represented a sea change in federal habeas law.”463 The Court
then declared (1) the equitable principles the Supreme Court adopted prior to
passage of AEDPA continued to apply, and (2) state prisoners seeking federal habeas
459 Id. at 132-33.
460 Id. at 132 (quoting Calderon v. Thompson, 523 U.S. 538, 556 (1998)).
461 Id. (quoting Harrington, 562 U.S. at 103) (internal quotation marks
omitted)).
462 Id. at 133.
463 Id. at 134.
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relief remained obligated to satisfy not just AEDPA’s test but also the harmless error
rule in Brecht before a federal court could issue a writ of habeas corpus.464
The Supreme Court’s prior decisions construing and applying AEDPA likewise
offered no clue that it viewed AEDPA as in any manner unconstitutional. For
instance, in Felker v. Turpin,465 the Supreme Court held AEDPA provision (28 U.S.C.
§ 2244(d)) mandating advance Circuit Court approval for the filing of a second or
successive federal habeas petition in a federal district court (1) did not violate Article
I, Section 9, of the Constitution (which bars suspension of the writ of habeas
corpus) and (2) did not impinge upon the Supreme Court’s original habeas corpus
jurisdiction.466 In the course of its opinion in Felker, the Court recognized that,
originally, federal habeas jurisdiction applied only to individuals held in federal, as
opposed to state, custody: “the first Congress made the writ of habeas corpus
available only to prisoners confined under the authority of the United States, not
under state authority.”467 The Court’s Felker opinion expressed the same historical
view of the evolution of federal habeas authority as Justice Gorsuch would recite a
quarter century later in Brown v. Davenport:
464 Id.
465 518 U.S. 651 (1996).
466 Id. at 662-65.
467 Id. at 663 (citation omitted).
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It was not until 1867 that Congress made the writ
generally available in “all cases where any person may be
restrained of his or her liberty in violation of the
constitution, or of any treaty or law of the United States.”
. . . And it was not until well into this century that this
Court interpreted that provision to allow a final judgment
of conviction in a state court to be collaterally attacked on
habeas.468
Nothing in Felker suggested or implied that congressional limitation on access to
federal habeas corpus remedies in the federal district courts violated constitutional
principle.
Writing for the Court in Williams v. Taylor,469 Justice O’Connor explained that
AEDPA effectively altered the standard of federal habeas review of claims fully
adjudicated in the state courts:
In sum, § 2254(d)(1) places a new constraint on the power
of a federal habeas court to grant a state prisoner’s
application for a writ of habeas corpus with respect to
claims adjudicated on the merits in state court. Under
§ 2254(d)(1), the writ may issue only if one of the
following two conditions is satisfied – the state-court
adjudication resulted in a decision that (1) “was contrary
to . . . clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “involved an
unreasonable application of . . . clearly established Federal
law, as determined by the Supreme Court of the United
States.” Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
468 Id.
469 529 U.S. 362 (2000).
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differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the
writ if the state court identifies the correct governing legal
principle from this Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.470
There was no issue regarding the constitutionality of AEDPA presented in Williams.
That case dealt with a pure question of statutory interpretation. Still, Williams
recognized the Court’s view that AEDPA had dramatically altered the nature of
federal habeas review in the federal district courts.471
With the foregoing historical context clear, this court now turns to Cade’s
contention that the Supreme Court’s recent holding in Loper Bright, as well as a
concurring opinion by Justice Gorsuch in that case, somehow rent asunder everything
Justice Gorsuch so meticulously explained in his opinion for the Court in Brown v.
Davenport.
In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,472 the Supreme
Court confronted neither a state prisoner seeking vindication of his constitutional
rights nor the constitutionality of a federal statute. Rather, the issue before the
Court in Chevron was the propriety under the Clean Air Act of a regulation
promulgated by the Environmental Protection Agency in furtherance of its duty to
470 Id. at 412-13.
471 Id.
472 467 U.S. 837 (1984).
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enforce that statute. In the course of addressing that administrative law issue, the
Court explained the question before it as follows:
When a court reviews an agency’s construction of the
statute which it administers, it is confronted with two
questions. First, always, is the question whether Congress
has directly spoken to the precise question at issue. If the
intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. If, however,
the court determines Congress has not directly addressed
the precise question at issue, the court does not simply
impose its own construction on the statute, as would be
necessary in the absence of an administrative
interpretation. Rather, if the statute is silent or ambiguous
with respect to the specific issue, the question for the court
is whether the agency’s answer is based on a permissible
construction of the statute.473
The Chevron Court acknowledged that the power of administrative agencies to
administer congressionally created programs necessarily requires the formulation of
policies and the making of rules to fill in the gaps, explicit or implicit, in the
congressional enactment.474 The Court explained that when Congress explicitly left a
gap for the agency to fill, the agency’s regulations addressing that gap were “given
controlling weight unless they are arbitrary, capricious, or manifestly contrary to the
statute.”475 In cases in which a congressional delegation of authority to an agency
473 Id. at 842-43 (footnotes omitted).
474 Id. at 843.
475 Id. at 843-44.
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was implicit, the Court held “a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by the administrator of an
agency.”476 “We have long recognized that considerable weight should be accorded to
an executive department’s construction of a statutory scheme it is entrusted to
administer, and the principle of deference to administrative interpretations.”477 The
Court explained that such deference should be applied when “the meaning or reach of
a statute has involved reconciling conflicting policies, and a full understanding of the
force of the statutory policy in the given situation has depended upon more than
ordinary knowledge respecting the matters subjected to agency regulations.”478 The
foregoing judicially crafted legal doctrine eventually became known colloquially as
“the Chevron doctrine” or “Chevron deference[.]”
In Loper Bright,479 the Supreme Court once again confronted neither a request
by a state prisoner for federal habeas relief nor a constitutional challenge to a federal
statute. Instead, two groups of fishermen challenged a rule adopted by a federal
agency (the National Marine Fisheries Service) as part of its duties to enforce a
federal statute addressing maritime fishing in U.S. waters (the Magnuson-Stevens
476 Id. at 844.
477 Id. (citations omitted).
478 Id.
479 603 U.S. 369 (2024).
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Fishery Conservation and Management Act), which required operators of fishing
vessels in U.S. waters to pay for third-party observers on their vessels when a
government observer was unavailable. Chief Justice Roberts began his opinion for the
Court majority by announcing the Court was using the case to overrule the judicially
created doctrine of deference to agency rule-making it had recognized in Chevron.480
The Court then explained the operative facts and procedural history of the cases
before it.481 Chief Justice Roberts proceeded to describe the principles of judicial
review and judicial independence which ascribed to the Constitution’s Framers as
they adopted Article III of the Constitution and what he viewed to be the proper role
of the federal courts in performing their duty to determine the cases and
controversies brought before them.482
The Loper Bright majority’s opinion continued with a discussion of the
development of the Court’s administrative law jurisprudence from the New Deal
forward, arguing that the fundamental distinction between judicial review of factual
determinations made by executive branch agencies and determinations of law.483
More specifically, the Court majority explained what it viewed as the long-standing
480 Id. at 377-80.
481 Id. at 380-84.
482 Id. at 384-87.
483 Id. at 387-90.
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tradition of judicial deference to agency fact-finding and expertise did not extend to
agency determinations of purely legal matters.484 Next, the Court explained that
Congress enacted the federal Administrative Procedure Act (“APA”) in 1946 “‘as a
check upon administrators whose zeal might otherwise have carried them to excesses
not contemplated in legislation creating their offices.’”485
The Court then carefully analyzed the history and text of the APA and
concluded that the congressional enactment requires federal courts construing
statutes to exercise their independent judgment when addressing questions of law:
“The APA, in short, incorporates the traditional understanding of the judicial
function, under which courts must exercise independent judgment in determining the
meaning of statutory provisions. In exercising such judgment, though, courts may –
as they have from the start – seek aid from the interpretations of those responsible for
implementing particular statutes.”486 The Court concluded that the deference
required by Chevron was inconsistent with the foregoing principles within the APA.487
484 Id.
485 Id. at 391 (quoting United States v. Morton Salt Co., 338 U.S. 632, 644
(1950)).
486 Id. at 394.
487 Id. at 396 (“The deference that Chevron requires of courts reviewing
agency action cannot be squared with the APA.”).
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The Supreme Court then launched into a lengthy discussion of the reasons
why it believed Chevron deference could not be reconciled with the APA and such
deference had become unworkable as a practical matter.488 Chief Justice Roberts
emphasized the nature of the beast the Court was slaying: “Chevron was a judicial
invention that required judges to disregard their statutory duties.”489 The Court
overruled Chevron and declared a new responsibility for federal courts consistent with
the APA: “Courts must exercise their independent judgment in deciding whether an
agency has acted within its statutory authority, as the APA requires.”490 Because
both of the Circuit Courts which had addressed the propriety of the agency rule in
question had expressly relied upon Chevron to uphold the rule and grant summary
judgment against the fishermen, the Court reversed and remanded for reconsideration
of the issue absent the influence of Chevron.491
In a separate opinion, Justice Gorsuch, who joined the Court’s majority,
expressed his own views of the three “lessons” he drew from history which counseled
in favor of the majority’s decision to abandon the Chevron doctrine:
Lesson 1, because Chevron deference contravenes the law
Congress prescribed in the Administrative Procedure Act.
488 Id. at 397-413.
489 Id. at 411 (emphasis added).
490 Id. at 412.
491 Id. at 413.
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Lesson 2, because Chevron deference runs against
mainstream currents in our law regarding the separation of
powers, due process, and centuries-old interpretive rules
that fortify those constitutional commitments. And Lesson
3, because to hold otherwise would effectively require us to
endow stray statements in Chevron with the authority of
statutory language, all while ignoring more considered
language in that same decision and the teachings of
experience.492
Justice Gorsuch then explained that he fully concurred with Chief Justice
Roberts’s views on the primacy of the role courts play in the interpretation of the law
and the incompatibility of that principle with the Chevron doctrine:
From the Nation’s founding, they considered “[t]he
interpretation of the laws” in cases and controversies “the
proper and peculiar province of the courts.” The Federalist
No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton).
Perhaps the Court’s most famous early decision reflected
exactly that view. There, Chief Justice Marshall declared it
“emphatically the province and duty of the judicial
department to say what the law is.” Marbury, 1 Cranch at
177. For judges “have neither FORCE nor WILL but
merely judgment” – and an obligation to exercise that
judgment independently. The Federalist No. 78, at 465.
No matter how “disagreeable that duty may be,” this
Court has said, a judge “is not at liberty to surrender, or to
waive it.” United States v. Dickson, 15 Pet. 141, 162, 10 L.
Ed. 689 (1841) (Story, J.). This duty of independent
judgment is perhaps “the defining characteristi[c] of Article
III judges.” Stern v. Marshall, 564 U.S. 462, 483 []
(2011).493
492 Id. at 427 (Gorsuch concurring).
493 Id. at 429-30.
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As was true for Chief Justice Roberts’s majority opinion, despite the length and
breadth of Justice Gorsuch’s concurring opinion in Loper Bright,494 at no point did
Justice Gorsuch suggest he was attempting to determine the constitutionality of a
federal statute on either a facial or as-applied basis. Instead, what is clearly evident
from both the majority and Justice Gorsuch’s concurring opinions in Loper Bright is
that the author’s focus in each opinion was on whether the judicially created Chevron
doctrine warranted continued adherence by federal courts given (1) the requirements
of the APA and (2) the traditional role of federal courts as arbiters of the law when
confronting the interpretation of federal statutes. Their common conclusion that
continued application of Chevron deference could not be reconciled with either the
APA or historical tradition bears no rational relationship to the constitutionality of
AEDPA.
Moreover, given the majority’s express reliance in Loper Bright on the language
of the APA (a congressional enactment) as determinative on the issue before it, its
discussion of the historical tradition of the primacy of judicial review on issues of law,
as opposed to fact, is rendered little more than obiter dictum, that is, “something said
in passing” or which refers to a point of law not directly relevant to the case and,
thus, not forming a binding precedent.495
494 See Loper Bright, 603 U.S. at 416-48.
495 See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66-67 (1996) (“We
(continued...)
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Cade relies heavily on the discussions by Chief Justice Roberts and Justice
Gorsuch of the primacy of judicial review of questions of law, as opposed to fact, to
support his attacks on the constitutionality of AEDPA. For the reasons discussed at
length above, their discussions of that subject in Loper Bright are little more than dicta.
Thus, Cade erroneously relies upon Chief Justice Roberts’s and Justice Gorsuch’s
ruminations in Loper Bright on the historical tradition of the primacy of judicial
review on issues of law, as opposed to fact, as the basis for his constitutional
challenges to AEDPA’s restriction (in Subsections 2254(d) & (e)) on federal habeas
review of claims that were litigated and resolved on the merits in the state courts.
As Justice O’Connor explained for the Court in Williams, in AEDPA Congress
placed a new restriction on the power of federal courts to grant writs of habeas corpus
to state prisoners.496
495(...continued)
adhere in this case, however, not to mere obiter dicta, but rather to the
well-established rationale upon which the Court based the results of its earlier
decisions. When an opinion issues for the Court, it is not only the result but also
those portions of the opinion necessary to that result by which we are bound.”);
Bennis v. Michigan, 516 U.S. 442, 450 (1996) (“‘[I]t is to the holdings of our cases,
rather than their dicta, that we must attend.’”) (quoting Kokkonen v. Guardian Life
Insurance Company of America, 511 U.S. 375, 379 (1994)); Williams v. United States,
289 U.S. 553, 568 (1933) (“None of these cases involved the question now under
consideration, and the expressions referred to were clearly obiter dicta, which, as said
by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257,
‘may be respected, but ought not to control the judgment in a subsequent suit, when
the very point is presented for decision.’”).
496 Williams, 529 U.S. at 399.
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As explained above, the legislative history of AEDPA indicates it was intended
as a limitation upon the scope of federal habeas review, not as an enactment intended
to broaden the scope of federal habeas review or to reconfigure federal habeas courts
as super state appellate courts.
Insofar as Cade relies upon obiter dictum in the majority opinion in Loper Bright
and Justice Gorsuch’s concurring opinion in the same case, his arguments are
unpersuasive. Nothing in Loper Bright purported to address the constitutionality of a
federal statute, such as AEDPA. On the contrary, in that case the Supreme Court
relied upon a federal statute, the APA, as the legal basis for rejecting a judicial
creation – the Chevron doctrine. Nor do Cade’s citations to Loper Bright cast any
doubt on the continuing efficacy of the many Supreme Court decisions since the
enactment of AEDPA discussed above which recognized the limitations Congress
placed on federal habeas review by the federal district courts. Cade cites no decision
by the Supreme Court or any other federal court in which a petition for federal
habeas corpus relief was denied on the basis of Chevron deference. Accordingly, his
arguments premised on Loper Bright bear no rational relationship to the issue of
AEDPA constitutionality.
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Cade’s reliance on Chief Justice Roberts’s and Justice Gorsuch’s discussions of
the Supreme Court’s decision in Marbury v. Madison,497 is likewise misplaced.
Marbury addressed the propriety of a Congressional enactment which purported to
add to the Supreme Court’s original jurisdiction. Chief Justice Marshall reasoned for
the Court that Congress lacked the constitutional authority to add or detract from
the authority expressly granted to the Supreme Court in Article III of the
Constitution. In Felker, the Supreme Court held AEDPA did not purport to impose
any restriction on the Supreme Court’s original habeas corpus jurisdiction, only on its
appellate jurisdiction, a matter expressly reserved to Congress under Article III,
Section 2.498 Cade fails to recognize that the Supreme Court of the United States has
consistently held federal district courts may exercise only the federal habeas authority
granted to them by Congress pursuant to Article I, Section 8, of the Constitution.
Even the Supreme Court’s 1953 decision in Brown v. Allen recognized as much:
“Jurisdiction over applications for federal habeas corpus is controlled by statute.”499
Likewise, Cade’s historical references to federal habeas cases decided prior to
1867 have no relevance to AEDPA constitutionality. As discussed above, and the
Supreme Court has explained multiple times, because of a lack of statutory
497 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803).
498 Felker, 518 U.S. at 661.
499 Brown, 344 U.S. at 460 (citing Section 2241(a)).
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authorization, federal district courts exercised no habeas corpus authority prior to
1867 over state prisoners.
Finally, in Cobb v. Thaler,500 the Fifth Circuit expressly rejected arguments that
Section 2254(d)(1) unconstitutionally impinges upon the decisional independence of
the federal courts – the same basic argument presented by Cade in his motions
challenging AEDPA constitutionality.501 More specifically, in Cobb, the Fifth Circuit
expressly rejected arguments that (1) § 2254(d)(1) (which limits federal habeas relief
to detentions pursuant to state court violations of “clearly established Federal law, as
determined by the Supreme Court”) unconstitutionally dictates how federal courts
adjudicate habeas cases by restricting them to considering only certain legal
authorities and (2) § 2254(d)(1)’s “unreasonable application” standard instructs
federal courts to defer to state court interpretations of federal law.
With regard to Cobb’s former argument, the Fifth Circuit held Section
2254(d)(1) “does not intrude on the independent adjudicative authority of the
federal courts.”502 The Fifth Circuit reasoned that “[r]egulating relief is a far cry from
limiting the interpretive power of the courts . . . and Congress has ample power to
adjust the circumstances under which the remedy of the writ of habeas corpus is
500 682 F.3d 364 (5th Cir. 2012), cert. denied, 568 U.S. 1126 (2013).
501 Id. at 273-77.
502 Id. at 374.
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deployed.”503 The Fifth Circuit concluded Cobb’s Article III arguments could not
withstand scrutiny:
Most fundamentally, Cobb’s Article III challenge is
untenable because it depends on an assumption that
contradicts nearly two centuries of Supreme Court
precedent. Cobb assumes that if Congress gives federal
courts habeas jurisdiction to consider collateral attacks on
state convictions it must give them plenary authority to
consider afresh any and every error of federal law made by
the state court. The Supreme Court, however, has long
permitted Congress to extend habeas jurisdiction to federal
courts without authorizing them to reconsider the legal
determinations of criminal courts. Indeed, the common
law understanding of the writ forbade reexamination of the
judgments of criminal courts of competent jurisdiction.504
With regard to Cobb’s latter argument, after examining the history of federal
habeas practiced in this nation, the Fifth Circuit held that “Congress may
constitutionally grant federal courts habeas jurisdiction over collateral challenges to
state convictions and yet limit the availability of the remedy to exceptional
circumstances.”505 The Fifth Circuit noted that, in rejecting a Suspension Clause
challenge to a different provision of AEDPA, the Supreme Court in Felker emphasized
that “judgments about the proper scope of the writ are ‘normally for Congress to
503 Id. at 374-75 (quoting Lindh v. Murphy, 96 F.3d 856, 872 (7th Cir.
1996), overruled on other grounds, 521 U.S. 320 (1997)).
504 Id. at 375.
505 Id. at 376-77.
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make.’”506 The Fifth Circuit’s holding in Cobb forecloses the arguments Cade makes
in his motions and pleadings attacking the constitutionality of AEDPA. This court
lacks the authority to either disregard or overrule the Fifth Circuit’s holding in Cobb
which, unlike the language in Loper Bright on which Cade relies, is not obiter dictum.507
Cade argues in a conclusory manner that the Supreme Court’s majority
opinion and Justice Gorsuch’s concurring opinion in Loper Bright warrant
“reconsideration” of the holding in Cobb as well as all of the many Supreme Court
authorities discussed above. What Cade does not offer is a rational explanation for
why such “reconsideration” is necessary at this juncture. Neither the history of
federal habeas practice in this nation, as documented by the Supreme Court in its
opinions discussed above, nor the plain language of the Constitution support Cade’s
constitutional challenge to AEDPA. As explained above, Loper Bright had absolutely
nothing to do with either federal habeas practice or the constitutionality of a federal
statute such as AEDPA.
Cade’s arguments that Congress lacked the constitutional authority to restrict
federal habeas review of petitions filed by state prisoners are at least inferentially
506 Id. at 377 (quoting Felker, 518 U.S. at 664) (in turn quoting Lonchar v.
Thomas, 517 U.S. 314, 323 (1996)).
507 In re Bonvillian Marine Service, Incorporated, 19 F.4th 787, 789 (5th Cir.
2021) (holding a district court lacks the freedom to overturn a Fifth Circuit ruling
even in light of subsequent Supreme Court precedent overruling the Fifth Circuit’s
holding).
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rebutted by the Supreme Court’s decisions in Brown v. Allen and Brown v. Davenport,
decided almost seventy years apart; both of which recognize Congress possesses the
authority to determine the scope of federal habeas relief. The Fifth Circuit’s decision
in Cobb, which remains the law in this Circuit, refutes his remaining arguments
challenging the constitutionality of AEDPA. Every federal court identified by either
party as having addressed the same issues has ruled against Cade’s Loper Bright-based
challenges to the constitutionality of AEDPA.508 Thus, Cade’s constitutional
challenges to AEDPA lack any arguable merit.
Respondent furnishes compelling arguments that Cade’s constitutional
arguments challenging AEDPA are (1) dilatory in nature; (2) foreclosed by this
court’s scheduling orders directing Cade to include all legal and factual arguments
supporting his federal habeas claims in his pleadings; and (3) wholly untimely
because they are premised on legal arguments readily available at the time Cade filed
his second amended petition (ECF no. 159). Nonetheless, this court will GRANT
Cade leave to file his two motions attacking the constitutionality of AEDPA but, for
508 See Bates v. Secretary, Florida Department of Corrections, No. 25-12588,
2025 WL 2305211, at *1 (11th Cir. Aug. 1, 2025), cert. denied sub nom. __ U.S. __,
146 S. Ct. 65 (2025); Miles v. Floyd, No. 24-1096, 2025 WL 902800, at *3 (6th Cir.
Mar. 25, 2025); Suniga v. Guerrero, No. 5:22-CV-0124-H, 2025 WL 2533209, at *22
(N.D. Tex. July 22, 2025) (Hendrix, J.); Joubert v. Lumpkin, No. 13-CV-3002, 2024
WL 4281444, at *9 n.4 (S.D. Tex. Sept. 24, 2024), COA denied sub nom. No.
24-70007, 2025 WL 2643182 (5th Cir. Sept. 15, 2025), pet. for cert. docketed (Feb. 3,
2026) (No. 25-6707).
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the reasons set forth in Section IV of this Memorandum Opinion and Order, this
court will simultaneously DENY both of those motions on the merits. Thus, Cade’s
requests that he be granted leave to file his pair of motions attacking the
constitutionality of AEDPA (ECF nos. 152, 158) are GRANTED. For the reasons set
forth above in Section IV of this Memorandum Opinion and Order, all relief
requested in either of Cade’s motions attacking the constitutionality of AEDPA (ECF
nos. 150, 151) is DENIED. Cade is also DENIED a Certificate of Appealability on
all claims and issues presented in either of his motions attacking the constitutionality
of AEDPA. For the reasons set forth at length above, reasonable jurists could not
disagree with this court’s rejection on the merits of all of Cade’s attacks on the
constitutionality of AEDPA.
V. EVIDENTIARY HEARING REQUEST
Cade requests an evidentiary hearing in this court.509 Insofar as Cade’s claims
in this federal habeas corpus proceeding were disposed of on the merits during the
course of his direct appeal or initial state habeas corpus proceedings, he is not
entitled to a federal evidentiary hearing to develop new evidence attacking the state
appellate or state habeas court’s resolution of his claims unless he can satisfy 28
U.S.C. § 2254(e)(2).510 Likewise, a federal habeas petitioner is not entitled to an
509 ECF no. 127 at 250.
510 Shinn, 596 U.S. at 371 (in all but the extraordinary situations listed in
(continued...)
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evidentiary hearing for the purpose of showing that his failure to develop facts in the
state court was the result of the ineffective assistance of his state habeas counsel.511
Under AEDPA, the proper place for development of the facts supporting a
federal habeas claim is the state court.512 Where a petitioner’s claims have been
rejected on the merits, further factual development in federal court is effectively
precluded by virtue of the Supreme Court’s holding in Cullen v. Pinholster:
We now hold that review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated
the claim on the merits. Section 2254(d)(1) refers, in the
past tense, to a state-court adjudication that “resulted in” a
decision that was contrary to, or “involved” an
unreasonable application of, established law. This
backward-looking language requires an examination of the
state-court decision at the time it was made. It follows
that the record under review is limited to the record in
existence at that same time i.e., the record before the state
court.513
510(...continued)
§ 2254(e)(2), a federal habeas petitioner who failed to develop facts in state court
supporting his claim is not entitled to an evidentiary hearing in federal court).
511 Id. at 383-91.
512 See Harrington, 562 U.S. at 103 (“Section 2254(d) thus complements
the exhaustion requirement and the doctrine of procedural bar to ensure that state
proceedings are the central process, not just a preliminary step for a later federal
habeas proceeding[.]”); Hernandez, 108 F.3d at 558 n.4 (holding AEDPA clearly
places the burden on a federal habeas petitioner to raise and litigate as fully as
possible his federal claims in state court).
513 Cullen, 563 U.S. at 181-82.
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Thus, Cade is not entitled to a federal evidentiary hearing on any of his claims
which were rejected on the merits by the state courts, either on direct appeal or
during his initial state habeas corpus proceedings.514 Furthermore, factual
development of a claim in federal court is permissible only when the federal habeas
court first determines the new evidence to be developed could properly be considered
in light of the restrictions on evidentiary development imposed by AEDPA.515
This court is entitled to rely upon the facts alleged by Cade in his second
amended federal habeas petition.516 Conclusory allegations will not support a claim
of ineffective assistance of counsel.517 Further, “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
514 Shinn, 596 U.S. at 371; Halprin v. Davis, 911 F.3d 247, 255 (5th Cir.
2018) (per curiam) (“‘If a claim has been adjudicated on the merits by a state court, a
federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record
that was before that state court.’”) (quoting Cullen, 563 U.S. at 185), cert. denied, 589
U.S. 959 (2019).
515 Shoop, 596 U.S. at 819-21 (where a petitioner failed to develop the
factual bases for his claims in state court, he is entitled to present new evidence in
support of his claims before the federal habeas court only in the two limited
circumstances outlined in § 2254(e)(2)).
516 See Rule 2(c)(2) of the Rules Governing Section 2254 Cases in the
United States District Courts; see also Mayle, 545 U.S. at 655.
517 See Harper, 64 F.4th at 691-92; Collier v. Cockrell, 300 F.3d 577, 587
(5th Cir.), cert. denied, 537 U.S. 1084 (2002); Barnard v. Collins, 958 F.2d 634, 642
n.11 (5th Cir.), rehearing denied, 964 F.2d 1145 (1992), cert. denied, 506 U.S. 1057
(1993).
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speculative.”518 To prevail on an ineffective assistance claim based upon uncalled
witnesses, an applicant “‘must name the witness, demonstrate that the witness was
available to testify and would have done so, set out the content of the witness’s
proposed testimony, and show that the testimony would have been favorable to a
particular defense.’”519 “An applicant ‘who alleges a failure to investigate on the part
of his counsel must allege with specificity what the investigation would have revealed
and how it would have altered the outcome of the trial.’”520
With regard to any new factual allegations, new evidence, or new legal
arguments Cade presents in support of any of the claims for which this court has
undertaken de novo review, he is likewise not entitled to an evidentiary hearing. In
the course of conducting a de novo review of Cade’s claims that were summarily
dismissed by the TCCA when it dismissed Cade’s first subsequent (second) state
habeas application, except for those assertions that are refuted by the state courts
records now before this court, this court has assumed the factual accuracy of (1) all
518 Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978); see also
Nelson, 952 F.3d at 669; Fields, 761 F.3d at 461; Coleman v. Thaler, 716 F.3d 895, 906
(5th Cir. 2013), cert. denied, 571 U.S. 1214 (2014); Woodfox, 609 F.3d at 808; Coble,
496 F.3d at 436; Graves v. Cockrell, 351 F.3d 143, 156 (5th Cir. 2003).
519 Nelson, 952 F.3d at 669 (quoting Day, 566 F.3d at 538); Gray v. Epps,
616 F.3d 436, 443 (5th Cir. 2010), cert. denied, 563 U.S. 905 (2011); Woodfox, 609
F.3d at 808; Gregory, 601 F.3d at 352.
520 Gregory, 601 F.3d at 352 (quoting United States v. Green, 882 F.2d 999,
1003 (5th Cir. 1989)).
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the specific facts alleged by Cade in support of his claims for relief and (2) any
documents he has presented in support of those claims. Even when the truth of all of
Cade’s new specific factual allegations supporting those claims is assumed, his claims
do not warrant federal habeas relief.521 Thus, Cade is not entitled to an evidentiary
hearing in this court with regard to any of his claims for which this court has
undertaken de novo review.522 The pleadings and this court’s review of the state court
records establish that Cade is precluded from obtaining federal habeas relief. He is
not entitled to an evidentiary hearing in this court.
VI. CERTIFICATE OF APPEALABILITY
Under AEDPA, before a petitioner may appeal the denial of a habeas corpus
petition filed under § 2254, the petitioner must obtain a COA.523 Likewise, under
AEDPA, appellate review of a habeas petition is limited to the issues on which a COA
521 See Schriro, 550 U.S. at 474 (“In deciding whether to grant an
evidentiary hearing, a federal court must consider whether such a hearing could
enable an applicant to prove the petition’s factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”).
522 Richards, 566 F.3d at 563 (if the district court’s review of the petition,
answer, transcripts, and record from the state court proceedings refutes the
petitioner’s factual allegations or otherwise precludes habeas relief, the district court
is not required to hold an evidentiary hearing).
523 Miller-El I, 537 U.S. at 335-36; 28 U.S.C. § 2253(c)(2).
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is granted.524 In other words, a court grants or denies a COA on an issue-by-issue
basis, thereby limiting appellate review to those issues on which a COA is granted.525
A court will not grant a COA unless a petitioner makes a substantial showing
of the denial of a constitutional right.526 To make such a showing, the petitioner
need not show he will prevail on the merits but, rather, must demonstrate that
reasonable jurists could debate whether (or, for that matter, agree) the petition
should have been resolved in a different manner or that the issues presented are
adequate to deserve encouragement to proceed further.527 This court is required to
issue or deny a COA when it enters a final order such as this one adverse to a federal
habeas petitioner.528
The showing necessary to obtain a COA on a particular claim depends on the
manner in which the District Court has disposed of a claim. “[W]here a district
court has rejected the constitutional claims on the merits, the showing required to
524 See Crutcher v. Cockrell, 301 F.3d 656, 658 (5th Cir. 2002) (per curiam).
525 Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (“A plain reading of
the AEDPA compels the conclusion that COAs are granted on an issue-by-issue basis,
thereby limiting appellate review to those issues alone.”); 28 U.S.C. § 2253(c)(3).
526 Tennard, 542 U.S. at 282; Miller-El I, 537 U.S. at 336; Slack v. McDaniel,
529 U.S. 473, 483 (2000); Barefoot, 463 U.S. at 893.
527 Tennard, 542 U.S. at 282; Miller-El I, 537 U.S. at 336.
528 Rule 11(a), Rules Governing Section 2254 Cases in the United States
District Courts.
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satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.”529 In a case in which the petitioner wishes to challenge on
appeal this court’s dismissal of a claim for a reason not of constitutional dimension,
such as procedural default, limitations, or lack of exhaustion, the petitioner must
show reasonable jurists would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and whether this court was correct in its
procedural ruling.530 This court did not dispose of any of Cade’s federal habeas
corpus claims on procedural grounds. Rather, this court addressed the merits of all of
Cade’s federal constitutional claims, including those of his federal habeas claims
which the TCCA summarily dismissed in the course of Cade’s second state habeas
proceeding.
Reasonable minds could not disagree with this court’s conclusions that (1) all
of Cade’s substantive federal constitutional claims, including his complaints about
state trial and appellate court rulings on challenges for cause, evidentiary sufficiency,
the absence of a lesser-included offense instruction, the exclusion of expert testimony,
529 Miller-El I, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).
530 See Slack, 529 U.S. at 484 (holding when a district court denies a
habeas claim on procedural grounds, without reaching the underlying constitutional
claim, a COA may issue only when the petitioner shows that reasonable jurists would
find it debatable whether (1) the claim is a valid assertion of the denial of a
constitutional right and (2) the district court’s procedural ruling was correct).
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allegedly improper prosecutorial jury argument, Cade’s alleged intellectual disability,
constitutional defects in the Texas capital sentencing special issues, an alleged fair
cross-section violation, and his Batson claim are without arguable merit; (2) all of
Cade’s complaints of ineffective assistance by his trial counsel fail to satisfy the
prejudice prong of Strickland; and (3) Cade’s cumulative error claim is legally
frivolous. There are no constitutional errors to cumulate in this case. Cade is not
entitled to a COA from this court.
VII. CONCLUSION
For these reasons, (1) the referral of this cause to the United States Magistrate
Judge is WITHDRAWN; (2) all relief requested in Cade’s second amended federal
habeas petition (ECF no. 127), as supplemented by Cade’s reply brief (ECF no. 146),
is DENIED on the merits; (3) Cade’s requests for leave to file motions attacking the
constitutionality of AEDPA (ECF nos. 152, 158) are GRANTED; (4) all relief
requested in either of Cade’s motions attacking the constitutionality of AEDPA (ECF
nos. 150, 151) is DENIED; (5) Cade’s request for an evidentiary hearing is
DENIED; and (6) Cade is DENIED a Certificate of Appealability on all of his claims
for relief in this action and his motions asserting constitutional challenges to AEDPA.
SO ORDERED.
March 31, 2026.
___________________________________
A. JOE FISH
Senior United States District Judge
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