Raby v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
October 15, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-20129
_______________
CHARLES D. RABY,
Petitioner-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-02-0349
_________________________
Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Charles Raby applies for a certificate of ap-
pealability (“COA”) pursuant to 28 U.S.C.
* Pursuant to 5TH CIR. R. 47.5, the court has
(continued...)
*(...continued)
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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§ 2254. We deny the request.
I.
In June 1994, a jury convicted Raby of the
capital murder1 of seventy-two-year-old Edna
Franklin, who “had been severely beaten[,] re-
peatedly stabbed[,] and undressed . . . below
the waist.” Raby v. Stone, 970 S.W.2d 1
(Tex. Crim. App. 1998). Although Raby
pleaded not guilty, the state introduced a
signed statement in which he admitted to
attacking Franklin and to the general
circumstances surrounding the crime.2 During
the punishment phase, prosecution and defense
witnesses testified to aggravating and
mitigating factors, respectively. The jury
answered that Raby posed a future danger and
that sufficient mitigating evidence was not
presented. Raby was sentenced to death.
II.
Although Raby originally cited thirteen
grounds for habeas corpus relief, he now seeks
a COA based on the following: (1) ineffective
assistance of counsel at the punishment phase;
(2) improper prosecutorial comments
regarding Raby’s silence surrounding his
arrest; (3) ineffective assistance of trial counsel
during the guilt phase of the trial; (4)
insufficient evidence; (5) the alleged
unconstitutionality of Texas law in not
allowing an intoxication defense; and (6) not
being able to inform the jury about his future
parole eligibility in a life sentence. The district
court dismissed all of Raby’s claims on a
motion for summary judgment.
The first two grounds were dismissed be-
cause Raby had failed to exhaust his options in
state proceedings. The third ground was dis-
missed based on procedural defaults and an
application of Strickland v. Washington, 466
U.S. 668 (1984). The district court dismissed
the fourth ground after determining that the
evidence “was nearly compelling in showing
that Franklin was killed during the commission
or attempted commission of a robbery or
sexual assault.” The district court cited valid
Supreme Court and Fifth Circuit precedent3
stating the precise opposite of what Raby
claimed in his fifth ground. Finally, the court
cited Green v. Johnson, 160 F.3d 1029, 1045
(5th Cir. 1998), to dispel Raby’s argument that
he had the constitutional right to inform the
jury as to his parole eligibility under a life
1 TEX. PENAL CODE ANN. § 19.03(a)(2) (“A
person commits an offense if he commits murder as
defined under Section 19.02(b)(1) and . . . (2) the
person intentionally commits the murder in the
course of committing or attempting to commit
kidnapping, burglary, robbery, aggravated sexual
assault, arson, or obstruction or retaliation.”).
2 The statement read, in part:
I went to a little store and bought some wine
. . . . I drank the wine . . . . I knocked on the
door. I did not hear anyone answer. I just went
inside . . . . I wa lked into the kitchen and
grabbed Edna. Edna’s back was to me and I
just grabbed her. I remember struggling with
her and I was on top of her. I know I had my
knife but I do not remember taking it out. We
were in the living room when we went to the
floor. I saw Edna covered in blood and un-
derneath her. I went to the back of the house
and went out the back door . . . .
3 Montana v. Egelhoff, 518 U.S. 37 (1996);
Goodwin v. Johnson, 132 F.3d 162, 190-91 (5th
Cir. 1998) (applying Egelhoff to a capital case in
which the defendant unsuccessfully claimed that a
Texas statute foreclosing voluntary intoxication
violated due process).

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sentence.4
III.
A.
“[U]ntil a COA has been issued federal
courts of appeals lack jurisdiction to rule on
the merits of appeals from habeas petitioners.”
Miller-El v. Cockrell, 537 U.S. 322, ___, 123
S. Ct. 1029, 1039 (2003). To receive a COA,
“a petitioner must ‘show that reasonable jurists
could debate whether (or, for that matter,
agree that) the petition should have been re-
solved in a different manner or that the issues
presented were “adequate to deserve
encouragement to proceed further.”’” Id.
(quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000) (citations omitted)).
B.
As discussed in part IV, infra, the district
court validly dismissed Raby’s first three
grounds because he failed to exhaust them at
the state level. Assuming, arguendo, that such
a procedural bar can be circumvented, none of
Raby’s substantive claims warrants a COA.
The district court correctly dismissed Ra-
by’s fourth, fifth, and sixth grounds. All three
are foreclosed by relevant authorities. In addi-
tion to the cases cited previously, the
insufficiency claim has the primary problem
that Raby confessed, fully, to attacking
Franklin. The crime scene contains sufficient
evidence to suggest that either a sexual assault
or a robbery was attempted.
If one ignores the procedural bar of his
third ground (ineffective assistance at the trial
phase), Raby’s third ground fails because it
could not possibly overcome Washington’s
second prong. Under Washington, a habeas
petitioner “must show that his counsel’s
assistance was deficient and that the deficiency
prejudiced him.” Hopkins v. Cockrell, 325
F.3d 579, 586 (5th Cir. 2003).
Raby listed a variety of ways in which
counsel5 allegedly erred. Perhaps the most sig-
nificant alleged error occurred when counsel
conceded that Raby entered Franklin’s house
through a door rather than a window. Raby
felt that his counsel premised this approach on
a mistaken belief that entering through a door
would preclude a finding of burglary.
Even assuming, arguendo, that such a tac-
tical decision was ineffective assistance, there
was no prejudice, because Raby cannot show
that his attorney’s malfeasance brought about
his conviction. He signed a confession to ev-
ery aspect of the relevant charge, with the
exception of the explicit act of stabbing. Even
during his attempt to exclude the statement, he
admitted, in the words of the district court,
“that his confession was knowing, voluntary,
and true. Counsel were not deficient for
choosing not to falsely argue that the
4 The district court, and this court, in Green,
distinguished a Texas life sentence from a South
Carolina life sentence, as referenced in Simmons v.
South Carolina, 512 U.S. 154 (1994). In Sim-
mons, the Court held that a defendant had the right
to inform the jury of the fact that a life sentence
would not carry the right of parole. The jury, con-
sequently, would have two options to remove a
potentially dangerous individual from society. The
Texas system, however, does not afford a life
sentence without the possibility of parole. Thus,
the Simmons right does not apply to a defendant
such as Raby.
5 Raby also alleges that one of his counsel,
Fosher, “was impaired by debilitating pain and
medication use during trial” to such an extent that
Fosher could not remember any elements of the
direct appeal.

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confession was involuntary or untrue.” Thus,
Raby’s signed statement precludes a finding of
prejudice during the guilt phase.
The statement similarly blocks Raby’s
second ground, whereby he claims that the
prosecution improperly commented on his
silence surrounding his arrest. The prosecutor
stated:
[Is] it any wonder that a person who would
attack a helpless, fragile, arthritic little old
lady and stab her as many times as he did,
brutalize her, slit her throat, ripped her
clothes off, ripped her panties, anyone who
would do something so cowardly, is it any
wonder that when he runs, that he is silent
after he runs? He doesn’t go to the police.
He isn’t filled with remorse. When he gets
the call that the police are coming, when he
gets that call from his mother, he flees, in-
dicating guilty knowledge. Is it any wonder
that that type of coward would not fess up
to all the details of his confession to the
police? Of course not.
Even if one ignores the procedural bar6
invoked by the district court, disregards the
fact that Raby’s counsel apparently did not
object to the prosecutor’s comment, and
assumes that the prosecution improperly
commented on Raby’s silence, any possible
error was harmless.7
In Cotton, we granted a COA on the
prosecution’s referring to the defendant as an
expert who could have refuted a co-
conspirator’s testimony, but we promptly
dispatched of the point on grounds of harmless
error. In Raby’s situation, the prosecution’s
comment did not paint the defendant in a more
negative light than in Cotton, and the
harmlessness is similarly obvious.
Consequently, given the manner in which
Cotton disposed of a similar prosecutorial
comment, reasonable jurists could not debate
the outcome of this issue. Finally, even
assuming that the procedural default could be
excused, we should not grant a COA based on
the substance of the first claim, as discussed in
part IV, infra.
IV.
Given the weight of his signed confession,
Raby’s strongest argument focuses on the pun-
ishment phase of his trial. The district court
barred this ground based on Raby’s failure to
exhaust his state remedies, as required by 28
U.S.C. § 2254(b)(1)(B)(i). Raby attempts to
excuse his procedural default by invoking
§ 2254(b)(1)(B)(ii), which provides an
exception to the regular exhaustion
requirement where “circumstances exist that
render [state] process ineffective to protect the
rights of the applicant.” Raby claims that his
state-appointed state habeas counsel, James
Keegan, actively interfered with his attempts
to pursue his habeas claims.8 Raby lists eleven6 The procedural bar discussion appears in
part IV, infra.
7 See Cotton v. Cockrell, 343 F.3d 746, 752
(5th Cir. 2003) (“Given the overwhelming evidence
of guilt and the court’s cautionary instruction to the
jury, we conclude that the prosecution’s statement
had no substantial and injurious effect or influence
in the determination of [de
(continued...)
7(...continued)
fendant’s] guilt.”).
8 Raby claims that “the CCA blocked his access
to the courts by appointing a lawyer who refused to
investigate and raise meritorious claims in the state
(continued...)

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ways in which Keegan allegedly “thwarted” his
attempts to present habeas claims in state
court.9 An unresponsive, insensitive
lawyer does not excuse a procedural default
under § 2254 (b)(1)(B)(ii).10 The facts in
Martinez are similar to those presented here, in
regard to Raby’s claims regarding Keegan.11
Thus, Martinez forecloses debate on the use of
alleged ineffectiveness of state habeas counsel
to circumvent the state exhaustion
requirement.
V.
Raby claims that his drug-addicted counsel
failed to provide him with effective assistance.
Specifically, Raby asserts that his attorney
failed to investigate his case adequately and
points to eighteen mitigating factors that such
an investigation would have uncovered. He
also asserts that his lawyer egregiously erred
by calling “notorious state expert Walter Qui-
jano, who . . . prejudicially labeled Raby a
‘psychopath.’”
Counsel’s performance does not satisfy
Washington’s requirements for ineffective as-
sistance. Raby’s trial counsel called witnesses
to testify “to his troubled upbringing, including
his mother’s mental problems, his commitment
to foster care and institutions, and episodes of
physical abuse.” Raby v. Stone, 970 S.W.2d 1,
3 (Tex. Crim. App. 1998). Additional
witnesses testified “that [defendant] had a
peaceful disposition and that his problems dur-
ing incarceration had been provoked by jail-
ers.” Id. Thus, counsel did not underperform
in attempting to mitigate Raby’s sentence.
Although the decision to call Quijano did
not help Raby, “judicial scrutiny of counsel's
performance must be highly deferential, and
courts must indulge in a strong presumption
that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Hopkins, 325 F.3d at 586. Additionally, “in-
formed strategic decisions are given a heavy
measure of deference.” Boyle v. Johnson, 93
F.3d 180, 187 (5th Cir. 1996) (citing Mann v.
Scott, 41 F.3d 968, 984 (5th Cir. 1994)). Ra-
by’s counsel met with Quijano before the pun-
ishment phase and apparently (though wrong-
ly) thought that his testimony would help es-
tablish that the Texas prison system would
contain any future dangerousness on Raby’s
part. No COA is justified on this issue.
The application for COA is DENIED.
8(...continued)
habeas proceedings and precluding him from
otherwise asserting those claims.”
9 These problems include failing to investigate
extra-record claims, to hire an investigator, to re-
quest a separate evidentiary hearing, to forward
court documents to Raby, and to accept Raby’s
mail.
10 See Martinez v. Johnson, 255 F.3d 229, 239
n.10 (5th Cir. 1991) (“[U]nder these facts, failure
to provide ‘competent’ counsel for a state habeas
petition does not fall under the general catch-all
exception provided in 28 U.S.C. § 2254(b)(1)(B)-
(ii).”).
11 Id. at 238 n.9 (“(1) Rhodes did not respond to
any of Martinez’s letters, nor did he accept or
return any of Martinez’s phone calls; (2) Rhodes
did not hire an investigator or an expert to develop
extra-record evidence; (3) Rhodes did not send
Martinez any of the copies of documents he filed
on his client’s behalf.”).

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