Russell v. Lumpkin

United States Court of Appeals
for the Fifth Circuit

No. 19-70015

P
ETE RUSSELL,

Petitioner—Appellant,

versus

B
OBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent—Appellee.

Appeal from the United States District Court
for the Southern District of Texas
USDC Case. No. 4:13-CV-3636

Before G
RAVES, WILLETT, and ENGELHARDT, Circuit Judges.
J
AMES E. GRAVES, JR., Circuit Judge:*
Pete Russell was convicted of capital murder and sentenced to death
in Harris County, Texas for the 2001 killing of Tanjala Brewer. He seeks a
certificate of appealability (COA) from the district court’s denial of his
petition for writ of habeas corpus. Because reasonable jurists would neither

*
Pursuant to 5TH CIRCUIT Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set
forth in 5
TH CIRCUIT Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
September 4, 2020

Lyle W. Cayce
Clerk
Case: 19-70015 Document: 00515553779 Page: 1 Date Filed: 09/04/2020

No. 19-70015
2
find that the district court’s assessment of the constitutional claims was
debatable or wrong nor that the district court erred in its procedural rulings,
we deny the application.
FACTS AND PROCEDURAL HISTORY
Tanjala Brewer was a paid confidential informant for the Houston
Police Department under narcotics officer D.K. Bush. Brewer and Pete
Russell dated for about a year-and-a-half. After the romantic relationship
between Russell and Brewer ended, she took an undercover officer, Bush, to
Russell’s house and introduced him to Russell as her nephew.
1
Believing
Brewer, Russell agreed to sell the undercover officer several ounces of crack
cocaine. After the transaction, Russell was arrested. On August 9, 2001,
Russell pleaded guilty to delivery of a controlled substance and received a
ten-year sentence. However, Russell successfully requested that the court
delay the date for execution of his sentence until September 7.
Around 11 p.m. on August 12, Brewer’s neighbor saw Brewer and
Russell walking down the street together near Brewer’s house. About 1 a.m.,
the neighbor heard Brewer’s screen-door close and saw Russell walking and
then running down Brewer’s driveway toward the street.
Before noon on August 13, 2001, family members discovered Brewer’s
body lying on her kitchen floor. Brewer’s throat had been slit and she had
been stabbed multiple times with a kitchen knife. There was also evidence of
asphyxiation and shoe imprints indicating someone had stomped on her legs
and stomach. Bloody drag marks indicated she had been dragged from her
bedroom to the kitchen, where she was posed in a spread-eagle position with
her skirt raised and a crack pipe in her hand. Someone had written on a

1
Bush said Brewer received $240 for setting Russell up.
Case: 19-70015 Document: 00515553779 Page: 2 Date Filed: 09/04/2020

No. 19-70015
3
mirror and wall with blood. Natural gas valves were turned on in the home
and candles were left burning. The toxicology report pursuant to Brewer’s
autopsy revealed the presence of a significant amount of cocaine in her
system.
Based on the neighbor’s account and evidence at the scene, Russell
became a suspect. Authorities located Russell a few days later, sitting in a
motel room bathtub, fully clothed and foaming at the mouth from ingesting
poison in an apparent suicide attempt. Russell was taken to the hospital and
his stomach was pumped. Authorities discovered a diamond ring in Russell’s
pocket.
Russell subsequently gave two recorded statements, one at the
hospital and one at the jail the following day, admitting guilt. The recordings
were introduced at trial and transcripts were provided for reference. The
preceding facts are largely undisputed. Russell admits that he killed Brewer.
However, he disputes why he killed her. This goes to whether he committed
capital murder. Here, that is murder in the course of committing or
attempting to commit another crime, i.e., retaliation, under Texas law.
During Russell’s first recorded statement at the hospital, Houston
Police Department Sergeant Hal Kennedy asked him, “[i]n your own words
tell me what happened and why you did what you did.” Russell replied that,
“[Brewer]. . . She set—she set me up—she set me up with the police.”
When asked how Brewer set him up, Russell said:
She brought an undercover to my house saying it was her
nephew that her nephew wanted to buy some drugs . . . and
about fifteen or thirty minutes later her nephew which is the
undercover, call me and I met him up there at Family Dollar –
McDonald’s and that’s when I got busted.
Case: 19-70015 Document: 00515553779 Page: 3 Date Filed: 09/04/2020

No. 19-70015
4
Russell later said, “[a]nd then you know what I’m saying we broke up and
that’s when she set me up with the laws.” Id. When Kennedy asked how it
is that Brewer got killed, Russell responded:
Basically, ah I went over her house and you know since she let
me in and she was smoking some drugs whatever and you know
we were just talking whatever you know about the things we
used to do and I was basically asking her “Why did you set me
up?” “Why did you set me up?” and she kept on denying it
talking bout “I ain’t set you up.” “I ain’t set you up.” Saying
“if you would have stayed with me none of this would have
happened” whatever. And, basically, you know what I’m
saying I just . . . I just went off. I just snapped.
Russell also stated:
It just . . . It just happened all the while she was smokin’ you
know what I’m saying and the last thing she said, “If you would
have stayed with me it would have never happened.” And the
next thing I know I just snapped like that you know there was a
knife on the lit dresser right there and I just grabbed it and
jumped on her right there.
Officers went to the jail the following day to take photographs of a cut
on Russell’s hand and he gave a second recorded statement. During that
second statement, Russell said that he did not mean to kill Brewer and that
“I really like to say though that I’m sorry and that I really loved [Brewer] and
if ah I could do it all over again, it wouldn’t have happened.” When asked if
he just lost his temper, Brewer replied:
Yes sir, I just snapped and like a say I loved her, I loved the
family you know that I’m saying, the son and everything and if
I had the chance to do it over again, I wouldn’t have done it. I
want her family to know that I’m sorry and her friends you
know that I’m sorry and that ah I would always love her and
everything.
Case: 19-70015 Document: 00515553779 Page: 4 Date Filed: 09/04/2020

No. 19-70015
5
The state charged Russell with capital murder in the course of
committing or attempting to commit retaliation based on Brewer informing
the police of Russell’s drug dealing. See Tex. Penal Code § 19.03(a)(2); see
also Tex. Penal Code § 36.06(a). Russell went to trial in 2003, and multiple
witnesses testified.
Andre Wilson lived across the street from Brewer and knew both
Brewer and Russell. Wilson also knew that Russell was jealous over Brewer.
The evening before Brewer was murdered, Wilson said he saw Brewer and
Russell walking down the street together away from Brewer’s house. Wilson
said Brewer acted normal and asked him for a cigarette. Wilson also testified
that he thought Russell and Brewer were still dating at the time. Some hours
later, around 11 p.m., Wilson saw Russell and Brewer walking back toward
Brewer’s house. At approximately 1 a.m., Wilson was on the porch at his
grandmother’s house, which was next door to Brewer’s, and heard a screen
door slam. Wilson then saw Russell walking and then running away from
Brewer’s house.
At the time of her death, Brewer was also involved in a relationship
with Wilbert Reed, Jr. Reed said he last saw Brewer alive at approximately
12:15 a.m. on August 13, 2001. Reed said he had talked to Brewer on the
telephone and she wanted him to come by to see her and drop her off some
money before he went to work driving a truck. Reed went by Brewer’s house
around 11:30 p.m. and testified that Brewer was happy and in a very good
mood during the forty-five minutes he was there. Upon leaving Brewer’s
house, Reed said he called Brewer on his cell phone and they talked a few
different times. When Reed called Brewer back between 12:45 and 1 a.m., he
received a busy signal. Reed said he attempted to call Brewer multiple times
throughout the remainder of the night but kept getting a busy signal and never
talked to her again.
Case: 19-70015 Document: 00515553779 Page: 5 Date Filed: 09/04/2020

No. 19-70015
6
Reed testified that he and Brewer had plans for him to pick her up
when he got off work. After Reed got off work, he went by Brewer’s house a
couple of times, but nobody answered the door. Reed said that he was angry,
so, he wrote a note and slid it under the door. In the note, Reed essentially
accused Brewer of using him and stated, “I guess Pete is the best man for
you.” Reed testified that he did not know Russell but knew Brewer and
Russell had been in a relationship. Reed also said that Brewer was afraid of
Russell.
Kennedy’s probable cause affidavit stated that Reed told him Russell
had been harassing Brewer, and that Brewer told him on the night of the
murder that Russell had come over to her house and tried to force entry.
Deborah Calhoun, Brewer’s best friend for about six years, also
testified at trial regarding the relationship between Russell and Brewer, who
she said were in love with each other. Calhoun said she was friends with both
Brewer and Russell and talked to them both daily during the last two weeks
of Brewer’s life. Calhoun testified that Russell had left a handwritten letter
at Brewer’s house around August 3, 2001. The letter, which was introduced
as an exhibit at trial, stated:
Tanjala, you are a good person. At the same time you have a
dope-smoking habit. You have lied, stole and cheated all in the
name of crack. I cannot trust you [no] more. You are evil and
out to hurt me. You mean well, but the drugs keep on calling
you. I don’t need you [no] more. So go back to your X X X X.
When asked about Brewer’s demeanor when she read the letter,
Calhoun answered, “We never thought nothing of the letter. We just
laughed it off.” However, Calhoun also testified that Brewer was afraid and
scared of Russell during the last two weeks of her life. Calhoun also
recounted incidents of jealousy on the parts of both Russell and Brewer.
Case: 19-70015 Document: 00515553779 Page: 6 Date Filed: 09/04/2020

No. 19-70015
7
Calhoun testified that Russell had taken Karen Foster to Brewer’s house
once when she was there and indicated Foster was his girlfriend.
Calhoun said she did not know Brewer was working as an informant.
More importantly, Calhoun said that Russell never gave her the impression
he knew Brewer was an informant. Following that statement, the court took
a short recess. After the break, the prosecutor asked Calhoun whether
Russell had ever indicated to her that he knew Brewer set him up. Calhoun
responded affirmatively and said Russell was angry about it around the
beginning of July 2001.
On cross-examination, Calhoun said Russell was not sure whether
Brewer had set him up, but that he had said “a lot of people in the
neighborhood told him that she done it.” Calhoun indicated Russell’s
uncertainty stemmed from him still loving Brewer, and that he had never told
her anything about wanting to retaliate against Brewer. Further, Calhoun
said that toward the end of July or the beginning of August, Russell had
shown her the ring that was in his possession at the time of his arrest and
indicated it was for Brewer. Calhoun testified that she told Russell that
Brewer was not going to accept the ring.
Bush, who was the undercover officer Brewer introduced to Russell as
her nephew, testified that he saw Russell twice after the drug sting in which
Russell and Foster were arrested. The first time Bush saw Russell was just a
few weeks after Russell’s arrest in May 2001. Russell was walking out of the
jail as Bush was going into the jail. The second time, Brewer brought Russell
with her on July 20, 2001 to pick up payment for informant work on another
case. However, Bush said Russell did not exit the car, which was about 100
yards away, and neither saw him nor Brewer getting in his car. Bush also
testified he questioned Brewer about bringing Russell and she said it was not
Case: 19-70015 Document: 00515553779 Page: 7 Date Filed: 09/04/2020

No. 19-70015
8
Russell but that it was an older man who lived near her neighborhood and
gave her a ride.
Russell testified at trial that he and Brewer had dated for about a year-
and-a-half. He said their relationship broke down after he got arrested.
Russell also said Foster was not his girlfriend, but rather a woman he worked
with at the retirement home. Russell said that, after he bonded out on the
drug charge, he contacted Brewer and the following exchange occurred:
“When I called her and asked her what happened she said, ‘Baby, don’t get
mad. I heard what happened. I’m trying to get in touch with my nephew
right now.’” Russell said he believed her. Russell said Brewer told him about
Reed, and he was suspicious, but she said Reed was just a friend.
Russell said that he knew Brewer used drugs and that she had asked
him for drugs. He also said she would get drugs from Donald Ray Hawkins.
Russell said he was jealous of Brewer’s relationship with Hawkins because he
once caught her laying across his bed in the motel where Hawkins lived.
Russell testified that he had purchased the wedding ring for Brewer
around August 1 and planned to give it to her the night she was murdered.
Russell said Brewer had called him and asked him to give her some money for
drugs. He said he took the ring when he went to her house with the intention
of proposing to her. Russell said he arrived close to 1 a.m. He testified that,
as Brewer was sitting on the bed smoking crack, he inquired as to where she
was going to get drugs and she said: “I’m going to get it down the street from
Donald Ray [Hawkins].” Russell said he told Brewer, “no,” and the couple
got into a very heated argument. Russell testified that the following then
transpired:
And I just told her, You act like you fucking Donald Ray, like
that.
Case: 19-70015 Document: 00515553779 Page: 8 Date Filed: 09/04/2020

No. 19-70015
9
Then she had picked up a knife a kitchen knife that she
had on the table. She picked up a kitchen knife. She said, I am
fucking him Pete. I been fucking him.
That’s when I picked up a knife off the table and I called
her a bitch. I called her a bitch.
And she said, Fuck you, Pete. Fuck you, Pete.
She came at me with a knife and, and I pulled my hand
up. She cut me across my hand. I began just to out of anger
and rage, I just began to stab her and stuff.
Russell said that he felt like he “had been played, you know what I am saying,
messed over after all I did.”
Russell said that he fainted after he stabbed Brewer, and when he came
to, a voice in his head that be believed to be God was telling him, “Tell them
who I am.” So, he wrote on the wall and mirror in blood. He further said
that the body and house were staged to represent the five elements of the
universe: Earth, wind, fire, water and air. Russell said that he put the crack
pipe back in Brewer’s hand to represent “the hurt” and “her habit. This was
her hell.”
Russell said, after murdering Brewer, he first went home, then to hide
out at a bayou behind his childhood elementary school, and then to the motel,
where he stayed a couple of days before being arrested. He said he took the
rat poison because the voice told him to “come home.”
Russell claimed he did not know Brewer had set him up until Kennedy
told him at the hospital, “I know all about it. I know your girl set you up with
the law.” Russell said Kennedy also told him that he knew Brewer was
“messing” with Hawkins. Russell testified that he did not stab Brewer
because she informed on him; he stabbed her because she told him she was
having sex with Hawkins and then cut his hand.
Case: 19-70015 Document: 00515553779 Page: 9 Date Filed: 09/04/2020

No. 19-70015
10
Officer Richard Moreno accompanied Russell in the ambulance after
his arrest. Moreno testified on rebuttal that Russell told him the diamond
ring in his watch pocket was for his girlfriend, Foster, who was in jail on the
same drug case in which Brewer had set up Russell. Further, Russell said he
and Foster were going to be married when she made bond. However,
Moreno did not include any of that in his report, and Kennedy testified that
Moreno refrained from conversation with Russell in the ambulance.
At the close of that portion of the trial, the jury convicted Russell of
capital murder. During the penalty phase, jurors were responsible for
answering two special issues:
SPECIAL ISSUE NO. 1
Do you find from the evidence beyond a reasonable
doubt that there is a probability that the defendant, Pete
Russell, Jr., would commit criminal acts of violence that would
constitute a continuing threat to society?
SPECIAL ISSUE NO. 2
Do you find from the evidence, taking into
consideration all of the evidence, including the circumstances
of the offense, the defendant’s character and background, and
the personal moral culpability of the defendant, Pete Russell,
Jr., that there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment
rather than a death sentence be imposed?
The jury answered the first special issue submitted under Art. 37.071
of the Texas Code of Criminal Procedure Section 2(b)(1) affirmatively and
answered the second special issue under Section 2(e)(1) negatively. See Tex.
Code Crim. P. Art 37.071 §§ 2(b)(1), (e)(1). Those answers required the
imposition of the death penalty. See Tex. Code Crim. P. Art. 37.071 § 2(g).
Accordingly, the trial court sentenced Russell to death.
Case: 19-70015 Document: 00515553779 Page: 10 Date Filed: 09/04/2020

No. 19-70015
11
Russell appealed his conviction and sentence to the Texas Court of
Criminal Appeals (TCCA), which affirmed. Russell v. State (Russell I), 155
S.W.3d 176 (Tex. Crim. App. 2005). Russell then unsuccessfully sought
state habeas relief, asserting that counsel: 1) Provided deficient performance
in the investigation and presentation of punishment-phase evidence; 2)
ineffectively selected a guilt/innocence defense, primarily by not presenting
evidence that Russell killed in a jealous rage and had previously acted
violently when a relationship ended; and 3) failing to object to the state’s jury
argument that lessened the burden of proof. Trial counsel provided an
affidavit in response to Russell’s claims of ineffectiveness, and both sides
submitted proposed findings of fact and conclusions of law. The state court
adopted the state’s proposed findings and conclusions and recommended
that the Court of Criminal Appeals deny relief, which it did. Ex parte Russell
(Russell II), No. WR-78,128-01, 2013 WL 6212211, *1 (Tex. Crim. App. Nov.
27, 2013).
Russell then filed a federal petition for writ of habeas corpus under 28
U.S.C. § 2254 of the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996, raising nine claims: 1) Insufficiency of the evidence to
support capital murder; 2) ineffective assistance of trial counsel for failing to
argue that the state did not prove retaliation; 3) ineffective assistance of
appellate counsel for failing to challenge the sufficiency of the evidence; 4)
ineffective assistance of trial counsel for failing to investigate and present
evidence that Russell did not kill the victim in retaliation; 5) that the state
violated Brady v. Maryland by failing to produce the ring seized by police; 6)
that the prosecutor’s arguments regarding mitigating evidence violated
Russell’s constitutional rights; 7) ineffective assistance of trial counsel for
failing to investigate and present mitigating evidence; 8) ineffective
assistance of trial counsel for failing to investigate and present evidence that
Russell would not be a future danger to society; and 9) that the state habeas
Case: 19-70015 Document: 00515553779 Page: 11 Date Filed: 09/04/2020

No. 19-70015
12
court violated Russell’s rights by not holding a hearing. The district court
stayed the action to allow Russell to exhaust claims in state court.
Russell sought permission to file a successive state habeas petition.
The TCCA found that Russell did not satisfy the requirements of Article
11.071, §5(a) to file a successive habeas petition and dismissed the application
as an abuse of the writ without considering the merits. Ex parte Russell
(Russell III), No. WR-78,128-02, 2017 WL 912158, *1 (Tex. Crim. App.
March 8, 2017).
Russell returned to federal court and filed an amended petition. The
state moved for summary judgment. The district court granted summary
judgment, denied Russell’s petition for habeas with prejudice, and denied a
COA. Russell v. Davis (Russell IV), 4:13-CV-3636, 2019 WL 3302719 (S.D.
Tex. July 23, 2019). Russell subsequently filed this application for a COA
raising six issues.
STANDARD OF REVIEW
Under AEDPA, a petitioner must obtain a COA as a jurisdictional
prerequisite to appeal the denial of habeas relief. 28 U.S.C. § 2253(c)(1);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA will be granted only
“if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When the district court rejects constitutional claims on the merits,
this court conducts a threshold inquiry and issues a COA if “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Miller-El, 537 U.S. at 336, 338. This threshold inquiry
does not require full consideration of the factual or legal bases supporting the
claims. Id. at 336.
Case: 19-70015 Document: 00515553779 Page: 12 Date Filed: 09/04/2020

No. 19-70015
13
Where the district court rejects a habeas petition on procedural
grounds without reaching the petitioner’s underlying constitutional claim, a
COA should issue if the petitioner “shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “Each component of the § 2253(c)
showing is part of a threshold inquiry, and a court may find that it can dispose
of the application in a fair and prompt manner if it proceeds first to resolve
the issue whose answer is more apparent from the record and arguments.”
Id. at 485.
In death penalty cases, any doubt about whether a COA should issue
is resolved in the petitioner’s favor. Pippin v. Dretke, 434 F.3d 782, 787 (5th
Cir. 2005).
DISCUSSION
I. Whether the evidence failed to show that Russell’s murder of Brewer
was in the course of committing the defined offense of retaliation.
Russell asserts that the evidence failed to show that he murdered
Brewer in the course of committing the offense of retaliation. Russell argues
that he’s not making a typical insufficiency claim. Instead, he asserts that he
is arguing a question of statutory interpretation as to Texas Penal Code
section 19.03(a)(2).
At the time of the offense, the capital murder statute stated, in
relevant part:
(a) A person commits an offense if he commits murder as
defined under Section 19.02(b)(1) and:
. . .
Case: 19-70015 Document: 00515553779 Page: 13 Date Filed: 09/04/2020

No. 19-70015
14
(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 . . .;
Tex. Penal Code §19.03(a)(2).
Russell cites Riles v. State, 595 S.W.2d 858 (Tex. Crim. App. 1980),
and Griffin v. State, 491 S.W.3d 771 (Tex. Crim. App. 2016), for the definition
of “in the course of committing or attempting to commit.” In Riles, the
defendant argued that the jury charge was fundamentally defective because
the indictment alleged he committed capital murder while “in the course of
committing the offense of robbery” while the charge instructed the jury that
it must find he “was then and there in the course of committing or attempting
to commit the offense of robbery.” The TCCA found no error, stating:
The phrase “in the course of committing or attempting
to commit . . .” as used in Sec. 19.03(a)(2), supra, is not defined
in the Penal Code. Section 29.01(1) of the code, however, does
define “In the course of committing theft.” That phrase is
given the definition of “conduct that occurs in an attempt to
commit, during the commission, or in immediate flight after
the attempt or commission of theft.” We similarly construe
the phrase of Sec. 19.03(a)(2) to mean conduct occurring in an
attempt to commit, during the commission, or in immediate
flight after the attempt or commission of the offense, i.e., in this
case, of robbery.
Riles, 595 S.W.2d at 862. The TCCA reasserted that definition in Griffin,
491 S.W. 3d at 774-75 (“The parties agree that, as used in Texas Penal Code
section 19.03(a)(2), ‘in the course of committing’ is defined as conduct
occurring during an attempt to commit, during the commission of, or in
immediate flight from, the forbidden behavior.”).
Case: 19-70015 Document: 00515553779 Page: 14 Date Filed: 09/04/2020

No. 19-70015
15
The underlying offense here was retaliation. Texas Penal Code
Section 36.06 sets out the offense of Obstruction or Retaliation and states, in
relevant part:
(a) A person commits an offense if the person
intentionally or knowingly harms or threatens to harm another
by an unlawful act:
(1) in retaliation for or on account of the service or
status of another as a:
(A) public servant, witness, prospective witness, or
informant; . . .
Tex. Penal Code § 36.06(a)(1)(A).
Russell asserts that the evidence did not establish beyond a reasonable
doubt that he was in the course of committing or attempting to commit the
offense of retaliation; he asserts the evidence only supported murder, not
capital murder. The state asserts that the district court properly found this
claim to be procedurally barred and, alternatively, meritless.
As the district court found, Russell did not raise this claim on direct
appeal or state habeas review; he raised it for the first time in his federal
habeas petition. When Russell exhausted his claims in the successive state
habeas proceedings, the TCCA found that he had failed to satisfy the
requirements of Article 11.071 § 5(a) and dismissed the application as an
abuse of the writ without considering the merits of this claim. See Russell III,
2017 WL 912158 at *1. The district court then determined that Russell did
not meet his burden of overcoming the procedural bar and, alternatively, the
claim was without merit. See Russell IV, 2019 WL 3302719 at *9-10.
Federal habeas courts lack the power to review a state court’s decision
not to address a petitioner’s federal claims if the state court made that
decision because the petitioner failed to meet a state procedural requirement
Case: 19-70015 Document: 00515553779 Page: 15 Date Filed: 09/04/2020

No. 19-70015
16
and the state judgment is based on independent and adequate state
procedural grounds. See Canales v. Stephens, 765 F.3d 551, 562 (5th Cir. 2014)
(citing Maples v. Thomas, 565 U.S. 266, 280 (2012)); see also Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991). However, “[a] federal court may
consider the merits of a procedurally defaulted claim if the petitioner shows
‘cause for the default and prejudice from a violation of federal law.’”
Canales, 765 F.3d at 562 (quoting Martinez v. Ryan, 566 U.S. 1, 10 (2012)).
Here, the state court dismissed Russell’s application as an abuse of the
writ under Article 11.071. In Hughes v. Quarterman, 530 F.3d 336 (5th Cir.
2008), we reiterated: “This court has held that, since 1994, the Texas abuse
of the writ doctrine has been consistently applied as a procedural bar, and
that it is an independent and adequate state ground for the purpose of
imposing a procedural bar.” Id. at 342. Thus, the district court lacked the
power to review the state court’s decision.
Russell argues that the obstacle of a procedural bar could be avoided
if this court certified a question to the TCCA under Rules 74.1 and 74.2 of
the Texas Rules of Appellate Procedure. Russell’s brief is unclear as to
whether he is asking this court to certify a question to the state court to
interpret the meaning of “in the course of committing or attempting to
commit” or to certify the insufficiency issue the state court previously
declined as an abuse of the writ. Either way, we disagree.
This court has said that “absent genuinely unsettled matters of state
law, we are reluctant to certify.” Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d
1245, 1247 (5th Cir. 1997). Moreover, “the absence of a definitive answer
from the state supreme court on a particular question is not sufficient to
warrant certification.” Id.
Russell acknowledges that the state court has already determined the
meaning of “in the course of committing or attempting to commit.” See
Case: 19-70015 Document: 00515553779 Page: 16 Date Filed: 09/04/2020

No. 19-70015
17
Riles, 595 S.W.2d at 862; see also Griffin, 491 S.W.3d at 774-75; and Shuffield
v. State, 189 S.W.3d 782, 791 (Tex. Crim. App. 2006) (“Evidence is sufficient
to support a capital murder conviction if it shows an intent . . . which was
formed before or contemporaneously with the murder.”) (emphasis original).
Rather than establish any unsettled question, Russell instead essentially
asserts that, based on those cases, the facts of his case were not sufficient to
prove he was in the course of committing or attempting to commit retaliation.
Certification is not appropriate here.
As stated previously, to overcome the procedural bar, Russell must
show that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and whether the district
court was correct in its procedural ruling. He is unable to do so. Further,
assuming arguendo that Russell could overcome the procedural bar, he has
failed to make a substantial showing of the denial of a constitutional right.
The district court alternatively concluded that there was evidence to
support retaliation and rejected any notion of a requirement that Russell
intended to kill Brewer in retaliation for informing on him when he went to
her house.
A sufficiency of the evidence claim is evaluated under the standard set
out in Jackson v. Virginia, 443 U.S. 307 (1979), which stated that “the
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at 319
(emphasis original). The Jackson court also said, “[t]his familiar standard
gives full play to the responsibility of the trier of fact fairly to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Id.
The Supreme Court has also said the following:
Case: 19-70015 Document: 00515553779 Page: 17 Date Filed: 09/04/2020

No. 19-70015
18
We have made clear that Jackson claims face a high bar
in federal habeas proceedings because they are subject to two
layers of judicial deference. First, on direct appeal, it is the
responsibility of the jury—not the court—to decide what
conclusions should be drawn from evidence admitted at trial.
A reviewing court may set aside the jury's verdict on the
ground of insufficient evidence only if no rational trier of fact
could have agreed with the jury. And second, on habeas
review, a federal court may not overturn a state court decision
rejecting a sufficiency of the evidence challenge simply because
the federal court disagrees with the state court. The federal
court instead may do so only if the state court decision was
objectively unreasonable.
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (internal marks and
citations omitted).
“Habeas relief under section 2254 on a claim of insufficient evidence
is appropriate only if it is found that upon the record evidence adduced at the
trial no rational trier of fact could have found proof of guilt beyond a
reasonable doubt.” West v. Johnson, 92 F.3d 1385, 1393 (5th Cir. 1996).
Russell asserts that the only evidence as to the facts of the killing fail
to show that he was committing or attempting to commit retaliation when he
killed Brewer. Further, he asserts there was no evidence he ever told officers
“anything like ‘I was determined to get even’ or ‘I wanted to make an
example out of her.’” However, Russell fails to cite any authority setting out
such a requirement.
While there clearly is evidence to indicate that Russell and Brewer
were still involved in some manner, that Russell had jealous tendencies, and
that perhaps another man was a contributing factor to Russell’s rage, the
most damning evidence of retaliation comes from Russell’s own words.
Immediately after his arrest, Russell told authorities that he killed Brewer
because she set him up. Other individuals also testified that Brewer was
Case: 19-70015 Document: 00515553779 Page: 18 Date Filed: 09/04/2020

No. 19-70015
19
afraid of Russell. Additionally, there is evidence to indicate that Russell knew
Brewer set him up. Russell was able to present his version of the facts. The
jury had the responsibility to determine witness credibility, resolve conflicts
in the testimony and weigh the evidence. See Jackson, 443 U.S. at 319.
We review the evidence in the light most favorable to the jury verdict.
United States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995). Further, “it is
not necessary that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of
guilt. A jury is free to choose among reasonable constructions of the
evidence.” United States v. Layne, 43 F.3d 127, 130 (5th Cir. 1995) (internal
marks omitted). Our review of the evidentiary record here shows that they
did that in favor of the state.
Thus, we deny a COA on this issue.
II. Whether the failure to raise the sufficiency issue on appeal
constituted ineffective assistance by appellate counsel.
Russell asserts that his appellate counsel was ineffective for failing to
raise the sufficiency issue in his direct appeal. Russell raised this issue for the
first time in his federal petition. As with the first issue, when Russell went
back to state court to exhaust, the TCCA dismissed as an abuse of the writ
without considering the merit. The district court found that Russell was
unable to overcome the procedural bar.
To overcome the procedural bar, Russell must show that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and whether the district court was correct in
its procedural ruling. He is unable to do so. Additionally, even if we looked
beyond the procedural bar, Russell’s claim has no merit.
Under Strickland v. Washington, 466 U.S. 668 (1984), a petitioner
establishes ineffective assistance of counsel if he is able to show that his
Case: 19-70015 Document: 00515553779 Page: 19 Date Filed: 09/04/2020

No. 19-70015
20
counsel’s performance was deficient, i.e., the “representation fell below an
objective standard of reasonableness,” and “the deficient performance
prejudiced the defense.” Id. at 687-88. To establish prejudice, Russell
“must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694. Additionally, “there is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in the same
order or even to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Id. at 697.
For the reasons discussed in issue one, Russell is unable to show actual
prejudice. Thus, reasonable jurists could not debate the district court’s
determination that this claim is procedurally barred or its alternative denial
on the merits. Accordingly, we deny a COA on this issue.
III. Whether the district court erred in holding that a claim concerning
error in a prosecutor’s punishment-stage argument, contrary to law
regarding mitigation, was procedurally defaulted, and holding that the
argument was acceptable.
Russell asserts that the prosecution improperly misstated the law
under Penry v. Lynaugh, 492 U.S. 302 (1989), Tennard v. Dretke, 542 U.S. 274
(2004), and Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007), in its closing
argument during the punishment phase.
Russell did not raise this issue on direct appeal or in his initial state
habeas. When he raised it in his successive state habeas, the TCCA deemed
it barred. The district court concluded that Russell was unable to show cause
or prejudice to overcome the procedural default.
Specifically, Russell takes issue with the following statements by the
prosecutor during closing:
Case: 19-70015 Document: 00515553779 Page: 20 Date Filed: 09/04/2020

No. 19-70015
21
I can't tell you what's mitigating. It's up to you. I suggest
to you there is nothing mitigating in this case. Our Charge tells
you that mitigating evidence is something that you believe may
reduce the defendant's moral blameworthiness. In other
words, something that might reduce or lessen his
responsibility. Name one thing that you have heard during this
trial that lessens his responsibility for brutally murdering that
woman. One thing. There is none.
Also, “I suggest to you, ladies and gentlemen, that there is nothing here that
honestly and truly lessens this man’s responsibility, his blameworthiness, his
fault.”
Russell asserts that the use of “responsibility”, “blameworthiness”
and “fault” would imply to the jurors that evidence could only be considered
mitigating if it reduced Russell’s responsibility for the charged offense.
Further, Russell says that argument was the repetition of an erroneous
concept requiring a nexus between the mitigating evidence and the
commission of the offense that has been repudiated by the Supreme Court.
Russell asserts that the prosecutor’s statements were intended to limit
the core principle of Penry, which requires that a jury be allowed to consider
a wide range of potentially mitigating evidence and that the Supreme Court
repudiated the faulty nexus concept in Tennard and prohibited jury
arguments based on it in Abdul-Kabir.
Russell says he can overcome the procedural bar because this is new
law. His trial and direct appeal briefing occurred before Tennard was
decided, although the decision on direct appeal was not handed down until
after Tennard was decided, and Abdul-Kabir was decided after the deadline
for filing his state habeas application. But Russell concedes that Tennard and
Abdul-Kabir derived from Penry, and that this is longstanding law. In fact,
Russell quotes the following from Abdul-Kabir:
Case: 19-70015 Document: 00515553779 Page: 21 Date Filed: 09/04/2020

No. 19-70015
22
A careful review of our jurisprudence in this area makes
clear that well before our decision in Penry I, our cases had
firmly established that sentencing juries must be able to give
meaningful consideration and effect to all mitigating evidence
that might provide a basis for refusing to impose the death
penalty on a particular individual, notwithstanding the severity
of his crime or his potential to commit similar offenses in the
future.
Id. 550 U.S. at 246. Russell does not pinpoint cite any other specific provision
from Abdul-Kabir, Penry or Tennard. Regardless, these decisions did not
create a new rule of law, but rather clarified the application existing
precedent. See Abdul-Kabir, 550 U.S. at 263; see also Tennard, 542 U.S. at
285.
Here, the district court found that “Russell’s challenge to the State’s
argument is not so novel that any of his earlier attorneys could not have raised
the same claim, and that he was unable to show cause to overcome the
pr ocedural bar.” Russell IV, 2019 WL 3302719 at *18. The district court also
found the claim to be without merit.
We agree that Russell is unable to show cause to overcome the
procedural bar. He is also unable to show prejudice.
In between the two statements Russell takes issue with, the prosecutor
said:
You might see it differently. If you do, I want you to
understand what this question really asks you, the second
question. Maybe you do [sic] something that's mitigating. The
issue is: Is it sufficiently mitigating? Does it rise to that level
of sufficiency, whatever that is for you, that it warrants that he
should get life instead of death?
Earlier in the argument, the prosecutor also explained,
“[r]esponsibility is one thing. We have done that, but here in this part of the
Case: 19-70015 Document: 00515553779 Page: 22 Date Filed: 09/04/2020

No. 19-70015
23
trial, we’re focusing on his culpability.” The prosecution also told the jurors
they could decide what amounted to mitigating evidence.
Moreover, as the district court said, “[t]he trial court instructed jurors
to consider mitigating evidence to be evidence that a juror might regard as
reducing the defendant’s moral blameworthiness, including evidence of the
defendants [sic] background, character, or the circumstances of the offense
that mitigates against the imposition of the death penalty.” Russell IV, 2019
WL 3302719 at *18 (internal marks omitted). The trial court repeatedly
instructed the jury to consider all the evidence and said: “You shall consider
all evidence submitted to you during the whole trial as to the defendant's
background or character or the circumstances of the offense that militates for
or mitigates against the imposition of the death penalty.”
Also, as Russell acknowledges, his counsel told the jury to take a broad
view of mitigation and look at all of the mitigating evidence in deciding how
to answer the mitigation special issue. There is no indication that the jury
did not follow the instructions.
For these reasons, we deny a COA on this issue.
IV. Whether the district court erred in holding that trial counsel
provided an adequate defense on the topic of mitigation.
Russell asserts that his trial counsel failed to provide an adequate
defense on the issue of mitigation. Specifically, Russell asserts that counsel
only presented anecdotal evidence from Russell’s acquaintances but failed to
present expert testimony to the put the anecdotal evidence in the context of
the mitigation special issue. Russell also asserts that counsel missed some
mitigating factors altogether.
Russell focuses on the lack of an expert such as forensic psychologist,
Mark Cunningham, who provided a report for Russell’s state habeas. To be
clear, Russell says he “is not saying that Cunningham himself should have
Case: 19-70015 Document: 00515553779 Page: 23 Date Filed: 09/04/2020

No. 19-70015
24
been called as a witness, since a particular expert witness might not be
available at a given time, or the trial court might not provide enough
funding.” Rather, he says counsel should have called “some competent
witness” to “connect the dots.”
Russell points to a list of “adverse developmental factors” that
Cunningham determined were present in Russell’s background:
Generational family dysfunction; mother’s teenage status at outset of
childbearing; father abandonment; learning disabilities, attention and
concentration problems, and school failure; bullied by peers; child neglect;
inadequate parental supervision and guidance, with mother’s acceptance of
drug trafficking proceeds; corruptive influence of extended family; chronic
poverty; alcoholism of stepfather; chronic emotional estrangement and
hostility in relationship of mother and step-father; corruptive community
influences; teen onset drug trafficking; community violence exposure with
gunshot victimization and victimization of family; evidence of severe
psychological disorder; and pathological relationship with Tanjala Brewer.
Russell also cites Cunningham’s explanation of the significance of those
factors as applied to Russell. In doing so, Russell asserts that counsel should
have done more.
Russell exhausted this claim in state court, which found it to be
without merit. The district court discussed the state habeas court’s findings
at length before engaging in its own analysis under the “doubly deferential”
standard created by Strickland and 28 U.S.C. § 2254(d) and finding no merit.
Russell IV, 2019 WL 3302719 at *20 (citing Harrington v. Richter, 562 U.S.
86, 105 (2011)).
Under Strickland, as quoted above, Russell establishes ineffective
assistance of counsel if he is able to show that counsel’s performance was
deficient, and the deficient performance prejudiced the defense. Id. 466 U.S.
Case: 19-70015 Document: 00515553779 Page: 24 Date Filed: 09/04/2020

No. 19-70015
25
at 687-88. Deficient performance is that which falls below an objective
standard of reasonableness. “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690. “[S]trategic
choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on
investigation.” Id. at 690-91.
As to mitigation, this court has said: “In investigating potential
mitigating evidence, counsel must either (1) undertake a reasonable
investigation or (2) make an informed strategic decision that investigation is
unnecessary.” Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013). Under
Strickland, counsel cannot ignore “pertinent avenues of investigation.” Id.
at 390.
Russell must demonstrate that it was necessarily unreasonable for the
state habeas court to conclude that he did not overcome the strong
presumption of counsel’s competence and that he failed to undermine
confidence in the jury’s sentence of death. See Cullen v. Pinholster, 563 U.S.
170, 190 (2011). Russell also must demonstrate that the state court’s decision
was contrary to or involved an unreasonable application of Strickland. See 28
U.S.C. § 2254(d).
The record does not establish that Russell’s counsel failed to conduct
a reasonable investigation. Counsel obtained a mitigation specialist,
conducted numerous interviews with Russell, his family members and
friends, and developed a strategy. The strategy was basically that Russell was
a good person who had a rough life and killed Brewer in a jealous rage over
another man. This court has refused to find Strickland error in a case where
Case: 19-70015 Document: 00515553779 Page: 25 Date Filed: 09/04/2020

No. 19-70015
26
counsel employed a similar strategy, calling it a “coherent theory to support
a life sentence.” Coble v. Quarterman, 496 F.3d 430, 437 (5th Cir. 2007).
While counsel here did not call an expert during the penalty phase,
counsel did call ten witnesses, including Russell’s mother, sister, brother,
three aunts, two uncles, and two friends. The testimony of these witnesses
painted a picture of the defendant being raised in Houston’s Fifth Ward,
where drug-dealing and violence were common; being abandoned by his
father; living in poverty without proper parental supervision; having a
mother who had to work two jobs and received food stamps; having family
members who were involved in crime, tried to lead him astray, and in prison;
and never having much of a chance.
In other words, these witnesses testified to most of the factors Russell
cites from Cunningham. Of the factors that were not covered, trial counsel
said, during discussions with witnesses, there was never any indication
Russell was bullied or suffered from attention problems. Additionally,
regarding the claim that Russell suffered from a psychological disorder or had
reacted violently with a previous girlfriend, counsel said any such evidence
would have been counter-productive to the theory that this was a one-time
incident and Russell was not a future danger.
Moreover, a petitioner “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.” Gregory v.
Thaler, 601 F.3d 347, 352 (5th Cir. 2010). “To prevail on an ineffective
assistance claim based upon uncalled witnesses, an applicant must name the
witness, demonstrate that the witness would have testified, set out the
content of the witness's proposed testimony, and show that the testimony
would have been favorable.” Id.
Case: 19-70015 Document: 00515553779 Page: 26 Date Filed: 09/04/2020

No. 19-70015
27
Russell fails to allege with specificity how additional investigation or
testimony would have altered the outcome of the trial. He is also unable to
demonstrate that Cunningham would have testified or how it would have
been favorable. Instead, Russell acknowledges that he is not saying
Cunningham himself should have been called, but rather that “some
competent witness” could have been found to “connect the dots” and
essentially expand on the evidence introduced by the ten witnesses the
defense called.
Russell essentially asserts that counsel could have done more. But,
the standard is not whether counsel could have done more. Further, “the
purpose of the effective assistance guarantee of the Sixth Amendment is not
to improve the quality of legal representation, although that is a goal of
considerable importance to the legal system. The purpose is simply to ensure
that criminal defendants receive a fair trial.” Strickland, 466 U.S. at 689.
Because Russell is unable to show that reasonable jurists would debate
whether the state court’s denial of his claim was unreasonable, we deny a
COA on this claim.
V. Whether trial counsel provided ineffective assistance by failing to
develop evidence regarding future dangerousness which could have been
persuasive at the punishment stage of trial.
Russell asserts that his trial counsel failed to present expert testimony
or empirical evidence from a forensic psychologist on the issue of whether
Russell would be a future danger to society. Again, Russell cites
Cunningham’s report.
Russell exhausted this issue in state court. The district court
discussed the state court’s findings and then found, as follows:
Russell does not acknowledge the state court findings to
which this Court must defer, much less show by clear and
Case: 19-70015 Document: 00515553779 Page: 27 Date Filed: 09/04/2020

No. 19-70015
28
convincing evidence that they are incorrect. At its heart,
Russell’s argument is simply that counsel should have adopted
a different strategy at the penalty phase. A reasonably [sic]
attorney could come to the conclusion that academic
discussion about crime statistics could be less effective than lay
testimony, and in fact could weaken that testimony. The Court
finds that Russell has not shown that the state habeas court’s
rejection of this claim was contrary to, or an unreasonable
application of, federal law.
Russell IV, 2019 WL 3302719 at *22.
During the penalty phase of Russell’s trial, the state presented
evidence and testimony that included the following: Russell was sentenced to
nine years in prison for aggravated assault under a plea bargain in 1991 for
shooting Devarick Williams six times after Williams had a minor altercation
with Russell’s brother; that same year, Russell was convicted of aggravated
robbery which involved him holding a gun to a store manager’s head and
forcing him to open a safe; Russell was convicted of delivery of drugs in the
conviction that resulted from Brewer informing on him; and other
unadjudicated offenses and bad acts committed by Russell. The state also
presented a pen packet and a stipulation of evidence in which Russell
stipulated he was the same person who was convicted in the above-listed
crimes.
As discussed in issue four above, the defense called ten witnesses who
testified about Russell’s difficult background. The strategy focused on
Russell as a person, rather than expert testimony. Defense counsel also
introduced disciplinary records from Russell’s prior incarceration which
indicated he had not had many serious infractions.
Russell takes issue with one finding by the state habeas court, but that
was not the court’s only finding as to this issue. The state court also found,
based on trial counsel’s affidavit, that counsel believed evidence of Russell’s
Case: 19-70015 Document: 00515553779 Page: 28 Date Filed: 09/04/2020

No. 19-70015
29
life and background was more effective than studies of convicted murderers.
The gist of Russell’s argument, as supported by Cunningham’s report, is that
counsel should have done more, i.e., should have called an expert to
contextualize the evidence presented, and to provide statistics, scientific data
and general information. We discussed such an argument in issue four, and
we conclude the same here.
Because Russell is unable to show that reasonable jurists would debate
whether the state court’s denial of his claim was unreasonable, we deny a
COA on this claim.
VI. Whether Russell was denied due process of law in the state habeas
system.
Russell asserts that he raised this issue “but the courts ignored it.”
2

Russell raised ineffective assistance of counsel for failure to develop evidence
regarding future dangerousness, as discussed in issue five. But he failed to
raise this issue regarding a denial of due process in his initial state habeas
action. When he raised it in his successive state habeas, the TCCA deemed
it barred. The district court concluded that Russell was unable to overcome
the procedural bar. The district court also concluded that, even if it could
reach the merits of the claim, Russell would not be entitled to federal habeas
relief under Morris v. Cain, 186 F.3d 581, 585 n.6 (5th Cir. 1999) (“[E]rrors
in state postconviction proceedings will not, in and of themselves, entitle a
petitioner to federal habeas relief.”).
Russell is unable to show that reasonable jurists would debate whether
the petition states a valid claim of the denial of a constitutional right and that

2
As with much of his argument, this issue is hard to follow in Russell’s application.
He also fails to provide adequate record citations or applicable authority.
Case: 19-70015 Document: 00515553779 Page: 29 Date Filed: 09/04/2020

No. 19-70015
30
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling. So, we deny a COA on this claim.
CONCLUSION
For these reasons, Russell has not made the showing required to
obtain a COA and his application is DENIED.
Case: 19-70015 Document: 00515553779 Page: 30 Date Filed: 09/04/2020