Smith v. Quarterman

* Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 12, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 06-70019
JACK HARRY SMITH,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(H-04-CV-3562)
Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Pursuant to the Antiterrorism and Effective Death Penalty Act
(AEDPA) (effective 24 April 1996), the district court denied: (1)
relief on Jack Harry Smith’s 28 U.S.C. § 2254 habeas application,
challenging his now almost 30-year-old state-court capital-murder
conviction; and (2) a Certificate of Appealability (COA).
Therefore, Smith, a death-sentenced prisoner, seeks the required
COA from this court. He requests a COA for two issues: whether

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the district court erred by applying an AEDPA-deferential, rather
than a non-AEDPA-de novo, standard of review, to the state-habeas
court’s findings of fact and conclusions of law; and whether he
“suffered prejudicial representation at [his 1978 capital-murder]
trial respecting his ‘right to testify’”. Because, under AEDPA,
Smith fails to show either that reasonable jurists could debate the
district court’s assessment of his constitutional claim or that the
issue presented by the claim is adequate to proceed further, a COA
is DENIED.
I.
Smith’s capital-murder trial was held in July 1978,
approximately seven months after the 7 January 1978 killing of Roy
A. Deputter, during the aggravated robbery of a convenience store.
On direct appeal, Smith conceded the evidence is sufficient to
support his conviction. Smith v. State of Texas, 676 S.W.2d 379,
382 (Tex. Crim. App. 1984) (en banc). For example, Smith’s co-
defendant in the robbery, Jerome Hamilton, testified as follows.
After obtaining a sawed-off shotgun and .38 caliber pistol
from acquaintances, Hamilton and Smith drove to a convenience
store, about noon, and waited outside for customers to leave.
After about 15 minutes, Smith, wearing a ski mask, and Hamilton,
wearing a stocking over his face, entered the store. Smith went
behind the counter, put his pistol to the cashier’s abdomen, and

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demanded money. As the cashier filled a bag with money, Hamilton
stood lookout, armed with the sawed-off shotgun.
About this time, Roy Deputter entered through the store’s back
door. He did so just as a customer was walking through the front
door, momentarily diverting Hamilton’s attention. When Hamilton
turned back, Roy Deputter was aiming a pistol at him. Hamilton
ducked just as Roy Deputter fired at him. Hamilton heard two
additional shots, then saw Roy Deputter stagger toward the front of
the store, fire an errant shot, and slump to the floor. The
cashier tossed the bag of money on the floor. After fumbling the
bag, spilling and then picking up the money, Smith and Hamilton
fled, taking Roy Deputter’s pistol with them.
Other witnesses, including the cashier, corroborated
Hamilton’s account of the events. Several witnesses identified
Smith, while others said he looked like one of the robbers.
Medical evidence showed Roy Deputter died from two gunshot wounds
consistent with a .38 caliber pistol. On direct appeal, Smith
conceded the evidence is undisputed he fired the fatal shots. Id.
At the trial’s punishment phase, the State entered in evidence
documents showing Smith’s: four 13 May 1955 guilty-plea
convictions (three for robbery by assault and one for theft); 7
April 1959 jury conviction of robbery by assault and sentence to
life in prison; and 1963 prison-escape attempt. Smith objected to
the evidence detailing his 1963 escape attempt and his 1955

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convictions because, he claimed, no attorney represented him.
Smith’s counsel did not call any punishment-phase witnesses. The
jury imposed a sentence of death.
On direct appeal, the Texas Court of Criminal Appeals (TCCA)
affirmed Smith’s conviction and sentence. Smith v. State of Texas,
676 S.W.2d 379 (Tex. Crim. App. 1984). The Supreme Court of the
United States denied review. Smith v. Texas, 471 U.S. 1061 (1985).
Smith filed a state-habeas application in May and October
1985. As described below, it was not decided until almost 18 years
later.
Following an evidentiary hearing on 2 June 1986, his
application lay dormant until 22 April 1997, when Smith filed an
amended application through new counsel, incorporating the 1985
claims and adding, inter alia, claims for ineffective assistance of
counsel (IAC). During this over-a-decade dormant period, as
discussed infra, in 1987, Smith was granted an out-of-time appeal
for his 1959 conviction; it was affirmed in 1988.
On 16 May 2001, represented by the same counsel as in 1997,
Smith filed a “superseding” habeas application, reasserting all
prior claims and adding the Sixth Amendment claim for which Smith
seeks a COA here: trial counsel’s deficient performance concerning
his prior convictions (1955 and 1959) being introduced in evidence
prejudiced his right to testify at his capital-murder trial
(prejudice-to-testifying claim). A claim raised in a 23 August

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2002 amendment to the 2001 superseding application was voluntarily
dismissed that fall.
A hearing was held on 25 November 2002 by the state-habeas
trial court on the 2001 superseding application. On 18 June 2003,
with extremely detailed findings of fact and conclusions of law,
the state-habeas trial court recommended the TCCA deny relief.
This recommendation concluded the prejudice-to-testifying claim
presented for the first time in Smith’s 2001 superseding
application “constitute[d] a subsequent application for writ of
habeas corpus”; and, therefore, the state-habeas trial court was
“required to send such claim to the [TCCA] to determine whether
such claim meets the ... exception requirements” of Texas Code of
Criminal Procedure article 11.071 § 5. (Article 11.071 § 5(f)
provides: “If an amended or supplemental application is not filed
within the time specified ... the court shall treat the application
as a subsequent application....”) In the alternative, the state-
habeas trial court addressed the merits of this prejudice-to-
testifying claim. It concluded that claim, as well as the
remaining claims, lacked merit.
On 10 September 2003, approximately 18 years after Smith’s
original state-habeas application, the TCCA denied relief, but on
a different basis for one claim (raised in 1997) than recommended
by the state-habeas trial court. Drawing on its suggestion that
article 11.071 § 5 might procedurally bar Smith’s 2001 prejudice-

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to-testifying claim, the TCCA dismissed that claim “for failing to
satisfy the requirements of Art. 11.071, Sec. 5”. Ex parte Smith,
No. 8.315-06 (Tex. Crim. App. 10 Sept. 2003) (unpublished). In the
same manner, it dismissed an IAC claim presented for the first time
in the 1997 amended application, concerning the admission at
sentencing of evidence of Smith’s five prior convictions. The
remaining seven claims were summarily denied as meritless, “based
on the [state-habeas] trial court’s findings and conclusions”. Id.
Smith filed a federal habeas application under 28 U.S.C. §
2254 on 13 September 2004, raising, inter alia, the IAC-at-trial
claims concerning counsel’s asserted: (1) inadequate objections to
evidence concerning Smith’s prior convictions; and (2) prejudice to
his right to testify. Through a 28 March 2006 summary judgment,
the district court: denied relief on the merits for Smith’s
claims; and, sua sponte, denied a COA on all claims. In its
detailed, comprehensive, and extremely well-reasoned opinion, the
district court, inter alia, refused to apply the procedural bar
relied on by the TCCA for two claims, including the prejudice-to-
testifying claim for which Smith now seeks a COA. Smith v. Dretke,
No. H-04-CV-3562, 2006 WL 801114 (S.D. Tex. 28 March 2006).
II.
Smith requests this court to grant a COA on two issues: (1)
whether the district court erred by employing an AEDPA-deferential,
rather than a non-AEDPA-de novo, standard of review to the state-

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habeas court’s findings and conclusions; and (2) whether Smith’s
counsel’s claimed deficient performance at the punishment phase of
his capital-murder trial prejudiced his Sixth Amendment right to
testify.
An appeal from the denial of § 2254 habeas relief may not be
taken unless a COA is granted, pursuant to the requirements imposed
by AEDPA. See 28 U.S.C. § 2253(c). “Under AEDPA, a COA may not
issue unless ‘the applicant has made a substantial showing of the
denial of a constitutional right’”. Slack v. McDaniel, 529 U.S.
473, 483 (2000) (quoting 28 U.S.C. § 2253(c)) (emphasis added). To
satisfy this threshold requirement to appeal a habeas claim’s being
rejected, as here, on its merits, a petitioner must show “that
reasonable jurists could debate whether ... the petition should
have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed
further’”. Id. at 484 (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983)). “The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claim[] debatable or wrong.” Id. (emphasis added).
A.
Concerning the requested COA for Smith’s claim that the
district court erred in applying AEDPA’s deferential standard of
review, “[a] federal court’s collateral review of a state-court
decision must be consistent with the respect due state courts in

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our federal system”. Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). Therefore, when a petitioner seeks federal habeas relief
from a state-court decision, the federal court reviews that
decision under AEDPA’s deferential reasonableness inquiry, not
under a de novo standard of review. See 28 U.S.C. § 2254(d); see
also Williams v. Taylor, 529 U.S. 362, 404-405 (2000).
Needless to say, our COA inquiry is not a ruling on the merits
of the issue for which a COA is requested. But, in deciding
whether to grant a COA, we must obviously make a threshold
examination of the district court’s decision made pursuant to
AEDPA. E.g., Henderson v. Quarterman, 460 F.3d 654, 659 (5th Cir.
2006). In that regard, AEDPA permits relief only on two bases.
First, relief is permitted if the state-court decision was
contrary to, or an unreasonable application of, federal law. Id.;
see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (“[Section]
2254(d)’s highly deferential standard [of review] for evaluating
state-court rulings ... demands that state-court decisions be given
the benefit of the doubt”. (Internal quotation marks omitted.)).
A legal conclusion is “contrary to” federal law if it is “opposite
to that reached by [the Supreme] Court on a question of law” or
“decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts”. Williams, 529 U.S. at 412-
13. A decision unreasonably applies federal law when it
“identifies the correct governing legal rule from [Supreme Court]

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cases but unreasonably applies it to the facts of the particular
state prisoner’s case”. Id. at 407; see also Woodford, 537 U.S. at
25 (“An ‘unreasonable application of federal law is different from
an incorrect application of federal law’”, the former being a more
deferential standard. (quoting Williams, 529 U.S. at 410)(emphasis
in original)).
The other basis for relief under AEDPA concerns state-court
fact finding. Under AEDPA, “[f]actual determinations by state
courts are presumed correct absent clear and convincing evidence to
the contrary”. Miller-El, 537 U.S. at 340 (citing 28 U.S.C. §
2254(e)(1)). “[A] decision adjudicated on the merits in a state
court and based on a factual determination will not be overturned
on factual grounds unless objectively unreasonable in [the] light
of the evidence presented in the state court proceeding”. Id.; 28
U.S.C. § 2254(d)(2).
As noted, the district court denied relief on the merits, not
on the mixture of procedural and merits grounds utilized by the
TCCA. For the prejudice-to-testifying claim for which Smith now
seeks a COA, the district court refused to defer to the TCCA’s
Article-11.071-procedural dismissal of that claim, first raised in
2001, because, inter alia, Article 11.071 (effective 1 September
1995) did not retroactively apply to Smith’s original 1985 state-
habeas application, which his 1997 and 2001 applications amended,
but did not replace.

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In his brief in support of his COA requests, Smith devotes two
very summary paragraphs to his COA request for his claim that the
district court should have reviewed his prejudice-to-testifying
claim under a de novo, rather than AEDPA’s deferential, standard
of review. His underlying standard-of-review claim is based on the
TCCA’s not adopting the state-habeas trial court’s findings and
conclusions for its alternative merits decision on the prejudice-
to-testifying claim. As discussed, the TCCA did not do so because
it dismissed that, and another, claim on a procedural basis. It
did adopt the findings and conclusions for the other seven claims.
Arguably, Smith has not adequately briefed this COA request.
Moreover, although Smith requests a COA on this standard-of-review
claim, he failed first to do so in district court. As noted, in
denying habeas relief, the district court sua sponte denied a COA
for the claims in Smith’s federal application. Smith did not
subsequently file a COA with the district court on his standard-of-
review claim, which arose out of the court’s denial of his
prejudice-to-testifying claim. We will not consider a COA request
presented here for the first time. Muniz v. Johnson, 114 F.3d 43,
45 (5th Cir. 1997).
In any event, we question whether a COA would be required for
a challenge to the standard of review employed by the district
court. It does not appear to be a constitutional issue for which
we can grant a COA, as emphasized supra. Likewise, it was not one

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of the claims raised in Smith’s federal application. No authority
need be cited for the rule that habeas claims cannot be raised for
the first time on appeal.
Instead, the standard-of-review issue seems more properly
considered as a sub-issue for whether to grant a COA on the
prejudice-to-testifying claim. We need not decide these questions,
however, because, as discussed infra, the primary basis on which
the district court denied the prejudice-to-testifying claim was not
based on its review of the state-habeas trial court’s findings and
conclusions, but was instead based on the district court’s
independent analysis. Accordingly, assuming arguendo the standard-
of-review issue requires a COA, Smith’s COA request is denied for
that issue.
B.
The constitutional claim for which Smith seeks a COA is for
IAC prejudice-to-testifying. In the state-habeas court, under the
well-established two-prong test for IAC, Smith was required to show
deficient performance by his counsel that prejudiced Smith’s
defense at trial or sentencing. Strickland v. Washington, 466 U.S.
668, 687 (1984). In state-habeas court, demonstrating deficient
performance at the capital-murder trial “require[d] showing that
counsel made errors [at trial] so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment”. Id. To meet the second requirement, showing prejudice

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at the capital-murder trial, Smith was required in state-habeas
court to show “that counsel’s errors [at trial] were so serious as
to deprive [Smith] of a fair trial, a trial whose result is
reliable”. Id.
As discussed supra, under AEDPA, the district court reviewed
the state-habeas court’s IAC decision only for whether it is
reasonable. And, our above-discussed COA standard is whether
reasonable jurists would disagree with the district court’s AEDPA-
driven decision.
Smith contends he received IAC because his trial attorney
caused him to waive his right to testify by failing to investigate
Smith’s prior convictions in 1955 and 1959. See, e.g., United
States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992) (“Because it
is primarily the responsibility of defense counsel to advise the
defendant of his right to testify ... the appropriate vehicle for
claims that the defendant’s right to testify was violated by
defense counsel is a claim of ineffective assistance of counsel
under Strickland”.). According to Smith, had his capital-murder
trial counsel investigated his 1959 conviction, he would have
discovered Smith was denied representation on appeal in that case.
Armed with this information, according to Smith, his trial counsel
should then have made “[a]n appropriate objection [which] would
have caused exclusion [of the 1959 conviction], allowing [Smith] to
testify without fear of impeachment by way of prior conviction”,

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his four 1955 convictions being “well beyond the 10-year rule of
thumb for impeachment in his [capital-murder] 1978 trial”. By
excluding the admission of these prior convictions, thus allowing
him to testify, Smith contends a different result would have been
reached.
Smith, however, fails in his brief here to support these
contentions. Instead, he repeats the assertions made to the
district court — i.e., had his capital-murder trial attorney
discovered the invalidity in his prior convictions, he could have
testified and altered the result of his trial and/or sentencing.
Smith does not point to any evidence or make any legal argument
showing the district court’s decision on this claim is debatable
among reasonable jurists.
For Smith’s IAC prejudice-to-testifying claim, the district
court held, pursuant to AEDPA: Smith neither presented clear and
convincing evidence to rebut the presumption of correctness
accorded a state-habeas court’s factual determinations nor showed
the state-habeas court’s legal conclusions were contrary to, or an
unreasonable application of, federal law. Reviewing the state
trial and habeas records, the district court found that the form
judgments for Smith’s 1955 convictions stated Smith “appeared in
person and by Counsel”. Smith admitted an attorney helped him sign
the waiver form, but maintained the attorney “never discussed the
facts or law with him, and never advised him of the rights he would

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surrender by pleading guilty”. Thus, Smith insisted this
“constructive denial of counsel” should have precluded the
admission of his 1955 convictions.
The district court acknowledged that, if Smith showed he had
to “navigate a critical stage of the [1955] proceedings against him
without the aid of an attorney dedicated to the protection of his
... rights”, Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir.
1997) (internal quotation marks omitted), that would fall short of
the Sixth Amendment standard made retroactively applicable to state
courts through Gideon v. Wainwright, 372 U.S. 335 (1963). Smith,
2006 WL 801114, at *11. See also Beard v. Banks, 542 U.S. 406, 417
(2004) (stating the Supreme Court has “repeatedly referred” to
Gideon as an exception to non-retroactivity requirements).
Contrary to Smith’s contentions, however, the district court
found Smith’s capital-murder trial attorney did object to the
admission of his 1955 convictions on the grounds Smith was deprived
of counsel in those matters. The capital-murder trial court
overruled this objection. The district court reasoned: “Even had
trial counsel objected more strenuously, Smith has not shown that
he was actually or constructively without counsel at his 1955
guilty-plea hearing”. Smith, 2006 WL 801114, at *12.
Along that line, and not deciding for present purposes whether
the district court applied the correct standard of review to the
state-habeas trial court’s findings, that state court found the

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1955 judgments showed Smith was represented by counsel in his
guilty pleas and rejected Smith’s “constructive denial of counsel”
contentions. Moreover, notwithstanding any invalidity in Smith’s
1955 convictions, that court concluded the State could have
elicited testimony describing those crimes. Thus, the state-habeas
trial court concluded Smith failed to meet both Strickland prongs:
deficient performance and prejudice. Because, contrary to AEDPA,
Smith did not present clear and convincing evidence to rebut the
presumption of correctness accorded the state-habeas trial court’s
factual determinations, Miller-El, 537 U.S. at 340 (citing 28
U.S.C. § 2254(e)(1)), the district court did not hold unreasonable
the state-habeas trial court’s determination that Smith was not
unrepresented at his 1955 guilty-plea hearing.
Likewise, regarding the admission of Smith’s 1959 conviction
at his capital-murder sentencing, the state-habeas trial court
found that Smith was indisputably without assistance of counsel on
direct appeal (in clear violation of the Sixth Amendment; in that
regard, he was granted an out-of-time appeal in 1987, with his
conviction’s being affirmed in 1988, ten years after his 1978
murder-trial and 15 years before the denial of state-habeas
relief). Nevertheless, the state-habeas trial court found the
State “could have presented witnesses to testify at the punishment
phase of the [capital-murder] trial regarding the details of the

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[1959] offense”. Therefore, the state-habeas trial court concluded
Smith failed to show Strickland prejudice.
Although the district court did not agree that the State
necessarily could have produced witnesses to testify to the
underlying facts of the 1959 offense, it did not hold unreasonable
the state-habeas court’s conclusion that Smith failed to show IAC
prejudice:
Even excluding the 1959 conviction, the jury
still had before it his [four] 1955
convictions and his [1963] escape attempt.
The jury could also consider the brutal nature
of Smith’s [capital-murder] case in
determining the punishment verdict.... The
defense presented no mitigating evidence, and
Smith points to no such evidence that counsel
should have, but did not, present. While
certainly a factor deserving consideration,
the 1959 conviction was not the lynchpin
holding the prosecution’s case together.
Smith, 2006 WL 801114, at *15 (internal citation omitted).
Applying AEDPA’s deferential standard, Woodford, 537 U.S. at 24
(citing 28 U.S.C. § 2254(d)), the district court held Smith failed
to show the state-habeas court’s conclusion was contrary to, or an
unreasonable application of, Strickland’s prejudice prong.
As discussed supra, we need not decide whether the district
court applied the wrong standard of review for the state-habeas
trial court’s findings and conclusions. This is because of the
following holding by the district court: that Smith failed to
provide support in district court for his claim that counsel’s
deficient performance prejudiced his right to testify.

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Smith does not provide this Court with any
competent support for his contention that he
wanted to testify at [his capital-murder]
trial. Smith provides no affidavit or
similarly verified document attesting to his
desire to testify on his own behalf.
Importantly, Smith fails to provide any
indication of what his testimony would have
been had he testified. Smith asks this Court
to grant habeas relief on the simple,
unsupported allegation that he would have
testified, without regard to the substance of
that testimony. Smith’s argumentation
deprives this Court of the ability to consider
the impact of his putative testimony on his
trial. Smith’s speculative assertions fail to
demonstrate the existence of a constitutional
violation. The state court’s rejection of
this claim was not contrary to, or an
unreasonable application of, federal law. See
28 U.S.C. § 2254(d)(1).
Smith, 2006 WL 801114, at *15 (emphasis added).
On this basis alone, reasonable jurists would not disagree
with the district court’s denial of relief for Smith’s prejudice-
to-testifying claim. Nor does the issue presented by that claim
justify proceeding further.
III.
For the foregoing reasons, a COA is
DENIED.

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