IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-70004

JOHN HUMMEL, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

John Hummel seeks a certificate of appealability to appeal the district 

court’s denial of his federal habeas corpus petition under 28 U.S.C. § 2254. We 

find that Hummel has not shown that jurists of reason could debate whether 

the district court erred in denying his petition, and so we must deny his 

application.

I

Kennedale, Texas authorities responded to a fire at Hummel’s house 

shortly after midnight on December 18, 2009. Hummel’s pregnant wife, fatherin-law, and five-year-old daughter were found dead inside. Hummel was not 

United States Court of Appeals

Fifth Circuit

FILED

November 19, 2018

Lyle W. Cayce

Clerk

 Case: 18-70004 Document: 00514729102 Page: 1 Date Filed: 11/19/2018
No. 18-70004

2

inside the house, and approached an officer outside around 4:30 a.m. He told 

police that he was away from the house the entire night because he was 

checking prices for Christmas presents. During the interview, police observed 

what appeared to be blood on his pants; they took his clothing for testing and 

observed more blood on one of his socks and scratch marks on his back. After 

leaving the police department, Hummel picked up a paycheck from his 

employer and subsequently went missing. 

Two days later, Hummel attempted to enter the United States on foot at 

a port of entry between Tijuana, Mexico, and San Ysidro, California, without a 

passport or other acceptable proof of citizenship. Upon entering his name and 

date of birth into the computer system, the Customs and Border Protection

officer was alerted that Hummel was a missing person and might be armed 

and dangerous. The alert stated that if Hummel was located, CBP should 

contact the Kennedale Police Department, but should not arrest or detain him. 

The officer called the Kennedale Police Department, which said to hold 

Hummel based on an arson arrest warrant, though no warrant had been 

approved at that point. CBP learned shortly after that there was no active 

warrant, but continued to detain Hummel until a warrant was issued later 

that day. After the warrant was issued, Kennedale police officers traveled to 

the San Diego jail where Hummel was being held, read him his Miranda rights, 

and interrogated him. Hummel confessed orally and in writing to killing all 

three victims, setting the house on fire, dumping the weapons he had used, and 

driving to several Walmart stores “to be seen on camera.” Based on this 

information, authorities found several weapons in a dumpster that tested 

positive for DNA from Hummel and his family members. Hummel’s clothing 

from that night tested positive for DNA from Hummel’s wife.

The prosecution presented this evidence at trial, in addition to testimony 

from Kristie Freeze, who had a relationship with Hummel while divorcing her 

 Case: 18-70004 Document: 00514729102 Page: 2 Date Filed: 11/19/2018
No. 18-70004

3

husband. She said that she had told Hummel not to contact her after she 

learned his wife was pregnant, about a week before the murders, but he 

continued to call and text her. She also testified that she told Hummel on 

December 16 that her divorce became final—two days before the murders.

The jury convicted Hummel of capital murder. At the punishment stage 

of the trial, the jury was asked to determine whether there was a probability 

that Hummel “would commit criminal acts of violence that would constitute a 

continuing threat to society” and whether “[t]aking into consideration all of the 

evidence, including the circumstances of the offense, [Hummel’s] character and 

background, and [Hummel’s] personal moral culpability,” it found sufficient 

mitigating circumstances to warrant life imprisonment rather than death. It

found that Hummel was likely to be a future danger and that there were no 

such mitigating circumstances. The Texas Court of Criminal Appeals affirmed 

the judgment and sentence on direct appeal. Hummel’s state habeas 

application was subsequently denied by the trial court and the Court of 

Criminal Appeals.1 The district court denied Hummel’s federal habeas petition 

and denied his application for a COA.

II

A state prisoner does not have “an absolute right to appeal” from a 

federal district court decision denying a petition for a writ of habeas corpus.2

Instead, the prisoner must obtain a certificate of appealability.3 This requires 

a “substantial showing of the denial of a constitutional right”4—that “jurists of 

reason could disagree with the district court’s resolution of [the applicant’s] 

constitutional claims or that jurists could conclude the issues presented are 

 

1 Ex parte Hummel, No. WR-81,578-01, 2016 WL 537608 (Tex. Crim. App. Feb. 10, 

2016) (per curiam) (Alcala, J., dissenting).

2 Buck v. Davis, 137 S. Ct. 759, 773 (2017).

3 28 U.S.C. § 2253(c).

4 Id. § 2253(c)(2).

 Case: 18-70004 Document: 00514729102 Page: 3 Date Filed: 11/19/2018
No. 18-70004

4

adequate to deserve encouragement to proceed further.”5 We undertake a 

threshold inquiry, not a full-fledged merits analysis, to determine whether the 

applicant’s claims are reasonably debatable.6

Hummel’s petition is “also subject to the deferential standards of 

AEDPA.”7 For Hummel to be entitled to federal habeas relief under 28 

U.S.C. § 2254(d), he must show that the state court’s decision was “contrary 

to” or “involved an unreasonable application of” clearly established federal law, 

or that it “was based on an unreasonable determination of the facts” given the 

record before the state court.8 It is not enough for the state court to have been 

incorrect in its application of law or determination of facts; it must also have 

been unreasonable.9

In sum, we must determine whether jurists of reason could debate the 

district court’s conclusion that the state court decision in Hummel’s case was 

not contrary to clearly established federal law, did not unreasonably apply that 

law, and did not unreasonably determine the facts. Finding that no reasonable 

jurist could debate this, we deny Hummel’s application for a COA.

III

First, Hummel argues that he received ineffective assistance of trial 

counsel in violation of the Sixth Amendment. Under Strickland v. Washington, 

to show constitutionally deficient assistance of counsel, Hummel must 

establish “(1) that counsel’s representation fell below an objective standard of 

reasonableness and (2) that the deficient representation caused prejudice, 

which requires a showing that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

 

5 Buck, 137 S. Ct. at 773 (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).

6 See id. at 773–74.

7 Charles v. Stephens, 736 F.3d 380, 387 (5th Cir. 2013) (per curiam). 8 Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. § 2254(d)(1)–(2)). 9 Coble v. Quarterman, 496 F.3d 430, 435 (5th Cir. 2007).

 Case: 18-70004 Document: 00514729102 Page: 4 Date Filed: 11/19/2018
No. 18-70004

5

different.”10 Our scrutiny of counsel’s performance is “highly deferential,”11 and 

“doubly” so when the ineffective-assistance claim is raised on federal review of 

a state court decision that rejected the Strickland claim on the merits.12

Reasonable jurists cannot debate the reasonableness of the district 

court’s conclusion that Hummel failed to clear this high bar. Hummel argues 

that the defense should have presented testimony from jail deputies who 

interacted with Hummel prior to trial, to testify that he was not a high-risk 

inmate and was unlikely to be a future danger. He also argues that trial 

counsel should have presented expert mental health testimony that he was 

unlikely to be a future danger, in part based on an assessment that the crime 

was triggered by complex post-traumatic stress disorder due to attachment 

trauma. But trial counsel presented extensive evidence from expert and lay 

witnesses that Hummel was unlikely to be a future threat, including evidence 

of his good behavior while in jail and his nonviolent and non-criminal history.13

Counsel made a reasonable strategic decision not to seek testimony from jail 

personnel, as Hummel had indicated he had no especially positive 

 

10 Id. (internal quotation marks omitted).

11 Strickland v. Washington, 466 U.S. 668, 689 (1984). 12 See Richter, 562 U.S. at 105.

13 Hummel’s trial counsel called nine lay witnesses who knew Hummel at various 

points of his life. Several testified that both of Hummel’s parents had physically punished 

him and that his mother was very strict with her children. The defense also presented two 

expert witnesses. Frank Aubuchon, a former classifications officer for the correctional 

department, testified that based on Hummel’s lack of disciplinary issues while in jail and 

other factors, Hummel would likely adjust well to life in prison and be classified at the 

minimum level an inmate could receive for a life sentence without parole. Dr. Antoinette 

McGarrahan, a forensic psychologist, conducted a neuropsychological and personality and 

emotional evaluation on Hummel, reviewed relevant records, and interviewed his mother and 

sister. She testified that environmental factors led Hummel to repress his emotions, which 

had suddenly flooded out and caused him to kill his family. Dr. McGarrahan did not testify 

specifically about her opinion on Hummel’s future dangerousness or perform a formal 

violence risk assessment, because trial counsel had concluded that doing so would open the 

door to damaging rebuttal testimony from the State’s expert.

 Case: 18-70004 Document: 00514729102 Page: 5 Date Filed: 11/19/2018
No. 18-70004

6

relationships with anyone at the jail,14 and a similarly reasonable decision not 

to present specific expert testimony based on methods that could have opened 

the door to powerful rebuttal testimony from the state’s expert.15 As the State 

observes, Hummel’s argument boils down to a matter of degree. He argues not 

that the defense should have adopted an entirely different theory, but that it 

failed to present available, helpful evidence on the theory it had adopted—a 

difficult route by which to demonstrate ineffective assistance.16

Several of Hummel’s other ineffective-assistance arguments fail for the 

same reason. He argues that counsel should have presented expert testimony 

on Hummel’s social history beyond the neuropsychological evaluation Dr. 

McGarrahan provided; that it should have called additional lay witnesses to 

testify to his childhood trauma and nonviolent nature; and that it should have 

presented further evidence of his military service. We cannot debate the 

district court’s deference to the state court’s conclusions that counsel presented 

considerable evidence of Hummel’s life circumstances—and that counsel was 

not constitutionally deficient in failing to package this evidence in exactly the 

way Hummel may now prefer. We also cannot debate its deference to the 

conclusion that counsel made acceptable strategic choices not to present 

 

14 Trial counsel based this decision on past experience suggesting that testimony from 

jail personnel was unlikely to be helpful to a defendant’s case without a strong personal 

relationship. See Wiggins v. Smith, 539 U.S. 510, 533 (2003) (“Strickland does not require 

counsel to investigate every conceivable line of mitigating evidence no matter how unlikely 

the effort would be to assist the defendant at sentencing . . . . We base our conclusion on the 

much more limited principle that strategic choices made after less than complete 

investigation are reasonable only to the extent that reasonable professional judgments 

support the limitations on investigation.” (internal quotation marks omitted)).

15 Similarly, trial counsel was entitled to rely on another expert’s opinion that 

Hummel did not exhibit post-traumatic stress disorder prior to committing the murders. See 

Segundo v. Davis, 831 F.3d 345, 352 (5th Cir. 2016). 16 See Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000) (“We must be particularly 

wary of arguments that essentially come down to a matter of degrees.” (internal alterations 

omitted)); accord Skinner v. Quarterman, 576 F.3d 214, 220 (5th Cir. 2009).

 Case: 18-70004 Document: 00514729102 Page: 6 Date Filed: 11/19/2018
No. 18-70004

7

testimony that could have been double-edged, such as further evidence about 

Hummel’s military service.17

Hummel finally argues that trial counsel should have contested the 

sufficiency of the State’s evidence of future dangerousness. The prosecution’s 

future-dangerousness case centered on the murders themselves, evidence that 

Hummel had attempted to poison his family two days before the murders by 

placing rat poison in their food, and evidence of Hummel’s sexually deviant 

activity and illegal drug use. Trial counsel argued to the jury that the State 

had not proved future dangerousness, repeatedly noting the lack of evidence 

that Hummel had ever been violent previously. Hummel offers no reason to 

doubt the state court’s determination that the State’s evidence was sufficient 

to support a finding of future dangerousness, so he has not shown that

reasonable jurists could debate the district court’s conclusion that counsel was 

not deficient in failing to further object to the sufficiency of the evidence.18

On the record before the state court—and especially with the “double” 

deference we afford to a Strickland claim on habeas review—reasonable jurists 

could not debate the district court’s decision not to grant habeas relief on 

Hummel’s claim for ineffective assistance of trial counsel.

IV

Second, Hummel argues that he received ineffective assistance of 

appellate counsel. We review an ineffective-assistance-of-appellate-counsel 

 

17 We do not dispute that evidence of military service may have mitigating value, but 

counsel made a reasonable strategic decision to attempt to present limited evidence of 

Hummel’s military service, instead of presenting other witnesses about Hummel’s service 

who could also have fueled the prosecution’s narrative that Hummel was a substandard 

Marine who disobeyed the “simplest of orders” and once had an unauthorized absence of 

under 20 hours. 

18 See Miller v. Johnson, 200 F.3d 274, 286–87 (5th Cir. 2000) (denying a COA to 

challenge sufficiency of the evidence where the COA applicant had no past criminal history

but the crime itself was brutal and the applicant had taken affirmative steps to cover up his 

involvement after the fact, among other evidence presented by the prosecution). 

 Case: 18-70004 Document: 00514729102 Page: 7 Date Filed: 11/19/2018
No. 18-70004

8

claim on habeas review in much the same way that we review claims for

ineffective assistance of trial counsel, but we are mindful that “winnowing out 

weaker arguments on appeal and focusing on those more likely to prevail, far 

from being evidence of incompetence, is the hallmark of effective appellate 

advocacy.”19

At trial, Hummel unsuccessfully moved to suppress the statements he 

made to police after being apprehended, claiming in part that Customs and 

Border Protection had unlawfully detained him before an arrest warrant was 

issued. His appellate counsel appealed the denial of the motion to suppress, 

but focused on the Kennedale Police Department’s false representation to CBP 

that they had already secured an arrest warrant, arguing that without that 

false representation CBP would not have detained Hummel. Hummel avers 

that his appellate counsel was unconstitutionally deficient in failing to argue

specifically that CBP lost jurisdiction to detain Hummel once they learned that 

no warrant had been issued.

The state habeas court concluded that Hummel failed to demonstrate 

that he would have prevailed on appeal if his appellate counsel had raised more 

clearly the “jurisdiction-dropping” argument—both because Hummel’s 

“detention by CBP pending the issuance of an arrest warrant was justified on 

several grounds based on federal law and CBP’s policies,” and because even if 

appellate counsel had successfully argued that Hummel’s detention was 

illegal, Hummel’s confession was sufficiently attenuated from the detention 

that it should not have been suppressed regardless. Hummel does not point to 

federal law clearly prohibiting CBP from detaining him upon learning that 

 

19 Smith v. Murray, 477 U.S. 527, 536 (1986) (internal quotation marks omitted); see 

also Smith v. Robbins, 528 U.S. 259, 288 (2000) (explaining that to prove ineffective 

assistance of appellate counsel for failing to raise an argument in a brief, a petitioner must 

generally show “that a particular nonfrivolous issue was clearly stronger than issues that 

counsel did present”). 

 Case: 18-70004 Document: 00514729102 Page: 8 Date Filed: 11/19/2018
No. 18-70004

9

there was no active warrant for Hummel’s arrest, given that he had attempted 

to enter the United States without a passport.20 He similarly does not present

clearly established law undercutting the state court’s conclusion that his 

confession was sufficiently attenuated from any illegality in the detention.21

The federal courts’ task is not to establish whether CBP had authority 

to detain Hummel, whether the state court reasonably concluded that CBP had 

authority to detain Hummel, or whether Hummel’s appellate counsel was 

unconstitutionally deficient in failing to straightforwardly raise this specific 

argument on direct appeal. We must instead determine whether the district 

court erred in determining that the state court did not unreasonably conclude

that Hummel’s appellate counsel’s strategy fell within the “wide range of 

reasonable professional assistance” and that any failures by appellate counsel 

 

20 The district court approved of the state habeas court’s implicit reliance on 8 C.F.R. 

§ 235.1, which provides that “[a] person claiming U.S. citizenship must establish that fact to 

the examining officer’s satisfaction and must present a U.S. passport or alternative 

documentation as required by 22 C.F.R. part 53.” 8 C.F.R. § 235.1(b). It also provides that 

“[a] U.S. citizen must present a valid unexpired U.S. passport book upon entering the United 

States, unless he or she presents [another valid document for entry].” Id. Hummel does not 

give us sufficient grounds to debate the district court’s conclusion that the state habeas court 

did not unreasonably interpret this provision to authorize CBP to detain Hummel when he 

failed to present a passport or other authorized documentation.

21 Hummel argues that the attenuation doctrine solely applies when independent 

probable cause develops after an illegal arrest. This is a misinterpretation of our precedent, 

which has consistently noted—following the Supreme Court’s decision in Brown v. Illinois, 

422 U.S. 590, 598–99 (1975)—that the development of independent probable cause is one

factor to be considered in assessing attenuation. See United States v. Mendez, 885 F.3d 899, 

909–10 (5th Cir. 2018) (“A district court must consider each factor [in Brown v. Illinois] and 

determine the cumulative effect of all factors in each case.”); United States v. Cherry, 794 

F.2d 201, 206 (5th Cir. 1986) (“The development of independently procured probable cause 

following an illegal arrest is a critical factor attenuating the taint of the initial illegal 

arrest.”). Here, as the district court observed, many facts weighed in favor of finding that 

Hummel’s confession admissible: “the acquisition of a warrant, the length of time between 

the warrant issuing and Petitioner confessing, the change of environs from the border 

crossing to the jail, the Miranda warning, the apparent good faith of arresting officers, and 

the lack of any flagrant official misconduct.” 

 Case: 18-70004 Document: 00514729102 Page: 9 Date Filed: 11/19/2018
No. 18-70004

10

did not prejudice Hummel.22 None could debate its holding that the state court 

was not unreasonable in drawing these conclusions.

V

Third, Hummel argues that Texas Code of Criminal Procedure Article 

37.071, the basis for the jury instructions on the special questions at the 

punishment phase, unconstitutionally limits the jury’s ability to consider 

mitigating evidence that goes beyond a defendant’s “moral 

blameworthiness.”23 We have consistently concluded, in the face of similar 

arguments, that “[t]he statute does not unconstitutionally restrict the 

mitigating evidence that Texas juries are allowed to consider.”24 We have held 

that Article 37.071 § 2(e)(1) offers a “broad definition of mitigating evidence” 

that is not limited by § 2(f)(4)’s reference to “moral blameworthiness.”25

Hummel’s argument cannot support a holding that the state court 

unreasonably applied clearly established federal law.26

VI

We deny Hummel’s application for a certificate of appealability.

 

22 Strickland, 466 U.S. at 689.

23 See Tex. Code Crim. P. art. 37.071 § 2(f)(4).

24 Rockwell v. Davis, 853 F.3d 758, 763 (5th Cir. 2017); see Blue v. Thaler, 665 F.3d 

647, 666–68 (5th Cir. 2011); Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir. 2001). 

25 See, e.g., Blue, 665 F.3d at 666.

26 See id. at 666–67 (“Beazley forecloses Blue’s claim for relief in two ways. First, its 

conclusion that the new special-issue scheme is constitutional is very strong evidence that it 

was reasonable for the CCA to reach the same conclusion. Second, Beazley also held, on facts 

materially indistinguishable from those presented here, that the petitioner was not entitled 

to the issuance of a COA. That holding binds this panel and compels rejection of Blue’s claim. 

Therefore, jurists of reason would not debate the district court’s determination that the CCA’s 

rejection of Blue’s Penry claim is entitled to deference under § 2254(d)(1).”

 Case: 18-70004 Document: 00514729102 Page: 10 Date Filed: 11/19/2018