1

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

TERRY LEE HANKINS, §

Petitioner, §

VS. § CIVIL ACTION NO. 4:04-CV-875-Y

 § (death-penalty Case)

NATHANIEL QUARTERMAN, Director,§

Texas Department of Criminal §

Justice, Correctional §

Institutions Division, §

Respondent. §

MEMORANDUM OPINION AND ORDER 

DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Terry Lee Hankins (“Hankins”), sentenced to death

for capital murder, petitions the Court for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, contending that his conviction and

sentence are unconstitutional in several respects. Respondent

Nathaniel Quarterman (“the State”) filed a brief in response. The

Court denies Hankins’s petition for a writ of habeas corpus.

I

History of the Case

A jury convicted Hankins of the capital murders of Kevin

Galley and Ashley Mason, and his punishment was assessed at death

by lethal injection. See State v. Hankins, Cause No. 0817624D

(Criminal District Court Number 4 of Tarrant County, Tex. May 16,

2002). The conviction was appealed to the Texas Court of Criminal

Appeals, and that Court affirmed the conviction in a published

 

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opinion. See Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App.),

cert. denied, 543 U.S. 944 (2004).

Hankins filed a state application for writ of habeas corpus in

January 2004. In September the state habeas court issued an order

adopting the State’s findings of fact and conclusions of law

recommending that relief be denied based on the pleadings, the

exhibits filed by the parties, and the court record. (State Habeas

Transcript, p. 275.) The Court of Criminal Appeals denied relief

in an unpublished written order adopting most of the trial court’s

findings of fact and conclusions of law. See Ex parte Hankins, No.

60,227-01 (Tex. Crim. App. Nov. 10, 2004). Hankins filed his

federal petition for writ of habeas corpus in November 2005. The

State filed an answer in April 2006, and furnished the state-court

records. Hankins filed a reply brief the following June.

Briefly recounted, the evidence presented by the State at the

guilt phase of the trial established that, on an evening or early

morning in August 2001, Hankins killed his wife Tammy Hankins in

the trailer they shared. (R. 28:178-79.) The next day, a Sunday,

he was at his girlfriend, Barbara Fox’s apartment, with Tammy’s two

children, Kevin Galley and Ashley Mason, for several hours. (R.

26:200.) He seemed upset and left with the two children at around

8:00 p.m., stating that he was leaving to pick up Tammy from work.

(R. 26:201-03.) He shot and killed Kevin and Ashley in the early

morning hours of Monday. (R. 28:179-80.) The three bodies were

 

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discovered by Tammy’s boss, mother, and sister the following

Wednesday afternoon after Tammy failed to report to work that day.

(R. 26:15, 17, 25, 41-3.) Ashley was discovered naked from the

chest down on the couch in the living room under pillows and

clothing, shot in the face. Kevin was found naked under blankets

in the bottom bunkbed in his bedroom, shot in the head at contact

range. (R. 26:42, 43, 75, 88, 92, 140, 169; R. 28:61, 75.) Tammy

was found under a pile of clothes in her bed, and her car was

missing. (R. 26:25, 41, 43.) A note written on an envelope

addressed to Hankins was found in Hankins’s belongings in the

trailer, and it stated that: “I guess to sum it all up I’m guilty

of murder, incest, hatred, fraud, theft, jealousy, envy.” (R.

26:161.) Hankins was arrested at his girlfriend’s apartment

Thursday morning. (R. 27:137.) He later gave a statement to the

police confessing to shooting all three victims. (R. 28:179-80.)

The State presented evidence at the punishment phase of the

trial that Hankins also confessed to killing his half-sister, Pearl

Sevenstar, in September of 2000, by hitting her in the head with a

jack stand and to killing his father, Earnie Hankins, in October of

2000, by shooting him in the face. (R. 31:20-3, 93.) Pearl’s

liquified remains were located in a plastic container in a car

parked at the automobile repair shop where Hankins worked. (R.

31:136-40.) Earnie’s mummified remains were located inside his

trailer. (R. 31:88; R. 32:22.) Hankins killed Pearl in the

 

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1 Ruth Bradley, one of the friends Hankins lived with, testified

that Pearl Sevenstar had taken a pregnancy test at her encouragement, and

she had informed Hankins that it was positive. (R. 32:50-2.)

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apartment where she and Hankins lived with two friends and told the

friends that he had had her admitted to a home for pregnant,

mentally-challenged women. (R. 31:20-1; R. 32:53-4.)1 After

killing Earnie, Hankins told people that his father had moved out

of state. He then used his father’s credit cards until they were

cancelled and pawned his father’s guns. Hankins also continued to

pay the rent for his father’s trailer, mow the grass around the

trailer, and run the automobile repair business his father owned

where Hankins worked. Hankins also placed numerous air fresheners

in Earnie’s trailer in an attempt to mask the odor of the decaying

corpse. (R. 31:22-3, 39-41, 60, 65-6, 74-5, 80.) 

The State also presented evidence that in July 2001,

Petitioner assaulted another girlfriend, Ruth Bradley, by hitting

her in the head with a metal police baton, causing a hairline

fracture and a severe concussion. (R. 32:58-62.) The State further

introduced evidence that pornographic magazines were found in

Kevin’s bedroom in the trailer, a partially inflated male blow-up

doll was found on the kitchen table, artificial penises were on the

kitchen counter, and condoms and lubricating jelly were found on

the coffee table in the living room near Ashley’s body. (R. 32:106-

110, 116.) The State and the defense stipulated to the fact that

Hankins has a biological son, Justin Jennings, with his half-sister

 

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Pearl. (R. 32:193.) Finally, the contents of a notebook owned by

Hankins, retrieved from Barbara Fox’s apartment, were also read

into evidence. (R. 26: 228-29, R. 27:154.) In this notebook, in

addition to admitting to murdering the five victims, Hankins also

wrote that, when he was younger, he had had sex with his two stepmothers, and had had sex with his half-sister Pearl and with Pearl

and Tammy together. (R. 32:195-202.)

II

Standard of Review

The pertinent terms of the Antiterrorism and Effective Death

Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:

(d) An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a state

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim –

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in a State court proceeding.

28 U.S.C. § 2254(d) (2000).

Section 2254(d)(1) concerns pure questions of law as well as

mixed questions of law and fact. See Martin v. Cain, 246 F.3d 471,

475 (5th Cir. 2001). Under the “contrary to” clause, a federal

habeas court may grant the writ of habeas corpus if the state court

 

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arrives at a conclusion opposite to that reached by the United

States Supreme Court on a question of law or if the state court

decides a case differently from the United States Supreme Court on

a set of materially indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 412-3 (2000). With respect to the “unreasonable

application” clause, a federal court may grant a writ of habeas

corpus if the state court identifies the correct governing legal

principle from the United States Supreme Court’s decisions, but

unreasonably applies that principle to the facts of the prisoner’s

case. Williams, 529 U.S. at 413. Under Williams, a state court

unreasonably applies Supreme Court precedent if it “unreasonably

extends a legal precedent from [Supreme Court] precedent to a new

context where it should not apply or unreasonably refuses to extend

that principle to a new context where it should apply.” Williams,

529 U.S. at 407.

Section 2254(d)(2) concerns questions of fact. Moore v.

Johnson, 225 F.3d 495 (5th Cir. 2000). Under § 2254(d)(2), federal

courts “give deference to the state court’s findings unless they

were “based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceeding.” Chambers

v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000) (as modified on denial

of rehearing). The resolution of factual issues by the state court

is presumptively correct and will not be disturbed unless the state

 

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prisoner rebuts the presumption by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

This statute applies to all federal habeas-corpus petitions

that, as with the instant case, were filed after April 24, 1996,

provided that they were adjudicated on the merits in state court.

Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the

merits in the habeas-corpus context is a term of art that refers to

the state court’s disposition of the case on substantive rather

than procedural grounds. See Green v. Johnson, 116 F.3d 1115, 1121

(5th Cir. 1997).

III

Issues Presented

Hankins alleges the following seven claims in twelve grounds

for relief:

A. Hankins’s trial attorneys provided ineffective

assistance of counsel in violation of the Sixth

Amendment because they failed to adequately

investigate, develop, and present mitigating

evidence at the punishment phase of the trial

(grounds one through three);

B. The trial court violated Hankins’s rights under the

Eighth and Fourteenth Amendments by instructing the

jury that it should weigh factors for and against

the death penalty in answering the mitigationevidence special issue, and Hankins’s trial

attorneys provided ineffective assistance of

counsel in violation of the Sixth Amendment because

they failed to object to this jury instruction

(grounds four through six);

 

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C. The trial court violated Hankins’s Fourteenth

Amendment rights by failing to sustain defense

objections to the admission into evidence of

photographs of the murder victims, and defense

counsel were ineffective for failing to object to

testimony from the medical examiner regarding the

level of decomposition of the bodies (grounds seven

and eight);

D. The mitigation special issue the jury was required

to answer at the punishment phase of the trial is

unconstitutional because it does not place a burden

of proof on the State (ground ten);

E. The trial court denied Hankins his rights under the

Sixth and Eighth Amendments when it refused to

instruct the jury on the limitations placed on the

Texas Board of Pardons and Paroles in granting

parole (ground eleven);

F. The trial court violated Hankins’s Sixth Amendment

rights when it quashed defense subpoenas issued by

defense counsel in support of a pretrial hearing on

the issue of whether the application of the death

penalty to Hankins violated the Fourteenth

Amendment (ground twelve); and

G. The method of execution used by the State of Texas

violates the Eighth Amendment because it involves

the use of a chemical substance that has been

banned from use in euthanizing animals (ground

nine).

Hankins also requests an evidentiary hearing in this Court.

IV

Procedural Issues

Respondent contends that Hankins is procedurally barred from

raising his fifth, sixth, and eighth grounds for relief because

they were denied by the state habeas court based on an independent

and adequate state procedural bar. At the state level, in addition

 

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to ruling on the merits of these claims, the state habeas court

also concluded that Hankins was procedurally barred from raising

the claims because they were not raised on appeal. (SHTr.:243, 251-

52.)

A federal habeas court is precluded from addressing a claim

made by a state prisoner when a state court decided the claim on an

independent and adequate state procedural ground. See Coleman v.

Thompson, 501 U.S. 722, 729-30 (1991). To satisfy the independentand-adequate requirements, the dismissal of a claim must “clearly

and expressly” indicate that it rests on state grounds that bar

relief, and the bar must be strictly and regularly followed by

state courts and applied to the majority of similar claims. Finley

v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001), citing Amos v. Scott,

61 F.3d 333, 338-39 (5th Cir. 1995).

With regard to the State’s claim that Hankins is procedurally

barred from raising these grounds for relief, this Court has

located no Fifth Circuit case addressing whether this state

procedural ground is one that is an independent and adequate state

procedural ground. A review of decisions made by the Texas Court

of Criminal Appeals on this issue, however, reveals that that court

has consistently held that, while the state habeas process should

not be used to litigate matters which could have been and should

have been raised on direct appeal, the state writ is available to

review a claim that there was a denial of a fundamental federal

 

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constitutional right, even if the claim was not raised on direct

appeal. See Ex Parte Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App.

1991); Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App. 1990);

Ex parte Banks, 769 S.W.2d 539, 541 (Tex. Crim. App. 1989); Ex

parte Bravo, 702 S.W.2d 189 (Tex. Crim. App. 1982). Thus, this

Court also declines to hold that the federal constitutional claims

Hankins raises in these grounds for relief are procedurally barred

merely because they were decided on the state procedural ground

that bars claims raised on habeas review if they were not raised on

appeal. Because this Court declines to hold that these grounds are

procedurally barred, the Court will address the grounds on their

merits.

V

Discussion of Claims

A. Mitigating Evidence Ineffective-Assistance-of-Counsel Claims

In his first through third grounds for relief, Hankins asserts

that his trial counsel provided ineffective assistance of counsel

at the punishment phase of the trial because they failed to

adequately investigate, develop, and present mitigating evidence.

Hankins asserts that, had his trial counsel further investigated

Hankins’s background and childhood, they would have presented a

more complete history of the abuse and neglect he suffered in his

childhood and that failure to do so constituted ineffective

 

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assistance of counsel. Hankins further asserts that his trial

counsel were ineffective for failing to have him thoroughly tested

by a forensic psychologist. Had they done so and had they

presented this testimony, Hankins argues, the psychologist could

have placed his diagnosis of having an antisocial personality

disorder in the context of Hankins’s history. Hankins argues that,

had his trial counsel presented additional evidence of his history

and the testimony of a forensic psychologist, there is a reasonable

probability that he would not have been sentenced to death.

1. Applicable Law

The Sixth Amendment to the United States Constitution

guarantees a defendant in a criminal case reasonably effective

assistance of counsel. See Cuyler v. Sullivan, 446 U.S. 335, 344-

45 (1980). In order to obtain federal habeas relief due to

ineffective assistance of counsel, a petitioner must satisfy the

two-prong test established in Strickland v. Washington, 466 U.S.

668 (1984). Under the Strickland test, in order to prove that his

counsel was ineffective, a defendant must prove by a preponderance

of the evidence both that counsel’s performance was deficient and

that this deficient performance prejudiced his defense. Id. at 687.

Courts, however, should “indulge a strong presumption” that

counsel’s conduct falls within the range of reasonable assistance,

and a defendant must overcome the presumption that an action is

sound trial strategy. Id. at 689. To establish prejudice, a

 

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petitioner 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. In the context of ineffective assistance of trial

counsel, the prejudice component of the Strickland test “focuses on

the question whether counsel’s deficient performance renders the

result of the trial unreliable or the proceeding fundamentally

unfair.” Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000) (citations and internal quotation marks omitted). Reviewing courts must

consider the totality of the evidence before the finder of fact in

assessing whether the result would likely have been different

absent the alleged errors of counsel. Strickland, 466 U.S. at 695-

96. The Court also noted in Strickland that a fair assessment of

an attorney’s performance requires one “to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Id. at 689. 

In Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d

471 (2003), and Rompilla v. Beard, 125 S.Ct. 2456 (2005), the

Supreme Court applied the Strickland standard in cases where the

claim was made that counsel was ineffective by failing to

investigate, and then present, potentially mitigating evidence.

The Court in Wiggins determined that the appropriate question was

whether the investigation supporting counsel’s decision not to

 

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introduce mitigating evidence of Wiggins’ background was a

reasonable decision. Id. at 522-23. Under the Strickland standard,

a determination must be made regarding whether trial counsel used

“reasonable professional judgment” to support a limited

investigation into potential mitigation evidence. Id. This

analysis is done by conducting an objective review of counsel’s

performance under the prevailing professional norms, in the context

of counsel’s perspective at the time of trial. Id. In Wiggins, the

Court determined that trial counsel were ineffective for failing to

investigate potential mitigating evidence beyond a series of tests

conducted on Wiggins by a psychologist, a written pre-sentence

investigation report, and records from the Department of Social

Services (DSS). Id. at 523-24. Furthermore, the Court held that

Wiggins had been prejudiced by this failure because, had counsel

had a social history report prepared and/or followed up on the

information contained in the DSS records, counsel would have

uncovered and been able to present evidence that Wiggins suffered

from severe deprivation and abuse at the hands of an alcoholic

mother and physical and sexual abuse during subsequent foster care,

and there was a reasonable probability that the jury, confronted

with this evidence, would have returned a different verdict at

sentencing. Id. at 524-25, 534-36..

Then, in Rompilla, the Supreme Court held that trial counsel

were ineffective for failing to examine the court’s file about a

 

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prior conviction Rompilla received for rape and assault in order to

prepare to represent Rompilla at the sentencing phase of his

capital-murder trial, as defense counsel was on notice that the

State intended to present evidence of this prior conviction in its

attempt to seek the death penalty against Rompilla. See 125 S.Ct.

at 2463-64. The Supreme Court then held that, had counsel viewed

this court file, counsel would have discovered “mitigation leads”

from the prison files, which indicated that Rompilla’s history was

very different from what Rompilla and his family had told trial

counsel, including evidence of a childhood in a slum environment,

a history of alcohol abuse, and previous psychological tests that

pointed to schizophrenia and other disorders, as well as a low

level of cognition. See Id. at 2468. Then, had counsel pursued

these leads, counsel would have discovered that Rompilla’s parents

were severe alcoholics, their children were neglected, Rompilla was

frequently physically abused by his father, and Rompilla suffered

from organic brain damage and significantly impaired cognitive

function. See Id. at 2468-69. The Court concluded that Rompilla

was prejudiced by this failure because there was a reasonable

probability that he would not have been sentenced to death had the

jury heard this evidence. See Id. at 2469.

2. Mitigation Evidence Presented at Trial

During the punishment phase of the trial, defense counsel

introduced testimony from the following witnesses: Hankins’s

 

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mother, Virginia Lowe; two of Hankins’s friends, Jason Bradley and

Jason Clements; Jason Clements’s sister and mother, Krista Clements

and Karen Clements; three officers from the Tarrant County jail;

and Dr. Walter Quijano, a clinical psychologist and former employee

of the Texas Department of Criminal Justice. Virginia Lowe

testified about the extreme physical abuse she endured while

married to Hankins’s father, Earnie Hankins, as well as his threats

to kill her. She further testified that, when they separated,

Earnie would not let her take Hankins, but she would see him about

once a month by visiting with him in a park. She testified that

she last saw Hankins in 1982 when she went to Tulsa and, upon

seeing him playing in a park, stopped to see him before Earnie

arrived, whereupon Hankins told her she did not need to be there.

Hankins and his father moved away from Oklahoma and she could not

find them, so she did not hear from Hankins again until she

received a letter from him after he was arrested. Hankins had been

told that she was dead. (R. 33:9-17, 21, 25.)

Jason Bradley testified that he had met Hankins ten or eleven

years earlier through mutual friends, that Hankins taught Bradley

a lot about cars, that Hankins worked with his father at his

father’s garage, and that Earnie was verbally abusive and violent

towards Hankins for no reason. Bradley further testified that

Hankins lived with Bradley and his wife, Ruth, for a time, as did

Hankins’s sister, Sissy. Hankins was honest and talked to Bradley

 

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when he began a sexual relationship with Ruth, and Bradley moved

out after his divorce was final. Bradley further testified that

Hankins’s father did not like Bradley because of a prior business

arrangement where Hankins made Earnie refund Bradley his money. (R.

33:27-36.)

Jason Clements testified that he had been friends with Hankins

since the seventh grade and that Hankins made it through the ninth

grade in school. Clements testified that he and Hankins had some

classes together in school, including shop class, and Clements

described a photograph in which Hankins was teaching the class how

to weld. Clements further testified that Hankins’s father would

curse at him and call him names, such as “worthless piece of shit”;

that Hankins was teased a lot because his hands are stuck in a

hunched position and he has some other defects that are not

visible, and that they became friends because they were both

heavyset and were not popular or accepted. (R. 33:53-63.) Krista

Clements testified that, in December of 1997, Hankins towed her car

after an accident and, by being calm and non-aggressive, was able

to calm down another man at the scene who was irate and screaming

because his car had also gone off the road. She also testified

that Hankins visited her family’s home regularly. (R. 33:71-6.)

Karen Clements testified that she is the mother of both Krista and

Jason, that she knows Hankins because of his friendship with Jason,

and that he had visited her home many times. She further testified

 

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that when she first met Hankins he was very polite and reserved,

and that he seemed guarded, as he never discussed his family with

her. She believed that Hankins did not know what adults he could

trust, and she felt that he needed to be liked. (R. 33:79-82.)

Two corrections officers and a lieutenant with the Tarrant

County Sheriff’s Department all testified for the defense. They

testified that Hankins had followed all of the rules of the jail

the several months he had been housed there, that they had

experienced no disciplinary problems with him, and that no

disciplinary file had been created for Hankins because there were

no written disciplinary actions regarding his behavior. (R. 33:86-

96.) Finally, Dr. Walter Quijano testified that, as a former

employee of the Texas Department of Criminal Justice (TDCJ), he was

familiar with the system for classifying inmates. In addition to

showing a videotape to the jury of administrative segregation

housing available in TDCJ, Dr. Quijano testified about the strong

security measures in place in an administrative segregation unit,

should an inmate be placed there. (R. 33:102-121.) Quijano also

testified that those under a life sentence for capital murder, even

when housed in the general population, have fewer privileges and

freedom, as they are placed in the most restrictive classification.

(R. 33:124-133.)

Prior to presenting their case at the punishment phase of the

trial, defense counsel also questioned Hankins outside of the

 

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presence of the jury. Hankins testified that, when given the

choice by his attorneys, he had decided not to have his two former

stepmothers, June and Pam, subpoenaed to testify because they had

both indicated an unwillingness to testify on his behalf. (R. 32:2-

4.) Trial counsel later put on the record, through Hankins’s

taking the stand during a break in testimony, that Hankins had been

examined by psychiatrist Dr. Barry Mills, that there were some

positive findings and some very bad findings as a result of the

examination, and that Hankins had been diagnosed with one specific

psychiatric disorder. Hankins agreed with counsel that he did not

want to call Mills as a witness because the cross-examination by

the State would be very damaging. (R. 33:69-70.)

3. Mitigation Evidence NOT Presented at Trial

Hankins alleges that his trial counsel failed to present

certain mitigating evidence at trial, either that was known to

counsel or should have been developed by counsel. This evidence,

included in a report authored by psychologist Dr. Kelly Goodness;

as well as in affidavits from Hankins’s mother, Virginia Lowe, and

his half-sister, Peggy Sue Griever; and submitted to the state

habeas court indicates that: 1) Hankins’s mother abused alcohol and

drugs while she was pregnant with Hankins; 2) Earnie Hankins

punched and kicked Hankins’s mother in the stomach when he learned

she was pregnant; 3) Hankins’s mother was shot in the head by

Hankins’s uncle at the encouragement of Hankins’s father; 4)

 

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Hankins’s physical deformities, in addition to deformed hands,

included a cleft palate and a club foot, for which he underwent

numerous surgeries and speech therapy and because of which he had

to repeat kindergarten, was unable to participate in sports, and

was teased; 5) Hankins was exposed to an extended family that drank

heavily, used drugs, and was prone to violence; 6) Earnie Hankins

hid Hankins from his mother after their divorce, threatened to kill

her if she tried to get possession of Hankins and, in the opinion

of other family members, only wanted custody of Hankins in order to

prevent Virginia from having him; 7)Earnie Hankins had sex with his

own sister and his sister-in-law, and had children with each;

8)Earnie Hankins began affairs with each of Hankins’s step-mothers

before he was divorced from his current wife; 8) Hankins was raised

in significant poverty, had little contact with his extended family

after his father brought him to Texas, and attended six different

elementary schools; and 9) Hankins’s step-mother Pamela Mahaffey

provided him with alcohol, drugs, and sex when he was fifteen years

old, and later began having sex with Hankins herself, resulting in

Earnie’s throwing Hankins out of the house when he learned of this;

and 10) Hankins continued to have a history of substance abuse,

including alcohol, methamphetamines, and marijuana, but had no

meaningful exposure to mental-health providers. (Petition at 21-6.)

According to the report generated by Dr. Goodness, Virginia

Lowe denied drinking or doing drugs while pregnant with Hankins,

 

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and Hankins was the source of this information. It also appears

from this report that Hankins was the source of information about

his life in Texas, including his relationships with his stepmothers, as well as information about his substance abuse. Most of

the remaining information appears to have been gleaned from

interviews with Hankins’s mother and half-sister, Peggy.

Hankins also contends that his trial counsel should have had

him examined by a forensic psychologist and have presented these

findings at trial. In her report, Dr. Goodness outlines the tests

she performed on Hankins. (SHTr.:73-75.) On intellectual

functioning tests, Hankins scored in the high-average range of

intellectual functioning, although his mathematic achievement was

on the sixth grade level, and he exhibited no major

neuropsychological problems. (SHTr.:76-77.) Dr. Goodness diagnosed

Hankins as having early-onset depression, alcohol and polysubstance

abuse which was in remission because he was in prison, a

mathematics disorder, and as having an antisocial personality

disorder with narcissistic and schizotypal features. (SHTr.:79-81.)

4. Analysis

At the state habeas level, defense trial counsel Robert Ford

and Tim Moore submitted an affidavit explaining their strategy with

regards to mitigation evidence. In this affidavit, counsel

explained that psychiatrist Dr. Barry Mills interviewed Hankins and

subsequently recommended to counsel that Hankins not be

 

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psychologically tested because Mills believed that the results

would be negative. Mills told counsel that, in his opinion,

Hankins is a psychopath and an extremely dangerous person, as he

had told Mills that he planned to kill a Tarrant County jail guard.

The only possible mitigation defense that Mills proposed was one

based on Mills’s belief that Hankins appeared to have a disorder

involving a desire to have sex with the dead. However, when this

topic was broached with Hankins, he refused to consider this

defense, and it was therefore not pursued. (SHTr.:126-27.)

Trial counsel also explained in their affidavit that they had

planned to call Hankins’s former step-mothers, Pamela Mahaffey and

June Gartrell, but they declined to testify and Hankins refused

counsel’s offer to subpoena them. Pamela decided not to testify

after Hankins’s journal, in which he stated that he was “fucking”

her when she was still married to his father, was read to the jury.

June refused to testify, stating to counsel that, if called, she

would describe Earnie Hankins as a good father, in stark contrast

to what she had previously told counsel. (SHTr.:126.) Finally, in

this affidavit, trial counsel stated that, other than Hankins’s

half-sister, they or their investigator personally met with every

person Dr. Goodness spoke to and spoke to most of the people she

attempted unsuccessfully to contact. Counsel also stated in their

affidavit that Dr. Goodness’s report was based primarily on

evidence contained in their trial files. (SHTr.:126-27.)

 

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In deciding these three grounds for relief, the state habeas

court first concluded that counsel’s investigation into mitigating

evidence was a reasonable one, that it was sound trial strategy not

to subpoena Ms. Gartell or Ms. Mahaffey, and that it was sound

strategy not to have a psychologist examine Hankins and testify

regarding this examination. The state habeas court then concluded

that Hankins received adequate representation at trial and that

there is no reasonable probability that, but for counsel’s

performance, the result of the trial would have been different.

(SHTr.:231-32.) These conclusions are not an unreasonable

application of the Strickland standard.

First, while some evidence regarding Hankins’s upbringing was

not introduced at trial, comparable evidence was presented. In

particular, Hankins’s mother testified that she abused alcohol when

Hankins was young, that Hankins’s father hit and kicked her a lot,

that Hankins’s father threatened to kill her if she went to the

police when he hit her and threatened to kill her if she fought for

custody of Hankins, that his father hid Hankins from her and

prevented their meeting, and that she had no contact with Hankins

after 1982. (R. 33:9-10, 11-3.) Through the admission into

evidence of the notes Hankins made in his spiral notebook, there

was evidence presented that Hankins was raised in poverty, that his

sister and mother left when he was six years old, that he had

sexual relationships with his step-mothers, and that he abused

 

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drugs and alcohol. (R. 32:194-96.) Jason Clements testified that

Earnie kicked Hankins out of the house when he was in high school,

that Hankins had physical deformities, and that Hankins was teased

a lot because of his appearance. (R. 33:55-6, 59, 63). And, Jason

Bradley testified that Earnie would speak in an ugly and insulting

way to Hankins, would call him names and threaten violence, and he

once witnessed Earnie throw a hammer at Hankins. (R. 33:31-2, 49).

Thus, while evidence of Hankins’s corrective surgeries, evidence

that his mother was shot by his uncle, and evidence that his father

also engaged in incest with his own sister was not admitted into

evidence, given that similar evidence was admitted, Hankins has not

shown that his trial counsel were ineffective for failing to

present redundancies.

Second, some of the evidence Hankins argues should have been

presented at trial, such as the circumstances in which he lived

after he and his father moved to Texas, the extent of his substance

abuse, and further information about his relationships with his

former step-mothers, could only have been introduced if Hankins

himself testified or if counsel subpoenaed Hankins’s former stepmothers, something Hankins did not want to do. The Fifth Circuit

has recognized that “[g]reat deference must be given to choices

[that] are made under the explicit direction of the client.” United

States v. Masat, 896 F.3d 88, 92 (5th Cir. 1990), citing Mulligan

 

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v. Kemp, 771 F.2d 1436, 1441 (11th Cir. 1985), cert. denied, 480

U.S. 911 (1987). In Strickland, the Supreme Court stated that:

[t]he reasonableness of counsel’s actions may

be determined or substantially influenced by

the defendant’s own statements or actions.

Counsel’s actions are usually based, quite

properly, on informed strategic choices made

by the defendant and on information supplied

by the defendant.

466 U.S. at 691. It was not ineffective assistance of counsel to

follow Hankins’s wishes regarding his former step-mothers, and it

was not ineffective assistance of counsel to decline to call

Hankins as a witness, given that such a move would have opened up

cross-examination by the State regarding the voluminous evidence of

Hankins’s prior bad acts. 

Third, counsel’s decision not to call the psychiatrist who

examined Hankins as a witness and not to have Hankins tested by a

forensic psychologist were decisions based on trial tactics and

strategy. If counsel has made an adequate investigation, any

conscious and informed decision made based on trial tactics and

strategy cannot be the basis for a claim of having received

ineffective assistance of counsel unless the decision was so poorly

chosen that it “permeates the entire trial with obvious

unfairness.” United States v. Cotton, 343 F.3d 746, 753(5th Cir.

2003), cert. denied, 540 U.S. 11865 (2004), quoting United States

v. Jones, 287 F.3d 325, 331 (5th Cir. 2002); Smith v. Cockrell, 311

F.3d 661, 668 (5th Cir. 2002). 

 

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The Fifth Circuit has held that neither a capital murder

defendant’s Fifth nor his Sixth Amendment rights are violated when

he is examined by a state psychiatrist and testimony based on this

interview is presented at trial where the defendant himself first

introduces psychiatric evidence on the issue of future

dangerousness or insanity, the State presents psychiatric testimony

for rebuttal purposes only, and his trial counsel is given advance

notice of the scope of the state’s psychiatric examination.

Williams v. Lynaugh, 809 F.2d 1063, 1067-69 (5th Cir. 1987); Vardas

v. Estelle, 715 F.2d 206, 208-11 (5th Cir. 1983). Under this case

law, it is clear that, had trial counsel presented evidence from

either a psychologist or psychiatrist based on an examination of

Hankins, they ran the risk of the State’s being allowed to examine

Hankins and offer evidence based on this examination in rebuttal.

Indeed, on February 27, 2002, the State filed a motion to have

Hankins examined by its own mental-health expert should the defense

choose to have a mental-health expert testify. (Transcript, vol. 1,

p. 32.) Preventing such a situation was sound trial strategy.

Moreover, the psychiatrist whom defense counsel retained

believed that Hankins is a psychopath. This opinion is supported

by the diagnosis by Dr. Goodness that Hankins has an antisocial

personality disorder. Rather than present such a negative

diagnosis to the jury, opening the door to cross-examination of the

expert, and possibly resulting in similar or worse evidence being

 

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offered in rebuttal by the State, trial counsel chose to present

mitigating evidence from Hankins’s family and friends and to

present evidence from Dr. Quijano that, if given a life sentence,

Hankins could be appropriately housed and contained in prison and

would therefore not be a future danger to society. Trial counsel

were not ineffective for making this strategic decision.

Finally, Hankins has failed to establish that he was

prejudiced by the failure of defense counsel to present the

evidence he highlights at the punishment phase of the trial because

he has failed to prove that there exists a reasonable probability

that, had such evidence been presented, he would not have received

the death penalty. The aggravating evidence adduced at trial

included Hankins’s murder of five people, two of them children and

one of them his mentally-challenged sister; the way in which they

were murdered; the callousness with which Hankins hid his crimes

and lied to others about the whereabouts of his victims; and that

Hankins engaged in sexual activity with and around the dead bodies.

With that evidence in mind the Court cannot conclude there is a

reasonable probability that further evidence of Hankins’s abusive

upbringing and testimony from a psychologist that he was a

substance abuser and has an anti-social personality disorder would

have resulted in a life sentence. These grounds are without merit,

and they are denied.

 

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B. Mitigation Evidence–Jury Instruction Claims

In his fifth and sixth grounds for relief, Hankins asserts

that the trial court violated his rights under the Eighth and

Fourteenth Amendments by giving a particular jury instruction at

the punishment phase, and in his fourth ground for relief, Hankins

argues that his trial counsel provided ineffective assistance of

counsel by failing to object to this jury instruction. The State

responds that these grounds are without merit because the jury

instruction was not objectionable, because an objection to this

jury charge would not have been sustained by the trial court, and

because no prejudice has been shown as a result of counsel’s

failure to object to the charge.

At the punishment phase of the trial, the following

instruction was given to the jury:

In deliberating on Special Issue No. 1

and Special Issue No. 2, the jury shall

consider all evidence admitted at the guilt or

innocence stage and the punishment stage,

including evidence of the defendant’s

background or character or circumstances of

the offense that militates for or mitigates

against the imposition of the death penalty.

(Tr. IV:674.) The relevant statute provides that such a charge

shall be given to the jury, but with respect to the first special

issue, concerning a defendant’s future dangerousness, not the

second special issue, concerning whether mitigating evidence exists

such that a defendant should be given a life, rather than a death,

sentence. See TEX. CODE CRIM PROC. Art. 37.071 sec. 2(b) &

 

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(d)(1)(Vernon 1991). Defense counsel did not object to this

charge. Hankins contends that this jury instruction was

unconstitutional because it informed the jurors that, in

considering the mitigation special issue, they could consider

evidence that militated for the death penalty in addition to

mitigating evidence.

At the state level, the state habeas court, in considering

these claims on their merits, concluded that the challenged

instruction did not violate Hankins’s due process rights or his

right to individualized sentencing because the Constitution

requires that a capital jury be given a vehicle to consider

relevant mitigating evidence, but does not require that jurors be

given an opportunity to consider mitigating evidence apart from all

other evidence adduced at trial. (SHTr.:243-45.) The state habeas

court also concluded that trial counsel was not deficient in

failing to object to this charge and that, given the amount and

type of evidence presented at trial, Hankins had failed to

establish a reasonable probability that, had an objection been made

and sustained, the result of the trial would have been different.

(SHTr.:246-47.)

These conclusions are neither an unreasonable application of

federal law nor contrary to federal law. As the state habeas court

noted, relevant Supreme Court case law has stated that the

Constitution does not require states to adopt a specific method for

 

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jurors to consider mitigating and aggravating factors. See Boyde v.

California, 494 U.S. 370, 377 (1990); Franklin v. Lynaugh, 487 U.S.

164, 179 (1988); Zant v. Stephens, 462 U.S. 862, 890 (1982).

Instead, the Constitution requires that the jury be provided with

an opportunity to give effect to mitigating evidence introduced at

trial. See Penry v. Johnson, 532 U.S. 782, 797 (2001). In the

instant case, the jury was given an opportunity to give effect to

mitigating evidence presented at trial, both with the mitigation

special issue and the future dangerousness special issue. In

particular, the jury could give effect to evidence presented

regarding Hankins’s troubled childhood through the mitigation

special issue and could give effect to evidence presented regarding

the safety measures taken by the Texas prison system through the

future dangerousness issue. The fact that the challenged jury

instruction was not the one provided for in the relevant Texas

statute does not render it unconstitutional.

Moreover, Hankins has not established prejudice due to his

trial counsel’s failure to object to the charge. Even had counsel

done so, and the charge been corrected, there is no reasonable

probability that Hankins would not have been sentenced to death.

As this Court has noted earlier, both the State and the defense

presented substantial evidence both in support of and in opposition

to the imposition of the death penalty. Given the large amount of

evidence that militated for the death penalty, including evidence

 

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that Hankins murdered five people, severely assaulted another,

abused and impregnated his mentally disabled half-sister, actively

concealed two of the murders for almost a year, and abused drugs,

alcohol, and pornographic material, Hankins has not shown that, had

the jury been instructed to consider only mitigating evidence in

deciding the mitigation special issue, there is a reasonable

probability that the jury would have answered that question in the

affirmative, resulting in a life sentence. Hankins’s fourth,

fifth, and sixth grounds for relief are without merit and are

denied.

C. Claims Regarding Testimony about and Photographs of the

Deceased

In his seventh ground for relief, Hankins asserts that his

trial counsel were ineffective for failing to object to the

admission of testimony from the medical examiner, given during both

the guilt and the punishment phases of the trial, regarding the

level of decomposition found with each of the murder victims. In

his eighth ground for relief, Hankins argues that the trial court

violated his due-process rights when it failed to sustain

objections lodged by defense counsel to certain photographs of the

victims admitted into evidence on the basis that they were unduly

prejudicial.

1. Applicable Facts

At the guilt phase of the trial, medical examiner Dr. Mark

Krouse, during his description of the bodies of Kevin and Ashley,

 

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testified about the level of decomposition found with each body.

He further testified that the level of decomposition found was

consistent with both victims’ having been dead three or four days.

(R. 28:56-9, 66-8.) At the punishment phase of the trial, Dr.

Krouse testified about the level of decomposition found with the

bodies of Tammy Hankins, Earnie Hankins, and Pearl Sevenstar,

including testimony that Earnie Hankins’s body was mummified when

discovered by authorities and Pearl Sevenstar’s body had become

liquified inside of the closed container. (R. 32:14-34.) Defense

counsel did not object to any of this testimony.

Defense counsel did object, at both the guilt and the

punishment phases of the trial, to the admission of several

photographs of the deceased victims on the basis that their

relevance was substantially outweighed by their undue prejudice.

These objections were overruled. (R. 26:113-14; R. 28:56-7, 70-1;

R. 32:26-7, 32.)

2. Applicable Law

The Texas Court of Criminal Appeals has held that, generally,

relevant verbal testimony and photographs of the crime scene are

admissible if they aid the jury in determining things including the

manner and means of the death of the victim, the force used, and

the length of time the victim has been dead. Williams v. State, 958

S.W.2d 186, 195 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d

259, 271-72 n. 18 (Tex. Crim. App. 1991). Under Texas state law,

 

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there is a presumption of admissibility of relevant evidence and

that relevant evidence is more probative than prejudicial.

Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990).

A trial court’s decision that the probative value of evidence

outweighs its potential prejudicial effect may only be reversed on

appeal upon a showing of an abuse of discretion. Santellan v.

State, 939 S.W.2d 155, 171-72 (Tex. Crim. App. 1997). 

In federal habeas proceedings the court does not sit in review

of a state court’s interpretation of its own law. Creel v. Johnson,

162 F.3d 385, 395 (5th Cir. 1998), cert. denied, 526 U.S. 1148

(1999); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995).

Moreover, in federal habeas actions, a state court’s evidentiary

rulings will mandate relief only when an error is so extreme that

it constitutes a denial of fundamental fairness. Little v.

Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 526 U.S.

1118 (1999); Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir.

1986). And, the fact that evidence that is irrelevant may have

been admitted at trial does not rise to a federal constitutional

error. Romano v. Oklahoma, 512 U.S. 1, 10-12 (1994). Federal

habeas review of trial error is limited to whether the error so

infected the trial with unfairness as to deny due process. Donnelly

v. DeChristofero, 416 U.S. 637, 642 (1974). And, where there is

constitutional error at trial, at the federal habeas level, the

appropriate harmless error test is the one set forth in Brecht v.

 

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Abrahamson, 507 U.S. 619 (1993). Under this test, error is deemed

harmless if it did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” Id. at 637.

3. Analysis

At the state level, the state habeas court, citing numerous

state cases, concluded that the admission of the photographs of the

deceased victims did not violate Hankins’s due-process rights

because it was evidence that was relevant to his consciousness of

guilt, his overall mental state, the manner and means of their

deaths, and their conditions upon discovery. (SHTr.:253.) The

state habeas court further concluded that Hankins had failed to

establish a reasonable probability that he would not have been

sentenced to death had trial counsel objected to the medical

examiner’s testimony regarding the level of decomposition found

with the victims’ bodies, given the evidence that Hankins killed

five members of his family, attempted to conceal the bodies, abused

and fathered a child with his mentally challenged half-sister, and

assaulted another woman with a metal baton. (SHTr.:252-54.)

These conclusions are not contrary to federal law. With

regard to the admission of the photographs of the victims, as noted

earlier, a federal habeas court does not sit in judgment of a state

court’s interpretation of state law. Moreover, Hankins has failed

to establish that the trial court abused his discretion in

admitting the photographs of the victims, much less that error was

 

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committed that was so great as to constitute a denial of

fundamental fairness or a substantial and injurious effect on the

jury’s verdict. See Jones v. Butler, 864 F.2d at 368 (holding that

the inflammatory nature of photographs of a murder victim showing

her legs spread apart and blood trickling from her genitals did not

exceed their evidentiary worth as to violate due process where the

photographs showed the defendant’s intent and showed that the

victim was raped).

And, with respect to Hankins’s ineffective-assistance-ofcounsel claim, the state habeas court’s application of the

Strickland standard is not an unreasonable one. While the medical

examiner’s description of the decomposition present in the bodies

of the victims was precise and graphic, it was not more graphic

than the actual facts of this case, including the fact that Hankins

purposely concealed the bodies of his father and half-sister for

nearly a year and then continued socializing with his girlfriend

after he shot his wife and her two children to death and left their

bodies in their trailer. Given the nature of the evidence

presented to the jury both in the guilt and punishment phases of

the trial, Hankins has failed to establish a reasonable probability

that, had counsel successfully objected to the medical examiner’s

testimony at either phase of the trial, Hankins would not have been

convicted or sentenced to death. Hankins’s seventh and eighth

grounds for relief are without merit, and they are denied.

 

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D. Mitigation-Special-Issue Claim

In his tenth ground for relief, Hankins contends that the

mitigation special issue that the jury was required to answer at

the punishment phase of his trial is unconstitutional because it

does not place a burden of proof on the State. Specifically,

Hankins contends that the State should have been required to

establish beyond a reasonable doubt the absence of mitigating

factors sufficient to warrant a life, rather than a death,

sentence.

At trial, the jury was required to answer the following

mitigation special issue:

Whether, 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, there is a sufficient

mitigating circumstance or circumstances to

warrant that a sentence of life imprisonment

rather than a death sentence be imposed.

(Tr. IV:675). The jury answered this special issue “no.” Id.

Hankins asserts that his Sixth Amendment right to a jury trial

requires that the jury decide this special issue using the “beyond

a reasonable doubt” standard. In particular, Hankins cites the

Supreme Court cases Ring v. Arizona, 536 U.S. 548 (2002), and

Apprendi v. New Jersey, 530 U.S. 466 (2000), for support for his

assertion that federal law requires that a Texas capital jury be

required to find the absence of factors that mitigate against the

 

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death penalty beyond a reasonable doubt before a defendant may be

sentenced to death.

In addressing this issue at the state level, the Court of

Criminal Appeals on direct appeal, citing several previous cases

from that court which held that the absence of a burden of proof in

the mitigation special issue violated neither Apprendi nor Ring,

overruled this point of error. Hankins, 132 S.W.2d at 386; see also

Allen v. State, 108 S.W.3d 281, 285 (Tex. Crim. App. 2003); Rayford

v. State, 125 S.W.3d 521, 529-30 (Tex. Crim. App. 2004). This is

not an unreasonable application of federal law. 

Hankins argues that the mitigating special issue acts as an

aggravating factor because the absence of mitigating factors

aggravates his sentence from life to death, and therefore a jury

must find the absence of such evidence beyond a reasonable doubt.

But, contrary to Hankins’s argument, the Fifth Circuit has

specifically held that there is no constitutional requirement that

Texas’s mitigation issue be assigned a burden of proof. Rowell v.

Dretke, 398 F.3d 370, 378 (5th Cir. 2003). And, recently, in

addressing an identical argument based on the holdings in Ring and

Apprendi, the Fifth Circuit specifically held that a petitioner’s

Sixth Amendment rights are not violated when state law does not

require the prosecution to prove the absence of mitigating factors

beyond a reasonable doubt. See Grandos v. Quarterman, 455 F.3d 529,

536-37 (5th Cir. 2006), cert. filed, No. 06-6932 (Sept. 28, 2006).

 

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Accordingly, the Constitution does not require that the jury find

beyond a reasonable doubt the absence of mitigating factors

warranting a life sentence before a defendant may be sentenced to

death. Hankins’s tenth ground for relief is without merit, and he

is not entitled to relief on this basis. This claim is denied.

E. Parole Claim

In his eleventh claim for relief, Hankins asserts that the

trial court violated his rights under the Sixth and Eighth

Amendments when it declined to submit a requested jury instruction

to the jury at the punishment phase of the trial regarding the

requirements for granting parole in Texas to a capital life

offender. In response, the State contends that this claim is

without merit because it is foreclosed by Fifth Circuit precedent.

At the punishment phase of the trial, the jury received the

following jury instruction from the trial court:

Under the law applicable in this case, if the

defendant is sentenced to imprisonment in the

institutional division of the Texas Department of

Criminal Justice for life, the defendant will become

eligible for release on parole, but not until the actual

time served by the defendant equals 40 years, without

consideration of any good conduct time. It cannot

accurately be predicted how the parole laws might be

applied to this defendant if the defendant is sentenced

to a term of imprisonment for life because the

application of those laws will depend on decisions made

by prison and parole authorities, but eligibility for

parole does not guarantee that parole will be granted.

(Tr. IV:676.) This instruction tracks the statutory language in

Article 37.071 of the Texas Code of Criminal Procedure. See Article

 

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37.071 § 2(e)(2)(B)(Vernon 1999). Trial counsel also requested

that the trial court submit the following instruction to the jury:

To release on parole an inmate who is convicted of

a capital felony who must serve 40 calendar years before

becoming eligible for release on parole, all members of

the board must vote on the release on parole of the

inmate and at least two-thirds of the members must vote

in favor of the release on parole. A member of the board

may not vote on the release unless the member first

receives a copy of a written report from the department

on the probability that the inmate would commit an

offense after being released on parole.

(R. 33:159-60.) The trial court declined this request and instead,

pursuant to the statute, instructed the jury that:

During your deliberations you will not consider or

discuss any possible action of the Board of Pardons and

Paroles or the Governor.

(R. 33:160; Tr. IV:676.)

Hankins contends that the trial court violated his Sixth and

Eighth Amendment rights when it declined to add the requested jury

instruction. In addressing this issue on direct appeal, the Court

of Criminal Appeals held that Hankins’s constitutional rights were

not violated by this refusal because, other than the statutory jury

instruction that instructs the jury about a capital murder

defendant’s parole eligibility date if given a life sentence,

parole is not otherwise a proper issue for jury consideration in

capital cases. Hankins, 132 S.W.3d at 386-87. This decision is not

contrary to well-established federal law.

As support for this claim, Hankins relies on the Supreme Court

case Simmons v. South Carolina, 512 U.S. 154 (1994). Simmons is a

 

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death-penalty case in which a plurality of the Supreme Court held

that, where a defendant’s future dangerousness is an issue in a

capital case, and the sentencing options are death or life without

the possibility of parole, due process allows the defendant to

inform the sentencing jury about his parole ineligibility. Id. at

156. 

Hankins argues that Simmons is applicable to his case because,

had he received a life sentence, he would not have been eligible

for parole for forty years, a time period Hankins asserts is

comparable to a life sentence without parole. Contrary to

Hankins’s argument, however, the plurality opinion in Simmons

specifically limited its holding to cases where the sentencing

option is between death and life without parole. Justice Blackmun,

writing for the Court, went further and stated that “[i]n a State

in which parole is available, how the jury’s knowledge of parole

availability will affect the decision whether or not to impose the

death penalty is speculative, and we will not lightly second-guess

a decision whether or not to inform a jury of information regarding

parole.” Id. at 168. Moreover, since the Supreme Court’s decision

in Simmons, the Fifth Circuit has specifically held that Simmons

does not apply in Texas cases where parole is a possibility, but

only in cases where life-without-parole is a sentencing option.

Miller v. Johnson, 200 F.3d 274 (5th Cir. 2000); Allridge v. Scott,

41 F.3d 213, 222 (5th Cir. 1994).

 

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As these precedents make clear, federal courts have determined

that, where a capital offender is eligible for parole, the courts

will not impose a requirement to inform the jury about parole

eligibility. Since 1999, Texas has chosen to inform capital juries

about the defendant’s parole eligibility. As federal case law does

not require making even this information available to jurors, this

case law certainly has not established that information about how

a parole board votes to parole an individual is constitutionally

required. Hankins’s eleventh ground for relief is without merit

and is denied.

F. Application of the Death-Penalty Claim

In his twelfth claim for relief, Hankins asserts that the

trial court violated his Sixth Amendment right to offer the

testimony of witnesses and compel their presence when the trial

court quashed subpoenas issued by Hankins to compel the testimony

of several elected district attorneys at a pre-trial hearing.

Hankins wished to present this testimony in order to develop

evidence regarding how candidates were selected for death-penalty

prosecutions in order to support a Fourteenth Amendment claim that

the selection of death-penalty candidates in Texas violated

Hankins’s due-process rights because the capital-murder statute was

applied in different ways throughout the counties of the state of

Texas. (Tr. I:88-90; R. 2:3-4.) After these subpoenas were quashed

by the trial court, the only evidence presented at the hearing by

 

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41

defense was the testimony of a private attorney concerning the

procedure used in the federal system for selecting death-penalty

candidates. (R. 2:7-16.) The trial court then denied defense

counsel’s motion to preclude the death penalty as a sentencing

option. (Tr. I:88-91; R. 2:20.)

On direct appeal, the Court of Criminal Appeals held that

Hankins’s Sixth Amendment rights were not violated because the

trial court quashed his subpoenas of district attorneys from five

different counties. In particular, that Court held that, because

it had previously determined that the State has the discretion to

seek the death penalty and that this discretion does not violate

the Fourteenth Amendment, Hankins was not entitled to subpoena the

witnesses and question them regarding the exercise of a discretion

previously found to be constitutional. Hankins, 132 S.W.3d at 387-

88. The conclusion is not contrary to clearly established federal

law.

As support for this claim, Hankins cites Washington v. Texas,

388 U.S. 14 (1967), and Taylor v. Illinois, 484 U.S. 400 (1988).

These cases do not support Hankins’s ground for relief. In

Washington, the Supreme Court ruled that a Texas statute barring

co-defendants from testifying for a defendant violated Washington’s

Sixth Amendment right to compel testimony on his behalf. Id, 388

U.S. at 23. In Taylor, the Supreme Court held that a defendant’s

Sixth Amendment right to compel testimony may be violated by a

 

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discovery sanction that excludes the testimony of a material

defense witness. Id. at 407-09.

In the instant case, Hankins wished to compel the testimony of

various elected district attorneys in order to develop a claim that

the Texas death penalty statute is unconstitutional because, once

a person is eligible for the death penalty, it is left to the local

district attorney’s discretion whether or not to seek the death

penalty. (Tr. I:88-91.) But, the Supreme Court has recognized

that, in general, the decision whether or not to prosecute and what

to charge rests entirely in a prosecutor’s discretion.

Bordenkircher v. Hayes, 434 U.S. 357, 264 (1978). While the

decision whether to prosecute cannot be based on an “unjustifiable

standard” such as race, religion, or other arbitrary

classification, Oyler v. Boles, 368 U.S. 448, 456 (1962), Hankins

has never asserted that the Tarrant County prosecutor sought the

death penalty against him because he is a part of a certain class

of citizens. Rather, Hankins’s argument at trial appeared to be

that, because another district attorney might not have sought the

death penalty against him, the Texas death penalty statute is

unconstitutional. Such prosecutorial discretion does not violate

the federal constitution. Accordingly, Hankins’s Sixth Amendment

right to compulsory process was not violated when the trial court

quashed the subpoenas of the various district attorneys. Hankins’s

twelfth ground for relief is denied. 

 

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2 In response, the State does not assert that this claim is not

cognizable in a federal habeas petition. Recently, in Hill v. McDonough,

126 S.Ct. 2096 (2006), the Supreme Court addressed the issue of whether

a claim that the method of execution would constitute cruel and unusual

punishment could be raised by a condemned inmate pursuant to a civil

rights claim under 42 U.S.C. § 1983. In Hill, the Supreme Court held

that an inmate may proceed under § 1983 and is not required to file such

a claim in a habeas action. Id. at 2099, 2104. Because the Supreme Court

did not hold that an inmate must bring such a claim under § 1983 rather

than in a habeas action pursuant to 28 U.S.C. § 2254, such as the instant

case, this Court will consider the merits of this claim. 

43

G. Method-of-Execution Claim

In his ninth ground for relief, Hankins argues that the method

of execution used by the state of Texas constitutes cruel and

unusual punishment because it involves the use of a chemical

substance, pancuronium bromide, that has been banned for use in

euthanizing animals. Specifically, Hankins contends that the use

of this drug as the second drug given to an inmate during an

execution creates an impermissible risk that an inmate will be

paralyzed, but will not be unconscious, before he is given the

final, painful drug.2

1. State Proceedings

At the state habeas level, Hankins submitted three affidavits

as support for this claim. The first affidavit is from Dr. Mark

Heath, an assistant professor of clinical anesthesia at Columbia

University. In his affidavit, Dr. Heath asserts that pancuronium

bromide, the second of three drugs administered during the

execution of a sentence of death, is a neuromuscular blocking

agent, which renders the muscles unable to contract, but does not

 

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affect the brain or the nerves, meaning that a person would be

unable to move his muscles were he experiencing pain and suffering.

Dr. Heath further avers in his affidavit that there are significant

risks that a person will not be rendered unconscious by sodium

thiopental, the first drug administered in an execution. He states

that these dangers include: that the sodium thiopental will not

properly anesthetize the inmate because it is a short-acting

barbiturate; that the sodium thiopental might not work because it

is from a bad batch of drugs, has been mislabeled by the

manufacturer, has not been properly mixed, or has been stored

beyond its shelf life; or that there might be problems

administering the IV, such as missing a vein, having an extravenous

injection, or solution washing back into the IV bag. Finally, Dr.

Heath further states that pancuronium bromide is unnecessary in

lethal injections and serves no legitimate purpose because it could

be eliminated without decreasing the efficacy or the humaneness of

the procedure. (SHTr.:106-07.)

A second affidavit submitted by Hankins at the state court

level is from Carol Weiher, who states in her affidavit that she

underwent an eye operation in which full general anesthesia was

administered but the “brain scrambling drugs” were not effective,

causing her to be unable to move, but conscious and aware of the

severe pain of the surgery. Her affidavit does not, however, state

what drugs she was administered or their dosage levels.

 

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(SHTr.:110.) The final affidavit is from Dr. Dennis Geiser, who

identifies himself as a professor of veterinarian medicine at the

University of Tennessee. In his affidavit, Dr. Geiser avers that

the use of pancuronium bromide for animal euthanasia is prohibited

by the ethical standards of the American Veterinary Medical

Association (AVMA) and outlawed in a number of states because it

does not act as an anesthetic, but instead paralyzes muscles, while

still allowing for the perception of pain and discomfort. He

further states in his affidavit that sodium thiopental is not a

proper anesthetic for lethal injection because one dose is a shortacting barbiturate. Instead, according to AVMA standards, a

barbiturate such as sodium pentobarbital is preferred because it is

potent and long acting. (SHTr.:112.)

In response, at the state habeas level, the State submitted a

copy of a page from the TDCJ website which outlines that the three

drugs used in lethal injections are: 1)sodium thiopental given in

a lethal dose that sedates the person; 2) pancuronium bromide, a

muscle relaxant that collapses the diaphragm and lungs; and 3)

potassium chloride, which stops the heart. (SHTr.:212.) The State

also submitted an article written by State Senator Kyle Janek that

originally appeared in the Houston Chronicle. In this article,

Senator Janek states that he has been a licensed, practicing

anesthesiologist for twenty years. He further states that, while

it is true that, were an inmate not sedated, receiving the third

 

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46

drug, potassium chloride, would be a painful experience, the State

of Texas administers ten times the normal dose of sodium thiopental

for a man, thus insuring that the inmate will be under anesthesia

when the second and third drugs are administered. Senator Janek

also states in this article that the AVMA guidelines preclude the

use of pancuronium bromide for euthanasia of animals when it is the

only drug administered and is therefore given to an animal that is

awake. (SHTr.:214-15.)

At the state level, the state habeas court first, based on the

information provided from the TDCJ, found that the three drugs used

in an execution are sodium thiopental, pancurium bromide, and

potassium chloride. The state court further found that sodium

thiopental is administered to render the inmate unconscious and

insensible to pain, pancurium bromide is administered to relax the

chest wall muscles and diaphragm, and potassium chloride is

administered in a dose designed to stop the heart and hasten death.

(SHTr.:255.) The state court also found, based on the article

authored by Kyle Janek, that a condemned inmate receives three

grams of sodium thiopental, which is ten times the 300 milligram

normal dose for a 220-pound man. The court further found that the

guidelines of the AVMA prohibiting the use of pancuronium bromide

only address circumstances where that is the only medication given

and do not address situations where sodium thiopental is used as an

anesthetic. (SHTr.:255-56.) The state habeas court then concluded

 

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that the lethal-injection process used by Texas as its method of

execution does not violate Hankins’s constitutional right to be

free from cruel and unusual punishment. (SHTr.:257.)

2. Analysis

Hankins has not shown by clear and convincing evidence that

the factual findings made by the state court are incorrect.

Moreover, Hankins has not shown that the conclusion reached by the

state habeas court is contrary to clearly established law. See 28

U.S.C. § 2254(d)(1) & (e)(1). Accordingly, he is not entitled to

relief based on this claim.

Hankins argues that his Eighth Amendment right to be free from

cruel and unusual punishment would be violated by the Texas method

of execution because there is a substantial risk of “wanton and

unnecessary infliction of pain, torture or lingering death.”

(Petition at 66). See also Gregg v. Georgia, 428 U.S. 153, 173

(1976); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464

(1947). Hankins argues that this substantial risk exists because

sodium thiopental is a short-acting anesthetic which may wear off

in minutes and cause an inmate to awaken, because it has a short

shelf life once it is in liquid form, because it is sometimes

difficult to find an appropriate vein in an inmate, and because the

dose of sodium thiopental given does not differ based on an

inmate’s drug history, drug tolerance, or size. (Petition at 67-8.)

 

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The Fifth Circuit has not considered the merits of a claim

that the method of lethal injection constitutes cruel and unusual

punishment since Woolls v. McCotter, 798 F.2d 695 (5th Cir. 1986).

In that case, Woolls asserted that the Texas method of lethal

injection was unconstitutional due to the use of sodium thiopental

because, when administered by untrained personnel or in improper

dosages, the drug might cause conscious death by suffocation. The

Fifth Circuit concluded that Woolls had failed to make a

substantial showing of the denial of his right to be free from

cruel and unusual punishment because the affidavits he submitted

contained neither allegations nor evidence that anyone other than

trained medical staff administer lethal injections or that improper

dosages of sodium thiopental have been or will be administered. Id.

at 697-98.

More recently, the Ninth Circuit has addressed the particular

issues raised by Hankins. In Cooper v. Rimmer, 379 F.3d 1029,

1032-33 (9th Cir. 2004), the Ninth Circuit, in denying a stay of

execution, found that similar affidavits from Dr. Weinstein and Dr.

Heath fell short of showing that the inmate was subject to an

unnecessary risk of unconstitutional pain or suffering, given that

the State of California had submitted an affidavit from an

anesthesiologist stating that the five-gram dose of sodium

thiopental administered would result in 99.999999999999% of the

population being rendered unconscious within sixty seconds and that

 

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it would cause virtually all persons to stop breathing within a

minute, prior to the administration of the pancuronium bromide.

Again, in Beardslee v. Woodford, 395 F.3d 1064, 1073-76 (9th Cir.),

cert. denied, 543 U.S. 1096 (2005), the Ninth Circuit held that an

inmate had failed to show a likelihood that he would be conscious

during the administration of pancuronium bromide and potassium

chloride to experience pain. This holding came despite the AVMA’s

guidelines against using pancuronium bromide and the possibility

that he would receive an improper dosage of sodium thiopental,

given the undisputed evidence before the court that an

administration of five grams of sodium thiopental will produce

unconsciousness, and perhaps death, if properly administered.

Subsequently, in Morales v. Hickman, 438 F.3d 926, 929-30 (9th

Cir.), cert. denied, 126 S.Ct. 1314 (2006), the Ninth Circuit held

that the district court had not abused its discretion by permitting

the presence of an anesthesiologist at the execution to insure that

Morales was unconscious during the procedure, given that this

decision was based on a review of execution logs by the district

court, which revealed some doubt that California’s protocol was

being followed as intended.

In the instant case, while Hankins voices general concerns

that the sodium thiopental will not be administered correctly

during his execution, he does not dispute the state habeas court’s

factual finding that the amount of the drug he would receive would

 

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be ten times the normal therapeutic dose for a 220-pound man, much

less present clear and convincing evidence controverting this

finding. Moreover, as in Woolls v. McCotter, Hankins has failed to

present any evidence at the state or federal level that anyone

other than trained medical staff administer lethal injections or

that improper dosages of sodium thiopental have been or will be

administered. Thus, as in Cooper v. Rimmer, the concerns voiced in

the affidavits submitted by Hankins fail to show that he will be

subject to an unnecessary risk of unconstitutional pain or

suffering. The state habeas court’s decision denying this claim is

not contrary to federal law. This ground is without merit, and it

is denied.

H. Request for Evidentiary Hearing

Hankins also requests that this Court grant him an evidentiary

hearing with respect to grounds one through nine. (Petition at 20).

Hankins asserts that he is entitled to an evidentiary hearing in

federal court on these issues because he did not receive one during

the state habeas proceeding and because he did not fail to develop

his claims at the state level. See 28 U.S.C. § 2254(e)(2). 

Even if a petitioner does not fail to develop his factual

claims in state court, he is not necessarily entitled to a hearing

in federal court. Rather, as the Fifth Circuit has explained in

recent cases, in order to be entitled to an evidentiary hearing in

federal court, even where, as in the instant case, no evidentiary

 

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hearing was conducted by the state habeas court, a habeas

petitioner must show either a factual dispute which, if resolved in

his favor, would entitle him to relief or in the very least a

factual dispute that would require development in order to assess

the claim. Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000);

Robison v. Johnson, 151 F.3d 256, 268 (5th Cir. 1998).

In the case at hand, Hankins has not shown any factual dispute

that would require any further factual development in order to

assess the merits of the claim. This Court has accepted all of

Hankins’s non-record evidence in considering his claims and ruled

on these claims accordingly, assuming all of Hankins’s non-record

evidence to be accurate. Hankins is not entitled to a hearing, and

his request for an evidentiary hearing is denied.

It is further ORDERED that Petitioner's Petition for Writ of

Habeas Corpus be, and is hereby, DENIED.

It is further ORDERED that the clerk of the Court shall

transmit a copy of this order to Petitioner by certified mail,

return receipt requested.

SIGNED March 30, 2007.

 

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