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Brown v. Stephens

United States Court of Appeals, Fifth Circuit

August 8, 2014

ARTHUR BROWN, JR., Petitioner -- Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent -- Appellee

Petition for certiorari filed at, 11/06/2014

Appeal from the United States District Court for the Southern District of Texas.

For Arthur Brown, Jr., Petitioner - Appellant: Alexander Lee Calhoun, Austin, TX; Paul Edward Mansur, Denver City, TX.

For William Stephens, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee: Woodson Erich Dryden, Esq., Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX.

Before STEWART, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

OPINION

Page 455

E. GRADY JOLLY, Circuit Judge:

Texas death row inmate Arthur Brown, Jr., has exhausted all state and federal habeas appeals. He has, however, filed a Texas state petition for clemency and his execution has been stayed by the Texas courts. He moved the federal district court to allow funds to hire a mitigation specialist to assist him in his state clemency proceedings. Although Brown requested $7,500 in his motion, his mitigation specialist estimated the investigation would cost $20,000. The district court turned him down. He now appeals the district court's denial of his motion. We find no abuse of discretion in denying the funding and AFFIRM the order of the district court denying Brown's motion.

I.

Brown was convicted of capital murder for his role in the murders of four people. We described the crime in our previous opinion as follows:

Rachel Tovar and her husband, Jose, were drug dealers in Houston, Texas. They supplied marijuana and cocaine to other drug dealers, including Brown and his associates, who were from Tuscaloosa, Alabama. On June 19, 1992, Brown traveled from Tuscaloosa to Houston, accompanied by Marion Dudley, Antonio Dunson, and Maliek Travis. They arrived at the Houston residence of Brown's sister, Grace, early in the morning on June 20.
That evening, six people were bound and shot in the head at Rachel Tovar's residence in Houston. Four of them died: Jessica Quinones, the pregnant common-law wife of Rachel Tovar's son,

Page 456

Anthony; Jose Guadalupe Tovar, Rachel Tovar's husband; Audrey Brown, one of Rachel Tovar's neighbors; and Frank Farias, Rachel Tovar's son. Rachel Tovar and Alexander Camarillo, also known as Nicolas Cortez Anzures, survived and testified at Brown's trial. Both of them identified Brown and Dudley, whom Tovar knew, from previous drug deals, by the nicknames of " Squirt" and " Red," as the shooters. Three of Brown's sisters--Serisa Ann Brown, Grace Brown, and Carolyn Momoh--testified as witnesses for the State at the guilt-innocence phase. All three of them claimed that the police and prosecutors had threatened them in order to coerce their cooperation. Carolyn Momoh was held in contempt and incarcerated at one point during the trial for invoking the Fifth Amendment, despite the fact that she had been given immunity. After she eventually testified, she was convicted of perjury. The jury convicted Brown of capital murder.

Brown v. Thaler, 684 F.3d 482, 486 (5th Cir. 2012) (footnote omitted).

At the punishment phase, the State presented evidence that Brown had committed an armed robbery four years earlier, that he had extorted other prisoners while in jail awaiting trial, and that he had assaulted a deputy at the jail. Brown's counsel presented evidence that he had a low IQ, suffered from learning disabilities, and did not do well in special education classes. They also presented the testimony of a law professor that prisoners become less violent as they get older. Trial counsel's cross-examination of Brown's sister, Serisa Ann Brown, during the guilt-innocence phase of the trial also resulted in the presentation of some mitigating evidence. She testified that Brown had 32 brothers and sisters, that ...


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