whether-contradictory-state-federal-court-rulings-demonstrate-debatability-of-constitutional-claim

QUESTIONS PRESENTED CAPITAL CASE The State of Texas resentenced Brent Brewer to death in 2009. To obtain this sentence, the State presented evidence from Dr. Richard Coons, a purported expert on “future dangerousness” whose methods have now been recognized as unscientific and meaningless by the Texas Court of Criminal Appeals (TCCA). On direct appeal, Mr. Brewer argued that Dr. Coons’ testimony was inadmissible, but the TCCA held that trial counsel failed to properly preserve the issue. Mr. Brewer then alleged in state habeas proceedings that his trial counsel was ineffective for failing to object to the admission of Dr. Coons’ testimony. The trial court recognized that trial counsel deficiently failed to preserve the issue, but ruled that Mr. Brewer was not prejudiced by this failure under Strickland v. Washington, 466 U.S. 668, 687 (1984). The TCCA adopted these findings on appeal, over the dissent of one judge who would have granted Mr. Brewer’s habeas petition. Mr. Brewer sought federal habeas review but was denied relief and denied a certificate of appealability on all issues by the district court and Fifth Circuit. Contrary to the state courts’ conclusions, the district court held that trial counsel did not perform deficiently in failing to object to Dr. Coons’ testimony, and the district court did not reach the issue of prejudice. The Fifth Circuit denied a certificate of appealability on the same basis. The questions presented are: I. Where a state court and federal court deny a habeas claim on contradictory grounds, do their conflicting rulings suggest that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), such that a certificate of appealability should issue? II. Does a state court’s divided rejection of a federal constitutional claim demonstrate that reasonable jurists would debate the claim’s merits such that a certificate of appealability should issue, as three Justices of this Court and the Seventh Circuit have recognized, or may a federal court decline to issue a certificate of appealability in such circumstances, as held by the Fifth Circuit below, the Eighth Circuit, and district courts in the First and Eleventh Circuits? i STATEMENT OF