Opinion
Civil Action No. 2:01-CV-0112-J.
August 2, 2004
MEMORANDUM OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, Brent Ray Brewer, an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division, was convicted by a jury and sentenced to death for the 1990 capital murder of Robert Doyle Laminack. Petitioner filed this petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254. Additional briefing was ordered by the Court following the Supreme Court's recently clarified standards affecting certain death penalty cases in Tennard v. Dretke, ___ U.S. ___, 2004 WL 1402731 (June 24, 2004). Applying those standards, the Court concludes that there was constitutional error in the penalty phase of the trial in which the jury answered the two questions presented to it, known as special issues, in a way that mandated the death penalty. The special issues asked of the jury did not give the jury a vehicle to give effect to the mitigating evidence presented at the trial.
State v. Brewer, No. 6,997-A (47th Dist. Ct., Randall County, Tex. June 1, 1991). The case was appealed to the Texas Court of Criminal Appeals, which affirmed the conviction and death sentence. Brewer v. State, No. 71,307 (Tex.Crim.App. 1994) (unpublished). Petitioner filed a petition for writ of certiorari to the Supreme Court, which was denied on March 20, 1995. Brewer v. Texas, 514 U.S. 1020. Petitioner subsequently filed a state application for writ of habeas corpus on April 23, 1997. The trial court entered findings of fact and conclusions of law and recommended that relief be denied on October 20, 2000. Ex parte Brewer, No. W-6,997-A-1 (47th Dist. Ct., Randall County, Tex.) The Court of Criminal Appeals adopted those findings of fact and conclusions of law and denied relief in a written order on January 31, 2001. Ex parte Brewer, 50 S.W.3d 492 (Tex.Crim.App.).
Petitioner filed his original federal petition for writ of habeas corpus on May 7, 2001, and his amended petition for writ of habeas corpus on September 30, 2002. Respondent filed an answer with brief in support on June 28, 2001, and furnished the state court records. Respondent did not file an amended answer in response to the amended petition.
I. FACTUAL BACKGROUND
On April 26, 1990, Petitioner and Kristie Lynn Nystrom convinced Robert Laminack to give them a ride to the Salvation Army, and Petitioner rode in the back seat of Laminack's truck. After traveling approximately one block, Petitioner stabbed Laminack several times in the neck while Nystrom held the victim's right arm to prevent him from fighting back. Petitioner and Nystrom then took the victim's wallet and approximately $140.00 in cash.
At trial, witnesses testified that Petitioner was emotionally and physically abused by his father, that he suffered severe depression, and that just three months before the murder, Petitioner was committed to a psychiatric hospital where he fell under the influence of his co-defendant who dominated and manipulated him.
Petitioner did not know his father until he was fifteen years old. After his father, Albert, reconciled with Petitioner's mother, Karon, Albert abused both Karon and Petitioner. Karon testified that Albert hit Petitioner numerous times with items such as the butt of a pistol, a flashlight, and his fists. During one episode, Albert tried to hit Petitioner with a stick of firewood. When Albert went outside to get the firewood, Karon slammed the front door and locked it. After Albert busted the glass out of the front door with the firewood, Karon called the police and Albert was arrested.
Petitioner witnessed the physical abuse of his mother by his father. Petitioner would get between his parents. At one point, Albert, a Vietnam veteran who suffers from post-traumatic stress disorder and depression, stated, "If your (sic) ever draw your hand back, you'd better kill me, because I'll kill you." There followed a violent confrontation with his son that landed Albert in the hospital. In his testimony, Albert conceded that Petitioner was only seeking to protect his mother by getting into a fight between Albert and Karon and stopping Albert's attack, which included throwing chairs at Karon. Albert acknowledged that the incident was his fault and that he needed to be stopped. He testified that Petitioner was distraught over the injuries which he had caused his father. Despite the testimony by Albert, the prosecution used this incident in its closing argument as an example of how Petitioner might pose a continuing threat to society.
Petitioner became severely depressed and just three months before the murder of Robert Laminack he was involuntarily committed to a psychiatric hospital after making suicide threats. While undergoing treatment, Petitioner met Kristie Nystrom, a topless dancer who was three years his senior and a patient in the hospital. He became obsessed with Nystrom. After being discharged from the hospital, Petitioner continued to have a romantic relationship with Nystrom and lived with her. Several witnesses testified that Petitioner, who was 19 years old at the time of the offense, was dominated and controlled by Nystrom — that Nystrom had some kind of hold over him. One witness testified that the murder was Nystrom's idea and described Nystrom as a person who controlled situations and dominated Petitioner. Another witness testified that Petitioner would do whatever Nystrom wanted him to do.
Petitioner's trial counsel submitted no fewer than seven proposed instructions designed to give effect to mitigating evidence. Most of them were designed to make use of the two special issues mandated by state law. However, one included an entirely separate proposed special issue on mitigation evidence. Each of these requests was denied.
During closing argument, Petitioner's trial counsel urged the jury to consider the effect of its answers to the special issues, and attempted to fit the evidence into those issues despite the absence of an instruction on mitigating evidence. The prosecution then argued that the jury does not "have the power to say whether [Petitioner] lives or dies. You answer the questions according to the evidence, must (sic) like you did at the guilt or innocence. That's all. It's not a matter of life and death." Following an admonition by the prosecutor to not deliver a "sympathetic verdict," the jury retired to deliberate.
On state habeas review, the trial court found that delving into additional mitigating evidence would have had a "double edged sword" effect. In other words, exploration of additional mitigating evidence may have had only an aggravating effect. Despite the apparent awareness of this dilemma, the trial court continued to assert that a mitigating evidence instruction was not necessary.
II. STANDARD OF REVIEW
The standard of review in federal habeas proceedings is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), which provides, in pertinent part:
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. Because the petition in this case was filed after April 24, 1996, the above-cited provision of the AEDPA applies to those claims that were adjudicated on the merits. Lindh v. Murphy, 521 U.S. 320, 326-27 (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. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001), cert. denied, 534 U.S. 885 (2001). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court 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, 412-13 (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. Id. 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." Id.
Section 2254(d)(2) concerns questions of fact. See Moore v. Johnson, 225 F.3d 495, 501, 504 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). Under § 2254(d)(2), federal courts must give deference to state court 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), cert. denied, 531 U.S. 1002 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the prisoner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
III. EXAMINATION OF THE ISSUE WARRANTING RELIEF
A. Failure to Properly Instruct the Jury on Mitigation
In his sixth claim for relief, Petitioner complains that the trial court's refusal to allow a special issue or instruction on mitigating evidence violated his rights under the Eighth and Fourteenth Amendments. This claim was argued to the trial court, the Texas Court of Criminal Appeals, and again during the state habeas proceedings and is therefore properly before this Court.
The trial court instructed the jury in accordance with Art. 37.071 of the Texas Code of Criminal Procedure (Vernon 1991) as follows:
Special issue No. 1
Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, BRENT RAY BREWER, that caused the death of the deceased, Robert Doyle Laminack, was committed deliberately and with the reasonable expectation that the death of the deceased would result?
Special issue No. 2.
Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, BRENT RAY BREWER, would commit criminal acts of violence that would constitute a continuing threat to society?
Before trial, Petitioner's attorney filed a number of motions for instructions and a special issue to give effect to mitigating evidence. In light of the Supreme Court's decision in Tennard, the jury should have been instructed on mitigating evidence.
In Jurek v. Texas, 428 U.S. 262, 272 (1976), the Supreme Court upheld the Texas statutory special issues in the punishment phase of capital trials upon the premise that these special issues would be construed broadly enough to include proper mitigation evidence. However, in Penry v. Lynaugh, 492 U.S. 302, 322 (1989) ( "Penry I"), the Supreme Court held that the two special issues alone were inadequate to allow the sentencing jury a vehicle to give effect to the mitigating evidence admitted regarding Penry's mental retardation and severe child abuse.
In Jurek, the Supreme Court observed that "the Texas statute does not explicitly speak of mitigating circumstances" in the special issues submitted to the jury. The Court further stated,
The Texas Court of Criminal Appeals has yet to define precisely the meanings of such terms as "criminal acts of violence" or "continuing threat to society." In the present case, however, it indicated that it will interpret this second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show.Jurek, 428 U.S. at 272.
Following Penry I, the Fifth Circuit Court of Appeals developed a two-part test for determining whether a defendant's evidence requires a special mitigation instruction: "We `must determine (1) that the proffered evidence was constitutionally relevant mitigating evidence, and, if so, (2) that the proffered evidence was beyond the `effective reach' of the jurors.'" Smith v. Cockrell, 311 F.3d 661, 680 (5th Cir. 2002), cert. dism'd, Smith v. Dretke, ___ U.S. ___, 124 S.Ct. 1652 (2004) (quoting Madden v. Collins, 18 F.3d 304, 308 (5th Cir. 1994)). Whether certain evidence qualified as "constitutionally relevant" mitigating evidence depended on whether the criminal act was "due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own." Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir. 1992) (en banc), aff'd on other grounds, 506 U.S. 461 (1993). In order to determine whether the evidence in question rose to that level, courts considered four inquiries corresponding to "four principles found in Penry I: voluntariness, permanence, severity, and attribution. Did the defendant acquire his disability voluntarily or involuntarily? Is the disability transient or permanent? Is the disability trivial or severe? Were the criminal acts a consequence of this disability?" Robertson v. Cockrell, 325 F.3d 243, 251 (5th Cir. 2003) (en banc), cert. denied, ___ U.S. ___, 124 S.Ct. 28 (2003).
The Supreme Court's Tennard decision rejected the Fifth Circuit's application of Penry. Tennard presented evidence at his trial that he had an IQ of 67. The trial court did not instruct the jury on mitigating evidence and Tennard was sentenced to death. The federal district court denied Tennard's habeas petition on the Penry issue and denied a certificate of appealability. The Fifth Circuit affirmed the denial of a certificate of appealability in light of its Penry jurisprudence. The Supreme Court reversed, holding that Tennard was entitled to a certificate of appealability and clarifying the standards for the application of Penry.
Respondent does not argue that Petitioner's claim is barred by the non-retroactivity doctrine discussed infra, Sec. IV(A). Any such argument would be without merit. Tennard was a clarification of Penry, a case already decided at the time of Petitioner's trial. Moreover, whether an individual is entitled to a jury instruction on mitigating evidence implicates the exceptions to the non-retroactivity doctrine. See Penry I, 492 U.S. at 330; Bell v. Cockrell, 310 F.3d 330, 331-32 (5th Cir. 2002).
The first question addressed in Tennard is the relevance of mitigating evidence. 2004 WL 1402731, *7-*8. "`Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.'" Id. at *8 (quoting McKoy v. North Carolina, 494 U.S. 433, 440 (1990)). The evidence Petitioner presented at trial — his abused childhood, his severe depression, his involuntary commitment shortly before the murder, and his domination by Kristie Nystrom — fits within this expansive definition. This evidence is the sort that "might serve `as a basis for a sentence less than death.'" Id. (quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)).
The special issues presented to the jury in Petitioner's trial tracked the same language that was used in the trials of Tennard and Penry. Id. at *3-*4. In both cases, the petitioners presented relevant mitigating evidence. In Penry I, the Supreme Court concluded that those special issues were an inadequate vehicle for the jury to give effect to that relevant mitigating evidence. Id. at *4. The same is true in Petitioner's case. Respondent argues that evidence of treatable mental illness or drug abuse is within the scope of the special issues presented to the jury. This may be true where there are issues of impulse control that could be characterized as going to deliberateness. The evidence presented by Petitioner does not fall in this category. The other possibility is future dangerousness. Again, the evidence at Petitioner's trial does not fit squarely there either. One could view the evidence as either aggravating or mitigating. Without the guidance of a proper instruction from the court, the jury was not given an opportunity to consider it as mitigating.
The mitigating evidence presented may have served as a basis for mercy even if a jury decided that the murder was committed deliberately and that Petitioner posed a continuing threat. Without an instruction, much less a special issue on mitigation, this evidence was out of the jury's reach. Given the nature of the mitigating evidence before the jury and the lack of any instruction on mitigation, there is a reasonable likelihood that the jury applied its instructions in a way that prevented the consideration of the mitigating evidence. Reviewing the evidence in light of the special issues, a jury would be very hard pressed to see the evidence presented as anything but aggravating. Failure to submit an instruction on mitigation evidence was an unreasonable application of federal law and Supreme Court precedent. Accordingly, habeas relief on this issue is conditionally granted.
IV. EXAMINATION OF THE OTHER ISSUES PRESENTED
In his amended petition, Petitioner raises eight broad issues in ten claims for relief: ineffective assistance of counsel, newly discovered evidence of actual innocence, suppression of exculpatory evidence, improper jury argument by the prosecutor, denial of a mitigation instruction at the punishment phase of his trial, misleading jury instructions regarding the procedure for assessing death sentence, complaints against the federal habeas-corpus process, and cumulative error. Petitioner also contends that he is entitled to discovery and an evidentiary hearing.
In his answer to the original petition, Respondent stated that the claims raised in the petition appeared to have been exhausted. Therefore, he did not request that any of those claims be dismissed or denied on exhaustion grounds. However, Respondent has not affirmatively waived this requirement, 28 U.S.C. § 2254(b)(3), nor has he addressed the new claims raised in the amended petition.
Having considered the one issue that merits relief, the Court will briefly address the other issues presented. These other issues are either not properly before the Court or lack merit.
A. Non-Retroactivity
Petitioner's second claim for relief asserts that there is newly discovered evidence that Petitioner did not cause Mr. Laminack's death and that due process requires consideration of that evidence. Petitioner's seventh claim is that his Sixth Amendment right to trial by jury was violated by the state statutory scheme of special issues because it misleads the jury about their responsibility in making the determination to assess the death sentence. Respondent asserts that Petitioner's second and seventh claims are barred under the federal non-retroactivity doctrine announced in Teague v. Lane, 489 U.S. 288 (1989). "A threshold issue in every case is . . . whether the court is obligated to apply the Teague rule to the defendant's claim." See Caspari v. Bohlen, 510 U.S. 383, 389 (1994). Therefore, this Court will address these issues before considering the merits of any claim.
This Circuit has applied a three-step test to determine whether a claim is Teague-barred:
(1) we determine when [Petitioner's] conviction and sentence became final, (2) we "survey the legal landscape as it then existed to determine whether a state court considering [Petitioner]'s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution[,]" and (3) if [Petitioner] seeks the benefit of a new rule, we must decide whether the rule falls within one of the narrow exceptions to the non-retroactivity principle.Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001) (quoting Caspari, 510 U.S. at 390), cert. denied, Cockrell v. Burdine, 535 U.S. 1120 (2002). The Supreme Court has recognized two exceptions to this principle. The first is for new rules that place certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. See Teague, 489 U.S. at 307; Caspari, 510 U.S. at 396. The second is for watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. Saffle v. Parks, 494 U.S. 484, 495 (1990); Caspari, 510 U.S. at 396. The Fifth Circuit Court of Appeals has "held that unless the Supreme Court has clearly established that the new rule falls within one of the exceptions to the non-retroactivity principle of Teague, . . . that new rule could not be considered with regard to petitions governed by the AEDPA." Cockerham v. Cain, 283 F.3d 657, 660 (5th Cir. 2002) (citations omitted).
In his second claim, Petitioner contends that due process requires the consideration of newly discovered evidence that he did not actually cause the death of the victim. He asserts that this new evidence proves that Nystrom actually stabbed the victim, causing his death. Respondent asserts that Petitioner's argument would extend the protections of the Due Process Clause beyond the perimeters drawn by the Supreme Court, and is, therefore, Teague-barred. This Court agrees.
Petitioner incorrectly relies upon Herrera v. Collins, 506 U.S. 390, 400 (1993). In Herrera, the Supreme Court stated that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Petitioner contends that newly discovered evidence he presents in his petition challenges the validity of the jury's answers to the special issues. This claim is unsupported by existing federal law, and does not come within any exception established by the Supreme Court. Therefore, Petitioner's second claim is barred by the non-retroactivity doctrine.
In his seventh claim, Petitioner contends that his Sixth Amendment right to trial by jury was violated by the state statutory scheme of special issues that mislead the jury about their responsibility in making the determination to assess the death sentence. He relies upon Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985), which states that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been lead to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." The Supreme Court found that the prosecutor's argument (urging the jury not to view itself as determining whether the defendant would die because the death sentence would be reviewed for correctness by the state supreme court) affirmatively mislead the jury about this critical jury function. However, Petitioner does not allege any affirmative statement in his case that mislead the jury in any way. Instead, he relies solely on the fact that special issues were used instead of a verdict containing the option of an actual sentence of death.
Although Petitioner's claim is limited to the use of special issues, the Court notes that Caldwell was clarified in Dugger v. Adams, 489 U.S. 401 (1989), which held that "[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." 489 U.S. at 407. Therefore, even if Petitioner were to have directed this Court to any portion of the prosecutor's argument to the jury, that argument would not have violated Caldwell unless it was also inconsistent with Texas law.
The prohibitions of Caldwell do not extend to the sentencing procedure used in Petitioner's trial. In fact, this type of sentencing procedure has been expressly upheld by the Supreme Court. See Jurek v. Texas, 428 U.S. 262, 273-76 (1976). To now hold otherwise would require a new rule in violation of Teague. Accordingly, Petitioner's seventh claim is barred. The Court notes, however, that the comments made by the prosecutor during his final argument in the punishment phase of the trial compounded the error of not giving a mitigating instruction. The prosecutor told the jury that, "Contrary to what Mr. Daffern would have you believe, I don't have the power to say whether he lives or dies. You don't have the power to say whether he lives or dies. You answer the questions according to the evidence, mu[ch] like you did at the guilt or innocence. That's all. It's not a matter of life and death. It's whether it was deliberate. Was this act deliberate? Will he continue to commit violent acts? That's all you answer. And every one of you people told me you would base that not upon the result, but upon what the evidence dictates you must do." This line of argument was a major theme in the prosecution's closing. Although this argument does not rise to the level of Caldwell error, the jury was led to believe that it could not consider in mitigation evidence presented at trial.
B. Claims Not Cognizable
In his amended petition, Petitioner adds two new complaints against the federal habeas corpus process. In his eighth and ninth claims, Petitioner complains of rulings of the United States Magistrate Judge regarding the appointment of counsel, experts, and investigators, and regarding the prohibition against adding new claims in his amended petition. The Court previously addressed these claims when Petitioner appealed the rulings of the Magistrate Judge to this Court. After denial of Petitioner's appeal, Petitioner appealed this Court's order denying the appeal to the Fifth Circuit. On January 10, 2003, this Court denied a certificate of appealability, and the Fifth Circuit dismissed Petitioner's appeal for want of jurisdiction on February 5, 2003. Brewer v. Cockrell, No. 02-11310 (5th Cir.) (unpublished). It is unnecessary to further review these new claims as part of Petitioner's habeas corpus petition because they are not cognizable on federal habeas corpus review.
This court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). To the extent Petitioner is presenting his claims against the federal habeas corpus proceeding as independent claims for relief, they constitute attacks on proceedings collateral to the detention and not the detention itself. See Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838 (1987). Accordingly, Petitioner's eighth and ninth claims for relief are denied as not cognizable grounds for relief in this proceeding.
Although Petitioner's eighth and ninth claims are denied as not cognizable, the Court notes that they are without merit as well. Petitioner has improperly characterized a denial of funds for further investigative or expert assistance on federal habeas review as a violation of a constitutional right. See Barraza v. Cockrell, 330 F.3d 349, 352 (5th Cir. 2003) (the statutory requirement for habeas counsel does not create a constitutionally-secured right), cert. denied, ___ U.S. ___, 124 S.Ct. 389 (2003). The Court also notes that Petitioner has not shown that the development of such new evidence would not be barred. See Riley v. Dretke, 362 F.3d 302, 307-08 (5th Cir. 2004) (petitioner cannot show entitlement to investigate claim which is procedurally barred from review). Therefore, this Court correctly refused to fund an investigation not shown to be reasonably necessary. See 21 U.S.C. § 848(q)(4)(9).
With respect to Petitioner's complaint regarding adding new claims to his amended petition, Petitioner has shown no prejudice. Each of Petitioner's new claims would have been barred because they were unexhausted at the state level. 28 U.S.C. § 2254(b)(1)(A); Martinez v. Johnson, 255 F.3d 229, 238-39 (5th Cir. 2001). Petitioner has also failed to show good cause for this failure, a requirement to overcome the procedural bar. Id.
Although there was some delay in appointing co-counsel on this case, Petitioner fails to demonstrate that this delay resulted in any prejudice. The Magistrate Judge granted numerous deadline extensions and Petitioner was afforded the opportunity to amend his petition after co-counsel had ample time to review the case.
Petitioner's original counsel on his federal habeas petition was Mr. Rick Keffler. Mr. Keffler served as Petitioner's attorney at the state habeas level and filed a so-called "skeletal" habeas petition in this Court. That original petition mimicked the petition filed at the state habeas level, thus including all claims that were exhausted. Although Mr. Keffler complained of his inexperience and lack of knowledge with federal habeas proceedings, U.S. Magistrate Judge Clinton Averitte found good cause to appoint Mr. Keffler to this case. There is no indication that Mr. Keffler was not competent or that he has handled the proceedings in this Court in any way that would be prejudicial to his client.
C. Ineffective Assistance of Counsel
In his first and fifth claims for relief, Petitioner contends that his right to the effective assistance of counsel was violated (1) by the failure of his trial counsel to seek and utilize available expert psychiatric/psychological assistance in developing mitigating evidence for the punishment phase of his trial, and (2) by the failure of his appellate counsel to raise as error on appeal the prosecutor's comment during final argument regarding Petitioner's lack of remorse. These claims are denied.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. The two-pronged standard by which a claim of ineffective assistance of counsel is measured is set forth in Strickland v. Washington, 466 U.S. 668, 698 (1984). The first prong of Strickland requires the defendant to show that counsel's performance was deficient. Strickland, 466 U.S. at 698. To prove deficiency, a defendant "must show that counsel's performance fell below an objective standard of reasonableness." Id. at 687-88. This requires a showing that the errors made by his counsel were so serious that his counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. This Court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689.
The second prong of this test requires the defendant to show prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In his first claim for relief, Petitioner alleges that his trial counsel was ineffective in the investigation and presentation of mitigating evidence in the punishment phase of his trial. The Supreme Court recently discussed the standard for evaluating this claim. In Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527 (2003), the Court held that a "borderline" mentally-retarded habeas petitioner was denied his Sixth Amendment right to counsel when his attorney failed to investigate the petitioner's background and present mitigating evidence of his unfortunate life history at his capital murder trial. Petitioner has not identified any such evidence that was neglected in his case.
Although Petitioner contends that his trial counsel failed to investigate and present mitigating evidence, his petition makes no mention of any facts in Petitioner's life history that were not presented during his trial. Instead, he appears to rely entirely upon the fact that trial counsel did not present an expert psychological evaluation of Petitioner as mitigation evidence. This is not sufficient to show ineffective assistance. The principal concern in deciding whether Petitioner's trial counsel exercised reasonable professional judgment is not whether counsel should have presented a mitigation case. See Wiggins, 539 U.S. at ____, 123 S.Ct. at 2536. Instead, the focus of the inquiry is whether the investigation supporting counsel's decision not to introduce the potentially mitigating evidence of Petitioner's background was itself reasonable. Id.
The information available to trial counsel was sufficient to make a reasoned professional judgment in this matter. Although not mental health professionals, trial counsel had access to records of Petitioner's recent commitment and the mental health professionals who had recently evaluated and treated him. Further, trial counsel's own observations of Petitioner did not indicate that there was anything to be gained from another evaluation. Also, trial counsel did obtain and present expert psychological testimony during the punishment phase of Petitioner's trial. A careful review of the affidavit of the psychiatrist attached to his petition reveals that any truly significant facts underlying the psychiatric opinions presented therein had already been presented in Petitioner's trial.
Petitioner's current psychiatrist identifies historical facts along with his own psychological testing in support of his evaluation and opinions. This testing was described as "problematic" and revealed malingering. These factors, along with the intervening years on death row, tended to undermine the reliability of these test results concerning Petitioner's state of mind before the offense or trial. In the opinion of this psychiatrist, Petitioner suffered from moderate attention deficit hyperactivity disorder, moderate polysubstance dependence, anxiety, major depression, and dysthymia during the time period of the offense and trial. These diagnoses had already been reflected in Petitioner's mental health records from Big Spring State Hospital, which were available and apparently known to Petitioner's trial counsel.
The strategy of Petitioner's attorneys regarding this matter was clear from the record: They did not want to give the state any excuse to evaluate Petitioner in order to prove his future dangerousness. What the prosecution lacked in evidence of a violent criminal history, Petitioner's trial counsel did not want to provide in expert psychiatric evaluation. On habeas review, the state trial court found that an expert evaluation could be "a double edged sword" in that negative information about Petitioner could be exposed and exploited by the prosecution. This Court must review the trial strategy of Petitioner's trial counsel with deference, particularly due to the double-edged nature of pursuing expert evaluations. See Burger v. Kemp, 483 U.S. 776, 789-94 (1987) (uninvestigated evidence not uniformly helpful because it suggested violent tendencies at odds with the defense strategy); Darden v. Wainwright, 477 U.S. 168, 184-86 (1986) (any attempt to portray petitioner as nonviolent would have opened the door to potentially damaging prosecution evidence).
Trial counsel was not facing an idle danger. The prosecution clearly sought to use psychiatric evidence against Petitioner. The prosecutors concluded their entire punishment case with expert psychiatric testimony, trying to use that evidence to carry their burden of proving that Petitioner was a future danger. In this, they were apparently hampered by their inability to have their expert examine Petitioner due to defense counsel's strategy to avoid developing such evidence. As a result, the prosecution's expert testimony was vulnerable to defense counsel's final argument that the prosecution's expert psychiatrist lacked critical information and did not even examine the defendant before testifying to his opinions. This shows the wisdom of trial counsel's strategy, even if it was not entirely successful.
Trial counsel's strategy was supported by a reasonable investigation. Petitioner concurred with trial counsel's advice that developing expert psychological or psychiatric evidence would not be in his best interest. The state habeas court found that Petitioner's trial counsel made a reasoned, professional judgment to not develop expert psychiatric or psychological punishment evidence. This finding has not been shown incorrect by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
In his fifth claim for relief, Petitioner complains of appellate counsel's decision not to raise as error on appeal the prosecutor's comment on Petitioner's lack of remorse as a comment on his failure to testify at the punishment phase of the trial. Appellate counsel's performance on appeal is judged under the same two-pronged standard set forth above in Strickland v. Washington. See 466 U.S. at 698; Smith v. Robbins, 528 U.S. 259, 286 (2000); Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001).
Petitioner's claim does not satisfy either prong of Strickland The prosecutor's argument did not violate Petitioner's rights under the Fifth Amendment. As set out more fully in Section E below, this argument does not appear intended or understood as a comment on his failure to testify, but upon his actions and comments before the trial and his demeanor displayed to the jury during the trial. See Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999). Further, there was no objection made at the time to this argument. The decision to not raise such a claim on appeal did not constitute deficient representation under the United States Constitution.
Although Petitioner appears to rely entirely upon his appellate counsel's failure to raise the alleged constitutional violation, Petitioner also cites Dickenson v. State, 685 S.W.2d 320, 322-23 (Tex.Crim.App. 1984), which holds that certain prosecutorial arguments can violate a state statute: Art. 38.22 of the Texas Code of Criminal Procedure. Without considering Respondent's contention that this claim is waived, this state-law matter has been determined by the state courts not to have been violated.
Federal courts in post-conviction habeas corpus proceedings do not sit to review questions of state law. See Engle v. Isaac, 456 U.S. 107, 119-21 (1982); see also Johnson v. Cain, 215 F.3d 489, 494 (5th Cir. 2000) (referring to "the long-standing principle that federal courts do not sit to review questions of state law."); Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir. 1991) ("We will not review a state court's interpretation of its own law in a federal habeas corpus proceeding"), cert. denied, 502 U.S. 875 (1991). Even if Petitioner means to contend that his attorney failed to complain of a violation of state law, the state court determined that no such state-law violation occurred. Therefore, the attorney's conduct was not considered deficient regarding this state-law matter, and this Court should not conclude otherwise in order to find any deficient representation in this proceeding.
None of the allegations of ineffective assistance of counsel are sufficient to establish a right to habeas corpus relief. Accordingly, Petitioner's first and fifth claims for relief are denied.
D. Exculpatory Information
In his third claim for relief, Petitioner contends that the prosecution withheld exculpatory evidence from him in violation of the Fifth and Fourteenth Amendments. Specifically, Petitioner complains of the failure to disclose information concerning a prior statement of Skee Callen and concerning the background and credibility of the state's pathologist.
The "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). The three components or essential elements of a Brady prosecutorial misconduct claim are (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching, (2) the evidence must have been suppressed by the State, either willfully or inadvertently, and (3) prejudice must have ensued. See Banks v. Dretke, ___ U.S. ___, 124 S. Ct. 1256, 1272 (2004); Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
In the instant case, the record of the trial reflects that the prior statement of Skee Callen was provided to defense counsel. In fact, the precise matter raised in this petition was made the basis of trial counsel's cross examination of this witness. Further, regarding the testimony of the pathologist, Petitioner raises questions concerning the qualifications of this expert and truthfulness of his testimony in other cases. Petitioner produced correspondence from another expert that expresses opinions contrary to those expressed by the pathologist who testified at the trial. However, Petitioner has not shown that any of this information was in the possession of the prosecution at or before his trial, or that prejudice ensued from any nondisclosure. Therefore, Petitioner's allegations fail to establish a prima facie case. Petitioner's third claim for relief is denied.
E. Prosecutor's Argument
In Petitioner's fourth claim, he alleges that his right to remain silent, as guaranteed by the First and Fourteenth Amendments, was denied by the prosecutor's argument that Petitioner showed no remorse. Respondent argues that this statement summarized evidence before the jury showing lack of remorse along with Petitioner's emotionless demeanor displayed during the trial.
"For there to have been a denial of one's fifth amendment right to remain silent, the prosecutor's manifest intent in making the remark must have been to comment on the defendant's silence, or the character of the remark must have been such that the jury would naturally and necessarily construe it as a comment on the defendant's silence. To expound on the first inquiry, the prosecutors intent is not manifestly impermissible if there is some other, equally plausible explanation for the remark. For the second inquiry, the question is not whether the jury might or probably would view the challenged remark in this manner, but whether it necessarily would have done so."Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999) (citations omitted).
In Jackson, the prosecutor's comment, "Look at him, he hasn't shown any remorse," during final argument, made in the context of the defendant's conduct immediately after the incident, was not considered a comment on the defendant's failure to testify. See also Moore v. State, 849 S.W.2d 350, 352 (Tex.Crim.App. 1993) ("when there is evidence in the record indicating a lack of remorse, a comment upon the defendant's lack of remorse does not naturally and necessarily lead the jury to understand it to be a comment upon the defendant's failure to testify.").
Similarly, the Fourth Circuit Court of Appeals concluded that an argument similar to that made in the instant case did not constitute a violation of the defendant's Fifth Amendment right to remain silent at sentencing. Bates v. Lee, 308 F.3d 411, 421 (4th Cir. 2002), cert. denied, 538 U.S. 1061 (2003). The Fourth Circuit had previously "found that prosecutorial comments about the lack of remorse demonstrated by a defendant's demeanor during trial do not violate a defendant's Fifth Amendment right not to testify." Id.; see also Howard v. Moore, 131 F.3d 399, 421 (4th Cir. 1997); Gaskins v. McKellar, 916 F.2d 941, 951 (4th Cir. 1990). Distinguishing comments regarding what a defendant failed to say from those regarding the defendant's demeanor during trial, the court concluded that the defendant in that case "was not, of course, obligated to show remorse for his murder of Jenkins either before or during trial. However, the absence of any indication of contrition on his part for the taking of another human life was not beyond the range of prosecutorial comment during sentencing." Bates, 308 F.3d at 421-22; see also Borodine v. Douzanis, 592 F.2d 1202, 1210-11 (1st Cir. 1979) (holding argument that defendant never had a "shred of remorse from the beginning right up until now" was probably intended and understood as a reflection on the defendant's expressionless courtroom demeanor rather than on his right not to take the stand).
The state court on habeas review found that these comments referred to Petitioner's expressions to others and his impassive mien in court, signifying a cavalier attitude about the offense. Petitioner has not shown that these findings are incorrect. Accordingly, Petitioner's fourth claim for relief is denied.
F. Cumulative Error
In his tenth and final claim, Petitioner alleges that the cumulative effect of violations noted in his preceding claims constitutes an independent violation of the Constitution. Although the Court has found a constitutional violation for failure to instruct the jury on mitigating evidence, the Court has also found Petitioner's other allegations meritless or improperly before the Court. Accordingly, there is nothing to cumulate in support of federal habeas corpus relief. See Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993). Therefore, Petitioner's tenth claim for relief is denied.
V. CONCLUSION
For each of the reasons set out above, Petitioner's sixth claim for relief is granted and each of the other claims for relief is denied. A writ of habeas corpus shall issue to the Respondent, vacating Petitioner's sentence and commuting it to life, unless, within 180 days from the entry of the judgment in this matter, the State of Texas grants Petitioner a new sentencing hearing or commutes his sentence to life. Judgment will be entered accordingly.It is SO ORDERED.