Opinion
CIVIL NO. SA-98-CA-1169-OG
March 31, 2003
MEMORANDUM OPINION AND ORDER
Petitioner Andrew Perez Flores filed this federal habeas corpus action pursuant to Title 28 U.S.C. § 2254 seeking to attack his otherwise final state capital murder conviction and sentence of death.
I. Synopsis
As grounds for relief, petitioner argues that (1) his guilty plea was invalid, (2) his trial counsel rendered ineffective assistance by failing to (a) object to, and thereby preserve for appellate review a complaint regarding, the state trial court's granting of the prosecution's challenge for cause to venire member Roundtree, (b) present mitigating evidence at the punishment phase of petitioner's trial, and (c) adequately investigate petitioner's background, including failing to obtain an independent psychiatric evaluation of the petitioner, and (3) Article 37.071 of the Texas Code of Criminal Procedure is unconstitutional in that it may arbitrarily force jurors to continue deliberating after a unanimous verdict has been reached in favor of the defendant by failing to inform the jury of the effect of a hung jury.
See docket entry no. 18.
For the reasons set forth at length below, this Court concludes that petitioner is entitled to neither federal habeas corpus relief under the Anti-Terrorism and Effective Death Penalty Act of 1996 nor a Certificate of Appealability on any of his claims herein.
II. Statement of the Case
A. Factual Background
1. The Offense
There is no genuine dispute as to the events which led to the death of Juan Moreno during the early morning hours of July 26, 1993. A surveillance camera recorded the events as (1) the petitioner and an accomplice named Joseph Fritz entered the convenience store where Moreno was working as a clerk, (2) the petitioner pointed a handgun at Moreno and crudely demanded money from the cash register, along with Moreno's car keys, (3) Moreno handed over the money from the cash register after placing same in a plastic bag, (4) the petitioner fatally shot Moreno in the back of the head as Moreno knelt behind the counter when Moreno refused to hand over his car keys, (5) the petitioner and Fritz fled the store, and (6) the petitioner returned seconds later to retrieve keys from Moreno's belt before fleeing the store again. Both the petitioner and Fritz were arrested later the same day after the videotape recording of the crime was played on local television news programs. At the time of petitioner's arrest, the police recovered clothing that appeared to match that worn by the petitioner in the videotape of the robbery and murder, along with spent .22 shell casings, and a small black holster. After receiving his Miranda warnings, the petitioner gave law enforcement officers a three-page, hand-written, statement in which petitioner admitted that he recognized himself and Fritz as the persons depicted on the videotape recording of robbing and fatally shooting Moreno but in which petitioner claimed to have no independent recollection of the events inside the store. That same date, the petitioner also led police officers back to the residence where he had been arrested and pointed out where the murder weapon and money taken in the robbery were located. Subsequent examination and test-firing of the handgun recovered at the petitioner's residence revealed that it fired the shot which killed Moreno.
Both the original and a duplicate of the videotape recording of the offense were admitted into evidence at petitioner's trial as State's Exhibit 32 and 44, respectively. See Statement of Facts from petitioner's trial (henceforth "S.F. Trial"), Volume XXI, at p. 87. See also S.F. Trial, Volume XXIV, testimony of Andrew Flores, at pp. 119-22.
For unknown reasons, no copy of the actual videotape was included in the state court records forwarded to this office by respondent. In fact, there is no indication in the records received by this Court that a copy of the actual videotape recording was ever forwarded to the Texas Court of Criminal Appeals, either during petitioner's direct appeal or during petitioner's state habeas corpus proceeding. Therefore, to ensure that acomplete record is before this Court and any federal appellate court which might review this case, this Court contacted the Office of the Bexar County District Attorney to obtain copies of the videotape recordings that were admitted into evidence at petitioner's trial. Those recordings were received by the Clerk of this Court on October 17, 2002 and will be made a part of the Court's file in this cause.
See S.F. Trial, Volume XXI, testimony of Juan Trevino, at pp. 82-87; testimony of Hector Velasquez, at pp. 91-92; and testimony of Richard Malcolm Smith, Jr., at pp. 131-36; and Volume XXIV, testimony of George Saidler, at pp. 11-14.
See S.F. Trial, Volume XXI, testimony of Hector Velasquez, at p. 109; and testimony of Richard Rodriguez, at pp. 116-21.
See Defendant's Exhibit 2, admitted into evidence at S.F. Trial, Volume XXIV, testimony of George Saidler, at pp. 15-18 and 25-29.
See S.F. Trial, Volume XXII, testimony of Richard Malcolm Smith, Jr., at pp. 26-28; testimony of Crisoforo Vieyra, Jr., at pp. 42-55; and Volume XXIV, testimony of George Saidler, at pp. 19-23;
See S.F. Trial, Volume XXIII, testimony of Richard Stengel, at pp. 177-81.
The medical examiner testified that Moreno died as a result of a single gunshot wound to the right parietal occipital area of the head, which caused massive brain injuries. See S.F. Trial, Volume XXIII, testimony of Robert Charles Bux, at pp. 157-67.
2. The Indictment
On August 11, 1993, a Bexar County grand jury indicted petitioner in cause no. 93-CR-5317A on a charge of capital murder, to wit, fatally shooting Moreno with a deadly weapon, i.e., a handgun, while in the course of committing and attempting to commit robbery.
See Transcript of pleadings, documents, and motions filed in petitioner's state trial court proceeding (henceforth "Transcript"), at p. 5.
3. Pretrial Hearings
On January 21, 1994, petitioner's trial counsel filed multiple motions, including motions seeking to suppress petitioner's written statement, suppress the videotape recording of the crime, suppress other evidence obtained during the investigation, for a hearing on the issue of the voluntariness of petitioner's oral and written custodial statements, and for discovery.
See Transcript, at pp. 25-46.
Beginning January 24, 1994 and continuing through February 9, 1994, the state trial court held a series of hearings on defendant's motions. On February 17, 1994, the state trial court granted petitioner's motions to suppress petitioner's oral statements but, in all other respects, denied petitioner's motions to suppress.
See S.F. Trial, Volumes III through IX, which reflect the pretrial hearings held January 24, January 25, February 1, February 2, February 3, February 4, and February 9, 1994, respectively.
See Transcript, at pp. 25, 29, 38, and 42. No written Order setting forth the state trial court's rulings on petitioner's motions to suppress is reflected in the petitioner's state trial courts records. However, hand-written notations signed by the state trial judge appear on the motions themselves as indicated above.
4. Jury Selection
Jury selection and individual voir dire began in petitioner's trial on March 7, 1994 and continued through March 23, 1994.
See S.F. Trial, Volumes X through XX, reflecting proceedings on March 7, March 9, March 10, March 14, March 15, March 16, March 17, March 18, March 21, March 22, and March 23, 1994, respectively.
5. Guilty Plea Hearing and Verdict at G-I Phase
On April 4, 1994, when the indictment against him was read in open court, the petitioner entered a plea of guilty. The trial judge immediately removed the jury and proceeded to question the petitioner extensively on the record. In response to the trial judge's questions, the petitioner stated that (1) he was pleading guilty because he was guilty and for no other reason, (2) no threats or promises induced his plea, (3) he understood that he would receive either a death sentence or a life sentence with no possibility of parole for thirty-five years, (4) he understood that he was admitting all the essential elements of his offense and that his plea was conclusive at the guilt-innocence phase of his trial, (5) he understood that he had the right to a jury trial, to require the prosecution to prove its case beyond a reasonable doubt, to cross-examine witnesses, and to testify as a witness, (6) he was pleading guilty voluntarily and of his own free will, (7) he had an eleventh grade education, (8) he had never been confined to a mental institution or hospital, (9) he understood that the state would ordinarily be required to prove the charge in the indictment and all the elements of that offense, (10) he wanted to plead guilty, (11) he understood that his guilty plea waived his right to appeal the trial court's rulings on his pretrial motions, (12) he understood that a guilty plea is an admission of all the elements of the offense, but (13) he understood that the state could still introduce evidence at the punishment phase of his trial. The petitioner's trial counsel represented to the trial court that (1) the petitioner was competent to assist at trial and understood the consequences of his guilty plea and (2) the petitioner had no history of mental incompetency or insanity. The state trial judge then placed the petitioner under oath and the petitioner reaffirmed his earlier answers to the judge's questions and persisted in his guilty plea.
See S.F. Trial, Volume XXI, at pp. 8-10.
See S.F. Trial, Volume XXI, at pp. 10-17.
Id. , at pp. 14-15.
Id. , at pp. 17-18 and 20-21.
The trial judge issued instructions to the jury directing it to return a verdict of guilty. Petitioner's trial counsel advised the jury that the petitioner had admitted his guilt and was accepting responsibility for his offense. The jury quickly returned a guilty verdict.
Id. , at pp. 21-22.
Id. , at pp. 23-24.
Id. , at p. 25.
6. Punishment Phase of Trial
The punishment phase of petitioner's trial commenced that same date.
a. The Prosecutions Case
(1) The Videotape of the Crime
The prosecution's first few witnesses testified regarding the chain of custody concerning the videotape recording of the crime made by the store's camera. San Antonio Police Officer Hector Velasquez testified that he immediately recognized the petitioner when he was shown a still-photograph made from the videotape recording of Moreno's robbery and murder because he had dealt with the petitioner only two days before.
See S.F. Trial, Volume XXI, testimony of San Antonio Police Officer John David Slaughter, at pp. 37-51 (establishing that Moreno was unconscious but still alive when he arrived at the crime scene, Moreno died without ever regaining consciousness, and a videotape was recovered from the crime scene); testimony of convenience store manager Tony Serna, at pp. 52-65 (establishing that the videotape system at Moreno's store was operational prior to the date of the robbery, the VCR was located in a locked box, and the VCR was operating properly when he arrived at the store less than an hour after the robbery and murder of Moreno); testimony of district sales manager Manuel Sein, at pp. 66-77 (establishing that the videotape and camera at Moreno's store had been installed in February, 1993, the machine was operating properly when it was installed, a faulty monitor at the rear of the store did not affect the VCR's ability to accurately record what transpired within camera range, he removed the videotape from the VCR and accompanied a police officer to a nearby store where they both viewed the videotape, and State's Exhibit 44 was a duplicate of the original videotape recording designated as State's Exhibit 32); and testimony of San Antonio Police Sergeant Juan Trevino, at pp. 78-88 (establishing that he collected the videotape from the rear of the store, he and the manager went to a nearby store to view the videotape recording of the crime, the petitioner is the person recorded on the videotape robbing and fatally shooting Moreno)
See S.F. Trial, Volume XXI, testimony of Hector Velasquez, at pp. 91-92.
(2) Petitioner's Statement and Post-Arrest Demeanor
San Antonio Police Officer Richard Malcolm Smith, Jr. testified that (1) when he arrived at the petitioner's residence, he immediately recognized the petitioner from a photograph he had seen of the shooter, (2) he knocked at the door, (3) the petitioner came to the front door of the house, (4) when he learned the petitioner's name and date of birth, he did a warrant check and determined there were two outstanding warrants for petitioner's arrest for traffic violations, (5) he took the petitioner into custody and informed the petitioner that he was also a suspect in a capital murder investigation, (6) he gave the petitioner his Miranda warnings, (7) he took the petitioner to the Homicide Division for questioning, (8) he later returned to the same house to assist in a consent search that resulted in the discovery of the gun and money taken in the robbery, (9) the gun was located behind a piece of wood in the wall of a bedroom, (10) the petitioner's street name is "Showtime," (11) he observed the petitioner and Fritz playing Nerff basketball while handcuffed at the police station after the petitioner had given his written statement and the petitioner did not appear remorseful, (12) the petitioner never told Smith that he was sorry for what he had done, and (13) at one point, Smith overheard the petitioner ask Fritz what he thought they would both be doing for the next thirty years. On cross-examination, Smith admitted that the petitioner (1) was cooperative when questioned, (2) never said he was proud of his actions, (3) said "I know that guy," when the petitioner's image appeared on the videotape recording shown to petitioner, (4) looked away from the screen with tears in his eyes and said "turn it off," when the videotape recording reached the point where the fatal shot was fired, (5) made no escape attempt, (6) confirmed that the forty five dollars cash discovered at his residence was from the robbery of Moreno's store, (7) led police to both the murder weapon, which was well-hidden, and the money, and (8) advised Smith that he had committed the crime and wanted to give a statement.
See S.F. Trial, Volume XXI, testimony of Richard Malcolm Smith, Jr., at pp. 124-45.
See S.F. Trial, Volume XXII, testimony of Richard Malcolm Smith, Jr., at pp. 6-33.
(3) The Murder Weapon
San Antonio Police Officer Crisoforo Vieyra, Jr. testified that (1) the firearm recovered from the wall of the petitioner's residence was a fully-loaded, .22 caliber handgun, (2) the serial number had been removed from the handgun, (3) a pocket knife was also recovered from the residence close to the wall where the handgun was retrieved, (4) while the petitioner was cooperative with police officers who searched the home, the petitioner never indicated any remorse for his crime, and (5) a gang insignia was etched into the side of the handgun.
See S.F. Trial, Volume XXII, testimony of Crisoforo Vieyra, Jr., at pp. 40-61.
(4) Petitioner's Criminal Record Reputation
Bexar County District Court personnel testified that (1) the petitioner pleaded nolo contendere and received a two-year term of deferred adjudication probation in September, 1991 on a charge of unauthorized use of a motor vehicle, (2) the petitioner pleaded guilty to a charge of theft in February, 1991 arising from the theft of four baseball bats and received a six-month term of probation, which was later revoked when (3) the petitioner subsequently pleaded guilty to a charge of unlawfully carrying a weapon, an offense for which petitioner received a 64-day jail sentence.
See S.F. Trial, Volume XXII, testimony of Steve W. Fain, at pp. 62-67; and testimony of James Grohman, at pp. 67-71. San Antonio Police Officer Cruz Morua testified that petitioner's finger prints matched those contained in the pen packets relating to petitioner's felony convictions for theft and unlawfully carrying a weapon. Id. , testimony of Cruz Morua, at pp. 73-76.
San Antonio Police Officer Susan Marie Messer testified that (1) she arrested the petitioner and Joseph Fritz on January 27, 1991 after she and other officers responded to call about a burglary of a sporting goods store and witnessed the petitioner and Fritz carrying four baseball bats, three black marbles, a tape measure, socket wrench extension, socket wrench, a pair of open wrenches, vice grips, screw drivers, and a basketball out of the store, (2) she also encountered the petitioner several times while responding to disturbance calls at a park, (3) during one of her stops of the petitioner, he gave his gang affiliation as "UNLV" and his street name as "$howtime." See S.F. Trial, Volume XXII, testimony of Susan Marie Messer, at pp. 94-104 176-83.
San Antonio Police Officer Curtis Matthew Coolidge testified that (1) on April 5, 1992, he stopped the petitioner and two others who were all wearing the same type of clothing and did a warrant check, which came back positive for a theft warrant for petitioner, (2) he arrested and searched the petitioner, and (3) in the course of that search, he discovered a dagger inside the petitioner's fanny pack and charged petitioner with unlawfully carrying a weapon. Id. , testimony of Curtis Matthew Coolidge, at pp. 183-87 193-96.
Both Officers Messer and Coolidge testified that the petitioner's reputation in the community for being peaceful and law-abiding was bad. Id. , testimony of Susan Marie Messer, at p. 180; and testimony of Curtis Matthew Coolidge, at p. 195. Three other San Antonio Police Officers also testified that they knew the petitioner and that the petitioner's reputation in the community for being peaceful and law-abiding was bad. See S.F. Trial, Volume XXII, testimony of Richard Allen Riojas, at p. 231; Volume XXIII, testimony of John Diaz, at pp. 125-27; and Volume XXII, testimony of Julian Garza, at p. 132.
The prosecution introduced other evidence regarding the petitioner's employment and school history. An employee of Little Caesar's Pizza in Universal City testified that the petitioner began working at that establishment in June, 1992 and was fired on December 2, 1992 for failing to show up for work. See S.F. Trial, Volume XXII, testimony of John Williams Steinberg, at pp. 79-80. The principal of MacArthur High School testified that the petitioner entered that school as a transfer student on January 22, 1992, withdrew from school on March 27, 1992 to go to work, never re-enrolled, and no other school ever requested petitioner's records. See S.F. Trial, Volume XXII, testimony of Walter L. Howard, III, at pp. 89-91. Principal Howard also testified that the petitioner was in special education classes for the learning disabled during his brief stay at that school. Id. , at p. 91.
(5) The April 22, 1993 Robbery
Convenience store Manager John Fields testified that he was robbed at gunpoint by two men on April 22, 1993 and that the videotape recorder and camera in his store accurately recorded the crime in its entirety. San Antonio Police Officer Julian Garza testified that (1) he knew the petitioner, (2) he had seen the petitioner play basketball many times, (3) the petitioner has a distinctive way of running with his arms up, and (4) he recognized the petitioner as one of the two robbers of the convenience store captured on the videotape from April 22, 1993.
See S.F. Trial, Volume XXIII, testimony of John Fields, at pp. 7-12. The videotape of that robbery was played for the jury. Id. , at p. 15.
See S.F. Trial, Volume XXIII, testimony of Julian Garza, at pp. 128-46. Under cross-examination, Garza admitted that the petitioner had never been charged with the April 22, 1993 robbery. Id. , at p. 141.
(6) Petitioner's Gang-Related Activities
A number of witnesses testified regarding the petitioner's gang-related activities. Twelve-year-old Hilario Hernandez, Jr. testified that (1) on one occasion in the summer of 1992, the petitioner displayed a handgun, which Hernandez only later learned was a BB gun, and threatened Hernandez and several of his friends because petitioner wanted to shoot pool and was unwilling to wait until Hernandez and the others had finished their game, (2) petitioner was a member of the gang "UNLV" and had the street name of "$howtime," (3) members of UNLV wore clothing of the Chicago Bulls and University of Nevada at Las Vegas basketball teams, (4) on one occasion, the petitioner directed Hernandez to steal a pack of cigarettes from a store and, because he feared the petitioner, Hernandez did so, (5) the petitioner frequently waited near Hernandez's school for students to get out of class at the end of the day, (6) he often saw the petitioner playing basketball at Carroll Bell Elementary School, (7) Hernandez was once a member of a youth gang affiliated with UNLV known as the "LV" or "Little Villains," and (8) the symbol etched into the side of the handgun used to kill Juan Moreno was a gang symbol.
See S.F. Trial, Volume XXII, testimony of Hilario Hernandez, Jr., at pp. 196-226.
Fifteen-year-old Joseph Garcia testified that (1) he met the petitioner in the Summer of 1992 when Garcia was a student at Terrell Wells Middle School, (2) he later asked the petitioner, who was the leader of UNLV and was known as "$howtime," to join that gang, (3) the petitioner directed Garcia, then thirteen years old, to fight two older boys, (4) after Garcia fought the two boys, the petitioner stopped the fight and asked Garcia if he wanted to be the leader of "LV," which the petitioner explained was a gang for children under age fifteen who wanted to become members of UNLV once they grew older, (5) Garcia agreed to become the leader of LV, (6) Garcia's duties as leader of LV included recruiting others into that group, which required Garcia to take potential new members of LV to meet the petitioner, (7) the initiation process for LV required potential new members to fight persons whom the petitioner designated, (8) Garcia saw the petitioner carry a gun and saw the petitioner use marijuana a couple times, (9) the petitioner once directed Garcia to beat up a person named Paul Flores and Garcia did so, (10) the petitioner and Joseph Fritz, whose street name was "Flav," shared a handgun, a thirty-eight special, and (11) members of LV became members of UNLV once they turned fifteen only after they fought current members of UNLV designated by the petitioner.
See S.F. Trial, Volume XXIII, testimony of Joseph Garcia, at pp. 81-97.
Twelve-year-old Joseph Riojas testified that (1) he knew the petitioner about two years before he heard about petitioner's capital murder of Moreno, (2) Joseph Garcia asked Riojas to join LV and Riojas did so, (3) on several occasions, the petitioner directed Riojas to steal cigarettes, (4) on one occasion, Riojas was suspended from Carroll Bell Elementary School for talking to the petitioner on campus, (5) on one occasion, Riojas saw the petitioner, who was then in his twenties, fight a fourteen or fifteen year old named Jeffrey, (6) about a week before the petitioner's murder of Moreno, Riojas saw the petitioner driving a vehicle in which Joseph Fritz and another person known as "Biz," were passengers, (7) on that occasion, Fritz pointed a gun at Riojas and demanded to know where Riojas' older brother was, (8) when Riojas ran away, the petitioner and the others drove off, and (9) LV disbanded in December, 1992.
See S.F. Trial, Volume XXIII, testimony of Joseph Riojas, at pp. 110-12.
San Antonio Police Officer Richard Allen Riojas testified that (1) he was a member of the police department's uniformed gang unit, (2) he documented petitioner's gang affiliation after pulling over a vehicle in which the petitioner was a passenger on November 25, 1992, and (3) the gang acronym "UNLV" used by petitioner's gang stood for "Unified Nigger lynching Villains."
See S.F. Trial, Volume XXII, testimony of Richard Allen Riojas, at pp. 226-34.
(7) Attempted Gang Rape, etc.
Fourteen-year-old Letitia Morales testified that (1) she met the petitioner in 1992, when she was only twelve years old and a six-grader at Terrell Wells Middle School, (2) the petitioner stopped her one day as she was walking home from school and asked her for her name and phone number, (3) the petitioner, who was in his twenties, knew Morales was only twelve, (4) thereafter, the petitioner occasionally walked part of the way home with her after school, (5) the petitioner asked Morales to join his gang, UNLV, but told Morales she would have to fight one of the female members of the gang before she could become a member herself, (6) the petitioner told her his street name was "Showtime," (7) petitioner also had a gang for kids younger than fifteen known as "LV" or "Little Villains," (8) persons who wished to join LV had to fight members of that gang, (9) on one occasion, Morales was invited to a party by a girl named Nicole whom Morales believed was the petitioner's girlfriend, (10) on that occasion, when Morales arrived at Nicole's house, only the petitioner and three other male members of UNLV were present, (11) the petitioner and the other took Morales into the garage and removed her clothes, ignoring her pleas and cries, (12) while the others held Morales down on the floor, the petitioner attempted to have intercourse with her, (13) when a neighbor called out "What are ya'll doing?" the petitioner and others stopped and Morales got up and ran home, (14) Morales did not report the incident until a month later (to a school counselor) because she was afraid the petitioner might do something to her, (15) the petitioner was once the boyfriend of Morales' eleven-year-old friend Naomi, (16) on one occasion, the petitioner threatened to beat Morales up because he saw Morales talking with another boy, (17) on another occasion, in March, 1993, as Morales was walking home from a pizza restaurant with three friends, including one male, the petitioner saw them, asked them to join his gang, and criticized the girls for hanging around with the boy, (18) during that same incident, the petitioner reached into his pocket, removed a little gun, and pointed it at their faces, (19) as he pointed the gun at the group, the petitioner cocked the gun and yelled "Who is scared now?" (20) when a security guard came, Morales and her friends fled the scene and the petitioner put his gun back in his pocket, (21) Morales later reported the incident to her school counselor, and (22) she and her family moved to get away from the petitioner.
See S.F. Trial, Volume XXIII, testimony of Letitia Morales, at pp. 16-80.
b. The Defense's Witnesses
(1) The Investigating Detective
San Antonio Police Homicide Detective George Saidler testified that (1) the petitioner agreed to talk to Saidler after the petitioner was given his Miranda warnings, (2) after the petitioner led police to the murder weapon and money taken in the robbery, the petitioner gave a statement in his own handwriting, (3) the petitioner never invoked his right to counsel or his right to remain silent, (4) while watching the videotape of the robbery and murder the first time, the petitioner turned his face away from the screen and said "I don't want to view this part" when the actual shooting was occurring, (5) the petitioner was looking down at the floor and had tears in his eyes when the videotape of the murder was over, (6) the petitioner admitted that he recognized himself on the videotape but claimed not to remember why he shot the clerk, and (7) in his statement, the petitioner admitted he was the shooter and apologized to his family.
See S.F. Trial, Volume XXIV, testimony of George Saidler, at pp. 8-29.
On cross-examination, Saidler also testified that (1) the petitioner never expressly confessed in his statement and never apologized to the family of his victim, (2) the petitioner did not turn himself in to authorities, (3) petitioner's tears lasted only a brief time and the petitioner's demeanor both before and shortly after viewing the videotape of the crime was "flippant" and "real casual," and (4) after giving his statement, the petitioner appeared relaxed and joked with Fritz.
Id. , at pp. 29-51.
(2) Family and Friends
Petitioner's counsel called petitioner's sister, brother, mother, and five acquaintances to testify regarding petitioner's positive character traits, difficult childhood, and their general surprise when they learned of petitioner's crime. All of these witnesses testified that they had no personal knowledge regarding any of the petitioner's gang-related activities.
The petitioner's half-sister, testified that (1) she had never seen the petitioner commit a crime, use narcotics, or pull a gun, (2) she was unaware of the petitioner's gang-related activities, (3) the only gang she knew the petitioner to be a member of consisted of the petitioner, Joseph Fritz, and their friend Alex Burwin, (4) the petitioner worked at fast food restaurants, and (5) she was surprised when she saw the videotape of the petitioner's crime. See S.F. Trial, Volume XXIV, testimony of Leticia Castanion Ybarra, at pp. 55-71. The petitioner's brother testified that (1) their biological father abandoned them and their mother when the petitioner was a baby, (2) the petitioner used to baby-sit his niece in 1992 when the petitioner lived with his brother, (3) he suspected the petitioner was involved in a gang but did not know the petitioner was the leader of a gang, and 94) he was shocked when he learned the petitioner had killed a store clerk. See S.F. Trial, Volume XXV, testimony of Daniel Flores, at pp. 36-43. Petitioner's mother testified that (1) the petitioner's step-father was an alcoholic who was very strict with the petitioner, (2) she did not know the petitioner was in a gang, (3) she thought "Showtime" was petitioner's nickname, and (4) the petitioner did not graduate from high school. See S.F. Trial, Volume XXV, testimony of Celia Perez, at pp. 71-76.
Sixteen-year-old Robert Cocolan testified that (1) the petitioner was a "real nice person," (2) he had known the petitioner for about a year and had played basketball with him, (3) while he had heard the petitioner's street name, he was unaware of the petitioner's gang-related activities, and (4) he was shocked when he heard the petitioner had killed a store clerk. See S.F. Trial, Volume XXV, testimony of Robert Cocolan, at pp. 3-19. Seventeen-year-Old Michael Anthony Rodriguez testified that (1) he attended school with, and lived across the street from, the petitioner, (2) he had known the petitioner for about five years, (3) he had never seen the petitioner commit a crime or beat anyone up, and (4) after a fire at his house, the petitioner and Fritz helped his family move their belongings. See S.F. Trial, Volume XXV, testimony of Michael Anthony Rodriguez, at pp. 19-23. Mary Ann Ramirez testified that (1) she is the mother of Michael Anthony Rodriguez, (2) she never had any problems with the petitioner, (3) the petitioner was never disrespectful to her, (4) the petitioner and Fritz has stayed in her home and offered to buy her food after her home burned, and (5) she was unaware of the petitioner's criminal record or gang activities. See S.F. Trial, Volume XXV, testimony of Mary Ann Ramirez, at pp. 24-35. Tony Jose Hernandez, testified that (1) he had known the petitioner for two and a half years, (2) he met the petitioner through a mutual friend during basketball games, (3) younger children really looked up to the petitioner because of the way he carried himself, (4) he was unaware of the petitioner's gang-related activities, (5) while Joseph Fritz was involved in violent actions, he was unaware of the petitioner being involved in similar activities, (6) the petitioner often watched his eleven-year-old niece when Hernandez was unavailable, (7) the petitioner mowed the lawn of an elderly neighbor for free, and (8) he was unaware of the petitioner's criminal record. See S.F. Trial, Volume XXV, testimony of Tony Jose Hernandez, at pp. 44-60. Esther Perales testified that (1) she was the girlfriend of the petitioner's step-father Miquel Castanion, (2) she lived in the same house with the petitioner for approximately six-to-eight months the year before, (3) the petitioner taught her son to play basketball, (4) she never saw the petitioner lose his temper with her son, (5) she knew the petitioner was in a gang but not about his gang-related activities and still felt the petitioner was responsible enough to have him baby-sit her children in her home, and (6) she was unaware the petitioner had been arrested for carrying a weapon or had been convicted of theft. Id. , testimony of Esther Perales, at pp. 61-71.
Id.
(3) The Petitioner
The petitioner testified on direct examination that (1) he had a one-month-old son named Andrew Lopez, (2) his father left when petitioner was born, (3) he is learning disabled because he is unable to memorize things and, as a result, does poorly in spelling and math, (4) he attended McCollum High School his freshman year, (5) he attended Clark High School his sophomore year, (6) he briefly attended MacArthur High School but dropped out to find a job to help his mother, (7) he has worked as a bagger at grocery stores and at fast food restaurants as a cook and food preparer, (8) the night of the murder, he drank about two and a half quarts of beer and then he and Joseph Fritz split a forty-ounce bottle of malt liquor, (9) he and Fritz walked to the store to buy beer and, as they were talking, discussed their need for money to pay their rent, (10) Fritz gave him the gun because Fritz said he couldn't do the robbery, (11) Fritz waited by the pay phone as a lookout while he entered the store, (12) he does not know why he shot the clerk, (13) Fritz was the one who wanted the clerk's car, (14) the keys he took from the clerk did not fit the car so he and Fritz walked back to their residence, (15) he understood his constitutional rights when he gave his confession, (16) he never participated in an attempted gang-rape of Letitia Morales, (17) he was not one of the robbers of the convenience store shown on the videotape from April 22, 1993, and (18) he was sorry for having killed Moreno.
See S.F. Trial, Volume XXIV, testimony of Andrew Flores, at pp. 73-103.
On cross-examination, the petitioner testified that (1) he and Fritz committed the robbery and murder without any extensive planning, (2) Letitia Morales lied when she testified she had seen the petitioner point a gun at her and others and lied when she testified the petitioner and other UNLV members once attempted to rape her, (3) he was wearing his "colors" the night he murdered Moreno, (4) "UNLV" does stand for "Unified Nigger Lynching Villains," (5) he did make Joseph Garcia fight to gain admission into the LV's, (6) he made Garcia the leader of the LV's, (7) he never told Garcia to recruit others to join the LV'S and he did not recruit other members of the LV's, (8) he did direct members of the LV's to steal cigarettes for him, (9) he was the leader of UNLV and recruited others into that gang, (10) he did tell Joseph Garcia to beat up Paul Flores, (11) he denies he was present when Fritz pointed a gun at Joseph Riojas, (12) while he was the one who got into the driver's seat of Moreno's car, Fritz was the one who wanted the car and who tried to find the key to Moreno's car, (13) he pulled the gun out and cocked it as soon as Moreno came to the counter, (14) he moved the gun close to Moreno's head when Moreno knelt down behind the counter and begged, (15) he never turned himself in to authorities, (16) he shouted "Give me the f**king car keys" at Moreno, (17) he went home after the murder and slept until around noon, and (18) he was attempting to apologize to Moreno's family in the closing lines of his written statement, not to apologize to Fritz's family.
Id. at pp. 103-27.
c. Jury Deliberations and Verdict
The jury heard closing arguments, received the trial court's charge, and retired to deliberate at approximately 9:40 a.m on April 11, 1994. At approximately 1:52 p.m. that same date, the jury sent out a note indicating it had reached a verdict. In response to the first special issue, the jury found beyond a reasonable doubt that there was a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society. In response to the second special issue, the jury found beyond a reasonable doubt that, taking into consideration all of the evidence, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence. Base jury's verdict, the state trial court imposed a sentence of death.
See Transcript, at pp. 131-35; and S.F. Trial, Volume XXVI, at pp. 5-63.
See Transcript, at pp. 138-39.
See Transcript, at p. 140; and S.F. Trial, Volume XXVI, at pp. 65-66.
See Transcript, at pp. 140-41; and S.F. Trial, Volume XXVI, at p. 66.
See S.F. Trial, Volume XXVI, at pp. 66-68.
7. Direct Arpeal
Petitioner appealed. In an unpublished opinion issued March 20, 1996, the Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence. On December 2, 1996, the United States Supreme Court denied petitioner's petition for certiorari review of his conviction and sentence.
In his appellant's brief, the petitioner argued that (1) his trial counsel rendered ineffective assistance by (a) failing to perfect the record in connection with a Batson claim, (b) failing to perfect the record in connection with other alleged errors committed during voir dire, (c) failing to file a pretrial motion requesting a psychiatric evaluation of the petitioner, (d) eliciting information from a prosecution witness regarding petitioner's gang affiliation, (e) failing to object to the prosecution's opening statement regarding unadjudicated offenses and failing to file a motion in limine concerning same, (f) failing to examine the videotape recording of the crime before consenting to its admission, (g) entering petitioner's confession into evidence, and (h) failing to ask defense witnesses at the punishment phase of trial whether they believed the petitioner's live should be spared and failing to argue for same during closing argument, (2) the trial court erred in accepting the petitioner's guilty plea without first requiring the petitioner to be sworn, (3) the trial court erred in accepting the petitioner's guilty plea without first advising the petitioner that his guilty plea waived his right to appeal adverse pretrial rulings, (4) the petitioner was denied a bifurcated trial, and (5) the death penalty is inhumane and unconstitutional.
The copy of petitioner's appellant's brief furnished to this Court by respondent along with petitioner's state court records is incomplete. It lacks pages 25-27, 29-32, 35-36, and 38. However, a complete copy of that same document appears as exhibit 6 attached to petitioner's Original Petition, docket entry no. 18.
See Andrew Perez Flores v. State , No. 71,873 (Tex.Crim.App. March 20, 1996). The only copy of this unpublished opinion received by this Court in this cause appears as exhibit 7 attached to petitioner's Original Petition, docket entry no. 18.
In its unpublished opinion, the Texas Court of Criminal Appeals (1) rejected petitioner's ineffective assistance claims based on its conclusions that (a) petitioner's trial counsel adequately preserved petitioner's Batson claim, (b) petitioner could not show prejudice with regard to any of his complaints of error during voir dire, (c) defense counsel did file a motion requesting a psychiatric evaluation of the petitioner and petitioner offered no clue as to how such an evaluation would have assisted petitioner at trial, (d) it was reasonable for defense counsel to attempt to minimize the impact of petitioner's theft conviction by showing that it involved the theft of only a few, small items, (e) petitioner was not prejudiced by the prosecution's opening statement, (f) the videotape admitted into evidence was a duplicate of one defense counsel had previously viewed, (g) petitioner was not prejudiced by the admission of his confession since petitioner testified and admitted he committed the crime, and (h) it would have been improper for defense counsel to ask witnesses to beg for the petitioner's life, (2) because there was no objection from petitioner to the trial court's failure to swear the petitioner prior to accepting his guilty plea, there was nothing preserved for appellate review, (3) the trial court did explain the consequences of petitioner's guilty plea, including a specific explanation of how that plea would waive petitioner's complaints regarding pretrial rulings, before accepting petitioner's plea, (4) petitioner was not denied a bifurcated trial, and (5) the death penalty is not unconstitutional.
See Flores v. Texas , 519 U.S. 1012, 117 S.Ct. 520, 136 L.Ed.2d 407 (1996).
8. State Habeas Corpus Proceeding
On November 1, 1996, petitioner filed a skeletal state habeas corpus application along with a motion requesting leave to amend same. On November 13, 1996, petitioner's motion for leave to amend was granted. On September 9, 1997, petitioner filed his final application for state habeas corpus relief.
See State Habeas Transcript, at pp. 1-16.
Id. , at p. 18.
Id. , at pp. 46-64. As grounds for relief, petitioner argued that (1) his guilty plea was invalid because petitioner's difficulties making rational decisions precluded him from entering a voluntary, intelligent, and knowing guilty plea, (2) his trial counsel rendered ineffective assistance by failing to (a) object when the trial court granted the prosecution's challenge for cause to venire member Roundtree, (b) investigate and present potentially mitigating evidence at the punishment phase of trial showing that the petitioner had been physically abused as a child by his alcoholic step-father, the petitioner had been sexually abused as a teenager by a teacher, the petitioner's siblings were drug abusers who introduced petitioner to marijuana and other narcotics before the petitioner reached his teens, as a result the petitioner was a long-term drug and alcohol abuser, the petitioner was high on drugs and intoxicated at the time he committed his crimes, the petitioner suffered repeated head trauma as a child, the petitioner was learning-impaired, and the petitioner suffers from paranoid delusions and delusions regarding his sexual identity, as well as neurological brain impairment and poor impulse control, (c) obtain an independent mental health evaluation of the petitioner, (d) investigate and present evidence showing the petitioner was suffering from extreme emotional duress at the time of his offense, and (e) seek the assistance of an expert witness, and (3) Article 37.071 of the Texas Code of Criminal Procedure is unconstitutional insofar as it forbids the trial court from informing the jury of the effect of a hung jury.
Accompanying petitioner's state habeas corpus application were (1) petitioner's affidavit in which he recounted many aspects of his background but made no mention of any facts showing that his guilty plea had been involuntary, unintelligent, or unknowing, (2) a report by examining psychiatrist Dr. Raymond Potterf which included conclusions that the petitioner (a) suffers from neurological brain impairment and poor impulse control, (b) displays average intellectual functioning, (c) can understand the oath required of witnesses, and (d) is able to narrate events, communicate with his counsel, and understand and participate in the state habeas corpus proceedings, and (3) the affidavit of Eliza Zuazua, a member of petitioner's petit jury, in which she stated that, had she known about petitioner's history of physical and sexual abuse, she would not have voted to impose the death sentence. Id. , at pp. 57-64.
On November 24, 1997, the state trial court held an evidentiary hearing in petitioner's state habeas corpus proceeding. Curiously, the petitioner did not testify at that hearing. For unknown reasons, neither party called either of petitioner's trial counsel to testify or otherwise explored the extent of said counsel's investigation into the petitioner's background or their reasons for adopting the trial strategy they pursued on petitioner's behalf.
Instead, petitioner presented Dr. Raymond Potterf, a psychiatrist, who testified, in pertinent part, that (1) based on his forensic interview with the petitioner and his review of the petitioner's trial court records, the petitioner (a) had a life history of not making common sense, rational, decisions, (b) displayed poor impulse control and arithmetic developmental disorder, and (c) was unable to learn from past experience, (2) the petitioner suffered severe beatings and sexual abuse as a child at the hands of an alcoholic step-father, (3) the petitioner sustained several head injuries as a child, (4) the petitioner was sexually abused by a teacher when the petitioner was in his early teens, (5) thereafter, the petitioner suffered from homosexual panics and a sexual identity crisis, (6) as a result of the foregoing, the petitioner tends to react in a submissive, fearful, "frozen state" when confronted by an authority figure, (7) if an authority figure, such as an attorney, were to tell the petitioner to do something, the petitioner would likely go along with the directive, (8) the petitioner had an extensive history of drug and alcohol abuse, including cocaine, LSD, alcohol, and spray propellant abuse, beginning when the petitioner was twelve or thirteen, (9) the petitioner was not sober at the time of his offense, (10) at the time he entered his guilty plea, the petitioner was likely to choose whatever option would reduce his stress level and get him out of the situation as quickly as possible, (11) he had never spoken with petitioner's trial counsel, (12) he did not review petitioner's medical or psychiatric records from the Texas Department of Criminal Justice or the Bexar County Adult Detention Center, (13) he believed the petitioner suffers from organic brain damage and "organic effective disorder," (14) it was not necessary to subject the petitioner to an MRI, CAT scan, or other physical examinations for him to make that diagnosis because the petitioner's inability to remember the details of his crime supported his diagnosis of organic brain damage, (15) he did not watch the videotape of the petitioner's crime, (16) nothing in the petitioner's school records corroborates petitioner's claim that he was molested by a teacher, (17) the petitioner's inability to recall the specific details of his crime supports a finding that the petitioner was legally insane at the time of his offense, (18) the petitioner was aware at the time he gave his confession that his conduct had been both wrong and illegal, (19) petitioner's organic depression most likely resulted from his history of substance abuse, specifically cocaine and LSD, and not necessarily from petitioner's history of physical and sexual abuse, (20) petitioner's depression is treatable, (21) he believed the petitioner was capable of communicating effectively with his attorney and understanding the nature of the proceedings against him at the time the petitioner entered his guilty plea but the petitioner did not understand what his sentence would be when he entered his plea, (22) the negative forces that helped mold the petitioner's personality rendered the petitioner fully capable of repeating his crime and still held sway over the petitioner even after his crime, (23) the petitioner was incapable of conforming his conduct to the stricture of the law and displayed a lack of empathy for others, (24) his findings would have supported an affirmative finding by the jury regarding the petitioner's future dangerousness, (25) during his interview, the petitioner claimed that someone else fired the fatal shot and that he was not guilty of murdering Moreno, (26) it is probable the petitioner has an antisocial personality, (27) it is likely the petitioner will commit future acts of violence, (28) he would have to have been present at the time the petitioner entered his plea to ascertain whether the petitioner was then experiencing a "frozen state" response to an authority figure, (29) the petitioner's natural father was never a part of the petitioner's life, (30) the petitioner did not disclose whether he ever informed his trial counsel regarding his history of physical and sexual abuse, and (31) the possibility exists that the petitioner did not have a complete understanding of the proceedings against him at the time he entered his guilty plea.
See Statement of Facts from the Hearing held November 24, 1997 in Petitioner's State Habeas Corpus Proceeding (henceforth "S.F. State Habeas Hearing"), testimony of Raymond D. Potterf, at pp. 6-62.
Petitioner then attempted to call a member of his petit jury to testify that she would have voted against imposing the death sentence if she had known about the petitioner's history of sexual and physical abuse as a child; however, the state trial court ruled that testimony inadmissible.
See S.F. State Habeas Hearing, testimony of Eliza Zuazua, at pp. 62-78.
On September 8, 1998, the state trial court issued an Order containing its findings of fact and conclusions of law and recommending that petitioner's state habeas corpus application be denied. On October 7, 1998, the Texas Court of Criminal Appeals denied petitioner's state habeas corpus application without written order.
See State Habeas Transcript, at pp. 100-20. In pertinent part, the state trial court concluded that (1) nothing occurred during the course of the petitioner's trial which even remotely suggested the petitioner was incompetent to enter his guilty plea, (2) the record was devoid of any evidence demonstrating that the petitioner was ever advised by his counsel to enter his guilty plea, (3) the trial court had properly grated the prosecution's challenge for cause to venire member Roundtree based, in part, on her admission that she could not honor the presumption of innocence, and (4) admission of testimony similar to that furnished by Dr. Potterf would have harmed petitioner's chances of obtaining a favorable response to the first special issue at the punishment phase of petitioner's trial.
See Ex parte Andrew Flores , App. No. 38, 977-01 (Tex.Crim.App. October 7, 1998). Three members of that court indicated their willingness to address the merits of petitioner's final claim for relief, i.e., his complaint about the refusal of Texas statutes to allow an instruction to the jury regarding the effect of a hung jury at the punishment phase of trial.
B. Procedural History
On December 22, 1998, petitioner filed a motion for appointment of counsel in this Court. In an Order issued December 30, 1998, this Court appointed counsel to represent petitioner in this cause.
See docket entry no. 1.
See docket entry no. 2.
On June 1, 1999, petitioner filed his petition for federal habeas corpus relief, arguing that (1) his organic brain damage and cognitive impairments, taken together with his history of sexual and physical abuse, rendered his guilty plea invalid, (2) his trial counsel rendered ineffective assistance by failing to (a) object to, and thereby preserve for appellate review a complaint regarding, the state trial court's granting of the prosecution's challenge for cause to venire member Roundtree, (b) present mitigating evidence at the punishment phase of petitioner's trial regarding the petitioner's history of sexual and physical abuse, long-term drug use, and organic brain damage, and (c) adequately investigate petitioner's background, including failing to obtain an independent psychiatric evaluation of the petitioner, and (3) Article 37.071 of the Texas Code of Criminal Procedure is unconstitutional in that its twelve:ten rule may arbitrarily force jurors to continue deliberating after a unanimous verdict has been reached in favor of the defendant by failing to inform the jury of the effect of a hung jury.
See docket entry no. 18.
On October 1, 1999, respondent filed his answer and motion for summary judgment in which he argued that (1) the petitioner's guilty plea was voluntary, intelligent, and knowing, as determined by the state courts in the course of petitioner's state habeas corpus proceeding, (2) in view of venire member Roundtree's testimony, and petitioner's trial counsel's unsuccessful attempts to rehabilitate Roundtree, any objection by petitioner's trial counsel to the trial court's granting of the prosecution's challenge for cause would have been futile, (3) the allegedly mitigating evidence regarding petitioner's background and psychiatric condition presented through Dr. Potterf was of a double-edged sword variety and petitioner's trial counsel could reasonably have chosen not to introduce same at the punishment phase of petitioner's trial, and (4) the Supreme Court's holding in Jones v. United States forecloses petitioner's final claim for relief.
527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999)
See docket entry no. 28.
III. Analysis and Authorities
A. The AEDPA Standard of ReviewBecause petitioner filed his federal habeas corpus action after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court's review of petitioner's claims for federal habeas corpus relief is governed by the AEDPA.
See Penry v. Johnson , 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001)
Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either (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 the state court proceeding.
See Williams v. Taylor , 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); and 28 U.S.C. § 2254 (d)(1).
The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of Title 28 U.S.C. § 2254 (d)(1) have independent meanings.
See Bell v. Cone , 535 U.S. 685, ___, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002); Penry v. Johnson , 532 U.S. at 792, 121 S.Ct. at 1918; and Williams v. Taylor , 529 U.S. at 404-05, 120 S.Ct. at 1519.
Under the "contrary to" clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts.
See Bell v. Cone , 535 U.S. at ___, 122 S.Ct. at 1850; Penry v. Johnson , 532 U.S. at 1918, ("A state court decision will be 'contrary to' our clearly established precedent if the state court either 'applies a rule that contradicts the governing law set forth in our cases,' or 'confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"); and Williams v. Taylor , 529 U.S. at 404-06, 120 S.Ct. at 1518-19.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." The focus of this inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable and an "unreasonable" application is different from a merely incorrect one.
See Woodford v. Visciotti , ___ U.S. ___, ___, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002); Bell v. Cone , 535 U.S. at ___ 122 S.Ct. at 1850; Penry v. Johnson , 532 U.S. at 792, 121 S.Ct. at 1918; and Williams v. Taylor , 529 U.S. at 407-08, 120 S.Ct. at 1520-21.
In Williams , the Supreme Court expressly reserved for another day the issue of how federal habeas courts should determine whether a state court erroneously extended a legal principle into a new realm or erroneously refused to extend existing legal principle into a new area. See Williams v. Taylor , 529 U.S. at 408-09, 120 S.Ct. at 1521.
See Woodford v. Visciotti , ___ U.S. at ___, 123 S.Ct. at 360; Penry v. Johnson , 532 U.S. at 793, 121 S.Ct. at 1918; Williams v. Taylor , 529 U.S. at 409-11, 120 S.Ct. at 1520-22.
See Woodford v. Visciotti , ___ U.S. at ___, 123 S.Ct. at 360; Bell v. Cone , 535 U.S. at ___, 122 S.Ct. at 1850; Penry v. Johnson , 532 U.S. at 793, 121 S.Ct. at 1918; and Williams v. Taylor , 529 U.S. at 410-11, 120 S.Ct. at 1522.
The AEDPA significantly restricts the scope of federal habeas review of state court fact findings, requiring that a petitioner challenging state court factual findings establish by clear and convincing evidence that the state court's findings were erroneous.
See Foster v. Johnson , 293 F.3d 766, 776 (5th Cir. 2002), cert. denied , ___ U.S. ___, 123 S.Ct. 625, ___ L.Ed.2d ___ (2002); Rudd v. Johnson , 256 F.3d 317, 319 (5th Cir. 2001), cert. denied , 534 U.S. 1001 (2001): "The presumption is particularly strong when the state habeas court and the trial court are one and the same."; Dowthitt v. Johnson , 230 F.3d 733, 741 (5th Cir. 2000), cert. denied , 532 U.S. 915 (2001); Miller v. Johnson , 200 F.3d 274, 281 (5th Cir. 2000), cert. denied , 531 U.S. 849 (2000), (holding state court fact findings are presumed correct and the petitioner has the burden of rebutting the presumption by clear and convincing evidence); Hicks v. Johnson , 186 F.3d 634, 637 (5th Cir. 1999), cert. denied , 528 U.S. 1132 (2000), (holding the AEDPA requires federal habeas courts to accept as correct state court factual determinations unless the petitioner rebuts same by clear and convincing evidence); Morris v. Cain , 186 F.3d 581, 583 (5th Cir. 1999); Davis v. Johnson , 158 F.3d 806, 812 (5th Cir. 1998), cert. denied , 526 U.S. 1074 (1999); Jackson v. Johnson , 150 F.3d 520, 524 (5th Cir. 1998), cert. denied , 526 U.S. 1041 (1999); Williams v. Cain , 125 F.3d 269, 277 (5th Cir. 1997), cert. denied , 525 U.S. 859 (1998), (recognizing that under the AEDPA, state court factual findings "shall be presumed correct unless rebutted by 'clear and convincing evidence'"); Hernandez v. Johnson , 108 F.3d 554, 558 n. 4 (5th Cir. 1997), cert. denied , 522 U.S. 984 (1997), (holding that under the AEDPA, the proper forum for the making of all factual determinations in habeas cases will shift to the state courts "where it belongs" and recognizing that the AEDPA clearly places the burden on the federal habeas petitioner "to raise and litigate as fully as possible his potential federal claims in state court"); and 28 U.S.C. § 2254 (e)(1).
With the foregoing principles in mind, this Court turns to the merits of petitioner's claims for federal habeas corpus relief.
B. Invalid Guilty Plea Claims
1. Overview of the Claims
Petitioner argues that he suffers from organic brain damage and brain impairment, poor impulse control, an inability to learn from past mistakes, problems making rational decisions, fear of authority figures, the adverse effects of sexual and physical abuse he suffered as a child, and the deleterious effects of long-term abuse of LSD, cocaine, alcohol, marijuana, and paint-sniffing. As a result of these impairments, petitioner argues, his guilty plea was neither voluntary nor knowing and he was not competent to enter that plea. In support of these claims, petitioner offers the testimony of Dr. Potterf presented during petitioner's state habeas corpus proceeding, petitioner's abbreviated affidavit, and Dr. Potterf's report regarding his evaluation of the petitioner. As explained above, pursuant to the AEDPA, this Court's focus with regard to these claims is on the quality of the decision-making engaged in by the state courts in the course of petitioner's state habeas corpus proceeding, during which these same claims were denied on the merits.
See Petitioner's Original Petition, filed June 1, 1999, docket entry no. 18 (henceforth "Petition"), at pp. 20-29; and Petitioner's Reply to Respondent's Original Answer, filed December 20, 1999, docket entry no. 31 (henceforth "Petitioner's Reply"), at pp. 7-15.
See Exhibits 11, 15, and 17 attached to Petitioner's Petition, docket entry no. 18. A complete verbatim transcript from of the evidentiary hearing held in petitioner's state habeas corpus proceeding is attached as Exhibit 11 to petitioner's Petition.
2. Competence to Enter a Guilty Plea
a. The Constitutional Standard
It is well-settled that a criminal defendant may not be tried unless he is competent. A criminal defendant is competent to stand trial if (1) he has sufficient ability at the time of trial to consult with his attorney with a reasonable degree of rational understanding and (2) he has a rational as well as factual understanding of the proceedings against him. This same competence standard applies to a criminal defendant who wishes to enter a guilty plea.
Cooper v. Oklahoma , 517 U.S. 348, 355, 116 S.Ct. 1373, 1377, 134 L.Ed.2d 498 (1996); Godinez v. Moran , 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993); Drope v. Missouri , 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975): "a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial."; and Pate v. Robinson , 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966).
See Godinez v. Moran , 509 U.S. at 396, 113 S.Ct. at 2685; Drope v. Missouri , 420 U.S. at 172, 95 S.Ct. at 904; and Dusky v. United States , 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960)
See Godinez v. Moran , 509 U.S. at 396-400, 113 S.Ct. at 2685-87.
b. Analysis
In the course of petitioner's state habeas corpus proceeding, the state trial court specifically found that "there was nothing which occurred during the course of the applicant's trial which even remotely suggested that the applicant was incompetent to enter his guilty plea." Furthermore, the state trial court also concluded that "nothing was demonstrated during the hearing on applicant's writ of habeas corpus which supports his claim that he was incompetent to enter his plea of guilty."
See State Habeas Transcript, at p. 106.
See State Habeas Transcript, at p. 107.
Because the state habeas court rejected "on the merits" petitioner's claim that he was incompetent to enter his guilty plea, this Court is virtually bound by that conclusion unless the petitioner can show that the state habeas court's conclusion was either (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Petitioner does not identify any erroneous legal standard employed by the state habeas court in evaluating petitioner's competence to enter a guilty plea. Thus, this Court must focus on whether the state habeas court's determination was either (1) an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. "A federal court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." The focus of this inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable and an "unreasonable" application is different from a merely incorrect one.
See Bell v. Cone , ___ U.S. at ___, 122 S.Ct. at 1850; Penry v. Johnson , 532 U.S. at 792, 121 S.Ct. at 1918; and Williams v. Taylor , 529 U.S. at 407-08, 120 S.Ct. at 1520-21.
In Williams , the Supreme Court expressly reserved for another day the issue of how federal habeas courts should determine whether a state court erroneously extended a legal principle into a new realm or erroneously refused to extend existing legal principle into a new area. See Williams v. Taylor , 529 U.S. at 408-09, 120 S.Ct. at 1521.
Penry v. Johnson , 532 U.S. at 793, 121 S.Ct. at 1918; Williams v. Taylor , 529 U.S. at 409-11, 120 S.Ct. at 1520-22.
See Bell v. Cone , ___ U.S. at ___ 122 S.Ct. at 1850; Penry v. Johnson , 532 U.S. at 793, 121 S.Ct. at 1918; and Williams v. Taylor , 529 U.S. at 410-11, 120 S.Ct. at 1522.
In support of his claim that he was incompetent to enter his guilty plea, petitioner relies on (1) petitioner's history of childhood sexual and physical abuse, long-term drug abuse, and resulting emotional and organic brain impairments, (2) the testimony of Dr. Potterf at the evidentiary hearing held during petitioner's state habeas corpus proceeding, which petitioner contends established that, due to petitioner's mental impairments, the petitioner tends to respond to authority figures "in an almost frozen status . . . very fearful," (3) Dr. Potterf's testimony that the petitioner "would probably go along with" a directive from an attorney, and (4) Dr. Potterf's conclusion that if the petitioner were directed by an authority figure, such as an attorney, to plead guilty, the petitioner would "probably and possibly take the choice that would get him out of the situation as quickly as possible."
See S.F. State Habeas Hearing, at p. 10.
Id. , at p. 12.
Id. , at p. 13.
The problems with petitioner's reliance on Dr. Potterf's testimony to support a conclusion that the petitioner was incompetent to enter his guilty plea are legion. Initially, it must be pointed out that Dr. Potterf took great pains to disavow any personal knowledge or to express an opinion regarding whether the petitioner actually demonstrated or experienced the so-called "frozen state" at the time the petitioner entered his guilty plea. Second, while Dr. Potterf did express an opinion that "the possibility exists" the petitioner did not completely understand the consequences of his guilty plea and the nature of the proceedings against him, Dr. Potterf repeatedly expressed the opinion that the petitioner was competent to enter that plea. Third, the state trial court correctly pointed out in its findings of fact in petitioner's state habeas corpus proceeding that there was no evidence showing the petitioner's attorneys had ever advised the petitioner to enter his plea of guilty. Fourth, while the petitioner makes the naked assertion in his federal habeas corpus petition that the petitioner displayed the so-called "frozen state" at the time of his guilty plea hearing, petitioner failed to present either the state habeas court or this Court with any evidence supporting that assertion.
See S.F. State Habeas Hearing, at pp. 29-30, 52, and 58-50. More specifically, during questioning by both parties, Dr. Potterf repeatedly emphasized that (1) he would have to have observed the petitioner at the time of the guilty plea hearing to make a determination regarding whether the petitioner was then experiencing the "frozen state" ( Id. , at p. 52) and (2) he would not speculate on whether the petitioner actually experienced such a state during the guilty plea hearing because "I wasn't there and I didn't see him at the time" ( Id. , at p. 58).
Id. , at pp. 58-60.
Id. , at pp. 29 and 58.
See State Habeas Transcript, at p. 107 n. 2. In fact, petitioner presented neither the state habeas court nor this Court with any fact-specific allegations showing that his trial counsel ever advised petitioner to enter a guilty plea.
See Petitioner's Petition, at p. 27: "During the case, from pretrial through punishment, Andrew displayed, through his answers to questions by the trial court, his mannerisms, his disposition, and his behavior, this same frozen state." The initial problem with this assertion is that the petitioner offered the state habeas court absolutely no testimony from any witness describing the petitioner experiencing what Dr. Potterf described as a "frozen state" during any phase of the petitioner's pretrial or trial proceedings. Petitioner did not testify at his state habeas hearing and petitioner did not call anyone else who testified from personal knowledge regarding the petitioner's demeanor during pretrial and trial court proceedings.
Another problem with this assertion is that it relies on a single observation made by Dr. Potterf at the state habeas hearing: "Even at the state habeas hearing, Dr. Potterf pointed out that Andrew had hardly done anything, or even leaned over to ask his attorney, Mr. Gross, a single question." Id. The logical problem with relying upon the petitioner's demeanor at the state habeas hearing, held several years after the petitioner's trial, is that it furnishes no evidence regarding the petitioner's demeanor at trial, several years before.
Petitioner's affidavit filed in this cause offers no evidence regarding whether petitioner's trial counsel ever suggested that the petitioner enter a guilty plea. Likewise, the petitioner furnished neither the state habeas court nor this Court with any eyewitness testimony or affidavits describing the petitioner's demeanor at the time he entered his guilty plea. While the transcript from the petitioner's guilty plea hearing reveals that the petitioner responded to the state trial court's questions during the guilty plea hearing with little more than monosyllabic answers, see S.F. Trial, Volume XXI, at pp. 10-21, the state habeas court's factual finding that "nothing which occurred during the course of the applicant's trial even remotely suggested that the applicant was incompetent to enter his plea of guilty," see State Habeas Transcript, at p. 106, implicitly rejected the contention that the petitioner displayed the "frozen state" described by Dr. Potterf during his guilty plea hearing. A state court's determination of a factual issue must be presumed correct and that presumption is especially strong when, as here, the state habeas court and the trial court are one and the same. See Murphy v. Johnson , 205 F.3d 809, 813 (5th Cir. 2000), cert. denied , 531 U.S. 957 (2000).
Fifth, the petitioner's reliance upon Dr. Potterf's testimony ignores the fact that the same state trial judge who presided over petitioner's state habeas corpus proceeding also presided over petitioner's trial and guilty plea hearing. Pursuant to the AEDPA, findings of fact made by the same state trial judge, based on that judge's first-hand opportunity to observe the petitioner's demeanor at the critical juncture, are entitled to a high degree of deference from this Court. The same state trial judge who presided over several weeks of pretrial hearings on petitioner's motions to suppress and to exclude evidence, followed by several more weeks of individual voir dire, followed by petitioner's trial (including petitioner's guilty plea hearing), also presided over petitioner's state habeas corpus proceeding. Furthermore, in addition to observing petitioner's demeanor during the course of the extensive pretrial and trial court proceedings, the same state trial judge had the unusual opportunity to examine the petitioner's demeanor during petitioner's extensive testimony and cross-examination at the punishment phase of trial. With all due respect, Judge Harle's conclusions regarding the absence of any indication the petitioner was incompetent to enter his guilty plea, based upon Judge Harle's first-hand observations of the petitioner, are not refuted by Dr. Potterf's factually-unsupported, highly equivocal, suggestions regarding the "possibility" that the petitioner may have appeared in a "frozen state" during his guilty plea hearing.
See Rudd v. Johnson , 256 F.3d at 319: "The presumption is particularly strong when the state habeas court and the trial court are one and the same."
Even before the advent of the AEDPA, factual findings made by a state trial judge in a state habeas corpus proceeding were entitled to great deference when the same state trial judge had presided over the petitioner's trial court proceedings. Under pre-AEDPA case law, the Fifth Circuit distinguished the degree of deference due state court factual findings made pursuant to a "paper hearing" based upon whether the same trial judge who presided at trial also made the fact findings in question in the course of a subsequent state habeas corpus proceeding. See Vuong v. Scott , 62 F.3d 673, 683-84 (5th Cir. 1995), cert. denied , 516 U.S. 1005 (1995); Armstead v. Scott , 37 F.3d 202, 207 (5th Cir. 1994), cert. denied , 514 U.S. 1071 (1995); Nethery v. Collins , 993 F.2d 1154, 1157 n. 8 (5th Cir. 1993), cert. denied , 511 U.S. 1026 (1994) James v. Collins , 987 F.2d 1116, 1122 (5th Cir. 1993), cert. denied , 509 U.S. 947 (1993); Ellis v. Collins , 956 F.2d 76, 79 (5th Cir. 1992 (, cert. denied , 503 U.S. 915 (1992); May v. Collins , 955 F.2d 299, 312 (5th Cir. 1992), cert. denied , 504 U.S. 901 (1992); and Buxton v. Lynaugh , 879 F.2d 140, 143-47 (5th Cir. 1989), cert. denied , 497 U.S. 1032 (1990). The presumption of correctness accorded state court fact findings applied even when the state court relied upon affidavits rather than hearing live testimony if the same state court judge who presided over the federal habeas petitioner's state trial court proceedings also presided over the state habeas proceeding that produced the fact findings in question. See Vuong v. Scott , 62 F.3d at 683-84; Armstead v. Scott , 37 F.3d at 208; James v. Collins , 987 F.2d at 1122; Ellis v. Collins , 956 F.2d at 79; and May v. Collins , 955 F.2d at 310. When a state court entered written fact findings in which credibility questions were resolved and the same state court judge heard both the trial on the merits and the state application for habeas corpus, the state fact findings were entitled to a presumption of correctness even without a live, evidentiary state habeas hearing.See Armstead v. Scott , 37 F.3d at 208; James v. Collins , 987 F.2d at 1122; Ellis v. Collins , 956 F.2d at 79; May v. Collins , 955 F.2d at 307; and Buxton v. Collins , 879 F.2d at 144-46.
Sixth, there is the equivocal nature of Dr. Potterf's testimony itself. While Dr. Potterf did opine that there was "a possibility" that (1) the petitioner did not have a complete understanding of the proceedings against him and (2) the petitioner merely acquiesced in response to the trial court's questions during the guilty plea hearing without completely understanding same, the only specific facts Dr. Potterf could furnish to support his opinions in that regard were the petitioner's statements during Dr. Potterf's interview indicating that the petitioner did not fully understand what his sentence would be when he entered his guilty plea.
See S.F. State Habeas Hearing, at p. 58.
Id. , at p. 60.
To obtain an accurate perspective on the basis for Dr. Potterf's opinions regarding the petitioner's competence to enter his guilty plea, it is necessary to review Dr. Potterf's testimony in its entirety. However, one extensive excerpt from Dr. Potterf's cross-examination is of particular importance with regard to this issue:
Q Now, you see in here, Doctor, at some point that the indictment was read to the defendant in open court and Mr. Flores responded that he was guilty of the charge as alleged. Do you recall that?
A Yes.
Q Is it your conclusion that Mr. Flores was competent to enter that plea?
A Well, I think so at that time.
Q All right. You don't have any indication that Mr. Flores was suffering under any delusions or hallucinations at the time of the entry of that plea, is that correct?
A No, I have no indication of it.
Q Did he ever at any time indicate to you that that plea was not voluntarily and knowingly made?
A Well, he indicated he did not know the ramifications of it.
Q And is that the word he used, ramifications?
A No.
Q What terminology did he use?
A He said that he didn't know that that is the way it would turn out.
Q He didn't know that — I am trying to get a handle on his lack of knowledge regarding this event, because the record indicates extensive admonishments from the judge regarding what was going to happen and yet apparently Mr. Flores indicated to you that he was confused in some fashion and I would like to try to — for you to elaborate on what he was confused about.
A Well, even though these statements were made to him, he stated he didn't fully understand the implications of these statements.
Q Did he indicate in detail what he didn't understand?
A Well, the detail is that he did not understand that — what the sentence would be.
Q Well, at the time the guilty plea was entered, no one knew what the sentence would be, is that your understanding?
A Usually not.
Q Exactly. So the fact that he didn't understand what the sentence would be at the time he entered the plea, is not the same thing as not understanding what the potential sentence would be, is that correct?
A Yes.
Q Does Mr. Flores have an understanding of the English language?
A I would guess so.
Q You don't have any problem communicating with him in English, is that correct?
A No.
Q Did he ever indicate to you that he was unable to communicate with his attorneys at the time of their representation of him?
A Only from the point of view that he felt like that he didn't receive full explanations.
Q But he at no time indicated that he didn't speak the same language or anything like that, was there?
A No.
S.F. State Habeas Hearing, at pp. 28-31.
Finally, the petitioner's decision to enter his guilty plea must be viewed in proper context. By the date the petitioner entered his guilty plea, the state trial court had already ruled that the petitioner's inculpatory written statement and the incredibly damning videotape of the petitioner's robbery and murder of Juan Moreno would be admissible when introduced by the prosecution at trial. The petitioner was, therefore, well aware of the overwhelming evidence the prosecution was prepared to introduce at the guilt-innocence phase of petitioner's capital murder trial. Thus, the decision to enter a guilty plea and to argue that the petitioner was thereby accepting responsibility for his crime could hardly be characterized as an irrational one. On the contrary, under such circumstances, entering a plea of not guilty would have been not merely foolhardy but counter-productive in terms of seeking to obtain sympathy from the sentencing jury.
This is not a case in which a criminal defendant's guilty plea waived easily recognizable defenses. There was absolutely no doubt what transpired on the night the petitioner robbed and murdered Moreno. In the face of the overwhelming evidence of his guilt, petitioner's decision to enter a guilty plea was not only a rational one, it was the only rational choice available to petitioner if he wished to avoid a death sentence.
c. Conclusions
Under such circumstances, the state habeas court's rejection of petitioner's claim that he was incompetent to enter his guilty plea was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented in the state habeas corpus proceeding. Dr. Potterf's testimony at the hearing held in petitioner's state habeas corpus proceeding regarding petitioner's alleged incompetence to enter his guilty plea was neither clear nor convincing on that point. The state habeas court's factual findings regarding petitioner's competence to enter his guilty plea are fully supported by the record before that court. The state habeas court correctly applied the appropriate legal standard for determining petitioner's competence to enter his guilty plea. Thus, petitioner is not entitled to federal habeas corpus relief under the AEDPA based on his claim that he was incompetent to enter his guilty plea.
3. Validity of Petitioner's Guilty Plea
A guilty plea will be upheld on collateral review if entered into voluntarily, intelligently, and knowingly.
See United States v. Hernandez , 234 F.3d 252, 254 (5th Cir. 2000); and Montoya v. Johnson , 226 F.3d 399, 404 (5th Cir. 2000), cert. denied , 532 U.S. 1067 (2001). While the terms "voluntary" and "knowing" are frequently used interchangeably, they embody different concepts, i.e., a plea of guilty is not voluntary if induced by threats, misrepresentations, unfulfilled promises, or promises of an improper nature; whereas, the requirement that a guilty plea be "knowing" mandates that the defendant understand the "consequences" of his plea; i.e., the maximum possible punishment he could receive if convicted. See United States v. Hernandez , 234 F.3d at 254 n. 3.
a. Voluntariness Requirement
A criminal defendant's inculpatory admissions, made in open court during a guilty plea hearing, are usually entitled to great deference when subsequently challenged. "Ordinarily, a defendant will not be heard to refute his testimony given under oath when pleading guilty." If, however, the defendant offers specific factual allegations supported by the affidavit of a reliable third person, then he is entitled to a hearing on his allegations. "Solemn declarations in open court carry a strong presumption of verity." The representations made by the defendant, his lawyer, and the prosecutor at a plea hearing, as well as the findings made by the trial judge accepting the plea, constitute a formidable barrier to any subsequent collateral attack. Any documents signed by the defendant at the time of the guilty plea are entitled to "great evidentiary weight."
United States v. Fuller , 769 F.2d 1095, 1099 (5th Cir. 1985).
United States v. Fuller , 769 F.2d at 1099; see also United States v. McCord , 618 F.2d 389, 393-94 (5th Cir. 1980); and Dugan v. United States , 521 F.2d 231, 233 (5th Cir. 1975).
Blackledge v. Allison , 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); United States v. Cervantes , 132 F.3d 1106, 1110 (5th Cir. 1998); see also Lott v. Hargett , 80 F.3d 161, 168 (5th Cir. 1996); DeVille v. Whitley , 21 F.3d 654, 659 (5th Cir. 1994), cert. denied , 513 U.S. 968 (1994): "Although their attestations to voluntariness are not an absolute bar to raising this claim, Appellants face a heavy burden in proving that they are entitled to relief because such testimony in open court carries a strong presumption of verity."; United States v. Raetzsch , 781 F.2d 1149, 1151 (5th Cir. 1986); and United States v. Patterson , 739 F.2d 191, 195 (5th Cir. 1984).
See Blackledge v. Allison , 431 U.S. at 73-74, 97 S.Ct. at 1629; DeVille v. Whitley , 21 F.3d at 659; United States v. Smith , 844 F.2d 203, 208 (5th Cir. 1988); United States v. Raetzsch , 781 F.2d at 1151; United States v. Corbett , 742 F.2d 173, 178 n. 11 (5th Cir. 1984); and United States v. Patterson , 739 F.2d at 195. See also United States v. Nuckols , 606 F.2d 566, 569-70 (5th Cir. 1979), (holding that the threatened prosecution of a third-party, such as a member of the defendant's family, does not itself render a guilty plea involuntary when there is probable cause for such prosecution).
See United States v. Abreo , 30 F.3d 29, 32 (5th Cir. 1994), cert. denied , 513 U.S. 1064 (1994); and Hobbs v. Blackburn , 752 F.2d 1079, 1081 (5th Cir. 1985), cert. denied , 474 U.S. 838 (1985).
During his guilty plea hearing, the petitioner represented on the record in open court that (1) he was pleading guilty because he was guilty and for no other reason, (2) no threats or promises induced his plea, (3) he understood that he would receive either a death sentence or a life sentence without the possibility of parole for thirty-five years, (4) he understood that he was admitting all the essential elements of his offense and that his plea was conclusive at the guilt-innocence phase of his trial, (5) he understood that he had the right to a jury trial, to require the prosecution to prove its case beyond a reasonable doubt, to cross-examine witnesses, and to testify as a witness, (6) he was pleading guilty voluntarily and of his own free will, (7) he had an eleventh grade education, (8) he had never been confined to a mental institution or hospital, (9) he understood that the state would ordinarily be required to prove the charge in the indictment and all the elements of that offense, (10) he wanted to plead guilty, (11) he understood that his guilty plea waived his right to appeal the trial court's rulings on his pretrial motions, (12) he understood that a guilty plea is an admission of all the elements of the offense, but (13) he understood that the state could still introduce evidence at the punishment phase of his trial.
See S.F. Trial, Volume XXI, at pp. 10-17.
In support of his contention that his guilty plea was involuntary, petitioner again relies on the testimony of Dr. Potterf at the evidentiary hearing held during petitioner's state habeas corpus proceeding established that, due to petitioner's mental impairments, the petitioner tends to respond to authority figures "in an almost frozen status . . . very fearful."
See S.F. State Habeas Hearing, at p. 10.
As explained above, the same state trial judge who presided over petitioner's guilty plea hearing also presided over petitioner's state habeas corpus proceeding. Judge Harle had the opportunity to witness first-hand petitioner's demeanor during the guilty plea hearing, as well as throughout the extensive pretrial and trial proceedings, and to consider Dr. Potterf's speculative opinion testimony regarding the "possibility" the petitioner might have experienced a "frozen state" response during the guilty plea hearing. Judge Harle's implicit rejection of Dr. Potterf's theory during the course of petitioner's state habeas corpus proceeding is fully supported by this Court's independent review of the record from petitioner's guilty plea hearing, as well as the total absence of any evidence presented to either the state habeas court or this Court establishing that the petitioner did, in fact, experience such a "frozen state" during his guilty plea hearing. Likewise, petitioner has wholly failed to present either the state habeas court or this Court with any evidence showing that the petitioner's attorney ever suggested or advised petitioner to enter a guilty plea.
Aside from the petitioner himself, no one was in a better position than Judge Harle to determine whether the petitioner was behaving in a manner similar to that described by Dr. Potterf at the time of petitioner's guilty plea hearing. Judge Harle's categorical rejection of Dr. Potterf's suggestion is fully supported by the record from petitioner's guilty plea hearing.
Under such circumstances, the state habeas court's rejection of petitioner's claim that his guilty plea was involuntary was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented in the state habeas corpus proceeding. Dr. Potterf's testimony at the evidentiary hearing held in petitioner's state habeas corpus proceeding regarding petitioner's alleged inability to voluntarily enter his guilty plea was neither clear nor convincing on that point and is insufficient to refute the petitioner's representations made in open court on the record at his guilty plea hearing. Furthermore, petitioner offered the state habeas court absolutely no evidence showing that (1) the petitioner's trial counsel had recommended that petitioner enter a guilty plea, (2) anyone applied any coercion to convince the petitioner to enter his guilty plea, or (3) the petitioner had, in fact, exhibited a "frozen state" during his guilty plea colloquy with the state trial court. The state habeas court correctly applied the appropriate legal standard for determining whether petitioner's guilty plea was voluntarily entered. The state habeas court's factual findings regarding the voluntary nature of the petitioner's guilty plea are entitled to great deference from this Court not only because they are fully supported by the record before the state habeas court but also because the same trial judge who accepted petitioner's guilty plea presided over petitioner's state habeas corpus proceeding. Thus, petitioner is not entitled to federal habeas corpus relief under the AEDPA based on his claim that his guilty plea was involuntary.
b. Knowing and Intelligent Requirements
For a guilty plea to be "intelligently" and "knowingly" entered, the defendant must understand both the true nature of the charge against him, and "the consequences" of a guilty plea, respectively.
See United States v. Briggs , 939 F.2d 222, 227 (5th Cir. 1991)
See United States v. Pearson , 910 F.2d 221, 223 (5th Cir. 1990), cert. denied , 498 U.S. 1093 (1991).
A plea is intelligent if the defendant understood the nature and substance of the charges against him and not necessarily whether he understood their technical legal effect. Petitioner has not presented this Court with any specific factual allegations establishing that he was uninformed about the nature of the charge against him when he pleaded guilty. Thus, the Court must focus on whether petitioner understood the consequences of his plea.
See James v. Cain , 56 F.3d at 666, citing Taylor v. Whitley , 933 F.2d 325, 329 (5th Cir. 1991), cert. denied , 503 U.S. 988 (1992). A guilty plea is intelligent even if the trial court failed to specifically explain to the defendant the nature of the offense if the record shows that the defendant understood the charge and its consequences. See United States v. Reyna , 130 F.3d 104, 110 (5th Cir. 1997), cert. denied , 523 U.S. 1033 (1998); Bonvillain v. Blackburn , 780 F.2d 1248, 1250 (5th Cir. 1986); David v. Butler , 825 F.2d 892, 893 (5th Cir. 1987); and Hobbs v. Blackburn , 752 F.2d at 1081. However, the defendant must understand what he is being charged with. See United States v. Suarez , 155 F.3d 521, 524-25 (5th Cir. 1998).
With respect to guilty pleas, the "knowing" requirement that a defendant understand "the consequences" of a guilty plea means only that the defendant must know the maximum prison term and fine for the offense charged. Be fore accepting petitioner's guilty plea, the state trial court expressly and specifically advised the petitioner that he would receive either a life sentence, without the possibility of parole for thirty-five years, or a sentence of death if he persisted with his plea. Petitioner presented the state habeas court with no direct testimony establishing that his representations made in open court during his guilty plea were false or inaccurate in any regard.
See United States v. Dees , 125 F.3d 261, 269 (5th Cir. 1997), cert. denied , 522 U.S. 1152 (1998); Ables v. Scott , 73 F.3d 591, 592-93 n. 2 (5th Cir. 1996), cert. denied , 517 U.S. 1198 (1996); James v. Cain , 56 F.3d at 666, (holding that as long as the defendant understands the length of time he might possibly receive, he is fully aware of his plea's consequences); Spinelli v. Collins , 992 F.2d 559, 561 (5th Cir. 1993); United States v. Pearson , 910 F.2d at 223; United States v. Rivera , 898 F.2d 442, 447 (5th Cir. 1990); and Barbee v. Ruth , 678 F.2d 634, 635 (5th Cir. 1982), cert. denied , 459 U.S. 867 (1982).
See S.F. Trial, Volume XXI, at p. 11.
Once again, petitioner's assertion that his guilty plea was unknowing is premised upon Dr. Potterf's equivocal opinions that the petitioner may not have fully understood the consequences of his guilty plea. However, the petitioner's representations in open court when he entered his guilty plea belie any such claim. Dr. Potterf's suggestions that the petitioner might have responded with utter subservience and gone into a "frozen state" and in response to a suggestion from his trial counsel to enter a guilty plea is unsupported by any direct evidence showing the petitioner's demeanor at the time he entered his guilty plea. Most telling, perhaps, is the absence of any direct testimony from the petitioner at his state habeas corpus hearing establishing that, contrary to the petitioner's assertions in open court, he did not fully comprehend the range of potential sentences he could receive if he persisted in his plea.
Dr. Potterf's testimony that the petitioner did not accurately anticipate that he would, in fact, receive a death sentence does not establish that the petitioner's guilty plea was unknowing. The Constitution does not require that a criminal defendant be informed, prior to the acceptance of a guilty plea, of either what his or her specific sentence will be or the specific manner in which the trial court will calculate the defendant's sentence. In short, even assuming that the petitioner possessed a subjective expectation that his guilty plea would be followed by the imposition of a life sentence, that fact, standing alone, does not render his guilty plea unknowing.
See United States v. Hoster , 988 F.2d 1374, 1379 (5th Cir. 1993), (holding that a district court is not required to predict the guidelines range applicable to a defendant before accepting a guilty plea); United States v. DeFusco , 930 F.2d 413, 415 (5th Cir. 1991), cert. denied , 502 U.S. 885 (1991): "We do not expect the trial court to be fully apprised [sic] of the relevant guideline computations when guilty pleas are accepted."; United States v. Tuangmaneeratmun , 925 F.2d 797, 805 (5th Cir. 1991), (holding that, under Rule 11, a District Court is not required to calculate and explain a Guideline sentence before accepting a guilty plea); United States v. Shacklett , 921 F.2d 580, 583 n. 3 (5th Cir. 1991), (holding that Rule 11 does not require the Court to calculate and explain the Guidelines sentence before accepting the defendant's guilty plea and recognizing that determining such would be practically impossible prior to the preparation of a PSIR); and United States v. Smallwood , 920 F.2d 1231, 1239-40 (5th Cir. 1991), cert. denied , 501 U.S. 1238 (1991), and United States v. White , 912 F.2d 754, 756 (5th Cir. 1990), cert. denied , 498 U.S. 989 (1990), (both holding that a District Court is not required to advise the defendant of his exact sentence prior to accepting a guilty plea). See also United States v. Smallwood , 920 F.2d at 1239-40, and United States v. White , 912 F.2d at 756, (both holding that the Constitution does not require that defense counsel be able to predict what a criminal defendant's exact sentence will be prior to the entry of a guilty plea).
Petitioner does not allege any facts showing that anyone ever promised him or guaranteed him a life sentence in exchange for his guilty plea. Moreover, as explained above, entry of a guilty plea appears to this Court to have been the only rational strategic option available to petitioner once it became apparent that the videotape of his crimes would be played for the jury at his trial.
Under such circumstances, the state habeas court's rejection of petitioner's claim that his guilty plea was unknowing was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented in the state habeas corpus proceeding. Dr. Potterf's testimony at the evidentiary hearing held in petitioner's state habeas corpus proceeding regarding petitioner's alleged inability to comprehend the consequences of his guilty plea was neither clear nor convincing on that point. The state habeas court correctly applied the appropriate legal standard for determining whether petitioner's guilty plea was knowingly entered. The state habeas court's factual findings regarding the knowing nature of his guilty plea are entitled to great deference from this Court not only because they are fully supported by the record before the state habeas court but also because the same trial judge who accepted petitioner's guilty plea presided over petitioner's state habeas corpus proceeding. Thus, petitioner is not entitled to federal habeas corpus relief under the AEDPA based on his claim that his guilty plea was unknowing.
C. Ineffective Assistance Claims
1. The Claims
Petitioner argues next that his trial counsel rendered ineffective assistance by failing to (1) object to, and thereby preserve for appellate review, a complaint regarding the state trial court's granting of the prosecution's challenge for cause to venire member Roundtree, (2) present mitigating evidence at the punishment phase of petitioner's trial, and (3) adequately investigate petitioner's background, including failing to obtain an independent psychiatric evaluation of the petitioner.
2. The Constitutional Standard
The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in the case of Strickland v. Washington :
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
In order to establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness." In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. The courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law are virtually unchallengeable. Counsel is required neither to advance every non-frivolous argument nor to investigate every conceivable matter inquiry into which could be classified as non-frivolous. A criminal defense counsel is not required to exercise clairvoyance during the course of a criminal trial. Likewise, the Sixth Amendment does not require that counsel do what is impossible or unethical; if there is no bona fide defense to the charge, counsel is not required to create one.
Williams v. Taylor , 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000); Darden v. Wainwright , 477 U.S. 168, 184, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986); and Strickland v. Washington , 466 U.S. at 687-88, 104 S.Ct. at 2064.
See Strickland v. Washington , 466 U.S. at 687-91, 104 S.Ct. at 2064-66.
See Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993); Burger v. Kemp , 483 U.S. 776, 789, 107 S.Ct. 3114, 3123, 97 L.Ed.2d 638 (1987); and Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065-66.
See Strickland v. Washington , 466 U.S. at 690, 104 S.Ct. at 2066.
See Jones v. Jones , 163 F.3d 285, 300 (5th Cir. 1998), cert. denied , 528 U.S. 895 (1999); Ransom v. Johnson , 126 F.3d 716, 721 (5th Cir. 1997), cert. denied , 522 U.S. 944 (1997); Green v. Johnson , 116 F.3d 1115, 1122 (5th Cir. 1997), ("A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness."); Boyle v. Johnson , 93 F.3d 180, 187-88 (5th Cir. 1996), cert. denied , 519 U.S. 1120 (1997), (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson , 92 F.3d 1385, 1406-09 (5th Cir. 1996), cert. denied , 520 U.S. 1242 (1997), (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); and Bryant v. Scott , 28 F.3d 1411, 1435 (5th Cir. 1994), citing Strickland v. Washington , 466 U.S. at 691, 104 S.Ct. 2066; and Andrews v. Collins , 21 F.3d at 623, (holding that counsel acted reasonably in failing to further pursue the defendant's mental capacity or background where counsel had no reason to believe that further investigation would be useful).
See Neal v. Cain , 141 F.3d 207, 214-15 (5th Cir. 1998), (holding that petitioner's complaints regarding counsel's failure to raise specific defenses did not satisfy prejudice prong of Strickland where proposed defenses were without merit); Sones v. Hargett , 61 F.3d 410, 415 n. 5 (5th Cir. 1995): "Counsel cannot be deficient for failing to press a frivolous point."; United States v. Gibson , 55 F.3d 173, 179 (5th Cir. 1995): "Counsel is not required by the Sixth Amendment to file meritless motions."; Smith v. Collins , 977 F.2d 951, 960 (5th Cir. 1992), cert. denied , 510 U.S. 829, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993): "The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources."; Koch v. Puckett , 907 F.2d 524, 527 (5th Cir. 1990): "counsel is not required to make futile motions or objections."; Schwander v. Blackburn , 750 F.2d 494, 500 (5th Cir. 1985), (holding that defense counsel is not required to investigate everyone whose name is mentioned by the defendant); and Murray v. Maggio , 736 F.2d 279, 283 (5th Cir. 1984): "Counsel is not required to engage in the filing of futile motions."
See Sharp v. Johnson , 107 F.3d 282, 290 n. 28 (5th Cir. 1997),citing Garland v. Maggio , 717 F.2d 199, 207 (5th Cir. 1983), (holding that clairvoyance is not a required attribute of effective representation). See also Lackey v. Johnson , 116 F.3d 149, 152 (5th Cir. 1997), (holding that trial counsel was not ineffective for failing to discover evidence about which the defendant knew but withheld from his counsel).
See United States v. Cronic , 466 U.S. 648, 656 n. 19, 104 S.Ct. 2039, 2045 n. 19, 80 L.Ed.2d 657 (1984).
The proper standard for evaluating counsel's performance under the Sixth Amendment is "reasonably effective assistance." "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." "Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." In order to establish that he has sustained prejudice, the convicted defendant "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. The prejudice prong of Strickland focuses on whether counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair; unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.
Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064.
Strickland v. Washington , 466 U.S. at 691, 104 S.Ct. at 2067.
Strickland v. Washington , 466 U.S. at 692, 104 S.Ct. at 2067.
Williams v. Taylor , 529 U.S. at 391, 120 S.Ct. at 1511-12; Strickland v. Washington , 466 U.S. at 694, 104 S.Ct. at 2068.
Woodford v. Visciotti , ___ U.S. ___, ___, 123 S.Ct. 357, 359, 154 L.Ed.2d 279 (2002), quoting Strickland v. Washington , 466 U.S. at 694, 104 S.Ct. at 2068.
Williams v. Taylor , 529 U.S. at 393 n. 17, 120 S.Ct. at 1513 n. 17; Strickland v. Washington , 466 U.S. at 692, 104 S.Ct. at 2067.
3. Failure to Object to Exclusion of Venire Member Roundtree
a. The Claim
In his first assertion of ineffective assistance, petitioner complains that his trial counsel failed to object to, and thereby preserve for appellate review, a complaint regarding the state trial court's granting of the prosecution's challenge for cause to venire member Katherine Green Roundtree. More specifically, petitioner argues that the state trial court erred in granting the prosecution's challenge for cause directed against venire member Roundtree because Ms. Roundtree's answers during her voir dire examination did not disqualify her from service under the Supreme Court's holding regarding jury selection for capital trials.
See Petitioner's Petition, docket entry no. 18, at pp. 30-33.
b. Voir Dire Examination of Katherine Roundtree
To call venire member Roundtree's testimony regarding the impact of her personal opposition to the death penalty on her ability to serve on petitioner's jury "equivocal" would be a gross understatement.
During questioning by the prosecution, Ms. Roundtree made it very clear that she was personally opposed to capital punishment, by testifying that (1) she had indicated in her written answers to the juror questionnaire that she did not believe in capital punishment, (2) she did not believe in the death penalty, (3) she could not think of any offense for which the death penalty would be appropriate, (4) she could not serve on any jury asked to consider the death penalty, and (5) she believed that capital murder should be punished by life imprisonment and not the death penalty. However, when the prosecutor addressed the issue of whether she could set aside her personal beliefs and answer the special issues submitted in a Texas capital murder trial, Ms. Roundtree indicated, at least initially, that she might be able to answer those special issues in a manner that resulted in the imposition of the death penalty. Almost contemporaneously, Ms. Roundtree confessed that she did not wish to serve on a jury faced with the possibility of imposing the death penalty. What followed soon thereafter were repeated admissions by Ms. Roundtree that her personal feelings against capital punishment would interfere with her ability to answer the special issues at sentencing in such a way that the imposition of the death penalty resulted. At that point, the prosecution challenged Ms. Roundtree for cause.
See S.F. Trial, Volume XV, voir dire testimony of Katherine Green Roundtree, at pp. 53-58.
Id. , at pp. 62-63:
Q * * * Let me ask you, if you were selected to serve on this jury panel, and knowing that I am seeking the death penalty, would you ever be able to answer these questions in such a way that the death penalty would be imposed?
A I think so.
Id. , at p. 64.
Id. at p. 68:
Q Could you — could you answer them in such a way that the death penalty would be imposed if I convince you beyond a reasonable doubt that they should be answered that way or would your feelings about the death penalty prevent you from being able to do that?
A I think it would prevent me from doing it.
Id. , at pp. 69-71:
Q Would you be able to answer these questions if it is proven to you beyond a reasonable doubt that the death penalty should be imposed or would your feelings and beliefs about the death penalty be so strong that you would be unable to answer them in such a way that death would be imposed?
A I don't think I would be able to answer.
Q Is that because of your feelings about the death penalty?
A Right.
Q * * * So don't feel bad about saying that you cannot follow the law and base your decision on these questions in such a way that death would be imposed if I prove it to you beyond a reasonable doubt because you have strong feelings about the death penalty. Don't feel bad about that. But because of tat reason it would not be fair for me to have to overcome or never be able to convince you that death would be imposed if you have those feelings. And is that what you are telling me?
A (Nods in the affirmative.)
Q You need to speak up for the court reporter.
A Yes.
Q Is there anything I can say that could change your mind on that?
A I don't think so.
Id. , at p. 71.
Under questioning by petitioner's trial counsel, Ms. Roundtree displayed further equivocation about her ability to render a verdict based on the evidence, follow the law as charged by the trial court, and adhere to her oath as a juror.
See S.F. Trial, Volume XV, testimony of Katherine Green Roundtree, at pp. 72-79:
Q * * * Can you follow that law, can you make them prove the case?
A Can I make them prove it?
Q Yes. That's your job as a juror. Can you follow that law?
A No.
Q Why can't you make them follow that law?
A I don't know, I just can't.
Id. , at p. 72
* * *
Q * * * We want you to tell us what you can do and what you can't do. Can you follow the law?
A Yes, I can follow the law.
Q If the Judge — if you are picked as a juror and the Judge gives you an oath to follow the law, can you follow that law?
A Yes.
Q And can you answer the questions based on what you hear?
A I might and I might not.
Q Why wouldn't you?
A I don't know. Because of what question he asked.
Q I'm —
A Because of what questions he asked me.
Id. , at p. 73.
* * *
Q * * * Now, could you make your decision on what those issues are or answers are, you as one of the 12 people there, and base it on what you heard from the witness stand and what the law is, following your oath?
A I can follow that, but I just — like I keep saying, I guess I just don't want to be on the case.
Q * * * Can you follow your oath and base your decision on those issues on that oath?
A I don't think so.
Id. , at p. 75.
* * *
Q * * * Jurors are to return verdicts according to what is sworn to in court and what they believe is the truth that comes from the courtroom. Could you do that?
A No.
Q Why not?
A I just couldn't. I can see myself getting up there nervous and everything.Id. , at p. 77.
* * *
Q * * * What we are asking is, will you return a verdict according to what you hear from the witness stand?
A Yes.
Q * * * If you think they should get the death penalty, you — if you as a juror think they should get the death penalty you will vote for that. If you think they don't, you vote that way. It is up to you. Can you follow that law?
A No.
Q Why not?
A Because I don't believe in it.
Q You don't believe in what?
A The death penalty.
Id. , at pp. 78-79.
At that point, the state trial judge, the Honorable Sid Harle, briefly intervened to ask Ms. Roundtree a question:
THE COURT: Once again, Ma'am, everybody can have their own beliefs. The question is whether or not you can set those aside and follow the law. If you can then you are qualified. If you can't then you are not qualified. That is what we are here about. So I will overrule the objection, if you answer the question for us.
Id. , at p. 79.
As petitioner's trial counsel continued his voir dire examination of Ms. Roundtree, her answers indicated that she was intent on responding in a manner that rendered her unqualified to serve on petitioner's jury:
Q * * * The question is, can you put aside your feelings or not and follow the law and make a decision based on what you hear from the witness stand and what the law is? Can you say, "If I believe the person should get — if I believe and they have proven it beyond a reasonable doubt that he should get the death penalty, I will vote that way. If I believe he doesn't deserve the death penalty then I am going to vote that way too"? Can you do that and make —
A It would be hard for me to put my feelings to the side and make a decision.
Q There is no question it would be hard. The question is — and you don't come in here without feelings. Everybody has their own feelings. Will you make then — if — prove the case. You have to believe he deserves life imprisonment or you can't be a juror. Okay. Can you make — if — make them — put them to the proof and make them prove it beyond a reasonable doubt?
A I don't think I can.
Q Why not?
A Because of my feeling, because of my feeling of the sentence.
Q So you wouldn't make them prove he deserves the death penalty?
A I couldn't.
Q So —
A Because of my feelings against it.
Q You wouldn't make them prove it? You would make — give him the death penalty no matter what?
A I couldn't do it.
Q You couldn't do what?
A I couldn't make my decision on it because of my feelings toward it.
Q You understand that the person is supposed to get life imprisonment unless you say otherwise?
A Yes.
Q So you are saying you wouldn't make the State prove the case, that you would give him the death penalty no matter what?
A I couldn't make no decision, that's all I can say.
Id. , at pp. 80-82.
Judge Harle once again intervened, this time to attempt to focus Ms. Roundtree on the her ability to fulfill her duties as a juror in a capital trial:
THE COURT: * * * From everything you have told me and based upon your answer in the questionnaire, specifically to Question No. 77, "Do you believe there should be a death penalty?" you said no, and then you further went and said, "I think they should do life in prison." Then further on they asked you again, "Do you know of any reason why you couldn't be absolutely fair to the defendant and the State?" That was No. 88, and you say, "Yes, because I don't believe in capital murder." I take that to mean that you don't believe in capital punishment, meaning the death penalty. Is that correct?
MS. ROUNDTREE: Right.
THE COURT: No. 88. You kind of told Mr. Cohen that and you've said, "I don't believe that I could sit on a jury where I am going to be asked to answer those questions in such a way to render the death penalty. You can't think of a situation where you could do that, is that correct?"
MS. ROUNDTREE: Right.
THE COURT: Is that right?
MS. ROUNDTREE: Yes.
THE COURT: So you can't envision a situation in your mind where you could answer those questions in such a way as to return a death penalty knowing what those answers mean?
MS. ROUNDTREE: Right.
THE COURT: I will grant the challenge for cause. Thank you very much, Ma'am.
Id. , at pp. 82-83.
c. Supreme Court Case Law Re Capital Jury Selection
In Witherspoon v. Illinois , the Supreme Court held that prospective jurors may not be excused from sitting on a capital jury simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Rather, the Supreme Court held as follows:
The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty regardless of the facts and circumstances that might emerge in the course of the proceedings.
Witherspoon v. Illinois , 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21.
In Adams v. Texas , the Supreme Court emphasized the limitations Witherspoon imposed on the ability of the State to exclude members of a jury venire from service on a petit capital jury and directly addressed jury selection in Texas capital murder trials:
a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.
Adams v. Texas , 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)
The Supreme Court went on in Adams to discuss the many practical consequences of its Witherspoon holding:
If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality.Adams v. Texas , 448 U.S. at 46, 100 S.Ct. at 2527.
[A] Texas juror's views about the death penalty might influence the manner in which he performs his role but without exceeding the "guided jury discretion" permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon.Adams v. Texas , 448 U.S. at 46-47, 100 S.Ct. at 2527.
The State could, consistently with Witherspoon, use § 12.31(b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths. But the use of § 12.31(b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible.Adams v. Texas , 448 U.S. at 48-49, 10 S.CL. at 2528.
[N]either nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court's instructions and obey their oaths, regardless of their feelings about the death penalty. * * * Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond a reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. * * * [T]he State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths.Adams v. Texas , 448 U.S. at 50, 100 S.Ct. at 2529.
In Wainwright v. Witt , the Supreme Court further clarified its holdings in Witherspoon and Adams , holding that the proper inquiry when faced with a venire member who expresses personal, conscientious, or religious views on capital punishment is "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." In Witt , the Supreme Court also emphasized that considerable deference is to be given the trial court's first-hand evaluation of the potential juror's demeanor and that no particular magical incantation or word choice need necessarily be followed in interrogating the potential juror in this regard.
Wainwright v. Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). Accord McFadden v. Johnson , 166 F.3d 757, 760 (5th Cir. 1999), cert. denied , ___ U.S. ___, 120 S.Ct. 369, 145 L.Ed.2d 287 (1999); and Fuller v. Johnson , 114 F.3d 491, 500 (5th Cir. 1997), cert. denied , 522 U.S. 963 (1997).
See Wainwright v. Witt , 469 U.S. at 430-35, 105 S.Ct. at 855-58.
In Gray v. Mississippi , the Supreme Court held that the erroneous dismissal of a potential juror in violation of Witherspoon was not subject to harmless error analysis.
See Gray v. Mississippi , 481 U.S. 648, 668, 107 S.Ct. 2045, 2057, 95 L.Ed.2d 622 (1987); and Fuller v. Johnson , 114 F.3d at 500.
d. Analysis
The problems with petitioner's complaint about his trial counsel's failure to object to the state trial court's action in granting the prosecution's challenge for cause to venire member Roundtree are two-fold: that complaint fails to satisfy either prong of Strickland .
(1) No Deficient Performance
Even a cursory review of venire member Roundtree's voir dire examination reveals that she was personally opposed to the death penalty. She made that fact no secret, disclosing her personal opposition to capital punishment in her answers to the jury questionnaire and verifying her stance in her responses to questions by both parties and the trial court. What is even more evident is that Ms. Roundtree did not wish to serve on a jury that was charged with the possible imposition of the death penalty, a point she repeatedly emphasized.
Despite some equivocation, Ms. Roundtree also made it abundantly clear that her personal feelings in opposition to the death penalty would make it impossible for her to answer the Texas capital sentencing special issues in a manner that resulted in the imposition of the death penalty. In fact, her adamance on this point seemed to increase the longer she was questioned by both petitioner's trial counsel and the trial judge. She repeatedly insisted that she could not follow the oath required of capital jurors and answer the capital sentencing specialissues based on the evidence and the court's instructions regarding the law.
See S.F. Trial, Volume XV, voir dire testimony of Katherine Green Roundtree, at pp. 68-71, 72-73, 75, 77-79, and 82-83.
Id.
Id. , at pp. 72, 77, 78-79, and 82-83.
Petitioner argues that the state trial court's exclusion of Ms. Roundtree violated the Supreme Court's holding in Witherspoon and its progeny because Ms. Roundtree never specifically or explicitly declared that "she would consciously distort answers to special issues in order to prevent the imposition of the death penalty." However, petitioner ignores the Supreme Court's clear holdings in Wainwright v. Witt that (1) the proper inquiry when faced with a venire member who expresses personal, conscientious, or religious views on capital punishment is "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath," (2) considerable deference is to be given the trial court's first-hand evaluation of the potential juror's demeanor, and (3) no particular magical incantation or word choice need necessarily be followed in interrogating the potential juror in this regard. While it is true that Ms. Roundtree was never specifically asked whether she would "consciously distort" her answers to the Texas capital sentencing special issues so as to avoid the possible imposition of the death penalty, her answers to the questions which were posed to her by the prosecution, petitioner's trial counsel, and the trial judge left absolutely no doubt she was prepared to do precisely that if she were forced, against her will, to sit as a juror during petitioner's capital murder trial. No mystical incantation by Ms. Roundtree or her interrogators was necessary to establish that fact. Trial counsel are not required to present futile objections or to preserve meritless contentions for presentation on appeal.
See Petitioner's Petition, at pp. 30-31 and 33.
Wainwright v. Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). Accord McFadden v. Johnson , 166 F.3d 757, 760 (5th Cir. 1999), cert. denied , 528 U.S. 947 (1999); and Fuller v. Johnson , 114 F.3d 491, 500 (5th Cir. 1997), cert. denied , 522 U.S. 963 (1997).
See Wainwright v. Witt , 469 U.S. at 430-35, 105 S.Ct. at 855-58.
Furthermore, other, strategic, reasons may have existed for the decision by petitioner's trial counsel not to contest Ms. Roundtree's exclusion. Among them is the fact that petitioner's trial counsel displayed obvious frustration with the equivocation, vacillation, and apparent confusion Ms. Roundtree displayed during her voir dire examination. It is quite conceivable that petitioner's trial counsel might have preferred not to have a member of the jury who was unable to focus on the questions being asked or to follow the logic of the arguments being made by petitioner's trial counsel. Petitioner's trial counsel may also have felt that his inability to obtain straight-forward answers from Ms. Roundtree during her voir dire examination reflected a possible personality conflict between himself and her which would not serve petitioner's best interests if Ms. Roundtree were to serve on petitioner's jury. It is also possible petitioner's trial counsel recognized that, in light of her equivocation during voir dire, Ms. Roundtree would be unlikely to articulate and support a position in opposition to a death penalty for petitioner during jury deliberations. Admittedly, the foregoing consists of speculation by this Court as to the reasons why petitioner's trial counsel chose not to object to Ms. Roundtree's exclusion. However, at the evidentiary hearing held in petitioner's state habeas corpus proceeding, the petitioner wholly failed to furnish the state habeas court with any evidence regarding the rationale behind his trial counsel's failure to object to Ms. Roundtree's exclusion.
In a collateral proceeding attacking an otherwise final criminal conviction and sentence, the burden of establishing both prongs of the Strickland test lies upon the petitioner's shoulders. See Burnett v. Collins , 982 F.2d at 928; and Martin v. Maggio , 711 F.2d at 1279. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065. The petitioner must overcome the presumption that, under the circumstances, the challenged action constituted "sound trial strategy." Id. By failing to call either of the petitioner's trial counsel to testify at the evidentiary hearing held in petitioner's state habeas corpus proceeding and failing to make any attempt to explore said counsel's thought processes, petitioner not only deprived the state habeas court of any direct evidence regarding the nature of the reasoning that resulted in petitioner's trial counsel not objecting to Ms. Roundtree's exclusion but petitioner also failed to carry his burden of overcoming the presumption that, in so doing, petitioner's trial counsel engaged in "sound trial strategy."
See Sones v. Hargett , 61 F.3d at 415 n. 5: "Counsel cannot be deficient for failing to press a frivolous point."; United States v. Gibson , 55 F.3d at 179: "Counsel is not required by the Sixth Amendment to file meritless motions."; Koch v. Puckett , 907 F.2d at 527: "counsel is not required to make futile motions or objections."; and Murray v. Maggio , 736 F.2d at 283: "Counsel is not required to engage in the filing of futile motions."
Under such circumstances, the failure of petitioner's trial counsel to object to the trial court's amply justified conclusion that Ms. Roundtree was disqualified from service on petitioner's jury did not cause the performance of petitioner's trial counsel to fall below an objective level of reasonableness.
(2) No Prejudice
Because any objection petitioner's trial counsel might have raised to the exclusion of venire member Roundtree would have been not merely futile but frivolous, petitioner's initial claim of ineffective assistance also fails to satisfy the prejudice prong of Strickland. For the reasons set forth at length above, the state trial court's action in excluding Ms. Roundtree did not violate the principle announced in Witherspoon and its progeny. "[T]he State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths. This is precisely what Ms. Roundtree repeatedly asserted would occur if she were compelled to serve as a juror at the punishment phase of a Texas capital murder trial. There was little equivocation by Ms. Roundtree on that subject during her voir dire examination."
Adams v. Texas , 448 U.S. at 50, 100 S.Ct. at 2529.
Ms. Roundtree repeatedly stated, under examination by both petitioner's trial counsel and the state trial court, that she would be unable to answer the Texas capital sentencing special issues in a manner that resulted in the imposition of the death penalty, regardless of the nature of the evidence she heard introduced at trial, and her stridency on this point only increased the longer she was examined. See S.F. Trial, Volume XV, voir dire testimony of Katherine Green Roundtree, at pp. 68-71, 72-73, 75, 77, 78-79, and 82-83.
If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality.Adams v. Texas , 448 U.S. at 46, 100 S.Ct. at 2527.
Furthermore, consistent with the Supreme Court's holding in Wainwright v. Witt , the Texas Court of Criminal Appeals employs a highly deferential standard when reviewing complaints about a trial court's exclusion of a member of a capital murder jury venire. Petitioner has identified no cases in which the Texas Court of Criminal Appeals or the United States Supreme Court has ever reversed a capital murder conviction on direct appeal based on alleged Witherspoon error when the excluded member of the jury venire offered the same sort of vacillating testimony as Ms. Roundtree. Nor has this Court's independent research disclosed such a case. When a venire person gives ambiguous, vacillating, self-contradictory answers during voir dire, the state trial court's ability to observe first-hand that venire person's demeanor entitles that court's ruling to considerable deference from both state appellate and federal habeas courts. Nothing in the record before this Court establishes that the state trial judge acted either unreasonably or erroneously when he granted the prosecution's challenge for cause to Ms. Roundtree.
See Wainwright v. Witt , 469 U.S. at 428, 105 S.Ct. at 854, (recognizing that the determination of whether a venireman is biased has traditionally been made through voir dire culminating in a finding by the trial judge concerning the venireman's state of mind and that such a finding is based upon determinations of demeanor and credibility that are particularly within the trial judge's province and, therefore, entitled to deference).
The Texas Court of Criminal Appeals employs an abuse of discretion standard of review when addressing complaints about a trial court's rulings on challenges for cause during a capital murder voir dire and generally defers to the trial court's judgment when the venire person vacillates or equivocates on his or her ability to follow the law. See, e.g., Granados v. State , 85 S.W.3d 217, 231 (Tex.Crim.App. 2002); King v. State , 29 S.W.3d 556, 568 (Tex.Crim.App. 2000); and Brown v. State , 913 S.W.2d 577, 580 (Tex.Crim. 1996). This same standard of review applied both before and immediately after petitioner's 1994 capital murder trial. See, e.g., Rachal v. State , 917 S.W.2d 799, 809 (Tex.Crim.App. 1996), cert. denied , 519 U.S. 1043 (1996); and Cantu v. State , 842 S.W.2d 667, 681 (Tex.Crim.App. 1992), cert. denied , 509 U.S. 926 (1993).
Even a cursory review of Ms. Roundtree's voir dire examination transcript reveals that she went considerably further and farther in her assertions of bias than did the venirepersons who were excluded by the state trial courts in either Adams v. Texas, supra , or Ex parte Williams , 748 S.W.2d 461 (Tex.Crim.App. 1988). In contrast to the venirepersons involved in Adams and Williams , Ms. Roundtree did much more than assert that she possessed personal views opposing the death penalty or that her views might "affect" her deliberations; Ms. Roundtree repeatedly asserted that she could not, under any conceivable circumstances, vote in a manner that resulted in the imposition of the death penalty.
There is simply no reasonable probability that, but for the failure of petitioner's trial counsel to make an objection to the state trial court's exclusion of Ms. Roundtree, the outcome of the petitioner's trial or direct appeal would have been any different.
e. Conclusions
Petitioner's first assertion of ineffective assistance fails to satisfy either prong of Strickland. The Texas Court of Criminal Appeals' rejection on the merits of this same claim in the course of petitioner's state habeas corpus proceeding was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented in the state habeas corpus proceeding. Petitioner is not entitled to federal habeas corpus relief under the AEDPA based on his claim that his trial counsel rendered ineffective assistance by failing to object to the state trial court's granting of the prosecution's challenge for cause to Ms. Roundtree.
4. Failure to Investigate Present Mitigating Evidence
a. The Claims
Because they are inextricably intertwined, this Court will combine its discussion and analysis of the petitioner's remaining assertions of ineffective assistance by his trial counsel. Petitioner argues that his trial counsel failed to (1) adequately investigate the petitioner's background, including failing to secure an independent mental health evaluation of the petitioner, and (2) present potentially mitigating evidence regarding the petitioner's long term drug and alcohol abuse, sexual and physical abuse during childhood, childhood head injuries, organic brain damage and mental disorder, difficult family life, paranoid delusions, sexual identity crisis, and possible insanity at the time of the commission of his offense.
See Petitioner's Petition, at pp. 37, 42-43, 45-47, and 49-50; and Petitioner's Reply, at pp. 15-17.
b. The Potentially Mitigating Evidence
The sum and substance of the mitigating evidence the petitioner argues his trial counsel should have discovered, developed, and presented at trial is summarized in Section II.A.8. above.
See S.F. State Habeas Hearing, testimony of Raymond D. Potterf, at pp. 6-62.
c. Analysis
An attorney's failure to investigate the case against the defendant and to interview witnesses can support a finding of ineffective assistance. However, in order to establish that counsel was rendered ineffective by virtue of a failure to investigate the case against a defendant or to discover and present evidence, a convicted defendant must do more than merely allege a failure to investigate; he must state with specificity what the investigation would have revealed, what evidence would have resulted from that investigation, and how such would have altered the outcome of the case. Furthermore, when a trial counsel's decision not to pursue further investigation into a potential defense or into an area of potential mitigating evidence is based on investigation and consultation with the defendant which leads the attorney to believe that further investigation would be fruitless, that decision may not be challenged as unreasonable. The extent of an attorney's investigation into an area must be viewed in the context of the defendant's cooperation with the attorney's investigation and with a heavy measure of deference to counsel's judgments. Complaints of uncalled witnesses are not favored in federal habeas review because allegations regarding the testimony of such witnesses are largely speculative.
See Moore v. Johnson , 194 F.3d 586, 608 616 (5th Cir. 1999); and Bryant v. Scott , 28 F.3d at 1435.
See Moawad v. Anderson , 143 F.3d 942, 948 (5th Cir. 1998), cert. denied , 525 U.S. 952 (1998); Anderson v. Collins , 18 F.3d 1208, 1221 (5th Cir. 1994); Nelson v. Hargett , 989 F.2d 847, 850 (5th Cir. 1993); United States v. Green , 882 F.2d 999, 1003 (5th Cir. 1989); Lockhart v. McCotter , 782 F.2d 1275, 1282-83 (5th Cir. 1986), cert. denied , 479 U.S. 1030 (1987); Alexander v. McCotter , 775 F.2d 595, 603 (5th Cir. 1985); Schwander v. Blackburn , 750 F.2d 494, 499-500 (5th Cir. 1985); and Ross v. Estelle , 694 F.2d 1008, 1011 (5th Cir. 1983).
See Carter v. Johnson , 131 F.3d at 465; Boyle v. Johnson , 93 F.3d at 187-88; West v. Johnson , 92 F.3d at 1406-09; and Andrews v. Collins , 21 F.3d at 623.
See Carter v. Johnson , 131 F.3d at 463; and Randle v. Scott , 43 F.3d 221, 225 (5th Cir. 1995), cert. denied , 515 U.S. 1108 (1995), (holding that trial counsel was not ineffective for failing to investigate the validity of the defendant's prior conviction where the defendant was aware that the prior conviction had been reversed but failed to disclose same to his counsel and, instead, instructed his counsel to cease investigation into the matter so as to expedite the defendant's entry of a guilty plea). However, an attorney who is aware of potential mitigating evidence is obligated to investigate the existence of such evidence beyond merely communicating with the defendant. Ransom v. Johnson , 126 F.3d at 723.
Evans v. Cockrell , 285 F.3d 370, 377 (5th Cir. 2002); Sayre v. Anderson , 238 F.3d 631, 635-36 (5th Cir. 2001).
Because the Strickland opinion itself dealt with a sentencing proceeding, the two-part test applies to sentencing proceedings. In a capital sentencing proceeding, the prejudice analysis focuses on whether there is a reasonable probability that, absent counsel's errors, a life sentence would have been imposed. The failure to present mitigating evidence during the sentencing phase of a capital trial isnot, per se, deficient performance. Counsel does, however, have a duty to make a reasonable investigation into available mitigating evidence or to make a reasonable decision that makes particular investigations unnecessary. Counsel is also obligated to investigate beyond merely communicating with his client once counsel becomes aware of the possible existence of potentially mitigating evidence.
See Burger v. Kemp , 483 U.S. 776, 788-96, 107 S.Ct. 3114, 3122-26, 97 L.Ed.2d 638 (1987); Green v. Johnson , 116 F.3d at 1122; Belyeu v. Scott , 67 F.3d at 540-42, (applying both prongs of the Strickland test to ineffective assistance claims regarding the sentencing phase of a capital murder trial); Andrews v. Collins , 21 F.3d at 623-25; and Spriggs v. Collins , 993 F.2d 85, 88 (5th Cir. 1993).
See Strickland v. Washington , 466 U.S. at 695, 104 S.Ct. at 2069; Carter v. Johnson , 131 F.3d at 463; Ransom v. Johnson , 126 F.3d at 723; Green v. Johnson , 116 F.3d at 1122, (holding that the proper inquiry is whether the defendant has demonstrated a reasonable probability that the jury would not have imposed the death sentence in the absence of errors by counsel); and Belyeu v. Scott , 67 F.3d at 538.
See Ransom v. Johnson , 126 F.3d at 723; Williams v. Cain , 125 F.3d at 277; and West v. Johnson , 92 F.3d at 1408.
See Williams v. Cain , 125 F.3d at 277, citing Strickland v. Washington , 466 U.S. at 691, 104 S.Ct. 2066.
Ransom v. Johnson , 126 F.3d at 723.
(1) No Deficient Performance
(a) Alleged Failure to Investigate
The fundamental problem with the petitioner's complaints about his trial counsel's failure to investigate petitioner's background and to present mitigating evidence is that the petitioner offered the state habeas court very little evidence establishing either (1) precisely what information regarding the petitioner's background his trial counsel did, in fact, discover, develop, and possess prior to and during petitioner's trial or (2) that the failure of petitioner's trial counsel to introduce such evidence was the product of anything other than "sound trial strategy." As explained above, there is a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance."
Strickland v. Washington , 466 U.S. at 698, 104 S.Ct. at 2065.
Other than Dr. Potterf's testimony that the petitioner may have made his trial counsel aware of petitioner's long-term drug and alcohol abuse, the petitioner failed to introduce any evidence during the evidentiary hearing in his state habeas corpus proceeding establishing precisely what information regarding the petitioner's background petitioner's trial counsel possessed or was aware of at the time of petitioner's trial. Nothing in Dr. Potterf's written report, dated July 23, 1997, addressed the issue of precisely what information regarding the petitioner's background the petitioner or his family made available to petitioner's trial counsel.
See S.F. State Habeas Hearing, testimony of Dr. Raymond D. Potterf, at p. 57. Even on this point, Dr. Potterf was less than certain. Id.
See State Habeas Transcript, at pp. 58-63. It should be noted that Dr. Potterf's report, which was attached to petitioner's state habeas corpus application, included statements indicating the petitioner (1) was then functioning "at an average level of intellectual function," (2) was "devoid of empathy for the suffering of others," (3) was "oriented to time, place, and person," (4) had "clear mentation" and "no difficulty with memory of people, places, or things," and (5) displayed 'above normal' intellectual functioning." Id.
In the context of capital sentencing, defense counsel has the obligation to conduct a reasonably substantial, independent investigation into potential mitigating circumstances. Furthermore, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. However, this duty to investigate is tempered by the information provided to counsel by the defendant and other witnesses. When the defendant or other witnesses give counsel reason to believe that certain investigations would be fruitless or even harmful, the failure to pursue such investigations may not later be challenged as unreasonable. Moreover, a tactical decision not to pursue and present potential mitigating evidence on the grounds that it is double-edged in nature is objectively reasonable and, therefore, does not amount to deficient performance.
Neal v. Puckett , 286 F.3d 230, 236 (5th Cir. 2002), cert. pending.
See Strickland v. Washington , 466 U.S. at 690-91, 104 S.Ct. at 2066: "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation."; Foster v. Johnson , 293 F.3d at 778: "counsel's strategic decisions not to conduct further investigation in pursuit of mitigating evidence are entitled to substantial deference under Strickland."; Neal v. Puckett , 286 F.3d at 237: "In assessing counsel's performance, we look to such factors as what counsel did to prepare for sentencing, what mitigating evidence he had accumulated, what additional 'leads' he had, and what results he might reasonably have expected from these leads."; Moore v. Johnson , 194 F.3d at 615: "Strickland requires that we defer to counsel's decision not to present mitigating evidence or not to present a certain line of mitigating evidence when the decision is both fully informed and strategic, in the sense that it is expected, on the basis of sound legal reasoning, to yield some benefit or avoid some harm to the defense. Strickland does not, however, require deference to decisions that are not informed by an adequate investigation into the controlling facts and law."; and Ransom v. Johnson , 126 F.3d at 723.
See Strickland v. Washington , 466 U.S. at 691, 104 S.Ct. at 2066:
The 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. In particular, what investigation decisions are reasonable depends critically on such information. * * * In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.
See Foster v. Johnson , 293 F.3d at 778; and Carter v. Johnson , 131 F.3d at 465.
See Foster v. Johnson , 293 F.3d at 778-79; Kitchens v. Johnson , 190 F.3d 698, 703 (5th Cir. 1999); Lamb v. Johnson , 179 F.3d at 358; Rector v. Johnson , 120 F.3d at 564, (holding it was objectively reasonable for defense counsel to wish to keep out evidence of the defendant's low IQ, poor educational background, history of child abuse, and the fact the defendant's mother was severely and chronically mentally ill); Boyle v. Johnson , 93 F.3d at 187-88, (holding it was objectively reasonable for defendant's trial counsel to wish to keep out evidence of the defendant's abusive father for fear the jury would conclude "like father, like son"); and Mann v. Scott , 41 F.3d at 983-84.
By failing to call either of petitioner's trial counsel to testify at the evidentiary hearing held in petitioner's state habeas corpus proceeding, failing to call the petitioner or his family members to testify at that same hearing, and failing to introduce any other evidence showing precisely what information regarding the petitioner's background was within the knowledge of petitioner's trial counsel, petitioner deprived the state habeas court of any objective basis upon which to conclude that petitioner's trial counsel acted unreasonably when they failed to introduce evidence at trial regarding petitioner's background similar to that to which Dr. Potterf testified at the petitioner's state habeas corpus hearing. Likewise, petitioner wholly failed to introduce any evidence during his state habeas corpus proceeding establishing what information, if any, petitioner and his family provided to petitioner's trial counsel regarding petitioner's background. Petitioner's trial counsel cannot be faulted for failing to develop and introduce mitigation evidence which their client and other witnesses failed to disclose. At the evidentiary hearing held in petitioner's state habeas corpus proceeding, petitioner failed to introduce any evidence showing that he (the petitioner) had made his trial counsel aware of the same information regarding petitioner's history of childhood sexual and physical abuse which the petitioner furnished to Dr. Potterf during their interview several years later. Petitioner's own affidavit, filed in his state habeas corpus proceeding, mentions petitioner's history of sexual and physical abuse and drug abuse but makes no mention of petitioner or any of his family members ever having informed petitioner's trial counsel about these same matters.
See Strickland v. Washington , 466 U.S. at 690-91, 104 S.Ct. at 2066: "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation."; Strickland v. Washington , 466 U.S. at 691, 104 S.Ct. at 2066: "inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions."; and Neal v. Puckett , 286 F.3d at 237: "In assessing counsel's performance, we look to such factors as what counsel did to prepare for sentencing, what mitigating evidence he had accumulated, what additional 'leads' he had, and what results he might reasonably have expected from these leads."
See Johnson v. Cockrell , 306 F.3d 249, 252-53 (5th Cir. 2002): "This Court has consistently refused to hold attorneys responsible for introducing mitigation evidence that their clients and other witnesses fail to disclose."; Soria v. Cockrell , 207 F.3d 232, 251 (5th Cir. 2000), cert. denied , 530 U.S. 1286 (2000); Sharp v. Johnson , 107 F.3d 282, 286 (5th Cir. 1997), (holding that any error which occurred due to the defendant's withholding of information from his attorney was not the fault of counsel and did not constitute deficient performance); and West v. Johnson , 92 F.3d at 1408-09.
See S.F. State Habeas Hearing, testimony of Dr. Raymond D. Potterf, at p. 57. Dr. Potterf testified that the petitioner did inform his trial counsel about petitioner's long-term drug abuse. Id.
See State Habeas Transcript, at p. 57. A copy of that same affidavit appears as Exhibit 15 attached to Petitioner's Petition, docket entry no. 18.
Petitioner's omission is particularly egregious in view of the fact that petitioner's trial counsel called not only the petitioner, but also the petitioner's mother, brother, sister, and several of petitioner's acquaintances to testify at the punishment phase of petitioner's capital murder trial. Obviously, petitioner's trial counsel engaged in at least some investigation into petitioner's background before said counsel put those witnesses on the stand. Petitioner does not allege otherwise. Likewise, petitioner does not allege any specific facts showing that his trial counsel failed to thoroughly interview either himself or any of his family members regarding the petitioner's background. Petitioner also fails to allege any specific facts showing that either he or his family members revealed to petitioner's trial counsel any of the horrific details of the physical and sexual abuse the petitioner allegedly suffered at the hands of either his stepfather or a middle school math teacher. Petitioner cannot complain about the failure of his trial counsel to discover and develop potentially mitigating evidence which the petitioner and his family may very well have concealed from said counsel.
Thus, unlike the defense counsel in Ransom , 126 F.3d at 721-22, petitioner's trial counsel did not completely fail to present any mitigation evidence at the punishment phase of petitioner's trial. On the contrary, as explained in Section II.A. 6.b. above, petitioner's trial counsel presented considerable testimony regarding the petitioner's good character traits and purported remorse for his crime.
As described in Section II.A.6.b. above, petitioner's trial counsel called no less than ten witnesses to testify at trial. Petitioner alleges no specific facts showing that his trial counsel failed to interview the petitioner, the petitioner's family, or the petitioner's acquaintances prior to calling those persons to testify at the punishment phase of petitioner's trial.
See Johnson v. Cockrell , 306 F.3d at 252-53; Soria v. Johnson , 207 F.3d at 250-51; Lackey v. Johnson , 116 F.3d at 152, (holding that trial counsel was not ineffective for failing to discover evidence about which the defendant knew but withheld from his counsel); and Sharp v. Johnson , 107 F.3d at 286.
In short, while petitioner complains that his trial counsel failed to adequately investigate petitioner's background and to discover and develop potentially mitigating evidence regarding petitioner's history of childhood sexual and physical abuse, petitioner wholly failed to present any evidence to the state habeas court showing that his trial counsel were unaware of that information. Conversely, petitioner failed to present the state habeas court with any evidence showing that the alleged failure of his trial counsel to discover and develop this same mitigating evidence was the product of anything more than the active concealment of that same information by the petitioner and his family. Given the horrific manner in which petitioner's childhood was portrayed in Dr. Potterf's testimony at petitioner's state habeas corpus hearing, the petitioner's family could reasonably have wished to conceal that same information. Given the presumption of reasonableness regarding the conduct of petitioner's trial counsel which the state habeas court had to apply under Strickland , the burden was on the petitioner during his state habeas corpus proceeding to demonstrate that his trial counsel's failure to investigate petitioner's background was the reason his trial counsel failed to discover, develop, and present the potentially mitigating evidence in question at the punishment phase of trial, rather than that the petitioner and his family successfully concealed that same information from petitioner's trial counsel. Petitioner not only failed to carry that burden, he failed to even pick it up.
Absent any evidence establishing what petitioner's trial counsel knew about the details of petitioner's allegedly horrific childhood or what information the petitioner and his family members imparted to said counsel, petitioner's complaints about his trial counsel's allegedly inadequate investigation ring hollow. See Green v. Johnson , 116 F.3d at 1122, ("A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness."); Boyle v. Johnson , 93 F.3d at 187-88, (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson , 92 F.3d at 1406-09, (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); and Andrews v. Collins , 21 F.3d at 623, (holding that counsel acted reasonably in failing to further pursue the defendant's mental capacity or background where counsel had no reason to believe that further investigation would be useful). By failing to present any evidence whatsoever regarding what information petitioner's trial counsel actually had prior or during petitioner's trial, petitioner deprived the state habeas court of the very information that court needed to assess the objective reasonableness of the failure of petitioner's trial counsel to present that same evidence at the punishment phase of petitioner's trial.
(b) Failure to Present "Mitigating" Evidence
Petitioner also faults his trial counsel for failing to request a mental health evaluation of the petitioner by a psychiatric expert and failing to present the same type of potentially mitigating evidence regarding petitioner's (1) history of childhood physical and sexual abuse, (2) long-term drug and alcohol abuse, and (3) resulting organic brain impairment to which Dr. Potterf testified during petitioner's state habeas corpus proceeding. To reiterate, Dr. Potterf testified, in pertinent part, that (1) the petitioner began abusing spray propellant, alcohol, marijuana, cocaine, and LSD at age twelve or thirteen, (2) the petitioner suffers from organic effective disorder and organic depression as a result of his substance abuse, (3) petitioner's symptoms are not constant but, rather, wax and wane, (4) the negative forces that helped mold the petitioner's antisocial personality, however, still hold sway over the petitioner, (5) the petitioner is incapable of conforming his conduct to the law, (6) the petitioner demonstrates a lack of empathy for others, as well as poor control over his impulses, (7) the petitioner's antisocial personality, combined with his history of substance abuse, make it likely the petitioner will commit future acts of violence, and (8) the petitioner's antisocial personality and lack of empathy are also relevant to the question of whether the petitioner poses a danger of future violence.
See S.F. State Habeas Hearing, testimony of Dr. Raymond D. Potterf, at pp. 24-48.
This aspect of the petitioner's multi-faceted ineffective assistance claim fails for reasons similar to those discussed above in connection with petitioner's complaint about his trial counsel's allegedly deficient investigation into potentially mitigating evidence. Simply put, petitioner failed to present any evidence to the state habeas court establishing precisely what information petitioner's trial counsel possessed concerning the petitioner's background.
The potentially mitigating evidence which petitioner did present to the state habeas court, through the testimony of Dr. Potterf, was clearly double-edged in nature. Trial counsel's strategic or tactical decisions on whether to introduce such evidence are usually not susceptible to second-guessing by reviewing courts. Petitioner failed to present the state habeas court with any evidence showing that petitioner's trial counsel were unaware of the factual bases for Dr. Potterf's conclusions, either in his written report or in his testimony given at the evidentiary hearing held in petitioner's state habeas corpus proceeding. Thus, petitioner failed to show that the decision by his trial counsel not to present such evidence was the product of anything other than an objectively reasonable strategic or tactical decision.
See Foster v. Johnson , 306 F.3d at 253; Kitchens v. Johnson , 190 F.3d at 703; Lamb v. Johnson , 179 F.3d at 358; Rector v. Johnson , 126 F.3d at 564; Boyle v. Johnson , 93 F.3d at 187-88; and Mann v. Scott , 41 F.3d at 984-84.
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065. The petitioner must overcome the presumption that, under the circumstances, the challenged action constituted "sound trial strategy." Id.
The state habeas court reasonably concluded that the failure of petitioner's trial counsel to present such evidence was objectively reasonable because this evidence possessed a double-edged sword quality, i.e., it could have been used by the prosecution to help convince the jury to answer affirmatively the first capital sentencing special issue regarding the petitioner's propensity for future violence.
See State Habeas Transcript, at pp. 114-18.
To reiterate, at the punishment phase of petitioner's capital murder trial, the jury was faced with only two special issues, to wit, (1) whether there was a probability that the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral moral culpability of the petitioner, there was a sufficient mitigating circumstance or were sufficient mitigating circumstances to warrant a life sentence in lieu of death. See Transcript, at p. 132.
Furthermore, this Court's own independent examination of the trial record reveals additional, strategic, or tactical reasons why petitioner's trial counsel could have reasonably wished to keep the more horrific aspects of petitioner's childhood from the jury.
During their closing arguments at the punishment phase of trial, petitioner's trial counsel (1) urged the jury to set aside their emotional reaction to the petitioner's offense and hold the prosecution to its burden of proving both of the capital sentencing special issues beyond a reasonable doubt, (2) emphasized that the petitioner had waived his right to trial at the guilt-innocence phase of trial by pleading guilty and had cooperated with law enforcement officers investigating the crime, (3) argued the petitioner had expressed remorse to his victim's family in his written statement given to police and during his trial testimony, (4) attempted to minimize the petitioner's gang-related activities as juvenile in nature, pointing out that the only criminal acts petitioner's gang committed were the theft of cigarettes, (5) emphasized that the petitioner would not be eligible for release on parole for thirty five years if given a life sentence, (6) extended their sympathy to the family of the victim, (7) summarized the petitioner's good works and positive character traits, as presented through the testimony of petitioner's friends and relatives, (8) argued there was no evidence showing that the petitioner would pose a threat of violence if confined to prison for the rest of his life, (9) attacked the credibility of Letitia Morales by pointing out that no criminal charges was ever brought against petitioner arising from the alleged attempted gang rape of Morales or the petitioner's alleged pointing of a gun at Morales and others, and (10) argued the petitioner was not a professional killer or a mass murderer.
See S.F. Trial, Volume XXVI, at pp. 19-52.
From a strategic standpoint, the initial problem with presenting testimony similar to that given by Dr. Potterf at the punishment phase of petitioner's capital murder trial is that such testimony would have all but conceded the propriety of an affirmative answer to the first special issue regarding future dangerousness. Even Dr. Potterf conceded that his diagnosis of the petitioner's mental condition would have lent credence to an argument that the petitioner posed a very grave risk of future dangerousness.
See S.F. State Habeas Hearing, testimony of Dr. Raymond D. Potterf, at pp. 43-44 and 46-48.
The second strategic problem with employing the testimony of Dr. Potterf or similar evidence is that it would have greatly undermined the credibility of many of the witnesses the defense did call to testify at the punishment phase of petitioner's capital murder trial, including the petitioner's mother, brother, sister, and the girlfriend of the petitioner's stepfather. If Dr. Potterf's testimony regarding the petitioner's background, or similar testimony, had been presented to petitioner's sentencing jury, (1) the petitioner's mother would have been portrayed as an accomplice to the sexual and physical abuse of the petitioner by the petitioner's stepfather, (2) the petitioner's brother and sister would have been portrayed as long-term drug abusers who introduced the petitioner to alcohol and drugs when the petitioner was barely into his teens, and (3) the petitioner's entire family would have been portrayed as having silently stood by while the petitioner was repeatedly sexually assaulted by a teacher and by the petitioner's stepfather. Additionally, Dr. Potterf testified that the petitioner had denied being responsible for the fatal shooting of Moreno, thus negating petitioner's trial counsel's strategy of asserting the petitioner had, in fact, accepted responsibility for his crime. In short, taking the approach now advocated by petitioner would have undermined the credibility of the very witnesses upon whom the petitioner's trial counsel were relying to (1) paint a "human" face on the petitioner, (2) show the petitioner had expressed remorse for his crime, (3) down-play the petitioner's long-term history of drug and alcohol abuse, (4) present the petitioner's crime as an aberration in an otherwise non-violent life, and (5) convince the jury that the petitioner would be adequately punished by a term of life imprisonment.
See S.F. State Habeas Hearing, testimony of Dr. Raymond D. Potterf, at pp. 44-45.
Through the testimony of the petitioner's family and friends, petitioner's trial counsel attempted to portray the petitioner as basically non-violent and to suggest that Fritz was the more violent and impulsive of the two. See S.F. Trial, Volume XXV, testimony of Robert Cocolan, at pp. 7-8 and 15; testimony of Michael Anthony Rodriguez, at pp. 21-22; testimony of Mary Ann Ramirez, at pp. 25-26; testimony of Daniel Flores, at pp. 37-38; testimony of Tony Jose Hernandez, at pp. 49-52; and testimony of Esther Perales, at pp. 62-64.
Thus, even assuming that petitioner's trial counsel had obtained an independent mental health evaluation of the petitioner which yielded the same findings and conclusions as those made by Dr. Potterf, legitimate, objectively reasonable, strategic reasons would still have existed for the decision by petitioner's trial counsel not to introduce that evidence at the punishment phase of petitioner's capital murder trial. The failure of petitioner's trial counsel to introduce such evidence was objectively reasonable because it was consistent with the efforts of petitioner's trial counsel to demonstrate, through the testimony of petitioner's family members and friends, that the petitioner possessed positive character traits, was "a human being," was remorseful for his crime, and would be adequately punished by serving a term of life imprisonment.
Petitioner made no effort at the evidentiary hearing held during petitioner's state habeas corpus proceeding to explore the strategic decisions underlying the actions and decisions of petitioner's trial counsel. Given the presumption of reasonableness which this Court and the state habeas court must afford to the actions of petitioner's trial counsel under Strickland , and the total absence of any evidence in the record before the state habeas court establishing the rationale for petitioner's trial counsel's decision not to introduce evidence similar to that presented through Dr. Potterf, petitioner failed to carry his burden of showing that the failure of his trial counsel to introduce evidence similar to that presented through Dr. Potterf's testimony was objectively unreasonable.
The Supreme Court noted in Strickland that the reasonableness of counsel's actions must be examined in the context of the information available to counsel, including in light of "informed strategic choices made by the defendant and on information supplied by the defendant." Strickland v. Washington , 466 U.S. at 691, 104 S.Ct. at 2066. The Supreme Court also recognized that inquiry into the defendant's conversations with counsel may be critical to properly assessing counsel's investigative decisions. Id.
See Strickland v. Washington , 466 U.S. at 690, 104 S.Ct. at 2066: "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."
Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065.
The state habeas court correctly noted the double-edged nature of petitioner's mental health evidence. Dr. Potterf's testimony placed the primary responsibility for the petitioner's permanent organic effective disorder on the petitioner's history of long-term drug and alcohol abuse, rather than the petitioner's otherwise unsubstantiated history of childhood sexual and physical abuse at the hands of the petitioner's stepfather and a middle school math teacher. Dr. Potterf candidly admitted that the petitioner (1) was probably an antisocial personality, (2) lacked empathy for his victims, and (3) would likely continue to commit acts of violence. Dr. Potterf also admitted that his diagnosis would have been beneficial to the prosecution's efforts to obtain an affirmative answer to the first capital sentencing special issue regarding the petitioner's propensity for future violence. Additionally, Dr. Potterf testified that, during his interview, the petitioner claimed that he was not guilty and that someone else had shot and killed the store clerk. Such evidence would, no doubt have harmed the efforts of petitioner's trial counsel to convince the sentencing jury that the petitioner had accepted responsibility for his criminal conduct.
See S.F. State Habeas Hearing, testimony of Dr. Raymond D. Potterf, at pp. 25-26 and 33-34.
Id. , at pp. 46-48.
Id. , at pp. 43-44 and 46-48.
Id. , at pp. 44-45.
Thus, there were considerable down-sides to introducing testimony similar to Dr. Potterf's during the punishment phase of the petitioner's capital murder trial. Petitioner's trial counsel could reasonably have chosen not to introduce such evidence for fear of conceding the first capital sentencing special issue and negating whatever potential mitigating benefit could be derived from petitioner's entry of a guilty plea.
(2) No Prejudice
Furthermore, given the obvious harm to petitioner that would have resulted from the admission of testimony similar to Dr. Potterf's at the punishment phase of petitioner's capital murder trial, petitioner's complaints about his trial counsel's alleged failure to adequately investigate potentially mitigating evidence and to present same for the sentencing jury's consideration cannot satisfy the prejudice prong of Strickland .
As explained above, introduction of testimony similar to Dr. Potterf's would have presented the petitioner as a person who (1) was victimized by sexual predators during his early teen years and, as a result, became a long-term drug and alcohol abuser who possessed personality traits which made it likely the petitioner would remain a violent person for the rest of his life, (2) lacked empathy for his victims, and (3) refused to accept responsibility for the fatal shooting of Moreno. Additionally, introduction of evidence relating to the petitioner's alleged physical and sexual abuse at the hands of his stepfather and the fact the petitioner's siblings introduced petitioner to alcohol and drug abuse at an early age would have undermined the credibility of many of the very witnesses petitioner's trial counsel was relying upon to convince the sentencing jury that the petitioner was basically a non-violent individual whose crime was aberrational in nature. It is likewise clear that Dr. Potterf found the petitioner to be functioning at a normal or above-average intellectual level.
See State Habeas Transcript, at pp. 58-63.
This Court's analysis of the prejudice prong of Strickland also requires consideration of the compelling testimony regarding the petitioner's propensity for future violence and lack of remorse for his crime introduced at trial by the prosecution. The petitioner's jury had before it not only the videotape of the petitioner's brutal crime but also testimony (1) detailing the petitioner's role as the leader of a gang which actively recruited new members from elementary and middle schools, initiated new members through fist fights, and required younger members to commit theft at the petitioner's bidding, (2) identifying the petitioner as a participant in an armed robbery of a convenience store which occurred approximately two months prior to petitioner's fatal shooting of Moreno, (3) showing the petitioner led the attempted gang rape of a twelve-year-old, (4) showing the petitioner had failed to graduate from high school and could not maintain a job for any length of time, (5) detailing the petitioner's previous criminal convictions, and (6) showing that the same day he gave a begrudging confession to the police, in which he claimed not to recall the actual shooting of Moreno, the petitioner joked with Fritz about what they would be doing in thirty years. Dr. Potterf's testimony would have given the prosecution several additional arguments to aid its pursuit of a death penalty, including new information regarding petitioner's long-term drug abuse and the permanent nature of petitioner's antisocial personality and lack of empathy for his victims.
Petitioner presented the state habeas court with virtually no evidence regarding what information, if any, the petitioner or the petitioner's family actually disclosed to petitioner's trial counsel regarding petitioner's history of childhood sexual and physical abuse. Petitioner's trial counsel did present mitigating evidence showing that the petitioner (1) was learning disabled, (2) had failed to graduate from high school because he dropped out to work to assist his mother financially, (3) was the father of an infant son, (4) had been a helpful baby-sitter for his niece and other children, (5) had managed to keep his gang-related activities hidden from his family, and (6) was remorseful for the harm he had done to his victim and others. Given the obvious desire of petitioner's trial counsel to portray petitioner as a basically non-violent individual whose crime was aberrational, introduction of testimony similar to that offered at the state habeas hearing by Dr. Potterf at the punishment phase of the petitioner's capital murder trial would have amounted to both (1) a practical concession that the jury should answer the first capital sentencing special issue regarding future dangerousness affirmatively and (2) a wanton gamble that the jury would sympathize sufficiently with the petitioner to answer the second special issue in such a manner as to spare the petitioner's life.
Petitioner's attempts to rely upon the testimony of former juror Eliza Zuazua for a contrary conclusion are unavailing to two reasons. First, the state court sustained the State's objection to Ms. Zuazuas proffered testimony during the evidentiary hearing held in petitioner's state habeas corpus proceeding. See S.F. State Habeas Hearing, at p. 67. Petitioner failed to successfully appeal that ruling. Thus, her testimony was never properly before the state courts during petitioner's state habeas corpus proceeding. Second, even if the state court had allowed Ms. Zuazua to testify as to what her vote would have been had she been made aware of the new mitigating evidence petitioner presented during his state habeas corpus proceeding, such testimony is incompetent to undermine a jury verdict. See Pyles v. Johnson , 136 F.3d 986, 991-92 (5th Cir. 1998), cert. denied , 524 U.S. 933 (1998), (holding that Rule 606(b) precludes a federal district court from investigating the subjective effects of any allegedly prejudicial extrinsic matter on any jurors); and United States v. Jones , 132 F.3d at 245, (holding that, under Fed.R.Evid. 606(b), a juror may only testify to extraneous forces which influence jury deliberations). Respondent is correct that this Court may not consider Ms. Zuazua's properly excluded testimony regarding how she might have voted if she had been informed about the petitioner's abusive childhood and long-term drug use.
Given (1) the brutal, senseless, nature of petitioner's crime, (2) the petitioner's well-documented propensity for violence, (3) the dramatic impact of the videotape recording of that crime from an evidentiary standpoint, (4) Dr. Potterf's admission that the petitioner claimed someone else was responsible for shooting Moreno, and (5) Dr. Potterf's conclusion that the petitioner was incapable of feeling any empathy for his victims, there is no reasonable probability that, but for the failure of petitioner's trial counsel to present evidence similar to that presented through Dr. Potterf that the petitioner's jury would have answered either of the two Texas capital sentencing special issues any differently. In short, petitioner cannot demonstrate that the failure of his trial counsel to introduce testimony similar to that offered by Dr. Potterf, all of which clearly possessed the potential to cause petitioner as much harm as good, "prejudiced" petitioner within the meaning of Strickland .
See Johnson v. Cockrell , 306 F.3d at 253, (holding no showing of prejudice made where trial counsel failed to introduce double-edged evidence regarding the defendant's brain injury, abusive childhood, and drug and alcohol problems); Santellan v. Cockrell , 271 F.3d 190, 198 (5th Cir. 2001), cert. denied , ___ U.S. ___, 122 S.Ct. 1463, 152 L.Ed.2d 461 (2002), (holding that defendant could not establish prejudice from his trial counsel's failure to present evidence showing the defendant suffered from organic brain damage where other evidence established the defendant had a history of violent conduct separate and distinct from the capital murder in question); Soria v. Johnson , 207 F.3d at 251, (holding no prejudice shown from failure to introduce evidence showing the defendant was traumatized by the death of a close friend, which caused the defendant to suffer from depression and feelings of isolation); Kitchens v. Johnson , 190 F.3d at 703, (holding no prejudice shown where defense counsel failed to pursue and present evidence regarding the defendant's long-term drug and alcohol abuse); Ransom v. Johnson , 126 F.3d at 723-24, (holding no prejudice resulted from failure to introduce evidence of abusive childhood and resulting mental problems where defendant was or normal intelligence and crime itself was particularly brutal); Cockrum v. Johnson , 119 F.3d 297, 304 (5th Cir. 1997), (recognizing that potentially mitigating evidence regarding the defendant's drug abuse and difficult family life had the potential to turn against the defendant and holding that the defendant was not prejudiced by the exclusion of such evidence when defense counsel was attempting to portray the defendant as a sympathetic figure); and Faulder v. Johnson , 81 F.3d 515, 519-20 (5th Cir. 1996), cert. denied , 519 U.S. 995 (1996), (holding that no prejudice resulted from counsel's failure to introduce evidence showing the defendant had suffered a brain injury at age four which caused organic brain damage, impaired judgment, and poor impulse control, the defendant suffered from alcoholism and depression, yet the defendant was intelligent, a loving father, a trusted employee, and had once saved the life of an accident victim).
d. Conclusions
Petitioner's complaints about his trial counsel's failure to obtain an independent mental health evaluation of the petitioner, investigate the petitioner's background, and introduce evidence regarding the petitioner's abusive childhood, long-term drug and alcohol abuse, emotional difficulties, sexual identity crisis, and related problems fail to satisfy either prong of Strickland .
Petitioner failed to present the state habeas court or this Court with any evidence showing that the investigation conducted by his trial counsel was, in fact, deficient. If petitioner's trial counsel were aware of the evidence in question, legitimate, strategic or tactical reasons existed for their failure to pursue same. Even if petitioner's trial counsel failed to adequately investigate petitioner's mental health and background, given the double-edged nature of the evidence in question and the overwhelming nature of the evidence presented by the prosecution, petitioner cannot establish that he was prejudiced by the failure of his trial counsel to present same.
Given the obvious double-edged nature of the evidence offered through Dr. Potterf at the state habeas hearing, the Texas Court of Criminal Appeals' conclusion in the course of petitioner's state habeas corpus proceeding that these aspects of the petitioner's ineffective assistance claims failed to satisfy either prong of Strickland was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state habeas proceeding. Therefore, petitioner is not entitled to federal habeas corpus relief under the AEDPA with regard to these aspects of his ineffective assistance claims.
D. No Riqht to "Hung Jury" Instructions
In his final claim for federal habeas corpus relief, petitioner argues that he was entitled to an instruction informing his jury of the legal effect of a hung jury on either of the Texas capital sentencing special issues. This matter is easily resolved because petitioner candidly admitted in his petition that this claim would be resolved by the United States Supreme Court when it decided what turned out to be its decision in Jones v. United States s. In Jones , the Supreme Court rejected the arguments made by petitioner in support of his final claim for relief herein and held that the Eighth Amendment does not require that capital sentencing jurors be instructed as to the consequences of their failure to agree. Therefore, the petitioner's reliance on the arguments made by the defendant in Jones is unavailing.
See Petition, at pp. 52-66.
Id. , at p. 54: "It is clear, that the constitutionality of Andrew ['s] death sentence will turn on the Supreme Court's decision in Jones."
527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).
See Jones v. United States , 527 U.S. at 381, 119 S.Ct. at 2098.
Petitioner also complains that the state trial court's failure to advise the petitioner's jury regarding the effect of a hung jury violated the principle announced by the Supreme Court in Mills v. Maryland , because the state trial court, pursuant to a statutory prohibition, failed to inform the jury at the punishment phase of trial as to the effect of a single "no" vote on any of the special sentencing issues. In essence, petitioner complains that individual members of his jury were not furnished with a detailed explanation of exactly what constituted a "hung jury" at the punishment phase of a Texas capital murder trial. However, the Fifth Circuit has expressly rejected this same argument, noting that the law in Texas is completely different from that in Mills :
486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).
Under the Texas system, all jurors can take into account any mitigating circumstance. One juror cannot preclude the entire jury from considering a mitigating circumstance. Thus, Mills is inapplicable.
The Texas system allows an answer of "Yes" to a special issue if all jurors vote "Yes," and allows an answer of "No" if ten jurors vote "No." Mills does not require a certain number of jurors to agree to impose the death penalty.
Jacobs v. Scott , 31 F.3d 1319, 1328-29 (5th Cir. 1994), cert. denied , 513 U.S. 1067 (1995). Accord Alexander v. Johnson , 211 F.3d 895, 897 nn. 4-5 (5th Cir. 2000); and Miller v. Johnson , 200 F.3d 274, 288-89 (5th Cir. 2000), cert. denied , 531 U.S. 849 (2000)
In order to successfully challenge a state court's jury instructions at the punishment phase of a capital murder trial, a federal habeas petitioner must show more than that a capital sentencing scheme might have resulted in the jury being prevented from considering mitigating evidence; the petitioner must show a reasonable likelihood that such actually occurred. In this case, petitioner's argument that the jurors at his trial might have concluded from the jury instructions at the punishment phase of trial that they were precluded from giving effect to their own opinions as to whether petitioner merited the death penalty asserts a construction of the punishment phase jury instructions at petitioner's trial that is neither reasonable nor likely to have actually occurred.
See Boyde v. California , 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990); and Stewart v. Collins , 978 F.2d 199, 201 (5th Cir. (1992), cert. denied , 507 U.S. 1053 (1993).
See Johnson v. Texas , 509 U.S. 350, 368, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993): "In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a "commonsense understanding of the instructions in the light of all that has taken place at trial. cruoting Boyde v. California , 494 U.S. 370, 381, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990).
Furthermore, the Fifth Circuit has rejected the exact same Fourteenth Amendment and Eighth Amendment claims urged by petitioner herein. There is no constitutional right to a jury instruction advising a capital sentencing jury of the effect of a hung jury. Finally, adoption of the rule advocated by petitioner would violate the non-retroactivity principle announced by the United States Supreme Court in Teague v. Lane .
See Alexander v. Johnson , 211 F.3d at 897, (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas ten:twelve rule in the course of affirming this Court's rejection of claims identical to those raised by petitioner herein); Miller v. Johnson , 200 F.3d at 288-89; Woods v. Johnson , 75 F.3d 1017, 1036 (5th Cir. 1996), cert. denied , 519 U.S. 854 (1996); and Jacobs v. Scott , 31 F.3d at 1328-29.
See United States v. Jones , 132 F.3d 232, 245 (5th Cir. 1998), affirmed , 527 U.S. 373, 119 S.Ct. 2090, 142 L.Ed.2d 31 1999), (holding that no constitutional violation results from the refusal of a district court to inform the jury of the consequences of failing to reach a unanimous verdict).
See Alexander v. Johnson , 211 F.3d at 897, (affirming this Court's application of the Teague rule to the same claim raised by petitioner herein); and Webb v. Collins , 2 F.3d 93, 95 (5th Cir. 1993).
For the foregoing reasons, the Texas Court of Criminal Appeals' rejection of petitioner's third claim for federal habeas corpus relief in the course of petitioner's state habeas corpus proceeding was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state habeas proceeding. Therefore, petitioner is not entitled to federal habeas corpus relief under the AEDPA with regard to his final claim herein.
III. Request for an Evidentiary Hearing
In his reply to respondent's motion for summary judgment, petitioner requested that this court hold an evidentiary hearing in this cause to permit petitioner to further develop the factual bases for his claims herein. However, the state courts afforded petitioner an opportunity for a full and fair hearing on his claims in the course of petitioner's state habeas corpus proceeding.
See docket entry no. 31.
The AEDPA significantly limits the circumstances in which a habeas corpus petitioner may obtain an evidentiary hearing in federal court, imposing a significant burden on petitioners who fail to diligently develop the factual bases for their claims in state court. Under the AEDPA, a federal habeas petitioner who has failed to develop the factual basis for a claim in state court is not entitled to an evidentiary hearing unless (1) the claim relies on either a new rule of constitutional law, previously unavailable, made retroactive to cases on collateral review or a factual predicate that could not have previously been discovered through the exercise of due diligence and (2) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense. A petitioner does not fail to develop factual predicate unless the undeveloped record is a result of his own decision or omission. The rare situations in which a hearing is still necessary under post-AEDPA law include those in which the Texas Court of Criminal Appeals either explicitly or implicitly rejected state trial court factual findings on a critical issue.
See Williams v. Taylor , 529 U.S. 420, 433-34, 120 S.Ct. 1479, 1489, 146 L.Ed.2d 435 (2000), (prisoners who are at fault for the deficiency in the state court record must satisfy a heightened standard to obtain an evidentiary hearing); Clark v. Johnson , 202 F.3d 760, 765-66 (5th Cir. 2000), cert. denied , 531 U.S. 831 (2000); McDonald v. Johnson , 139 F.3d 1056, 1059 (5th Cir. 1998); and 28 U.S.C. § 2254 (e)(2). "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Williams v. Taylor , 529 U.S. at 437, 120 S.Ct. at 1491.
McDonald v. Johnson , 139 F.3d at 1059.
See Singleton v. Johnson , 178 F.3d 381, 385 (5th Cir. 1999); and Goodwin v. Johnson , 132 F.3d 162, 182 (5th Cir. 1997).
Petitioner has furnished this Court with no rational explanation for his failure to present the state habeas court with any evidence concerning any of the issues determinative of his claims herein. Petitioner does not allege that any extrinsic force prevented or precluded petitioner from calling witnesses or introducing any other evidence during the evidentiary hearing held in petitioner's state habeas corpus proceeding. Petitioner had the assistance of both able counsel and an expert witness and was well aware of the burdens imposed by both state and federal law on his claims herein. Petitioner's failure to present testimony or other evidence addressing precisely what his trial counsel knew about petitioner's childhood and background and when they knew it is the fault of no one other than petitioner and his state habeas counsel. Petitioner has alleged no specific facts showing that he or his state habeas counsel exercised due diligence with regard to presenting such evidence. For that reason, petitioner is not entitled to an evidentiary hearing in this Court.
The AEDPA became effective in April, 1996, long before the November 24, 1997 evidentiary hearing held in petitioner's state habeas corpus proceeding.
IV. Certificate of Appealability
The AEDPA converted the "certificate of probable cause" that was required as a prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a Certificate of Appealability ("CoA") The CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA. Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA. Under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone.
See Hill v. Johnson , 114 F.3d 78, 80 (5th Cir. 1997), (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); and Muniz v. Johnson , 114 F.3d 43, 45 (5th Cir. 1997), (holding that the standard for obtaining a CoA is the same as for a CPC).
See Robison v. Johnson , 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied , 526 U.S. 1100 (1999); and Hallmark v. Johnson , 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson , 523 U.S. 1041 (1998).
See Miller-El v. Johnson , ___ U.S. ___, ___, 123 S.Ct. 1029, 1039, ___ L.Ed.2d ___ (2003); and 28 U.S.C § 2253(c)(2).
See Lackey v. Johnson , 116 F.3d 149, 151 (5th Cir. 1997), (holding that the scope of appellate review of denial of habeas petition limited to issue on which COA granted).
See Lackey v. Johnson , 116 F.3d at 151; Hill v. Johnson , 114 F.3d at 80; Muniz v. Johnson , 114 F.3d at 45; Murphy v. Johnson , 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C. § 2253 (c)(3).
A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. To make such a showing, the petitioner need not show that he will prevail on the merits but, rather, demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. This Court is authorized to address the propriety of granting a CoA sua sponte.
See Miller-El v. Johnson , ___ U.S. at ___, 123 S.Ct. at 1039; Slack v. McDaniel , 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); and Barefoot v. Estelle , 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).
See Miller-El v. Johnson , U.S. at ___, 123 S.Ct. at 1039; Slack v. McDaniel , 529 U.S. at 484, 120 S.Ct. at 1604; and Barefoot v. Estelle , 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4.
Alexander v. Johnson , 211 F.3d 895, 898 (5th Cir. 2000).
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, the petitioner must demonstrate that reasonable jurists could find the court's assessment of the constitutional claim to be debatable or wrong. In a case in which the petitioner wishes to challenge on appeal this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling.
"Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."Miller-El v. Johnson , ___ U.S. at ___, 123 S.Ct. at 1040, quoting Slack v. McDaniel , 529 U.S. at 484, 120 S.Ct. at 1604.
Slack v. McDaniel , 529 U.S. at 484, 120 S.Ct. at 1604, (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court's procedural ruling was correct).
The determination of whether an unsuccessful federal habeas corpus petitioner is entitled to a Certificate of Appealability must be viewed through the prism of the AEDPA's highly defrential standard of review. Thus, the issue before this Court when determining whether the petitioner is entitled to a CoA is not whether reasonable jurists could disagree with this Court's resolution of the merits of petitioner's claims for relief but, rather, whether reasonable jurists could disagree with this Court's determination that the state habeas court acted reasonably when that court denied petitioner's claims on the merits.
Viewed in proper context, there is no basis for disagreement among jurists of reason with regard to this Court's disposition of petitioner's claims herein under the AEDPA. Petitioner's final claim for relief herein is precluded by a recent Supreme Court opinion. This Court has independently determined that petitioner's ineffective assistance claims, although factually cumbersome, all fail to satisfy either of the dual prongs of Strickland. Even if there could be disagreement over this Court's conclusions as to the wholesale lack of merit to petitioner's ineffective assistance claims, there can be no reasonable disagreement over the fact the Texas Court of Criminal Appeals applied the correct federal constitutional standard in rejecting petitioner's ineffective assistance claims and that the Texas Court of Criminal Appeals applied the Strickland test in an objectively reasonable manner.
Even if one were of the opinion that the Texas Court of Criminal Appeals erroneously denied petitioner's initial claim herein, i.e., petitioner's claim that he was incompetent to enter his guilty plea, given the record before the state habeas court and giving due regard to the deference owed the state trial judge's implicit and explicit factual findings regarding the petitioner's demeanor and conduct before and during trial, that ruling could not rationally be termed anything other than an eminently reasonable application of clearly established federal constitutional principles. The Texas Court of Criminal Appeals applied the correct federal constitutional standard in rejecting petitioner's claim that he was incompetent to enter his guilty plea. While it is possible that reasonable jurists might disagree with that court's ultimate resolution of petitioner's incompetence claim, there can be no genuine disagreement over whether the Texas Court of Criminal Appeals' rejection of that claim was, at the very least, objectively reasonable in view of the evidence before that court in petitioner's state habeas corpus proceeding.
When viewed in the context of the entire record from petitioner's trial and state habeas corpus proceedings and through the prism of the AEDPA, none of petitioner's claims for federal habeas corpus relief herein are debatable among jurists of reason, capable of a different resolution by a rational jurist, or worthy of encouragement to proceed further. There can be no rational disagreement about the fact that, in rejecting petitioner's claims on the merits, the Texas Court of Criminal Appeals applied the correct federal constitutional standards to petitioner's claims in an objectively reasonable manner.
For the foregoing reasons, the petitioner is not entitled to a Certificate of Appealability in this cause.
Accordingly, it is hereby ORDERED that:
1. All relief requested in petitioner's petition for federal habeas corpus relief, filed June 1, 1999, is DENIED.
See docket entry no. 18.
2. Petitioner's request for an evidentiary hearing, filed December 20, 1999, is DENIED.
See docket entry no. 31.
3. Petitioner is DENIED a Certificate of Appealability.
4. All other pending motions are DISMISSED as moot.
5. The Clerk shall file among the pleadings, motions, and other documents filed in this cause the two videotape recordings received by the Clerk from the Bexar County District Attorney on October 16, 2002, depicting (1) the petitioner's capital murder of Juan Moreno on July 26, 1993 and (2) the robbery of a convenience store on April 22, 1993, respectively.
6. The Clerk shall prepare and enter a Judgment in conformity with this Memorandum Opinion and Order.