Richardson v. Johnson

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________

m 99-10652 _______________

JAMES DAVIS RICHARDSON, Petitioner-Appellant, VERSUS

Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. _________________________

Appeal from the United States District Court for the Northern District of Texas (3:97-CV-2528) _________________________

November 22, 1999

Before SMITH, WIENER, and EMILIO M. 173, 177 (5th Cir.), cert. denied, 120 S. Ct. GARZA, Circuit Judges. 203 (1999). Under AEDPA, a COA “may issue . . . only if the applicant has made a JERRY E. SMITH, Circuit Judge:* substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). James Richardson requests a certificate of Even if the requisite showing is made, courts appealability (“COA”) as required under may exercise their discretion whether to issue 28 U.S.C. § 2253, as recently amended by the a COA. Id. Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,2 so Richardson claims he was denied the he can appeal the denial of his petition for writ effective assistance of counsel during his state of habeas corpus. The COA requirement is trial, in violation of his constitutional rights jurisdictional. Trevino v. Johnson, 168 F.3d under the Sixth and Fourteenth Amendments. See Strickland v. Washington, 466 U.S. 668 (1984). Ineffective assistance claims raise * Pursuant to 5TH CIR. R. 47.5, the court has mixed quest ions of law and fact. Lamb v. determined that this opinion should not be Johnson, 179 F.3d 352, 356 (5th Cir. 1999), published and is not precedent except under the cert. denied, 1999 U.S. LEXIS 7673 (U.S. limited circumstances set forth in 5TH CIR. R. Nov. 15, 1999) (No. 99-6272). 47.5.4. Under 28 U.S.C. § 2254(d)(1), the 2 The AEDPA applies because Richardson filed applicable standard of habeas review his motion for a writ of habeas corpus on governing state court determinations of mixed February 17, 1998, after the Act’s April 24, 1996, questions of law and fact is for reasonableness. effective date. See Lindh v. Murphy, 521 U.S. 320 See Drinkard v. Johnson, 97 F.3d 751, 767-68 (1997).

(5th Cir. 1996), overruled on other grounds, but for counsel’s unprofessional errors, the Lindh v. Murphy, 521 U.S. 320 (1997). result of the proceeding would have been Indeed, habeas relief is granted only if different.” Id. at 694 (emphasis added). “reasonable jurists considering the question would be of one view that the state court Richardson articulates three theories to ruling was incorrect.” Id. at 769. Concluding establish that his trial counsel was that Richardson has failed to show any denial unconstitutionally ineffective and that the of a constitutional right, let alone any chance errors were not harmless. Each theory fails that this court might reverse the denial of one or both of the two prongs required by habeas writ in light of the broad deference Washington.4 given to state court determinations of ineffective assistance of counsel, we deny the application for a COA.

I. Richardson was convicted in state court of murder and sentenced to die. The Texas Court of Criminal Appeals reversed and ordered a new trial because the court reporter had misplaced a portion of the transcript. On remand, Richardson again was convicted of capital murder and sentenced to death. His current challenge consists of alleging defects in the performance of retrial counsel, raised first in but rejected by the state courts on appeal.3

To establish unconstitutionally ineffective assistance of counsel, Richardson must do two things. First, he must show that “counsel made errors so serious that he was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Washington, 466 U.S. at 687. “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Id. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689.

Second, Richardson must show that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Although Richardson need not show that counsel’s errors were 4 dispositiveSSthat without the errors, he would Richardson additionally claims that the district have been acquittedSShe must demonstrate court looked to sufficiency of the evidence absent “that there is a reasonable probability that, counsel error, rather than requiring merely a reasonable probability that the proceeding would have been different absent error, to determine whether he was unconstitutionally harmed by 3 See Richardson v. State, No. 70,743 (Tex. ineffective counsel. Whether the district court did Crim. App. Dec. 1, 1993) (direct appeal); Ex parte so, we nonetheless conclude that Richardson failed Richardson, No. 18,337-02 (Tex. Crim. App. to satisfy the correct rule for unconstitutional harm September 24, 1997) (state habeas appeal). under Washington.

A. want to get up there and tell you people Richardson asserts that counsel failed to it wasn’t me.” object with sufficient frequency when, during closing argument at the penalty phase, the He continued: prosecutor improperly commented on his failure to talk to police or to take the stand Do you believe that [defense counsel] during the guilt phase. Two levels of analysis would have let him sit there through this are involvedSSthe constitutionality of the whole trial on guilt and not take the prosecutor’s conduct, and counsel’s failure to stand if he knew this guy was wanting to object to that conduct. testify and he didn’t do it?

The rule governing prosecutorial statements Defense counsel’s objection was sustained, but is as follows: no instruction to the jury was given.

In the case of asserted prosecutorial The prosecution then continued: misconduct implicating some other incorporated constitutional right such as Well, that still leaves you with your the right to remain silent, the court asks common sense, why did he wait. For whether or not the prosecutor’s the first time, today, November the 1st, statement was [1] manifestly intended 1988 to say, “I didn’t do it. I was shot or [2] was of such character that a jury in the hand as the car was driving off.” would naturally and necessarily take it to be a comment on the failure of the Defense counsel objected again but was accused to testify. overruled. The prosecutor concluded, without objection: Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir. 1988) (quotations omitted, emphasis If that’s the case, aren’t you going to be added). The determination depends heavily on the first one that runs to the police when the context in which the remark was made. that thing’s over and say, “No, guys, let Montoya v. Collins, 955 F.2d 279, 286 (5th me tell you, it wasn’t me. It wasn’t me. Cir. 1992). If constitutional error is found, to I want to sign 14 statements. It’s not win reversal on appeal a defendant must show me. Let me testify. Let me tell you that the error was not harmless. Rogers, about it.” 848 F.2d at 609. Counsel objected twice and was sustained Richardson did not testify until the penalty once. Richardson claims that his attorney phase, at which time he claimed innocence. failed to object with sufficient frequency and, His counsel subsequently relied on this in so failing, was constitutionally ineffective. testimony in arguing against the imposition of That is hardly the case.5 Defense counsel was death, stating that Richardson “told you his obviously aware of Richardson’s right not to entire story. And that’s the story he’s told me speak to the police or to testify, for counsel since the start of this case.” objected twice. Richardson simply wishes now that defense counsel had objected four The prosecutor rebutted by stating that times. Richardson had failed to testify during the guilt phase: Yet counsel’s decision not to object more

If he’s not guilty, don’t you start screaming at the start of this trial, “I 5 The state court avoided the question altogether didn’t do it. Let me take the stand on by denying Richardson’s claim on grounds of the first stage of this trial before they harmless error. See Ex parte Richardson, ever have a chance to say I’m guilty. I No. 18,337-02.

vociferously than he did may simply have been on death row following his first trial and a prudent exercise of self-restraint. More conviction. The introduction, during the interruption might have drawn excessive sentencing phase, of evidence of a prior death attention to the prosecutor’s statements, sentence is not constitutional error, so long as causing the jury to give them greater weight the evidence does not affirmatively mislead the than they would otherwise merit. An jury and diminish its sense of sentencing overruled objection might have diluted the responsibility. Romano v. Oklahoma, 512 persuasive value of a prior favorable U.S. 1, 10 (1993). Richardson claims, evidentiary ruling. And objection might have however, that because the fact of his prior simply annoyed the jury by slowing the death row st ay was unduly prejudicial, process. counsel’s failure to object and demand redact ion of the words “death row” from the At worst, objecting twice rather than four report of the prior offenses constituted times was a bad judgment call but hardly ineffective counsel. amounted to “errors so serious that counsel was not functioning as the ‘counsel’ Under Texas law, evidence of prior bad guaranteed the defendant by the Sixth acts is generally admissible at the penalty Amendment.” See Washington, 466 U.S. at phase of a capital trial. See Hogue v. Johnson, 687. Richardson’s first theory thus falls well 131 F.3d 466, 478 n. 16 (5th Cir. 1997). Even short of the mark for establishing unreasonably assuming that the trial court would have, on ineffective assistance. objection, redacted the words “death row,” and that failure to object rose to unreasonably Moreover, the state court determined that ineffective assistance, Richardson fails to show any constitutional error by the prosecutor (and a “reasonable probability” that such redaction any resulting ineffectiveness by counsel in would have affected the sentencing decision. failing to object) were harmless. Richardson is See Washington, 466 U.S. at 687, 694. utterly unable to show that no reasonable jurist could have so found. See Drinkard, 97 F.3d C. at 769. Counsel did not present expert testimony concluding that, given the trajectory of the The prosecutor’s comments were made at bullets, Richardson could not have been the penalty phase of the trial. There is no holding the gun. Richardson asserts that such showing that, had counsel objected more testimony would have contradicted self- frequently to prosecution comments on serving witness accomplice testimony Richardson’s silence during the guilt phase of identifying him as the shooter. trial, there was a “reasonable probability” that the sentencing decision would have been any Counsel did, however, put the identity of different. See Washington, 466 U.S. at 694. the shooter at issue during cross-examination of numerous prosecution eyewitnesses, Having already determined Richardson’s including a deputy sheriff, a firearms expert, guilt, the jury should have been focused on two police officers, the doctor who performed factors relevant to sentencing, rather than on the autopsy, and the witness accomplice. revisiting the question of guilt. That counsel Moreover, the district court found credibility failed successfully to distract the jury is no problems with the expert testimony basis for a finding of constitutional harm Richardson attempts to present here as critical caused by ineffective counsel. to constitutionally adequate representation.

B. Given counsel’s aggressive efforts to prove Counsel failed to object when, during the that Richardson was in fact not the shooter, penalty phase, the prosecutor introduced Richardson hardly suffered from legal evidence of offenses committed by representation so deficient “that counsel was Richardson, including those committed while not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at of[,] clearly established Federal law” to 687. His attorney could have made a rational mandate reasonableness review over state calculation that presenting expert testimony court applications of law to fact. Id. Under that some jurors might also find incredible § 2254(d)(1), a habeas writ will not lie unless would do more harm than good by "reasonable jurists considering the question undermining the legitimacy of Richardson’s would be of one view that the state court entire theory of the case. Again, at worst this ruling was incorrect." Drinkard, 97 F.3d was bad judgment, imperfect lawyeringSSnot at 769. In other words, merely to be eligible constitutional inadequate representation. for a COA, an applicant must show that his constitutional claim is at least debatable. II. Richardson has made no such showing. As amended, 28 U.S.C. § 2254(d) reads: The application for a COA is DENIED.

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claimSS

(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.

28 U.S.C. § 2254(d) (emphasis added). In Drinkard, this court construed § 2254(d)(1) to require de novo review for questions of law and reasonableness review for mixed questions of law and fact (i.e., questions that require the application of law to facts), and § 2254(d)(2) to mandate reasonableness review for questions of fact. See Drinkard, 97 F.3d at 767-68.6 This approach is based on a plain- text reading of § 2254(d)(1), construing the requirement of an “unreasonable application

6 See also Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997); Neelley v. Nagle, 138 F.3d 917 (11th Cir. 1998), cert. denied, 119 S. Ct. 811 (1999).