Green v. Cockrell

United States Court of Appeals Fifth Circuit F I L E D April 29, 2003 In the Charles R. Fulbruge III United States Court of Appeals Clerk for the Fifth Circuit _______________

m 02-20650 _______________

EDWARD GREEN,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________

Appeal from the United States District Court for the Southern District of Texas (01-CV-1270) _________________________

Before JONES, SMITH, and Edward Green seeks a certificate of appeal- EMILIO M. GARZA, Circuit Judges. ability (“COA”) to challenge the denial of his petition for writ of habeas corpus. Concluding JERRY E. SMITH, Circuit Judge:* that he has failed to make a substantial show-

• • * Pursuant to 5TH CIR. R. 47.5, the court has (...continued) determined that this opinion should not be pub- lished and is not precedent except under the limited (continued...) circumstances set forth in 5TH CIR. R. 47.5.4.

ing of the denial of a constitutional right, we evaluating whether Green has satisfied that re- decline to grant a COA. quirement, his arguments must be “viewed through the lens of the deferential scheme laid I. out in 28 U.S.C. § 2254(d).” Barrientes, 221 In 1992, Green shot and killed Edward Ha- F.3d at 772. den and Helen O’Sullivan during an attempted robbery. In 1993, he was convicted of capital The claims for which Green requests a murder and was sentenced to death. The Tex- COA involve the allegedly ineffective assis- as Court of Criminal Appeals affirmed his con- tance of trial counsel during the punishment viction and sentence. Green v. State, 912 phase of his trial.3 Green contends that coun- S.W.2d 189 (Tex. Crim. App. 1995), cert. sel failed to present mitigating evidence, spe- denied, 516 U.S. 1021 (1996). cifically witness testimony expressing the opin- ion that his violent conduct is related to his Green filed a state application for writ of troubled upbringing and the absence of a sup- habeas corpus, alleging that his trial counsel portive family environment. Because these was ineffective in failing to investigate and claims were considered and rejected during present certain mitigating evidence, particu- state habeas proceedings, Green is entitled to larly evidence that Green suffered from post- federal habeas relief only if he can demonstrate traumatic stress disorder (“PTSD”). The trial that the state court’s decision is “contrary to, court entered findings of fact and conclusions or involved an unreasonable application of, of law recommending that relief be denied. clearly established Federal law, as determined Based on that recommendation, the Texas by the Supreme Court of the United States.” Court of Criminal Appeals denied Green’s ap- plication. Ex Parte Green, No. 48,502-01 (Tex. Crim. App. Mar. 28, 2001).

On April 13, 2001, Green filed a federal habeas petition based in part on the claims of 2 (...continued) ineffective assistance. The district court de- (5th Cir. 2000); Hughes v. Johnson, 191 F.3d 607, nied relief and rejected Green’s request for a 612 (5th Cir. 1999) (citing Fuller v. Johnson, 114 COA. Green then filed his application for a F.3d 491, 495 (5th Cir. 1997)). COA with this court. 3 In the habeas petition presented to the district II. court, Green asserted additional claims of ineffec- To secure a COA, a petitioner must make tive assistance, as well as claims that the state in- a substantial showing of the denial of a consti- troduced false testimony, suppressed exculpatory evidence, and that the court improperly failed to tutional right. 28 U.S.C. § 2253(c)(2). To instruct the jury as to the possibility of life impris- meet this standard, Green must demonstrate onment without parole as an alternative to the that the district court’s rejection of his consti- death penalty. In the brief supporting his request tutional claims was debatable or in error.2 In for a COA, however, Green fails to address these claims. We address only those claims briefed, for issues not raised in a request for a COA are 2 See Barrientes v. Johnson, 221 F.3d 741, 772 waived. Hughes, 191 F.3d at 613 (citation omit- (continued...) ted).

28 U.S.C. § 2254(d)(1).4 sumption “that trial counsel rendered adequate assistance and that the challenged conduct was To prevail on his claims of ineffective as- the product of reasoned trial strategy.” Wil- sistance, Green must establish both that coun- kerson v. Collins, 950 F.2d 1054, 1065 (5th sel’s performance was deficient and that he Cir. 1992) (citing Washington, 466 U.S. at was prejudiced by the deficient performance. 690). Applying that standard, we conclude Strickland v. Washington, 466 U.S. 668, 687 that Green’s trial counsel did not render inef- (1984). Deficiency is established if counsel’s fective assistance and that the district court’s performance fell below an objective standard denial of relief is not debatable among jurists of reasonableness. Id. at 687-88. In making of reason. Green therefore has failed to make that determination, we apply a strong pre- a substantial showing of the denial of a consti- tutional right and is not entitled to a COA.

4 Generally, a petitioner also may establish his A. entitlement to habeas relief by demonstrating that Green contends that his trial counsel ren- the state court adjudication rested on “an unrea- dered ineffective assistance by failing to inves- sonable determination of the facts in light of the tigate and present the testimony of Leonard evidence presented in the State court proceeding.” Cucolo and Darrel Sanders, counselors at the 28 U.S.C. § 2254(d)(2). The showing is a difficult Texas Youth Council’s Giddings State School, one, because “the state court’s factual determina- where Green had been incarcerated as a sex tions carry a presumption of correctness; to rebut offender. Green presented affidavits in which them, the petitioner must present clear and convinc- Cucolo and Sanders detailed the testimony ing evidence to the contrary.” Smith v. Cockrell, they would have offered if called to testify.5 311 F.3d 661, 667 (5th Cir. 2002) (citing § 2254- (e)(1)). In the context of a request for a COA, however, the question is not whether Green has, in 5 fact, satisfied this demanding standard. See Mil- The issues surrounding the belated production ler-El v. Cockrell, 123 S. Ct. 1029, 1041-42 of these affidavits demonstrate the soundness of (2003). Rather, we must determine whether the our cautious approach to ineffective assistance district court’s conclusion that he has failed to do claims based on uncalled witnesses and undevel- so is debatable. Id. oped testimony. See, e.g., Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (stating that com- Green contends that the affidavit proffered by plaints of uncalled witnesses are disfavored be- his trial counsel lacked specificity and that, conse- cause allegations concerning what a witness would quently, the state court’s factual findings were in- have said are speculative); Lockhart v. McCotter, sufficiently supported by the evidence submitted. 782 F.2d 1275, 1282 (5th Cir. 1986) (“Where the He fails, however, to present any evidence that only evidence of a missing witness’ testimony is would tend to contradict the state court’s finding from the defendant, this Court views claims of that the affidavit was credible. Further, Green does ineffective assistance with great caution.”). Green not identify particular findings of fact that he failed to produce affidavit support for his claims believes are in error as a result of the court’s con- until after the district court had ruled against him. sideration of the affidavit. Given the absence of When submitted, the affidavits did not accord with any evidence of factual error, it is not even debat- Green’s previous descriptions of the testimony the able that Green’s conclusional allegations are in- witnesses would have offered. The district court sufficient to rebut the presumption of correctness chose to consider these affidavits despite the applicable to state court findings of fact. (continued...)

The affidavits state the therapists’ shared fective assistance.6 In his affidavit, Green’s opinion that Green’s emotional and behavioral counsel stated that he chose not to present problems are attributable to the troubled cir- additional testimony relating to Giddings, be- cumstances surrounding his childhood and the cause he did not believe it would be beneficial. absence of a supportive family environment. If that decision was made pursuant to an ade- Green also argues that counsel’s failure ade- quate investigation, it cannot serve as the basis quately to prepare Ramon Campos, a third of an ineffective assistance claim.7 Therefore, counselor from Giddings, to testify resulted in to succeed on his claim, Green must establish the omission of relevant mitigating evidence. that the omission of the therapists’ testimony Campos filed an affidavit describing the tes- was a consequence of trial counsel’s deficient timony he would have given had he been ade- investigation in preparation for the punishment quately prepared, relating to the emotional phase. problems Green developed as a result of the absence of family support and guidance. Counsel “has a duty to make a reasonable investigation of the defendant’s case or to As the district court noted, this is not a case make a reasonable decision that a particular in- in which trial counsel failed to present any vestigation is unnecessary.” Ransom v. John- punishment phase evidence. In fact, Green’s son, 126 F.3d 716, 722 (5th Cir. 1997) (citing attorney called several witnesses during the Washington, 466 U.S. at 691). Green’s law- punishment phase, including teachers, coaches, yer submitted an affidavit in the state habeas therapists, and family members. The proffered proceedings detailing his efforts in preparing testimony detailed various events from Green’s and presenting mitigation evidence. That affi- extremely troubled childhood, including the davit reflects a thoroughgoing investigation in- brutal murder of his father, his mother’s drug to Green’s background radically different from addiction, his confinement to the Giddings the situation in cases in which we have found State School, and the resulting absence of a stable home life.

Several of the witnesses from Giddings tes- tified that in their interaction with Green, he 6 displayed a good attitude and had not been a Salazar v. Estelle, 547 F.2d 1226, 1227 (5th discipline problem. Despite the introduction of Cir. 1977); cf. Gray v. Lucas, 677 F.2d 1086, this considerable mitigation evidence, Green 1093 n.5 (5th Cir. 1982) (“While a lawyer’s failure contends that counsel’s failure to present the to investigate a witness who has been identified as therapists’ testimony, and adequately to pre- crucial may indicate an inadequate investigation, pare Campos to testify, rendered counsel’s the failure to investigate everyone whose name performance constitutionally deficient. happens to be mentioned by the defendant does not suggest ineffective assistance.”). A strategic or tactical decision not to call 7 Smith, 311 F.3d at 668 (“So long as counsel particular witnesses does not constitute inef- made an adequate investigation, any strategic de- cisions made as a result of that investigation fall within the wide range of objectively reasonable 5 (...continued) professional assistance.” (citation and internal quo- absence of any explanation for their untimeliness. tation marks omitted)).

counsel’s investigation to be deficient.8 der, however, counsel’s failure to present evi- dence relating to PTSD does not satisfy the B. deficiency prong of Washington. Green contends that his trial counsel was ineffective in failing to introduce evidence on Although counsel did not observe any in- the effects of PTSD. His complaint centers on dications of PTSD during trial and did not be- counsel’s failure to introduce a psychological lieve that Green’s background was consistent expert witness and to elicit from Campos cer- with PTSD, he did attempt to obtain a psycho- tain testimony pertaining to PTSD.9 Green has logical evaluation of Green, who then refused entirely failed to present any evidence that he to submit to the evaluation. As a general rule, suffers from PTSD, other than the Campos af- a defendant cannot block his attorney’s efforts fidavit and his own unsubstantiated assertions. and later claim the resulting performance was Even assuming Green suffers from the disor- constitutionally inadequate.10 Green argues, however, that his refusal to cooperate did not free counsel of the obligation to perform a 8 See, e.g., Neal v. Puckett, 286 F.3d 230 (5th thorough investigation. Cir. 2002) (per curiam) (en banc), cert. denied, 123 S. Ct. 963 (2003); Bouchillon v. Collins, 907 Although a defendant’s failure to cooperate F.2d 589 (5th Cir. 1990); Profitt v. Waldron, 831 does not absolve trial counsel of the duty to F.2d 1245 (5th Cir. 1987); Beavers v. Balkcom, make a reasonable investigation, the scope of 636 F.2d 114 (5th Cir. Unit B Feb. 1981). Much of the omitted mitigating evidence in these cases that duty may be limited by a lack of coopera- was missed as a result of counsel’s failure to in- tion.11 In the case of psychological examina vestigate the defendants’ backgrounds in mental institutions and prisons. Id. at 691. The trial coun- 10 sel in Neal, for instance, failed to discover a sub- See Autry v. McKaskle, 727 F.2d 358, 361 stantial amount of mitigating evidence, including (5th Cir. 1984) (rejecting claim of ineffective as- evidence of brutal treatment at the hands of an sistance of counsel for failure to investigate and alcoholic father, difficult conditions during confine- present evidence at punishment where defendant ment in a mental institution, and sexual abuse had instructed his attorney not to fight death pen- while petitioner was in prison. 239 F.3d at 689. In alty); Amos v. Scott, 61 F.3d 333, 348-49 (5th Cir. the instant case, by contrast, in addition to inter- 1995) (defendant not prejudiced by counsel’s fail- viewing Green and certain family members, trial ure to investigate and present mitigating evidence counsel subpoenaed Green’s complete Texas Youth where defendant had instructed counsel not to pre- Council records, including his records from Gid- sent punishment-phase evidence). dings State School, and interviewed employees 11 from Giddings, including teachers, staff, and Bell v. Watkins, 692 F.2d 999, 1009 n.11 coaches. (5th Cir. 1982) (citing Gray, 677 F.2d at 1094); see also Randle v. Scott, 43 F.3d 221, 225 (5th 9 Campos contends, in his affidavit, that he Cir. 1995) (holding that attorney’s failure to in- would have testified that Green suffers from PTSD vestigate did not constitute ineffective assistance, as a consequence of his troubled childhood and that at least in part because defendant had failed to his violent behavior is related to that disorder. As provide relevant information); Wiley v. Puckett, the district court pointed out, however, Campos has 969 F.2d 86, 99 (5th Cir. 1992) (holding that at- never been qualified as an expert competent to torney’s investigation into mitigating evidence may testify with respect to PTSD. (continued...)

tions, a defendant’s refusal to cooperate effec- fers from PTSD.13 We review for abuse of dis- tively prevents investigation, rendering coun- cretion the denial of investigative assistance. sel’s decision not to pursue the matter further See Hill v. Johnson, 210 F.3d 481, 487 (5th reasonable. Green’s refusal to submit to an Cir. 2000).14 Under § 848(q)(4)(B) and (q)(9), evaluation therefore precludes him from claim- the district court may authorize funding for ing that counsel was ineffective in failing to expert or investigatory assistance if the de- present evidence regarding PTSD.12 fendant shows both indigence and that the ex- pert assistance requested is “reasonably neces- III. sary for the representation of the defendant.”15 Related to Green’s claim of ineffective as- sistance is his contention that the district court There is no dispute with respect to Green’s abused its discretion in refusing his request for indigence; the question turns on his failure to investigative funds filed pursuant to 21 U.S.C. establish that the expert assistance requested § 848(q)(4)(B) and (q)(9). Green sought these was reasonably necessary to his representation. funds primarily for the purpose of retaining a To demonstrate that assistance is reasonably psychologist able to determine whether he suf- necessary, a defendant must couple his request with a viable constitutional claim that is not procedurally barred. See Fuller, 114 F.3d at 11 (...continued) reasonably be limited when defendant fails to call witnesses to attorney’s attention). 13 In addition to funds for expert psychological assistance, Green’s original motion in the district 12 See Clanton v. Bair, 826 F.2d 1354, 1358 court requested funding to locate and interview var- (4th Cir. 1987) (“When a seemingly lucid and ra- ious individuals alleged to have information per- tional client rejects the suggestion of a psychiatric taining to his claims. Green mentions these ad- evaluation and there is no indication of a mental or ditional funding requests only in passing and states emotional problem, a trial lawyer may reasonably merely that the requests are governed by the same forego insistence upon an investigation.”). legal standards as is his request for psychological Although this case differs slightly from Clanton in expert assistance. He makes no attempt to describe that trial counsel was aware of some of the difficult the testimony these individuals would offer or how circumstances of Green’s childhood, counsel did such testimony would support his claim of ineffec- not observe any indications of PTSD during trial tive assistance. He therefore has waived these ad- nor did he believe that Green’s background was ditional claims as a result of his failure adequately consistent with PTSD. As we have said, counsel’s to brief the issue. Lookingbill v. Cockrell, 293 failure to discover and present evidence of a crimi- F.3d 256, 263 (5th Cir. 2002), cert. denied, 123 nal defendant’s alleged mental disorder does not S. Ct. 878 (2003). constitute ineffective assistance in the absence of “some indication that mental impairment might 14 A COA is not required to appeal the denial of prove a promising line of defense.” Byrne v. But- relief under § 848(q)(4)(B). See Hill, 210 F.3d at ler, 845 F.2d 501, 513 (5th Cir. 1988); see also 487 n.2 (citing Sterling v. Scott, 57 F.3d 451, 454 Wiley, 969 F.2d at 100 (“Because nothing alerted n.3 (5th Cir. 1995)). [trial counsel] to the possibility of mental impair- 15 ment as a mitigating factor, we find the decision 28 U.S.C. § 848(q)(4)(b), (q)(9); Hill, 210 not to obtain a psychiatric evaluation entirely F.3d at 487 (citing Fuller v. Johnson, 114 F.3d reasonable.”). 491, 502 (5th Cir. 1997)).

502.

Even if Green were able to secure a psy- chological evaluation establishing that he suf- fers from PTSD, however, it would not affect the disposition of his ineffective assistance claim. As we have explained, trial counsel’s failure to introduce evidence of Green’s al- leged affliction with PTSD did not constitute ineffective assistance of counsel, especially in light of the fact that Green refused to cooper- ate with counsel’s attempts to obtain a psycho- logical evaluation at the time of trial. If it is now established that Green suffers from PTSD, counsel’s performance would not thereby be retroactively rendered deficient.

In light of the absence of any relationship between the expert assistance sought and a vi- able constitutional claim, the district court did not abuse its discretion in concluding that a psychological expert was not reasonably necessary.

The application for a COA is DENIED.