Charles Milton v. Raymond K. Procunier, Director, Texas Department of Corrections, Respondent

money because he had Mr. Bell had that change peddled as he

to be able to make MILTON, Petitioner-Appellant, Charles junk all the streets of the over Unit- ed States.

Raymond PROCUNIER, Director, K. Department Corrections, Texas gentlemen, Ladies and these are veteran Respondent-Appellee. dope smugglers, absolutely. They knew exactly they doing, they what were had No. 83-1910. equipment, they just they knew what knew, up They gen- were to. ladies and United Appeals, States Court of tlemen, they They but didn’t care. didn’t Fifth Circuit. marijuana going care where that as Oct. long they got money their out of it. anybody you

And don’t let tell that Mr. Rehearing En Banc Rehearing and might responsible. Schultz He 14,1984. Nov. Denied be, probably is. These two individuals are the ones on you they trial before nothing

are peddlers, gen- but ladies and

tlemen, big They’re fish. guys not like

on the selling street corner that’s

ounce, biggies, these are the ladies and

gentlemen. imper

Strmel contends these statements

missibly appealed jury’s prejudices. to the statements, however,

These proper were circumstances,

under the because either response were in to the defense clos

ing argument that just Strmel was a minor

participant in govern the scheme and the persons

ment let the truly responsible es

cape Dorr, justice system, 636 F.2d at upon or a fair comment the evidence Martinez,

presented, 616 F.2d at if of the above

Even statements tak

en out of context were improper, we are prejudiced.

convinced Strmel was not

First, judge the trial admonished the separate

on three occasions that the attor

neys’ arguments were not evidence and disregarded supported by

should be unless

the evidence. United States v. Shackel (5th

ford, Cir.), 709 F.2d cert. denied, -, (1983). Second, the evidence guilt very strong. Strmel’s United Cir.1980), Cotton, (5th 631 F.2d

States denied, rt. ce L,Ed.2d Jeffrey conviction of Strmel is AF-

FIRMED.

Brown, Scott, Herman, Miles, Dean & Liser, III, George Worth, Grant Fort Tex. (court-appointed), for petitioner-appellant. Mattox, Gen., Jim Atty. Beni- Leslie A. tez, Offenhauser, Gen., Paula Attys. ‍​​​​​‌‌‌​​‌‌​​​‌‌‌​‌​‌​​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌‌‌​‍Asst. Austin, Tex., respondent-appellee. for BROWN, TATE, Before and HIGGIN- BOTHAM, Judges. Circuit HIGGINBOTHAM, PATRICK E. Circuit Judge: eight arguments

Charles Milton levels this his habeas upon first federal attack his conviction of murder a Fort Worth, jury. Texas Because this Mil- petition, ton’s first habeas federal granted unopposed request stay his an evidentiary hearing execution. After peti- district court dismissed Milton’s af- corpus. tion for writ of habeas We firm.1 We probable jurists might nonetheless issue a certificate of tions that dif- reasonable answer cause, persuaded ferently. ques- has raised others, hearing regard

I then all The district court denied relief. later Denton, black resi- Menaree Leonard and probable cause. denied certificate On Worth, owned dents Fort 2, 1984, formally vacated the stay March Liquor, liquor a local store. operated L & M granted September, first 1981. Milton’s black male entered the p.m. At about 2:30 5,May asking about coconut execution was set for 1984 and we after store and 25, mix, a .38 caliber Smith & stay April cream drew issued a on 1984. Dentons Wesson and ordered the revolver the and put money register from the II sack. the paper into a When their wallets (1) Milton urges that: insufficient evi- Dentons into a back robber ordered the supported finding

room, dence the that he gun the grabbed robber’s Leonard death; (2) deliberately the pros- two wine bottles over caused the while Menaree broke head, apparent no effect. the with improperly robber’s ecutor commented on his failure and ensuing struggle In the both Menaree testify; (3) improperly the trial court they struggled, As Leonard were shot. prevented jurors’ into the voir dire under- through fell the Leonard and the robber standing “deliberately,” of a the word term wound, Despite his Leonard front door. Texas law deems so common as managed gun. of possession take require jury charge; (4) definition customer, approach With the the rob- prior unadjudi- admission into evidence of in the leaving ber Leonard wounded fled phase during cated offenses of dead doorway and Menaree behind sixth, fifth, eighth the trial violated and counter, through gun the heart. The shot (5) amendments; fourteenth the failure of Milton. quickly traced to Leonard penal- in the trial counsel to offer evidence police lineup. at a identified Milton ty phase deprived of Milton the trial capital of murder Milton was convicted counsel; (6) by effective assistance of which then answered Fort Worth charging jurors during dire that voir penalty questions required the three death capital pun- must swear that their views on 37.071(b), Tex.Code Crim.Proc. Article ishment would not influence their delibera- Ann. The conviction and sentence were fact, trial any tions on issue of court Appeals affirmed the Court Criminal Texas, Adams rule in circumvented the State, 824, Milton v. 599 Texas. S.W.2d 38, 2521, 448 U.S. 100 65 L.Ed.2d 581 S.Ct. (en banc). (Tex.Crim.App.1980) The (1980); (7) penalty in this the death case is certiorari. Milton denied Court arbitrary, disproportionate, discriminatorily 3022, 451 U.S. 101 S.Ct. 69 imposed, inadequate an in- and based on denied, reh’g (1980), 453 U.S. L.Ed.2d 400 (8) quiry dangerousness; into future (1981). 69 L.Ed.2d of an illegal the conviction was the fruit for September With scheduled execution flowing arrest and from an detention im- 15, 1981, September Milton on 8 simulta- permissibly lineup. suggestive There be- petitions for writs neously filed of habeas question ing regarding no exhaustion of corpus stays of execution with remedies, state we discuss merits of 213th District Court of Tarrant Judicial each turn. County, Texas and the Court Criminal Appeals Texas. The state courts habeas evidentiary

denied without an hear- relief sought and Milton similar relief from argues Milton the evidence United States District Court Fort requisite finding does not support which, Worth, Texas, hearing shooting his stage of Me opinion, stay granted a of execution. deliberately naree was “committed expectation that her reasonable adopted district court certain of death would The Court Crimi- result.” magistrate’s findings, evidentiary held an of Texas Appeals rejected nal point gun same forts to at her were with the argument.2 expectation reasonable that death would least, At the result. evidentiary weak- legally We have no sufficient basis to not of proportions, ness was constitutional quarrel court’s with the state decision that cognizable in federal habeas. support there was sufficient evidence to murder, whether its decision be of Sumner v. proteсtion clothed with the Mata, urges the following ar (1981), not, and we think it is gument constituted improper an comment evidentiary or be reviewed for sufficiency testify: his failure to Virginia, Jackson v. under point Carter, At one Mr. during the voir A examination, know, dire “you, said this is juror reasonable could have concluded from not a monster gave movie.” And he testimony Leonard’s trial that he feared example the coming martians about that Milton intended to kill him and his it, doing down and reasonable doubt. wife in the back room and that he seized Boy, right. he’s nightmare. This is a gun desperate the in a effort to avoid that person a who lived through that People, contemporaneous fate. That reading of nightmare is still here you to tell about supported by the events is objective the it. Easiest thing evidence in the supports you and turn the world for to Texas courts in their do is not to jury guilty conclusion that a find him could But, have concluded that you know, Menaree’s death murder. picked we and repeated deliberate that Milton’s jury. ef- people Twelve who had integri- 2. That court "Q. stated: steady was—he pulling gun, He challenges sufficiency you steady рulling gun, Milton also but were of the too? punishment phase support evidence at the steady pushing to “A. gun away I was from jury's special him, answers to issues numbers sir. required by 37.071(b), one and two as Article "Q. Pushing way way this (attorney and that V.A.C.C.P. As to the issue of whether Milton’s indicating)? conduct “that caused the death of the de- Yes, "A. sir. deliberately," ceased was committed the evi- you "Q. jury And gun can’t tell this that this dence shows liquor that Milton entered a accident, discharged by wasn’t you, can sir? store in by Fort Worth that was owned Leon- say "A. I discharged by can't that it wasn’t pointed ard and Menaree Denton. Milton intentional. gun at give Mrs. Denton and ordered her to Denton, "Q. please Mr. sir. money register. him the in the cash He then question you you is: can tell can’t this— ordered the Dentons to the store’s back room. jury gun tell this discharged that this wasn’t grabbed Mr. Denton pistol the barrel of Milton's accident, by you, can sir? struggling gun. and started for the Ac- be, why "A. I see don’t it would sir.” Denton, cording kept trying point to Milton State, (Tex.Cr. In Smith v. 540 S.W.2d 693 gun again again and at Mrs. Denton. Mrs. App.1976), we found the conduct there to Denton broke two wine bottles over Milton’s deliberately been committed when there fight head but the gun continuеd. The went was no evidence that the off, defendant was under killing yelled, Mrs. Denton. Denton then anyone, the domination of nor was he "Why you under you don’t leave? Haven’t done pressure. mental or enough? Though emotional my You’ve killed wife.” Denton tes- no, argues replied, tified that Milton that the evidence "Hell I shows an ac haven’t yet, discharge going killed her pistol, disagree. but she is to die.” cidental cross-examination, following On light ex- Taken in the dict, most favorable to the ver change occurred: the evidence demonstrates that Milton right, Denton, "Q. you yourself, All and Mr. continually kept attempting point gun being you can’t tell this prevented honest— at Mrs. doing Denton but was from gun go this you didn’t off accident while so Mr. discharge. Denton until the fatal struggling, you? two were can conduct, From the evidence of Milton's one accident, By “A. say no sir. I can’t that the must conclude reasonably that Milton "could pull trigger. man didn't pulled He expect that death would result” from his con trigger steady, pulling gun this—he was State, (Tex. duct. Granviel v. 552 S.W.2d 107 my down on wife push each time I would Cr.App.1976). away from trying him. This is what he was 599 S.W.2d at 826-827. to do. denied, necks and their to bow

ty, the backbone (1977). you’re I think they see it. it like call supplied.) jury, (emphasis theory Milton’s is that this limitation on rights voir dire violated secured him by that viewed context the argues Texas and the sixth fourteenth amendments. The person “still here concerning the argument inability pursue inquiry, posits, this it,” stepped on no jury] about to tell [the deprive process, unfair as to him of so due apply “The test we must right of Milton. capacity so limited his to conduct or not the statement was mani is ‘whether meaningful deprive ‍​​​​​‌‌‌​​‌‌​​​‌‌‌​‌​‌​​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌‌‌​‍voir dire as to him of character festly or was of such intended the effective assistance of counsel. An naturally necessarily English professor at Texas Christian Uni- a comment on the failure of take it to be ” versity evidentiary hearing testified at the testify.’ United States v. the accused professor, habeas. The on the federal who (5th Cir.1976), F.2d Jennings, 527 training linguistics had extensive Wilson, 500 F.2d quoting United States semantics, explained that each of the terms Cir.1974), denied, (5th cert. commonly were used to mean different 1403, 43 L.Ed.2d 658 however, things. testimony, His did not has invoked its contem Texas place the words in the context of the rule, objection but the absence poraneous trial, evidence, charge and where the experienced and able objection two counsel, argument of and the context of supports a common-sense defense counsel charge itself lend definition to abstract- interpretation that the reference would not ambiguous ly example, words. For he ex- necessarily taken naturally and to be a plained that violent acts of a criminal na- protected silence. Pe on Milton’s comment mean type ture could assaultive behavior pointed nothing suggesting titioner has temper or could refer to a tantrum. He prosecutor so intended and we that conceded, however, understanding that this of the record. nothing in our review found unlikely placed when in the context of merit. argument The is without Similarly, explained a criminal trial. “deliberately” purposeful- could mean urges the refusal ly doing slowly or it could mean an act or judge state trial to allow his counsel to with care. inquire understanding into the veniremen’s specialized But we do not need the aid of “deliberately,” “probability” the terms study commonly to be aware that used him “criminal acts of violence” denied multiplе words common under- process and his sixth amendment due difficulty standings. The with Milton’s ar- rights by jury to trial and counsel.3 stops halfway up gument is that it the hill. multiple That a word without context has selection, During jury the court sus end, meanings beginning, is the not the objections tained to the efforts of Milton’s allowing inquiry into whether ornot attor- inquire jurors’ under counsel to into neys to ask veniremen their under- standing “deliberately” and of the terms standings of these words was constitution- of violence.” Under Texas “criminal acts al error. law, sufficiently these terms are common required purpose gain is not in a of voir dire is to infor- their definition One important per- jury charge capital under the murder stat mation to the exercise of Yet, Moreover, right emptory challenges. perhaps ute. counsel has no to ask jurors nearly always, purpose pro- articulate their under another is prospective State, language. springboard for the standing of the Battie v. vide a advocate. Prob- (Tex.Crim.App.), understanding 551 S.W.2d 405 cert. venireman’s argument argue oblique effort to assist his brief seems to the limit on voir 3. Milton’s characterization of denied counsel dire as а denial of counsel as well as of due added nothing adds inquiry. jury rights. process amendment to our and sixth This charged and before trial court with the responsibility context could the flesh of court, and be review. As used welcomed direct a federal habeas doubtlessly be time, persuasion. distance, as a tool But even more remote in advocate counsel, persuasive whose greater. function the debt of deference usefulness expression, procedural find skills otherwise however, question, The more acute is not right pass and we is not constitutional the reasonableness of this restriction point. more basic quickly to Milton’s dire, question voir but the related of wheth- acknowledged court The federal district er the words undefined are court people testimony that different expert sufficiently meaning, narrow in their in differing meanings to the might attach context, guidance that the received the words, agreed with the Texas courts but required in capital cases. Jurek v. ques blocking inquiry into this area of 49 L.Ed.2d S.Ct. tioning not an abuse of discretion. (1976), approval in its of the Texas scheme quoted the Court of Criminal The court capital punishment, ques- answers the “[vjoir Appeals, noting that: dire examina tion, at in least the abstract. In the con- length of tion could take an unreasonable case, persuaded text of this we are not attorneys time if on both sides selected jurors reasonably could take these contemplated throughout different words significantly words to mean different prospective juror charge and asked each things. To the extent that the words strike what those words meant.” Milton v. jurors, play distinct chords in individual State, quoting 599 S.W.2d Cham differing attitudes, philosophies and State, (Tex.Crim.App.1978), bers v. 568 S.W.2d nothing more is at than work denied, t. cer system. Our effort to define reasonable We in non-tautological doubt terms is instruc- agree, argument goes. as far as the tive. “Reasonable doubt is a doubt based certainly seeing state has an interest phrasings on reason” or similar is the usual unnecessarily protract that voir dire is not words, result. The answer is that such ed. with the And difficulties of selection great consequence, often of do have a com- cases, including such delicate mat understanding mon the sense that standard, Witherspoon lengthy ters as the ultimately jury says mean the by what Arguably, voir dire is the norm.4 when it they their verdict mean. But it does not jury takes weeks to select a to hear two follow that explore it is essential to each days testimony, of argument the that re understanding venireman’s of their mean- fusing inquiry meaning to allow into the of ing. contrary, meaning To the their justifiable the words is as an effort to expressed application in an or result rather dire, reasonably contain the voir is not com than a second definitional formulation. pelling. But so it would be with area sum, In the lawyers were not circum- inquiry only of which in makes a isolation arguments. Using scribed in their final the marginal contribution to the overall time charge springboard, they argued as their at consumed. We have read the record and it length the jury inferences wished the reflects, whole, as a painstaking a voir dire jury to draw. The requested no clarifica- by conducted skilled counsel under the su tion. We conclude in context the ac- perintendence patient judge. trial We plain cused words did have a meaning of little difficulty concluding that there sufficient content that the discretion left was no abuse of the to trial court’s discretion jury In was no more than that holding, emphasize here. so a inherent in we jury system trial leeway court must be accorded wide in itself. It follows that re- scene, its particularly exploration control over the trial fusal to meaning allow of their voir dire. That deference presents is owed a in voir dire no issue distinct from jury 4. typical. Ap- transcript jury The selection Milton's of trial were devoted to selection. proximately fifteen of the seventeen volumes of general question adequa- Appeals of the overall of Court Criminal of Texas dire, by an measured abuse cy of the voir rejected Milton’s contention that the admis stated, the limits Otherwise of discretion. we, sion of this evidence was error. So do voir did rise dire not imposed essentially the same reasons. The fo deprivation of right of a constitutional level 37.071(c), of cus Article Tex.Code Crim. counsel, process. jury or due part in predictive. Proc.Ann. is itWhile assigns juries a difficult task to argues crimes, that it was error of Milton inquiry prob a into defendant’s “unadju magnitude to admit constitutional resрonsive able future conduct is to the dicated” into evidence extraneous offenses constitutionally rooted concern that In sentencing phase of his trial. at penalty death not be administered in an habeas, evidentiary rul federal review arbitrary capricious way. Certainly all ings by judge by a trial the standard state ought “relevant” information be before of prejudi that “the erroneous admission jury facing this task. At the same time testimony justify cial does not habeas cor long-held there remains reservation about pus relief unless it is ‘material the sense wrongdoing the use of being then tried. crucial, critical, highly significant aof fac express ” These concerns acceptance our Estelle, tor.’ 720 F.2d Skillern a jury suffers the human weakness of (5th Cir.1983), quoting v. Es Porter blending wrongs result inconsistent —a telle, (5th Cir.1983). 709 F.2d our fundamental commitment put The state before the evi charge specificity, jeopardy and pro due that, dence addition to a conviction in cess. But these concerns are addressed dollars, fifty for theft over properly applied standards of relevance and unlawfully pistol carried а and that on each sufficiency proof. Moreover, the under days two before the Denton murder lying jury may concern that a proof allow robbery. he committed armed Each vic person defendant is a bad color its tim the armed robberies testified that present guilt assessment of is absent when store, Milton entered their demanded their received, here, extraneous offenses are money and ordered them to a back room escape. phase.5 while made his only sentencing emphasize We must also the structure of the stance.” The Court’s 1976 decisions system. require Texas death Under Texas that before law, inquiries before sentencing Tex.Code Crim. imposed, authority must find 37.071(b) Proc. art. are even submitted to the presence statutory aggravat of at one least jury, must find that murder was com- factor, weight and then must the evidence circumstances, mitted under one of five in- factors adduced the defend cluding committing “in the course of or at- 153, 206-07, Gregg Georgia, ant. tempting kidnapping, burglary, to commit 2909, 2940-41, (1976); robbery, aggravated rape, or arson.” Tex.Pe- 276, Jurek v. 428 U.S. at 96 S.Ct. at Thus, 19.03(a). nal § Code law ef- Texas in 2958. While the admissiоn of evidence of an provides fect for a to be determination made phase extraneous offense in the second guilt during phase that other states reserve proceeding Texas bifurcated be must watched sentencing phase. Supreme for the theAs closely may implicate and other constitutional Jurek, Court noted in "While Texas has not concerns, point way out in no adopted statutory aggravating a list of circum- constitutionally undermines mandated justify stances the existence which can procedures imposition of the death sen imposition of the have Geor- set tence forth Court in Jurek Florida, gia narrowing its action in and the other 1976 decisions. Texas decisions categories of murders for which a death sen- uniformly approved have the admission imposed may ever tence be serves much the sentencing phase. extraneous offenses at 270, purpose." same U.S. at 428 96 S.Ct. 747, State, Rumbaugh (Tex. S.W.2d 754 629 State, Crim.App.1982); Williams 622 Evidence the extraneous offense was not (Tex.Crim.App.1981), S.W.2d 120 cert. de sentencing phase. introduced here until nied, 71 L.Ed.2d Thus, possibility can there be no that it infect- State, (1982); S.W.2d Brooks v. jury’s Autry ed the determination com- denied, (Tex.Crim.App.1979), cert. "aggravating mitted murder under an circum- acknowledged lence. She also that Milton pretty drug problem” “had extensive but a. knowledge denied of his earlier robberies. turns his attack on Milton next his trial Smith, brother-in-law, James Lee Milton’s counsel, representation their urging Smith, sister, and Frankie gave his similar constitutionally in ineffective their de- testimony. punish- to offer evidence in the cision not mentioned, May Carter, ment trial. As junior counsel, Don trial testi- District Court held an United States fied that when he appointed to assist hearing upon evidentiary four of Milton’s Harry in experi- Williams the trial his trial claims, including ineffective assistance of fifty ence included some trials and in addi- court heard the counsel.6 The district testi- private practice tion to approximately three mony persons, including Milton and of ten years in the local attorney’s district office. Carter, Harry Don of his trial counsel. one explained Carter that Williams had investi- Williams, counsel, trial Milton’s lead had gated Jones, the case assisted Bob died two weeks before the about evidentia- lоcal investigator. He discussing recalled ry hearing. strategy trial presence Williams Milton testified that he asked Williams of Milton and although unable to recall testify” during “if he the sentencing could details, specific he remarked that the dis- phase of the trial but Williams neither al- cussion included ought whether Milton why lowed him to do so nor told him he testify. He also confirmed that Milton had could He not. also testified that at the testify. wanted to explained Carter also time of trial he had two sisters and a and Williams were concerned about the ex- Worth; living in gave brother Fort that he tent of the available evidence of extraneous names, Williams their the name of “Rever- offenses that developed should end” Brown as well as his “bossman’s” Milton and family members of his testify. name. None testified at Milton’s trial. Re- included, These in addition to the extrane- verend Brown testified that he met with robbery gun ous charges which were Milton on one occasion but could not recall out, brought a conviction for theft over discussed, subjects that Williams had fifty dollars,7 possessing heroin and that attended the church service he conducted Milton had needle marks on his arm and Sunday jail, each and that he would have up had “shot hospital the ward” at a local so testified at Milton’s trial if he had been being where he was drug treated for addic- asked. explained tion. Carter this concern Smith, Joyce Milton, a sister of testified that the prosecutor would use members of good that Milton boy was a when he was Milton’s family give flesh to the extrane- young “given and was not to” acts of vio- ous offenses was also factor the deci- lence; baby-sit he would her children sion not to call them. Carter testified that occasionally church; accompany her to he was more concerned possibility with the that she would so testified at Milton’s prosecutor’s you “have ques- trial if asked to do so heard” and would have also tions, told the that she such you did not think as “Have heard he that he was a again commit criminal acts vio- heroin addict?” than with the other crimi- evidentiary statute. It ordered an hear- (1981). imper- on four issues which it "identified”: Estelle, Autry (5th 706 F.2d 1406 n. 5 selection, lineup, jury missible use of extrane- — Cir.1983), denied, -, cert. U.S. ous offenses and ineffective assistance of coun- sel. 6. adoрted The district court the recommenda- magistrate regarding tions 7. Evidence of the of a theft was admitted the claims arrest, illegal (comment punishment phase self-incrimination and Carter’s recollection here prosecutor testify), sufficiency on failure faulty. was constitutionality evidence and the of the death adversary process his testi- breakdown in charges.8 summarized nal Carter that district mony the federal court with renders the before result unreliable. explanation that: 104 S.Ct. at 2064. combined, things all the we made a strat- The Court that “[¡judicial counseled egy put decision not to scrutiny of performance counsel’s must be they family weren’t members because highly deferential.” S.Ct. at 2065. were good witnesses. There extraneous performance Our assessment of counsel’s out, brought matters that could be and requires every us to make effort to elimi- about all of these we were concerned nate distorting hindsight effects of fact things, just they not could per- to evaluate the conduct from counsel’s ask the or not he had witnesses whether spective at the time. Because of the diffi- problem. a heroin assessing performance, culties of counsel’s Williams, There was also evidence that the Court has us to “indulge directed died, age sixty about was when strong presumption that counsel’s conduct court, public to the trial assigned defender range falls within the wide of reasonable enjoyed reputation an excellent while assistance; professional is, the defend- twenty trying felony fifteen to cases a that, ant presumption must overcome the was year; and that Carter rated a bar circumstances, under the challenged ac- poll ten top as one of the criminal defense ‘might tion be considered sound trial strate- ” attorneys in Fort Worth. (citation gy.’ omitted). 104 S.Ct. 2066 “The defendant must show that

b. there is that, probability a reasonable but for the v. Washington, Court Strickland unprofessional errors, counsel’s the result -, L.Ed.2d proceeding have would been differ- (1984)explained “[Tjhe ent.” question 104 S.Ct. at 2068. ... claim that counsel’s assistance [a] whether there is a reasonable probability require was so defective as to reversal of that, errors, absent the the sentencer—in- a conviction or death sentence has two court, cluding appellate to the extent it First, components. the defendant must independently reweighs the evidence— performance show that counsel’s was de- have concluded the balance of requires showing ficient. This that coun- aggravating circumstances sel made errors serious that so counsel did not warrant death.” 104 S.Ct. at 2069. functioning was not as the “counsel” guaranteed the defendant We are persuaded Sixth not that the work Second, deficient, Amendment. defendant Milton’s counsel was or if it was, perform- must show that the deficient that it affected outcome of the prejudiced ance defense. case. This re- Williams and made the Carter diffi quires showing that counsel’s errors cult decisions uncommon experi deprive Perhaps were so serious as to enced trial defend- counsel. with hind trial, sight they earlier, ant of a fair trial whose result is tacked Regardless, reliable. Unless a defendant makes later. both their decisions fit well showings, range it cannot be said that the con- within a of tactical choices not to be viction or second-guessed.9 death sentence resulted from a are not We unaware of State, State, (Tex.Cr. Pointing See White v. 590 S.W.2d 936 White v. 590 S.W.2d App.1979). (Tex.Cr.App.1979), suggests that coun apprehension you sel’s the "have about heard” It bears mention this was the first death questions unjustified was because were ob slaying Worth returned in ‍​​​​​‌‌‌​​‌‌​​​‌‌‌​‌​‌​​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌‌‌​‍Fort for the jectionable under However the Texas law. law by one We black of another. do not doubt that represented by of Texas at the time of trial reality, particularly when this the victim was the State, (Tex.Cr.App. Childs v. 491 S.W.2d 907 store, proprietor part liquor of coun- 1973). State, Childs was overruled in Ward v. sel's That we do not decisional calculus. sanc- 1979) (en (Tex.Cr.App. banc). 591 S.W.2d paternalism components tion the and racist un- has not found to the oath described been be jury to a present to need the defensive contrary, the ar- To the unconstitutional. particularly in qualities, human defendant’s continues, the in Adams sus- gument court case, might that well an effort a capital constitutionality. tained its brothers, de- sisters make use jury remind the much to himself as fendant Adams, jurors In unwilling who were to humanity impart as to of the defendant’s very take this oath were excluded. Such lawyers veteran But these information. § exclusions, 12.31(b) required by of the doubtlessly equally aware of these were Code, Texas Penal were to found contra and hu- persuasion of trial fundamentals vene the Sixth Fourteenth Amend The decision to not offer man motivation. applied ments as construed and Wither phase was not punishment evidence at Illinois, spoon v. U.S. sense. Mil- the constitutional defective in (1968). At the same him guaranteed to the counsel ton received explained time the court that state has by the Constitution. right to excluded for cause those cannot, veniremen who without bias or dis tortion, statutory questions answer the req argues judge, Milton that the trial death penalty uisite for the in Texas. by instructing jury during voir dire that duty questions was their to pro answer is, course, Witherspoon a limitation pounded any to them without consideration upon power the state to exclude. involved, penalty the death violat argument Milton’s is that it follows that principle Texas, ed the v. Adams 448 the state is not entitled to an instruction 2521, 65 L.Ed.2d juror that a will not be affected his also, (1980). although specifi note not We by the deliberation circumstance that death cаlly pointed petitioner, out that each result; possible is a that it frustrates the juror selected oath that when took the “the against excluding jurors Adams rule punishment death mandatory impris or whose will deliberation be affected because your life will onment for not affect deliber jurors death possibility is a to instruct any help you ations issue of fact so they are to be Relatedly, not so affected. jury’s God?” written instructions argues jury that the was told before accompanied which the three death duty voir dire it was their answer questions also included an instruction that questions propounded con- you “During your deliberations shall not sideration was in- your consider discuss what the effect of or volved. jurors contrary No were excluded answer to above issues be. v. the argument Adams contin- you particularly, More are not to consider ues, only “because had been instruct- any possible of the discuss actions Board ed judge duty that it their not governor of Pardons Paroles or the nor death penalty answering consider the requested this long how defendant will be questions.” their The accused instruction to serve.” added): (emphasis read replies The state that such you instructions So though you see that even as a contrary are not juror Adams Texas be- are not signing your name to the jurors cause no were “D-E-A-T-H,” excluded and the Tex- word jury if the should which requires jurors statute take return answers, you three “Yes” are in- derlying jury such acts is society, not relevant. A Briggs trial be returned to Instruction lawyer operates with the citizens as he finds [telling jury possibility of commuta- prejudice all them—with their bias and and no- tion of sentence] invites the to assess bility, as well. proba- whether the defendant is whose someone ble future behavior makes it undesirable that he instructing In consider such permitted society." to return to California degree effects the court to some narrows the 3446, 3454, Ramos, inquiry dangerousness. into future It is the "By bringing obverse of jury’s Ramos. to the possibility attention the that the defendant

HOI structing do, me that that’s what I must yeses with two it comes out with if will do so. that doesn’t leave and I So noes or yes no, two one and one then so your you doubt in mind but what much so long be it as that’s the way you see doing. what are know it. Now, just the gets here is where law a The second wing argument оf Milton’s is quite tough. difficult and a bit little bit quickly dispatched. quoted The instruction quote going It that —I am now to says did not confine the veniremen’s answers in 12.31(b) Article Penal from Texas course voir dire. says prospective that “The Code this: wing The first argument of Milton’s is

jurors shall be informed that a sentence more difficult. If the state cannot exclude imprisonment or death is of life mandato- juror a unable to that swear his delibera- ry upon capital felony, conviction will tions not be possibili- “affected” prospective juror disquali- and shall be a sentence, ty of life or juror a death serving fied from a it is uncertain as unless why mandatory right under oath that the state has the states to insist that imprisonment of death of for life jurors be that sworn such a possibility any will not affect deliberation this on will not affect their deliberations. If the issue fact.” premise of that a juror’s range Adams is

Now, just let’s that examine a minute discretion cannot be drawn tightly more means, to what it and see what it means than an orbit which allows juror a to be you is this: when are selected as a affected the circumstance death that you juror, given will be that oath a possible punishment excluding while you will determine the in the case law, those unable to follow the instructing facts you strictly serving are jurors that death will not affect their from delib- you and nothing evidence hear erations raises from concern. else and no other source and that from Estelle, In (5th Brooks v. 697 F.2d 586 you just exactly call it way will Cir.1982), were, jurors here, required as it you regardless see the outcome. to take Texas We oath. concluded that that really you So what means when was inapplicable jurors Adams because no is, you get to it come down when back panel were excluded. This is bound you room if were on a it, decision does not retreat from but which murder verdict had been uncertainty to admit as to the elusive returned and deliberating were on the premise doctrinal of Adams. It is unclear punishment you had two of those right how a defendant’s to a fair cross questions you to answer and felt under section of his jury citizens in trial is violat- questions evidence two had to be by excluding jurors ed who swear cannot “Yes,” your it answered then would be potential that the aof death verdict will duty questions to answer two those affect their deliberation if the litmus oath even though you “Yes” know full well is constitutional. to going penalty. it’s result in a death token, By you same if may felt that one Adams be in one sense prophylac- questions of those should be answered tic implementation Witherspoon, and no “No,” your duty ques- it’s to answer that more, incongruity logic or con- “No” because needs tion it to be answer- cept giving way felt necessity. It “No,” ed I don’t because want be that “affect” is seen as descriptive of a death penalty. vote a continuum of reactions to the capital of- you do Now see the It’s by veniremen, difference? fense from those are who important you do. only reflecting qualitative difference of punishment by going sensi- capi-

You’re to have decide a increased task, strictly tivity tal case on its own to their those for whom facts nothing regard else prejudice death introduces such bias and the ef- your answers. out are to unable to comes follow fect of If viewed, evidentiary the exclusion of a venire- hearing law. So con- wife’s killer. only conceded he will be man has who duсted the federal district court includ- Witherspoon. violate But affected would lineup, including pho- ed evidence about person not taking the oath that a would tographs lineup, well as the testi- not, affected would absent further evidence Chambers, mony attorney Bill rep- who juror of where on the continuum the was. lineup, at the resented Milton and Darrell is, excluding juror That his bias because Thompson, then a detective with the Fort will not allow him to follow the law and Department. Worth Police Detective instructing juries to follow the law are not Thompson placed testified that Milton was key jury inconsistent. The is what the lineup in a four other black males. being they told when instructed that will only He testified that Milton was not the not be affected. person lineup in the with facial hair and judge explained (Milton), 5'7", The state trial to the heights that the were 5'5" jury ques- that their answers to the three 5'9", 5'8", Finally, expressed 5'11". tions would determine whether Milton re- opinion participants that the in the line- ceived a life or death sentence. We are not up closely resembled Milton. Milton testi- that, whole, persuaded was persons fied that the other did not resem- reality instructed to be insensitive to the him; ble had facial hair and did Rather, that life was an issue. straight not have hair as he did. reality was told not to allow that to distort lineup days The occurred fourteen after fact-finding juror their role. A who would the offense and Denton only identified Mil- do so would have been excludable under Recalling ton. the face-to-face encounter Thus, Witherspoon. “affect” was used by Denton of his assailant and the evidence judge permissible the state trial in its developed evidentiary at the hearing, there sense. concluding is no basis for that a substantial ordinary In the course of case-to-case likelihood of misidentification existed. See decisionmaking, readily not so Brathwaite, Manson v. 97 expose uncertainty, our but would be con- (1977); S.Ct. 53 L.Ed.2d 140 Neil v. tent to leave the matter to the aid of the Biggers, 409 U.S. percolation maturation and functions of our (1972); Estelle, Branch v. sister circuits. But as death-sentenced (5th Cir.1980). F.2d The district prisoners surely argue, with death findings clearly court are not erroneous. process cases that is difficult to lean so deference, AFFIRMED. heavily upon. With we are driv- only riddle, en leaving then to state the propounder the answer—if it is other TATE, Judge, concurring. Circuit

than we found in Brooks. I in panel’s opinion. concur With regard ineffective assistance of issue, agree majority counsel I with the Relying upon Pulley, Harris v. 692 F.2d Supreme that the pronounce- Court’s latest (9th Cir.1982) Milton attacks his con- — ment v. Washington, Strickland viction for lack of a proportionality review. -, U.S. 80 L.Ed.2d 674 rejected Court argument this (1984), seems, general — under the Sixth Harris, in Pulley -, U.S. announced, Amendment test there to re- quire reject us to what would otherwise be compelling argument. least, To me at Finally, argues that his ar counsel, per- Milton’s otherwise-excellent rest product was the of an impermissibly overconfidence, haps through prejudi- suggestive lineup at which he was identi cially failing present ineffective fied Denton as his assailant and his mitigating evidence whatsoever at the sen- conviction, following Despite was killed. ‍​​​​​‌‌‌​​‌‌​​​‌‌‌​‌​‌​​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌‌‌​‍tencing phase al- wife Mil- proprietor’s argument ton’s counsel’s that the shooting available.1 though some was (Milton accidental chose to take the Nevertheless, Striсkland, the Court stand), jury accepted the uncontradict- seems to held that Sixth Amendment ed testimony proprietor require that “the de- ineffectiveness claims killing question was deliberate. I have no affirmatively prove prejudice,” fendant in my jury’s mind but conviction of at-, 2067, in determin- 104 S.Ct. at offense, the capital that made Milton a ing whether “counsel’s assistance was so execution, completely sup- candidate for is require of a defective as to reversal convic- ported by the evidence and that he there- at-, penalty,” tion or death punishment, fore deserves severe whether I myself at However much 2065. it be or imprisonment. execution life may Milton’s of receiv- think that chances ing capital of a imprisonment life instead doubts, rather, My the arise from circum improved, sentence have been much stance that Milton’s chose counsel not to presented if the been individual- jury had place jury before the any' mitigating cir being that he human ized evidence was a whatsoever, although cumstances some had no extended record of that he available, by were jury which the might crimе, nevertheless, violent under the determine that this was a defendant human test, apparently say cannot Strickland being and one as to whom there was no was unless it that counsel ineffective “probability” that he commit “would crimi affirmatively penalty that the death shown nal acts of violence that would constitute a imposed had the sen- would not have been continuing society,” threat to one of three testimony— tencing jury afforded this been questions propounded sentencing to the burden, impossible I virtually an jury that, sentence, invoke to the death add, discretionary jury’s as to a life-death required jury an affirmative answer. Tex. determination. 37.071(b) Code Crim.Pro. Art. (emphasis added). offense, the Under facts of this case, however, Under the facts of this all, although after this was a cold-blooded deficiency while the may of counsel (rather robbery, armed it was a hot-blooded under Strickland constitute unconstitu- cold-blooded) than killing, and the ineffectiveness, jury tional Sixth Amendment might well found penalty it have the ultimate Eighth nevertheless run afoul of if, on against concerns unwarranted a view the of Milton’s life Amendment unrelia- ble, circumstances, arbitrary, imposition freakish had found there was no sentence, capital the by condemned the probability Su- reasonable that he would con preme past years;2 Court over the twelve I Instead, tinue to commit acts of violence. separately write express to that concern. on the the testimony basis of uncontested prosecution, sentencing jury

of the the was given no to the reason conclude that I. penalty unwarranted. was killing, was convicted of the dur- hearing After the robbery, affecting testimony armed of the wife of a proprietor liquor elderly killing proprie- proprietor store. The of the of his tor, man, an elderly attempted thirty-eight years, wife of jury disarm returned struggle Milton. In them, guilty between verdict of offense at majority, rejected By 1. Like the I concerned am also a similar contention. the "law of 38, circuit," principles decision, of Adams v. 448 U.S. arewe bound (1980), may 100 S.Ct. 65 L.Ed.2d 581 overruling en banc absence of judge’s been offended the state trial instruc- ruling. Court modification of the Brooks during jurors tion voir dire that were re- quired death-penalty-producing to answer See, Ohio, e.g., 2. Lockett v. 438 U.S. them, questions propounded (1978); Georgia, Furman v. consideration the death was in- However, Estelle, volved. in Brooks v. 697 F.2d (5th Cir.1982), panel another of this court XIX, had a non-violent and otherwise p. R. 2330. who AM, October 9:10 record, and who minor criminal of the trial commenced rather phase The PM, the human race beloved his at 2:24 a member of and concluded 10:15 AM (to death-sentence-resulting producing family evidence state only —and XIX, below). pp. 2335- interrogatory by R. which the be described PM and “probability” at 3:24 there was a The retired conclude whether XIX, PM, p. ap- R. commit vio- at 4:50 Milton would continue to returned difficulty concluding with little of such parently lent crimes. Production death-sentence-resulting questions usually deemed an es- evidence would counsel, in the affirmative. only answered should be if sential move of effective time between the evidence lengthen at the sen- produced only evidence of the crime leading to Milton’s conviction prosecu- that of the hearing was tencing details, itself, affecting and the with its proof of consisted of This evidence tion. sentencing jury perform time the retired theft; felony Milton’s 1972 conviction sentencing responsibilities. its awesome days present before the a few proof that responsibilities required jury, be- Those 24, 1977, found Milton was robbery of June death, deciding take into consid- fore proof pistol; (cid:127)unlawfully carrying only the facts of the crime eration not days the each of the two before that on itself, also the broader issue of wheth- but an robbery Milton had committed present unique of this indi- er “the circumstances (although robbery he had not armed Florida, defendant,” Spaziano v. vidual therein). the victims harmed U.S.-,-, 82 this, before the only the evidence On (1984), appropriate made it L.Ed.2d 340 quite could rea- sentencing jury, jury the than sent that he should be executed rather that Milton was a sonably have concluded prison live in for the rest of his life. redeeming individ- criminal without violent us, record I am convinced On the before jury given was not aspects. The ual to the failing that counsel erred in to offer testimony Mil- to hear the of opportunity jury any mitigating evidence sentencing his brother and mem- two sisters and ton’s could view jurors whatsoever which the family that would indicate he bers of their being, good with some any history Milton as a human being, human of was a an armed qualities, only rather than as just days two before the crime until violent evilly killed a victim of his family, robber who had robbery member of a present —a Nevertheless, them, robbery. under at least loving kind to by them and loved Strickland, wording say I cannot children, in essentially peaceful nature. shown, affirmatively as re Milton has present to the sen- The decision not decision, his quired by that counsel evidence, in tencing jury this the face in Amendment was ineffective a Sixth evidence prosecution’s uncontradicted anyone say, sense: for I cannot nor can acts, (recent) Milton's violent is almost (see jury probably II that the would infra), and, per- certainly that was unwise one penalty even had not have meted the death that the haps, arose from overconfidence presented for mitigating this evidence been capital sentence. jury impose would not consideration. its jury might fear The now-advanced addiction, However, Eighth concerns drug even con- Amendment learn of Milton’s appli- jurors are aroused in me our mechanical ceding that at least some of Amendment might aggravating rather cation Strickland’s Sixth view this as an circumstance, case. Unless pales sig- in standard to the facts of this than appropriate nificance, penalty always prosecu- considers the the death when one course of an indicating that when victim is killed in the unopposed tion’s evidence Supreme Court robbery armed only Milton was a violent criminal—rather —and , fail- crime Milton’s counsel’s than one to violent has held it is who had turned not— humaniz- robbery, mitigating, ure to offer available only days present two before sentencing hearing jury “relevant ing why evidence evidence ... it should sentencing imposed,” Jurek, him that his supra failed to assure not be (emphasis arbitrarily added) and unconstitu- jury would not may no less offend the —and tionally impose the death sentence fail- Eighth Amendment because Milton’s own ing to consider “the circumstances of each counsel chose not to Eighth avail himself of individual homicide and individual defend- protections, Amendment than if the state deciding the death ant whether prevented sentencing had Milton’s Florida, imposеd.” is to be receiving from this available relevant evi- Proffitt 242, 258, 2960, 2969, U.S. dence. II. Indeed, upholding the Texas applied Strickland its Sixth Amendment scheme, sentencing Court standards to claims of ineffectiveness of stated: sentencing process. counsel in the sentencing that allowed system [A] claims of ineffectiveness there concerned in only aggravating circum consider truth, professional judgment matters of certainly stances would almost fall short to which reasonable minds differ. providing the individualized sentenc doubt, my There view that today determination that we pronouncement requiring Strickland’s Carolina, held in v. North Woodson upon applicant affirmative burden 280, 303-305, 2991- short, prejudice relief to show required by L.Ed.2d to be —in would not have otherwise Eighth and Fourteenth Amendments. necessarily ap- resulted —was intended to system approach For such a when, ply as a result of a mandatory lapse counsel’s today laws that we hold un that on review does not seem supportable constitutional in and Woodson Roberts v. Louisiana, 325, 3001, strategy, as sound trial 428 U.S. 96 S.Ct. defendant is deprived Eighth 49 L.Ed.2d A of an protec- must be allowed Amendment against arbitrаry to consider on the basis of all tion an capital relevant sentence only why evidence not through present a death sentence a failure to to the sentenc- imposed, should why ing jury any mitigating but also evidence whatsoev- er, imposed. should not be although some is available. Thus, in order requirement to meet the case, In present lawyer Milton’s Eighth of the and Fourteenth Amend- presented mitigating no evidence at the ments, capital-sentencing system must sentencing hearing nothing to describe — sentencing authority allow the to con- petitioner’s humanity or his fitness to mitigating sider circumstances. in continue life this world. Whether or not 262, 271, v.

Jurek 428 U.S. 96 S.Ct. he so failed because of an overconfident 2956, 2950, (1976). 49 L.Ed.2d 929 belief that inappropriate this was an ease penalty, for the death there seems to me to sentencing meets, The scheme of Texas professional justification be little for the course, requirement. this constitutional it, petitioner failure. Because of procedure, Under the state Milton’s counsel “professionally denied the competent as- mitigating entitled to offer evidence. sistance” demanded Strickland v. me, however, troubling is What is that 104 Washington, S.Ct. at 2066. But the counsel’s failure to offer this available miti- that, panel say cannot lawyer’s absent the evidence, although gating not a Sixth failures, “the decision reached would rea- ineffectiveness, may in Amendment conse- sonably likely have been different.” quence produced capital have sentence — Strickland, at-, U.S. 104 S.Ct. at Eighth violative of Amendment standards. We have before us a death freakishly arbitrarily resulting problem been and The nub is this. imposed, through the failure to afford the We almost never can make that determina-

1106 sentences, different from a sentence of qualitatively as to death prejudice tion long. however imprisonment, evidence whatsoever mitigating no when sentencing hearing. The presented Carolina, v. North 428 U.S. Woodson imposed only may be now sentence death 2978, 2991, 304-05, 96 S.Ct. mur- of intentional convicted persons omitted, added). (citations (1976) emphasis impossible on subse- ders,3 almost it is mandatory capital Woodson invalidated evidence, not what to assess review quent they preclude the consid- sentences bеcause factfinder, permit presented circumstances eration of individual that a sen- after-the-fact conclude us to inappropriateness of death as suggest likely” “reasonably death other than tence punishment. Yet this course resulted. would have recently has Court more Eighth with the conflict in direct seems penalty statute violates held that a death requiring capital imperative Amendment if it limits Eighth Amendment mitigat- all evidence to consider sentencers capital facts a sentencer punishment of death ing against may consider. recognition of the in favor of militating imposition of death Given that humanity of the defendant before essential profoundly differ- public authority is so the sentencer. penalties, we cannot ent from all other is “a denial of the A sentence that an individual- avoid the conclusion Furman humanity.” person’s executed ized decision is essential in cases. Georgia, 408 U.S. Ohio, 586, 605, 98 Lockett S.Ct. It “is ulti- 2954, 2965, (1978) (emphasis 57 L.Ed.2d only expression mately understood Florida, Spaziano v. added). See outrage sense that an community’s —its 3154, 3162, -,-, 82 L.Ed.2d his moral entitlement has lost individual (1984) (“The sentencer, judge whеther — U.S.-, Florida, Spaziano v. live.” obligation jury, a constitutional has -, L.Ed.2d unique circumstances of the evaluate the J., (1984) (Stevens, concurring part defendant____”) (emphasis add- individual reasons, dissenting part). For these ed). interpreted Eighth Amendment has been noted, difficulty I have previously As guarantee person whose life is at stake distinguishing process that de- between present virtually any evidence right opportunity present nies a defendant that his hu- that will show the sentencer which, mitigating and one in evidence important enough that it should manity through lawyer’s judgment, mistake of denied. not be not, fact, presented. such evidence is practice prevailing of individu- While the resulting equally sentence of death is sentencing gener- alizing determinations unreliable, arbitrary. freakish simply enlightened policy ally reflects imperative, than a constitutional me, rather this seems true whether or not To capital fun- that in cases the that, evidence, we believe say we can with the omitted humanity underly- respect for damental reasonably likely “would the result requires Eighth Amendment ... why Perhaps different.” this is been of the character and recоrd consideration emphasized has Court offender and the circum- of the individual “qualitative difference between death and particular as a stances of the offense greater degree penalties other calls for a constitutionally indispensable part reliability when the death sentence is im- inflicting penalty Ohio, process posed.” Lockett v. 438 U.S. at death. Accordingly, “unique at 2964. 98 S.Ct. required capital sen- squarely safeguards” on the are This conclusion rests Florida, tencings. Spaziano U.S. predicate of death is Florida, U.S. Enmund v.

H07 (Stevens, J., -, at 3167 concur- part). part dissenting in There- SOUTH

ring in CENTRAL BELL TELEPHONE COMPANY, Strickland, fore, I Plaintiff-Appellee, if foreclosed persuaded present would in the case be view that sen- Justice O’Connor’s LOUISIANA PUBLIC SERVICE COM- significant where tence should vacated MISSION, Powell, George Thomas E. J. kept has been from the evidence Ackel, Kennon, Ed Louis Lambert and justification, ‍​​​​​‌‌‌​​‌‌​​​‌‌‌​‌​‌​​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌‌‌​‍even sentencer Schwegmann, Jr., John G. Defendants- applicable though statute Appellants. mitigat- permits presentation, unless the its No. 83-3494. insignificant ing evidence “so Appeals, United States Court of sentencing its effect can be sure on the Fifth Circuit. judge’s jury’s] negli- determination was [or Florida, gible.” Enmund v. Oct. 830-31,

801 at 102S.Ct. 3379 at (O’Connor, J., (1982) dis-

73 L.Ed.2d

senting, agreeing that but death sentence vacated).4

should be (perhaps

Were it not Strickland’s

unintended) application, I not be able petitioner’s say the failures law- “insignificant”

yer were or their effect

“negligible,” and I would therefore vacate imposed in

the death sentence as violation Eighth Amendment. capital sentencing. 4. Never when statutes have limited ac- United v. Tuck- States Cf. er, presentation cused’s evidence has 404 U.S. L.Ed.2d the Court asked whether (1972) (new omitted evidence sentencing where accurate informa- likely” produced “reasonably a have dif- sentencer). Second, tion not before the sentenc- Ohio, E.g., ferent result. Lockett v. by judge, jury, Strickland 98 S.Ct. land, Strick- searching inquiry by record reflected stating though governing, that standard as judge. Finally, omitted evidence in issue may possibly distinguished ways. in three "insignificant" in Justice O’Connor’s Ed- First, the issue before the was the Court Sixth meaning barely mund in that it "would Amendment, and the standard formulated is sentencing profile." altered the Strickland v. cases, govern intended to all and other- at-, Washington, 104 S.Ct. at 2071. principal Strickland’s wise. concern is the reli- however, guidance, Without Court sentence, and, ability particular verdict or position go are not in a where distinc- these text, as noted in has been Court clear us. tions would lead greater degree reliability” that “a is called for

Case Details

Case Name: Charles Milton v. Raymond K. Procunier, Director, Texas Department of Corrections, Respondent

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 14, 1984

Citation: 744 F.2d 1091

Docket Number: 83-1910

Court Abbreviation: 5th Cir.