The opinion of the court issued on July 18, 2005 and reported at
Petitioner, Billie Wayne Coble (“Coble”), was convicted of capital murder in the state court of Texas and sentenced to death. Based on a Certificate of Appealability (“COA”) on two issues, one granted by the district court and one by this court, Coble appeals the district court’s denial of federal habeas relief. We AFFIRM the district court’s judgment.
I
Coble was convicted of the capital murders of his brother-in-law, father-in-law, and mother-in-law. The facts of Coble’s crimes are set forth in the opinion of the Texas Court of Criminal Appeals (“TCCA”) disposing of Coble’s direct appeal.
Coble was having marital problems and separated from his wife, Karen Vicha, not long before the murders. Coble kidnapped Karen Vicha at knife-point. He attempted to convince her not to divorce him, but eventually released her unharmed. Coble v. State,
When Karen Vicha arrived home from work, Coble was waiting for her. Id. at 197. He admitted to killing her parents and brother and told her that Bobby Vicha had shot him. He then handcuffed her and drove her out to a rural area in her car. Karen Vicha later testified that Coble assaulted her during the drive. Coble was eventually apprehended after a brief high-speed pursuit, which ended when Coble crashed into a parked car. At the hospital where Coble and Karen Vicha were taken for treatment, Coble spontaneously told various hospital personnel and police officers that he had killed three people. Id.
Coble filed an application for a state writ of habeas corpus, alleging twenty-six claims for relief. The trial court held an evidentiary hearing on five of these claims, but recommended that relief be denied. The TCCA agreed, adopted the trial court’s findings of fact and conclusions of law, and denied relief in an unpublished order. Ex parte Coble, No. 39,707-01 (Tex.Crim.App.1999).
Coble then applied for federal habeas relief, and the district court appointed counsel. Coble filed his habeas petition, alleging twenty-five claims, and the district court stayed his execution pending resolution of the petition. The district court denied Coble’s request for an evidentiary hearing and denied the writ. The district court did, however, grant COA on the issue of ineffective assistance of counsel. Coble then petitioned for COA from this court on eleven additional grounds. We granted COA on the issue of whether the “special issue” interrogatories in the Texas capital sentencing instruction precluded effective consideration of Coble’s mitigating evidence in violation of the mandates of Penry v. Lynaugh,
II
“In a habeas corpus appeal, we review the district court’s findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court’s decision as the district court.” Thompson v. Cain,
Under AEDPA, habeas relief is not available to a state prisoner
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A state court decision is “contrary to ... clearly established Federal law, as determined by the Supreme Court” if: (1) “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or (2) “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor,
Ill
Coble makes multiple ineffective assistance of counsel arguments. These claims are governed by the familiar standards of Strickland v. Washington,
Coble claims trial counsel did not adequately prepare for the sentencing phase of trial because they failed to interview and prepare the witnesses who testified at trial. In the cases cited by Coble, trial counsel failed to conduct any investigation of witnesses who might have provided alibis or who were eyewitnesses. See, e.g., Bryant v. Scott,
Coble also argues that trial counsel failed to present a coherent theory regarding mitigation evidence in order to persuade the jury to answer “no” to the second special issue question.
Coble contends next that trial counsel rendered ineffective assistance during the guilt/innocence phase of the trial by failing to construct a viable insanity or diminished capacity defense. Coble argues that evidence of his mental state, which was extensively developed at sentencing, should have instead been presented at the guilt/innocence phase of trial. In this case, the trial court denied a defense request for an insanity instruction. Trial counsel testified before the state habeas court that the possibility of an insanity defense was investigated. Trial counsel also testified that no expert would support the insanity defense. Coble offered no evidence to the state habeas court that he was insane at the time of the murders. Trial counsel investigated the possibility of presenting an insanity defense and opted to hold the evidence until the sentencing phase of trial. Thus, counsel was not ineffective for failing to present an insanity defense at the guilt/innocent phase of trial since no experts would support the defense. See Wheat v. Johnson,
Coble also asserts that trial counsel provided ineffective assistance for failing to object to the prosecutor’s improper comments during closing arguments. The prosecutor described Coble as “a coldblooded, merciless, remorseless killer” and Coble argues that “remorseless” refers to Coble’s failure to testify at trial. However, the prosecutor never referenced Coble’s failure to testify and there was evidencie presented at trial that, immediately following the murders, Coble made comments that indicated his lack of remorse. Without some indication that the prosecutor was referring to Coble’s failure to testify, rather than Coble’s comments indicating a lack of remorse, this argument is meritless. See Rivera v. Collins,
Coble contends next that he received ineffective assistance of counsel because his trial counsel allowed a defense expert, Dr. Stephen Mark, to testify that Coble would likely be a danger in the future unless he was medicated. Dr. Mark, a psychiatrist, testified at trial that he examined Coble on more than one occasion and found that he was a violent and suicidal person due to the depression caused by his post-traumatic stress disorder and bipolar disorder. In his testimony, Dr. Mark stated that Coble’s psychiatric disorders and his unique history of separation from his mother and previous wives caused a total loss of control. Dr. Mark did admit that timely hospitalization and treatment with mood-stabilizing drugs could have prevented the murders and
Furthermore, even assuming that trial counsel’s performance fell below an objective standard of reasonableness, Coble does not establish that the result of the proceedings would have been different, as the habeas court also found that there was no prejudice. First, Dr. Mark’s expert testimony was not that Coble was absolutely a future danger, but rather that, left untreated, he was a future danger. Second, other evidence suggested that Coble would be a future danger, including the State’s expert who testified that Coble constituted a future danger, the horrific nature of the murders, and testimony that Coble was aggressive and violent towards women in the years before the murders. See Little v. Johnson,
Coble also argues trial counsel was ineffective for admitting into evidence psychiatric reports at the penalty phase which suggested he was a future danger.
Coble asserts next that trial counsel was ineffective for admitting a 1964 psychiatric report from a doctor’s consultation with Coble when he resided at a state home at the age of fifteen. In the report, Coble admitted to several illegal actions. These extraneous offenses were then presented to the jury when the report was introduced as evidence by trial counsel. Coble contends that the state report violated his Fifth Amendment right to self-incrimination at the time it was taken and that the admission of the report at the penalty phase of his capital murder trial violated his Fifth and Sixth Amendment rights, as articulated in Estelle v. Smith,
Coble claims that cumulative error merits habeas relief. Federal habeas relief is only available for cumulative errors that are of a constitutional dimension. Livingston v. Johnson,
Coble argues that the facts in his case are indistinguishable from the facts in Williams v. Taylor,
Similarly, Coble contends that the state court’s denial of habeas relief was contrary to clearly established federal law because
In sum, Coble’s attempts to analogize Williams and Wiggins fail because counsel is not required to “investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Wiggins,
We also recognize the Supreme Court’s recent decision in Rompilla v. Beard, in which the Court held “that even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial.”
IV
Coble argues that the jury instructions, specifically the Texas “special issue” interrogatories, submitted during the punishment phase of his capital murder trial, deprived the jury of an effective vehicle to consider mitigating evidence in violation of the mandate in Penry I and Penry II, thus violating the Sixth, Eighth, and Fourteenth Amendments. Under the version of the Texas statute in force when Coble was tried, to impose a capital sentence, the jury had to answer two questions in the affirmative. The first special issue interrogatory addressed whether the defendant had acted “deliberately and with the reasonable expectation that the death of the deceaseds or another would result.” The second special issue question instructed the jury to consider “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”
Coble’s trial was held between the Supreme Court’s decisions in Penry I and Penry II. In Penry I, the Court held that the first two “special issue” interrogatories in the Texas capital sentencing instructions, though facially valid, failed to satisfy the constitutional requirement that a capital defendant be able to present and have the jury fairly consider mitigating evidence in certain situations.
Penry was retried and again found guilty of capital murder and sentenced to death. In Penry II, the Supreme Court considered a constitutional challenge from Penry on whether the jury instructions at Penry’s resentencing complied with its mandate in Penry I. The Court considered the supplemental instruction given at Penry’s subsequent retrial,
“The Supreme Court’s rulings in Penry II and Smith should not be read to disturb its earlier holdings affirming the constitutionality of Texas’ statutory death penalty sentencing scheme.” Bigby v. Dretke,
A
First, the Supreme Court recently held that “a State cannot preclude the sentencer from considering ‘any relevant mitigating evidence’ that the defendant proffers in support of a sentence less than death .... [Virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances.” Tennard,
During the sentencing phase of trial, Coble offered a variety of mitigating evidence. First, he presented non-psychiatric mitigating evidence, including evidence of his troubled childhood; that his father died before he was born; that his mother suffered a nervous breakdown when he was eleven; and that he was sent to live at a state facility. Coble lived at the orphanage until he was seventeen, at which point he joined the Marines and served in Vietnam. During his four years of service, Coble served as a machine gunner and was involved in combat. Upon his return to the United States, Coble was hospitalized due to the trauma he experienced during the war. Likewise, Coble’s sister testified that he was different after he returned from Vietnam. Coble offered testimony that he was involved with various youth programs over the years, that he had a good relationship with his son, and that he got along well with co-workers. Coble also served as a section leader in the U.S. Army reserves and he offered evidence that he was well respected.
Coble also presented the testimony of two psychiatrists. The first, Dr. Mark, testified that Coble was dangerous and might continue to be a danger. In fact, Dr. Mark testified that everything in Coble’s history would make him a continuing threat. Dr. Mark also testified that Coble suffered from two psychiatric disorders: post-traumatic stress disorder, brought about by his Vietnam experiences, and a bipolar disorder. He stated that Coble was prone to become “[potentially explosive and potentially aggressive and assaultive,” and suggested that the bipolar disorder might be hereditary. Dr. Mark also indicated that these illnesses made Coble susceptible to severe mood swings, which resulted in a loss of control on the day of the murders.
Dr. James Grigson, the second defense expert, testified that Coble was suffering from severe depression at the time of the murders, and that it was very improbable that Coble would commit this type of offense again. Specifically, Dr. Grigson stated that Coble was more horrified by the pictures of the victims than anyone, and that Coble had feelings of remorse and guilt. Both psychiatrists agreed that Coble linked the loss of his wives with the loss of his mother, such that the divorces triggered severe bouts of suicidal depression. Dr. Grigson also discussed a 1964 psychiatric report, created by Dr. Ralph Hodges, which classified the fifteen year old Coble as having a “sociopathic personality disturbance of the dissocial type.” Dr. Grigson stated that the term “sociopath” did not mean the same thing in 1964 as it does now, and that a diagnosis of an individual as a sociopath could not be made until a person was eighteen years old.
Applying the low threshold articulated in Tennard, it seems clear that the evidence submitted by Coble constitutes relevant mitigating evidence, therefore satisfying the first prong in determining if habeas relief is proper on his Penry claim. The Supreme Court noted in Tennard that “good-character evidence ... ‘may not be excluded from the sentencer’s consideration.’ ”
B
“Once this low threshold for relevance is met, the Eighth Amendment requires that the jury be able to consider and give effect to [Coble’s] mitigating evidence.” Id. (quoting Boyde v. California,
1
The second special issue, as discussed supra, instructed the jury to consider “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” The requirements of the Eighth Amendment are satisfied “even if evidence is aggravating, as long as the mitigating aspect is within the effective reach of the jury.” Davis v. Scott,
This Circuit has previously held that mitigating evidence of mental illness could be considered within the context of the second special issue, future dangerousness, if the illness can be controlled or go into remission. See, e.g., Lucas v. Johnson,
As in Lucas and Robison, Coble’s mitigating evidence demonstrated that his mental illness was treatable, thus placing it within the effective reach of the sentencer. Dr. Mark testified that, if properly treated, Coble would be less likely to commit criminal acts constituting a continuing threat to society. He also stated that medications were available to treat bipolar disorder that “help to stabilize the mood on an even keel and chemically keep the person from getting the high moods or the real low moods” as well as recently developed antidepressants that would “help block the symptoms from coming out.” He testified that medical treatment would probably control Coble’s mental illness and that “there would be less likelihood of any criminal acts if he were adequately treated for both of the disorders.” Dr. Grigson also testified, although Coble suffered “severe depression due to his wife divorcing him,” that he “does not represent a continuing threat to society and will not be
Coble’s case can be distinguished from this court’s recent holding in Bigby, where we found that Bigby’s mitigation evidence of his mental illness could not be considered within the context of the future dangerousness special issue because the evidence indicated that his condition could not be adequately controlled or treated. Bigby,
Next, Coble argues that the jury instructions deprived the jury of an effective vehicle with which to consider his mitigating evidence of a troubled childhood. Prior to the Supreme Court’s decision in Tennard, this court consistently held that evidence of child abuse or a troubled childhood did not constitute “constitutionally relevant mitigating evidence.” Hernandez v. Johnson,
evidence was presented showing that Mr. Jacobs had an unstable, troubled childhood. He never knew his mother, and has only vague memories of his father. His father left him to live alone with strangers when he was a small boy, and Mr. Jacobs never saw him again. Mr. Jacobs ended up living in several foster homes as a child, separated from his sister, parents, and all other family connections.
Id. Coble had a troubled childhood similar to that of Jacobs and Graham, “as opposed to a childhood rife with harsh physical abuse like that of Penry.” Id. Coble’s evidence of his troubled childhood included: (1) the death of his father before he was born; (2) poverty in childhood; (3) his stepfather’s alcoholism and conflicts with his mother; and (4) his mother’s nervous breakdown. His evidence of his childhood is more “transient” and “unstable,” like the evidence presented in Jacobs and Graham than it is similar to Penry’s evidence of abuse. Coble’s evidence is distinguishable from that in Penry. The abuse suffered by Penry resulted in a mental impairment that caused Penry to be in some way unable to learn from his mistakes. See Penry I,
Finally, Coble argues that the jury could not consider the evidence of his good character within the second special issue. Coble presented evidence that: (1) he was involved with various youth programs over the years; (2) he had a good relationship with his son; (3) he got along well with co-workers; (4) he joined the Marines and served in Vietnam; and (5) he served as a section leader in the U.S. Army reserves and was well respected. “Evidence of good character tends to show that the crime was an aberration, which may support a negative answer to the special issue regarding the future dangerousness of the defendant.” Boyd v. Johnson,
2
The first special issue, as discussed supra, asked the jury to determine whether the defendant had acted “deliberately, and with the reasonable expectation that the death of the deceaseds or another would result.” In addition, the court instructed the jury that “ ‘deliberately’ has a meaning different and distinct from the word ‘intentionally’ as that word was previously defined in the charge on guilt and the word ‘deliberately’ as used in the first special issue means a manner of doing an act characterized by or resulting from careful consideration, a conscious decision involving a thought process which embraces more than mere will to engage in the conduct.”
The State argues that since Coble’s jury was provided with a definition of “deliberateness,” as suggested in Penry I and Penry II, that such a definition, as in Davis, cured any potential Penry error. The State asserts that Davis indicated that a jury instruction defining deliberateness as involving “careful consideration” would allow a jury to consider Davis’ evidence of “uncontrollable impulses or lack of evaluation” due to his mental illness. Thus, the State concludes that a similar definition allowed Coble’s jury to give effect to his evidence of mental illness when answering the first special issue. The State’s argument, however, was considered and rejected by this court in Bigby. We determined that “[w]hile the state’s argument — that any defect described in Penry with regard to the first interrogatory was cured because ‘deliberately’ was defined — is persuasive, we find that the definition given by the state trial court was not sufficient to cure the infirmities found by the Supreme Court.” Bigby,
In Lucas, this court rejected the argument that the Texas “special issue” interrogatories did not allow the jury to consider mitigating evidence of mental illness and childhood abuse.
Although Bigby’s history of mental illness was relevant to whether he acted deliberately, it also spoke to his moral culpability. Importantly, Bigby’s evidence indicated that his schizophrenia was chronic and severe, caused him to suffer delusions with respect to the actions and motivations of the people around him, could not be adequately treated, and significantly impacted his interpersonal relationship abilities. Inquiry into whether Bigby acted deliberately fails to fully account for the potential impact [schizophrenia] may have upon the jury’s perception of Bigby’s moral responsibility for his crimes.
Bigby,
Dr. Mark testified that Coble’s depression — as a result of his post-traumatic stress disorder and bipolar disorder— caused Coble to lose control of himself during the commission of the crimes. Similarly, Dr. Grigson testified that Coble’s depression resulted in irrational and illogical behavior.
Having determined that the jury had an adequate means, through the second special issue, to consider Coble’s mitigating evidence of mental illness, we need not consider whether the first special issue provides another, separate, adequate means. We therefore decline to determine when the first special issue provides a vehicle with which to consider mitigating evidence of mental illness, as in Lucas, as opposed to where the “deliberateness” special issue fails to adequately allow the jury to consider the effect of this evidence, as in Bigby.
3
The Supreme Court held in Penry II and Smith that the “supplemental instruction” provided “an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating evidence.” Penry II,
Since we hold that all of Coble’s mitigating evidence could be given effect within the special issue questions, simply receiving the nullification instruction did not place Coble’s evidence beyond the effective reach of the jury. Therefore, the state court’s adjudication of Coble’s Penry claim was not “contrary to, [and did not involve] an unreasonable application of, clearly established Federal law, as determined by
V
For the foregoing reasons, we AFFIRM the district court’s dismissal of Coble’s habeas petition.
. In order to sentence a convicted defendant to the death penalty, Texas law requires juries to affirmatively answer two special issues. In this case, the second special issue given at Coble’s sentencing was "Is there a reasonable probability that the Defendant, Billie Wayne Coble, will commit criminal acts of violence that would constitute a continuing threat to society?”
. The four exhibits included: (1) a psychiatric report on Coble prepared by Dr. Ralph Hodges, dated May 6, 1964, when Coble was 15 years old; (2) a Veteran’s Administration report of a medical examination on Coble by a neuropsychiatrist performed in 1970; (3) a Veteran’s Administration rating decision relating to Coble dated February 20, 1970; and
. See Tex.R. Evid. 803(4) (statements made for purposes of medical diagnosis or treatment); Tex.R. Evid. 803(6) (records of regularly conducted activity); and Tex.R. Evid. 803(16) (authenticated documents over 20 years old).
. Coble did not set forth his Wiggins argument until his reply brief. However, it is understandable that Coble did not address Wiggins in earlier briefing before us or the district court because the Supreme Court had not yet issued the opinion. Wiggins properly applies to the state court’s resolution of Coble’s ineffective assistance claims because that decision was not "new law,” but rather an application of Strickland. See Hamblin v. Mitchell,
. In addition, Wiggins’ unresearched background was appalling. Wiggins’ background involved "physical torment, sexual molestation, [] repeated rape[,]” a period of homelessness, and diminished mental capacities. Wiggins,
. The special issues are set out in Tex.Crim. Proc.Code art. 37.071. The third special issue, which is not relevant to the Penry I/Perny II analysis, addresses whether the defendant's conduct was a reasonable response to the provocation, if any, of the victim. Tex.Crim. Proc.Code art. 37.071(b)(l)-(3) (Vernon 1981). The third special issue was not submitted to the jury despite the objections of Coble's trial counsel.
. In its opinion, the Court restated the instruction:
You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defen*358 dant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.
Penry II,
. The Supreme Court again held in Smith v. Texas,
. The State concedes this fact. In its entirety, the supplemental instruction given at Coble’s trial, reads as follows:
You are instructed that when you deliberate on the questions posed in the special issues, you are to consider the mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the State or the Defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, and thereafter give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence rather than a death sentence is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one or more of the special issues under consideration.
.Coble's Penry claim must be considered in light of the recent Supreme Court decisions in Tennard and Smith v. Texas,
. Coble does not contend that his mental illness exempts him from the death penalty under either Ford v. Wainwright,
. Dr. Hodges did not define the term "sociopath” nor did Dr. Grigson explain in his testimony the difference between the current meaning of the term compared to its meaning in 1964.
. To rebut the psychiatric testimony, the State presented Dr. Richard Coons who testified that, based on Coble’s history of emotional instability and violence, there was a probability that he would continue to be dangerous in the future. In making this determination, Coons relied heavily on the 1964 report.
. A nearly identical definition of "deliberate" was considered by this court in Davis,