Foster v. JohnsonFoster v. Johnson
June 6, 2002
KING, Chief Judge:
Petitioner-Appellant Ron Chris Foster, a Mississippi death-row inmate, appeals the district court‘s denial of his petition for a writ of habeas corpus brought under
I. BACKGROUND
On September 8, 1989, a Mississippi grand jury indicted Petitioner-Appellant Ron Chris Foster for the murder of George
Before trial, Foster‘s counsel, Michael Farrow, filed a motion for a psychiatric examination to determine Foster‘s competency to stand trial and to ascertain “any mitigating factors or circumstances which might be used by the defense in the penalty phase of the case.” The motion requested that the state provide for “a full psychiatric evaluation, psychiatric history, mental and emotional history and all relevant
On July 20, 1990, the state trial court received a letter written by the director of forensic service at Whitfield reporting on the staff‘s examination of Foster (the “Whitfield report“). According to the Whitfield report, the staff had concluded that Foster “did have a rational as well as factual understanding of courtroom proceedings and would be able to assist his attorney in preparing his defense” and that “he knew the difference between right and wrong in relation to his actions at the time of the crime.” The report further stated:
At no time during our observation of him here has Mr. Foster displayed any symptom of psychotic disorder or organic mental disorder. Our ward observations, former mental status observations, and psychological testing all supported the diagnosis of Conduct Disorder and Personality Disorder with Antisocial and Narcissistic Features. These diagnoses reflect an individual who tends to disregard the rules of society and places his own needs and desires ahead of those of other people. Mr. Foster tends to over-emphasize his own importance and prowess and minimize his responsibility for his behavior and its consequences. Because of these personality traits he may not always choose to cooperate with his attorney or with the court, but I believe that he is capable of cooperating if he chooses to. He has been involved in physical altercations both in the jail and here and this behavior may well continue.
Upon receiving the Whitfield report, the trial court did not rule on the mitigating-evidence portion of Foster‘s motion for psychiatric examination. However, after the Whitfield report was submitted to the court, Farrow filed a motion requesting state funding to hire a mental-health expert for the purpose of developing mitigating evidence. In a hearing on this and several other pre-trial motions on August 29, 1990, Farrow informed the trial court that he needed time to make inquiries regarding the availability and fee schedules of mental-health experts. Consequently, the trial court entered an order declining to rule at that time on Foster‘s motion to hire a mental-health expert.
In October 1990, Farrow filed a motion for continuance on the ground that his poor health condition (mononucleosis) precluded him from providing Foster with an adequate defense. During cross-examination by the state district attorney at the hearing on this motion, Farrow indicated that he intended to
In the guilt/innocence phase of Foster‘s trial, the state built its case against Foster around the testimony of Vincent Harris, a co-defendant charged as an accessory to capital murder who claimed that he was with Foster on the night of the crime. Harris, who was fifteen years old at the time of the offense, testified that Foster told Harris that Foster planned to rob a convenience store by bringing some items to the cashier‘s counter as if to purchase them and then jumping behind the counter in an attempt to surprise Shelton (who they knew would be working at the store at this time) and then rob the store. According to Harris, he and Foster rode a bicycle to the convenience store, and Harris waited outside some distance from the store while Foster rode the bicycle the rest of the way and entered the store. Harris testified that after a short period of time, Foster came out of the store and told Harris that he had shot
Foster‘s defense strategy consisted mainly of attempting to implicate Harris as the perpetrator of the crime. The investigators had retrieved the gun used to kill Shelton from Rosie Clark, Harris‘s mother. By presenting her testimony and that of her husband (Harris‘s stepfather), William Clark, Farrow sought to bring out inconsistencies in Harris‘s testimony regarding how Rosie Clark had obtained the gun. In his closing argument, Farrow also asserted that if the jurors concluded that Foster was responsible for Shelton‘s death, they should find Foster guilty of manslaughter because the shooting of Shelton occurred accidentally during a struggle.
On January 17, 1991, the jury found Foster guilty of capital murder. The following day, the trial court held the sentencing phase of Foster‘s trial. The state reintroduced and then rested on all of the evidence presented at the guilt/innocence stage of
(1) “The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit . . . any robbery“;
(2) “The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody“; and
(3) “The capital offense was committed for pecuniary gain.”
Stevson and Lillie Mae also attempted to convince the jury of Foster‘s good character. They testified that Foster had lived with them and his brother for his entire life, that he had never before been convicted of any crimes, that they were a close and religious family, and that Foster had a young son (apparently born while Foster was in state custody waiting to be tried). Both parents also testified that Foster had incurred two head
After deliberating for approximately one and one-half hours, the jury returned a verdict that Foster should be sentenced to death. Foster directly appealed his conviction and sentence to the Mississippi Supreme Court.5 Foster was represented on appeal by both Farrow and James Craig. The Mississippi Supreme Court rejected all of the twenty-six claims of error raised by Foster and affirmed his conviction and death sentence. Foster v. State, 639 So. 2d 1263, 1268, 1304 (Miss. 1994) (6-3 decision) (rehearing denied on Aug. 18, 1994). Foster thereafter filed a petition for certiorari with the U.S. Supreme Court, which was denied on March 20, 1995. Foster v. Mississippi, 514 U.S. 1019, reh‘g denied, 514 U.S. 1123 (1995). Although there is no formal documentation of Farrow‘s withdrawal as Foster‘s counsel in the state court records, Farrow apparently ceased his representation of Foster after the state appellate proceedings, as Craig was the sole counsel named on Foster‘s Supreme Court petition for certiorari, and Farrow was not involved in any of Foster‘s
Pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act,
On January 4, 2001, the district court denied Foster habeas relief. After the district court denied his motion for reconsideration, Foster timely filed a notice of appeal to this court and requested a COA from the district court on each of his ineffective-assistance-of-counsel claims and his Eighth Amendment
II. FEDERAL HABEAS STANDARD OF REVIEW
“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, 161 F.3d 802, 805 (5th Cir. 1998). Because Foster filed his petition for federal habeas corpus relief after the date of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996,
Under
(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.
The Supreme Court recently elaborated on the
The Court determined that a state court decision is “an unreasonable application of clearly established” Supreme Court
To establish that habeas relief is warranted on the
III. INEFFECTIVE ASSISTANCE OF COUNSEL IN INVESTIGATING AND PRESENTING MITIGATING EVIDENCE
As the Supreme Court has recognized, the standard governing claims of ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668 (1984), “qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States‘” for the purpose of federal habeas review under
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
To prevail on an ineffective-assistance-of-counsel claim, a defendant must tie Strickland‘s deficiency and prejudice prongs to particular instances of counsel‘s performance, i.e., the defendant “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment” and to have rendered the result of the trial unreliable. Id. at 690. Foster‘s ineffective-assistance claim is based on Farrow‘s alleged failure to investigate and to present evidence that would have mitigated against imposition of the death penalty in Foster‘s case.
Initially, Foster contends that Farrow‘s performance was constitutionally deficient because Farrow failed to present existing mitigating evidence regarding Foster‘s mental condition. According to Foster, Farrow should have presented the Whitfield report because its diagnoses of Foster with Conduct Disorder and Personality Disorder and its determination that Foster had an IQ of 80 constituted substantial mitigating evidence. Foster also argues that Farrow‘s investigation into mitigating evidence was inadequate because he failed to seek the following: (1) an expert‘s opinion further developing the information in the Whitfield report for purposes of mitigation and (2) further psychiatric and neurological testing and evaluation of Foster,
Foster further argues that, in addition to failing to present and investigate this “mental health” mitigating evidence, Farrow did not adequately investigate mitigating evidence regarding Foster‘s family background. In support of this claim, Foster submitted affidavits of his sister, one of his brothers, three of his friends, and one of his neighbors. Each of these individuals explained his or her relationship with Foster and attested that he or she would have testified for Foster if Farrow had asked him or her to do so. Collectively, the affidavits indicated that Foster began consuming alcohol at a young age and suggested that Foster‘s father and two older brothers had abused alcohol as Foster was growing up.
A. Failure to Investigate and Present “Mental Health” Mitigating Evidence
As noted above, the Mississippi Supreme Court rejected Foster’s ineffective-assistance claim based on “mental health” mitigating evidence because the court determined that Foster had not established deficient performance under Strickland. Id. at 1133-34. In Strickland, the Supreme Court held that deficient performance is established by showing that, “considering all the circumstances,” “counsel’s representation fell below an objective standard of reasonableness” “under prevailing professional norms.” 466 U.S. at 688. More specific to Foster’s ineffective-assistance claim is the Court’s holding that “counsel has a duty
The Mississippi Supreme Court determined that Farrow made “tactical” decisions not to present the Whitfield report to the jury at the sentencing phase and not to seek further “mental health” mitigating evidence. See Foster, 687 So. 2d at 1131. The court concluded that these “tactical” decisions were
With respect to the Whitfield report, the court determined that the information therein “would surely leave the jury with the impression that Foster knew right from wrong and [that] he could not care less about his actions or the consequences thereof.” Id. Accordingly, the court concluded that it was reasonable for Farrow to rely on Foster’s report cards in support of the “limited intelligence” mitigating factor rather than introducing the Whitfield report’s determination that Foster had an IQ of 80. Id. at 1133.
Similarly, the court concluded that Farrow’s “tactical decision not to investigate psychological evidence did not deprive [Foster] of effective assistance of counsel” because Farrow “could have judged that [any such evidence] would have been harmful” in light of the information in the Whitfield report. Id. at 1131. Thus, the court determined that Farrow acted reasonably in relying on Foster’s parents’ testimony regarding Foster’s two head injuries rather than seeking medical documentation of those injuries or further expert evaluation of Foster, particularly “[i]n light of the Whitfield Report which indicated that no organic mental disorder existed.” Id. at 1133.
The district court agreed with this argument, finding that if the Mississippi Supreme Court had known that “Farrow had moved for funds to obtain a mental health expert to aid in the mitigation phase” after the Whitfield report was completed “and that the trial court proceeded to trial without ruling and without objection from Farrow,” then the Mississippi Supreme Court “would not have concluded that . . . Farrow made a reasonable decision ‘not to pursue further psychological testing.‘” The district court did not, however, address whether “this error in the facts” constituted an unreasonable determination of the facts in light of the evidence before the Mississippi Supreme Court.
If we were reviewing the Mississippi Supreme Court’s factual finding de novo, we might be inclined to agree with Foster that Farrow’s filing of the motion for expert assistance after the Whitfield report was completed indicates that his subsequent failure to pursue this motion was an omission rather than an affirmative decision not to act. However, we must presume that the state court’s factual finding is correct unless Foster rebuts that presumption with clear and convincing evidence. See Dowthitt, 230 F.3d at 741. Foster does not satisfy this burden
Foster also challenges the Mississippi Supreme Court’s determination that the Whitfield report was “double-edged in nature,” and the court’s inference therefrom that any further psychological evaluation of Foster would similarly yield “double-edged” evidence. Initially, Foster contends that reasonably competent counsel would have introduced the Whitfield report at the sentencing phase of trial. He points to Dr. Zimmermann’s testimony that “[w]hile the mental disorders diagnosed at Whitfield (i.e., Conduct Disorder and Personality Disorder) would not relieve a child in Chris [Foster’s] situation of responsibility for capital murder, they would support a jury finding [that] ‘The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance’ and [that Foster’s] ‘capacity . . . to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired‘” (both of which are statutory mitigating circumstances that Farrow stated were applicable in his argument to the jury at the sentencing phase of Foster’s trial).
At no time during our observation of him here has Mr. Foster displayed any symptom of psychotic disorder or organic mental disorder. Our ward observations, former mental status observations, and psychological testing all supported the diagnosis of Conduct Disorder and Personality Disorder with Antisocial and Narcissistic Features. These diagnoses reflect an individual who tends to disregard the rules of society and places his own needs and desires ahead of those of other people. Mr. Foster tends to over-emphasize his own importance and prowess and minimize his responsibility for his behavior and its consequences. Because of these personality traits he may not always choose to cooperate with his attorney or with the court, but I believe that he is capable of cooperating if he chooses to. He has been involved in physical altercations both in the jail and here and this behavior may well continue.
We cannot say that this finding by the Mississippi Supreme Court regarding the “doubled-edged” nature of the information contained in the Whitfield report and of any further psychiatric/neurological evidence is an unreasonable determination of the facts in light of the evidence before that court. Accordingly, we presume this finding to be correct. Foster did not provide any evidence suggesting, contrary to the Whitfield report’s conclusions, that he did suffer from “organic brain damage or other serious mental or emotional dysfunction.” As the state points out, Dr. Zimmermann did not interview Foster, but rather based the opinion in his affidavit only on the Whitfield report and affidavits of Foster’s family and friends. Consequently, Dr. Zimmermann did not provide a
Thus, Foster has not shown that Farrow failed to find evidence of organic brain dysfunction as a result of inadequate investigation. Consequently, Foster’s contention that Farrow should have investigated more and presented more mitigating evidence “essentially come[s] down to a matter of degrees.” Dowthitt, 230 F.3d at 743 (internal quotations and citation omitted). We have noted that courts should be particularly cautious about “second-guessing” such questions of degree in evaluating counsel’s performance under Strickland. Id.; cf. Burger v. Kemp, 483 U.S. 776, 793 (1987) (concluding that although counsel’s decision not to present the testimony of a certain witness “may have been erroneous, the record surely does not permit us to reach that conclusion” because the petitioner “has submitted no affidavit from that [witness] establishing that he would have offered substantial mitigating evidence if he had testified“).
B. Failure to Investigate “Family Background” Mitigating Evidence
In support of his claim that Farrow inadequately investigated “family background” mitigating evidence, Foster submitted affidavits of his sister, one of his brothers, three of
Foster maintains that he was prejudiced as a result of Farrow’s failure to investigate more of the available “family background” mitigating evidence because “had counsel conducted an investigation of Foster’s life (beyond speaking to his parents) and interviewed potential witnesses, counsel would have uncovered a wealth of compelling mitigation evidence [on Foster’s background].” According to Foster, the affidavits of his siblings and friends indicate that “Foster’s father is a habitual drunkard,” that Foster “began drinking about age twelve” because of his two older brothers’ “willingness to provide [Foster] with alcohol,” and that his older brother was in “constant trouble with the law because of alcohol abuse.” Foster points out that the jury did not hear such evidence of alcohol abuse in his family. In fact, Foster asserts that his parents’ testimony actually harmed him because they testified that he had never had problems with alcohol, undermining Farrow’s argument that the jury should consider Foster’s intoxication at the time of the offense as a mitigating circumstance.
Based on our review of the affidavits in light of Foster’s arguments on appeal, we conclude that Foster has not offered the clear and convincing evidence necessary to rebut the presumption of correctness accorded to the Mississippi Supreme Court’s finding that the affidavits do not establish the “alcoholic stupor and abusive behavior [that] Foster claims.” Id. Accordingly, we cannot say that the Mississippi Supreme Court unreasonably applied Strickland in determining that the omission of this evidence did not prejudice the outcome of the trial. The jury was presented with —— and sentenced Foster to death in spite of —— mitigating evidence indicating that Foster was only
IV. REQUESTS FOR CERTIFICATES OF APPEALABILITY
Although Foster apparently requests that this court issue COAs on all five of the other claims that he asserted in his federal habeas petition, he briefs only two of those claims on
In their district-court filings and in their briefs for this appeal, both Foster and the state treat the ineffective-assistance/transfer claim together with the Eighth Amendment claim. Specifically, Foster claims that the Eighth Amendment violation is a result of either “systematic failure” of Mississippi’s procedures or ineffective assistance of counsel. Likely in response to the parties’ approach, the district court also treated these two claims together and did not fully distinguish between them. We thus pause briefly in our analysis to clarify that, in light of the state court proceedings, these two claims must be treated separately for purposes of federal habeas review.
We may grant a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.”
Both the direct-appeal decision denying Foster’s Eighth Amendment claim and the post-conviction decision denying his ineffective-assistance/transfer claim rely on both state procedural grounds and federal-law grounds. While the district
Because federal courts must “honor a state holding that is a sufficient basis for the state court’s judgment, even when the state court also relies on federal law,” Harris v. Reed, 489 U.S. 255, 264 n.10 (1989), we first address the “procedural” prong of the COA standard. Accordingly, we begin our analysis of each claim by determining whether reasonable jurists would find it debatable whether the state-law ground is a constitutionally sufficient basis to preclude federal review (i.e., whether the state-law ground is “independent and adequate“).
B. The “Independent and Adequate State Ground” Doctrine
Federal courts are precluded from reviewing a federal claim that the state court denied on state-law grounds only if: (1) the state-law ground relied on by the state court is both “independent of the federal question and adequate to support the judgment,” Coleman v. Thompson, 501 U.S. 722, 729 (1991) (emphases added), and (2) the petitioner is not able to demonstrate either that there is “cause for the default and
In addition to being “independent,” a state procedural ground for denial of a federal claim must be “adequate” to preclude federal habeas review of that claim. The Supreme Court recently reiterated the meaning of “adequate” for purposes of the “independent and adequate state ground” doctrine: “Ordinarily, violation of firmly established and regularly followed state rules . . . will be adequate to foreclose review of a federal claim. There are, however, exceptional cases in which exorbitant application of a generally sound rule renders the state ground
C. Ineffective Assistance of Counsel in Failing to File a Motion to Transfer Foster‘s Case to Youth Court
Foster requests a COA from this court on his claim that Farrow rendered ineffective assistance by failing to file a motion to transfer Foster‘s case to the youth court. As noted above, Foster did not raise this ineffective-assistance/transfer claim in his direct appeal to the Mississippi Supreme Court (as he was still represented by Farrow at that point), but rather in his application for leave to file a motion for post-conviction relief to that court. In its post-conviction decision, the Mississippi Supreme Court clearly denied Foster‘s ineffective-assistance/transfer claim on its merits by applying the two-pronged Strickland analysis: “[W]e must analyze the [claim] in terms of whether Farrow was reasonable for not requesting [a transfer] motion, and whether such failure resulted in prejudicing Foster‘s defense.” Foster, 687 So. 2d at 1135. The court also, however, made reference to a purported state procedural ground in denying this claim. Specifically, the court stated that “[t]he true color of Foster‘s (ineffective-assistance/transfer) claim is that his death sentence is unconstitutional because he was placed in adult court without particularized findings.” Id. at 1136. According to the court,
[T]he issue of whether the death penalty is unconstitutional due to a lack of particularized finding in the youth court is a procedurally barred issue. We cannot consider the merits of this issue, as it was already dealt with on the direct appeal. . . . For the purposes of this petition, the only question that Foster could pose is whether Foster‘s trial attorney was ineffective by failing to request a transfer proceeding from circuit court to youth court, and if ineffective, whether this error prejudiced his defense.
Id. at 1135. The court then proceeded to adjudicate the ineffective-assistance/transfer claim on its merits under Strickland. See id. at 1135-36. Thus, at least in a substantial portion of its discussion of the two claims, the Mississippi Supreme Court apparently barred on res-judicata grounds only the Eighth Amendment claim (which Foster raised on direct appeal and again in the post-conviction proceedings) and deemed the ineffective-assistance/transfer claim cognizable on post-conviction review.
In reviewing Foster‘s application for leave to file a motion for post-conviction relief, the Mississippi Supreme Court noted that Foster “cites no authority stating that it is ineffective for counsel to not request a special hearing to determine transfer to youth court,” but rather “merely states that trial counsel must not have known that this procedure was available to him, and that failure to know this constitutes a failure to know the law, and thus, is a textbook example of deficiency.” Id. The court rejected this argument, reasoning that the record did not indicate that Farrow was unaware of the availability of the transfer procedure and that “the issue of whether a capital case juvenile is transferred back to a youth court is within the sound discretion of the circuit judge.” Id. The court further concluded that even assuming that Farrow‘s failure to file a transfer motion was constitutionally deficient, that failure did not prejudice Foster. Id. at 1136. Reiterating that the decision whether “to transfer from circuit court to youth court
Had Farrow requested such a finding, the trial judge would have found that Foster was seventeen and one-half years old, on the brink of eighteen years of age, and while he did not have any significant criminal history, he had a violent, selfish nature, exhibited uncooperative tendencies and according to the Whitfield Report, had the maturity to know right from wrong. . . . These elements will hardly send a case back to youth court.
Id. The district court determined that the Mississippi Supreme Court‘s denial of Foster‘s ineffective-assistance-of-counsel claim based on Farrow‘s failure to file a transfer motion did not warrant federal habeas relief under
As stated above in Part III, deficient performance is established if it is shown that, considering all the circumstances, counsel‘s representation is objectively unreasonable under prevailing professional norms. Strickland, 466 U.S. at 688. The Strickland Court recognized that “[p]revailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable.” Id. at 688 (internal citations omitted). The American Bar Association‘s standards regarding transfer from juvenile court to adult court are based on a recognition of the “critical nature of the transfer decision.” A.B.A. JUVENILE JUSTICE STANDARDS § 8.2(b) cmt. (1990). For example, the standards provide that “[i]n any case where transfer (from juvenile court to adult court) is likely, counsel should seek to discover at the
Although the American Bar Association‘s standards directly address only the situation where a minor defendant must be prepared to argue that a transfer from juvenile court to an adult court is inappropriate, the concerns underlying these standards are equally relevant in the situation where a minor defendant in adult court has the opportunity to argue that transfer to juvenile court is appropriate. Cf. Girtman v. Lockhart, 942 F.2d 468, 476 (8th Cir. 1991) (“If transferring an offender to adult court without a hearing or a statement of reasons violates due process, it logically follows that keeping a juvenile offender in adult court without holding a transfer hearing or making oral or written findings also violates due process.“). Just as it is clearly in the minor‘s best interest that counsel make every effort to prevent a transfer from juvenile court to adult court,
In light of the foregoing and of the severity of the death penalty, we resolve any doubts in favor of Foster and grant his request for a COA on his ineffective-assistance-of-counsel claim based on Farrow‘s failure to file a motion to transfer the case to juvenile court. Further, given the American Bar Association‘s Juvenile Justice Standards and our conclusion that Farrow‘s decision not to file a motion to transfer to the youth court was not strategic, we have some concern about the reasonableness of the Mississippi Supreme Court‘s determination that Farrow‘s performance was not deficient. However, we need not decide the deficient-performance issue because we cannot say that the Mississippi Supreme Court‘s determination that Foster was not prejudiced by Farrow‘s failure to file the motion involved an unreasonable application of clearly established Supreme Court law or was based on an unreasonable determination of the facts in light of the available evidence. Cf. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.“).
D. Claim That the Eighth Amendment Requires That Particularized Findings Be Made Before Juveniles May Be Tried as an Adult for a Capital Offense
Foster also requests a COA from this court on his claim that his death sentence constitutes cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments because the trial court did not make a particularized finding that he was sufficiently mature and morally culpable before he was tried and sentenced as an adult for a capital offense. In affirming his conviction and sentence on direct appeal, the Mississippi Supreme Court denied this claim as procedurally barred on the ground that Foster had failed to raise it in the trial court. Foster v. State, 639 So. 2d 1263, 1295 (Miss. 1994). In the alternative, the court denied the claim on its merits. Id. at 1297-98 (“Even if Foster‘s claim[] [that ‘it was unconstitutional not to have a certification procedure in death cases under Mississippi law for persons under 18 years of age‘] were not barred because of his
We conclude that the language in the Mississippi Supreme Court‘s opinion indicating that Foster‘s Eighth Amendment claim “is procedurally barred and, alternatively, found to be without merit,” id. at 1298, constitutes a sufficiently “clear and express” statement that the procedural ground was an independent basis for that court‘s decision. Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. 1998) (“It is clear in this Circuit that alternative rulings do not operate to vitiate the validity of a [state] procedural bar that constitutes the [state court‘s] primary holding.“); cf. Sochor v. Florida, 504 U.S. 527, 534 (1992) (holding that the state court had expressed the independence of the state procedural ground with the “requisite clarity” by stating that “[n]one of the complained-of jury instructions were objected to at trial, and, thus, they are not preserved for appeal,” even though the state court also noted that “[i]n any event, [the] claims . . . have no merit“).
Foster does not argue that the procedural rule applied by the Mississippi Supreme Court to his Eighth Amendment claim —— i.e., the requirement that a defendant must raise claims in the trial court in order to preserve them for appellate review —— is inadequate. Nor do we find this preservation rule to be inadequate —— either as a general matter or as applied in Foster‘s case. A review of Mississippi appellate cases indicates
Thus, the state preservation rule is an independent and adequate state ground for the Mississippi Supreme Court‘s denial of Foster‘s Eighth Amendment claim. Foster argues that federal review is nevertheless proper on grounds of “cause and prejudice.” Specifically, he maintains that we should not recognize the state procedural bar because his counsel rendered ineffective assistance in failing to file a motion to transfer his case to youth court. However, the Mississippi Supreme Court based its denial of Foster‘s Eighth Amendment claim on his counsel‘s failure to raise the claim in the trial court, not on his counsel‘s failure to file a transfer motion. See Foster, 639 So. 2d at 1295. Foster does not argue that federal habeas review is appropriate notwithstanding his procedural default because his counsel rendered ineffective assistance by failing to raise the Eighth Amendment claim in the trial court.
Thus, we conclude that reasonable jurists would agree that federal review of Foster‘s Eighth Amendment claim is precluded
V. CONCLUSION
For the foregoing reasons, we (1) AFFIRM the district court‘s denial of habeas relief on Foster‘s claim of ineffective assistance of counsel based on the failure to investigate and to present mitigating evidence; (2) GRANT Foster‘s request for a COA on his claim of ineffective assistance of counsel based on the failure to file a motion to transfer his case to youth court and AFFIRM the district court‘s denial of habeas relief on that claim; and (3) DENY Foster‘s request for a COA on his Eighth Amendment claim.
Notes
Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant‘s conduct or consented to the act.
(d) The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
(A) the claim relies on——
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.