Smith v. QuartermanSmith v. Quarterman
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
OPINION
CARL E. STEWART, Circuit Judge:
Petitioner-appellant Roy Gene Smith (“Smith“) was convicted in the Texas state courts and sentenced to death for the capital murder of James Whitmire. The district court denied Smith‘s petition for a writ of habeas corpus and denied a certificate of appealability (COA) sua sponte. Smith now requests a COA from this court on three issues, (1) whether his trial counsel provided ineffective representation, (2) whether the jury instructions given at the sentencing phrase of his trial violated
Factual and Procedural Background
On October 8, 1988, Smith and Mary Williams (“Williams“) spent the day smoking crack cocaine at a boarding house. Around 8:00 p.m., Smith and Williams left the boarding house. As they walked down the street, they came upon 67-year-old James Whitmire. Smith approached Whitmire and asked him for a job. Whitmire responded that he had no work available and then turned away. Smith unzipped his jacket, drew a .22 caliber pistol, and began shooting Whitmire. After Whitmire fell Smith continued shooting, hitting him several times. Williams fled the scene. After Whitmire was dead, Smith searched his pockets and stole $4.27. As Smith rifled through Whitmire‘s clothing, two men approached Smith and asked him what he was doing. The men fled when Smith began shooting at them. Smith later reunited with Williams and they purchased hot dogs with the stolen money. The couple spent the night in an abandoned house.
The next day, Williams returned to her home and contacted the police. The police searched for Smith and, after a chase, placed him under arrest. Smith subsequently signed a written statement that the district court regurgitated as follows:
Last night I approached a guy and robbed him. When I pull my pistol he hollered “I‘m not giving up my money.” I already had it cocked. I just kept firing. Afterwards I reached into his left back pocket and took his wallet, and his front pocket had $4.27 in it. The wallet had no money.
The gun I used was a .22 revolver, I don‘t know the make. The guy that got shot was an old guy, I‘d say about 54 or 55. After I shot him I ran all the way back to Mills Court. I hid in an abandoned house, and stayed there until daybreak. About 3:00 to 3:15 this afternoon, I went to the park. I had the gun in a brown paper bag. The next thing I knew was that you all arrived. I rolled over the hill and peeped up, and saw that you all were coming up. I panicked and ran. I ran to this old abandoned garage and threw the pistol down in the yard, by the garage. I climbed up in the garage, and hid, and that is when the officer opened the door. This is the God honest truth.
Smith v. Cockrell, No. H-00-1771, slip op. at 2-3 (S.D. Tex. filed March 31, 2003). Smith also confessed that in the week prior to the homicide, he committed another capital murder, another shooting, and several robberies.
After a jury trial, Smith was convicted of capital murder in the 208th Judicial Court of Harris County, Texas, Judge Benjamin A. Martinez presiding. The district court summarized the evidence adduced at the punishment phase of trial as follows:
During the punishment phase of trial, the State elicited testimony concerning Smith‘s extensive criminal history. The State also introduced evidence relating to Smith‘s week-long crime spree before Whitmire‘s homicide, including his confession to several crimes. Additionally, the State introduced testimony of violent threats by Smith in prison and his poor parole history.
At the punishment phase, the defense presented testimony from Smith‘s sister, Carolyn Smith, who described the crime-ridden environment her brother lived in [ Smith grew up in an area in Houston, Texas known as ‘Fifth Ward‘] and testified that she had never known her brother to use crack cocaine. She also described her brother as calm and not violent. Smith‘s mother, Wilbert Lee Smith, testified on his behalf. She testified that her son never used crack cocaine or carried a gun. She also described her son‘s childhood and the crime-infested neighborhood in which she lived, commented on his good behavior in the penitentiary, and pleaded for mercy. A Harris County Sheriff‘s Deputy, Thomas Gentry, testified that Smith had no major trouble while previously incarcerated. Finally, Smith took the stand himself and explained that he had been on a drug binge at the time of the homicide and did not remember killing Whitmire. Smith also expressed remorse for the killing.
Id. at 3-4.
Collateral proceedings then ensued. On April 18, 1997, Smith filed a state writ of habeas corpus raising one ground for relief. The presiding judge at the time of trial was not the same judge presiding over Smith‘s state habeas petition. On August 24, 1999, the state habeas court, in the absence of an evidentiary hearing, entered findings of fact and conclusions of law recommending the denial of state habeas relief. On September 29, 1999, the Texas Court of Criminal Appeals affirmed the denial of habeas relief. Ex Parte Smith, No. 42, 801-01 (Tex. Crim. App. 1999).
On May 30, 2000, Smith timely filed his federal petition for a writ of habeas corpus under
Standard of review
In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A full consideration of the merits is not required, nor permitted, by
Discussion
Smith seeks a COA for each of the following three claims: (1) his trial counsel‘s inadequate investigation of mitigating evidence in Smith‘s background and the circumstances of his offense; (2) the nullification instruction submitted by the trial court, which he contends violated the Eighth and Fourteenth Amendments pursuant to Penry v. Johnson, 532 U.S. 782 (2001); and (3) the district court‘s denial of funds under
I. Ineffective Assistance of Counsel
Smith appeals from the district court‘s refusal to grant habeas relief and the denial of his COA as to his claim that his counsel at trial, Ron Mock and Joyce Jones (“trial counsel“), were ineffective because they failed to investigate available mitigating evidence. Specifically, Smith contends that trial counsel provided ineffective assistance by not investigating mitigation evidence pertaining to: his cocaine and alcohol intoxication, his background and upbringing, and his prior disciplinary record from prison.
a. Exhaustion Requirement
The district court concluded that Smith‘s ineffective assistance claim was procedurally barred because Smith failed to exhaust his available state remedies. The district court, echoing the state habeas court, held that Smith‘s state habeas claim dealt with trial counsel‘s failure to retain a mitigation expert who could provide the jurors with a cohesive picture of Smith‘s life. The court
First, Smith argues that the district court erred in adopting the state habeas court‘s limited formulation of his ineffective assistance of counsel claim. He concedes that his state habeas claim was inartfully pleaded, but he contends that the state habeas court erred in simply framing his claim as one that challenged his trial counsel‘s failure to utilize a mitigation specialist when his claim was broadly worded and not limited to the failure to utilize a mitigation specialist. Second, he argues that even assuming arguendo that he did fail to exhaust his state remedies, his procedural default should be excused based on his state habeas counsel‘s deficient performance and the state habeas court‘s failure to hold an evidentiary hearing. He recognizes that the Fifth Circuit has rejected deficient habeas counsel as a ground to excuse procedural default. However, he contends that deficient habeas counsel is integral to his Due Process and access to courts rights, and the failure of the state courts to ensure he had adequate habeas counsel violated his Due Process rights. He emphasizes that
“Determining whether a COA should issue where the petition was dismissed on procedural grounds has two components, one directed at the underlying constitutional claim[] and one directed at the district court‘s procedural holding.” Slack, 529 U.S. at 484-85. Where the district court has dismissed the petition on procedural grounds, “a COA should issue when the prisoner shows. . . that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 484. In addition, because the district court, after denying Smith‘s petition on procedural grounds, nonetheless reached the merits of Smith‘s constitutional claim, Smith must also show that “reasonable jurists would find the district court‘s assessment of the constitutional claim[] debatable or wrong.” Id. “Each component . . . is part of a threshold inquiry[.]” Id. at 485. As to the first threshold inquiry, we find that jurists of reason could debate whether Smith exhausted his claim for ineffective assistance based on trial counsel‘s alleged failure to investigate potential mitigating evidence.
A fundamental prerequisite to federal habeas relief under
The ineffective assistance of counsel claim submitted by Smith‘s state habeas counsel, Stephen Christopher Taylor, in the state petition averred that:
Trial Counsel failed to investigate Applicant‘s history to discover evidence which could have been used to Applicant‘s advantage in mitigation of punishment. A “comprehensive biopsychosocial life history outline or evaluation” was necessary in establishing mitigating evidence for the punishment phase of Applicant‘s trial. Such an examination is designed to “detect the presence of significant factors such as neurological impairment; cognitive disabilities; physical, sexual, or psychological abuse; substance abuse; mental disorders; or other factors which influence the development of Applicant‘s personality and behavior. A social history investigation would have explained Applicant‘s developmental history and the links between that history with Applicant‘s conduct at the time of the offense. The mitigation specialist, as a professional and impartial third party, would have tied together the specific incidents of Applicant‘s life and interpret them so as to provide the jurors a cohesive picture of the life Applicant lived.
The state petition went on to state that Smith was prejudiced by trial counsel‘s failure because “reasonably competent trial counsel would have conducted an investigation into the life history of Applicant for use by a mitigation specialist during the punishment stage of Applicant‘s trial. Trial Counsel‘s conduct in failing to investigate Applicant‘s life history denied Applicant the ability to have a mitigation specialist provide the jurors with a cohesive picture of the life that Applicant lived.”
The state petition did assert that a “biopsychosocial outline” should have been developed, which could have been used by a mitigation specialist at trial. However, the argument is broadly stated such that one could reasonably argue that Smith‘s claim was not confined to trial counsel‘s failure to retain a mitigation expert but rather was a more general claim that his trial counsel failed
However, even if Smith did adequately assert the legal ground for his ineffective assistance of counsel claim, the State argues that Smith failed to make any factual allegations to support his claim and therefore, his claim was not fully and fairly presented to the state habeas court. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 9, 10 (1992) (holding that AEDPA‘s exhaustion requirement requires more than notice, more than petitioner simply stating a federal claim in state court; it requires that the petitioner afford the state court a full and fair opportunity to address his claim). The State emphasizes that Smith‘s state habeas counsel did not detail any mitigating facts which should have been presented on Smith‘s behalf, nor did the state writ application contain any affidavits setting out specific mitigation facts that were omitted by trial counsel. Cf. Banks v. Dretke, 124 S. Ct. 1256 (2004) (finding that the petitioner satisfied the exhaustion requirement as to the legal ground of his
We find that reasonable jurists would find it debatable whether the ineffective assistance of counsel claim was fully and fairly presented to the state habeas court. The state habeas petition was not supported by the affidavits now before this court; nevertheless, reasonable jurists could find it debatable whether the petition did assert specific mitigating facts omitted by trial counsel when the petition averred that “trial counsel did not investigate signs of neurological impairment, cognitive disabilities, physical, sexual or psychological abuse, substance abuse, mental disorders or any other factors that may have influenced his development.” Thus, it is debatable whether Smith presented a factual as well as a legal basis to support his constitutional claim.
Smith has shown that reasonable jurists could debate whether the legal and factual basis for his ineffective assistance of counsel claim was fully presented to the state habeas court. We proceed to the next step in the inquiry into whether to grant a COA on this issue, namely, the underlying merits of his constitutional claim.
b. Merits of Smith‘s Ineffective Assistance of Counsel Claim
Smith argues that trial counsel were ineffective for deciding what mitigation evidence to present during the punishment phase because their decision was based upon an incomplete and superficial investigation of potential mitigating evidence. Specifically, Smith asserts that trial counsel did not adequately investigate (1) Smith‘s drug and alcohol use and the possibility of a mitigation defense of temporary insanity; (2) Smith‘s prison records from previous incarcerations to show his good behavior while in prison; and (3) Smith‘s troubled background and abusive upbringing.
Next, Smith argues that trial counsel did not adequately investigate his upbringing. He notes that trial counsel‘s affidavits give no details as to exactly who they contacted or what was learned from the individuals they contacted. He contends that the record supports the conclusion that trial counsel only contacted those individuals who actually testified at trial, namely, his mother, his sister Carolyn, and Deputy Gentry. Had trial counsel conducted a reasonable investigation, Smith contends that they would have discovered the neglect and physical abuse he suffered as a child, and his mother‘s alcohol and drug use. He asserts that trial counsel were not aware of this information because they conducted an inadequate investigation.
Finally, Smith contends that trial counsel conducted an incomplete investigation into Smith‘s prior disciplinary records from prison. Smith admits that trial counsel did present the testimony of Deputy Gentry to speak to his good behavior during prison. Deputy Gentry was familiar with Smith because Smith was in his custody at the time of trial and had been in Gentry‘s custody during a
The State counters that trial counsel‘s decision not to utilize a psychiatric professional to testify as to the impact of his substance abuse was a strategic decision, and that decision was reasonable. Had trial counsel introduced such evidence, the State contends the evidence could easily be a “double edged sword” — meaning it could be viewed as an aggravating factor rather than a mitigating factor. Furthermore, the State argues that Smith was not prejudiced by this failure because the facts surrounding the offense are insufficient to raise an intoxication insanity issue. As to the investigation of Smith‘s upbringing, the State emphasizes that Smith‘s trial counsel stated in their affidavits that they did interview family members in preparation for sentencing. Finally, the State argues that Smith‘s trial counsel did in fact adduce direct evidence of Smith‘s good behavior while incarcerated, thus, trial counsel were not ineffective for failing to secure prison records that contained duplicate information.
We conclude that Smith has demonstrated that reasonable jurists could conclude that the district court‘s assessment of the ineffective assistance of counsel claim is debatable or wrong. Reasonable jurists could find it debatable whether the facts at bar are sufficiently analogous to the facts the Supreme Court confronted in Wiggins v. Smith such that the district court erred in finding
In reversing the state habeas court, the Supreme Court restated that deference is owed strategic judgments made by trial counsel. However, the Court emphasized that deference is owed strategic decisions when the investigation supporting those judgments was adequate. Wiggins, 539 U.S. at 521-22. Where trial counsel has not “fulfill[ed] their obligation to conduct a thorough investigation of the defendant‘s background,” “counsel‘s failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision.” Id. at 522 (quoting Williams, 529 U.S. at 396). Therefore, the “principal concern in deciding whether [trial counsel]
The Court also held that the scope of trial counsel‘s investigation was unreasonable in light of the investigation that they did conduct. In trial counsel‘s investigation, they did discover that Wiggins’ mother was an alcoholic, that he was shuttled between foster homes, and that his mother often left him and his siblings alone without food. The Court held that based on this information, a reasonably competent attorney would have further investigated Wiggins’ background. “In assessing the reasonableness of an attorney‘s investigation, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Id. at 527. The Court held that Wiggins’ trial counsel “chose to
Recently, in Rompilla v. Beard, 125 S. Ct. 2456 (2005), the Supreme Court reaffirmed that a trial counsel‘s performance cannot be found adequate if it is supported by an unreasonably limited investigation. Id. at 2456. Rompilla‘s mitigation evidence consisted of testimony from five of his family members who pleaded with the jury for mercy, and asserted that Rompilla was an innocent and good man. Id. at 2460-61. Nonetheless, the jury found that the aggravating factors outweighed the mitigation evidence and sentenced Rompilla to death. Rompilla later presented a habeas claim for ineffective assistance of counsel for trial counsel‘s failure to present significant mitigating evidence about Rompilla‘s childhood, mental capacity and health, and alcoholism. Id. at 2461. Rompilla argued that trial counsel should have examined his school records, especially considering several of his family members were unfamiliar with his childhood and trial counsel knew that he had left school after the ninth grade. Id. at 2463. Moreover, Rompilla asserted that trial counsel should have investigated his juvenile and adult incarceration records considering that counsel knew that he had a criminal history. Id. In addition, Rompilla faulted trial counsel for not investigating whether he had a history of alcohol dependency in light of certain indications of alcohol abuse. Id. The Third Circuit found that defense counsel was not ineffective given counsel‘s efforts in investigating, including interviewing Rompilla, several of his family members, and consulting three mental health experts. Id. at 2461. Moreover, the state court found that defense counsel extensively interviewed Rompilla and
In the present case, a review of the record and the affidavits submitted reveals that jurists of reason could debate whether trial counsel conducted a reasonable investigation. As in Wiggins, counsel in the case before us did investigate possible mitigation evidence. Nonetheless, the Supreme Court made it clear in Wiggins that even though trial counsel did do some investigating, the question was whether the investigation conducted could be considered adequate in light of professional norms. If trial counsel‘s investigation was unreasonable then the state habeas court‘s, and the district court‘s, deference to the strategic decision trial counsel made was also objectively unreasonable.
The affidavits of Smith‘s cousins, in particular Bertha Douglas, also cuts against Jones’ view of Smith‘s background. Bertha Douglas, Smith‘s cousin, grew up next door to Smith‘s family in both
The affidavits from Smith‘s family also contradict trial counsel‘s assertion that they extensively interviewed Smith‘s family members. Ron Mock, Smith‘s other trial counsel, claimed that he interviewed many of Smith‘s family members and childhood acquaintances. He stated that after evaluating all the witnesses, he decided to put just four people on the stand for the punishment phase of the trial. Joyce Jones, claimed that in preparation for Smith‘s trial they conducted an extensive investigation in which they “interviewed various witnesses including his family members, associates, sheriff‘s deputies, and his parole officer.” She also claimed that they interviewed Smith on numerous occasions about his social, educational, employment, criminal, and health history. Nonetheless, Smith‘s brother Gilbert, sister Sabrina and grandmother all assert that they were not contacted by trial counsel even though they would have assisted if allowed.3 The aforementioned cousins of Smith also contend that they were never contacted by trial counsel although they would have assisted in Smith‘s defense if allowed. Smith‘s mother states that she only talked to Smith‘s trial counsel for a total of 10 minutes right before she was to testify, and he only asked her questions about Smith‘s previous offenses.4 Despite trial counsel‘s assertion that they extensively interviewed and contacted witnesses
In Rompilla, trial counsel extensively interviewed several of Rompilla‘s family members. 125 S. Ct. at 2462-63, 2472. Nonetheless, the Court found that trial counsel could not rely on their thorough interviewing of Rompilla and his family to excuse an unreasonable limitation to their investigation. Id. at 2466-67. The Court also found it inconsequential that Rompilla impeded trial counsel‘s investigation of mitigating evidence. Based on the numerous affidavits submitted by Smith‘s family, jurists of reason could find that it is debatable whether trial counsel adequately investigated Smith‘s family and social background. Such failure would be unreasonable in light of prevailing professional norms, Wiggins, 539 U.S. at 524, and in light of the fact that a defendant‘s background is unquestionably relevant to the jury‘s determination of whether a sentence less than death is warranted. Penry v. Lynaugh, 492 U.S. 302, 319 (1989).
Moreover, it is debatable among jurists of reason whether the scope of trial counsel‘s investigation was reasonable in light of the information that they did know. Trial counsel were aware from Smith that he had a long and extensive history of substance abuse. The evidence adduced established that Smith had been on a crack cocaine binge during the week previous to the murder, and that he had smoked 7 crack rocks the day of the offense. He also asserted that he could not remember committing the murder. Reasonable jurists could debate whether it was consistent with professional standards to not investigate the psychological and biological impact of Smith‘s substance abuse. The State asserts that such evidence could have a double edge sword quality such that it was
At sentencing, trial counsel‘s argument was based in part on a theory that Smith “was too high on coke during the offense for it to be deliberate.” In that same vein, Smith testified at sentencing about his cocaine addiction, its influence upon his behavior, and his inability to remember parts of the evening the offense occurred due to his intoxication. Even though trial counsel‘s theory at sentencing was grounded on the contention that Smith‘s substance abuse affected his judgment, trial counsel did not investigate the effect Smith‘s substance abuse history could have had on him generally or specifically at the time of the offense. It is reasonably debatable whether trial counsel‘s failure to investigate this line of evidence rendered their investigation inadequate, particularly in light of trial counsel‘s defense theory and Smith‘s assertion that he did not remember the offense.5 As in Wiggins where the Court held that trial counsel‘s awareness of Wiggins’ troubled childhood would have prompted a reasonably competent attorney to investigate further, in the case at bar reasonable jurists
Although failure to present mitigating evidence during the penalty phase is not per se ineffective assistance of counsel, counsel has a duty to make a reasonable investigation of defendant‘s case or to make a reasonable decision that a particular investigation is unnecessary. Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir. 1997). Here, reasonable jurists could debate whether the investigation that supported trial counsel‘s strategy at sentencing was reasonable and adequate. If trial counsel‘s investigation was unreasonable then making a fully informed decision with respect to sentencing strategy was impossible. Wiggins, 539 U.S. at 527-28. As a result, the district court‘s and the state habeas court‘s decision to give deference to trial counsel‘s strategic decision would also be objectively unreasonable. Id. at 528.
In assessing whether Smith was prejudiced by trial counsel‘s conduct, the court should “reweigh the evidence in aggravation against the totality of the available mitigating evidence.” Id. at 534. Here, trial counsel only presented the testimony of four people at sentencing. In light of the scant mitigation evidence presented, reasonable jurists could debate whether the evidence Smith now proffers would have convinced a juror that Smith was less morally culpable such that life imprisonment, rather than the death penalty, was appropriate. Because we conclude that Smith has established that reasonable jurists could find the district court erred in rejecting the underlying merits of Smith‘s claim and because, as previously stated, we find that the district court‘s procedural ruling is likewise debatable, we conclude that a COA should be issued.
II. Jury Nullification Instruction
Smith contends that the supplemental instruction given to the jury violated his Eighth and Fourteenth Amendment rights because it did not provide an adequate vehicle for the jury to consider and give effect to Smith‘s mitigating evidence of drug addiction/intoxication, childhood poverty, and exposure to a crime-infested environment as a youth.
First, the district court addressed whether Smith‘s Penry claim was procedurally barred. Smith raised his argument on direct appeal to the Texas Court of Criminal Appeals. That court rejected Smith‘s claim because (a) the state court had previously approved of similar jury instructions in response to Penry, and (b) Smith failed to make a contemporaneous objection of egregious error to the court‘s charge. The district court found that the Texas Court of Criminal Appeals intermixed its procedural discussion with its merits resolution, and thus, the Texas Court of Criminal Appeals did not clearly and expressly rely on an independent state procedural bar in denying Smith‘s claim. Second, the district court addressed four areas of mitigating evidence presented by Smith: poverty; drug addiction and intoxication; character evidence; and growing up in a crime-ridden environment.
After the parties submitted their briefs in this appeal, the Supreme Court decided Tennard v. Dretke, 124 S. Ct. 2562 (2004), and Smith v. Texas, 125 S. Ct. 400 (2004). We ordered the parties to submit supplemental briefing, in light of the rulings in Tennard and Smith, but although the State complied with our order, Smith never filed a supplemental brief addressing Smith and Tennard.
In the State‘s supplemental briefing, the State argues that Smith and Tennard are fact specific applications of Penry I and Penry II, that do not affect this case. They contend that despite the presence of the constitutionally defective supplemental instruction, Smith is still required to show that the jury was prevented from giving effect to his mitigation evidence. The State asserts that Smith and Tennard do not affect this Circuit‘s prior jurisprudence that would support finding that Smith‘s evidence of an improvished background, growing up in a crime-infested environment and alcohol abuse can all be given effect through both the deliberateness and future dangerousness special issue questions. Additionally, the State argues that the definition of “deliberate” that was given with the instructions cures any deficiencies with the instruction.
The supplemental instruction given at Smith‘s trial is identical to the instruction that has been denounced by the Supreme Court on two occasions. See Penry II, 532 U.S. 782; Smith, 125 S. Ct. 400. “The Court has found a supplemental instruction, like the one present in [Smith‘s] trial, to be unconstitutional only where the special issue questions themselves are not broad enough to provide a vehicle for the jury to give effect to the defendant‘s mitigation evidence.” Bigby v. Dretke, 402 F.3d 551, 570 (5th Cir. 2005) (citation omitted). “When the jury is able to consider and give effect
Smith‘s mitigation evidence that he asserts the jury could not give effect to was evidence of (1) addiction/intoxication, (2) childhood poverty, and (3) exposure to crime-infested environment. On cursory review, it would seem as though Smith‘s argument that his evidence of addiction/ intoxication was beyond the scope of the special issue questions is foreclosed by Circuit precedent. Smith took the stand at sentencing and explained that he was high on crack and under the influence of alcohol at the time of the murder and did not remember killing Whitmire. This Circuit has held that mitigation evidence of the defendant‘s intoxication at the time of the offense can be considered under the deliberateness question. See, e.g., Cordova v. Collins, 953 F.2d 167, 170 (5th Cir. 1992); Kelly v. Lynaugh, 862 F.2d 1126, 1133 (5th Cir. 1988). Smith also testified that he has had no behavioral problems when he was not under the influence of crack or alcohol. This Circuit has held that such evidence of addiction could be considered under the future dangerousness question. See, e.g., Cordova, 953 F.2d at 170. These cases do not seem to rely on the rejected constitutionally relevance test and therefore their holdings seem to be undisturbed by Tennard and Smith.
Arguably, Smith‘s claim that the jury could not consider evidence that he grew up in poverty and was exposed to a crime-infested environment as a child, is foreclosed by this Circuit‘s decisions that have denied Penry claims based upon a defendant‘s assertion that evidence of a troubled childhood was not within the special issue questions. However, the cases that have denied Penry relief for evidence of a troubled childhood seem to rely, in one way or another, on the now rejected constitutional relevance test. See, e.g., Davis v. Scott, 51 F.3d 457, 461-62 (5th Cir. 1995) (evidence
Smith also has another hurdle in the form of In re Kunkle. In Kunkle, this court stated that “[a]ny reading of Smith as not being limited to mental impairment but rather reaching all types of mitigating evidence is inconsistent with [Jurek v. Texas, 428 U.S. 262 (1976), Graham v. Collins, 506 U.S. 461 (1993), Johnson v. Texas, 509 U.S. 350 (1993)]. We are not persuaded that the Court intended to undercut Jurek, Graham, and Johnson without even citing them. Whether Tennard or Smith sweep so broadly as to create a conflict with its own Jurek or Graham decisions is for the
III. Claim for Funds under 21 U.S.C. § 848 for Assistance of a Psychologist
Following the denial of two ex parte motions for the assistance of a psychologist,9 Smith filed his federal habeas application without the assistance of a psychologist to assist in the development and pleading of a claim focusing on mitigating evidence of Smith‘s mental state following his substance abuse. The district court denied Smith‘s habeas writ, without granting an evidentiary hearing, rendering Smith‘s motion for expert assistance moot.
Under
In any post conviction proceeding under
section 2254 or2255 of Title 28 , seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9).
(emphasis added).
Similarly,
Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant‘s attorneys to obtain such services on behalf of the defendant and, is so authorized, shall order the payment of fees and expenses therefor under paragraph (10) [Paragraph 10 provides that the court shall fix reasonable rates for reasonable expenses].
(emphasis added).
Smith contends that the district court erred in denying him funding for an expert psychologist under
This court has held that a COA is not necessary to appeal the denial of funds for expert assistance. Hill v. Johnson, 210 F.3d 481, 487 fn.3 (5th Cir. 2000). Therefore, because a COA is not necessary, this court‘s reviews orders involving
Smith does not show an abuse of discretion here. The question of mental capacity, like in Barazza, was presented in this instance to the jury at trial. The jury heard testimony during the punishment phase from Smith that he used drugs and alcohol the day of the offense, as well as almost every day prior. Smith is now attempting to develop more evidence to support his claim of temporary insanity by introducing the affidavit of Dr. Love, to supplement his temporary insanity claim. Such supplemental evidence has been rejected by this court. See Chase v. Epps, 74 Fed. Appx. 339, 344 (5th Cir. 2003) (quoting Barazza, 330 F.3d at 352) (rejecting a
Moreover, even if Smith can show “reasonable necessity,” the granting of funds under
Conclusion
For the reasons outlined above, Smith‘s request for a COA is GRANTED as to his ineffective assistance of counsel claim and his Penry claim. The district court decision to deny the grant of funds for an expert under
Notes
Roy‘s attorney Ron Mock did not come to my home. We had a brief 10-minute conversation over the phone. During the conversation with Mr. Mock he asked me a few questions about my son‘s past criminal history and why he got in trouble. Mock also asked me questions concerning the incident which my son was found guilty of capital murder. The first time I met Ron Mock was outside the courtroom the day I testified. Mock told me that I was supposed to plead with jurors not to kill my son. Mock also asked me if I knew anything about some stolen watches.
You are instructed that when you deliberate on the questions posed in the special issues, you are to consider all relevant 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, background, record, or circumstance 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, as reflected by a negative finding on the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of that defendant, then a negative finding should be given to that special issue under consideration.
The supplemental instruction given at Smith‘s trial is identical to the supplemental instruction denounced by the Supreme Court in Penry v. Johnson, 532 U.S. 782, 789-90 (2001):
“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 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, 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.”
- Was the conduct of the defendant, Roy Gene Smith, that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?
- Is there a probability that the defendant, Roy Gene Smith, would commit criminal acts of violence that would constitute a continuing threat to society?
- Was the conduct of the defendant, Roy Gene Smith, in killing the deceased unreasonable in response to the provocation, if any, by the deceased?