Boyle v. Johnson

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

____________

No. 95-10802
____________

HERBERT BOYLE,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
For the Northern District of Texas

August 16, 1996

Before KING, EMILIO M. GARZA, and DEMOSS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Benjamin Herbert Boyle, sentenced to death for the murder of

Gail Lenore Smith, appeals the district court’s denial of his
petition for writ of habeas corpus. Finding no reversible error,

we affirm.

I

Gail Lenore Smith drove with her step-brother and sister-in-

law to a rest stop outside Fort Worth, Texas. Smith planned to

obtain a ride from a truck driver in order to visit her mother in

Amarillo. She asked her relatives to write down the license number

of the truck she boarded, in case anything happened. A few minutes
after arriving at the rest stop, Smith’s relatives observed her

approach a male truck driver, converse with him, and then board his

cherry-red Peterbilt tractor-trailer.

The next day, a passing truck driver discovered Smith’s naked

body, bound with duct tape, concealed in a brushy area fourteen

miles north of Amarillo. Although Smith’s relatives had failed to

write down the truck’s license number, they were able to give

authorities a description of the driver and the truck, including

the inscription “JEWETT SCOTT, Truck Line Inc., Magnum Oklahoma”

which was written on the side of the truck. Through this

information, the authorities were able to trace the tractor-trailer

to Boyle, and after conferring with Jewett Scott Truck Lines in

Oklahoma, learned that Boyle’s ultimate destination was Diboll,

Texas. Boyle was arrested in Diboll, and gave investigators

written consent to search his truck.1 Inside the truck, officers

found several of Smith’s possessions. Officers also found hairs

from Smith’s head and pubic area, some of which had been forcibly

removed. In addition, blood stains in the sleeper portion of the

truck were consistent with Smith’s blood type. Subsequently,

Boyle’s fingerprints were found on the strips of duct tape used to

bind Smith, and fibers taken from Smith’s body matched the carpet

in Boyle’s truck. Medical evidence showed that Smith had been

orally and anally raped, beaten with a blunt instrument, and

strangled to death. Boyle continued to maintain that he had

1
Officers also obtained consent to search the vehicle from Jewett
Scott, the owner of the truck.

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dropped Smith off at a truck stop unharmed.

Boyle was indicted for capital murder during the course of

committing or attempting to commit aggravated sexual assault, and

capital murder during the course of kidnaping. Boyle pleaded not

guilty, and was tried before a jury. The evidence at trial

consisted of the physical evidence linking Boyle to the murder,

medical evidence indicating the sexual nature of the murder, and

other evidence tending to show Boyle’s obsession with sex. The

jury found Boyle guilty on all counts and, after hearing evidence

relevant to punishment, returned affirmative answers to the special

issues found in article 37.071 of the Texas Code of Criminal

Procedure. As required by law, the trial court sentenced Boyle to

death.

On automatic appeal, the Texas Court of Criminal Appeals

reversed Boyle’s conviction on the grounds that his arrest had been

unlawful, and thus the evidence obtained pursuant to that arrest

had been admitted in violation of Boyle’s constitutional rights.

Boyle v. State, 820 S.W.2d 122, 137 (Tex. Crim. App. 1989). The

state moved for rehearing en banc, and the Court of Criminal

Appeals reversed itself, reinstating Boyle’s conviction and

sentence on the grounds that Jewett Scott’s consent to search the

truck was constitutionally adequate. Id. at 143. The Supreme

Court denied Boyle’s petition for writ of certiorari. Boyle then

pursued state habeas relief. A hearing was held, and the trial

court entered its findings of facts and conclusions of law denying

Boyle’s habeas petition. The Court of Criminal Appeals affirmed

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the trial court, holding that the lower court’s findings and

conclusions were supported by the record. Boyle then filed a

petition for federal habeas relief in the Northern District of

Texas. The district court denied his petition, but granted a

certificate of probable cause to appeal. Boyle now appeals the

district court’s order denying his habeas petition.

II

Boyle argues that the trial court erred in admitting evidence

of his sexual habits and drawings. Boyle maintains that admission

of this evidence violated his First Amendment right to not have

evidence of his associations and expressions admitted against him

at sentencing. While there is no “per se barrier to the admission

of evidence concerning one’s beliefs and associations at sentencing

simply because those beliefs and associations are protected by the

First Amendment," the government may not admit such evidence

indiscriminately. Dawson v. Delaware, 503 U.S. 159, 165, 112 S.

Ct. 1093, 1097, 113 L. Ed. 2d 465 (1992). The Supreme Court has

explicitly held that in order for such evidence to be admissible,

it must be sufficiently related to the issues involved. See id.

(disallowing admission of evidence indicating that defendant

belonged to racist “Aryan Brotherhood” gang in prison where there

was no racial component to the crime committed).2 Thus, we must

2
Dawson involved a death sentence based in part on a stipulation that
Dawson belonged to a racist gang, the Aryan Brotherhood. The Supreme Court held
that the stipulation was inadmissible because the state had failed to show that
the evidence was in any way linked to an issue at sentencing. Dawson and his
victim were white, and therefore the murder had no racial component. In
addition, the stipulation contained no evidence that the Aryan Brotherhood
advocated violence against any particular group. The Supreme Court ruled that,
without such evidence, the stipulation was inadmissible since it “proved nothing

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determine if the evidence of Boyle’s sexual relations and

expressions was sufficiently related to the issues at sentencing.

After carefully reviewing the record in this case, we hold that the

evidence was sufficiently related to the crime committed to allow

its admission during the capital sentencing phase of Boyle’s

trial.3

At sentencing, the trial court first admitted all the evidence

that had been admitted at the guilt-innocence phase, including

three letters and brief testimony concerning Boyle’s preoccupation

with sex.4 The state then put on additional testimony concerning

Boyle’s sexual habits and evidence concerning his sexual drawings.5

more than Dawson’s abstract beliefs.” Dawson, 503 U.S. at 165-66, 112 S. Ct. at
1097-98.
3
We therefore need not address whether Boyle’s sexual associations and
drawings are protected by the Constitution. Cf. Wallace v. Texas Tech
University, 80 F.3d 1042, 1051 (5th Cir. 1996) (recognizing that the type of
intimate associations protected by the First Amendment are limited to those
involving “deep attachments and commitments”); Johnson v. San Jacinto Jr.
College, 498 F. Supp. 555, 575 (S.D. Tex. 1980) (holding that the “right to
privacy in sexual intimacy is grounded on the marriage relation . . . but
currently does not protect the sexual relations themselves”).
4
This evidence was admitted at the punishment phase by operation of
law. Richard v. State, 842 S.W.2d 279, 281 & n.2 (Tex. Crim. App. 1992). The
testimony concerning Boyle’s sexual habits came primarily from Boyle’s lover Pat
Willis. She testified that she had had an affair with Boyle and that he had lied
to her about his marital status in order to begin the affair. Willis further
testified that Boyle wrote her sexually explicit letters referring to her
genitalia as “Miss. Kitty” and to his own as “Mr. Whipple.” The three letters
contained statements such as, “I would unleash Mr. Whipple on you. Ha! Ha! I
know you can handle him. He knows it too. At this very moment, I believe he
knows I’m talking about him. He seems to be stirring. Oh, mama, do I need you.”
One letter states, “Miss Kitty is in some real trouble now. I may not be able
to tear her up, but she will know Mr. Whipple has been there.”
5
The additional testimony at sentencing included statements by Boyle’s
daughter that Boyle was a “womanizer” and that he drew and kept many explicit
sexual pictures. Norma Myers, a former lover, also testified that Boyle had a
strong preference for oral and anal sex, that he put pressure on her to perform
these acts, and that he sometimes held her down and pretended to choke her during
foreplay. Finally, an inmate formerly incarcerated with Boyle testified that
Boyle associated violence with sex. According to this witness, whenever another
inmate mentioned trouble with women, Boyle would remark that, "If it was me, I’d

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The state argues that the evidence was sufficiently related to the

second special issue, the issue of future dangerousness, to survive

a Dawson challenge.6 According to the state, the evidence showed

that Boyle was obsessed with sex, and that he associated sex with

violence, facts which ultimately resulted in a sexually motivated

murder. After carefully reviewing the record, we believe the state

satisfied the requirements of Dawson. As the Supreme Court noted

in Dawson, “In many cases . . . associational evidence might serve

a legitimate purpose in showing that a defendant represents a

future danger to society.” Dawson, 503 U.S. at 166, 112 S. Ct. at

1098. Dawson simply requires that the evidence be relevant to an

issue at sentencing.7 Id. Here the state put on evidence that

Boyle was obsessed with sex, and that his sexual expression had a

slap her, throw her down on the floor and fuck her in the ass." The state also
introduced a sexually explicit picture, drawn by Boyle, of a woman using a
complicated mechanical device to masturbate.
6
Article 37.071(b)(2) of the Texas Code of Criminal Procedure defines
future dangerousness as “whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to
society.”
7
Our analysis is guided by the Supreme Court’s discussion of Barclay
v. Florida, 463 U.S. 939, 103 S. Ct. 3418, 77 L. Ed. 2d 1134 (1983) in Dawson.
As the Supreme Court stated,
Even if the Delaware group to which Dawson allegedly belongs is racist,
those beliefs, so far as we can determine, had no relevance to the
sentencing proceeding in this case. For example, the Aryan Brotherhood
evidence was not tied in any way to the murder of Dawson’s victim. In
Barclay, on the contrary, the evidence showed that the defendant’s
membership in the Black Liberation Army, and his consequent desire to
start a “racial war,” were related to the murder of a white hitchhiker .
. . . In the present case, however, the murder victim was white, as is
Dawson; elements of racial hatred were therefore not involved in the
killing.
Dawson, 503 U.S. at 166, 112 S. Ct. at 1098 (citations omitted). Our case
presents an analytically similar situation to the one presented in Barclay. Here
Boyle’s obsession with sex led to a sexually motivated murder. Accordingly,
evidence of Boyle’s sexual obsession was relevant to the issue of his future
dangerousness.

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violent component. Unlike the situation in Dawson, where there was

no connection between the evidence presented and the crime

committed, Boyle was convicted for a murder which had a sexual

component. See O’Neal v. Delo, 44 F.3d 655, 661 (8th Cir.)

(finding evidence that defendant was a member of a racist group

relevant and therefore admissible under Dawson where “racial animus

as a motive for [the] murder was an issue in the trial”), cert.

denied, ___ U.S. ___, 116 S. Ct. 129, 133 L. Ed. 2d 78 (1995).

Evidence of Boyle’s sexual obsession was thus relevant to the issue

of Boyle’s future dangerousness; it tended to show that Boyle

“would constitute a continuing threat to society.” TEX. CODE CRIM.

PROC. art. 37.071(b)(2) (Vernon 1981).8 Accordingly, we hold that

the district court did not err in finding a sufficient nexus under

Dawson to allow the state to present evidence of Boyle’s sexual

habits and sexual drawings at sentencing.9

8
We distinguish this case from Beam v. Paskett, 3 F.3d 1301 (9th Cir.
1993), cert. denied ___ U.S. ___, 114 S. Ct. 1631, 128 L. Ed. 2d 354 (1994). In
Beam, the state had, at the punishment phase of a capital trial, introduced
evidence that the defendant was the victim of incest, had engaged in
homosexuality, and had “abnormal sexual relations with women both older and
younger” than himself in order to show that Beam deserved the death penalty. Id.
at 1308. All of the evidence concerned acts that were “non-violent, consensual,
or involuntary.” Id. Although Beam had committed the murder during the course
of a rape, the state failed to provide any link between Beam’s sexual history and
either violence generally or the sexual nature of the crime. Id. at 1309-10.
Without such a link, the court noted that the evidence in no way “indicated that
he was likely to commit future violent acts.” Id. at 1309. In contrast, here
the state put on evidence that Boyle was obsessed with sex and that his obsession
had a violent component, which had its ultimate expression in a violent rape and
murder. The evidence of Boyle’s sexual habits was thus linked to a determination
of Boyle’s future dangerousness.
9
In addition, Boyle argues that the presentation of evidence regarding
his sexual habits at the guilt-innocence phase of his trial also violated the
dictates of Dawson. Dawson, however, dealt solely with the introduction of such
evidence at sentencing. Dawson, 503 U.S. at 168-69, 112 S. Ct. 1099. It is
unclear whether Dawson should be applied at the guilt-innocence phase. We note
at the outset that the Texas Rules of Criminal Evidence only allow the admission
of evidence that is “relevant” to a fact “that is of consequence to the

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 III

Boyle next contends that he was denied a fair trial because of

the state’s presentation of false and misleading testimony from a

clinical pathologist, Dr. Ralph Erdmann. Boyle contends that Dr.

Erdmann’s gross misconduct in other cases indicates that the

testimony Dr. Erdmann gave was perjured. Boyle also maintains that

the prosecutor knew that Erdmann was unreliable in his handling of

evidence and in his testimony from the stand, but failed to notify

the defense in violation of the dictates of Brady v. Maryland, 383

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

In order to establish a due process violation based on the

government’s use of false or misleading testimony, the defendant

must show (1) that the witness’s testimony was actually false, (2)

that the testimony was material, and (3) that the prosecution had

knowledge that the witness’s testimony was false. Westley v.

determination of the action.” TEX. R. CRIM. EVID. 401. In addition, evidence of
“other crimes, wrongs, or acts” may only be admitted “for other purposes, such
as proof of motive, opportunity, intent, preparation, plan knowledge, identity,
or absence of mistake or accident.” TEX. R. CRIM. EVID. 403. It is unclear how
these evidentiary requirements differ from the nexus requirement set forth in
Dawson. See Snell v. Lockhart, 14 F.3d 1289, 1299 n.8 (8th Cir.) (declining to
disallow associational evidence under Dawson because “most of the . . . evidence
in this case was relevant.”), cert. denied, ___ U.S. ___, 115 S. Ct. 419, 130 L.
Ed. 2d 330 (1994); United States v. Robinson, 978 F.2d 1554, 1565 (10th Cir.
1992) (applying Dawson to a non-capital trial and allowing admission of
associational evidence because the evidence was specific and relevant to the
offenses charged), cert. denied, 507 U.S. 1034, 113 S. Ct. 1855, 123 L. Ed. 2d
478 (1993). Because we find the nexus requirement of Dawson satisfied, we need
not decide whether Dawson should be applied at the guilt-innocence phase of a
capital murder trial. In this case the state introduced the evidence of Boyle’s
sexual habits to establish the motive for the sexual assault and kidnaping, both
part of the crimes for which Boyle was indicted and ultimately convicted and
sentenced to death. Assuming arguendo that Dawson applies to the guilt-innocence
phase, we conclude that a sufficient nexus existed to allow consideration of the
evidence at issue. See United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir.
1996) (citing Dawson and stating that “The First Amendment’s protection of
beliefs and associations does not preclude such evidence where relevant to a
trial issue.”).

-8-
Johnson, 83 F.3d 714, 726 (5th Cir. 1996); East v. Scott, 55 F.3d

996, 1005 (5th Cir. 1995). We will reverse a conviction obtained

through the use of tainted testimony. United States v. Blackburn,

9 F.3d 353, 357 (5th Cir. 1993), cert. denied, ___ U.S. ___, 115 S.

Ct. 102, 130 L. Ed. 2d 51 (1994). In addition, the state must also

disclose information that would serve to impeach a witness. United

States v. Martinez-Mercado, 888 F.2d 1484, 1488 (5th Cir. 1989).

Failure to disclose such evidence will result in reversal if it is

“reasonably probable” that disclosure of such evidence would have

made a difference in the result at trial. Kyles v. Whitley, ___

U.S. ___, ___, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995).

Boyle’s attack on Dr. Erdmann’s testimony is based on the

testimony of one expert at trial, and two experts who testified at

Boyle’s habeas hearing. These experts disagreed with Erdmann’s

analysis and interpretation of the evidence presented in Boyle’s

case.10 Boyle also points to the fact that Dr. Erdmann subsequently

pleaded no contest to charges that he falsifyed autopsies in other

10
Dr. Erdmann testified that he observed anal dilation post mortem
which he interpreted as evidence that something, possibly a penis, had been
inserted into the victim’s anus from the outside. Erdmann testified that this
dilation could not have been naturally caused by death. Further, Erdmann
testified that he observed an anal fissure or tear which he also interpreted as
indicating that something had been inserted in the victim’s anus. Finally,
Erdmann testified that he found a slight amount of “prostatic antigen,” a
component of semen, in the victim’s mouth. He interpreted this to mean that the
perpetrator had ejaculated into the victim’s mouth shortly before death because
the antigen would not have been present had the victim lived for very long after
the ejaculation. At trial and at the habeas hearing, other experts challenged
Dr. Erdmann’s conclusions. These experts testified that a victim’s anus can
dilate at death, that the slight anal tear was not caused by violent insertion,
that the slight amount of prostatic antigen found in the victim’s mouth is
inconsistent with ejaculation because it contained no sperm and the amount was
too small to indicate ejaculation.

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cases as evidence that Dr. Erdmann lied in this case.11 As the

district court noted, however, the state trial court, in reviewing

Boyle’s habeas petition, made findings of fact rejecting Boyle’s

contentions that Dr. Erdmann perjured himself in Boyle’s case.

These findings of fact are entitled to a “presumption of

correctness” in federal habeas proceedings. Williams v. Collins,

16 F.3d 626 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 42,

129 L. Ed. 2d 937 (1994). The presumption is particularly strong

where, as here, the habeas court was the same court that presided

over the trial. May v. Collins, 955 F.2d 299, 314 (5th Cir.),

cert. denied, 504 U.S. 901, 112 S. Ct. 1925, 118 L. Ed. 2d 533

(1992).

After carefully reviewing the record, we cannot say that

Boyle has presented evidence sufficient to overcome the presumption

of correctness owed state habeas court findings of fact. The fact

that other experts disagreed with Dr. Erdmann is insufficient, by

itself, to call Dr. Erdmann’s testimony into question.

Additionally, we note, as the district court did, that the state

presented a great deal of physical evidence connecting Boyle to the

murder. Dr. Erdmann’s testimony was consistent with the state’s

physical evidence, whereas much of the conflicting expert testimony

was inconsistent with this other evidence.12 This alignment

11
Dr. Erdmann is currently imprisoned for falsifying autopsy reports.
12
Indeed, as the district court noted, Boyle’s experts themselves
disagreed as to the proper interpretation of the evidence on such important
questions as whether the substances found in the victim’s mouth indicated that
she had been orally sodomized.

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supports the district court’s decision to credit the state habeas

court’s finding that Erdmann did not testify falsely. Finally,

although Dr. Erdmann has been accused of misconduct in other cases,

Boyle has presented no evidence that Dr. Erdmann did so in this

particular case. Accordingly, Boyle has failed to overcome the

presumption of correctness applied to the state habeas court’s

factual findings, and we therefore affirm the district court’s

ruling that Dr. Erdmann did not testify falsely or mislead the

jury.13

Further, we also reject Boyle’s contention that the state knew

of Erdmann’s unreliability prior to Boyle’s trial and failed to

notify the defense for impeachment purposes. The state habeas

court made a finding that the prosecution was not aware of

Erdmann’s serious shortcomings at the time of Boyle’s trial. This

finding is also entitled to a presumption of correctness. A

careful review of the record shows that the only evidence

indicating that the state had any reservations about Erdmann was

prosecution testimony relating to Erdmann’s workload, not his

competence or professional practices. It was not until 1987 or

1988, after the completion of Boyle’s trial, that the prosecution

was alerted to the possibility that Dr. Erdmann had falsified

autopsies and committed perjury in other cases. Accordingly, we

13
Because we find that the district court did not err in upholding the
habeas court’s finding that Dr. Erdmann did not testify falsely, we also find
that the state had no duty to correct Dr. Erdmann’s testimony. See Faulder v.
Johnson, 81 F.3d 515, 519 (5th Cir. 1996) (rejecting claim that state had a duty
to correct false testimony because defendant failed to show that the testimony
was actually false).

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agree with the district court that Boyle has failed to establish

that the state improperly withheld impeachment evidence from the

defense. Boyle has presented no evidence to call into question the

state habeas court’s findings, upheld by the district court, that

Erdmann did not perjure himself in this case, and that the

prosecution had no knowledge of Erdmann’s abuses prior to trial.

IV

Boyle argues that the district court erred in denying his

petition for habeas relief on the ground that his attorney rendered

ineffective assistance at the punishment phase of his trial.

According to Boyle, his counsel failed to present significant

mitigating evidence that was either known to his counsel or should

have been known to his counsel. Boyle maintains that his counsel

did not present evidence of his mental illness, violent family

background, economic deprivation, voluntary intoxication, drug and

alcohol addictions, and testimony as to his many positive traits.

We review ineffective assistance of counsel claims under the

standard set forth in Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Ineffective assistance of

counsel is a mixed question of law and fact which we review de

novo. Id. at 698, 104 S. Ct. at 2070; Bryant v. Scott, 28 F.3d

1411, 1414 (5th Cir. 1994). To obtain reversal of a conviction or

death sentence based on ineffective assistance of counsel, a

convicted defendant must show that (1) his counsel’s performance

was deficient, and (2) the deficient performance prejudiced his

defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. A

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finding of deficient performance requires a showing that counsel’s

performance fell below an objective standard of reasonableness as

defined by prevailing professional norms. Id. Informed strategic

decisions are given a heavy measure of deference. Mann v. Scott,

41 F.3d 968, 984 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115

S. Ct. 1977, 131 L. Ed. 2d 865 (1995). In order to satisfy the

prejudice prong, the defendant must show that the outcome was

rendered unreliable or the proceeding fundamentally unfair.

Johnson v. Scott, 68 F.3d 106, 109 (5th Cir. 1995), cert. denied,

___ U.S. ___, 116 S. Ct. 1358, 134 L. Ed. 2d 525 (1996).

After careful review of the record, we find that Boyle has

failed to establish that his counsel was deficient at trial. At

Boyle’s writ hearing, his trial counsel testified that he did not

introduce certain evidence concerning Boyle’s background and

character for tactical reasons. As to the evidence of Boyle’s

violent family background, trial counsel responded, “It would have

been aggravating.” As counsel put it, “We were trying to keep as

much violence as we possibly could out of the record.” Counsel was

concerned that evidence of his abusive father would cause the jury

to think, “like father, like son.” As to the evidence of drug and

alcohol abuse, counsel stated, “It would have been aggravating.”

Counsel continued, “I did not think it was beneficial, particularly

in 1986 to tell this jury that he was a pill popping . . . truck

driver.”14 Counsel also made strategic decisions not to put into

14
As to Boyle’s possible mental illness, the defense was concerned that
the evidence would not be mitigating. Further, the defense was concerned that
if they put on such psychiatric evidence, the state would put on its own

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evidence Boyle’s non-sexual drawings,15 and the testimony of other

women with whom Boyle had had sexual relations.16 In essence, all

the evidence that Boyle maintains should have been presented at the

punishment phase of his capital murder trial had a double-edged

quality.17 See Mann, 41 F.3d at 984 (noting the heavy deference

owed trial counsel when deciding strategically to forego admitting

evidence of a “double edged nature” which might ultimately harm a

defendant’s case). Accordingly, we find that Boyle has failed to

overcome the strong presumption that these informed tactical

decisions were reasonable under the circumstances. Id. Boyle has

thus failed to satisfy the deficiency prong of Strickland, and we

hold that the district court did not err in rejecting Boyle’s

habeas petition on the grounds that his counsel provided

psychiatrist to testify as to Boyle’s violent tendencies.
15
Boyle’s counsel testified,

Well, because Mr. Boyle, while being a rather articulate artist, there
were two types of art that he delved in. He had the capability of drawing
a small kitten that looked so soft you would want to pick it up and pet
it. . . . He also had the ability to draw masochistic sadistic cult type
art depicting women in bondage under the throes of demonic type men. And
I don’t think that that was the type of art that was conducive to
convincing a jury not to kill him.

16
Boyle’s counsel testified that all the women who were willing to
testify as to Boyle’s good nature were women with whom he was having adulterous
relations. As Boyle’s counsel put it, “If I put in about alcohol and his
womanizing and his running around on his wife and his running around on his
girlfriends, that is not going to be a mitigating factor in Amarillo, Texas.”
17
As Boyle’s counsel testified, “Well, every family member I talked to
was a possible mitigation witness. Every girlfriend I talked to was a possible
mitigation witness. But every time I talked to some of these people, the
I))there were other problems associated with it.” Boyle’s counsel concluded,
“That’s why we didn’t talk about his use of amphetamines while driving a truck.
That’s why we didn’t talk about his alcoholism. That’s why we didn’t talk about
the child abuse. That’s why we damn sure didn’t talk about his sex life.”

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ineffective assistance.18

V

We note that while this appeal was pending, Congress passed

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132. 110 Stat. 1214 (“AEDPA”). The AEDPA modifies the

statutory provisions relevant to all habeas corpus cases. These

changes include, inter alia: a one year statute of limitation for

habeas cases; new procedures for obtaining a “certificate of

appealability” to the circuit courts; and limitations on successive

habeas petitions. See generally §§ 101-106. Congress, however,

did not specify an effective date for §§ 101-106. Because we

reject Boyle’s habeas petition under the old standards, which we

read as more permissive, we decline to address whether Congress

intended these general provisions to apply to appeals pending when

the AEDPA was enacted. See Callins v. Johnson, No. 95-11049, 1996

WL 390860 at *6 (5th Cir., Jan. 12, 1996) (declining to address

whether the Act applies where it would make no difference in the

outcome of the case). Additionally, the AEDPA alters the standards

of review applicable to death penalty habeas cases, arguably

18
We also reject Boyle’s contention that his trial counsel failed to
adequately investigate possible mitigation evidence. Counsel’s testimony during
the state habeas hearing indicates that they attempted to talk to a great number
of mitigation witnesses, supplied by Boyle himself. As counsel put it, most of
these witnesses “were as harmful or more so than the good that could come from
it.” In fact, several members of Boyle’s own family testified against him at
sentencing. In addition, Boyle’s counsel was aware of most of the evidence that
Boyle claims his counsel would have discovered through further investigation, but
they had decided that the evidence was more harmful than helpful to Boyle’s case.
Accordingly, we cannot say that Boyle’s counsel was ineffective in failing to
adequately investigate possible mitigation evidence. See Anderson v. Collins,
18 F.3d 1208, 1220-21 (5th Cir. 1994) (holding that failure to investigate did
not rise to ineffective assistance of counsel because the evidence was either
cumulative, unknown, or possibly harmful to the defense).

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restricting the scope of our review.19 Although § 107 specifies

that it shall be applicable to all cases “pending on or after the

date of enactment of this Act,” the state is only entitled to the

more restrictive standards of review if certain provisions,

designed to ensure appointment of counsel, are met.20 Because we

reject Boyle’s claims under the old standards of review, we decline

to address whether Texas has met its burden under the Act.

VI

For the foregoing reasons, the district court’s decision to

deny Boyle’s petition for writ of habeas corpus is AFFIRMED.

19
In death penalty cases, the Act limits review of questions of law to
those adjudicated in the state courts and allows reversal only if the decision
“was contrary to, or involved an unreasonable application of, clearly established
Federal law as determined by the Supreme Court of the United States.” See § 107.
As to factual questions, the Act limits reversal to decisions “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” See § 107.
20
Section 107 is applicable only if the state establishes, subject to
certain restrictions, “a mechanism for the appointment, compensation, and payment
of reasonable litigation expenses of competent counsel in State post-conviction
proceedings brought by indigent prisoners.” See § 107.

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KING, Circuit Judge, specially concurring:

Boyle’s able habeas counsel has done a remarkable job

developing “Dawson issues” in this case, and my scholarly brother

has been most generous in the extensive treatment of those issues

provided in the majority opinion. I am reluctant to subscribe to

that treatment, however, and I therefore concur in the judgment.

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