IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20101
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KARLA FAYE TUCKER,
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 Southern District of Texas
_________________________
July 2, 1997
ON PETITION FOR REHEARING
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Since the panel opinion was issued in this case, see Tucker v.
Johnson, No. 97-20101, 1997 WL 295707 (5th Cir. June 3, 1997), the
Supreme Court has held §§ 101-106 of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132,
110 Stat. 1214, 1217-21 (1996) (codified at 28 U.S.C. §§ 2244,
2253-2254), inapplicable to habeas corpus petitions filed before
the act’s effective date of April 24, 1996. See Lindh v. Murphy,
No. 96-6298, 65 U.S.L.W. 4557 (U.S. June 23, 1997).1 As peti-
tioner’s habeas petition pre-dated the act, she is not subject to
it.
The standard for granting a certificate of appealability
(“COA”) under the AEDPA, see 28 U.S.C. § 2253(c)(2), is the same as
the standard for granting a certificate of probable cause, see
28 U.S.C.A. § 2253 (West 1994), under our pre-AEDPA jurisprudence.
See Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996), cert.
denied, 117 S. Ct. 1114 (1997). Nonetheless, we did consider the
deferential standards of the AEDPA in making our determination
whether to grant a COA. See Tucker, 1997 WL 295707, at *3.
Although we ultimately conclude that Tucker is not entitled to
an appeal under the pre-AEDPA standards of review, Lindh substan-
tially changes our reasoning. Accordingly, treating Tucker's
suggestion for rehearing en banc as a petition for panel rehearing,
we grant rehearing, withdraw our prior opinion, and substitute the
following:
Karla Tucker, proceeding in forma pauperis, appeals the denial
of her petition for writ of habeas corpus. Concluding that she has
failed to make a substantial showing of the denial of a federal
1
The AEDPA would apply to capital habeas cases pending in a state that had
qualified for the expedited procedures set forth in § 107 of the AEDPA, 110 Stat.
at 1221-26 (codified at 28 U.S.C. §§ 2261-2266). See Lindh, 65 U.S.L.W. at 4559.
Texas, however, has not yet satisfied § 107's requirements, so the AEDPA does not
govern the instant capital habeas case. See Green v. Johnson, No. 96-50669,
1997 WL 359070, at *2-*3 (5th Cir. June 27, 1997).
2
right, we deny her a certificate of probable cause (“CPC”).
I.
A.
On June 12, 1983, Tucker spent most of the day using drugs and
alcohol with her boyfriend, Danny Garrett (“Danny”); her sister,
Kari Burrell (“Kari”); Kari’s ex-husband, Ronnie Burrell
(“Ronnie”); and James Leibrant. Kari and Ronnie left in the
evening. In the early morning hours of June 13, Tucker, Danny, and
Leibrant decided to go to Jerry Dean’s home and steal his motorcy-
cle.
They entered Dean’s apartment using a key that Tucker had
stolen. In the bedroom, they found Dean and Deborah Thornton.
When Dean begged for his life, Tucker began to “pick” him with an
axe. She later told Kari that she received sexual gratification
with every swing of the axe. At one point, Leibrant entered the
bedroom to find Tucker attempting to pull the axe out of Dean by
using her foot on him as leverage. After she pulled the axe from
his body, she lifted it above her head, smiled at Leibrant, and
swung it into Dean again.
Tucker and Danny then used the axe on Thornton until, when
Thornton begged for the end, Danny embedded the axe in her throat.
Danny and Tucker took Dean’s truck, wallet, and motorcycle. They
stored the stolen property with Danny’s brother, Doug Garrett
(“Doug”).
Tucker boasted about her actions to Kari and Doug and
3
expressed pleasure while watching a television news report about
the killings. Kari and Doug went to the police and reported
Tucker’s statements. Doug was fitted with a hidden microphone and
recorded a ninety-minute discussion with Tucker and Danny about the
murders.
B.
A jury convicted Tucker of capital murder. See TEX. PEN. CODE
ANN. § 19.03(a)(2) (Vernon 1994). At the sentencing phase, the
jury was instructed to consider the two statutorily-mandated
special issues, as required by then-existing law:
(1) whether the conduct of the defendant that caused
the death of the deceased was committed deliberately and
with the reasonable expectation that the death of the
deceased or another would result;
(2) whether there is a probability that the defen-
dant would commit criminal acts of violence that would
constitute a continuing threat to society; . . . .
TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1981). The jury
answered each special issue in the affirmative, and the court
sentenced Tucker to death.
The conviction and sentence were affirmed on direct appeal,
see Tucker v. Texas, 771 S.W.2d 523 (Tex. Crim. App. 1988) (en
banc), whereupon Tucker sought state habeas relief, raising the
issues she raises in her federal habeas petition. After a remand
to the trial court for an evidentiary hearing, the Texas Court of
Criminal Appeals denied habeas relief.
Tucker then filed a federal habeas petition, alleging
ineffective assistance of counsel and constitutional errors in the
4
jury instructions and challenging the state’s use of Leibrant's
testimony at trial.2 The district court granted summary judgment
for the state, dismissed the petition, and denied a CPC.
II.
In order to appeal, a habeas petitioner must receive a CPC.
See 28 U.S.C.A. § 2253 (West 1994).3 We may not grant a CPC unless
the applicant has made a “'substantial showing of the denial of [a]
federal right.'” Barefoot v. Estelle, 463 U.S. 880, 893 (1983)
(quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (5th Cir. 1971)).
The petitioner must show “that the issues are debatable among
jurists of reason; that a court could resolve the issues [in a
different manner]; or that the questions are adequate to deserve
encouragement to proceed further.” Sawyers v. Collins, 986 F.2d
1493, 1497 (5th Cir. 1993) (quoting Barefoot, 463 U.S. at 893 n.4)
(internal quotation marks omitted).
2
Tucker did not raise the arguments about Leibrant's testimony in her
application for a CPC before the district court or before us, so we consider them
waived. See Lockhart v. Johnson, 104 F.3d 54, 56 (5th Cir. 1997), cert. denied,
1997 WL 194865 (U.S. June 27, 1997) (No. 96-8577).
3
Section 102 of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-18 (1996) (codified
at 28 U.S.C. § 2253), amended 28 U.S.C. § 2253 to require a certificate of
appealability (“COA”) before a final order in a habeas proceeding can be
appealed. In light of Lindh v. Murphy, No. 96-6298, 65 U.S.L.W. 4557, 4558 (U.S.
June 23, 1997), however, this requirement does not apply to habeas petitions
filed prior to April 24, 1996, the effective date of the AEDPA. See Green v.
Johnson, No. 96-50669, 1997 WL 359070, at *3 (5th Cir. June 27, 1997). Tucker
filed her habeas petition prior to April 24, 1996.
5
III.
A.
Tucker’s first two issues on appeal are intertwined. First,
she argues that trial counsel rendered ineffective assistance of
counsel by proposing the voluntary intoxication instruction
contained in TEX. PEN. CODE ANN. § 8.04(b) (Vernon 1994). Specifi-
cally, counsel requested, and the court gave, the following
instruction:
Evidence of temporary insanity of the defendant
caused by intoxication may be introduced by the defendant
in mitigation of the penalty attached to the offense for
which she is being tried.
. . . .
Temporary insanity caused by intoxication means that
the defendant’s mental capacity was so disturbed from the
introduction of a substance into her body that the
defendant did not know that her conduct was wrong or was
incapable of conforming her conduct to the requirements
of the law she allegedly violated.
Tucker, 771 S.W.2d at 533. She asserts that this instruction
prevented the jury from considering the mitigating evidence of
intoxication unless that intoxication rose to the level of
temporary insanity. But see Drinkard v. Johnson, 97 F.3d 751, 756-
64 (5th Cir. 1996) (rejecting this argument), cert. denied,
117 S. Ct. 1114 (1997).
Tucker’s second argument is that her counsel was ineffective
during juror voir dire. Both the prosecution and the defense
questioned each juror at length about whether he would be willing
to weigh temporary insanity caused by voluntary intoxication as a
mitigating factor. Tucker argues that counsel should not have
6
presented this version of the law to the jurors and should have
objected to the prosecution's comments.
B.
To establish ineffective assistance, Tucker must demonstrate
both deficient performance by her counsel and prejudice resulting
from that deficiency. See Strickland v. Washington, 466 U.S. 668,
687 (1984). We compare counsel’s performance to an objective
standard of reasonableness, mindful of the strong presumption of
adequacy. We will not find inadequate representation merely
because, with the benefit of hindsight, we disagree with counsel's
strategic choices. See Garland v. Maggio, 717 F.2d 199, 206 (5th
Cir. 1983) (on rehearing).
Applying the prejudice prong in the context of counsel's
performance at sentencing, we ask whether the petitioner has
demonstrated “a 'reasonable probability' that the jury would not
have imposed the death sentence in the absence of errors by
counsel.” Carter v. Johnson, 110 F.3d 1098, 1110 (5th Cir. 1997).4
Failure to establish either prong defeats the claim. See Washing-
ton, 466 U.S. at 697.
C.
As the state habeas court found, trial counsel’s strategy was
4
Although Carter was influenced by our erroneous view of the applicability
of the AEDPA to cases pending when the act became effective, it presumably
remains precedent in this circuit to the extent that it “do[es] not conflict with
Lindh's conclusion that the chapter 153 amendments do not apply retroactively.”
Green, 1997 WL 359070, at *3 n.2.
7
to “highlight evidence of [Tucker]'s temporary insanity resulting
from voluntary intoxication at the time of the offense, rather than
evidence of her mere voluntary intoxication which did not result in
temporary insanity.” Considering the horrific details of the
murders and Tucker’s own statement that she received sexual
gratification from plunging the axe into her victims, trial counsel
reasonably could have believed that evidence of mere voluntary
intoxication would not persuade the jury to spare Tucker's life.
Counsel's strategy of arguing that Tucker was temporarily
insane at the time of the murders was reasonable, though unsuccess-
ful, and easily satisfies the standard for effective assistance.
No reasonable jurist would disagree, and Tucker has not made a
substantial showing of the denial of a federal right.
IV.
A.
Tucker's third contention is that the § 8.04 voluntary
intoxication instruction violated the Eighth and Fourteenth
Amendments because it impermissibly prevented the jury from
considering the mitigating effect of non-insane voluntary intoxica-
tion. Our analysis of this claim is complicated by the doctrine of
procedural default.
A federal habeas court may not consider a state prisoner’s
claim if the state based its rejection of that claim on an
independent and adequate state ground. See Martin v. Maxey,
98 F.3d 844, 847 (5th Cir. 1996). The procedural bar will not be
8
considered “adequate” unless it is applied “strictly or regularly”
to the “vast majority of similar claims.” Amos v. Scott, 61 F.3d
333, 339 (5th Cir.), cert. denied, 116 S. Ct. 557 (1995).
Tucker challenged the constitutionality of the § 8.04(b)
instruction on direct appeal. See Tucker, 771 S.W.2d at 533-34.
The Texas Court of Criminal Appeals denied relief because Tucker
had requested the instruction, and thus the doctrine of invited
error barred her claim. See Capistran v. Texas, 759 S.W.2d 121,
124-25 (Tex. Crim. App. [Panel Op.] 1982) (on rehearing) (explain-
ing the invited error doctrine). The district court refused to
address the merits of this claim, reasoning that it was barred by
procedural default.
Our determination whether Tucker is entitled to a CPC is
complicated by the district court’s reliance on the procedural bar.
In such cases, we refuse to grant a CPC when the petitioner fails
to make a showing that he can overcome the bar. See Jacobs v.
Scott, 31 F.3d 1319, 1328 (5th Cir. 1994). Even when the peti-
tioner can make such a showing, we still refuse to grant a CPC when
the underlying claim is not “debatable among jurists of reason.”
Sawyers, 986 F.2d at 1502.
B.
A habeas petitioner can overcome a procedural default by
showing cause and prejudice for that default. See Murray v.
Carrier, 477 U.S. 478, 488 (1986). Tucker argues that counsel’s
ineffective assistance constitutes cause excusing the procedural
9
default. As we have found that Tucker has not made a substantial
showing that counsel was ineffective in requesting the instruction,
we must reject this argument. Therefore, because Tucker has not
shown that she can overcome the procedural default, we deny her a
CPC on this issue.
V.
Tucker’s fourth, sixth, and seventh arguments are based on
Penry v. Lynaugh, 492 U.S. 302 (1989). She argues that the Texas
sentencing scheme, as applied through the jury instructions, was
unconstitutional because (1) the jury received no guidance on how
to consider mitigating evidence; (2) the court failed to define
“deliberately”;5 and (3) the jury was prevented from considering
her mitigating evidence.
Instructional error of this sort does not amount to a
constitutional violation “unless there is a reasonable likelihood
that the jury applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant mitigating
evidence.” Lackey v. Scott, 28 F.3d 486, 489 (5th Cir. 1994)
(internal quotation marks omitted) (quoting Johnson v. Texas,
509 U.S. 350, 367 (1993)). Furthermore, the mitigating evidence
“must demonstrate a 'uniquely severe permanent handicap[] with
5
The state habeas court rejected this argument on the ground that Tucker
failed to request a definition of “deliberately” at trial, although she did
request that the court distinguish “deliberately” from “intentionally.” The
state did not plead this procedural default before the district court, so we
consider it waived. See United States v. Marcello, 876 F.2d 1147, 1153 (5th Cir.
1989).
10
which the defendant was burdened through no fault of his own.'”
Turner v. Johnson, 106 F.3d 1178, 1189 (5th Cir. 1997) (quoting
Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir. 1992) (en banc),
aff’d, 506 U.S. 461 (1993)).
Tucker’s mitigating evidence consisted of her (1) history of
chronic drug and alcohol abuse from age eight; (2) intoxication at
the time of the offence; (3) young age of twenty-three; and
(4) arrested emotional development caused by chronic drug use. We
have held that intoxication and youth are not valid Penry evidence.
See id. (youth); Lackey, 28 F.3d at 489 (voluntary intoxication).
Similarly, self-inflicted chronic drug and alcohol abuse and the
resulting arrested emotional development do not constitute a unique
handicap “with which the defendant was burdened through no fault of
his own.” Tucker has not made a substantial showing of the denial
of a federal right with respect to these claims.
VI.
Tucker’s fifth contention is that her counsel was ineffective
for failing to request a mitigation-of-punishment jury instruction.
We have concluded already that Tucker was not entitled to a
mitigation-of-punishment instruction and that counsel made a
reasonable strategic choice to concentrate the jury’s attention on
the possibility that Tucker was temporarily insane at the time of
the murders. No rational jurist would conclude otherwise.
The application for a CPC is DENIED.
11