UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-10618
__________________
MICHAEL LEE MCBRIDE, also known as
Michael McBride,
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
(5:95-CV-24-C)
______________________________________________
July 29, 1997
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:*
Michael Lee McBride, a Texas prisoner under a sentence of
death, appeals from the district court's denial of his petition for
writ of habeas corpus. We affirm.
I. FACTS AND PROCEDURAL HISTORY
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
On October 18, 1985, James Holzer, Cody Minnick, and Karen
Tidwell, traveled from Fort Worth to Lubbock to visit their friend
Christian Fisher, a student at Texas Tech University.1 McBride had
been dating Fisher for almost a year and was angry that Holzer and
Minnick were staying in Fisher's apartment. On Saturday, October
19, 1985, McBride entered the apartment with a key and attacked
Holzer as he slept on the couch. McBride loudly accused Holzer of
"sleeping with [his] girlfriend," although testimony showed that
during the visit Holzer slept on the couch, Minnick on the floor,
and Tidwell with Fisher in her room. A struggle ensued between
Minnick, Holzer, and McBride, during which a glass bookcase was
broken. The two visitors subdued McBride, but before departing he
picked up a pair of sunglasses, smashed them, and threw them on the
floor.
McBride did not again contact the group at Fisher’s apartment
until Monday evening, October 21st, when he phoned Fisher. McBride
and Fisher were apparently ending their “very stormy” relationship,
and McBride proposed to pay Fisher some money he owed her. Minnick
testified that, unbeknownst to McBride and Fisher, he picked up a
second telephone and listened in on the conversation. McBride told
Fisher to come to his house "alone" so that he could give her a
painting worth the amount of his debt. He also told Fisher, "[I]f
I can't have you, nobody will."
1
The facts are taken from the opinion on McBride's direct
appeal. McBride v. State, 862 S.W.2d 600, 602 (Tex. Crim. App.
1993), cert. denied, 114 S.Ct. 2765 (1994).
2
Fisher's friends expressed concern for her safety, so all four
traveled to McBride’s house in two cars. Fisher and Holzer parked
in front of McBride’s house in Fisher’s car and Minnick and Tidwell
parked several car lengths behind them. When Fisher knocked at the
front door, McBride’s house was very dark and he did not answer.
As Fisher walked back to her car, Minnick saw a person behind his
car and heard a gun cock, and then saw McBride pointing a rifle at
him; the “rifle was a `military version’ .30 caliber M-1 carbine
with a 30 round clip.” McBride ordered Minnick and Tidwell to get
out of the car or he would kill them and he then smashed out
Minnick's driver's side window with the rifle butt. McBride fired
two “warning shots” into the air. He then moved toward Fisher, at
which time Minnick fled to a nearby house for help.
Several of McBride’s neighbors witnessed the double murder
that occurred moments later. Tidwell testified that McBride and
Fisher seemed to struggle with the rifle in the middle of the
street before McBride shot Fisher. Eyewitnesses testified that
Fisher “taunted” McBride before he shot her, by calling him a “son
a bitch” and telling him to “go ahead” and shoot her. McBride shot
Fisher ten times in her face, chest, abdomen, and thigh and shot
her at close range even after she had fallen in the street. After
shooting Fisher, McBride fired several shots through the windshield
of her car, repeatedly wounding Holzer. McBride smashed out the
driver’s side window and continued to shoot at Holzer, even placing
the rifle against Holzer’s head. McBride shot Holzer nine times;
3
one shot “destroyed his heart and was fatal.” McBride then shot
himself under the chin in an apparent suicide attempt. The bullet
went through his mouth and exited at his forehead.
When police officers and EMS personnel arrived at the scene,
McBride was crawling on the ground in an apparent effort to
retrieve the rifle, which several people kicked away from him. He
was “violent and aggressive” with the EMS personnel and made
“threatening remarks.” McBride admitted to them that he killed
Fisher and Holzer, "because it was time for them to go." McBride
became more cooperative at the hospital but continued to make
inculpatory statements. Based on this evidence, the jury convicted
Michael Lee McBride of the capital murder of Fisher and Holzer.
TEX. PENAL CODE § 19.03(a)(6).
At the punishment phase of the trial, several witnesses
testified about McBride’s relationship with Fisher. McBride, who
was 23 years old, had moved from Fort Worth to be with her while
she attended Texas Tech. He found a job as a bartender at a
Lubbock country club. Fisher was apparently preparing to leave
Lubbock because she was unhappy there. Friends and family had
expressed concern about McBride’s “unpredictable” behavior and his
explosive temper. There was testimony suggesting that the two had
been engaged.
Many witnesses testified to extraneous bad acts that
demonstrated McBride’s temper. For instance, a few months before
the murders, McBride had punched out a man in a bar who asked
4
Fisher for a cigarette and then failed to leave McBride’s and
Fisher’s table. McBride had nearly run over Tidwell in his car in
a parking lot, apparently because Tidwell did not tell him that she
and Fisher had gone to a bar a few nights before. Only sixteen
days before the murders, police officers had been called to
Fisher’s apartment at 4:23 a.m. after Fisher reported that McBride
had assaulted her. On the same day, Fisher had found a teddy bear
with its head ripped off and a note from McBride stuffed inside;
the note contained many profane insults and suggested that he would
see Fisher “in hell.”
There was testimony that McBride threatened with violence a
Fort Worth police officer who moonlighted as a security guard, when
the latter asked McBride to turn down his stereo. There was
additional testimony that McBride punched several holes in the wall
of his apartment in bursts of anger. These events were deemed
“typical” of McBride’s anger. Several fellow jail inmates
testified that, while McBride was awaiting trial, he had on several
occasions lost his temper, used offensive language, and attacked
people “with little or no provocation.” Three witnesses from Fort
Worth, who attended Texas Tech, testified that McBride’s reputation
for being peaceable and law-abiding was bad. A psychiatrist opined
that McBride would continue to be a threat to society.
The jury sentenced McBride to death, and the Texas Court of
Criminal Appeals affirmed McBride’s conviction and sentence.
McBride v. State, 862 S.W.2d 600, 602 (Tex. Crim. App. 1993), cert.
5
denied, 512 U.S. 1246, 114 S.Ct. 2765 (1994). McBride
unsuccessfully sought appointment of counsel to assist him in state
habeas proceedings. McBride then moved for appointment of counsel
in federal district court. A magistrate judge appointed McBride
attorneys, who filed on his behalf a § 2254 habeas petition raising
the following claims: (1) the trial court’s jury instruction on
punishment violated due process because it prevented the jury from
considering “mitigating evidence of provocation” by victim Fisher;
(2) McBride was denied effective assistance of counsel by counsel’s
failure to (a) investigate McBride’s mental health history and (b)
request a competency hearing; (3) the trial court denied him due
process by failing to hold a competency hearing sua sponte; and (4)
TEX. CODE CRIM. PROC. article 37.071(2)2 was unconstitutional in that
it permitted the trial court to withhold from the jury the fact
that a lone dissent would result in a life sentence for the
defendant. The Director filed an answer in which he waived
exhaustion of state remedies regarding the issues raised.
McBride subsequently moved for leave to file an amended § 2254
petition. His request was granted, and, in his amended petition,
McBride added two more claims: the prosecution had failed to
disclose exculpatory testimony from a radiologist on the issue of
McBride’s future dangerousness, and the prosecutor engaged in
prosecutorial misconduct by threatening witnesses. The Director
2
McBride appeared to be referring to the current art. 37.071
§ 2(a), which was codified at art. 37.071(g) at the time of his
trial.
6
filed an amended answer and again waived exhaustion as to the
unexhausted issues.
The magistrate judge held an evidentiary hearing at which
several witnesses testified. Afterwards, the magistrate judge
issued a report recommending that McBride’s petition be dismissed.
McBride filed objections and a motion for leave to file a second
amended habeas petition, which the district court denied. The
district court adopted the magistrate judge’s recommendation and
dismissed McBride’s petition.
McBride filed a notice of appeal and moved for a certificate
of probable cause (“CPC”) to appeal. The district court issued a
certificate of appealability (“COA”) under the amended Fed. R. App.
P. 22(b) and 28 U.S.C. § 2253, but did not indicate the specific
issues for appeal.
II. ANALYSIS
A. APPLICABILITY OF AEDPA
As a preliminary matter, this Court has before it two motions
that involve the validity of the COA issued by the district court.
Although this Court previously had determined that the standards of
review set forth in the Antiterrorism and Effective Death Penalty
Act (AEDPA) apply to habeas petitions pending on April 24, 1996,
the date the bill became law, Drinkard v. Johnson, 97 F.3d 751,
764-66 (5th Cir. 1996), cert. denied, __ U.S. __ 117 S.Ct. 114
(1997), after the Supreme Court's intervening decision in Lindh v.
Murphy, No. 96-6298, 1997 (WL 338568) (U.S. June 23, 1997), we were
7
compelled to conclude that if a habeas petition was filed with the
district court prior to April 24, 1996, the petition must be
reviewed for a CPC under the pre-AEDPA case law. Green v. Johnson,
No. 96-50669, slip op. 4008 (5th Cir. June 27, 1997).
Accordingly, in the instant case, because McBride's petition
was filed prior to the effective date of the AEDPA, we review his
case under the standards in place prior to the enactment of the
AEDPA. Prior to the AEDPA, a CPC, issued by either a district or
circuit judge, was necessary to allow a petitioner to appeal a
district court's denial of a habeas petition. See Barefoot v.
Estelle, 463 U.S. 880, 103 S.Ct. 3383 (1983).
As previously set forth, the court below granted McBride a
COA, rather than a CPC. In Drinkard, we explained that the
standard governing the issuance of a COA requires the same showing
as that for obtaining a CPC.3 97 F.3d at 755-56. Thus, we now
treat the district court's issuance of a COA as an issuance of a
CPC, which renders moot the motions before us involving the
validity of the COA.
B. CONSTITUTIONALITY OF STATUTE
McBride contends that former TEX. CODE CRIM. PROC. article
37.071(f) as used at the punishment phase of his trial was
unconstitutional, as applied to his case, in that it prevented the
trial court from submitting to the jury on a special verdict form
3
In Green, this Court presumed that to the extent that
Drinkard does not conflict with the Supreme Court's decision in
Lindh, it remains good law. Slip op. at 4013 n.2.
8
the question whether victim Christian Fisher had provoked the
crime, simply because Fisher was named second in the indictment
after victim Holzer. He argues that the provision prevented the
jury from hearing mitigating evidence. McBride’s challenge to the
constitutionality of article 37.071(f) derives from Penry v.
Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989).
The Director argues that the claim is procedurally barred, in
that the state appellate court on direct appeal denied the same
claim because McBride failed to lodge an objection on this basis at
trial. We disagree.
The procedural default doctrine precludes federal habeas
review when the last reasoned state-court opinion addressing a
claim explicitly rejects it on a state procedural ground. Ylst v.
Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590 (1991). When the
state court has relied on an independent and adequate state
procedural rule, federal habeas review is barred unless the
petitioner demonstrates either cause and prejudice or that a
failure to address the claim will result in a fundamental
miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 729-30,
111 S.Ct. 2546 (1991). Procedural default does not bar federal
court review of a federal claim unless the last state court
rendering a judgment in the case has “`clearly and expressly’
indicated that its judgment is independent of federal law, e.g.,
rests on a state procedural bar.” Amos v. Scott, 61 F.3d 333, 338
(5th Cir.) (citing Coleman, 501 U.S. at 263), cert. denied, __
9
U.S.__, 116 S.Ct. 557 (1995).
On direct appeal, McBride argued that former article 37.071(f)
was unconstitutional as applied because it permitted “the State to
prevent the jury from considering the mitigating circumstance of
provocation via the third punishment issue.” McBride, 862 S.W.2d
at 610. At that time, article 37.071(f) provided that if a
defendant was convicted of capital murder under TEX. PENAL CODE §
19.03(a)(6), the court was to submit to the jury three special
issues with regard to the conduct of the defendant in murdering
only the victim named first in the indictment. See id. at 610
n.21. The third special issue is whether, “if raised by the
evidence, . . . the conduct of the defendant in killing the
deceased was unreasonable in response to the provocation, if any,
of the deceased.” Id. at 610 n.22 (citing former article
37.071(b)(3)). The Court of Criminal Appeals observed that “the
jury was not charged on the third punishment issue as to either
victim of [the] offense, and [McBride] lodged no objection to that
aspect of the charge.” Id. at 611. The court found that "the
evidence did not raise the issue of provocation as addressed in the
third punishment issue, and hence [did] not reach the merits of
[McBride’s] [constitutional] contentions" with regard to that
claim. Id. As such, we do not believe the Court of Criminal
Appeals “clearly and expressly” stated that the judgment rested on
a state procedural bar. Thus, we decline to find the claim
procedurally barred.
10
Relying on Vuong v. Scott, 62 F.3d 673 (5th Cir.), cert.
denied, __ U.S. __, 116 S.Ct. 557 (1995), the Director next argues
that the claim is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060 (1989). Although the facts of Vuong are not identical to the
facts of the instant case, we find the analysis controlling.
In Vuong, unlike here, the trial court did submit the third
special issue regarding provocation. In accordance with former
TEX. CODE CRIM. PROC. article 37.071(f), however, the third special
issue dealt only with the provocation of the victim that was named
first in the indictment. Vuong argued that article 37.071(f)
operated to prevent the jury from considering any mitigating effect
of the provocation by the victim that was named second in the
indictment. To determine whether Teague barred review of the
claim, the inquiry was whether reasonable jurists, at the time
Vuong's conviction became final, would have been compelled to grant
relief under Penry v. Lynaugh. Id. at 680. We explained that "if
the jury was able to give proper mitigating effect to the evidence
under the instructions as given, such a holding--that a special
instruction is required--would constitute a "new rule" of
constitutional law under Teague." 62 F.3d at 680. Recognizing our
previous holding that the first two special issues (deliberateness
of killing and future dangerousness of defendant) provide an
adequate vehicle for considering the possible mitigating effect of
provocation evidence, we concluded that the claim must be rejected
under Teague. Id. at 682 (citing White v. Collins, 959 F.2d 1319
11
(5th Cir.), cert. denied, 503 U.S. 1001, 112 S.Ct. 1714 (1992)).4
McBride, whose conviction became final on June 27, 1994, cannot
distinguish his case from Vuong.
Moreover, even if this claim was not barred by Teague, we
agree with the Court of Criminal Appeals that the evidence did not
raise the issue of provocation. McBride v. State, 862 S.W.2d at
611. The evidence demonstrated that, after McBride ambushed the
victims, Fisher and McBride appeared to struggle with the rifle and
that immediately prior to the shooting, Fisher dared McBride to
shoot her.5 The Court found the victim's "statements insufficient
to constitute `provocation' where appellant creates the criminal
episode as he did here, initiates the violence, and assaults
several unarmed individuals with a deadly weapon." Id. Under
these circumstances, we too are not convinced that McBride would
have been entitled to third special issue had he so requested.
Vuong, 62 F.3d at 681 (evidence that Vuong initiated violence and
shot two persons prior to alleged provocation did not support a
special instruction involving provocation). For all the above
reasons, this claim fails.
4
McBride challenges this Court's analysis in White. Because
the Fifth Circuit adheres to the rule that one panel may not
overrule the decision of another, we must reject his challenge.
United States v. Taylor, 933 F.2d 307, 313 (5th Cir.), cert.
denied, 502 U.S. 883, 112 S.Ct. 235 (1991).
5
McBride does not specify the evidence he relies on to show
provocation, but simply states that "[t]he record contains evidence
of provocation of McBride by the victim, Christian Fisher,
immediately prior to the homicide . . . ." (citing McBride v.
State).
12
C. INEFFECTIVE ASSISTANCE OF COUNSEL
To establish that his attorney performed ineffectively, a
habeas petitioner must show both that his counsel's performance was
deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
demonstrate deficiency a defendant must show that "counsel made
errors so serious that counsel was not functioning as the `counsel’
guaranteed the defendant by the Sixth Amendment." Id. Judicial
scrutiny of counsel's performance must be highly deferential, and
courts must indulge in a strong presumption that counsel's conduct
falls within the wide range of reasonable professional conduct.
Id. at 689. "A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at
the time." Id.
To demonstrate prejudice, a defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different, id.
at 694, and that counsel's errors were so serious that they
rendered the proceedings unfair or the result unreliable. Lockhart
v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838 (1993). A failure to
establish either deficient performance or prejudice defeats the
claim. Strickland, 466 U.S. at 697. An ineffectiveness claim
based on speculation or conclusional rhetoric will not warrant
13
relief. See Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th
Cir.), cert. denied, 506 U.S. 957, 113 S.Ct. 417 (1992).
1. Failure to investigate mental health history
McBride argues that counsel performed ineffectively by failing
to investigate his “mental health history.” McBride points to his
discharge from the U.S. Navy in 1983 because of a “personality
disorder.” He asserts that had counsel known of “his medical
discharge for a `personality disorder,’ he could have further
investigated [McBride’s] mental health history.” (emphasis added).
He contends that further investigation “could have” led to the
diagnosis of a “personality disorder which might have been
admissible as mitigation.”
This alleged instance of ineffectiveness is based purely on
speculation. McBride has presented no evidence to suggest that he
in fact did suffer from a “personality disorder” or any other
psychiatric problem at the time of the murders. At McBride’s
evidentiary hearing in the court below, his trial attorney, Holder,
testified that he was aware that McBride had been discharged from
the military several years earlier because of the “personality
disorder.” McBride, however, introduced no other evidence relating
to this disorder at the hearing. He thus cannot show prejudice,
i.e., a reasonable probability that any such evidence would have
affected the outcome of the penalty phase. See Byrne v. Butler,
845 F.2d 501, 517 (5th Cir.), cert. denied, 487 U.S. 1242, 108
S.Ct. 2918 (1988) (failing to allege the existence of specific
14
mitigating evidence that counsel should have obtained).
2. Failure to request a competency hearing
McBride argues that his self-inflicted gunshot wound should
have prompted his attorney to investigate his competency to stand
trial and to request a competency hearing. He vaguely contends
that the “result of the proceeding would have been different” but
for counsel’s error.
This alleged instance of ineffectiveness also is stated in
speculative fashion. McBride states that "counsel was aware of
this condition, and its potential effect upon [his] competency to
stand trial." (emphasis added). Further, McBride makes no
assertion that he was actually incompetent at the time of his 1988
trial. Testimony at the evidentiary hearing shed little light on
this claim. Holder, who was lead counsel, testified that one of
McBride’s witnesses at the punishment phase, Dr. Morgan, “turned
around” on McBride and gave unfavorable testimony on the issue of
future dangerousness, in testifying about McBride’s head injury.
Holder admitted, however, that McBride appeared to understand the
charges against him and that McBride consulted with him in a manner
that assisted in preparing his defense. McBride’s other attorney,
Ogan, when asked whether he had any doubt about McBride’s “ability
to assist you in his defense,” responded that the “only reason at
all” to doubt McBride’s competency was the fact of the head injury
itself. However, none of McBride’s witnesses identified any
specific evidence that suggested that he was incompetent. Holder
15
admitted that he felt there was “no basis” for requesting a
competency hearing. Even assuming counsel's investigation of this
claim constituted deficient performance, McBride has failed to
demonstrate prejudice as to this claim.
3. Failure to discover and use testimony
McBride's first amended habeas petition included the claim
that the prosecution suppressed the opinion of Dr. Joel Dunnington,
a radiologist who assisted in McBride's treatment. After the
evidentiary hearing in the court below, McBride sought leave to
file a second amended petition raising the allegation that counsel
rendered ineffective assistance for failing to "discover" and
present at the punishment phase of the trial the testimony of Dr.
Dunnington relating to future dangerousness. The district court
denied his motion.
On appeal, McBride once again requests permission to amend his
petition by adding this claim of ineffective assistance related to
Dr. Dunnington's "testimony." Amendment to pleadings may be made
under Rule 15(b) so that the pleadings will conform to the evidence
adduced at trial. Such an amendment can be made at any time upon
notice of a party, even at the appellate level. Dunn v. Trans
World Airlines, Inc., 589 F.2d 408, 412 (9th Cir. 1978). However,
"[t]he purpose of Rule 15(b) is to bring the pleadings in line with
issues actually tried and does not permit amendment to include
collateral issues which may find incidental support in the record."
Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969) (citing
16
Gallon v. Lloyd-Thomas Company, 264 F.2d 821, 825 n.3 (8th Cir.
1959)). After reviewing the record, we conclude that this
particular ineffective assistance of counsel claim was not tried by
consent and deny his motion for leave to amend his petition. As a
result, this issue is not properly before us on appeal. Kelly v.
Lynaugh, 862 F.2d 1126, 1133 (5th Cir. 1988) (refusing to consider
habeas claim raised for the first time on appeal), cert. denied,
492 U.S. 925, 109 S.Ct. 3263 (1989).6
D. FAILURE TO SUA SPONTE HOLD COMPETENCY HEARING
McBride argues that his due process rights were violated by
the trial court's failure to sua sponte hold a competency hearing.
He contends that his attempted suicide immediately after the
murders and the resulting brain injury should have raised a bona
fide doubt in the trial judge's mind as to his competency.
Due process requires a trial court to order a competency
hearing sua sponte if the evidence before the court raises or
should raise a bona fide doubt concerning competency. See Pate v.
Robinson, 383 U.S. 375, 86 S.Ct. 836 (1975). A habeas petitioner
has the burden of showing that the objective facts known to the
trial court were sufficient to raise a bona fide doubt as to the
petitioner's competency. Enriquez v. Procunier, 752 F.2d 111, 113
(5th Cir. 1984), cert. denied, 471 U.S. 1126, 105 S.Ct. 2658
6
Even assuming the claim had been properly raised, McBride
cannot show prejudice in light of his failure to show a reasonable
probability that Dr. Dunnington's testimony would have caused a
different outcome at the punishment phase of the trial. See
Section F below.
17
(1985). To determine whether a competency hearing should be held,
the trial court should consider (1) any history of irrational
behavior, (2) the defendant's demeanor at trial, and (3) prior
medical opinions. Id.
In regard to the first factor, the district court found that
other than having an uncontrollable temper, McBride had no history
of irrational behavior. Relying solely on his suicide attempt
immediately after the murders, McBride compares himself to the
petitioner in Pate v. Robinson, 383 U.S. 375 (1966). McBride’s
comparison of his circumstances to those of the petitioner in Pate
is unconvincing. In Pate, several witnesses gave detailed and
uncontradicted testimony about the petitioner’s “long history of
disturbed behavior” and thought he was “insane.” Pate, 383 U.S. at
378, 383. Some years before the petitioner in Pate was convicted
for the crime for which he sought habeas relief, he murdered his
infant son and then “attempted suicide by shooting himself in the
head.” Id. at 381. The suicide was not the only evidence the
Supreme Court relied on to determine that the petitioner should
have been afforded a competency hearing; rather, it was but one of
a litany of the petitioner’s demented actions that occurred both
long before and after the attempted suicide. Id. at 378-83. See
also United States v. Davis, 61 F.3d 291, 304 (5th Cir. 1995)
(direct criminal appeal) (attempted suicide standing alone was
insufficient to create sufficient doubt of competence to stand
trial), cert. denied, __ U.S. __, 116 S.Ct. 961 (1996).
18
In regard to the second factor, McBride's demeanor at trial,
as previously set forth, defense counsel testified at the
evidentiary hearing that McBride appeared to understand the charges
against him and that he consulted with counsel in a manner that
assisted in preparing his defense. When asked whether he had any
doubt about McBride’s “ability to assist you in his defense,”
counsel responded that the “only reason at all” to doubt McBride’s
competency was the fact of the head injury itself. However, none
of McBride’s witnesses identified any specific evidence that
suggested that he was incompetent. Lead counsel admitted that he
felt there was “no basis” for requesting a competency hearing.
In regard to third factor regarding prior medical opinions,
McBride relies on Dr. Morgan's testimony. On September 2, 1986,
prior to McBride's murder trial, a hearing was held on several
motions. One of these motions was a motion for continuance that
was based not on McBride’s alleged incompetence, but on the fact
that the injury required cosmetic surgery due to a sunken area in
his forehead.7 At that pretrial hearing, Dr. Morgan, who had
performed surgery on McBride immediately after the suicide attempt,
testified that the bullet from the self-inflicted wound entered
just under McBride’s chin, went through his tongue and palate, and
7
The surgical procedure was a cranioplasty, which involved
installing an acrylic plate in the skull. The primary purpose of
the procedure was cosmetic and the secondary purpose was for
protection. The testimony indicated that such an operation should
not be performed until at least a year after the injury.
19
exited the top of his head “at about his hairline.” A “significant
amount of damage to the right frontal lobe of [McBride’s] brain”
resulted. Dr. Morgan also testified that there is no "specific
function assigned to the very front part of the frontal lobe where
he was injured, especially if it involves only, or primarily one
side of the brain; an individual can lose a fair portion of that
without suffering much in the way of discernable neurological
deficit." When asked by the prosecutor whether McBride had
suffered any of loss of “his thinking ability, or thought
processes,” Dr. Morgan responded:
As far as gross neurological deficit,
after his injury, besides the loss of smell,
we did not think he had any discernable gross
neurological deficit.
He seemed to talk and respond, as we
expected.
As far as discreet testing, regarding his
thought processes, that requires a battery of
psychological tests, and those were not done.
Even at this early stage of the proceedings--less than a year after
McBride suffered a brain injury and over a year before trial began-
-there was little, if any, evidence to suggest that he was not
competent to stand trial.8
Dr. Morgan gave similar testimony during the guilt-innocence
phase of McBride's trial. He testified that McBride had no gross
8
Additionally, a nurse at the Sheriff’s Department infirmary
where McBride was then incarcerated testified that she talked with
McBride and that he was “a very intelligent young man . . . [and]
knowledgeable in world affairs as well as business.” When asked
whether McBride had “any mental problems . . . that would cause him
not to understand what was going on,”, she replied, “[n]one
whatsoever.”
20
neurological deficit, explaining that McBride "is able to speak and
think reasonably well, without going into in-depth psychological
testing, he walks and talks and he moves all four extremities well,
has normal reflexes and sensation, and is able to see and hear.
The only thing that he appeared to have missing was the sense of
smell."
McBride has not identified a “history” of irrational behavior,
unusual behavior during the proceedings against him, or any medical
opinions before the trial court that would have created a bona fide
doubt regarding his competency to stand trial. Thus, he is not
entitled to relief on this claim.
E. DUE PROCESS CHALLENGE TO JURY INSTRUCTION
McBride contends that sentencing instructions at his trial
denied him due process, in that TEX. CODE CRIM. PROC. article 37.071
statutorily prohibits courts from informing jurors of the effect of
their failure to agree unanimously on a capital punishment.9 He
argues that although article 37.071(d)(1) and (2) require a Texas
court to impose a life sentence in a capital case when a jury is
unable to agree unanimously on a response to a special issue,
article 37.071 unconstitutionally prohibits courts from informing
9
“The court, the attorney for the state, or the attorney for
the defendant may not inform a juror or a prospective juror of the
effect of failure of the jury to agree on an issue submitted under
this article.” Art. 37.071(g) (Supp. 1986) (redesignated as art.
37.071 § 2(a) (1991)); see Davis, 51 F.3d at 465 n.11.
21
jurors that any one of them can thereby prevent a death sentence.10
McBride relies largely on Mills v. Maryland, 486 U.S. 367, 108
S.Ct. 1860 (1988), and Andres v. United States, 333 U.S. 740, 68
S.Ct. 880 (1948).
McBride's argument is foreclosed by our precedent. We
previously have held that the claim is barred by the
nonretroactivity doctrine of Teague v. Lane. Webb v. Collins, 2
F.3d 93, 94-95 (5th Cir. 1995). Addressing the challenge of a
habeas petitioner who was sentenced to death in 1986 and whose
conviction became final in 1989, this Court observed that Andres
and Mills were decided before the petitioner’s conviction became
final. Id. We recognized that although
[t]he Supreme Court’s decisions in Andres and
Mills may inform the analysis of [the] claim,
. . . they do not dictate the constitutional
rule urged by [the petitioner]. Both Andres
and Mills involve statutory schemes different
from the Texas sentencing statute and
different legal standards. Thus because [the
petitioner] does not suggest that his claim
comes within an exception [to Teague], Teague
forecloses [the Court’s] consideration of
[the] claim. . . .
10
McBride's jury was charged under the following provision
as to the special issues:
(d) The court shall charge the jury that:
(1) it may not answer any issue “yes” unless
it agrees unanimously; and
(2) it may not answer any issue “no” unless
10 or more jurors agree.
TEX. CODE CRIM. PROC. art. 37.071(d) (1981).
22
Id. at 96; see also Davis, 51 F.3d at 466-67 (rejecting same claim
after petitioner had failed to argue in district court that any
“new rule” fell within a Teague exception).
McBride now argues that his challenge to article 37.071(g)
falls within the second of the two Teague exceptions, in that his
proposed new rule amounts to a “watershed rule of fundamental
fairness.” McBride cursorily raised this argument in his
objections to the magistrate judge’s recommendation, asserting
broadly that his “claim comes within the second exception to
nonretroactivity announced in Teague v. Lane.” Because this Court
has held that the substance of McBride's argument is "meritless,"
we need not determine whether McBride adequately preserved his
argument regarding the second exception to Teague. Jacobs v Scott,
31 F.3d 1319, 1328 (5th Cir. 1994), cert. denied, 513 U.S. 1067,
115 S.Ct. 711 (1995).11 In Jacobs, we explained that the Supreme
Court's decision in Mills has been interpreted "to mean that `each
juror [must] be permitted to consider and give effect to mitigating
evidence when deciding the ultimate question whether to vote for a
sentence of death.'" Id. (quoting McKoy v. North Carolina, 494
U.S. 433, 442-43, 110 S.Ct. 1227, 1233 (1990)) (brackets in
opinion). We further explained that the statutory framework in
Texas was entirely different from that in Mills. We declared Mills
11
We realize that in Jacobs our discussion of this issue was
in the context of whether he had shown prejudice to overcome the
procedural bar. Nevertheless, we explicitly rejected the
"substantive argument" as "meritless." 31 F.3d at 1328.
23
to be inapposite because, unlike the statutory framework at issue
in Mills, "[u]nder the Texas system, all jurors can take into
account any mitigating circumstance. One juror cannot preclude the
entire jury from considering a mitigating circumstance." Id. at
1329. Our holding in Jacobs precludes McBride from obtaining
relief on this claim.
F. BRADY CLAIM
A defendant's right to due process is violated when, upon a
request for exculpatory evidence, the Government suppresses
evidence that is both favorable to the defendant and material to
the defendant's guilt or punishment. Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194 (1963). Exculpatory evidence as well as
impeachment evidence falls under the Brady rule. Giglio v. United
States, 405 U.S. 150, 154, 92 S.Ct. 763 (1972). Evidence is
material when a reasonable probability exists that its disclosure
would have caused a different outcome at trial. United States v.
Bagley, 473 U.S. 667, 674-75, 105 S.Ct. 3375 (1985). A reasonable
probability is a probability sufficient to cast doubt on the
outcome. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1558
(1995). Materiality is judged according to the cumulative effect
of all the undisclosed evidence. Id. at 1567.
McBride contends that the prosecution failed to disclose Dr.
Dunnington's opinion, which he alleges constituted mitigating
evidence regarding his future dangerousness. Dr. Dunnington was a
radiologist who assisted in the treatment of McBride's self-
24
inflicted wound. McBride contends that Dr. Dunnington's testimony
would have bolstered the defense theory at the punishment phase
that McBride would no longer be dangerous as a result of the
injuries suffered from the gunshot wound.
At the evidentiary hearing, it was established that Dr.
Dunnington's name was on the witness list supplied by the state
prior to trial and that McBride's medical records contained Dr.
Dunnington's name. Further, there was some evidence to indicate
that Dr. Dunnington's report was contained in McBride's medical
records. Trial counsel admitted that McBride's medical records
were available to the defense. Based on this evidence, the
district court concluded that the evidence was not suppressed
because "at least Dr. Dunnington's name was as readily available to
McBride's defense lawyers, and to McBride, as it was to the
prosecutors." Citing Williams v. Scott12, the district court stated
that "a Brady violation does not arise if the defendant using
reasonable diligence could have obtained the same information as
was found to have been in the hands of the prosecution." McBride
asserts that the “diligence” standard applied by the court
conflicts with Brady itself. This Court repeatedly has held,
however, that the prosecution has no obligation to produce evidence
that a defendant could have obtained “from other sources by
exercising due diligence.” See Brown v. Cain, 104 F.3d 744 (5th
12
35 F.3d 159, 163 (5th Cir. 1994), cert. denied, 513 U.S.
1137, 115 S.Ct. 959 (1995).
25
Cir.), cert. denied, __ U.S. __, 117 S.Ct. 1489 (1997) (citations
omitted). Indeed, we have gone so far as to state that "[d]ue
diligence in failing to locate exculpatory material is a necessary
element of a successful Brady claim." United States v. Mmahat, 106
F.3d 89, 94 (5th Cir. 1997), petition for cert. filed, (U.S. June
16, 1997) (No. 96-9431). Although McBride takes great pains in
attempting to convince this Court that our precedent "does not
stand for the general principle which the [district court] seized
upon to deny relief," we are unpersuaded.
In the alternative, McBride contends that his attorney’s
specific request for Brady material constituted sufficient
“diligence.”13 Even assuming counsel's request constituted due
diligence, we find his Brady claim fails. At the evidentiary
hearing, McBride established that, prior to McBride's capital
murder trial, an investigator in the district attorney's office
interviewed Dr. Dunnington. The investigator then prepared an
interoffice file memo that provided as follows:
I did talk with Dr. Dunnington, MD-Dept. of Radiology .
. . he reviewed his work and it was his opinion that
McBRIDE did probably have enough damage to alter his
personality, but to what extent he could not say. He was
of the opinion that he didn't think anyone (based on
13
McBride also argues that, regardless of the exercise of
diligence, defense counsel could not reasonably be expected to
investigate the possibility that a radiologist would express a
medical opinion concerning future dangerousness because a
radiologist's training and specialty involves the diagnosis of
physical injury through x-rays, not the practice of psychiatry.
This argument proves too much in that it undermines the validity of
Dr. Dunnington's opinion regarding McBride's future dangerousness.
26
McBRIDE's specific damage) could actually say that he
would or would not be a continuing threat. Dr.
Dunnington is not a neuro-radiologist, but he is the one
that read McBRIDE's X-Rays at LGH . . . copy of his
report is contained with in the medical records.
(ellipses in original). This memo suggests that Dr. Dunnington's
opinion about McBride's future dangerousness was ambivalent and
uncertain. Consistent with the memo, the investigator testified at
the evidentiary hearing that, during the interview, Dr. Dunnington
related that he could not predict what kind of effect the injury
would have had on McBride's future behavior. The transcript of the
evidentiary hearing reflects that Dr. Dunnington had been deposed
prior to the hearing and a transcript of that testimony was entered
into evidence; however, McBride has not made that deposition a part
of the record on appeal.
On cross examination, defense counsel admitted that during the
deposition Dr. Dunnington testified that it was impossible to
predict McBride's future dangerousness based on his X-rays and CAT
scans after the injury. According to defense counsel, Dr.
Dunnington believed that "you look at his behavior subsequent to
the wound and . . . based on his behavior subsequent to that, you
can tell. You can tell whether they are uncontrollably violent, or
they are going [to be] passive." As set forth previously, during
the punishment phase, several fellow jail inmates testified that,
while McBride was awaiting trial, he had on several occasions lost
his temper, used offensive language, and attacked people “with
little or no provocation.” That evidence certainly undermines
27
McBride's claim that Dr. Dunnington's testimony would have
bolstered the defense theory that he would no longer be dangerous
as a result of the injuries suffered from the gunshot wound.
Under these circumstances, McBride has failed to show that Dr.
Dunnington's testimony was favorable, much less a reasonable
probability that it would have caused a different outcome at the
punishment phase of trial.
The judgment of the district court is AFFIRMED.
28