Carter v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

No. 96-20334
_______________

1 ROBERT ANTHONY CARTER,

2 Petitioner-Appellant,

3 VERSUS

4 GARY L. JOHNSON,
5 Director, Texas Department of Criminal Justice,
6 Institutional Division,

7 Respondent-Appellee.

8 _________________________
9
10 Remand from the Supreme Court
11 of the United States
12 _________________________

13 December 12, 1997

14 Before KING, SMITH, and BENAVIDES, Circuit Judges.

15 JERRY E. SMITH, Circuit Judge:

16 Robert Carter appeals the denial of his petition for a writ of

17 habeas corpus filed under 28 U.S.C. § 2254 (1996). We affirm the

18 judgment and vacate the stay of execution.

19 I.

20 Carter was convicted of capital murder and sentenced to death

21 in March 1982. His case, which languished in the Texas courts for

22 over a decade and recently reached the Supreme Court, has now been
23 remanded to this court for further action.

24 A.

25 Carter was arrested in 1981 and charged with the murder of

26 Sylvia Reyes, who was fatally wounded during the robbery of a

27 service station.1 Carter confessed in great detail to the murder

28 but stated that the shooting had been accidental and denied any

29 intent to kill Reyes. Pursuant to this confession, the police

30 obtained the murder weapon identified by Carter, and ballistic

31 experts confirmed that the revolver had been used in the murder.

32 B.

33 At trial, a witness identified as “David Josa” testified that

34 he was entering the service station when he heard gunshots inside

35 and observed two individuals leave it immediately thereafter. The

36 first fled but returned when the police arrived. The second, a

37 young black man fitting Carter’s description, emerged from the

38 store with “a wad of money” in his left hand and fled. Josa

39 observed this person for only a few seconds but did not see a gun,

40 nor was he able subsequently to identify Carter as the second man.

41 Another witness, Arthur Mallard, corroborated Josa’s

42 testimony. Mallard identified himself as the first person out of

43 the station and testified that he had observed a man fitting

44 Carter’s description reach across the counter to take money from

1
The first opinion of the Texas Court of Criminal Appeals summarizes the
facts at length. See Carter v. State, 717 S.W.2d 60, 62-66 (Tex. Crim. App.
1986), cert. denied, 484 U.S. 970 (1987).

2
45 the cash register. When the station attendant resisted, Mallard

46 heard a gunshot and fled the store. He was unable to identify

47 Carter as the man he had seen.

48 The defense offered no evidence to rebut the state, and the

49 jury returned a verdict of guilty to capital murder. At the

50 penalty stage, the state called witnesses to establish that Carter

51 had committed another murder six days prior to the charged offense.

52 Although none of the witnesses directly observed the second murder,

53 one identified Carter as the man she observed fleeing the scene.

54 Finally, the state introduced Carter's confession, in which he

55 confessed to the second murder, once again.

56 In rebuttal, defense counsel offered the testimony of three

57 witnessesSSCarter, his mother, and a family friendSSto establish

58 Carter's good character. Carter testified that he had not

59 intentionally killed the two victims and pledged to rehabilitate

60 himself if sentenced to life imprisonment rather than death.

61 Finally, in response to the character evidence, detective L.B.

62 Smith testified that Carter’s reputation as a peaceful and law-

63 abiding citizen was “bad.” After brief deliberation, the jury

64 affirmatively answered the three special issues submitted pursuant

65 to TEX. CODE CRIM. PROC. ANN. art. 37.071 (Vernon 1981), and the trial

66 court imposed the death sentence.

67 C.

68 In 1990, Carter filed his first state habeas petition. In

69 August 1995, the state trial court recommended that state habeas

3
70 relief be denied, and the Texas Court of Criminal Appeals denied

71 this first habeas petition in December 1995.

72 In August 1995, while the original state habeas petition was

73 pending, Carter filed his second state habeas application, alleging

74 that the length of time between his sentencing and his scheduled

75 execution rendered his death sentence cruel and unusual punishment

76 in violation of the Eighth Amendment. The state trial court

77 recommended that habeas relief be denied, and the Court of Criminal

78 Appeals denied this second application in January 1996.

79 Having finally exhausted his state remedies, Carter filed the

80 instant federal habeas petition in January 1996, followed soon

81 thereafter by a motion for discovery, a motion for an evidentiary

82 hearing, and an application for stay of execution. On March 20,

83 1996, the federal district court entered final judgment, denying

84 habeas relief. Carter appealed, and the district court issued a

85 certificate of probable cause (“CPC”) on April 19, 1996.

86 We affirmed on April 9, 1997. See Carter v. Johnson, 110 F.3d

87 1098 (5th Cir. 1997). On June 23, 1997, the Supreme Court decided

88 Lindh v. Murphy, 521 U.S. ___, 117 S. Ct. 2059 (1997). Carter then

89 petitioned for writ of certiorari, raising, as his sole issue,

90 whether the Supreme Court, “under its customary 'GVR' practice,[2]

91 should remand this case for further proceedings in light of Lindh

92 v. Murphy . . . .” (Citation omitted.) The Court in fact did so,

2
The acronym “GVR” refers to the Supreme Court's practice of granting
certiorari, vacating, and remanding for further consideration in light of some
intervening development. The practice is thoroughly explained in Lawrence v.
Chater, 516 U.S. 163, ___, 116 S. Ct. 604, 606-10 (1996) (per curiam).

4
93 vacating and remanding “for further proceedings in light of Lindh

94 . . . .” (Citation omitted.) See Carter v. Johnson, 1997 U.S.

95 LEXIS 6758, 66 U.S.L.W. 3336 (U.S. Nov. 10, 1997).

96 II.

97 A.

98 Our initial opinion, 110 F.3d at 1103, involved an

99 interpretation of the Antiterrorism and Effective Death Penalty Act

100 (“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996),3

101 that has since been rejected by the Supreme Court. In Lindh, the

102 Court rejected the argument that the procedural rules established

103 in chapter 153 of the AEDPA, 28 U.S.C.A. § 2254(d) (1997), could be

104 applied to cases initiated before the AEDPA's effective date. See

105 Lindh, 521 U.S. at ___, 117 S. Ct. at 2068.

106 In our initial opinion, we held that the AEDPA’s procedural

107 provisions could be applied to Carter’s habeas petition despite the

108 fact that his case was initiated before the effective date.

109 Carter, 110 F.3d at 1103. On the basis of this holding, we applied

110 a highly deferential standard of review to the state and district

111 habeas courts’ conclusions regarding questions of law and mixed

112 questions of law and fact. We assume that the Supreme Court

3
The AEDPA significantly altered the landscape of federal habeas corpus
jurisprudence. First, it imposed a jurisdictional prerequisite on appeal from a
final order in a federal habeas proceeding, prohibiting the appeal unless a circuit
justice or judge issues a “certificate of appealability” (“COA”). See AEDPA § 102
(codified at 28 U.S.C. § 2253(c)(1)). Second, the AEDPA amended the procedures
governing collateral review of state convictions in federal court. See AEDPA §§
101-106 (codified at 28 U.S.C. §§ 2241-2255). And finally, the AEDPA provides for
expedited procedures governing federal habeas petitions in capital cases. See AEDPA
§ 107 (codified at 28 U.S.C. §§ 2261-2266).

5
113 remanded so that we may apply the correct standard of review to

114 Carter’s appeal.

115 B.

116 Before reaching the merits, we must decide whether we have

117 jurisdiction to entertain the appeal. Although neither party has

118 challenged our jurisdiction, we are obliged to raise the issue sua

119 sponte.4

120 The AEDPA became effective April 24, 1996, five days after

121 Carter's CPC was issued. Under similar circumstances, we recently

122 held that the AEDPA's requirement of a COA does not apply to habeas

123 applicants who obtained CPC's prior to the statute's effective

124 date. See Brown v. Cain, 104 F.3d 744, 749 (5th Cir. 1997).

125 Accordingly, we have jurisdiction.

126 III.

127 A.

128 When we initially decided this case, we followed Drinkard v.

129 Johnson, 97 F.3d 751, 764-66 (5th Cir. 1996), cert. denied,

130 117 S. Ct. 1114 (1997), and held that the amended standards of

131 review established in § 104(3)of the AEDPA (codified at 28 U.S.C.

132 § 2254(d) (1997)) are procedural in nature and therefore apply

133 immediately to all habeas petitions pending on the effective date

4
See, e.g., United States v. Brewer, 60 F.3d 1142, 1143 (5th Cir. 1995);
Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789, 791 (5th Cir. 1993).

6
134 of the AEDPA. See Carter, 110 F.3d at 1103. Under Lindh,

135 however, this was error, and § 104(3) of the AEDPA does not apply

136 to this case. Accordingly, we must take a fresh look at Carter’s

137 appeal, applying traditional standards of review to the district

138 court’s conclusions of law and applications of law to fact.5

139

140 IV.

141 Carter alleges that the state introduced the fraudulent

142 testimony of an “imposter witness” at trial, thereby incriminating

143 him and undermining the integrity of the verdict. To succeed on

144 such a claim, Carter must establish three elements: first, that

145 false testimony was presented at trial; second, that the

146 prosecution had actual knowledge that the testimony was false; and

147 third, that the testimony was material. May v. Collins, 955 F.2d

148 299, 315 (5th Cir. 1992). Carter cannot satisfy this standard.

149 A.

150 The sole evidence Carter offers to establish the first element

151 is the affidavit of David Josza. Josza, who was identified as an

152 eyewitness during the murder investigation, avers that he did not

153 testify at Carter's trial. Nevertheless, the trial transcript

154 indicates that an individual identified as “David Josa” testified

5
Lindh holds that while Congress did not intend immediate application of
chapter 153 of the AEDPA, it did intend immediate application of chapter 154, which
provides for expedited procedures in qualifying states. See Lindh, 521 U.S. at ___,
117 S. Ct. at 2063. We have previously determined, however, that the State of Texas
has not yet qualified for the expedited procedures governing habeas corpus petitions
in capital cases. See Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated
in part on other grounds, 105 F.3d 209 (5th Cir. 1997). Accordingly, we did not
apply those procedures when we initially heard this case, and will not do so now.

7
155 for the prosecution, offering substantially the same testimony as

156 the statement given by Josza during the investigation. Therefore,

157 Carter concludes that the witness who testified at trial must have

158 been an imposter. Even if we assume, arguendo, that the testimony

159 was fraudulent, the introduction of fraudulent testimony is

160 insufficient by itself to entitle Carter to habeas relief.6

161 B.

162 The Fourteenth Amendment is implicated by the introduction of

163 fraudulent or perjured testimony only if the prosecution has actual
7
164 knowledge of the perjury. We have consistently stated that this

165 requirement imposes a strict burden of proof on a federal habeas

166 petitioner. See, e.g., May, 955 F.2d at 315; Koch v. Puckett,

167 907 F.2d 524, 531 (5th Cir. 1990). Carter cannot satisfy this

168 burden.

169 Carter relies exclusively on circumstance and inference,

170 arguing that an “imposter witness” could not possibly testify at

171 trial without the substantial complicity of the prosecution. To

172 rebut this inference, the state introduced the affidavit of then-

173 prosecutor Brian Rains, which the state court found to be credible,

6
Concluding that it was impossible to verify the identity of the
challenged witness ten years after the fact, neither the state habeas court nor
the federal district court found that David Josza did actually testify at trial.
Because we hold that Carter failed to establish either knowledge or prejudice,
however, we need not determine whether the contested testimony indeed was
fraudulent.
7
See, e.g., United States v. Agurs, 427 U.S. 97, 103 (1976); Napue v.
Illinois, 360 U.S. 264, 269 (1959); accord Spence v. Johnson, 80 F.3d 989, 996 (5th
Cir.), cert. denied, 117 S. Ct. 519, and cert. denied, 117 S. Ct. 519 (1996).

8
174 averring that he would not knowingly or intentionally present an

175 imposter witness at trial. After weighing this competing evidence,

176 the state court concluded there was no evidence that the state had

177 knowingly or intentionally presented an “imposter witness” at

178 trial.

179 These factual findings are entitled to a presumption of

180 correctness.8 The state court reasonably determined that Carter

181 had not satisfied his burden to prove that the prosecution

182 knowingly or intentionally presented perjured testimony at trial.

183 We have no reason to doubt either the fairness of the state court’s

184 procedure or the correctness of its result.

185 C.

186 Both the state habeas court and the federal district court

187 dismissed the perjury claim on the ground that the alleged perjury

188 was not material to the outcome of the trial. For the perjury to

189 be material, Carter must show that “there was any reasonable

190 likelihood that the false testimony could have affected the

191 judgment of the jury.”9 Under the circumstances of this case,

192 Carter cannot make such a showing.

193 Given that the star witness for the prosecution was Carter,

194 whose confession was introduced into evidence, there is no

8
See 28 U.S.C. § 2254(d) (1988) (stating the presumption of correctness that
was in effect before enactment of the AEDPA); Buxton v. Lynaugh, 879 F.2d 140, 144
(holding that findings made on the basis of affidavits are entitled to presumption
of correctness).
9
Agurs, 427 U.S. at 103; accord Spence, 80 F.3d at 997; see also Kyles v.
Whitley, 514 U.S. 419, 433 n.7 (1995) (approving Agurs's materiality test).

9
195 reasonable likelihood that Josa's allegedly false testimony

196 affected the verdict. The prosecution did not rely on Josa's

197 testimony to establish the essential elements of the offense, but

198 merely to corroborate the confession. Moreover, the contested

199 evidence was cumulative of other evidence, particularly Mallard's

200 testimony.

201 Carter has failed to establish that the prosecution knowingly

202 and intentionally presented material false evidence. Accordingly,

203 we find no error in the state court's determination on this issue.

204 V.

205 Carter contends that the district court erred by failing to

206 conduct a nunc pro tunc evidentiary hearing to determine his

207 competency to stand trial. We disagree.

208 A.

209 The trial and conviction of a defendant while he is mentally

210 incompetent constitute a denial of due process. See Cooper v.

211 Oklahoma, 517 U.S. 348, ___, 116 S. Ct. 1373, 1376 (1996). The

212 constitutional standard for competency to stand trial is whether

213 the defendant “has sufficient present ability to consult with his

214 lawyer with a reasonable degree of rational understandingSSand

215 whether he has a rational as well as a factual understanding of the

216 proceedings against him.” Dusky v. United States, 362 U.S. 402,

217 402 (1960); accord Godinez v. Moran, 509 U.S. 389, 396 (1993).

218 Carter claims that he adduced sufficient evidence in the state

10
219 courts to warrant a federal nunc pro tunc evidentiary hearing on

220 the question of whether he was incompetent in fact.10

221 A habeas petitioner is entitled to a nunc pro tunc evidentiary

222 hearing for the purpose of proving that he was incompetent at the

223 time of trial only “when he makes a showing by clear and convincing

224 evidence to raise threshold doubt about his competency.” Lokos v.

225 Capps, 625 F.2d 1258, 1261 (5th Cir. 1980). In order for him to

10
The issue of competency may arise in two distinct contexts. See United
States v. Williams, 819 F.2d 605, 607-09 (5th Cir. 1987); Lokos v. Capps,
625 F.2d 1258, 1261-62 (5th Cir. 1980). We must distinguish between them for
purposes of the present case.
First, a habeas petitioner may allege that state procedures were inadequate
to ensure that he was competent to stand trial. A trial court must conduct an
inquiry into the defendant’s mental capacity sua sponte if the evidence raises
a bona fide doubt as to competency. Pate v. Robinson, 383 U.S. 375 (1966). If
the trial court receives evidence, viewed objectively, that should raise a
reasonable doubt as to competency, yet fails to make further inquiry, this
constitutes a denial of a fair trial. See Lokos, 625 F.2d at 1261.

If a Pate violation is established, the federal habeas court must consider
whether a meaningful hearing can be held nunc pro tunc to determine
retrospectively the petitioner’s competency as of the time of trial. Id. at
1262. If so, the petitioner bears the burden of proving his incompetence by a
preponderance of the evidence; if not, the habeas writ must issue, subject to
retrial at the state's discretion. Id. This Pate procedural guarantee is not
before us, having been expressly abandoned by Carter on appeal.
Second, a habeas petitioner may collaterally attack his state conviction
by directly alleging incompetence at the time of trial, thereby claiming a
violation of the substantive right not to be tried and convicted while
incompetent, rather than of the procedural guarantee of a competency hearing in
the event that a bona fide doubt arises at trial as to competency:
It is always open for the defendant to later assert his actual
incompetence at trial in a subsequent collateral proceeding, but the
substantive claim should not be confused with a defendant’s
procedural rights under Pate to a hearing whenever a bona fide doubt
as to competence surfaces at trial.
Reese v. Wainwright, 600 F.2d 1085, 1093 (5th Cir.1979).
Although Carter originally claimed both (1) that the state trial court
violated his due process rights by failing to conduct an evidentiary hearing on
his competency to stand trial sua sponte and (2) that the federal district court
should conduct a nunc pro tunc evidentiary hearing to determine his competency
at the time of trial, he has abandoned the former claim on appeal. Therefore,
the issue before us is restricted to the question whether the district court
erred by failing to conduct a nunc pro tunc evidentiary hearing on the question
of competency at the time of trial.

11
226 raise such doubt, he must present facts sufficient “to positively,

227 unequivocally and clearly generate a real, substantial and

228 legitimate doubt” concerning his mental capacity.11 “When federal

229 habeas is sought on the ground that the defendant was in fact

230 incompetent at the time of trial, the petitioner’s initial burden

231 is substantial.” Enriquez v. Procunier, 752 F.2d 111, 114 (5th

232 Cir. 1984).

233 Both the state habeas court and the federal district court

234 concluded that a nunc pro tunc evidentiary hearing was not required

235 to decide whether Carter was incompetent at trial. Indeed, the

236 state habeas court expressly concluded that Carter was competent:

237 “The Court finds that the applicant’s testimony during the

238 punishment stage of the trial shows a factual, as well as rational

239 understanding of the proceedings against him.” Moreover, the state

240 habeas court entered the following conclusion: “The applicant

241 fails to show that he was legally incompetent to stand trial, i.e.,

242 that he was unable to consult with counsel with a reasonable degree

243 of rational understanding or that he lacked a factual, as well as

244 rational, understanding of the proceedings against him.” These

245 findings are more than adequate to justify the district court's

246 conclusion that “the state court found that there was no evidence

11
United States v. Williams, 819 F.2d 605, 609 (5th Cir. 1987); Bruce v.
Estelle, 483 F.2d 1031, 1043 (5th Cir. 1973), subsequent opinion, 536 F.2d 1051,
1058-59 (5th Cir. 1976). This threshold burden of proof is “extremely heavy.”
Johnson v. Estelle, 704 F.2d 232, 238 (5th Cir. 1983); accord Williams, 819 F.2d at
609.

12
247 that Petitioner was actually incompetent to stand trial.”12

248 Under 28 U.S.C. § 2254(d), the findings are entitled to a

249 presumption of correctness. The petitioner must rebut this

250 presumption by clear and convincing evidence, and a federal court

251 may not issue a writ unless the petitioner can demonstrate by such

252 evidence that the state decision was based on an incorrect

253 determination of the facts. Furthermore, the factual determination

254 of the state habeas court, finding that Carter failed to establish

255 he was legally incompetent to stand trial, must be afforded the

256 presumption of correctness.13

12
Carter claims that the state habeas court entered findings of fact and
conclusions of law exclusively on the procedural Pate claim, not the substantive
incompetency claim, thereby forfeiting the presumption of correctness afforded
state court factual findings under 28 U.S.C. § 2254(d) (1988) for the latter
claim. Although the findings of fact are not exhaustive, it is significant that
the findings entered by the state habeas court are not limited to the narrow
question of whether a bona fide doubt existed at trial concerning Carter's
competency, but also support the conclusion that he was “competent in fact” at
the time of trial.
13
See Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam) (assuming that
competency is a factual determination entitled to the presumption of correctness);
see also Miller v. Fenton, 474 U.S. 104, 113 (1985) (citing Maggio for the
proposition that competency is a question of fact entitled to the presumption of
correctness); Flugence v. Butler, 848 F.2d 77, 79 (5th Cir. 1988) (same); Williams,
819 F.2d at 607-08 (same). The mere fact that the state court dismissed the
habeas petition on the basis of affidavits, without granting an evidentiary
hearing, does not disturb the presumption of correctness under § 2254(d). We
have consistently recognized that, to be entitled to the presumption of
correctness, a state court need not hold an evidentiary hearing; to the contrary,
findings of fact based exclusively on affidavits are generally sufficient to
warrant the presumption. See May v. Collins, 955 F.2d 299, 309-15 (5th Cir.
1992); see also Sawyer v. Collins, 986 F.2d 1493, 1504-05 (5th Cir. 1993)
(affording presumption of correctness to factual findings rendered solely on the
basis of affidavits); Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990)
(same); Buxton v. Lynaugh, 879 F.2d 140, 143-47 (5th Cir. 1989) (same).
Furthermore, although our prior decisions have characteristically involved
cases in which the state habeas judge was the same judge who presided at trial,
see, e.g., May, 955 F.2d at 314; Buxton, 879 F.2d at 146, we have never held that
this is a prerequisite to according the presumption of correctness to factual
findings based solely on affidavits. To the contrary, we have recognized that
“it is necessary to examine in each case whether a paper hearing is appropriate
to the resolution of the factual disputes underlying the petitioner’s claim.”
May, 955 F.2d at 312. In the instant case, we are satisfied that the facts were
(continued...)

13
257 B.

258 Given the combined weight of the presumption of correctness

259 and the high burden of proof necessary to justify a nunc pro tunc

260 evidentiary hearing on the question of competency, Carter has

261 failed to demonstrate that the state habeas court erred in denying

262 his allegation of incompetency. Carter relies primarily on the

263 affidavit of Dr. Dorothy Lewis, his board-certified psychiatrist,

264 who concluded that a history of head injuries, mental retardation,

265 and brain damage impaired his ability to make mature judgments,

266 appreciate the consequences of his behavior, and reflect in advance

267 on the appropriateness of his actions. The fact that neither the

268 state habeas court nor the district court discussed this expert

269 opinion does not overcome the presumption of correctness.

270 First, Lewis did not offer her opinion that Carter was unable

271 to consult with his lawyers with a reasonable degree of rational

272 understanding or was unable to command a rational or factual

273 understanding of the proceedings against himSSthe minimum standard

274 for a finding that he was incompetent. Therefore, it was not

275 unreasonable for the state habeas court to find this expert

276 testimony unpersuasive.

277 Furthermore, the state habeas court is entitled to find a

278 defendant competent, despite the introduction of psychiatric

279 testimony diagnosing him as incompetent, without ordering an

280 evidentiary hearing. See, e.g., Maggio, 462 U.S. at 113-18.

(...continued)
adequately developed in the record and the affidavits, and the state habeas court
was entitled to render a factual determination based solely on the affidavits.

14
281 Therefore, we previously have found similar expert psychiatric

282 testimony insufficient to satisfy the petitioner’s extremely heavy

283 burden of proving a “real, substantial and legitimate doubt”

284 concerning his competency, as required to warrant a nunc pro tunc

285 evidentiary hearing. See, e.g., Williams, 819 F.2d at 607-09.

286 Hence, the Lewis affidavit is not sufficient, without more, to

287 establish the requisite “clear and convincing evidence” necessary

288 to overcome the presumption of correctness, nor does it demonstrate

289 the “real, substantial and legitimate doubt” necessary to warrant

290 a nunc pro tunc evidentiary hearing on the question of competency.

291 To the contrary, the state habeas court expressly found that

292 Carter's testimony established that he possessed a rational and

293 factual understanding of the proceedings against him. Such a

294 conclusion by a state court, based upon a defendant’s testimony, is

295 entitled to a presumption of correctness. See Holmes v. King,

296 709 F.2d 965, 968 (5th Cir. 1983).

297 Finally, Carter corroborates his claim of incompetency with

298 evidence of physical abuse and neglect and with anecdotal comments

299 made by the prosecutor and defense counsel at trial. Nevertheless,

300 the state habeas court found credible and persuasive the affidavits

301 offered by Carter’s court-appointed trial counsel, who stated that

302 they believed he was competent to stand trial and did not think his

303 prior head injuries had impaired his mental competency during the

304 trial. These factual findings are entitled to the presumption of

305 correctness, and the anecdotal evidence is insufficient to overcome

306 this presumption by clear and convincing evidence.

15
307 VI.

308 Carter did not contest the voluntariness of his confession,

309 and it thus was admitted into evidence without objection.

310 Nevertheless, he now collaterally attacks the admissibility of the

311 confession on the ground that it was involuntary. His claim is

312 meritless.

313 A.

314 A federal court entertaining a collateral challenge to the

315 voluntariness of a confession is obliged to afford a presumption of

316 correctness to state court findings of fact if fairly supported in

317 the record but is authorized to exercise de novo review over the

318 ultimate conclusion of whether, under the totality of the

319 circumstances, the confession was “voluntary.”14

320

321 B.

322 Pursuant to Jackson v. Denno, 378 U.S. 368 (1964), the trial

323 court conducted a hearing on the voluntariness of the confession

324 and entered factual findings, concluding that the confession was

325 freely and voluntarily made. Therefore, we must presume correct

326 the factual determination that the police offered Carter no

327 improper inducements to obtain his confession, nor did they

328 threaten him in order to coerce it. The determination of whether

329 officers engaged in coercive tactics to elicit a confession is a

14
Thompson v. Keohane, 116 S. Ct. 457, 465 (1995); Miller v. Fenton, 474 U.S.
104, 110-18 (1985); accord West v. Johnson, 92 F.3d 1385, 1402-03 (5th Cir. 1996),
cert. denied, 117 S. Ct. 1847 (1997).

16
330 question of fact, and the state court’s factual findings are

331 entitled to deference if supported in the record.15

332 Likewise, the state habeas court entered extensive factual

333 findings concerning the voluntariness of the confession, finding,

334 inter alia, that Carter was timely advised of his Miranda rights;

335 that he understood his rights, yet declined to request the presence

336 of either an attorney or a family member while in custody; that he

337 was offered no inducements to confess and suffered no threats or

338 coercion to extract a confession while in custody; that he was

339 mentally competent and cooperative at the time he made his

340 confession; and that he acknowledged that his statement was made

341 voluntarily. These factual findings are entitled to the

342 presumption of correctness under 28 U.S.C. 2254(d) (1988). To

343 overcome the presumption, Carter must rebut these factual findings

344 by clear and convincing evidence. Id. This he cannot do.

345 In his federal habeas petition, Carter sought to overcome the

346 factual findings by raising charges of coercion, intimidation, and

347 mental retardation. The district court found, however, that his

348 allegations of coercion and duress were conclusional and

349 unsupported by the evidence adduced at trial or presented by

350 affidavit, and likewise found that the allegation of mental

351 retardation was without merit. This factual determination is

352 adequately supported by the record. Therefore, we must accept as

15
Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir. 1993); Self v. Collins,
973 F.2d 1198, 1204 (5th Cir. 1992); see also Miller, 474 U.S. at 112 (noting that
subsidiary questions such as whether the police engaged in coercive tactics are
afforded the presumption of correctness); Hawkins v. Lynaugh, 844 F.2d 1132, 1137
(5th Cir. 1988) (same).

17
353 conclusive the state court factual determination that the

354 challenged confession was given voluntarily, not as a product of

355 coercion or intimidation.

356 C.

357 Accepting these subsidiary facts as true, we must reach the

358 ultimate question whether Carter's challenged confession was

359 voluntary or constitutionally infirm. The state trial and habeas

360 courts concluded that it was voluntary. Applying pre-AEDPA law,

361 the ultimate question whether a confession is voluntary is a

362 question of law, to be reviewed de novo. See United States v.

363 Scurlock, 52 F.3d 531, 536 (5th Cir. 1995).

364 Coercive police conduct is a necessary prerequisite to the

365 conclusion that a confession was involuntary, and the defendant

366 must establish a causal link between the coercive conduct and the

367 confession. See Colorado v. Connelly, 479 U.S. 157, 163-67 (1986).

368 Although mental condition may be a significant factor in the

369 voluntariness calculus, “this fact does not justify a conclusion

370 that a defendant’s mental condition, by itself and apart from its

371 relation to official coercion, should ever dispose of the inquiry

372 into constitutional 'voluntariness.'” Id. at 164.16 Consequently,

373 in the absence of any evidence of official coercion, Carter has

16
Consequently, Carter’s allegations concerning his state of mind at the
time of the confession are unavailing, for “while mental condition is surely
relevant to an individual’s susceptibility to police coercion, mere examination
of the confessant’s state of mind can never conclude the due process inquiry.”
Connelly, 479 U.S. at 165; see also Raymer, 876 F.2d at 386-87 (noting that
mental condition does not render a confession involuntary in the absence of state
coercion).

18
374 failed to establish that his confession was involuntary. See

375 United States v. Raymer, 876 F.2d 383, 386 (5th Cir. 1989).

376 VII.

377 Carter raises a litany of ineffective-assistance-of-counsel

378 claims, urging that his court-appointed trial counsel were

379 constitutionally defective at both the guilt and punishment stages

380 of the trial. Carter is unable, however, to overcome the rigorous

381 burden of proof required to demonstrate ineffective assistance.

382 A.

383 A habeas petitioner alleging ineffective assistance must

384 demonstrate both constitutionally deficient performance by counsel

385 and actual prejudice as a result of such ineffective assistance.

386 See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also

387 Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing

388 the Washington standard of review). Failure to prove either

389 deficient performance or actual prejudice is fatal to an

390 ineffective assistance claim. Washington, 466 U.S. at 687.

391 To establish deficient performance, the petitioner must prove

392 that the performance of counsel fell below an objective standard of

393 reasonableness. Id. at 688. Therefore, courts may not fall prey

394 to “the distorting effect of hindsight” but must be “highly

395 deferential” to counsel's performance. Id. at 689-90. Hence,

396 there is a strong presumption that the performance “falls within

397 the wide range of reasonable professional assistance.” Id. at 689.

19
398 Carter has the burden to overcome this presumption.

399 Moreover, even if counsel's performance was deficient, Carter

400 must affirmatively demonstrate actual prejudice. To do so, he must

401 establish that the attorneys' errors were so deficient as to render

402 the verdict fundamentally unfair or unreliable. See Lockhart v.

403 Fretwell, 506 U.S. 364, 369 (1993); Washington, 466 U.S. at 687.

404 In evaluating claims of ineffective assistance during the guilt

405 stage of the trial, the petitioner must show a “reasonable

406 probability” that the jury would have otherwise harbored a

407 reasonable doubt concerning guilt. Regarding the sentencing phase,

408 the petitioner must establish a “reasonable probability” that the

409 jury would not have imposed the death sentence in the absence of

410 errors by counsel. Id. at 695. “A reasonable probability is a

411 probability sufficient to undermine confidence in the outcome.”

412 Id. at 694.

413 For purposes of federal habeas review, state court findings of

414 fact made in the course of deciding an ineffectiveness claim are

415 entitled to a presumption of correctness. See 28 U.S.C. § 2254(d)

416 (1988); see also Washington, 466 U.S. at 698 (noting that findings

417 of fact are afforded deference); Motley, 18 F.3d at 1226 (same).

418 Unless Carter rebuts them by clear and convincing evidence,

419 therefore, we are required to accept, as conclusive, both the

420 factual findings and the credibility choices of the state courts.

421 See Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990).

422 The ultimate determination whether counsel was

423 constitutionally ineffective is a mixed question of law and fact

20
424 that federal habeas courts have traditionally reviewed de novo.

425 See, e.g., Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir. 1996);

426 United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). Given

427 the holding in Lindh, we must apply this traditional de novo

428 standard to Carter’s appeal.

429 B.

430 1.

431 Carter avers that his trial counsel were ineffective because

432 they failed to challenge his competency to stand trial. The state

433 habeas court, however, accorded credibility to counsel's

434 affidavits, averring that they had no reason to believe that Carter

435 was mentally incompetent at the time of trial. Furthermore, the

436 state habeas court found there was insufficient evidence to

437 conclude that Carter was mentally incompetent.

438 These findings of fact and credibility determinations are

439 entitled to a presumption of correctness, and Carter has not

440 introduced the requisite clear and convincing evidence to prove

441 that they are erroneous. Therefore, because the factual

442 determination that Carter was competent to stand trial is

443 conclusive and binding on us, it necessarily follows that his trial

444 counsel were not constitutionally ineffective in their failure to

445 contest the competency of the defendant to stand trial. “There can

446 be no deficiency in failing to request a competency hearing where

447 there is no evidence of incompetency.” McCoy v. Lynaugh, 874 F.2d

448 954, 964 (5th Cir. 1989).

21
449 2.

450 Carter alleges that his counsel might have exposed the alleged

451 “imposter witness” if they had interviewed David Josza prior to

452 trial. Carter did not raise this argument explicitly in the

453 district court, but argues that it is subsumed within his argument

454 that counsel were ineffective in failing to interview government

455 witnesses and adequately to prepare for trial. This vague

456 allegation was not sufficient to place the district court on notice

457 of the claim that Carter now urges, however, and thus the claim is

458 deemed abandoned.17

459 Furthermore, Carter’s argument that his trial counsel “might”

460 have exposed the alleged “imposter witness” is pure speculation,

461 insufficient to overcome the strong presumption of competency and

462 the high burden of actual prejudice required to prove ineffective

463 assistance of counsel. Indeed, given that the contested testimony

464 was merely cumulative and immaterial to the outcome of the trial,18

465 we cannot conclude that there is a reasonable probability that the

466 jury would have harbored a reasonable doubt about guilt, even if

467 the alleged “imposter witness” had been “exposed” by trial counsel.

468 The voluntary confession precluded any such reasonable doubt, so

469 Carter is entitled to no relief on this claim.

470 3.

17
See Nichols v. Scott, 69 F.3d 1255, 1285 (5th Cir. 1995), cert. denied, 116
S. Ct. 2559 (1996); United States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990).
18
See supra part IV.

22
471 Carter alleges that his trial counsel were ineffective in

472 failing to challenge the admissibility of his confession. But, as

473 we noted previously, the state habeas court accorded credibility to

474 counsel's affidavits, finding that the attorneys were justified in

475 their conclusion that the confession had been given voluntarily and

476 that there were no grounds to object to admissibility. Moreover,

477 both the state trial court and the state habeas court found that

478 the confession was voluntary.

479 The presumption of correctness attaches to these factual

480 findings and credibility determinations, and Carter cannot overcome

481 it. At a minimum, we cannot conclude that the performance of

482 counsel was “objectively unreasonable.” See Washington, 466 U.S.

483 at 688. Therefore, counsel did not render ineffective assistance

484 of counsel by failing to object, when objection would have been

485 futile.

486 4.

487 Carter claims that his trial counsel were defective in their

488 presentation of the “accidental death” defense, whereby they argued

489 that Carter had not actually intended to kill Reyes but had

490 accidentally discharged the weapon during a brief struggle at the

491 cash register. Carter contends that his counsel denigrated the

492 “accidental death” defense during their closing arguments.

493 Furthermore, he argues that his counsel were deficient for failing

494 to propose a jury instruction on the question of accident. These

495 allegations were not adequately presented to the district court,

23
496 however, and they are deemed waived. See Nichols, 69 F.3d at 1285;

497 Smith, 915 F.2d at 964.

498 5.

499 Carter claims that his defense counsel were deficient in

500 failing adequately to investigate the facts of the case and

501 Carter's background; he claims that such an investigation would

502 have produced numerous character witnesses who would have testified

503 during the punishment stage of the trial, as well as expert

504 testimony concerning his mental incapacity. Therefore, Carter

505 contends, the deficient performance of counsel deprived him of

506 mitigating evidence that would have significantly influenced the

507 jury’s decision whether to impose the death penalty. The state

508 habeas court found, however, that the testimony of such character

509 witnesses would have been cumulative and would not have been

510 sufficient to change the verdict. We have no reason to question

511 this conclusion.

512 Given Carter's confession to the crime of murder, we can

513 hardly conclude that the testimony of character witnesses to his

514 reputation as a “good and peaceful person” would have sufficiently

515 impressed the jury to avoid the sentence of death. Consequently,

516 the conclusion of the state habeas court that Carter failed to

517 demonstrate prejudice resulting from the absence of such character

518 witnesses was not error.

519 As to the allegation that defense counsel were deficient in

520 their failure adequately to investigate mental capacity and to

24
521 secure expert witnesses who would offer mitigating evidence at the

522 punishment stage, that claim is foreclosed by the factual

523 conclusion that defense counsel were justified in believing that

524 Carter was mentally competent at the time of trial.19 Furthermore,

525 the state habeas court found that there was insufficient evidence

526 to warrant the conclusion that Carter was incompetent in fact at

527 the time of trial, necessarily foreclosing any claim of ineffective

528 assistance predicated on the failure to investigate such alleged

529 incompetency. See Motley, 874 F.2d at 964.

530 The duty of trial counsel to investigate is tempered by the

531 information provided to counsel by the defendant. When, as here,

532 the defendant has given counsel reason to believe that certain

533 investigations would be fruitless or harmful, the failure to pursue

534 such investigations may not later be challenged as unreasonable.

535 “In any ineffectiveness case, a particular decision not to

536 investigate must be directly assessed for reasonableness in all the

537 circumstances, applying a heavy measure of deference to counsel’s

538 judgments.” Washington, 466 U.S. at 190-91. Given that the state

539 courts have concluded that Carter was mentally competent at the

540 time of trial, it necessarily follows that the failure to

541 investigate his mental competency in preparation for trial, or to

542 elicit expert testimony concerning his mental state during the

543 punishment phase of trial, was not ineffective assistance.

19
See Byrne v. Butler, 845 F.2d 501, 513 (5th Cir. 1988); accord Barnard v.
Collins, 958 F.2d 634, 642 (5th Cir. 1992).

25
544 6.

545 Carter argues that his defense counsel were defective in

546 failing to object to the admissibility of his confession to the

547 murder of R.B. Scott, an extraneous offense that was introduced by

548 the prosecution during the punishment stage to justify the

549 imposition of the death penalty. Carter claims there was

550 insufficient evidence to corroborate this confession and insists

551 that it would have been excluded from the jury on a proper

552 objection. Carter concedes, however, that he did not raise this

553 issue in the district court. Therefore, it is deemed waived. See

554 Nichols, 69 F.3d at 1285; Smith, 915 F.2d at 964.20

555 7.

556 Carter claims that his trial counsel were deficient in failing

557 to instruct the jury that “deliberate” conduct requires proof of

558 something more than “intentional” conduct under Texas law.21 Carter

559 failed to raise this issue before the district court, however,

560 thereby abandoning it. See Nichols, 69 F.3d at 1285; Smith,

561 915 F.2d at 964.

20
Carter pleads for an exception to this rule, claiming that a miscarriage
of justice will result from our refusal to address his argument. This claim is
meritless, however, given the absence of any colorable reason to question his
factual guilt. The corroboration requirement serves the function of assuring
that confessions represent a truthful representation of the facts, thereby
confirming factual guilt. See Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim.
App. 1994). Carter has suggested no reason to question the truth of his
statement, nor does he deny his factual guilt of Scott's murder.
21
See, e.g., Motley v. State, 773 S.W.2d 283, 289 (Tex. Crim. App. 1989);
Heckert v. State, 612 S.W.2d 549, 552-53 (Tex. Crim. App. 1981); see also Earvin
v. Lynaugh, 860 F.2d 623, 627 (5th Cir. 1988) (“It is clear that something more
than intentional conduct must be found at the punishment phase of the trial on
the issue of 'deliberateness.'”).

26
562 8.

563 Carter charges that defense counsel demonstrated a personal

564 antipathy toward him during their closing arguments in the

565 punishment phase of the trial, thereby prejudicing the jury.22 The

566 state habeas court, however, summarized in great detail counsel's

567 closing arguments, noting that counsel pleaded for mercy and

568 compassion, summarized the arguments against the death penalty, and

569 urged the jury to sentence Carter to life imprisonment rather than

570 death. Therefore, defense counsel did not abdicate their role as

571 advocates, and the state habeas court concluded that their closing

572 arguments did not transgress the “objective standard of

573 reasonableness.” Washington, 466 U.S. at 688. Having reviewed the

574 record, we agree.

575 In considering whether counsel’s closing argument was

576 ineffective, we consider the closing statements in their entirety.

577 Teague v. Scott, 60 F.3d 1167, 1173 (5th Cir. 1995). Furthermore,

578 counsel may make strategic decisions to acknowledge the defendant's

579 culpability and may even concede that the jury would be justified

580 in imposing the death penalty, in order to establish credibility

581 with the jury.23 Although, at the penalty phase, Carter's attorneys

582 acknowledged his culpability and the need for punishment, they also

22
For example, defense counsel implied that Carter might have committed
other criminal acts, questioned whether he couldSSand shouldSSlive in society,
wondered aloud whether death was a greater punishment than life imprisonment, and
conceded that the jury could sentence him death with a clear conscience.
23
See Kirkpatrick v. Butler, 870 F.2d 276, 284-85 (5th Cir. 1989); see also
Washington, 466 U.S. at 689 (strong presumption that the strategic decisions of
counsel are not ineffective).

27
583 pleaded for mercy and urged the jury to sentence him to life

584 imprisonment rather than death. Consequently, the argument fell

585 within “the wide range of reasonable professional assistance,” id.

586 at 689, and did not constitute ineffective assistance.

587 VIII.

588 Carter argues that execution of his death sentence, more than

589 fourteen years after his conviction, would violate the Eighth

590 Amendment. We have previously held, however, that such a delay

591 does not offend the Constitution.24 Concluding that the district

592 court correctly refused to issue the writ of habeas corpus, we

593 AFFIRM the judgment and VACATE the stay of execution.

24
See Lackey v. Johnson, 83 F.3d 116, 117 (5th Cir.), cert. denied,
117 S. Ct. 276 (1996); White v. Johnson, 79 F.3d 432, 437-40 (5th Cir.), cert.
denied, 117 S. Ct. 275 (1996); Lackey v. Scott, 52 F.3d 98 (5th Cir.), cert.
dismissed, 514 U.S. 1093 (1995). Likewise, every other court to address the
question thus far has ruled against the petitioner. See, e.g., Stafford v. Ward,
59 F.3d 1025 (10th Cir.), cert. denied, 515 U.S. 1173 (1995); Turner v. Jabe,
58 F.3d 924 (4th Cir.), cert. denied, 515 S. Ct. 1017 (1995); McKenzie v. Day, 57
F.3d 1461 (9th Cir. 1995).

28