Boyd v. Johnson

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 97-10823
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CHARLES ANTHONY BOYD,

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

February 12, 1999

Before KING, Chief Judge, POLITZ, and EMILIO M. GARZA, Circuit
Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Charles Anthony Boyd was convicted of capital murder

and sentenced to death.1 He requests a Certificate of Probable
Cause (“CPC”) to appeal the district court's denial of his petition

for habeas corpus under 28 U.S.C. § 2254. He contends that the

district court erred because (1) counsel was ineffective for

failing to present mitigating evidence of his retardation to the

jury at sentencing; (2) the jury was prevented impermissibly from

1
For a fuller exposition of the facts of the case, see Boyd
v. State, 811 S.W.2d 105, 107-08 (Tex. Crim. App.)(en banc), cert.
denied, 502 U.S. 971, 112 S. Ct. 448, 116 L. Ed. 2d 466 (1991).
giving mitigating effect to evidence of his retardation and his

positive character traits; (3) the failure to instruct the jury on

the parole implications of a life sentence in a capital case

rendered the Texas sentencing scheme unconstitutional; and (4) the

admission of extraneous offenses at the sentencing phase violated

due process and the Eighth Amendment. We deny Boyd's request for

a CPC.

I

A Texas jury convicted Boyd of capital murder in 1987, and

sentenced him to death, answering affirmatively the special

sentencing issues.2 On direct appeal, the Texas Court of

Criminal Appeals affirmed his conviction. See Boyd v. State, 811

S.W.2d 105 (Tex. Crim. App.)(en banc), cert. denied, 502 U.S.

971, 112 S. Ct. 448, 116 L. Ed. 2d 466 (1991). Boyd filed a

state habeas corpus application, and the Texas Court of Criminal

Appeals denied relief.

Boyd then filed a federal habeas petition in district court

pursuant to 28 U.S.C. § 2254. The district court denied habeas

relief for all but two of Boyd's claims. The district court

2
At the time, Article 37.071 of the Texas Code of Criminal
Procedure provided that, after finding a defendant guilty, a jury
must decide (1) whether the conduct of the defendant that caused
the death of the deceased was committed deliberately and with the
reasonable expectation that death would occur; (2) whether there is
a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant
in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased. If the jury found the state
proved beyond a reasonable doubt that the answer to all three is
yes, then the death sentence was imposed. Otherwise, life
imprisonment resulted. See Tex. Code Crim. Pro. Ann. art. 37.071.

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ordered an evidentiary hearing concerning the claim that trial

counsel's failure to develop and to present evidence of Boyd's

mental retardation constituted ineffective assistance of counsel,

and the claim that the trial court erred in failing to give a

jury instruction under Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct.

2934, 106 L. Ed. 2d 256 (1989). The Magistrate Judge conducted

an evidentiary hearing, recommending that the district court deny

relief. The district court adopted the findings of the

Magistrate Judge and denied relief. Boyd filed a request for a

CPC, which the district court also denied.3 Boyd appeals this

denial. To obtain a CPC, Boyd must make a substantial showing

that he has been denied a federal right. See Barefoot v. Estelle,

463 U.S. 880, 893, 103 S. Ct. 3383, 3394, 77 L. Ed. 2d 1090

(1983).

II

Boyd argues he received ineffective assistance of counsel in

violation of the Sixth Amendment. He asserts that he received

ineffective assistance because his trial counsel failed to

discover and to present evidence of mental retardation, which

could have been used to challenge the voluntariness of his

confessions and could have been relevant to the jury in

3
Boyd filed his federal habeas petition on March 5, 1992, and
thus the 1996 amendments to the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) are inapplicable to this suit. See Lindh v.
Murphy, 521 U.S.320, )), 117 S. Ct. 2059, 2068, 138 L. Ed. 2d 481
(1997)(holding the AEDPA applicable to petitions filed after the
effective date of April 24, 1996). We construe his request for a
Certificate of Appealability (“COA”), filed on August 26, 1997, as
a request for a CPC. See Barber v. Johnson, 145 F.3d 234 (5th Cir.
1998), cert. denied, 1998 WL 635820 (U.S. Nov. 16, 1998).

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determining whether to impose the death penalty.

In order to prove ineffective assistance of counsel, Boyd

must show (1) deficient performance, meaning that the attorney's

representation “fell below an objective standard of

reasonableness,” and (2) that the deficient performance resulted

in actual prejudice. Strickland v. Washington, 466 U.S. 668,

688, 692, 104 S. Ct. 2052, 2064, 2067, 80 L. Ed. 2d 674 (1984).

As the Court stated in Strickland, “[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. at 689,

104 S. Ct. at 2065.

According to Boyd, his trial counsel performed deficiently

in failing to discover mitigating evidence of his mental

retardation. At trial, his attorneys introduced two prison

packets that were created during Boyd's prior incarceration. One

prison packet indicated Boyd has an I.Q. of 67, and the other

stated his I.Q. is 80. At the evidentiary hearing, Boyd

presented testimony from Dr. James Shadduck that an I.Q. below 70

indicates retardation, and that Boyd received an I.Q. score of 64

on a test administered by him. Shadduck testified he had reviewed

school records showing an I.Q. of 71. Shadduck concluded that

Boyd was retarded and that his retardation should have been

apparent to any observer. Dr. Alan Hopewell also testified that

he had examined Boyd and found him to be retarded. Other

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witnesses testified to Boyd's mental state, including family

members and attorneys who had worked with Boyd. Citing the I.Q.

tests introduced at trial, along with the post-trial I.Q. tests,

Boyd alleges that his counsel's failure to investigate his mental

capacity constituted ineffective assistance.

The district court found that the evidence of Boyd's

retardation is conflicting. The district court stated that the

credibility of Drs. Shadduck and Hopewell suffered on cross-

examination. The credibility of Boyd's mother and sister, who

testified to Boyd's retardation, was undermined by their earlier

contradictory testimony at the sentencing phase of the trial.

The district court did not credit the testimony of two of Boyd's

other witnesses who were either employees or associates of Boyd's

present counsel.

Other evidence cast doubt on the obviousness of Boyd's

retardation. Boyd's attorney Paul Brauchle testified that he did

not believe that Boyd was retarded, based on his observations of

Boyd and from information from Boyd's family. He stated that

Boyd assisted him in the jury selection process and that he was

unable to remember having had information that Boyd scored low on

an I.Q. test. The district court found Brauchle's testimony

credible. The district court additionally found the testimony of

Michael Byck, who also served as trial counsel, to be highly

credible. Byck testified he saw no “red flags” that would

indicate Boyd's retardation. Conversations with Boyd's family,

and the school records, did not suggest to Byck that Boyd was

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retarded. The district court concluded that the isolated I.Q.

score of 67 in the prison packet was not enough to compel the

attorneys to investigate, when the other evidence available at

trial contradicted a suggestion of retardation.

Under Strickland, we consider whether the failure of Boyd's

counsel to develop and to present the evidence of retardation

constituted deficient performance. Boyd's lowest I.Q. score of

64 is on the upper borderline of mental retardation. See Penry,

492 U.S. at 308 n.1, 109 S. Ct. at 2941 n.1. In other cases, we

have found that counsel did not perform deficiently in failing to

develop similar evidence of retardation. In Andrews v. Collins,

21 F.3d 612, 624 (5th Cir. 1994), the defendant presented an I.Q.

score of 68, which conflicted with testimony presented by the

state that Andrews's I.Q. was between 70 and 80. We found that

Andrews's counsel did not perform deficiently in failing to

present the evidence of his low intelligence. See also Smith v.

Black, 904 F.2d 950, 977 (5th Cir. 1990)(finding that counsel was

not deficient for failing to present mitigating evidence of I.Q.

of 70), vacated on other grounds, 503 U.S. 930, 112 S. Ct. 1463,

117 L. Ed. 2d 609, aff'd in relevant part, 970 F.2d 1383 (5th

Cir. 1992); cf. Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir.

1986)(finding counsel ineffective for failing to present evidence

of I.Q. score below 41).

The evidence of Boyd's retardation must be considered in

tandem with the impressions that he gave the attorneys. “The

reasonableness of counsel's actions may be determined or

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substantially influenced by the defendant's own statements or

actions. . . . In particular, what investigation decisions are

reasonable depends critically on such information.” Strickland,

466 U.S. at 691, 104 S. Ct. at 2066. Boyd's attorneys testified

that they did not believe Boyd was retarded, based on their

observations and interactions with him, and the district court

found this testimony to be credible. The attorneys decided not

to investigate Boyd's mental state because they did not believe

retardation was an issue. In light of both Boyd's own actions

and the conflicting evidence of retardation, the failure of

Boyd's counsel to present evidence of Boyd's borderline

retardation cannot be considered to have fallen “below an

objective standard of reasonableness.” Strickland, 466 U.S. at

688, 104 S. Ct. at 2064.

Even had counsel been aware of Boyd's retardation, it was

not ineffective assistance to abstain from further investigation.

The Court determined in Penry that mitigating evidence of mental

retardation has relevance to moral culpability beyond the special

issues. See Penry, 492 U.S. at 322, 109 S. Ct. at 2948. Prior

to Penry, however, evidence of mental retardation had a greater

potential for negatively impacting the defense, because the jury

might use such evidence to support a “yes” answer to the second

special issue, the defendant's future dangerousness. See Lackey

v. Scott, 28 F.3d 486, 499 (5th Cir. 1994), vacated on other

grounds, 52 F.3d 98, 99 (5th Cir. 1995). In cases tried before

Penry, it was not ineffective assistance to fail to seek or to

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develop evidence regarding a defendant's mental retardation. See

Washington v. Johnson, 90 F.3d 945, 953 (5th Cir. 1996)(“This

case was tried before the Supreme Court's Penry decision, and we

have not previously held counsel incompetent for failing to

anticipate Penry.”), cert. denied, )) U.S. )), 117 S. Ct. 1259,

137 L. Ed. 2d 338 (1997). Because the evidence of retardation

may have influenced the jury negatively, Boyd's counsel did not

perform deficiently in failing to investigate the issue further.

The potential negative impact of the retardation evidence, in

addition to the cold-blooded nature of the murder and Boyd’s

other violent conduct, persuades us that the outcome of the

sentencing would not have been different if counsel would have

investigated further. See Andrews, 21 F.3d at 624 (concluding

that the failure to introduce mitigating evidence, which included

evidence of mental retardation, did not prejudice defendant

because of the cold-blooded nature of the crime); King v.

Puckett, 1 F.3d 280, 285 (5th Cir. 1993) (concluding “that the

failure to offer mitigating evidence in the form of King’s

diminished mental capacity” did not affect “the outcome of his

sentencing.”); Glass v. Blackburn, 791 F.2d 1165, 1170-71 (5th

Cir. 1986)(finding no prejudice from counsel’s failure to

introduce mitigating evidence because the murder was calculated

and cold-blooded). Boyd's claim of ineffective assistance is

meritless because the failure to develop the evidence of Boyd's

retardation was not deficient performance, nor was it prejudicial

to the defense.

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 Additionally, Boyd contends that counsel rendered

ineffective assistance because, apart from the sentencing phase,

evidence of mental retardation could have been used to challenge

the voluntariness of his confession. The trial judge admitted

Boyd's confession after a hearing to determine the voluntariness

of his confession. Boyd has not shown that the conflicting

evidence of borderline retardation would have had any impact on

the resolution of this issue. We conclude therefore that Boyd's

counsel did not prejudice him by failing to develop retardation

evidence to challenge his confession. Boyd has not substantially

shown the denial of his right to effective assistance of counsel.

III

According to Boyd, the Texas capital sentencing scheme in

effect at the time of his sentencing, Art. 37.071 of the Texas

Code of Criminal Procedure, impermissibly limited the jury's

ability to give effect to mitigating evidence that he presented

at trial. The Supreme Court held in Penry that if a jury cannot

give effect to mitigating evidence about a defendant's

background, character, or other circumstances that reflect a

reduced moral culpability, then the trial court must provide

instructions that allow the jury to consider such evidence. See

Penry, 492 U.S. at 319-28, 109 S. Ct. at 2947-52. The Court

found in Penry that the special issues failed to give the jurors

a vehicle to consider evidence of Penry's childhood abuse and

severe mental retardation that left him unable to learn from his

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mistakes. See id. Boyd contends that the special issues did not

permit the jurors to consider evidence of his mental retardation

or of his positive character traits.

In considering a Penry claim, we determine (1) whether the

evidence was constitutionally relevant mitigating evidence, and

if so, (2) whether the evidence was beyond the effective reach of

the jurors. See Davis v. Scott, 51 F.3d 457, 460 (5th Cir.

1995). Relevant mitigating evidence, which is evidence that one

is less culpable for his crime, must show “(1) a 'uniquely severe

permanent handicap[] with which the defendant was burdened

through no fault of his own,' and (2) that the criminal act was

attributable to this severe permanent condition.” Id. at 461

(citations omitted).

A

Boyd contends that the evidence of his retardation entitled

him to a special jury instruction under Penry.4 A petitioner

cannot base a Penry claim on evidence that could have been but

was not proffered at trial. See West v. Johnson, 92 F.3d 1385,

1405 (5th Cir. 1996), cert. denied, )) U.S.)), 117 S. Ct. 1847,

137 L. Ed. 2d 1050 (1997); Crank v. Collins, 19 F.3d 172, 176

(5th Cir. 1994). The only evidence of Boyd's retardation

presented at trial was the I.Q. score of 67 in the prison packet.

4
Boyd did not request a special jury instruction at trial.
We have stated that “in a case such as this, which was tried before
Penry was decided, the petitioner need not have requested an
instruction on mitigating evidence, nor must he have objected to
the lack of such an instruction.” Motley v. Collins, 18 F.3d 1223,
1229 (5th Cir. 1994).

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Accordingly, Boyd argues that this I.Q. score entitled him to a

special instruction.

In order to be entitled to a special instruction, however,

Boyd must show how the evidence of retardation is

constitutionally relevant mitigating evidence. Even assuming the

I.Q. score establishes a “uniquely severe permanent handicap,” it

does not establish “that the criminal act was attributable to

this severe permanent condition.” Davis, 51 F.3d at 461. See

Harris v. Johnson, 81 F.3d 535, 539 n.11 (5th Cir.)(rejecting

that a nexus is inherent between any evidence of mental

retardation and a crime), cert. denied, 517 U.S. 1227, 116 S. Ct.

1863, 134 L. Ed. 2d 961 (1996); Davis, 51 F.3d at 462 (stating

that Penry claim fails despite evidence of mental problems, due

to failure to demonstrate how crime was attributable to mental

problems). We conclude that Boyd has not substantially shown

that the failure to issue a special instruction based on the I.Q.

score of 67 deprived him of a constitutional right.

B

Boyd contends that the special issues prevented the jury

from fully considering testimony from his employer, family

members, and friends regarding his positive character traits. He

believes that this testimony entitled him to a general mitigation

instruction under Penry, because the evidence was beyond the

scope of the special issues. The failure to provide such an

instruction thus violated his right to due process under the

Fifth and Fourteenth Amendments, and his right to be free from

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cruel and unusual punishment under the Eighth Amendment.

We have rejected this argument on the merits. Evidence of

good character tends to show that the crime was an aberration,

which may support a negative answer to the special issue

regarding the future dangerousness of the defendant. See id;

Barnard v. Collins, 958 F.2d 634, 640 (5th Cir. 1992)(“[Good

character] evidence can find adequate expression under [the]

second special issue.”). The jury could have considered the

evidence of Boyd's positive character traits in the special

issues, and thus Boyd was not entitled to a general mitigation

instruction under Penry. Boyd has failed to show that the denial

of such an instruction violated his constitutional rights.

IV

Boyd argues that the Texas sentencing scheme is

unconstitutional because the trial court did not instruct the

jury concerning the parole implications of a life sentence in a

capital case. In Simmons v. South Carolina, 512 U.S. 154, 169,

114 S. Ct. 2187, 2196, 129 L. Ed. 2d. 133 (1994), the Supreme

Court held that due process requires a trial court to instruct

the jury in a prosecution for capital murder that the defendant

would be statutorily ineligible for release on parole if the jury

imposed a life sentence. Relief based on Simmons is foreclosed

by Teague. See O'Dell v. Netherland, 521 U.S. 151, 117 S. Ct.

1969, 1978, 138 L. Ed. 2d 351 (1997)(declaring Simmons a “new

rule” under Teague). Additionally, in Allridge v. Scott, 41 F.3d

213, 222 (5th Cir. 1994), we interpreted Simmons to mean that

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“due process requires the state to inform a sentencing jury about

a defendant's parole ineligibility when, and only when, (1) the

state argues that a defendant represents a future danger to

society, and (2) the defendant is legally ineligible for parole.”

Although the State argued that Boyd would represent a danger in

the future, Boyd would have been eligible for release on parole

had he received a life sentence. See Tex. Code Crim. Proc. Ann.

§ 42.18(8)(b)(2). Boyd's eligibility for parole renders Simmons

inapplicable to his case. See Allridge, 41 F.3d at 222

(concluding Simmons unavailing in similar case). Hence, Boyd has

not shown that the trial court violated his constitutional rights

by failing to instruct the jury concerning his parole

ineligibility.

V

Boyd asserts that the admission of similar unadjudicated

offenses during the punishment phase, without a limiting

instruction, violated his right to due process under the Fifth

and Fourteenth Amendments and constituted cruel and unusual

punishment in violation of the Eighth Amendment. Boyd previously

conceded the probative value of evidence of two earlier killings,

which were committed under identical factual circumstances, as to

the issue of his future dangerousness. He maintains that the

court should have provided an instruction limiting the jury's

consideration of the extraneous evidence to that issue alone.

The evidence of the extraneous offenses was, as the

Magistrate Judge found, relevant to the first and third special

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issues. The similarity of the other offenses was probative as to

the first issue, whether Boyd acted deliberately. The other

offenses also were relevant to the third issue, whether he acted

in response to provocation by his victim. Even if the evidence

was not relevant directly to the first or third special issues,

the Constitution does not require a limiting instruction. We

have acknowledged that:

[T]he Constitution does not prohibit consideration at the
sentencing phase of information not directly related to
either statutory aggravating circumstances or statutory
mitigating factors, as long as that information is relevant
to the character of the defendant or the circumstances of
the crime. . . What is important at the selection stage is
an individualized determination on the basis of the
character of the individual and the circumstances of the
crime.

Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987)(quoting

Barclay v. Florida, 463 U.S. 939, 967, 103 S. Ct. 3418, 3433, 77

L. Ed. 2d 1134 (1983)(Stevens, J., concurring)(citations and

quotation omitted)). Boyd does not suggest that a limiting

instruction is necessary to ensure an individualized

determination at the sentencing phase. Boyd has failed to show

that the trial court denied him a constitutional right when it

refused to give a limiting instruction as to the evidence of

extraneous offenses.

V

For the forgoing reasons, we conclude that Boyd has failed

to make a substantial showing of the denial of a federal right.

Therefore, we DENY his request for a CPC.

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