REVISED, October 12, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-10060
WILLIAM JOSEPH KITCHENS,
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
September 28, 1999
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
William Joseph Kitchens (“Kitchens”), a Texas death-row
inmate, appeals the district court’s denial of his 28 U.S.C. § 2254
motion. The basic issue on appeal is whether Kitchens received
effective assistance of counsel as guaranteed by the Sixth
Amendment. The main point of contention is whether counsel
properly investigated and presented mitigating evidence of child
abuse, alcoholism, and mental illness. Having reviewed the record,
and having considered the parties’ arguments, we affirm the
district court’s judgment.
I.
In 1986 Kitchens was charged with capital murder in Taylor
County, Texas, for the shooting death of Patti Webb. Two lawyers
were appointed to defend Kitchens, Randy Dale and Jon McDurmitt
(“counsel”). Kitchens ultimately pleaded guilty to murder, but
proceeded to trial on the capital murder charge. After a trial
that lasted roughly one week, the jury convicted Kitchens of the
capital offense of intentional murder in the course of a robbery or
sexual assault. In the subsequent penalty phase of the trial, the
jury was asked to answer the two special sentencing issues required
by Article 37.071(b) of the Texas Code of Criminal Procedure.1 See
Tex. Code Crim. P. art. 37.071. The jury answered each question in
the affirmative, and the trial court sentenced Kitchens to death.
Kitchens appealed his conviction and sentence to the Texas
Court of Criminal Appeals, which affirmed by published opinion of
October 30, 1991. Kitchens v. State, 823 S.W.2d 256 (Tex. Crim.
1
The first special issue stated:
Was the conduct of the defendant, WILLIAM
JOSEPH KITCHENS, that caused the death of the
deceased PATRICIA LEANN WEBB, committed
deliberately and with the reasonable
expectation that the death of the deceased or
another would result?
The second special issue stated:
Is there a probability that the defendant,
WILLIAM JOSEPH KITCHENS, would commit criminal
acts of violence that would constitute a
continuing threat to society?
2
App. 1991). The United States Supreme Court denied Kitchens’
subsequent petition for writ of certiorari on June 1, 1992.
Kitchens v. Texas, 504 U.S. 958 (1992). On February 4, 1993,
Kitchens filed an application for a state writ of habeas corpus.
A two-day hearing was held by the state trial court, and on
November 27, 1996, in an unpublished per curiam opinion, the Texas
Court of Criminal Appeals adopted the trial court’s findings of
fact and conclusions of law and denied Kitchens’ petition.
Kitchens next filed a petition for federal habeas corpus
relief on September 2, 1997. The district court denied the
petition on November 26, 1997, and denied Kitchens motion for a
certificate of appealability (“COA”) on May 18, 1998. This Court
then granted a COA on two separate issues which now form the basis
of the present appeal.
II.
Kitchens filed his federal habeas corpus petition in September
1997, after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Thus, we must review his
petition under the more stringent AEDPA standards. Nobles v.
Johnson, 127 F.3d 409, 415 (5th Cir. 1997). The AEDPA provision
that guides our review is 28 U.S.C. § 2254(d). It provides:
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of
the claim--
3
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d). As this section is applied, questions of law
and mixed questions of law and fact are reviewed under subsection
(d)(1) of § 2254. Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th
Cir. 1996). For questions of law, this subsection permits a
federal court to grant habeas corpus relief only if the state court
decision rested on a legal determination that was “contrary to
. . . clearly established federal law.” 28 U.S.C. § 2254(d)(1);
Drinkard, 97 F.3d at 767-68. For mixed questions of law and fact,
subsection (d)(1) affords relief only if the state court decision
rested on “an unreasonable application of clearly established
federal law.” 28 U.S.C. § 2254(d)(1); Drinkard, 97 F.3d at 767-68.
Questions of fact, on the other hand, are reviewed under
subsection (d)(2) of § 2254. Id. at 767. That provision affords
relief only if the state court adjudication of the claim “resulted
in a decision that was based on an unreasonable determination of
the facts in light of the evidence.” 28 U.S.C. § 2254(d)(2);
Drinkard, 97 F.3d at 767. Importantly, state factual findings are
presumed correct unless rebutted by the petitioners with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Trevino v. Johnson,
168 F.3d 173, 181 (5th Cir. 1999), petition for cert. filed, 68
U.S.L.W. ___ (U.S. June 17, 1999) (No. 98-9936).
4
III.
We granted a certificate of appealability on two separate
issues, each relating to whether Kitchens received effective
assistance of counsel as guaranteed by the Sixth Amendment. The
first is whether counsel adequately investigated and presented
mitigating evidence of child abuse, alcoholism, and mental illness.
The second is whether counsel gave an effective closing argument at
both the guilt and penalty phases of trial.
A.
We evaluate an ineffective assistance of counsel claim under
the standard announced in Strickland v. Washington, 466 U.S. 668,
687 (1984). The petitioner must show (1) that counsel’s
representa-tion was deficient, and (2) actual prejudice resulting
from the deficient performance. Strickland, 466 U.S. at 687;
Earhart v. Johnson, 132 F.3d 1062, 1066 (5th Cir. 1998). Because
an ineffective assistance of counsel claim is a mixed question of
law and fact, we look to whether the state court decision rested on
“an unreasonable application of clearly established federal law.”
28 U.S.C. § 2254(d)(1); Drinkard, 97 F.3d at 767-68. A state
court’s application of federal law is unreasonable when “reasonable
jurists considering the question would be of one view that the
state court ruling was incorrect.” Drinkard, 97 F.3d at 769. With
those standards in mind, we turn to the first issue in this appeal:
whether counsel effectively investigated and presented mitigating
evidence of child abuse, alcoholism, and mental illness.
5
B.
On appeal Kitchens maintains that his trial attorneys were
ineffective by failing to investigate and present evidence that his
father physically abused him as a child and forced him to consume
alcohol at a very young age. Kitchens also contends that counsel
failed to investigate and present hospital records indicating that
Kitchens was hospitalized on numerous occasions for attempted
suicide, depression, black outs, and hallucinations. Kitchens
insists that had counsel properly uncovered this evidence and
utilized it at trial, there would have been a reasonable
probability that the jury would not have sentenced him to death.
In evaluating whether counsel’s performance was deficient, we
look to whether the challenged representation fell below an
objective standard of reasonableness. Strickland, 466 U.S. at 687-
88. However, there is a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.”
Id. at 689. Thus, “[a] conscious and informed decision on trial
tactics and strategy cannot be the basis for constitutionally
ineffective assistance of counsel unless it is so ill chosen that
it permeates the entire trial with obvious unfairness.” Green v.
Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (quotations and
citation omitted). “We will not find inadequate representation
merely because, with the benefit of hindsight, we disagree with
counsel’s strategic choices.” Id.
6
In this case, the state trial court conducted a two-day
hearing and concluded that counsel was not ineffective under
Strickland. The court found that counsel’s failure to present
evidence of child abuse and early alcohol consumption was a
strategic decision founded on the belief that the value of that
evidence did not outweigh the risk that other damaging evidence
would come into the record. In particular, counsel believed that
evidence relating to Kitchens’ childhood would have opened the door
to evidence of drug use, as well as specific instances where
Kitchens was violent even when sober. Similarly, the court
concluded that counsel’s decision not to present the hospital
records was a strategic decision because the records also showed
that Kitchens had repeatedly rejected alcohol-abuse treatment, and
was a heavy drug user. The state trial court rejected the
assertion that counsel’s investigation was inadequate. The state
court noted that his attorneys were aware of his childhood history,
and interviewed several family members, but decided not to develop
that evidence due to its double-edged quality.
When presented with Kitchens’ claim of ineffective assistance
of counsel, the federal district court found that the state court’s
findings were adequately supported by the record. The district
court agreed that counsel’s decisions were based on strategic
concerns. Citing Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir.
1996), the district court observed that the Fifth Circuit has
repeatedly denied claims of ineffective assistance of counsel for
failure to present “double edged” evidence where counsel has made
7
an informed decision not to present it. The district court also
found that Kitchens’ had not demonstrated the requisite prejudice
under the second prong of Strickland.
On appeal Kitchens claims that the findings of the state court
are contradicted by the record. He contends that counsel’s failure
to present evidence of his childhood could not have been a
strategic decision to limit evidence of drug use and violence
because counsel elicited testimony of that nature at trial.
Similarly, Kitchens argues that counsel’s failure to present the
hospital records could not have been a reasoned decision because
the reports did not reflect repeated terminations of treatment. As
for the state court’s finding that counsel conducted a reasonable
investigation, Kitchens alleges that counsel took no steps to
corroborate or investigate the evidence of child abuse and early
alcohol consumption,2 and took no steps to understand or use the
hospital reports.3 Having reviewed the record, we find no merit to
2
As to the evidence of child abuse and early alcohol
consumption, Kitchens argues that counsel initially received an
investigator’s report indicating that Kitchens’ father routinely
gave him whiskey when he was five years old, but counsel
nevertheless failed to pursue or corroborate that information.
Kitchens cites the fact that counsel never interviewed his father,
only briefly interviewed his mother and one sibling, and never
asked them about specific instances of abuse or violence. He
asserts that had counsel conducted an adequate investigation they
would have learned that Kitchens was physically abused by his
father, was consuming alcohol by age three, and by age five was
being forced by his father to drink several times a week.
3
As to the hospital records, Kitchens points out that the
hospital records, which were in the possession of counsel,
indicated that he was treated on several occasions for extreme
emotional illness that resulted in suicidal urges, black outs, and
hallucinations. He maintains that the health records would have
established “catastrophic levels of child abuse,” resulting in a
8
Kitchens’ claims.
The record shows that counsel was aware that Kitchens had been
abused as a child and had consumed alcohol at a very early age.4
The record, however, shows that counsel chose not to investigate
that evidence further, and not present it at trial, because there
were instances of extreme violence in Kitchens’ past that counsel
did not want brought to light.5 See Strickland, 466 U.S. at 691
(“In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s
judgments."). In fact, as argued by the state on appeal, a
complete history of Kitchens’ childhood would have revealed
instances where Kitchens was violent even when sober. It is true,
as Kitchens points out, that counsel did elicit some testimony at
trial about Kitchens’ problems with alcohol and his tendency to act
violently when drunk. But counsel’s use of that evidence was
mental illness that lessened his criminal culpability. Kitchens
claims that counsel’s performance was deficient because counsel
never contacted the treating physicians; never reviewed the reports
with the assistance of medical professionals; never provided the
reports to the two doctors who testified at the penalty phase
hearing; and, most importantly, never sought to introduce the
reports as mitigating evidence at trial.
4
Counsel was made aware of this fact through the
investigative report, from comments made by Kitchens, his mother,
and his sister, and from various mentions in the hospital reports.
5
There was evidence that Kitchens once hit his sister on
the head with a piece of lumber; beat a cat to death while dragging
it behind his bicycle; tied the tails of two cats together and hung
them over a clothesline where they fought to death; and would stop
in the middle of the street and fire a gun at the homes of those he
did not like.
9
limited to that purpose. Counsel did not explore Kitchens’
childhood and purposefully avoided opening the door to prior bad
acts.
As for the hospital records, the facts of this case indicate
that counsel decided not to use that evidence due to a concern that
the jury would view those reports as evidence that Kitchens
voluntarily terminated needed treatment. Although Kitchens is
correct in that he only discontinued treatment on one or two
occasions, he ignores the fact that counsel also did not want the
jury to hear about Kitchens’ extensive drug use, which was
thoroughly documented in the hospital records.
We began our analysis with the presumption that the state
court’s factual findings are correct unless rebutted by Kitchens
with clear and convincing evidence. Because Kitchens has failed to
clear that hurtle, we cannot question the state court’s finding
that counsel’s actions were the product of sound trial strategy.
We note that Kitchens’ claim is not that counsel utterly failed to
investigate the evidence of child abuse, mental illness, and early
alcohol consumption, or failed to present any mitigating evidence.
That argument would fail because counsel did in fact conduct an
investigation, and did in fact present some mitigating testimony at
the penalty phase. Kitchens’ argument essentially comes down to a
matter of degrees. Did counsel investigate enough? Did counsel
present enough mitigating evidence? Those questions are even less
susceptible to judicial second-guessing.
10
Having reviewed the record in this case, we conclude that
counsel’s decisions were objectively reasonable based on the
double-edged nature of the evidence involved. Accordingly, we
leave undisturbed the state court’s conclusion that counsel’s
performance was not deficient under Strickland. See Boyle v.
Johnson, 93 F.3d 180 (5th Cir. 1996) (noting the heavy deference
owed trial counsel when deciding as a strategical matter to forego
admitting evidence of a double-edged nature” which might harm the
defendant’s case); Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.
1983) (“A conscious and informed decision on trial tactics and
strategy cannot be the basis for constitutionally ineffective
assistance of counsel unless it is so ill chosen that it permeates
the entire trial with obvious unfairness.”).
Additionally, even if counsel’s performance was deficient,
relief is not warranted in this case because there is scant
evidence that Kitchens suffered actual prejudice. On appeal
Kitchens contends that the mitigating evidence would have swayed
the jury by lessening his culpability. That argument is
unconvincing. If counsel had attempted to lessen Kitchens’
culpability by introducing evidence of his childhood, there is the
very real risk that the state would have countered with evidence
of other violent acts, some committed while sober. Similarly, if
counsel had introduced the hospital records, the jury may have
better understood his mental state, but would have seen a long
11
history of drug and alcohol abuse. Thus, given the double-edged
nature of this evidence, it is hard to conclude that it would have
aided Kitchens’ cause.
Accordingly, even if we find that counsel’s performance was
deficient under Strickland, Kitchens has failed to establish “a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. Absent that showing of actual
prejudice, we cannot grant relief.
B.
Kitchens also argues that counsel was ineffective by referring
to the crime as “brutal” and “savage” in closing argument at the
guilt phase of trial. He insists that those references effectively
suggested a “yes” answer to the special issue on future
dangerousness which was put to the jury in the subsequent penalty
phase. We disagree.
Each of Kitchens’ two attorneys gave a closing argument at the
guilt phase of trial. Dale’s closing argument was aimed at
convincing the jury that Kitchens’ crime was murder, but not
capital murder. He argued at length that the state had not proven
that the murder was conducted in the course of a robbery, sexual
assault, or kidnaping, the aggravating offenses which raised the
crime to capital murder. He then closed with the following
remarks:
[T]his is not a capital murder case. This is
a very brutal, a very savage murder, but this
12
is not a capital murder case by which Joe
Kitchens needs to be put on death row. I ask
you that after you weigh the evidence, you
apply it to the law as contained in the
Court’s charge. I think you will agree with
me that this is not a capital case, and the
only thing this boy is guilty of is a brutal,
brutal murder. He does not deserve to be put
on death row for what he has done. The law
provides a punishment for what he’s done. And
we’re going to expect you to punish him for
what he’s done, but he is--does not belong on
death row. And I ask that you re-enforce
[sic] your feelings by your verdict of “not
guilty” to capital murder. Thank you.
Viewed in context, it is clear that Dale characterized the murder
as brutal and savage in an effort to bolster his credibility with
the jury. It was thus a strategic decision we will not second
guess. See Carter v. Johnson, 131 F.3d 452, 466 (5th Cir. 1997)
(“counsel may make strategic decisions to acknowledge the
defendant’s culpability and may even concede that the jury would be
justified in imposing the death penalty, in order to establish
credibility with the jury”).6
Kitchens next contends that counsel’s closing argument at the
penalty phase of trial was deficient because it was no more than a
simple plea for mercy based on the Bible. He cites Hall v.
Washington, 106 F.3d 742 (7th Cir. 1997), a Seventh Circuit case,
in support of his claim that counsel was required to base his
closing argument on the particular facts of the case. Kitchens’
argument is not persuasive.
In this case, the state trial court made an express finding
6
Even if Dale’s word choice was ill-considered, we
seriously doubt that this fleeting reference resulted in actual
prejudice at the subsequent penalty phase of the trial.
13
that Kitchens’ attorneys decided that a basic plea for mercy would
be the most effective approach given the religious makeup of the
jury. The state trial court observed:
Petitioner’s attorneys, being aware of the
evidence that Petitioner’s family was
extremely poor and was dysfunctional, and that
the father was physically abusive to the
children and their mother and to property,
made a deliberate decision not to present this
evidence since it would involve evidence that
Petitioner was violent when sober and
especially when drinking. Considering the
religious community of the Jury, counsel’s
strategy at punishment was: (1) to seek mercy
and forgiveness of the Petitioner, and (2) to
persuade the Jury to answer “no” to Special
Issue No. 2. Counsel did not think the
evidence was favorable since it also showed
Petitioner was violent.
Kitchens has not rebutted the finding that counsel’s closing was
based on strategic concerns. Thus, the question before us is
whether the strategy was reasonable given the circumstances of this
case. See United States v. Green, 882 F.2d 999, 1002-03 (5th Cir.
1989). Counsel is afforded significant latitude in this regard.
Jones v. Jones, 163 F.3d 285, 300 (5th Cir. 1998).
After reviewing the record, we cannot conclude that counsel’s
closing argument was unreasonably deficient. It is true, as
Kitchens points out, that counsel’s closing argument was little
more than a plea to the religious morals of the jury. But given
the double-edged nature of the underlying evidence, we cannot say
that counsel’s strategy was objectively unreasonable. As for
Kitchens’ reliance on Hall, we would only note that Hall is not
binding precedent in this Circuit, and is distinguishable given the
facts of this case.
14
Finally, we note that Kitchens’ has not demonstrated actual
prejudice resulting from counsel’s closing argument. It is
possible, of course, that a fact-based argument focusing on
Kitchens’ childhood, alcoholism, and drug use, may have been more
effective than a simple plea for mercy. Yet, it is equally
possible that such evidence would have only served to inflame the
jury. Accordingly, we find insufficient evidence of actual
prejudice.
IV.
Based on the foregoing, we conclude that the district court
did not err in denying Kitchens’ habeas corpus petition. The
judgment of the district court is affirmed.
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