IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-11052
_____________________
BRIAN KEITH ROBERSON,
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
(3:97-CV-1488)
_________________________________________________________________
April 5, 2000
Before JOLLY, STEWART, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
I
Brian Keith Roberson applies for a certificate of
appealability on six claims of error by the district court.1
Specifically, he contends that (1) the district court erred by
denying a request for an evidentiary hearing; (2) the district
court erred by holding that certain evidence supporting his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Roberson’s motion to file an amended brief in support of his
application for a certificate is granted. Our denial of the
application is based on review of that amended brief.
ineffective assistance of trial counsel claim to be procedurally
barred; (3) he was denied his Sixth Amendment right to effective
assistance of counsel at the punishment phase of his trial; (4) the
admission of a psychiatric report at the punishment phase violated
constitutional due process; and (5) and (6) the prosecutor’s
conduct violated his rights by striking all but one of the African-
American members of the venire and for striking for cause an
individual based on his views on the death penalty. We consider
each argument in turn and find no merit. Therefore, the
certificate is denied.
In the district court proceedings, the magistrate judge issued
“Findings, Conclusions and Recommendation” on Roberson’s habeas
action on June 10, 1999, recommending denial of relief. The
district court adopted that report. The district court thereafter
denied Roberson’s request for a certificate of appealability on the
ground that “Petitioner has failed to make a substantial showing of
the denial of a federal constitutional right,” citing Trevino v.
Johnson, 168 F.3d 173, 177 (5th Cir. 1999).
II
The Texas Court of Criminal Appeals stated the facts
supporting Roberson’s conviction and sentencing concisely.
The evidence at trial showed that at approximately 7:00
A.M. on August 30, 1996, [Roberson], who lived directly
across from the Boots residence, knocked on their door.
When Mr. Boots answered the door, [Roberson] gained entry
into the house. He then stabbed both Mr. and Mrs. Boots
to death with a knife. Before exiting the residence,
[Roberson] ransacked the house and took a necklace. It
2
was found in his possession when he was arrested
approximately one day later. [Roberson’s] bloody
fingerprints were found inside the deceased’s home.
[Roberson] gave a written confession to the police
admitting he ransacked the house and stabbed both the
occupants. The confession was admitted into evidence at
trial.
III
A
We first address Roberson’s ineffective assistance of counsel
claim with respect to failure to produce sufficient witnesses at
the punishment phase.
The state habeas court rejected this argument without holding
a hearing. No hearing was held despite an alleged promise to
Roberson’s habeas attorney that a hearing would be held. Based on
that alleged promise, Roberson maintains that his habeas attorney
did not include in his filings in state court the affidavits of
four witnesses in support of his ineffective counsel claim.
Exhibit six in his current filing contains those four affidavits,
which counsel now claims demonstrate that there were other
witnesses trial counsel should have called at the sentencing phase
of the trial in mitigation of the death penalty.
The State of Texas, in its answer in the district court, had
this to say:
Roberson points to no motion for evidentiary hearing or
order of the state habeas court that would lend support
to counsel’s affidavit. Further, his state habeas
application belies his assertion that he was waiting to
present the affidavits at a hearing. There, he states,
‘As the attached affidavits show (Exhibit #5), there was
a much more complete sympathetic aspect of this
3
behavior.’ Clearly, this language contemplates that
support for his application would be submitted
contemporaneously with its filing. The affidavits were
made on August 28 and 30, 1995 and Roberson filed his
application on August 31, 1995. Even though the state’s
answer dated October 7, 1996, put Roberson on notice of
this omission, Roberson did not submit the affidavits
before the state court denied habeas relief on
January 22, 1997. Roberson cannot credibly rely on a
promise by the state habeas judge to excuse his failure
to attach the exhibits to his application.
(Answer, Record on Appeal vol. 2, 200) (emphasis in original)
(citations omitted). Reviewing the counsel’s affidavit and the
state’s response, the magistrate judge concluded: “The reasons
advanced by Roberson’s State court habeas counsel for failing to
have presented the affidavits in the course of his State habeas
proceedings are insufficient to excuse his failure to include the
affidavits in the State proceeding and, therefore, relief on this
claim is procedurally barred.” We agree.
Furthermore, we take the occasion to observe that even if the
affidavits had been included as evidentiary exhibits, Roberson
would fare no better on the merits. We have reviewed these four
affidavits, which are from family members solely. From a
perspective most favorable to Roberson, we can surmise that
Roberson was a troubled youth, perhaps largely as a result of the
murder of his father. Sometime in adulthood, Roberson fell in with
a female drug dealer, became hooked on crack cocaine (admitting to
his mother “I’m on the pipe,” and going from a 28 waist size to a
size 21), and suffered delusional fits.
4
Affidavits from four more family members, which do no more
than give excuses for their relative’s behavior, would have been
repetitive of other testimony (twelve family members and friends
gave similar testimony during the punishment phase). Among the
four affidavits, the ones of his mother and aunt present Roberson
as thoroughly drug-addicted. These affidavits would likely have
been more harmful than helpful to Roberson’s cause. The other two
affidavits, from his grandmother and an uncle, provide no probative
evidence relating to mitigation of punishment. His grandmother
states: “I know the family tried to keep his troubles from me
because I loved him so and would have been upset. . . . I don’t
know anything about drugs, I just know that he was the best
grandson a woman could have.” His uncle states: “I didn’t know
anything about all the trouble Brian had been in and only saw him
occasionally. I really had nothing to offer in the way of
testimony other than the fact that he seemed to be a good boy
around me.” In short, even if the state habeas court had heard
testimony of these individuals, it would have added nothing to
Roberson’s ineffective counsel claim.2
B
2
In view of the fact that Roberson’s affidavits add nothing to
his ineffective assistance of counsel claim, it follows that his
arguments that he was prejudiced by the state habeas court’s
failure to grant a hearing to present these witnesses, and that the
district court erred in failing to grant an evidentiary hearing
concerning the lack of a state court hearing are meritless.
5
We now turn to Roberson’s other ineffective assistance of
counsel claims. Roberson argues that he was denied his Sixth
Amendment right to effective assistance of counsel at the
sentencing phase of his trial on the following grounds: (1) that
counsel should have asked better questions of the witnesses; (2)
that counsel failed to pursue psychiatric claims; and (3) that
counsel failed to request an “afterthought” charge. Roberson’s
claim is judged under the Strickland standard, that is, whether
there was deficient performance and, if so, whether it was
prejudicial.
1
We have reviewed the list of witnesses Roberson’s trial
attorney put on on Roberson’s behalf. Roberson states: “Of the
witnesses called, trial counsel elicited the vaguest endorsements
of the Appellant’s character. Trial counsel was unable to
establish significant contact or social ties between most of the
witnesses and the Appellant.” With respect to counsel’s
questioning of these witnesses, Roberson states:
Trial counsel’s effort to rebut the onslaught of
Prosecution witnesses whose testimony portrayed the
Appellant as pitiless and immoral was feeble. . . .
[Roberson’s] attorneys were aware of mitigating issues
regarding the death of [Roberson’s] father and its effect
on him, his struggle with drug abuse and drug dealers,
and positive attributes despite these negative issues.
However, they wholly failed to connect the testimony of
the witnesses with these issues and witnesses that could
have testified and made the connections were not called.
It is not the witnesses or their knowledge but the
questions asked and the selection of the witnesses by
inexperienced trial counsel.
6
Roberson fails to offer anything except conclusory allegations
as to how the selection of witnesses or questioning of those
individuals called amounted to ineffective assistance of counsel
under Strickland. This claim is without merit.
2
Roberson also argues that his counsel was ineffective because,
despite his counsel’s knowledge that “he had been taking an
extraordinary amount of drugs and alcohol for at least two days
before the offense,” he did not have Roberson examined by a
psychiatrist and his examination of Roberson’s mental state,
limited to administering a MMPI test, was “feeble.”
In Strickland, the Court said:
Counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigation unnecessary. 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.
466 U.S. at 691. Given that standard of deference, and with
Roberson’s inability to show any evidence that he had a mental
disease, counsel’s election not to pursue the path of a mental
illness defense was not unreasonable. Roberson cites Profitt v.
Waldron, 831 F.2d 1245, 1248-49 (5th Cir. 1987), for the
proposition that where an individual’s only defense is one of
mental health, failure to pursue an investigation of that health
constitutes deficient performance. Profitt, however, involved an
insane individual’s escape from a mental institution and subsequent
7
conviction for aggravated rape after that escape. Despite
knowledge that a state court had adjudged Profitt insane and had
him committed, his counsel did not investigate this obviously
available line of defense. The facts in this case, however,
presented no such situation.
3
Roberson argues that his counsel’s failure to request a jury
charge that his subsequent burglary of the home after he had killed
his victims was an “afterthought” constitutes ineffective
assistance of counsel. He refers to his confession:
I was walking home yesterday and I went up to the Boot’s
front door. I knocked on the door, and he came to the
door. He opened the door, and I pushed my way in. I
started fighting with Mr. Boots. The lady came up from
behind him. I started stabbing them. After I stabbed
them, I went through the house and then I went out the
front door.
Based solely on this confession, he argues that “[t]his statement,
introduced by the State, indicates that the theft from the home,
which constitutes the underlying offense of burglary, was an
afterthought, and that [Roberson] had no intention of committing a
burglary or theft when he entered the home.”
The State trial court said this:
This Court further finds that an afterthought defensive
theory was not plausible with the amount of blood found
in different areas of the home and the disheveled
condition of the home. Blood from the victims and
applicant’s own injuries was found at the scene of the
murders and in the front bedroom, where applicant had
placed the bloody murder weapon on the vanity and taken
things from the jewelry box on that vanity. An
additional knife with a bent blade was found in the
8
master bedroom, but no blood was found on that knife.
Further, the drawers of the chest in the master bedroom
were pulled out. The house appeared to be ransacked.
The position of the victim’s bodies, the condition of the
house, and the trail of blood throughout the house made
an afterthought defensive theory incredible; applicant’s
trial counsel tried instead to negate the aggravating
element of burglary by asserting that applicant had
entered the house with the effective consent of the
victims. Applicant has therefore failed to rebut the
presumption that his trial and appellate counsel
performed in the furtherance of sound trial strategy.
(Findings of Fact, Conclusions of Law, and Order, 292nd Judicial
Dist., pp. 45-46.) Referring to Roberson’s confession, the
magistrate judge stated, “[t]here is nothing which indicates that
he committed theft at the decedent’s residence as an afterthought
after fatally stabbing them.” We agree. Because the state courts
held that he was not entitled to an afterthought charge, and this
decision is neither an unreasonable application of clearly
established federal law nor an unreasonable determination of the
facts in the light of the evidence presented, Roberson’s claim
fails. See § 2254(d)(1)-(2).
C
Roberson next argues that there was constitutional error in
the introduction of his psychiatric report from juvenile prison,
which had been prepared during his confinement there some six years
earlier. Over counsel’s objection, the trial judge allowed the
prosecution to introduce the psychiatric report.
The question is whether the introduction of the report
violated the standards set forth in Estelle v. Smith, 451 U.S. 454
9
(1981). Estelle v. Smith held that the introduction of a
psychiatric examination prepared in the course of determining the
defendant’s mental competency for purposes of trial violated that
individual’s Fifth and Sixth Amendment rights. The examination was
made post-indictment and without the permission of Smith’s
attorney.
Estelle v. Smith does not apply on the facts of this case
because, at the time of Roberson’s evaluation in juvenile prison,
no Fifth or Sixth Amendment rights were implicated. He was
evaluated for the purpose of determining whether he should be
released. Because the evaluation did not implicate Fifth or Sixth
Amendment rights, its introduction is a question of propriety under
the Texas evidence code. That, in turn, is not a subject for
review by this court under habeas corpus grounds because it
presents no federal question.
D
Finally, Roberson argues errors in the jury selection process.
First, he contends that he was denied his constitutional rights
under the Equal Protection Clause of the Fourteenth Amendment and
the Due Process Clause of the Fifth Amendment in violation of
Batson v. Kentucky, 476 U.S. 79 (1986), by the State’s use of a
racially motivated juror strike against Ms. Terri Jackson. The
prosecutor struck all but one of the African-American members of
the venire. Second, Roberson contends that his Eighth and
Fourteenth Amendment constitutional rights were violated by the
10
dismissal for cause of juror, Stanley Allen, because of his views
on the death penalty. This contention is essentially a claim under
Witherspoon v. Illinois, 391 U.S. 510 (1968).
11
1
The prosecutor explained that he struck Ms. Jackson because of
her lack of education, her intelligence level, she knew someone
tried for murder by the same prosecutor, and because she could
impose the death penalty only if one of her family members had been
murdered.
Thus, even if Roberson made out a prima facie case of racial
discrimination against the prosecutor, ultimately, he can show no
violation of Batson because the reasons proffered by the prosecutor
for striking the black juror were racially neutral. See Hernandez
v. New York, 500 U.S. 352, 360 (1991). Given his racially neutral
explanation, it fell to the trial court to decide “whether the
opponent of the strike has proven purposeful discrimination.”
Purkett v. Elem, 514 U.S. 765, 767 (1995). The “evaluation of the
prosecutor’s state of mind based on demeanor and credibility lies
‘peculiarly within the trial judge’s province.” Hernandez, 500
U.S. at 365. Furthermore, “[f]ederal habeas review of a state
conviction requires a reviewing federal court to accord a
presumption of correctness to the state court's factual findings,
and demands that the presumption be rebutted by clear and
convincing evidence. 28 U.S.C. S 2254(e)(1).” Thompson v. Cain,
161 F.3d 802, 811 (5th Cir. 1998). Adhering to that standard, we
will not disturb the state court’s finding that the prosecutor’s
strike of Ms. Jackson did not violate Batson.
2
12
Turning now to the second jury selection issue, we start with
the premise that a prospective juror may be excluded for cause
because of his views on capital punishment when “the juror’s views
would ‘prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath.’” Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting
Adams v. Texas, 448 U.S. 38, 45 (1980)).
Here, the trial court excused Mr. Allen on the basis of his
responses that to impose the death penalty would violate his
conscience. This was a matter of judgment, based to large extent
on a credibility determination. We will not second-guess that
determination. See, e.g., Corwin v. Johnson, 150 F.3d 467, 475
(5th Cir. 1998). Although Mr. Allen did say that he could impose
the death penalty if told to do so, he made statements suggesting
he wanted no part of that decisionmaking process. Similarly, he
suggested that his ability to do so would be substantially
impaired. The trial court’s excusal was not “an unreasonable
application of clearly established federal law as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see
McFadden v. Johnson, 166 F.3d 757, 761 (5th Cir. 1999).
IV
Because Roberson is unable to demonstrate any merit to any one
of his assertions of error, his application for a certificate of
appealability is
D E N I E D.
13
14
Roberson v. Johnson
Combined Opinion