IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-60511
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HOWARD MONTEVILLE NEAL,
Petitioner-Appellant,
versus
STEVE W. PUCKETT, Commissioner,
Mississippi Department of Corrections;
JAMES ANDERSON, Superintendent,
Mississippi State Penitentiary,
Respondents-Appellees.
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Appeal from the United States District Court for the
Southern District of Mississippi
USDC No. 2:97-CV-90
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May 2, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
After a thorough examination of the briefs and the record, we
reach the following disposition.
First, we grant a Certificate of Appealability (“COA”) with
respect to Howard Neal’s charge that his trial counsel was
ineffective for failing to investigate and present evidence of
mitigating circumstances. See Miller v. Johnson, 200 F.3d 274, 280
(5th Cir. 2000)(setting out the standard for the grant of a COA).
*
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this opinion should not be published and is not precedent except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.
We will evaluate the issue under 28 U.S.C. § 2254(d) because there
has been a hearing on the merits on this issue in state court. See
Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997)(explaining
that a ruling on substantive as opposed to procedural grounds
constitutes a hearing “on the merits”).1 The time and place for
oral argument will be set by the clerk.
Second, we deny a COA on Neal’s ineffective assistance claim
concerning his counsel’s failure to pursue a hearing on his
competency to stand trial. He failed to raise this issue in state
court.2 It is therefore unexhausted, and Neal has not asserted
1
We decline Neal’s request that we remand for a hearing on
this and other issues, because one is neither required nor
necessary. See West v. Johnson, 92 F.3d 1385, 1410 (5th Cir.
1996)(holding that hearings not required when the existing record
is adequate to evaluate the claims).
2
Though the district court concluded that Neal had raised this
issue, we disagree. Neal’s Motion to Vacate or Set Aside Judgment
and Sentence does mention in its review of the pretrial proceedings
that his trial counsel failed to pursue a pretrial competency
hearing. But the portion of that motion actually setting out his
ineffective assistance claims does not raise this as an example of
ineffective assistance. The fact that the state court did not
acknowledge this argument in its ruling on the motion is a good
indication that Neal did not raise it before that court. See Neal,
525 So.2d at 1281-83.
It is true, as Neal contends, that an investigation of Neal’s
personal history and a neurological examination would have
increased his chances of being found incompetent to stand trial.
And Neal did raise a failure to investigate argument in his state
court motion. But that argument concerned sentencing and the
voluntariness of his confession only. Neal’s claim here is that
his lawyer failed to seek a competency hearing, during which such
evidence would have been used. This is therefore a different
habeas corpus claim from those raised in state court, and not one
that the state court has addressed.
2
cause and prejudice for this failure. Jones v. Johnson, 171 F.3d
270, 277 (5th Cir. 1999).
Third, we deny Neal a COA on his ineffective assistance claim
that investigation and presentation of additional evidence could
have led to the suppression of his confession. The additional
evidence Neal points to would have been somewhat unreliable as well
as merely cumulative.
Fourth, we deny a COA on Neal’s claim that counsel was
ineffective for failing to present additional evidence that would
have reduced the weight given to his confession. This claim is
also unexhausted and lacks any assertion of cause and prejudice.
Fifth, we deny a COA on Neal’s challenge to the jury
instruction. In this case, though the instruction was
unconstitutionally vague, any error was harmless. See Billiot v.
Puckett, 135 F.3d 311, 315 (5th Cir. 1998)(holding that harmless
error standard is appropriate for reviewing erroneous jury
instructions). If the court had given a proper instruction, such
as the one suggested in Clemons v. Mississippi, 494 U.S. 738, 750,
110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), we are convinced that the
result would have been the same. See Billiot, 135 F.3d at 319
(applying the harmless error standard to erroneous jury
instructions).
COA GRANTED in part; and DENIED in part.
3