IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 99-10305
_______________________________
DAVID LEE GOFF,
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
(4:98-CV-563-A)
_________________________________________________
September 8, 2000
Before JOLLY, SMITH, and WIENER, Circuit Judges.
WIENER, Circuit Judge*:
Petitioner-Appellant David Lee Goff appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for habeas relief.
Because he filed his federal habeas petition after the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996
*
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this opinion should not be published and is not precedent except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
(“AEDPA”),1 we first must issue a certificate of appealability
(“COA”) before Goff may appeal his denial of federal habeas
relief.2 Concluding that Goff has not made a substantial showing
of the denial of a constitutional right, we deny his application
for a COA.
I.
FACTS AND PROCEEDINGS
In November 1991, Goff was convicted and sentenced to die for
the kidnapping, robbery and murder of Michael McGuire in Fort
Worth, Texas. His accomplice testified that Goff killed McGuire,
who had given the pair a ride in his van, with a single gunshot to
the head and had dumped McGuire’s body in a wooded field.
Goff’s conviction was affirmed by the Texas Court of Criminal
Appeals on automatic appeal.3 His state application for a writ of
habeas corpus was denied by the Court of Criminal Appeals, and the
district court ruled against Goff, denying his federal habeas
corpus application and declining to issue a COA. This appeal
followed.
II
ANALYSIS
1
Goff filed his petition for habeas corpus in federal court on
September 4, 1998. The AEDPA became effective on April 24, 1996.
2
See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 120 S. Ct.
1595, 1600 (2000).
3
Goff v. State, 931 S.W.2d 537 (Tex. Crim. App. 1996), cert.
denied, 520 U.S. 1171 (1997).
2
A. COA Standard
A COA may be issued only if the state prisoner has made a
substantial showing of the denial of a constitutional right.4 To
make such a showing, the prisoner must demonstrate “that reasonable
jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further.”5 In deciding whether to issue a COA, we review
Goff’s arguments under the deferential scheme the AEDPA established
in 28 U.S.C. § 2254(d),6 which mandates that we must defer to the
state court’s adjudication on the merits of a claim unless its
decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law.”7 The first prong of this
disjunctive test is met “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable
4
See 28 U.S.C. § 2253(c)(2).
5
Slack, 120 S. Ct. at 1603-04 (internal quotation marks
omitted); see also Barrientes v. Johnson, 2000 WL 1099389, at *27
(5th Cir. 2000).
6
See Barrientes, 2000 WL 1099389, at *27. We review pure
questions of law and mixed questions of law and fact under §
2254(d)(1), and review questions of fact under § 2254(d)(2),
provided that the state court adjudicated the claim on the merits.
7
28 U.S.C. § 2254(d)(1).
3
facts.”8 The second prong is met “if the state court identifies
the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of
the prisoner’s case.”9 Because this case involves the death
penalty, any doubts as to whether a COA should issue must be
resolved in Goff’s favor.10
State court determinations of factual issues are presumed to
be correct, a presumption an applicant must rebut by clear and
convincing evidence.11 A writ will not issue unless the state court
decision “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.”12
Not every factual determination of a state court issue that the
prisoner is able to rebut by clear and convincing evidence is
“unreasonable.”13 As we conclude that Goff has failed to rebut any
challenged State court finding, however, we never reach the
question of unreasonableness.
B. Claims of Error
On appeal, Goff advances eight issues to which he assigns
8
Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).
9
Id.
10
See Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000),
petition for cert. filed (U.S. Apr. 25, 2000) (No. 99-9327).
11
See 28 U.S.C. § 2254(e)(1).
12
28 U.S.C. § 2254(d)(2).
13
See Williams v. Taylor, 120 S. Ct. 1495 (2000).
4
error. We will apply the COA standard to each in turn.
1. Due process/ineffective assistance.
Goff asserts that he was denied due process of law and the
right to effective assistance of counsel when the trial court
failed to allow him to present evidence at either the guilt or
punishment phases that his victim allegedly was homosexual. This
claim fails, as it has in each instance that Goff has asserted it,
because the victim’s sexual preference simply was irrelevant to his
murder or to Goff’s punishment. The Texas Court of Criminal
Appeals found that “appellant has failed to show any connection
between the victim’s homosexuality and the crime. Further, there
is no evidence that appellant was even aware prior to trial that
the victim had any homosexual tendencies.”14 The victim’s sexual
orientation was similarly irrelevant as mitigation evidence, which
is admissible only if it is “relevant to appellant’s background,
character, or the circumstances of the crime.”15 Goff’s argument
is that he should have been allowed to let the jury know that his
victim was homosexual because that information might have evoked
enough jury sympathy for it to impose a less severe punishment.
This argument has no cognizable basis in constitutional law and is
thus no ground for reviewing the findings of the state courts or
the district court on this point.
14
Goff, 931 S.W.2d at 554.
15
Id. at 556.
5
2. Prosecution comment on defendant’s failure to testify.
Goff argues that he received ineffective assistance of counsel
because his attorneys failed properly to perfect an objection to
the prosecution’s alleged comment on Goff’s failure to testify.
Contrary to Goff’s assertion, the attorney did object timely to the
prosecutor’s comment, so this claim does not constitute
constitutionally ineffective assistance.
The following portion of the prosecution’s closing argument at
the punishment stage is the source of Goff’s complaint:
PROSECUTOR: But you know the most devastating testimony,
maybe the most devastating next to Ms. Tucker’s
testimony, was when Dr. Finn gets up here and tells you
that there is no brain defect, there is no disorder on
which to place the blame for the bloody, vile crime that
David Lee Goff has committed again and again, that his
mind works just like ours, that he knows how to think, he
knows how to act on those thoughts, he is aware of his
consequences.
Weren’t you hoping to hear something to explain
this, something to tell you, well, there is something
wrong with him, he’s sick somehow? That is why he can do
these crimes. And we can’t even explain why he commits,
but there wasn’t any. There is nothing wrong, but he was
abused. He was an abused child. You don’t get the
evidence directly. This time it gets filtered through
the –
DEFENSE COUNSEL: Objection, Your Honor.
THE COURT: Just –
DEFENSE COUNSEL: Objection, Your Honor. That is an
impermissible comment on the Defendant’s failure to
testify, and I object.
THE COURT: Overruled.
PROSECUTOR: Don’t get those directly. They are filtered
through the Defendant’s witnesses. You could tell
through the Cross when asked was there any direct
6
statements in there about this happening to David or that
happening to David, no.
The Texas Court of Criminal Appeals found that the
prosecutor’s argument was a summation of the evidence rather than
a comment on the defendant’s failure to testify.16 Support for this
conclusion includes a defense psychologist’s testimony that reports
filed during Goff’s childhood centered on the sexual abuse of his
sister and did not refer to any direct abuse of Goff; his own
denial to the psychologist that he had been abused; and the fact
that no official reports confirmed testimony of abuse from Goff’s
grandmother and sister. As the court’s findings were not
incorrect, Goff’s second claim is not cognizable as
constitutionally ineffective assistance.
3. “Penry17 nullification” charge.
Goff claims constitutional error in the “Penry nullification”
charge given to his sentencing jury. He objects to the following
part of the court’s instruction, particularly the final sentence:
During your deliberations and in answering the
Special Issues presented to you, you shall consider any
mitigating circumstances presented by either party that
was admitted for your consideration in either phase of
the trial. A mitigating ... circumstance may be any
aspect of the Defendant’s character or background or the
circumstances of the offense for which you have found the
Defendant guilty which you believe makes a sentence of
life more appropriate.
If any juror finds that there is a mitigating
circumstance, that juror must decide on how much weight
16
Id. at 548.
17
Penry v. Lynaugh, 492 U.S. 302 (1989).
7
it deserves and give it the effect the juror believes to
be appropriate when the juror answers the Special Issues.
If any juror decides, in consideration of this ...
evidence that a sentence of life rather than a death
sentence is more appropriate, that juror is instructed,
then, to answer either Special Issue or both Special
Issues no.
We repeatedly have approved similarly worded instructions.18 Goff
is denied COA on this issue.19
4. Admission of void conviction.
Goff contends that he was denied due process of law by the
admission of evidence, during the punishment phase of his trial,
concerning his two prior convictions for attempted capital murder.
The Texas Court of Criminal Appeals assumed arguendo that Goff is
correct in maintaining that he did not validly waive an examining
trial before pleading guilty to the two offenses, which occurred
when Goff was 15 years old. If proved, this impropriety presumably
would leave the State unable to show that the waivers were
voluntary, in turn voiding the convictions and making their
introduction at trial error.
Nonetheless, the Texas Court of Criminal Appeals found that
18
See Penry v. Johnson, 215 F.3d 504, 508 (5th Cir. 2000);
Miller v. Johnson, 200 F.3d 274, 289-90 (5th Cir. 2000); Emery v.
Johnson, 139 F.3d 191, 200 (5th Cir. 1997), cert. denied, 525 U.S.
969 (1998).
19
Because Goff did not object to the instruction on these
specific grounds at trial, this claim not only is meritless but is
procedurally barred from habeas review. See Amos v. Scott, 61 F.3d
333, 345 (1995), cert. denied, 516 U.S. 1005 (1995) (holding Texas
contemporaneous objection rule an independent and adequate
state-law procedural ground sufficient to bar federal court habeas
review of federal claims).
8
Goff was not harmed by the admission of the convictions,20 and we
do not find that conclusion to be incorrect. In addition to the
evidence of the two convictions, the State called as witnesses the
victims of the two attempted capital murders, each of whom
testified to having been shot when three youths attempted to steal
the witness’s vehicle – crimes quite similar to the one for which
the jury was preparing to sentence Goff. Although the victims did
not identify Goff in court, their testimony dovetailed with Goff’s
confessions to the two crimes, which also were introduced. Given
the linking of Goff’s confession to the precise crimes about which
the victims testified in unimpeachable detail, evidence of his
convictions was surplusage as harmless error: The State was merely
demonstrating that he had previously done acts much like those that
produced the instant homicide, not as an enhancement for being a
career criminal or multiple offender. As the Texas Court of
Criminal Appeals did not err when it found that this evidence
rendered admission of the allegedly void convictions harmless
beyond a reasonable doubt, we deny Goff’s request for COA on this
point.
5. Grant of State’s challenge for cause.
Goff next claims that the trial court erred in granting the
State’s challenge for cause to a potential juror who he insists was
not disqualified as a matter of law. The court sustained the
20
See Goff, 931 S.W.2d at 553.
9
prosecution’s challenge after the potential juror stated that she
could not find that a defendant would be a continuing danger, i.e.,
she could not answer “yes” to Special Issue No. 2 on future
dangerousness, based solely on the facts of the offense at bar.
When Goff was tried in 1991, the law of Texas subjected veniremen
to disqualification from a death penalty case for giving such an
answer,21 albeit that the law was reversed in 1993.22
Our evaluation of this claim foreclosed Goff’s failure to
object to the potential juror’s dismissal at trial, thus failing to
preserve error. As discussed earlier, we have determined the Texas
contemporaneous objection rule to be an independent and adequate
basis for the denial of federal habeas review. Goff’s failure to
object precludes his pursuing federal habeas relief unless he can
show cause for the default and prejudice from it, or the threat of
a fundamental miscarriage of justice.23 As Goff has not shown that
he was deprived of a trial by a fair and impartial jury, we deny
COA on this issue.24
6. Misleading a venireman on state law during voir dire.
Goff claims that, during voir dire, the trial court allowed
21
See Marras v. State, 741 S.W.2d 395 (Tex. Crim. App. 1987).
22
See Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993)
(en banc); see also Wainwright v. Witt, 469 U.S. 412 (1985); Adams
v. Texas, 448 U.S. 38 (1980).
23
See Amos, 61 F.3d at 339.
24
See Brecht v. Abrahamsom, 507 U.S. 619, 637 (1993).
10
the prosecution to mislead a potential juror on the law –
specifically, that a juror need not “see a distinct difference”
between the intentional conduct required for a murder conviction
and the deliberate conduct required to support an affirmative
answer to Special Issue No. 1 at punishment.
The Court of Criminal Appeals ruled that the prosecutor’s
comment was not a misstatement of Texas law: “The law only
requires that venirepersons find a difference between the two terms
and be able to base their answers on the evidence presented.”25 The
court also noted that the State explained the difference between
the two words at length, and that the potential juror stated
repeatedly throughout her voir dire that she found a difference
between them.26 The Court of Criminal Appeals’ decision was not
contrary to, or an unreasonable application of, clearly established
federal law, so we deny his request for COA on this issue.
7. Limit to questioning venire on mitigating evidence.
Next, Goff argues that he was denied due process of law by the
trial court’s refusal to allow him to question the venire regarding
mitigating evidence. In particular, Goff protests that the court
improperly sustained the State’s objection to two questions in
which Goff asked one venireman whether mitigation evidence could
25
Goff, 931 S.W.2d at 548 (emphasis added).
26
Id. at 548-49.
11
rise to a level that would make the death penalty inappropriate.27
This, Goff argues, stymied his informed use of his peremptory
challenges.
The Texas Court of Criminal Appeals found that, even assuming
that the questions should have been allowed, Goff was not harmed
because the court permitted him to inquire whether the prospective
juror could give fair consideration to specific evidence of an
abused or troubled childhood, as well as to other types of
mitigation evidence, including an offender’s religious conversion,
age, intoxication or drug abuse, mental illness, or mental
retardation.28 The Court of Criminal Appeals found that Goff’s voir
dire questioning was not unduly or improperly restricted and did
not adversely affect his use of peremptory challenges. We discern
no constitutional error in those findings and deny COA.29
8. Denial of evidentiary hearing.
In his final issue, Goff seeks an evidentiary hearing, which
was denied by the district court, to develop alibi and ineffective
assistance of counsel claims. We review the district court’s
decision for abuse of discretion,30 and find none.
27
Goff also makes a similar claim regarding another
prospective juror whom he successfully challenged for cause.
28
See Goff, 931 S.W.2d at 546-47.
29
See Mu’Min v. Virginia, 500 U.S. 415 (1991) (due process does
not require particular voir dire questions, only fundamentally fair
trial); Ross v. Oklahoma, 487 U.S. 81 (1988).
30
See Barrientes, 2000 WL 1099389, at *25.
12
The district court concluded that Goff had not alleged any
facts which, if proved true, would entitle him to relief; neither
had he shown cause and actual prejudice nor a fundamental
miscarriage of justice. The court further noted that Goff makes no
“specific, affirmative showing of what the missing evidence or
testimony would have been,” but instead forwards only “bald
assertions, unsupported and unsupportable by anything else in the
record.”
In his appellate brief, Goff explains that he requested an
evidentiary hearing “so that he might subpoena in the attorneys,
his reluctant witnesses to his alibi, and his investigator to show
that there was no adequate, independent investigation of the facts
as sought to be proved by Appellant Goff.” Although his brief does
not describe in detail the precise information he would seek to
elicit through an evidentiary hearing, Goff’s previous claims of
ineffective assistance and failure to investigate generally have
revolved around two subjects. The first is Goff’s cousin, Robert
Lee Cary, Jr., who was contacted by the defense investigator during
the punishment phase of Goff’s trial. Cary subsequently testified
before Goff’s trial court at a hearing on a motion for new trial
that, contrary to Goff’s juvenile confessions, Cary – not Goff –
had shot both victims in the two earlier attempted capital murders.
At the same hearing, however, one of Goff’s trial attorneys
testified that during the punishment phase counsel were aware of
Cary’s claims, and went on to explain the tactical reasons for
13
counsels’ choosing not to put Cary on the stand.
Under Strickland v. Washington,31 Goff can prevail on an
ineffective assistance of counsel claim only if he can show (1)
that his counsel’s performance fell below an objective standard of
reasonableness, and (2) that there is a reasonable probability
that, but for his counsel’s unprofessional errors, the result of
the proceedings would have been different. Here, Goff’s trial
counsel were aware of Cary’s claims, but for several reasons made
a strategic decision not to present that evidence to the jury. The
state trial court found that Goff’s counsel made a reasonable
investigation of his case, and that the decision not to call Cary
as a witness was a matter of trial strategy, to which considerable
deference is owed. Thus, Goff has not met the first prong of the
disjunctive Strickland test nor shown how he would do so were we to
grant him an evidentiary hearing. As Goff fails the initial prong,
we need not address prejudice.
The second subject Goff has sought to develop in support of
his request for an evidentiary hearing is his alleged alibi
witnesses for the night of McGuire’s murder. In his first federal
habeas petition, Goff named Derrick Legan as an alibi witness.
Goff asserted both that Legan “was not interviewed or called as an
alibi witness” at trial and that defense counsel told Goff he had
talked with and investigated all witnesses.
31
466 U.S. 668 (1984).
14
As this claim is made for the first time on federal habeas
appeal, it is evaluated under 28 U.S.C. § 2254(e)(2), which directs
that:
(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim unless
the applicant shows that –
(A) the claim relies on –
. . .
(ii) a factual predicate that could not have
been previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing evidence
that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the
underlying offense.
Goff does not show that his alibi witnesses could not have been
discovered previously through due diligence. Consequently, he is
not entitled to an evidentiary hearing on this claim. We therefore
deny COA on this issue as well.
III
CONCLUSION
Goff’s request for a COA is, as to all issues presented,
DENIED.
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