Lockett v. Anderson

REVISED - OCTOBER 16, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-60019
_____________________

CARL DANIEL LOCKETT,

Petitioner - Appellee-Cross-Appellant,

versus

JAMES V. ANDERSON, Superintendent,
Mississippi State Penitentiary,

Respondent - Appellant-Cross-Appellee.
_________________________________________________________________

Appeal from the United States District Court for the
Southern District of Mississippi
_________________________________________________________________
October 13, 2000

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

We have an appeal by the State and a cross-appeal by the

petitioner in this death penalty case, which arises from the state

courts of Mississippi. We should first note that the appellant,

Carl Daniel Lockett, killed two persons, Mr. Calhoun (Case #1), and

his wife, Mrs. Calhoun (Case #2), for which he was separately

tried, separately convicted, and separately sentenced. He is

therefore under two death sentences, which have been consolidated

in this federal habeas proceeding. This appeal is from the
district court’s judgment in the consolidated case granting habeas

relief in each of the state court cases. The district court set

aside the conviction (and hence the death sentence) in each case

because the indictments were defective in that they failed

adequately to allege the crime of capital murder under recent

Mississippi case law. We have reached a result different from that

of the district court and hold only that resentencing is required.

This appeal becomes somewhat confusing, not only because we

have two separate and distinct state court cases, but also because

we have two separate orders entered by the district court in this

consolidated federal case: the October order granting relief in

Case #1 as to the death penalty only and denying all habeas relief

in Case #2; and the December order, on rehearing of the October

order, which granted--on new grounds relating to the defective

indictments--relief in each case, both as to conviction and

sentence. We will have to address both orders as they relate to

each state court case.

Some issues are common between the two cases; some issues

apply only to one. With respect to the common issues, we reverse

the district court’s ruling that the faulty indictments require

habeas relief. Consequently, we hold that the conviction for

capital murder in each case satisfies constitutional standards.

However, in each case we uphold the district court’s judgments to

2
the extent that they recognize that Lockett be resentenced. In

Case #1, in which the district court first entered judgment

requiring resentencing, we must allow the judgment to stand because

the state has failed to appeal that judgment. In Case #2, we grant

habeas relief, which requires that Lockett be given a new

sentencing hearing. We do so because Lockett’s counsel failed to

conduct a constitutionally adequate investigation into the

available mitigating evidence which, if presented, would have

created a reasonable probability that an objectively reasonable

juror would decide that death was not the appropriate penalty for

the murder of Mrs. Calhoun, notwithstanding its cold and merciless

cruelty.

In the cross-appeal, Lockett appeals from the October order

that rejected all of his claims in each case except for granting

relief from the death sentence in Case #1. We affirm the district

court’s October order in all respects in which it denied relief to

Lockett.

I

We first describe briefly Lockett’s murder of John and

Geraldine Calhoun. Lockett invaded the Calhoun’s home in Puckett,

Rankin County, Mississippi, on the morning of December 13, 1985.

Having watched Mr. Calhoun leave the house with the Calhouns’ two

3
sons, Lockett broke into the home and took Geraldine Calhoun

captive. There, he lay in wait for John Calhoun. When Mr. Calhoun

entered his family’s home, Lockett ambushed him. He shot him four

times with a .32 caliber pistol.1 After killing Mr. Calhoun,

Lockett forced Mrs. Calhoun to strip her husband of his wallet,

ignoring her pleas that he end her own life quickly. Lockett then

forced Mrs. Calhoun into the Calhoun’s commandeered car and drove

to an abandoned chicken house, owned by his grandmother. There, he

executed Mrs. Calhoun with two .22 caliber rifle shots to her head.

Lockett stripped the Calhoun’s car for various parts, hid those

items in the chicken house, walked through the woods to his home,

and fell asleep.

The next day, following obvious clues pointing to him as the

killer, the authorities arrested Lockett. After his arrest,

without assistance of counsel, Lockett confessed fully to his

actions. With respect to Lockett’s confession, the Mississippi

Supreme Court said only this: “After waiving his rights at the

Rankin County Sheriff’s office, Lockett confessed. Subsequently,

1
Relevant to whether this act was “especially heinous,” the
Mississippi Supreme Court described Lockett’s shooting of Mr.
Calhoun in the following manner: “As Mr. Calhoun walked through
the front door, Lockett launched a volley of gunfire from the .32
pistol. Although Mr. Calhoun was struck by the first shot, Lockett
fired 3-4 more times.” Lockett v. State, 517 So.2d 1317, 1320
(Miss. 1988).

4
another waiver was made and Lockett tendered a complete tape-

recorded account of the crime.”

Separate juries convicted Lockett after individual two-day

trials spaced one month apart. The murder trial of Mr. Calhoun

started April 1, 1986, and the jury returned a verdict of guilty of

capital murder on April 2, 1986. Lockett was represented by the

same trial counsel for both trials. His attorney presented a very

brief defense; he gave no opening statement and put no witnesses on

the stand. At the sentencing phases of each trial, which will be

explored more fully, Lockett’s counsel put four family members on

the stand in Case #1, and one in Case #2.

II

Not unlike other capital cases, this appeal has a lengthy

procedural history. On September 30, 1987, on automatic review, the

Mississippi Supreme Court affirmed Lockett’s conviction for the

murder of Mr. Calhoun. See Lockett v. State, 517 So.2d 1317 (Miss.

1987). The state supreme court denied Lockett’s petition for

rehearing on January 13, 1988. The United States Supreme Court

denied Lockett’s petition for writ of certiorari on June 20, 1988.

See 487 U.S. 1210 (1988). Subsequently, the Mississippi Supreme

Court denied Lockett’s motion for post-conviction relief. See

Lockett v. State, 614 So.2d 888 (Miss. 1992). Lockett’s petition

for writ of certiorari to this denial was also rejected. See 510

5
U.S. 1040, 114 S.Ct. 681, reh’g denied, 510 U.S. 1173, 114 S.Ct.

1212 (1994). Thereafter, the Mississippi Supreme Court rejected

Lockett’s second application for state post-conviction relief on

April 13, 1994, deeming it to be time barred and a successive

petition. See Lockett v. State, 656 So.2d 68 (Miss. 1995).

Lockett’s conviction and appeals with respect to the murder of

Mrs. Calhoun followed a similar path. Convicted and sentenced on

May 6, 1986, Lockett’s automatic appeal to the Mississippi Supreme

Court was rejected on September 30, 1987. See Lockett v. State, 517

So.2d 1346 (Miss. 1987). Lockett’s petition for writ of certiorari

to the United States Supreme Court was rejected. See 487 U.S. 1210,

reh’g denied, 487 U.S. 1250 (1988). Thereafter, the Mississippi

Supreme Court denied post-conviction relief, see Lockett v. State,

614 So.2d 898 (Miss. 1992), and the United States Supreme Court

denied the petition for writ of certiorari. See 510 U.S. 1040, 114

S.Ct. 681, reh’g denied, 510 U.S. 1173, 114 S.Ct. 1212 (1994).

Lockett then sought habeas relief in the federal district

court. In an order entered October 16, 1997, the district court

initially denied in part and granted in part Lockett’s habeas

petition. In that order, the district court reversed Lockett’s

sentence with respect to Mr. Calhoun’s murder only, holding that the

“especially heinous” instruction was improperly given on the facts

of the case. Following Lockett’s timely motion to alter or amend,

6
the district court reversed the convictions and sentences of both

Mr. and Mrs. Calhoun, but this time the district court took a

different tact. In an order entered December 16, 1997, the district

court concluded that the recently decided state supreme court

decision, State v. Berryhill, supra, 703 So.2d 250, issued

October 23, 1997, meant that the indictment in each case was fatally

defective, and that this decision retroactively applied to these

1986 convictions. The district court therefore granted habeas

relief as to both convictions (and hence to the death sentences as

well).

III

Lockett filed his federal petition for writ of habeas corpus

on November 20, 1995, prior to the enactment on April 24, 1996, of

the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Therefore, the AEDPA does not apply to Lockett’s

petition. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). We

therefore apply pre-AEDPA standards to the issues raised in this

case. See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997).

IV

We first consider whether we have jurisdiction to review the

State’s challenge to the district court’s October 1997 order, which

only vacated Lockett’s death sentence for the murder of John

7
Calhoun. As we have noted, the district court reversed this

conviction on the grounds that the “especially heinous, atrocious,

or cruel” aggravating circumstance instruction should not have been

given to the jury, finding that there was insufficient evidence for

any rational trier of fact to conclude that the circumstance was

applicable.

We think that the State has waived any appeal of this October

ruling. The only notice of appeal the State has filed is limited

on its face to the district court’s December order. It states quite

specifically:

[T]he Respondents . . . hereby appeal . . . from the
Order granting the petition for writ of habeas corpus
vacating two capital murder convictions and sentences of
death on the condition that the State of Mississippi
either (1) retry Lockett within ninety days, (2) seek a
new indictment against Lockett within ninety days or (3)
resentence Lockett for simple murder, entered on
December 16, 1997 . . . .

The general rule governing the scope of a notice of appeal

states:

Where the appellant notices the appeal of a specified
judgment only or a part thereof, . . . this court has no
jurisdiction to review other judgments or issues which
are not expressly referred to and which are not impliedly
intended for appeal.

Capital Parks, Inc. v. Southeastern Advert. & Sales Sys., Inc., 30

F.3d 627, 630 (5th Cir. 1994) (citation omitted). Federal Rule of

Appellate Procedure 3(c)(1)(B) states that “the notice of appeal

must designate the judgment, order, or part thereof being appealed.”

8
Although “[a] mistake in designating orders to be appealed does not

bar review if the intent to appeal a particular judgment can be

fairly inferred and if the appellee is not prejudiced or misled by

the mistake,” New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 884

(5th Cir. 1998); Foman v. Davis, 371 U.S. 178 (1962),2 we simply

cannot say that the State’s notice of appeal evidences any mistake

that would provide us with jurisdiction here.

Although a mere technical error in designating the proper

judgment being appealed will not divest us of jurisdiction, our

review of the case law addressing such “technical” errors

demonstrates that the error committed here does not fall into that

category. We can overlook such “technical” errors where, for

instance, a motion for reconsideration has been denied, and the

appellant appeals only from the denial of this Rule 59 motion. In

that case, we can infer that the party meant to appeal the adverse

underlying judgment. See, e.g., United States v. One 1988 Dodge

Pickup, 959 F.2d 37, 41 n.5 (5th Cir. 1992); Fed. Trade Comm’n v.

Hughes, 891 F.2d 589, 590-91 & n.1 (5th Cir. 1990); United States

2
See also 9 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE
¶ 203.17[2], at 86-87 (2d ed. 1996) ("[A]s long as the intent to
appeal from a specific judgment can be fairly inferred from the
notice and the appellee is not misled by the mistake," the
jurisdiction of the appellate court is not barred by mistake in
notice of appeal.).

9
v. O’Keefe, 128 F.3d 885, 890 (5th Cir. 1997).3 The same is true

with respect to a notice of appeal from the denial of a motion for

a new trial under Rule 59(e). See Hogue v. Royse City, Tex., 939

F.2d 1249, 1251-52 (5th Cir. 1991).4 The critical distinguishing

feature of all these cases in relation to the instant matter,

however, is that Lockett’s Rule 59 motion was not denied, but

granted. After granting this motion, the district court entered an

entirely new judgment, granting relief not to one death sentence,

but to both, and for new and different reasons.

The State’s notice of appeal is explicit in stating that the

appeal is from the district court’s December order. It references

that order specifically, described by its date, without even an

3
We noted in O’Keefe, however, that “[w]hile a policy of
liberal interpretation of notices of appeal is the rule when the
intent to appeal an unmentioned or mislabeled ruling is clear and
no prejudice will result to the opposing party, when only a
specified judgment or part thereof is noticed, the notice of appeal
is generally strictly construed.” Id. at 890 n.4 (citing C.A. May
Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1055-56 (5th
Cir. 1981)).
4
Indeed, in Hogue we quoted from our decision in Osterberger
v. Relocation Realty Service Corp., 921 F.2d 72, 73-74 (5th Cir.
1991): “[E]very Circuit, including the Fifth, has treated an
appeal from an order denying a motion for new trial as an appeal
from the adverse judgment itself.” Moreover, we stated: “Here,
Hogue’s intent to appeal a final judgment was obvious. To his
second notice of appeal, Hogue attached a copy of his original
notice of appeal [appealing adverse grant of summary judgment] and
the district court’s final order. Taking the two notices and the
appeal papers together, we conclude that Hogue’s intention to seek
review of the summary judgment was manifest.” Id. at 1252.

10
oblique reference to the October order. It refers to the district

court’s order granting habeas for “two capital murder convictions

and sentences.” The October order only granted habeas as to one

of the murder convictions. Furthermore, the intent to appeal only

from the December order is evidenced by the State’s reference to the

December order’s grant of habeas “on the condition” of the options

set forth by the district court. No such options attached to the

grant of Lockett’s petition with respect to the “especially heinous”

factor in the October order. Nor is there anything inherent in the

December order appealed from that would provide reason to believe

that the October order also is in play on this appeal. Furthermore,

the State’s notice of appeal reveals nothing to suggest a mistake.

Indeed, at oral argument, the State essentially admitted to its

error here, but pled ignorance of the appellate rules. The State

does not appeal the wrong order; instead, it merely does not appeal

the earlier judgment. See, e.g., C.A. May Marine Supply Co. v.

Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1974) (“Where parts

of a judgment are truly independent, there is more likelihood that

the designation of a particular part in the notice of appeal will

be construed as an intent to leave the unmentioned portions

undisturbed.”).

Thus, because the notice of appeal leaves no room for doubt as

to its scope, we are unable to assert jurisdiction over the district

11
court’s October 1997 order granting habeas relief as to the death

sentence in Case #1. Given our lack of jurisdiction, that order

must stand. We turn now to the appeal and cross-appeal properly

before us.

V

A

The State of Mississippi’s Appeal

First, we address the State’s appeal of the district court’s

December 16, 1997 order vacating each of Lockett’s convictions and

sentences. Ruling on Lockett’s Rule 59(e) motion to alter the

October 16, 1997 judgment, the district court held that the

indictments against Lockett were fatally defective as a matter of

state law for failure to state with specificity the underlying crime

upon which the capital murders were predicated. Specifically, the

district court reversed Lockett’s convictions (and hence his

sentences) on the basis of a Mississippi Supreme Court decision,

State v. Berryhill, 703 So.2d 250 (Miss. 1997), issued nine years

after Lockett’s trial and two days after the district court entered

its October 16 order rejecting such a claim. The district court

held that Berryhill applied retroactively, and that under this state

supreme court case the indictments on which the jury convicted

Lockett were fatally infirm because of their failure to set forth

12
the elements of the burglary offense on which the capital murder

charge was based.

B

Before addressing the Berryhill case, we first note that the

Mississippi Supreme Court held that this issue was procedurally

barred. Lockett, however, argued before that court that his failure

to comply with procedural rules did not bar consideration by the

court because “matters of jurisdiction may be raised for the first

time on appeal.” 656 So.2d at 73. The court considered Lockett’s

sufficiency of the indictment argument (after holding that the

arguments were procedurally barred by state statute) and, in

reference to the claim that the matter was jurisdictional, stated,

albeit without analysis, that “[w]e are not persuaded.” Id.5

5
In relevant part, the Mississippi Supreme Court’s opinion
reads:

CLAIM 1. THE INDICTMENT IS VOID BECAUSE IT FAILS TO SET
FORTH THE ESSENTIAL ELEMENTS OF THE UNDERLYING OFFENSE OF
BURGLARY.
Lockett alleges his indictment for capital murder is
defective because it failed, without uncertainty or
ambiguity, to identify the essential elements of the
underlying felony offense of burglary. . . . According to
Lockett, a mere allegation of an "intent to ... steal" is
insufficient to charge the burglarious intent to commit
larceny, the intended crime. Lockett alleges the
indictment should have contained additional allegations
focusing upon ownership and asportation of the personal
property as well as a specific intent to permanently
deprive another of the personal property. The argument
is doubly barred.
This concern about the indictment was not expressed

13
 The rule in our circuit is that “[w]hen it appears . . . that

the sufficiency of the indictment was squarely presented to the

highest court of the state on appeal, and the court held that the

trial court had jurisdiction over the case, the issue is foreclosed

to a federal habeas court.” Murphy v. Beto, 416 F.2d 98, 100 (5th

Cir. 1969). See also Alexander v. McCotter, 775 F.2d 595, 598 (5th

Cir. 1985) (“[T]he sufficiency of a state indictment is not a matter

for federal habeas corpus review unless it can be shown that the

indictment is so defective that the convicting court had no

jurisdiction.”). The clear meaning of the court’s rejection of

Lockett’s argument that the procedural bar did not apply is that any

at any time during Lockett's trial. Nor was it one of
the sixteen (16) issues raised on direct appeal to this
Court. Finally, it was not among the fifteen (15)
individual grounds cited in support of the relief
requested in Lockett's first application for
post-conviction relief. Accordingly, Lockett is barred
by virtue of the time bar found in § 99-39-5(2) and the
successive writ bar contained in § 99-39-27(9) from
raising the matter at this late hour.
Lockett, however, argues that a time bar and a
procedural bar have no applicability here because matters
of jurisdiction may be raised for the first time on
appeal, the error is both plain and fundamental
constitutional error, and the failure of Lockett's
previous counsel to raise and pursue the issue either at
trial or on direct appeal constitutes ineffective
assistance of counsel. We are not persuaded. Three
(3) sets of attorneys have failed to raise this issue
which is both time barred and successive writ barred.
(Emphasis supplied).

14
error as to the failure of the indictments to allege the elements

of burglary was not jurisdictional.

Lockett argues, however, that we should disregard this holding

of the state supreme court because in Berryhill the court changed

its position and held that a capital murder indictment, predicated

on the felony of burglary, was fatally defective in the absence of

an allegation of the elements of the crime of burglary. In response

to Lockett’s argument, we shall examine the question of whether the

capital murder indictments against Lockett charge the crime of

capital murder under the law of Mississippi.

1

(a)

The Mississippi capital murder statute, Miss. Code Ann.

§ 97-3-19, reads:

(2) The killing of a human being without the authority of
law by any means or in any manner shall be capital murder
in the following cases:
...
(e) When done with or without any design to effect death,
by any person engaged in the commission of the crime of
rape, burglary, kidnapping, arson, robbery, sexual
battery . . . or in any attempt to commit such felonies.

Furthermore, the crime of burglary requires “[the] breaking and

entering [of] the dwelling house or inner door of such dwelling

house of another . . . with intent to commit some crime therein.”

Miss. Code Ann. § 97-17-23.

15
 Lockett’s two indictments are similar with respect to the

allegations of burglary. The indictment from Case #2 (Mrs. Calhoun)

states:

Carl Daniel Lockett . . . did . . . wilfully, unlawfully,
feloniously and of his malice aforethought kill and
murder Geraldine Calhoun, a human being, while . . .
Lockett, was engaged in the crimes of burglary,
kidnapping and robbery, in that he had forcibly,
burglariously, unlawful [sic] wilfully and feloniously
broken and entered into the dwelling house of the said
Geraldine Calhoun and John Earl Calhoun with the intent
to, once inside, steal the personal property situated
therein and to unlawfully do violence to the persons
situated therein; and further in that he did then
wilfully, unlawfully, feloniously, violently and forcibly
seize the person of Geraldine Calhoun and first confine
her in such house then took her from such place where she
had a right to be to another place against her will and
without her consent with the intent to secretly confine
her; further in that he did violently, wilfully,
unlawfully, feloniously and forcibly take, steal, seize,
rob and carry away from the person and from the presence
of the said John Earl Calhoun a certain billfold and its
contents of value and being the personal property of the
said John Earl Calhoun; and finally in that he did
wilfully, unlawfully, feloniously, violently and forcibly
take, steal, seize, rob and carry away from the presence
of the said Geraldine Calhoun the radio, radio speakers,
sunvisors, cassette tapes and the rearview mirror one
gray 1984 Oldsmobile . . . . said items taken therefrom
being of value and being the personal property of the
said John Earl Calhoun and Geraldine Calhoun: and the
Grand Jury charges that such capital murder is in
violation of § 97-3-19(2)(e) of the Mississippi Code of
1972, as amended.

We find the indictments sufficient to allege capital murder in

the state of Mississippi. First, we believe this case is

distinguishable from Berryhill on the facts. Second, we find the

indictments valid even without the burglary charge. Finally, we

16
believe the district court misapplied Berryhill to the facts in this

case by confusing the requirements of proof with the requirements

of pleading.

(b)

The Mississippi Supreme Court in Berryhill addressed the

question of whether a capital murder indictment that is predicated

on the underlying crime of burglary must state the felony that the

defendant intended to accomplish in the course of breaking and

entering.

In Berryhill, the defendant was indicted for capital murder

while engaged in the commission of a burglary; the indictment

alleged only burglary to support the capital murder charge.

Furthermore, Berryhill’s indictment failed to charge any underlying

offense to comprise the charge of burglary. During pretrial

motions, Berryhill renewed a motion to quash the indictment, arguing

that he had first been informed by the State that he would have to

defend against a charge of burglary with the intent to commit an

assault, and then was later told that he might be required to defend

against burglary with intent to commit kidnaping or attempted

kidnaping. The court quashed the indictment and held that such

indictments must assert with specificity the felony that constitutes

the burglary charge.

17
 The court gave two reasons for this requirement. First, the

court found that such a pleading rule was required to provide notice

to the defendant of what the State intended to prove, stating that

“an indictment that fails to give notice to a defendant of the

charges to which he has been hailed into court to defend will fail

to provide him an opportunity to prepare a defense.” 703 So.2d at

255.6 Second, the court found the specificity requirement in

pleading necessary to satisfy the “well-settled law that a defendant

cannot be put in jeopardy for crimes except those which a grand jury

of his peers has presented.” Id. at 257.

The Berryhill court found that the indictment in that case

failed to satisfy each of these concerns. It determined that

Berryhill had not been given proper notice of the charges against

him because the prosecutor had alleged no felony intended by the

defendant in the indictment that would support the burglary charge.7

The court further found that allowing prosecutors--not the

6
The court found this notice requirement implicit in the
purposes of the indictment generally, noting that “[w]e have
repeatedly held that an indictment must give notice of the nature
and cause of the charges, although a reasonably concise statement
of the crime will suffice.” 703 So.2d at 255-56 (citation
omitted).
7
The court noted the prosecutorial failings in this case: “As
the facts in this case demonstrate, a defendant such as Berryhill
who has been indicted without specifying the burglary may find out
on the eve of trial that the State might try to prove the burglary
on different theories . . . Such ‘trial by ambush’ is at odds with
this Court’s jurisprudence.” Id. at 256.

18
indictment--to apprise defendants of the underlying felony

contravened the principle that only grand juries can charge

defendants. The court noted that the prosecutor “was clearly

considering various theories of what might constitute the burglary”

until the day before trial. Id. at 257. Leaving such discretion

in the hands of the prosecutor to decide which felony to pick for

purposes of prosecution threatened the defendant’s right to

protection from double jeopardy. The court therefore held that a

capital murder indictment predicated upon burglary must specify the

defendant’s intended crime upon breaking and entering.

(c)

Lockett’s case is materially distinguishable from Berryhill on

more than one basis. First, Lockett’s indictments adequately serve

both purposes that troubled the Berryhill court. Lockett had ample

notice of the charges against him and the prosecutors were never in

a position to supplant the requisite intent for the burglary charge

outside the confines of the grand jury. Here, the indictment

notified Lockett that he would be prosecuted for burglary because

he had the intent to steal personal property and the intent to

unlawfully do violence.8 On the other hand, the indictment in

8
Lockett’s indictments were quite specific regarding the crime
underlying the burglary count. The indictments charged him with
the intent to “steal the personal property” inside the Calhoun home
and “unlawfully do violence to the persons situated therein.”

19
Berryhill failed to give notice of any underlying act to support the

burglary charge. Second, the indictment--that is, the grand jury,

not the prosecuting attorney--provided the specific intent

allegation upon which this prosecution was founded. See Berryhill,

703 So.2d at 252.

In addition, Lockett’s indictments also specified alternative

predicate offenses to the capital murder charge. The indictments

included burglary, kidnaping, and robbery9 as alternative predicate

offenses, each sufficient under Mississippi law to support a capital

murder charge.10

(d)

More fundamentally, we believe the principle stated in

Berryhill--that a capital murder indictment fails adequately to

state the crime of capital murder unless the indictment properly

charges a felony set out in the capital murder statute--is fully

satisfied here. The sole issue here is whether Lockett’s indictment

states the crime of capital murder adequately under the Mississippi

statute to satisfy federal constitutional standards. We think there

is no doubt that it does. The capital murder statute requires a

9
The Berryhill court noted that “[i]n the context of capital
murder, this Court has further held that a bare allegation of
robbery in an indictment, without further specification of the
facts in support of that, is sufficient.” 703 So.2d at 256. See
also Mackbee v. State, 575 So.2d 16, 35 (Miss. 1990).
10
See Miss. Code Ann. § 97-3-19(2)(e).

20
“killing” by an individual “engaged in the commission of the crime

of rape, burglary, kidnapping, arson, robbery, . . . or

nonconsensual unnatural intercourse with mankind”. Miss. Code Ann.

§ 97-3-19(2)(e) (emphasis added). The state need properly to allege

only one of these underlying crimes to support a capital murder

charge. The indictment in Berryhill was defective because it

charged only burglary, requiring the state properly to charge the

defendant’s specific intent for breaking and entering, in order to

convict on capital murder.11 The Lockett indictment, on the other

hand, alleged multiple alternative supporting felonies. Thus, even

if we agreed with the district court that “a portion of each

indictment charging Lockett with capital murder based upon the

underlying felony of burglary is fatally defective,” the indictments

still state a crime under the capital murder statute because they

adequately charge alternative felonies that support capital murder.

Stated differently, if every allegation relating to burglary were

removed from the indictment, it survives nonetheless as the work of

the grand jury upon which the state can prosecute capital murder.

Thus, even if Berryhill were applicable to Lockett’s case, no

jurisdictional question could be successfully raised in this capital

11
Berryhill was originally indicted for capital murder while
engaged in the commission of a burglary, attempted kidnaping of a
child, and possession of a firearm by a convicted felon. All
predicate crimes with the exception of burglary were severed from
the indictment pursuant to pretrial motion.

21
murder prosecution and hence no basis for federal habeas relief

would exist.

2

In reversing the district court’s December order, we find that

the ultimate flaw in the court’s opinion lies in a misapplication

of Fisher v. State, 481 So.2d 203 (Miss. 1985). We should emphasize

that the only question raised by Berryhill relates to the adequacy

of the charge in the indictment. Fisher relates only to proof of

the charge in the indictment. In this appeal, we simply are not

called upon to address any question concerning the sufficiency of

the evidence supporting these convictions.

The district court did acknowledge that “the portion of the

indictments attempting to define larceny as the underlying felony

to support the burglary charge, although inartfully stated,

adequately apprised Lockett of the basis for that portion of the

burglary charge.” However, the court then determined that the “to

unlawfully do violence” portion of the indictment failed to define

a crime and thus failed to support sufficiently the burglary charge.

The district court, citing Fisher, found that, because “the state

undertook the burden of proving” (emphasis supplied) burglary and

failed to do so, the convictions should be vacated.12

12
It seems clear from the evidence, irrespective of the charges
in the indictment, that the state actually proved an overwhelming
case of felony burglary, including breaking and entering with

22
 The defendant in Fisher was charged with capital murder

predicated on the crimes of rape and robbery. Fisher was convicted

of the capital murder charge and later challenged the sufficiency

of the evidence presented at trial to establish the underlying

felonies of rape and robbery. Thus, the Mississippi Supreme Court

in Fisher was concerned with evidence, stating that “[h]ere, Fisher

tests the legal sufficiency of the evidence supporting the verdict

of guilty on each element of the offense of capital murder.” 481

So.2d at 212. Noting that a “capital murder conviction must be

supported by evidence legally sufficient to support a conviction of

both the murder and the underlying felony had either been charged

alone,” the court found that the state had undertaken the burden of

proving both underlying felonies in the indictment.13 Because the

state failed to present sufficient evidence to establish that Fisher

committed rape and robbery, the court overturned the conviction.

Thus, it appears that the district court commingled the issues

of pleading and proof: while acknowledging that burglary was

adequately alleged with respect to intent to commit theft, it relied

on a case addressing only the issue of proof to hold that the

intent to engage in an unlawful crime of violence, i.e., the murder
of Mr. Calhoun.
13
Id. The court found that the state had undertaken the burden
to prove both rape and robbery because, “in both the indictment and
the jury instructions, the underlying felonies are stated ‘rape and
robbery.’”

23
indictment was defective in failing to adequately allege burglary

based on intent to assault. In short, Fisher does not make

requirements on the indictment; it makes requirements on proof.

Thus, the district court’s reliance on Fisher to hold these

indictments were somehow fatally defective was erroneous.

3

For the foregoing reasons, we find that Lockett’s indictments

sufficiently allege the essential elements of the crime of capital

murder. Given the state supreme court’s holding that any failings

of the indictments was not jurisdictional, the factual differences

between Berryhill and this case, and the inapplicability of

Berryhill and Fisher, we reverse the December judgment of the

district court.

VI

Lockett’s Cross-Appeal

Because we reverse the district court’s December judgment, we

must consider Lockett’s cross-appeal. The district court’s

December 16, 1997 order vacating Lockett’s two death sentences did

not address or otherwise affect the district court’s October 16,

1997 order insofar as it denied other claims raised in Lockett’s

habeas petition. We can divide Lockett’s cross-appeal into two

categories. First, Lockett raises several claims that address the

validity of his conviction. Second, he raises claims that pertain

24
only to the validity of his sentence. We state the obvious to say,

if there is error with respect to his conviction, the remedy would

be to remand for a new trial and, assuming reconviction, for

resentencing. If there is error in the sentencing, we would remand

only for a new sentencing procedure upon the election of the State.

We should further note that because we lack appellate jurisdiction

over the grant of habeas relief in Case #1, which set aside the

death sentence imposed on Lockett in that case, it is unnecessary

to address further the other sentencing issues there; that is to say

that we address only the sentencing claims arising from Case #2.

We turn first to the allegations of conviction-related error.

A

Issues Arising from Guilt Phase of the Trial

Lockett argues that the prosecution’s use of its peremptory

challenges to exclude all black jurors from both juries violated the

constitutional guarantees set forth in Batson v. Kentucky, 476 U.S.

79 (1986). We find no constitutional violation here.

1

The trial involving the murder of Mr. Calhoun (Case #1) began

one month before Batson, in which the Supreme Court stated that any

party seeking to exercise a peremptory challenge to strike black

members of a jury venire must provide a “neutral explanation” for

challenging such potential jurors. 476 U.S. at 96-97. The second

25
trial, involving the murder of Mrs. Calhoun (Case #2), took place

shortly after the Batson decision was rendered.

Notwithstanding the fact that the Supreme Court has held that

any pre-Batson challenges should be treated under the standards set

forth in Batson, see Ford v. Georgia, 498 U.S. 411, 420 (1991),

Lockett has failed to preserve this issue by not contemporaneously

objecting at trial.14 Because no specific objection was raised at

the time of the first trial (Case #1), we find no evidence that any

inquiry was made as to the prosecutor’s rationale for excluding all

black members of the jury pool during the trial. Thus, we have no

facts or arguments before us upon which to base a Batson inquiry.

As did the Mississippi Supreme Court, we find this issue

procedurally barred as a matter of law.

2

We have a different situation with respect to Case #2.

Lockett’s counsel raised a Batson objection to the prosecution’s use

of peremptory challenges during the trial of Mrs. Calhoun’s murder.

Although Lockett’s counsel made a prima facie case of discrimination

14
The district court observed that the Mississippi state courts
had found this claim to be procedurally barred, but did not reach
this conclusion itself. Instead, it addressed the argument on the
merits, albeit noting that it did so “out of an abundance of
caution.”

26
in Case #2,15 the trial court evaluated each of the reasons given by

the prosecution with respect to the five individuals struck. The

trial court entered a factual finding that the reasons articulated

by the prosecutor were racially neutral. These reasons were

evaluated in detail by the Mississippi Supreme Court, which reached

the same conclusion. See 517 So.2d at 1351-52. There is no

evidence to suggest that these race neutral explanations were

actually false. Certainly, mere cognizance of racial identity does

not necessarily establish, or even imply, racial discrimination.

The standard of review we apply is stated in the applicable pre-

amendment habeas statute: The state court’s determination of a

factual issue “shall be presumed to be correct,” unless a federal

court, upon considering the relevant part of the state court record,

“concludes that such factual determination is not fairly supported

by the record.” 28 U.S.C. § 2254(d)(8), amended by 28 U.S.C. §

2254(e)(1) (1996). Lockett argues that this presumption of

correctness should not apply because the trial judge’s reason for

accepting the prosecutor’s rationale for at least one juror–-a lack

15
The Mississippi Supreme Court stated: “[t]he prosecutor used
five of his first seven challenges to eliminate all black jurors
from the venire.” 517 So.2d at 1350. The five jurors struck are
detailed in the Mississippi Supreme Court opinion. See 517 So.2d
at 1350. In short, they were: a 25-year-old with an eleventh
grade education; a 49-year-old preacher; a 35-year-old housewife
who did not reveal her brother’s conviction for armed robbery; a
38-year-old concerned about possible sequestration (in a two-day
trial); and a 25-year-old wearing a hat into the courtroom.

27
of education--was equally applicable to at least seven white jurors

who lacked a high school education but were left on the venire

panel.16

The burden of demonstrating that a constitutional violation

occurred is, of course, on a habeas petitioner. See Batson, 476

U.S. at 96. Lockett has failed to establish that a Batson violation

actually occurred. First, the evidence that several whites served

as jurors despite their lack of a high school diploma is information

developed and presented only in posttrial proceedings. No evidence

has been adduced to establish that the judge at Lockett’s trial knew

that some whites without a high school education were serving as

jurors. In fact, the record suggests that the contrary was true.17

Second, the record does not establish clearly that the prosecution

was consciously aware of the fact that it was accepting five white

jurors without high school diplomas. Third, the record does not

establish that the asserted race-neutral explanation by the

16
The record confirms that at least five white jurors who were
accepted by the prosecution and served on the jury had not
graduated from high school.
17
During jury selection, the judge ruled the prosecutor’s
reasons for exercising peremptory strikes were legitimate by
stating, “I would not want a young, single juror with a marginal
educational background.” This statement certainly suggests that
the judge had no idea others without high school educations had
been selected for jury duty.

28
prosecution was applied only to black persons.18 Finally, it is not

at all clear that the black juror in question was struck based

merely on his lack of a high school education. The prosecutor gave

several other reasons for his exercise of a peremptory strike: “He

is young, twenty-two years old, . . . [h]e is not married. I take

that as an indication of being less stable than some of these other

jurors.”

In sum, given a race-neutral explanation that was not proved

pretextual, and given the deference we owe to fact-finding of the

state courts and the district court, we hold that the petitioner has

failed to meet his burden of establishing that an actual Batson

constitutional violation occurred at trial.

319 20 21

18
The prosecution exercised at least one other peremptory
challenge on a white member of the jury pool based on a lack of
education.
19
Lockett argues that the district court’s December grant of
relief with respect to the indictments also acknowledged that the
jury instructions were in error, but did not grant relief on this
ground. We find this claim to be procedurally barred.
20
We also reject Lockett’s request for an evidentiary hearing
on whether the jury saw Lockett in shackles when he was brought
into the courtroom. The district court was not clearly erroneous
when it held as a finding of fact that the jury could not have seen
Lockett in handcuffs (not, as alleged, shackles) for the brief time
he was so restrained in the courtroom. Indeed, Lockett received an
evidentiary hearing on this claim in state court. There, the trial
judge found no factual basis for the claim. This finding of fact
is presumed to be correct. See 28 U.S.C. § 2254(d)(8), amended by
28 U.S.C. § 2254(e)(1) (1996). Lockett is entitled to no relief on

29
 Lockett next argues that his confessions were obtained in

violation of his Sixth Amendment rights to counsel and due process

and were involuntary. There is some evidence that when Lockett was

arrested he was either intoxicated and/or under the influence of

drugs. Lockett argues that because the officers interrogating him

declined to tell him that he had court-appointed counsel

immediately, and because it was unclear whether Lockett had

recovered from his intoxicated state at the time of his confessions,

his rights were violated and the writ should be granted.

We agree with the district court’s conclusion that this claim

is procedurally barred. In Lockett’s second motion for post-

conviction relief in Case #1, the Mississippi Supreme Court stated

that:

None of the fifteen (15) grounds contained in Lockett’s
first application for post-conviction relief filed by his
second set of lawyers assailed the voluntariness of
Lockett’s confession . . . It is too late now to

this claim.
21
Lockett urges that the district court erred by finding no
prosecutorial misconduct. He argues that the prosecutor misled the
jury regarding the alternative to the death sentence in violation
of Caldwell v. Mississippi, 472 U.S. 320 (1985), and Williams v.
State, 445 So.2d 798, 813 (Miss. 1984) (en banc). Lockett also
argues that the prosecutor in Case #1 improperly criticized his
failure to express remorse.
These claims are barred, as the Mississippi Supreme Court
concluded, because Lockett failed to object at trial. Moreover, we
simply find no constitutional violation in the prosecutor’s
conduct. At most, even assuming error, the comments were harmless
and in no way prejudiced the outcome of the trial.

30
 reconstitute this issue in a second and successive
application for post-conviction relief.

Lockett, 656 So.2d at 74. The district court determined that

Lockett failed to show cause and prejudice for his failure to raise

the voluntariness claim before his second post-conviction relief

motion. We agree with the district court that “[a] blanket

assertion that all previous counsel were ineffective is not

sufficient to establish such cause.” Because the claim was barred

by the state court based upon an adequate and independent state

ground, and because Lockett has failed to show cause and prejudice,

we find Lockett’s claim that his confessions were coerced to be

procedurally barred.22 Thus, Lockett is not entitled to habeas

relief on this ground.

423 24

22
Despite the procedural bar, we find the evidence
overwhelmingly establishes that Lockett’s confessions were
voluntary. A review of the waivers that Lockett signed provides
ample evidence of the voluntariness of his confessions. The second
waiver, signed after meeting with his family, clearly states, “I do
not want a lawyer at this time. I understand and know what I am
doing.”
23
Lockett argues that the trial court’s failure to issue a
requested manslaughter instruction in Case #2 violated his Eighth
and Fourteenth Amendment rights. The district court held this
claim to be barred procedurally. We affirm that finding.
Lockett’s substantive arguments are also unavailing. He has
failed to show that the jury rationally could acquit on the capital
crime and convict for the non-capital crime of manslaughter.
Giving the jury an option of finding guilt for non-capital murder
is sufficient. See, e.g., Aldridge v. Scott, 41 F.3d 213, 220 (5th
Cir. 1994) (“Our reading of Beck and Schad instructs us that the

31
 Next, Lockett argues that the jury charge on capital murder

deprived him of his right to a unanimous verdict in Case #1 (Mr.

Calhoun). The instruction asked the jury to consider “whether the

capital offense was committed while the defendant was engaged in

burglary, robbery and/or kidnapping, or in an attempt to commit one

trial court was not constitutionally bound to provide a wider menu
of jury instructions. Instead, because the jury had the viable
option to choose murder over capital murder, we are satisfied that
the option ensured the reliability of the jury’s capital murder
verdict.”). Lockett has not shown a constitutional violation.
24
Lockett argues that the introduction of evidence and argument
at the respective trials concerning the murder of the other spouse
violated his Fourteenth Amendment rights. In rejecting this claim,
the district court stated, referring to Case #1, that “the killing
of Mrs. Calhoun was clearly motivated by Lockett’s desire to effect
a successful escape from his murder of Mr. Calhoun. Thus, the
mention of her fate was relevant to establish an unlawful motive in
the killing of her husband.”
Our holding in Robinson v. Whitley, 2 F.3d 562, 567 (5th Cir.
1993), stated that the prohibition to admission of “other crimes”
evidence does not apply if the sequence of events formed “one
continuous transaction.” Moreover, a state law evidentiary error
may entitle a petitioner to habeas relief only where the violation
is “of such magnitude as to constitute a denial of ‘fundamental
fairness.’” Bryson v. Alabama, 634 F.2d 862, 864-65 (5th Cir. Unit
B 1981) (citation omitted).
We do not think the trial judge erred in concluding that the
two murders were so interconnected and interrelated as to form one
continuous transaction. Here, Lockett committed two murders, one
after the other, closely spaced in time and with a virtually
inseparable, interrelated connection. We especially think that
reference to the murder of Mr. Calhoun in Lockett’s trial for the
murder of Mrs. Calhoun was unavoidable insomuch as it both
completes the picture of the sequence of events, see United States
v. Weeks, 716 F.2d 830, 832 (5th Cir. 1983) (direct appeal), and
explains a motive for Lockett’s decision to kill Mrs. Calhoun. See
Smith v. State, 499 So.2d 750, 755-57 (Miss. 1986); Fed.R.Evid.
404(b). Any error here simply does not rise to the level of
fundamental unfairness that would allow for habeas relief.

32
or more of such crimes.” Lockett argues that this charge allowed

the jury to find him guilty of murder during the course of a felony

without requiring a unanimous finding of what the underlying felony

was. Lockett contends that the ability of the jury to choose the

felony violates the principle set forth in Schad v. Arizona, 501

U.S. 624 (1991), that a jury must be unanimous as to the means of

committing the crime when there is “a material difference” between

the various means set forth in the jury instructions. Id. at 633.

Finally, Lockett argues that this error cannot be harmless as there

is “grave doubt” as to its effect. See California v. Roy, 117 S.Ct.

337, 338 (1996).

We first consider whether we are barred from considering this

claim. The State argues that Lockett never presented this claim to

the state courts at trial, nor on direct appeal, nor in post-

conviction petitions. Therefore, the claim is unexhausted. The

State notes that under Mississippi’s three-year statute of

limitations rule, it is also unexhaustable. For both reasons, the

State contends this claim is procedurally barred from our

consideration. See Castille v. Peoples, 489 U.S. 346 (1989). The

State makes no substantive response to Lockett’s argument.

The district court, however, found that “the claim was indeed

raised in each of Lockett’s direct appeals.” (Citing Lockett, 517

So.2d at 1332; Lockett, 517 So.2d at 1355.) That conclusion,

33
however, does not recognize the fact that the Mississippi Supreme

Court found this claim to be procedurally barred because of

Lockett’s failure to raise it at trial. There is no dispute in the

record as to the fact that there was no contemporaneous objection

at trial, and the Mississippi Supreme Court correctly applied a

procedural bar. Therefore, we need not address this matter further

as it is procedurally barred from consideration by this court.25

B

Issues Related to Sentencing Phase of Case #2

25
Finally, with respect to conviction-related errors, Lockett
argues that removal of venireman Crear was error. We presume the
correctness of the state court’s findings that a juror was removed
correctly. See Fuller v. Johnson, 14 F.3d 491, 500-01 (5th Cir.
1997); Russell v. Collins, 998 F.2d 1287, 1293-94 (5th Cir. 1993).
Mr. Crear was excused on the basis of his statements that he did
not believe in the death penalty and that he would be criticized at
church and at home if he participated in a verdict of death.
Lockett argues that these statements do not rise to the level of a
showing that would “prevent or substantially impair the
performance” of his jury duties under Wainwright v. Witt, 469 U.S.
412, 424 (1985).
Lockett presents nothing to persuade us that we should depart
from our presumption of correctness of the factual finding below.
A trial court may exclude a venire member for cause if his views on
capital punishment would prevent or substantially impair the
performance of his duties as a juror in accordance with the
instructions given and the oath taken by the juror. See Fuller,
114 F.2d at 500. In addition to Crear’s comments that Lockett
cites above, Crear was asked if he could put aside strong moral and
religious beliefs about the death penalty and follow the
instructions provided. He responded that he could not do so.
These facts clearly rise to the level of preventing or
substantially impairing his duties as a juror.

34
 We now turn to those issues that pertain only to Lockett’s

sentence of death for the murder of Mrs. Calhoun. As we have

earlier noted, we lack jurisdiction to consider the district court’s

order granting habeas with respect to the sentencing phase in Case

#1 (Mr. Calhoun). This means that the death sentence imposed on

Lockett in that case has already been adjudicated as

unconstitutionally imposed, and we need address only matters that

relate to the death sentence imposed on him in Case #2 (Mrs.

Calhoun).

1

We first address whether Lockett’s counsel was constitutionally

ineffective at the sentencing phase of the trial. After a two-day

evidentiary hearing, the district court concluded that Lockett had

failed to meet the requirements of the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984), i.e., deficient

performance and prejudice. Specifically, the district court

concluded that Lockett’s counsel had made a “strategic decision” not

to present evidence of Lockett’s mental problems on the basis that

such evidence might be more harmful than helpful, i.e., the jury

might conclude that such evidence was further proof of instability

and dangerousness justifying the death penalty. We emphasize that

there is no issue of Lockett’s competency to stand trial before us.

Thus, any psychiatric, psychological, or physiological testimony

35
relevant to such competency is beside the point. The sole issue

here relates to whether counsel was ineffective as relates to the

sentencing phase. In this respect, the first question that we

address is whether counsel was deficient in failing to investigate

the sources for mitigation evidence; second, whether the district

court erred in holding that counsel’s action constituted trial

strategy; third, whether there was prejudice resulting from failing

to investigate and present the mitigating evidence that would have

been available.

2

We first note the standard of review applicable to this issue.

The ultimate question of effective assistance of counsel is a mixed

question of law and fact that we review de novo. See Felder v.

Johnson, 180 F.3d 206, 214 (5th Cir. 1999). Under the pre-amendment

28 U.S.C. § 2254(d), which is applicable to this appeal, we are

required to afford a presumption of correctness to all district

court factual findings if they are supported by the record.26

An ineffective assistance of counsel claim is governed by the

standards set forth in Strickland v. Washington, supra. We start

with the proposition that, under Strickland, “counsel is strongly

presumed to have rendered adequate assistance and to have made all

26
See 28 U.S.C. § 2254(d)(8), amended by 28 U.S.C. § 2254(e)(1)
(1996).

36
significant decisions in the exercise of reasonable professional

judgment.” 466 U.S. at 690. Here, the initial deficiency asserted

against counsel is his failure to investigate the potential

information available that might have been presented in mitigation

of the death penalty.

3

It is clear that defense counsel’s failure to investigate the

basis of his client’s mitigation defense can amount to ineffective

assistance of counsel. See, e.g., Williams v. Taylor, 120 S.Ct.

1495 (2000). When considering a failure to investigate claim the

Supreme Court has said, “counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations 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.” Strickland, 466 U.S.

at 691.

Lockett argues that his counsel’s performance was deficient

because his lawyer failed to investigate even the basis of his

mental and emotional problems.27 Lockett refers us to a list of

27
By failing to brief any other of his arguments related to
ineffective assistance of counsel, Lockett has waived those
arguments. See East v. Scott, 55 F.3d 996, 1007 n.8 (5th Cir.
1995).

37
mental problems suffered by Lockett at the time of his murder of Mr.

and Mrs. Calhoun, a list that was presented at the habeas

evidentiary hearing before the federal district court. Against this

list, Lockett notes that his trial counsel effectively put on no

evidence for mitigation in his sentencing phases.

We have reviewed the record thoroughly, both in the state court

and the district court on this issue. That record overwhelmingly

points to the conclusion that Lockett’s counsel did little work in

investigating possible bases for a sentencing defense for Lockett.28

a

Specifically, the state habeas record reflects an overworked

defense counsel, trying to present a defense in two death penalty

trials a month apart while at the same time trying two other death

penalty cases. Defense counsel’s December 1988 affidavit states:

“Because of my mother’s illness and hospitalization and my

unexpected appointment to represent two other capital murder

defendants while trying to prepare for Carl’s two trials, I was

simply unable to devote time to investigating the facts and

witnesses involved in Carl’s case as much as I would have liked to.”

This admission is borne out in the affidavits of those who testified

28
We stress that Lockett has raised no issue on appeal with
respect to his counsel’s assistance at the guilt phase of the
trial, and the evidence would not have supported any possible
effort to question Lockett’s competency to stand trial.

38
on Lockett’s behalf. Lockett’s mother states: “Mr. Townsend never

approached me to testify at Carl’s trials but I asked him if I could

testify. Mr. Townsend asked me what I wanted to say and I told him

that I just wanted to say something on Carl’s behalf and ask the

jury for mercy. Mr. Townsend said that I could do that, but he

never really discussed my testimony with me or suggested anything

else for me to testify about. He never explained to me [the] kind

of evidence that would be useful at the sentencing phase of Carl’s

trial or asked me questions about what kind of person Carl was.”

Other witnesses’ and potential witnesses’ statements are similar.29

Although disputed by Townsend, Lockett states:

Mr. Townsend only met me twice in the entire time while
he was preparing my cases for trial. The first of these
meetings lasted only fifteen minutes and the second one
lasted for half an hour. Mr. Townsend never asked me
about my childhood. . . . Mr. Townsend never explained to
me what kind of evidence was needed at the sentencing
hearing. Mr. Townsend asked me where my blackouts came
from and I told him that I was hit on the head when I was
younger. Mr. Townsend never asked any more questions
about the subject.

Finally, we note the affidavit of an experienced death penalty

investigator, concluding that “[a] thorough case and mitigation

29
Statements are offered by Lockett’s brother and sister, both
of whom state that Mr. Townsend never talked to them or did so in
only the most cursory manner. We note that one of Lockett’s
sisters has stated that Lockett referred to himself as “Bradley
Armstrong” at as young as fifteen or sixteen years of age. He also
uses a second name now, [Prince] Shaka A’Zulu 13X. He has signed
legal documents under at least one of these signatures since 1986.

39
investigation was not performed at the time of Mr. Lockett’s trial.”

This investigator concludes that counsel’s inquiry fell below the

minimum investigation recommended by the American Bar Association.

Counsel has no notes of the results of any investigatory work with

respect to sentencing. Counsel’s testimony at the evidentiary

hearing also demonstrates a basic lack of familiarity with the

psychological tests that were performed on Lockett. It is

undisputed, however, that counsel had notice of possible

psychological problems suffered by Lockett, both because of Dr.

Summers’s and Dr. Johnson’s work and his own awareness that Lockett

had a history of head injuries.

The medical evidence similarly indicates that Lockett’s

possible problems were inadequately investigated. For instance, a

Dr. Owen testified in the federal habeas proceeding: “[B]ased on the

medical and other records which were available in 1986 at the time

of Carl’s original trial, if I had been hired as an expert for Carl,

I would have advised that the aforementioned medical tests to

evaluate the extent of Mr. Lockett’s brain damage and/or other

mental disorders be given to provide mitigating evidence at his

sentencing trial.”

Indeed, the only effort to explore the mental problems of

Lockett was initiated by Lockett’s mother when she engaged Dr.

Timothy Summers, a psychiatrist, to examine her son. Dr. Summers

40
determined that a thorough evaluation of Lockett required an

electroencephalogram, a CT brain scan, and “neuropsychological

studies.” Summers informed Lockett’s counsel that, in his words,

“these tests were essential to providing a thorough and complete

evaluation [of] Mr. Lockett.” These particular tests, however, were

never performed, even though the record shows that counsel received

this information. Lockett did undergo some preliminary testing.

Specifically, Dr. Johnson performed an MMPI30 on Lockett, but

considered the results invalid. However, from counsel’s testimony,

it appears doubtful that he ever followed up with Dr. Johnson in an

effort to understand the tests that were performed and their

significance.31 Furthermore, Dr. Johnson submitted an affidavit in

30
The Minnesota Multiphasic Personality Inventory (MMPI) exam
is designed to yield a personality profile of the examinee based on
written and oral responses.
31
Dr. Johnson stated at the evidentiary hearing that he had no
notes of any conversation with Townsend in his file, and it would
have been his practice to have such notes if such a conversation
had taken place. Townsend recalls receiving Johnson’s report but
stated at the evidentiary hearing that “[it] did not give me any
information that I feel that would be extremely helpful to Carl.
And I felt like if I used any of this information that Dr. Johnson
provided, that it would open up cross-examination and it would open
up the state putting mitigation [sic] on, and I felt like any value
that I could get by putting this on could be offset by whatever the
state would put on.”
A Dr. Price testified at the evidentiary hearing before the
district court as follows: “[W]hen [Townsend] saw that the test
was invalid, he should have asked . . . [that] that test be
readministered or a substitute for it made. . . . . An attorney
unschooled in the area of psychology but with four years of
undergraduate education and a professional degree should have

41
which he states: “I was prepared to testify on Mr. Lockett’s behalf,

but no one ever contacted me after my evaluation to ask me to relay

my findings or discuss my potential testimony. In particular, I

never talked with Mr. Lockett’s trial attorney, Mr. William

Townsend, whom I expected would call me after he received my

reports. He never called me to discuss my findings, nor did he

contact me to testify at Mr. Lockett’s trials. I do not remember

talking with Mr. Townsend.” Townsend’s notes, however, indicate

that he was aware of Lockett’s seizure problem and incidents of head

trauma.

b

“A defendant who alleges a failure to investigate on the part

of his counsel must allege with specificity what the investigation

would have revealed and how it would have altered the outcome of the

trial.” United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).

We now turn to review whether pursuit of the information available

to counsel would have produced evidence relative to mitigating the

sentence of death.

The record contains substantial medical expert testimony

supporting a conclusion that Lockett suffers a personality disorder

and a brain abnormality associated with a documented history of

questioned that invalidity and asked Dr. Johnson to take steps to
determine what caused that and to get a replacement evaluation.”

42
seizures. This evidence is substantiated in part through evidence

that Lockett began referring to himself as “Bradley Armstrong” as

a teenager or, possibly, from the very beginning of his

incarceration. His confessions contain statements indicating a

delusional personality. At the time of his confession, for example,

he claimed to have been having an affair with Mrs. Calhoun.32

Most relevant to possible mitigation evidence, however, was

expert testimony supporting the opinion that Lockett’s seizures may

have resulted from temporal lobe epilepsy, caused either organically

or as a result of repeated falls as a youth. Dr. Owen, evaluating

Lockett post-sentencing, stated temporal lobe damage “would explain

any senseless acts of violence and his eccentric interpretation of

reality.”33 Likewise, a Dr. Margulies stated that, upon review of

Lockett’s medical records, “it is my opinion that Mr. Lockett very

likely has organic brain damage in the frontal and/or temporal

32
The evidence suggests that Lockett suffers other profound
delusions, claiming life stories, marriages, children, and careers
that have no basis in reality.
33
Dr. Owen also concluded that “Damage to the temporal lobe can
be associated with distinct loss of memory for events, impaired
comprehension of language, and with aggressiveness and violent
behavior. Seizure activity in the temporal lobe can be associated
with very sudden onset of such violent behavior. Further, damage
to any of a variety of limbic system structures may also result in
marked aggression or violence or rage reactions. Sudden loss of
control over aggressive tendencies, such as in explosive episodes,
with minimal stimulation, can be found in limbic system lesions.”

43
lobes.”34 An affidavit submitted by Dr. Price is to the same;

indeed, he concludes Lockett presented symptoms of even more severe

problems, including a diagnosis of paranoid schizophrenia. Dr.

Margulies testified at the evidentiary hearing that Lockett suffered

from a temporal lobe lesion,35 and Dr. Johnson concluded that “I

don’t think [Lockett] would have committed the murder absent this

temporal lobe lesion.”36

Although the state’s medical experts dispute the severity of

Lockett’s possible mental problems, they do admit to psychological

problems. For instance, a Dr. O’Brien concluded that Lockett has

a below average IQ and that test “results suggested substance abuse

34
Dr. Margulies also stated: “Major authorities in the field
of neurology feel that murderers commonly have frontal and/or
temporal brain pathology that contributes to their inability to
distinguish right from wrong and to control violent impulses. . . .
It is well known that organic pathology in the frontal and/or
temporal lobes can impair a person’s judgment and impulse control.”
35
Dr. Margulies examined Lockett and Lockett’s medical records
on November 9, 1994, and based his opinions on the tests he
administered during that examination.
36
Ms. Julie Ann Epps, one of Lockett’s previous attorneys in
this case, states: “In my twenty-two years of practicing criminal
law, I have never represented a criminal defendant with such
complicated neurological and psychological problems. Carl’s
delusions and fantasies make it difficult to represent him because
it is difficult to determine fact from fiction, and everything that
Carl says needs to be verified independently. I do not believe
that Carl is being deliberately obstructive. In fact, he is
pleasant and ‘cooperative.’ Rather I believe that he is simply
unable to distinguish the real from his fictional personae and that
he, therefore, is unable to rationally consult with his attorneys
and conduct a rational defense.”

44
problems, and paranoid (and other) personality difficulties;

[although] results did not suggest psychotic thinking or behavior.”

A Dr. Guild stated: “In summary, Mr. Lockett represents a

Characterlogical Disorder with mixed features. He certainly has

schizoid and antisocial features to his personality. I do not see

him as representing an Organic Personality Disorder or being

psychotic.” The State’s experts appear to admit to a history of

seizures and/or head trauma, and the possible existence of frontal

lobe damage.

4

Our review of the above evidence leads us to conclude that

counsel’s failure to investigate was deficient; it was not an

exercise of informed strategic choice. Although he possessed

information that plainly suggested the need to investigate Lockett’s

psychological problems, he did not, to any degree, pursue this

information. A reasonably effective defense counsel would have

pursued this information. It is also undisputed that there was

ample evidence of childhood trauma at home that should have been

pursued. In sum, there was enough information before counsel--

repeated head injuries, black-outs, delusional stories, references

to self as another name, family troubles, drug and/or alcohol

addiction–-to put him on notice that pursuit of the basic leads that

were before him may have led to medical evidence that Lockett had

45
mental and psychological abnormalities that seriously affected his

ability to control his behavior. Counsel thus may have had a strong

predicate from which to argue to the jury that Lockett was rendered

less morally culpable for the ruthless, cruel, and senseless murders

he had committed.

The state argues, however, that these alleged failings of

counsel to investigate do not constitute ineffectiveness but instead

are strategy choices. Strickland, however, demands more than the

mere decision of a strategic choice by counsel. It requires

“informed strategic choices.” Id.

Essential to the rendition of constitutionally adequate
assistance in either phase is a reasonably substantial,
independent investigation into the circumstances and the
law from which potential defenses may be derived.

Baldwin v. Maggio, 704 F.2d 1325, 1332-33 (5th Cir. 1983). Indeed,

“Strickland does not require us to defer to decisions that are

uninformed by an adequate investigation into the controlling facts

and law.” United States v. Drones, 218 F.3d 496, 500 (5th Cir.

2000). See also Baxter v. Thomas, 45 F.3d 1501, 1514 (11th Cir.

1995) (“An attorney’s decision to limit his investigation, however,

must ‘flow from an informed judgment.’ ‘[O]ur case law rejects the

notion that a ‘strategic’ decision can be reasonable when the

attorney has failed to investigate his options and make a reasonable

choice among them’”)(citations omitted.); Mapes v. Coyle, 171 F.3d

46
408, 426 (6th Cir. 1999) (“[W]hen a client faces the prospect of

being put to death unless counsel obtains and presents something in

mitigation, minimal standards require some investigation.”).

Lockett argues that the district court failed to address this

critical basis of his claim, that is, that trial counsel is required

to make a reasonable pretrial inquiry into possible mitigating

evidence, and, without such investigation, the decision to present

no mitigating evidence cannot be considered a “strategic move.”

See, e.g., Baldwin, supra, 704 F.2d at 1332-33 (Sixth Amendment

“requires defense counsel to undertake a reasonably thorough

pretrial inquiry into the defenses which might possibly be offered

in mitigation of punishment, and to ground the strategic selection

among those potential defenses on an informed, professional

evaluation of their relative prospects for success.”); Glenn v.

Tate, 71 F.3d 1204, 1207 & n.1 (6th Cir. 1995). As an example,

Lockett points to the fact that trial counsel failed to discover

Lockett’s brain abnormalities because he failed to perform the

medical tests recommended by the psychiatrist retained. Given this,

Lockett argues that counsel’s “strategic decision” was neither

reasonable nor informed.

We agree. This information and the opportunity to weigh this

evidence was never before counsel. Consequently, the record will

not support the district court’s conclusion that counsel could have

47
made an informed strategic choice not to present mitigation evidence

at Lockett’s sentencing phase. Furthermore, the state’s arguments

that Lockett’s counsel made a strategic choice either to avoid

devastating cross-examination or to prevent the jury from hearing

of Lockett’s delusions concerning Mrs. Calhoun, are unconvincing

because counsel never weighed this possibility of prejudice against

any of the mitigating evidence we have noted above. In sum, the

assertion of a “strategic decision” must be rejected because no

informed decision was made. See, e.g., Rector v. Johnson, 120 F.3d

551,564 (5th Cir. 1997). Thus, having concluded that counsel’s

performance was deficient, we move to the question of ultimate

prejudice.

5

Under Strickland’s “prejudice” prong, a defendant “must show

that there is a reasonable probability that, but-for counsel’s

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 466 U.S. at 694.

Accordingly, Lockett argues that there was “substantial

evidence that would have impacted the sentencing phase. . .”. In

addition to the evidence of medical experts, Lockett points to the

expert testimony of an experienced death penalty lawyer at the

hearing before the district court, who concluded that he did not

48
think there was any question that Lockett was denied effective

assistance of counsel at the sentencing phase. Thus, Lockett

concludes that the failure to present mitigating evidence should

undermine any confidence we might otherwise have in the verdict.

See Loyd v. Whitley, 977 F.2d 149, 159-60 (5th Cir. 1992); Blanco

v. Singletary, 943 F.2d 1477, 1505 (11th Cir. 1991). The state’s

counter, as Lockett notes, is essentially nonresponsive. It does

nothing to refute the authority and arguments relied upon by

Lockett; instead, it only repeats the findings of the district

court.

The question of prejudice is a difficult one: Is it reasonably

probable that the result of the proceeding would have been different

if this evidence had been introduced? There is a tension here

between a possible jury finding of reduced culpability versus the

possible conclusion that Lockett’s mental problems aggravated the

threat of future dangerousness. There is also the undeniable

gravity, cruelty and deliberateness of the crimes that Lockett

committed: a calculated double-murder--involving an ambush, multiple

shootings, kidnaping and execution--of an innocent couple. We think

that, looking at this evidence in the light of the record as a

whole, the failure to investigate and present this information was

prejudicial.

49
 A sentence of death in Mississippi requires unanimity among all

jurors. See Miss. Code Ann. § 99-19-103. If we can conclude that

a juror could have reasonably concluded that the death penalty was

not an appropriate penalty in this case based on the mitigating

evidence, prejudice will have been established. If the medical

opinion testimony in this case--that Lockett suffered from some

organic brain disorder that tended to explain his violent conduct

and made him less able to control his behavior than a normal

person--had been presented to the jury, we think a reasonable juror

could have found that his particular mental condition, which

resulted from no fault of his own, made him less morally culpable

for his cruel and senseless crime. A jury that heard of a troubled

upbringing, repeated head injuries, an organic brain abnormality,

a history of referring to oneself as an entirely different person,

schizophrenia, or other mental problems might have connected these

conditions with the evidence that Lockett’s motivation in killing

the Calhouns may have arisen from either a childhood incident based

on Mr. Calhoun’s throwing Lockett out of a swimming hole or a

delusional notion that he was having an affair with Mrs. Calhoun.

We just cannot say with any degree of confidence that an objectively

reasonable juror, confronted with this mitigating evidence, might

not have reached the conclusion that Lockett lacked the requisite

level of culpability to be punished with death.

50
 We are aware, however, that some of this evidence could have

harmed Lockett. We are also cognizant of the inherent unforgivable

viciousness of this murder, the nature of which may well have

inflamed the jury and led them to reject this evidence as rendering

him less culpable. But the fact that counsel did not even

investigate this mitigating evidence, combined with the general lack

of any mitigating evidence before the jury, denied Lockett any

opportunity, vouchsafed by the law, to avoid the death penalty. We

think that had counsel investigated this issue, it is likely that

it “would have altered his counsel’s decision, and that the bases

underlying his counsel’s tactical choice to pursue or forego a

particular course would have been invalidated.” Lamb, supra, 179

F.3d at 359.37 Without this evidence, counsel obviously believed

that he had no other strategy other than simply to plead for mercy

for Lockett.38

37
As Dr. Owen concluded: “At the very least, the fact that he
was suffering from any one of these disorders would have provided
important mitigating evidence because any one of them, much less a
combination of them, would have substantially impaired his ability
to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law and would have produced extreme
mental or emotional disturbance.”
38
At trial, counsel essentially pled only for mercy for
Lockett, without mentioning any of the possible mitigating evidence
noted above. He failed even to question Lockett’s mother--the only
witness presented in the Mrs. Calhoun trial--about possible
mitigating evidence. As pointed out, counsel “compared Carl to
Leopold and Loeb, arguing that Carl could be spared because Leopold
had gone on to become a noted scientist while at the same time

51
 Thus, we conclude our analysis by holding that, because of his

failure to conduct a minimal investigation of Lockett’s possible

mitigation evidence, counsel’s performance was, under Strickland,

deficient. Furthermore, because of the credible evidence supporting

the conclusion that Lockett suffered from a mental condition that

reasonably could have been found by a jury to have decreased his

culpability for his crimes, and because an objectively reasonable

jury could have rendered a verdict other than death, our confidence

in this jury sentencing verdict is undermined. Consequently,

Lockett suffered prejudice under Strickland. Lockett has therefore

established the denial of his constitutional right to effective

counsel at the sentencing proceeding and is entitled to habeas

relief from the imposition of the death penalty in Case #2.39

VII

In sum, we DISMISS for lack of appellate jurisdiction the

State’s appeal of the district court’s October 16, 1997 judgment

reversing the death penalty sentence in the case of John Calhoun.

We REVERSE and VACATE, however, the December 16, 1997 judgment

granting relief to Lockett on his convictions based on the alleged

admitting that Carl lacked the intellectual ability to do so.”
Given that the jury knew that Lockett had a low IQ, that analogy
was sure to convince no one.
39
We have considered all issues raised in the briefs of the
parties. To the extent any of these issues are not addressed or
referred to in this opinion, we find them to be without merit.

52
defect in his indictments. Further, we REVERSE that part of the

October judgment that denied Lockett’s claim of ineffective

assistance of counsel at the punishment phase of Case #2. We grant

habeas relief in Case #2 by setting aside the sentence of death

because of ineffective counsel. We REMAND for the district court

to enter an appropriate judgment not inconsistent with this opinion.

REVERSED, VACATED, and
REMANDED for entry of judgment.

53