Case: 13-70033 Document: 00512956829 Page: 1 Date Filed: 03/04/2015
REVISED MARCH 4, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-70033
Fifth Circuit
FILED
February 13, 2015
THOMAS EDWIN LODEN, JR., Lyle W. Cayce
Clerk
Petitioner - Appellants
v.
RICK MCCARTY, INTERIM COMMISSIONER, MISSISSIPPI
DEPARTMENT OF CORRECTIONS,
Respondent - Appellee
Appeals from the United States District Court for the
Northern District of Mississippi
Before KING, DAVIS, and ELROD, Circuit Judges.
KING, Circuit Judge:
Petitioner-Appellant Thomas Edwin Loden raped and murdered Leesa
Marie Gray in 2000. After pleading guilty, Loden was sentenced to death by a
Mississippi state court. Loden now appeals the district court’s denial of his
petition for a writ of habeas corpus. That petition was premised on the denial
of Loden’s constitutional right to the effective assistance of counsel during the
guilt and sentencing phases of his trial. For the reasons that follow, we
AFFIRM the judgment of the district court.
Case: 13-70033 Document: 00512956829 Page: 2 Date Filed: 03/04/2015
No. 13-70033
I.
Thomas Loden worked as a recruiter for the United States Marine Corps
in Vicksburg, Mississippi, where he lived with his wife and daughter. He had
travelled to Itawamba County, Mississippi, on June 21, 2000 to visit his ailing
grandmother, Rena Loden, at her farm. On June 22, Loden claims he spoke to
his wife on the phone, and she told him that she had just had “phone sex” with
a partner at the law firm at which she worked as a paralegal and that she
planned on having sexual intercourse with that partner while Loden was away.
Shortly thereafter, at around 9:00 p.m., Loden went into Comer’s
Restaurant, where Leesa Marie Gray, the victim, worked as a waitress. He
had been in the restaurant earlier that day, and, according to witnesses, he
had attempted to flirt with Gray. Loden ordered a cheeseburger to go and then
left the restaurant. After Gray left work, at around 10:30 p.m., her car tire
went flat on her drive home. Loden claims he saw her car by the side of the
road and stopped. Loden then told Gray that he was in the Marine Corps and
asked if she would ever be interested in enlisting. He claims that she replied
“[n]o, that would be the last thing I’d want to do with my life.” Loden states
that her response enraged him, and he then kidnapped her in his van. He then
raped her repeatedly and strangled her to death. Loden used a camcorder to
record a substantial portion of his crime. The video shows Loden forcing Gray
to perform fellatio on him, vaginally raping her, digitally penetrating her
vagina and anus, and raping her repeatedly with an object, specifically a
cucumber. At one point, Loden instructs Gray to smile so that he can see her
braces. At another point, after he digitally penetrates her vagina, he states:
“You really were a virgin, weren’t you?” The video stops, and, when it restarts,
Loden is seen twisting the breast of Gray, at that point unconscious,
apparently attempting to return her to consciousness. After another break in
2
Case: 13-70033 Document: 00512956829 Page: 3 Date Filed: 03/04/2015
No. 13-70033
the video, Gray’s dead body is seen posed in the van with the cucumber forced
into her vagina. Loden removes and reinserts the cucumber several times
before the videotape stops. After Loden had murdered Gray, he went into his
grandmother’s house and fell asleep.
When Gray did not return home from work that night, the police began
investigating her disappearance. Witnesses reported that Loden had arrived
at the restaurant in a van shortly before closing and ordered food. They also
reported that he had been flirting with Gray earlier in the day. The police went
to Loden’s grandmother’s farm to speak with him, and one of his grandmother’s
helpers informed them that Loden was asleep in the house. The officers left
and returned later. When they returned, they spoke with Loden’s
grandmother, who informed them that Loden had left to go fishing at a nearby
lake. The officers went to look for Loden, but could not find him. When they
got back to the house, Ms. Loden gave her consent for the officers to search her
property. The officers discovered a pair of shorts with blood on them in Loden’s
room and a rope tied into a handcuff-style knot in Ms. Loden’s car. They then
obtained a search warrant for the property and Loden’s van. When the crime
lab processed the van, they found Gray’s body and, among other evidence, the
camcorder with the video Loden made of his crime.
That same day, Loden was found lying by the side of a road in Itawamba
County, Mississippi. His wrists were slashed and the words “I’m sorry” were
carved into his chest. After he was released from the hospital, he was arrested.
The police discovered a fresh grave, along with a shovel, in an out-of-the-way,
heavily vegetated area on Loden’s grandmother’s property. Loden’s wife
visited him in jail and, after speaking with her, he confessed to raping Gray
and to murdering her, though he stated that he did not remember killing her.
3
Case: 13-70033 Document: 00512956829 Page: 4 Date Filed: 03/04/2015
No. 13-70033
Loden was indicted for capital murder, rape, and sexual battery in
Mississippi state court. James Johnstone, a private attorney, was appointed
to represent Loden. Johnstone asked David Daniels, another attorney, to
associate as his co-counsel in Loden’s case.
Johnstone and Daniels filed several motions in Loden’s case, two of
which are relevant for purposes of this appeal. First, they filed a motion to
suppress evidence obtained during the search of Loden’s grandmother’s
property, including the vehicles on it, and Loden’s confession as obtained in
violation of the Fourth and Fifth Amendments, respectively. Second, they
moved the court to provide funds so that they could hire an expert in the field
of mitigation investigation. The trial court denied both motions, though, as to
the second motion, the court told Loden’s attorneys, “I’ll give you an
opportunity to tell me if you can locate any authority for this other than the
fact that [the expert has] done it in the past. I would like to know what the
courts of this country have said about this before I authorize this expenditure.”
Johnstone told the court: “We’ll look and provide that for you, Your Honor.”
Neither Johnstone nor Daniels ever furnished any such supplemental
authority to the court.
After the motion for funds was denied, Johnstone did not conduct any
mitigation investigation during his representation of Loden. Daniels claims
that he conducted a mitigation investigation by asking about mitigating issues
when he interviewed witnesses, but the witnesses to whom he claims to have
spoken contradict his claims. Further, Loden argues that neither of his
attorneys spoke to the attorney with whom his wife was having an affair, who
could have verified Loden’s claim that his wife was taunting him about her
infidelity on the night of the murder. Loden also argues that his attorneys
4
Case: 13-70033 Document: 00512956829 Page: 5 Date Filed: 03/04/2015
No. 13-70033
failed to interview Loden’s military colleagues and to request his military
records.
Further, Loden claims that his attorneys provided him with erroneous
advice about his appellate rights after a guilty plea. Loden claims that his
attorneys told him that if he pleaded guilty and received the death penalty,
“the pre-trial motions would be reviewed by the Supreme Court of Mississippi
under a heightened scrutiny review which applies to all death sentences.” He
claims that they assured him “that the rulings on the suppression motions
were reviewable by the Supreme Court even if I pled [sic] guilty.” A letter
Loden sent to Daniels after he pleaded guilty appears to lend credence to
Loden’s claim that he misunderstood his appellate rights. Johnstone’s
recollection of his advice is somewhat different. He states in his affidavit:
I told Loden that if he pleaded guilty and was sentenced to death,
the Mississippi Supreme Court would review his sentence, and
that they would review everything that was in the record. I told
Loden that I believed that (1) the rulings on the suppression
motions, (2) the order denying the request for funds to hire a
mitigation specialist, and (3) the use of Loden’s wife Kat to induce
Loden to talk with the police on June 30, 2000 were issues that
might be reviewed that were potentially viable.
Daniels’s recollection differs. In Daniels’s affidavit, he states:
Mr. Loden asked me whether if he pleaded guilty to Capital
Murder he could appeal his case. I told him there would be no
direct appeal by us, but that the Mississippi Supreme Court would
automatically review a sentence of death. I told him that we could
not guarantee him exactly what the Court might do, or not do upon
such review. I told Mr. Loden if he wanted to directly appeal and
assign particular grounds for reversal of his conviction, that would
be best served by going to trial.
In his deposition, Daniels further states that he explained to Loden that
the Mississippi Supreme Court’s automatic review of the sentence of death
meant the court would review “[t]he Judge’s finding, the Judge’s sentence,
5
Case: 13-70033 Document: 00512956829 Page: 6 Date Filed: 03/04/2015
No. 13-70033
whether or not evidence supported the sentence, whether or not there was a
proper finding regarding the aggravators and mitigators, whether or not he
killed, attempted to kill, whether legal force had been contemplated and those
types of things.” Daniels states that Loden understood that by pleading guilty,
he was waiving his right to appeal the adverse rulings on the suppression
motions and that the automatic review may not cover those issues.
Loden pleaded guilty to all counts in the indictment. At a hearing, prior
to accepting his guilty plea, the trial court advised him:
Q. . . . Do you understand that as to each of the charges,
Counts I through VI, if you proceeded to trial before a jury and if
the jury found you guilty of those charges and returned a verdict
fixing the penalty at whatever they might fix it, in any event, the
question of your guilt or innocence or imposition of the punishment
determined by the jury would be something that you could appeal
to the Supreme Court of this state?
A. Yes, sir, I understand.
...
Q. Do you understand that if you proceed through the course
of this and the Court makes a determination of your guilt, you will
have no right to appeal that? . . .
A. Yes, sir.
At that same hearing, Loden was sentenced. During the sentencing
portion of the hearing, Loden’s counsel told the court that “Mr. Loden has
elected to and has instructed us that he desires to waive presentation of this
mitigation evidence for reasons I feel he will explain to the Court when given
an opportunity to make a statement.” Loden had also instructed Daniels and
Johnstone not to object to any of the State’s evidence, not to cross-examine any
of the State’s witnesses, and not to make any closing argument at the
6
Case: 13-70033 Document: 00512956829 Page: 7 Date Filed: 03/04/2015
No. 13-70033
sentencing hearing. Nevertheless, counsel summarized the mitigation
evidence they would have presented had Loden not so instructed them:
Your Honor, through our investigation and our clinical
psychologist’s expert [sic] that’s been appointed by the Court we’ve
been able to develop that Mr. Loden has a childhood history of
extreme sexual child abuse himself; that in spite of that he was an
exemplary student, that he entered the [M]arine [C]orps, that he
served in the United States Marines with distinction for eighteen
years, that he attained the rank of E-7, that he was highly
decorated and a combat veteran of Desert Storm. He has no
criminal record prior to today.
The expert clinical psychologist that was appointed for the
defense by the Court, Dr. Gerald O’Brien, would have been offered
as an expert in the field of clinical psychology. Dr. O’Brien opines
that at the time of the crimes Mr. Loden was not capable of
appreciating the criminality of his conduct and that he was also
incapable of conforming his conduct to the requirements of the law.
And finally that at the time of the crimes he was suffering from
extreme mental and emotional disturbance.
Loden then made a statement at the hearing—though in place of his attorneys’
closing arguments, not as testimony—expressing remorse for his actions to
Gray’s family, stating that he had tried to keep the proceedings as short and
painless as possible for everyone, and that he hoped Gray’s family would have
some sense of justice when they left the court.
The trial court sentenced Loden to death.
Shortly after Loden was sentenced to death, Daniels accepted a position
with the local district attorney’s office, and the Mississippi Office of Capital
Defense was appointed to represent Loden on appeal. 1 Loden then brought a
motion to vacate his guilty plea in the state trial court. The trial court held a
1 During Loden’s post-conviction proceedings, which Daniels knew were ongoing,
Daniels destroyed his files from Loden’s case, an act which the Mississippi Supreme Court
described as an exercise of “poor judgment.” Loden v. State, 43 So. 3d 365, 400 (Miss. 2010).
7
Case: 13-70033 Document: 00512956829 Page: 8 Date Filed: 03/04/2015
No. 13-70033
hearing on the motion, and Loden testified that, based on the advice of his trial
counsel, he erroneously believed that if he pleaded guilty, the Mississippi
Supreme Court would automatically review the trial court’s denial of his
suppression motions. The trial court denied Loden’s motion to vacate the
guilty plea. The denial of his post-conviction motion to vacate the guilty plea
was consolidated with his direct appeal, and the Mississippi Supreme Court
affirmed the trial court on all grounds. Loden v. State, 971 So. 2d 548, 575
(Miss. 2007).
Loden then filed a second petition for post-conviction relief asserting the
arguments addressed herein, among others that are not a part of this appeal.
As part of the habeas petition, Loden has come forward with what he
characterizes as substantial additional mitigating evidence, summarized as
follows. Loden’s father was physically and sexually abusive towards Loden’s
mother, and, given that the family shared a single bedroom, Loden likely
witnessed this abuse. Loden’s mother would leave him and his sister alone in
the house for days at a time. After his parents divorced, Loden went to live
with his father, where Loden’s step-mother abused him physically. Further,
he was molested on several occasions by an adult male at a vacation Bible
school that he attended. When Loden moved back to his mother’s custody,
his step-father drank heavily and beat him repeatedly. He also beat Loden’s
mother in front of Loden. Loden has attempted suicide several times, and his
sister has attempted suicide as well.
After further shuffling back and forth between his parents, Loden went
to live with his grandparents on their family farm. Loden was close to his
grandparents, and Loden has proffered several affidavits from friends of
Loden’s in high school attesting to his good character. Loden did well
academically in high school.
8
Case: 13-70033 Document: 00512956829 Page: 9 Date Filed: 03/04/2015
No. 13-70033
Loden was highly regarded in the Marine Corps. Loden was selected as
an “outstanding recruit” from his platoon. He also received laudatory
performance reviews and was promoted to the rank of Gunnery Sergeant. He
was awarded, inter alia, the Navy Achievement Medal three times, the Good
Conduct Medal five times, and a Combat Action Ribbon. Loden was deployed
to Iraq during the Gulf War. During his deployment, he saw a friend, who had
just gotten married and had a baby, killed by “friendly” fire. After he returned
from the war, Loden drank heavily and took drugs. Loden suffered from
psychological troubles, including nightmares, as a result of the war.
Loden has a daughter with his third wife, and he frequently acted as the
primary caregiver to his daughter. Loden was transferred to a job as a military
recruiter and presents testimony that it is a difficult and stressful post due to
the recruiting quotas.
Additionally, a psychologist employed by habeas counsel has diagnosed
Loden with chronic Post-traumatic Stress Disorder due to his combat
experience, complex Post-traumatic Stress Disorder due to abuse in his
childhood, and Borderline Personality Disorder. Further, the psychologist
diagnosed Loden as having suffered a localized episode of dissociative amnesia
during the commission of the crime. Additionally, the defense psychologist
originally retained by Loden’s trial counsel, Dr. O’Brien, has stated in an
affidavit that, had he been privy to the information relied on by Loden’s habeas
psychologist, he would have reached the same conclusions and diagnoses as
the habeas psychologist.
The Mississippi Supreme Court denied Loden’s second petition for post-
conviction relief for reasons that will be discussed below. Loden v. State, 43
So.3d 365, 401 (Miss. 2010). Loden then filed the instant petition for a writ of
habeas corpus in the United States District Court for the Northern District of
9
Case: 13-70033 Document: 00512956829 Page: 10 Date Filed: 03/04/2015
No. 13-70033
Mississippi. The District Court denied Loden’s petition, but granted a
certificate of appealability on five issues: (1) trial counsel’s failure to develop
mitigation evidence; (2) the “effect” of Loden’s “guilty plea and waiver of jury
sentencing;” (3) “defense counsel’s litigation of the case;” (4) the cumulative
effect of trial counsel’s performance; and (5) the performance of appellate
counsel. 2 Loden then timely appealed to this court.
II.
Federal habeas corpus review of state court decisions is governed by the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C.
§ 2254. Under AEDPA, a federal court cannot issue a writ of habeas corpus
with respect to a claim adjudicated on the merits by a state court unless the
state court’s decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States,” or “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). Because of this highly deferential standard of review, “[t]he question
under AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007). Under AEDPA, “even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Harrington v.
Richter, --- U.S. ---, ---, 131 S. Ct. 770, 786 (2011).
When, as here, a habeas petitioner’s claim has been adjudicated on the
merits in state court, “review under § 2254(d)(1) is limited to the record that
was before the state court.” Cullen v. Pinholster, --- U.S. ---, ---, 131 S. Ct. 1388,
2Loden’s brief does not address issue (4) or treat issue (3) separately; as such, we do
not address them.
10
Case: 13-70033 Document: 00512956829 Page: 11 Date Filed: 03/04/2015
No. 13-70033
1398 (2011). Where section 2254(d) does not apply, section 2254(e) constrains
the discretion of district courts to grant evidentiary hearings. See id. at 1400–
01. A district court’s decision not to hold an evidentiary hearing is reviewed
for abuse of discretion. Richards v. Quarterman, 566 F.3d 553, 562 (5th Cir.
2009) (citing Landrigan, 550 U.S. at 468).
III.
Loden first argues that he was deprived of his constitutional right to the
effective assistance of counsel because his trial counsel failed to accurately
advise him of the scope of his appellate rights. According to Loden, his trial
counsel inaccurately informed him that, if he pleaded guilty, the trial court’s
adverse rulings on his suppression motions would still be examined during the
Mississippi Supreme Court’s automatic review of his case. That is not the case,
and, as such, the Mississippi Supreme Court did not address Loden’s
suppression motions on direct appeal.
The Sixth Amendment right of criminal defendants to the assistance of
counsel includes the right to the effective assistance of counsel. Carty v.
Thaler, 583 F.3d 244, 257 (5th Cir. 2009). An ineffective assistance of counsel
claim has two components: (1) the defendant must show that his attorney’s
performance was deficient; and (2) he must show that he was prejudiced by
that deficient performance. Strickland v. Washington, 466 U.S. 668, 687
(1984). “To show deficient performance, ‘the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.’”
Reed v. Stephens, 739 F.3d 753, 773 (5th Cir. 2014) (quoting Strickland, 466
U.S. at 688). Counsel’s performance is judged based on prevailing norms of
practice, and judicial scrutiny of counsel’s performance must be highly
deferential to avoid “the distorting effects of hindsight.” Carty, 583 F.3d at
258. To show prejudice, the defendant “must show that there is a reasonable
11
Case: 13-70033 Document: 00512956829 Page: 12 Date Filed: 03/04/2015
No. 13-70033
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id.
The Sixth Amendment right to the effective assistance of counsel applies
at “critical stages of the criminal proceedings.” Missouri v. Frye, --- U.S. ---,
---, 132 S. Ct. 1399, 1405 (2012) (internal quotation marks omitted). The
decision to plead guilty is a critical stage of criminal proceedings. Id. “In cases
where a defendant complains that ineffective assistance led him to accept a
plea offer as opposed to proceeding to trial, the defendant will have to show ‘a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’” Id. at 1409 (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)).
We do not address the first Strickland element, as we conclude that the
district court did not err in holding that Loden failed to meet his AEDPA
burden as to Strickland prejudice. As an initial matter, the Mississippi
Supreme Court expressly did not rule on the prejudice element of the
Strickland test. See Loden, 971 So. 2d at 574. As such, the Mississippi
Supreme Court’s decision is not entitled to AEDPA deference as to that
element. See Rompilla v. Beard, 545 U.S. 374, 390 (2005) (“Because the state
courts found the representation adequate, they never reached the issue of
prejudice, and so we examine this element of the Strickland claim de novo and
agree with the dissent in the Court of Appeals.” (citations omitted)). However,
the state trial court ruled on Loden’s ineffective assistance of counsel claims
and did not expressly cabin its decision to either element. Where a lower state
court ruled on an element that a higher state court did not, the lower state
court’s decision is entitled to AEDPA deference. See Atkins v. Zenk, 667 F.3d
12
Case: 13-70033 Document: 00512956829 Page: 13 Date Filed: 03/04/2015
No. 13-70033
939, 944 (7th Cir. 2012) (“Because both prongs have been addressed by Indiana
state courts, in one form or another, the deferential standard of review set out
in § 2254(d) applies to both.”); Hammond v. Hall, 586 F.3d 1289, 1332 (11th
Cir. 2009) (“[W]here a state trial court rejects a claim on one prong of the
ineffective assistance of counsel test and the state supreme court, without
disapproving that holding, affirms on the other prong, both of those state court
decisions are due AEDPA deference.”). Further, if a state court (here, the state
trial court) does not state the grounds on which it denied an ineffective
assistance claim, federal habeas courts will consider it to have adjudicated both
grounds. See Richter, --- U.S. at ---, 131 S. Ct. at 784. As such, here the state
trial court’s decision as to the prejudice element is entitled to AEDPA
deference.
Assuming arguendo that Loden’s attorneys’ performance was deficient,
he has failed to show that the state court’s decision that he was not prejudiced
by that performance is an unreasonable application of clearly established
federal law or that it was based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding. Loden testified
during the habeas proceedings in the state trial court. He testified regarding
his interpretation of his attorney’s advice and stated that he would not have
pleaded guilty but for that erroneous advice. Yet Loden’s assertion that he
would not have pleaded guilty had he known review of the suppression motions
would be unavailable is contradicted by his statement to Gray’s family at his
sentencing hearing. At the sentencing hearing, Loden apologized to Gray’s
family and stated, “I hope that by my actions here today you may see that I am
trying to right a wrong,” and “I am sorry for the delay, and I hope that you may
have some sense of justice when you leave here today.” Loden also stated that
he had “tried to keep this as short and as painless as possible for everyone.”
13
Case: 13-70033 Document: 00512956829 Page: 14 Date Filed: 03/04/2015
No. 13-70033
Loden’s statements indicate that he pleaded guilty as an offering of contrition
to Gray’s family and an attempt to spare them a lengthy trial and grant them
some measure of closure. Loden’s statements were also consistent with his
earlier representations, made shortly after he had murdered Gray, to the
district attorney that he wanted to plead guilty in order to allow his family and
Gray’s family to move forward, statements which were the subject of cross-
examination during Loden’s post-conviction hearing. In contrast, Loden
testified during the post-conviction hearing that he only pleaded guilty in order
to obtain a more searching review of the denial of his suppression motions by
the Mississippi Supreme Court, a review he believed was available based on
the (allegedly) erroneous advice of his attorneys. 3 Those suppression motions
were directed at the most damning evidence in the State’s possession—the
video recording of Loden’s crime and Loden’s confession. As such, Loden’s
statement that he pleaded guilty only out of a desire for appellate review of his
sentence is in sharp tension with his statement at the time of his plea and
sentencing. That contradiction was drawn out during cross-examination by
the State during Loden’s post-conviction hearing:
Q. Correct. Now more than a year later you were under
whatever influence that night, you pled [sic] guilty. During that
plea you went into this routine where you spoke to the Court. Do
you recall that?
A. Yes. I can’t remember what I said, but I know I said a few
words.
Q. And you explained to the family, to the Court and the
family of the victim that, you know, you knew nothing could offer
solace or come close to expressing your most sincere regrets over
3Loden testified as follows:
Q. When you pled [sic] guilty, did you want to be executed?
A. No. I wanted the death penalty. I wanted the - - I wanted the death
penalty for the closer review and for their hopefully maybe getting some better
rulings than what I had originally.
14
Case: 13-70033 Document: 00512956829 Page: 15 Date Filed: 03/04/2015
No. 13-70033
this whole affair, wish there was something you could say more. I
hope that by my actions here today you may see that I am trying to
right a wrong.
But what you’re now telling the Court is you were pleading
guilty but you didn’t really mean it. You wanted this whole thing
overturned so you could go back to Vicksburg and do whatever.
Were you trying to right a wrong?
A. What I would like to say to that is that is, I don’t know
how to explain this to you in a proper way, is that no matter what
- - do I have remorse and everything? Yes. But I’m still entitled
to the rights that I’m supposed to have. And at that time I had
been told that anything that was in the record is going to get looked
at, and then subsequently I find out that’s not the case.
...
Q. All right. Let’s go back to what we’re talking about. You
then go on to tell the family, I am sorry for the delay and I hope
you may have some sense of justice when you leave here today. Once
again, at that time you’re telling me that you thought at the time
you’re saying you’re trying to right a wrong and you hope to have
some sense of justice that you’re in the back of your head thinking,
Yeah, I got the death penalty. I get to appeal all this and eventually
walk out of here when my rights are asserted. That’s what you’re
really thinking when you’re saying this stuff?
In summation at the post-conviction hearing, the State pressed the issue,
arguing: “What has happened here is at some point Mr. Loden actually felt
guilty and tried to do the right thing and pled [sic] guilty, and he’s gotten down
here and he doesn’t much like it.” Moreover, the state court habeas judge was
also the judge who had presided over Loden’s guilty plea and sentencing and
who therefore had heard Loden’s statement to Gray’s family firsthand. Given
that the trial court heard Loden’s testimony and was able to assess his
credibility, the trial court’s finding that Loden was not prejudiced by counsel’s
deficient performance was not based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding. The state
15
Case: 13-70033 Document: 00512956829 Page: 16 Date Filed: 03/04/2015
No. 13-70033
trial court was free to conclude, based on Loden’s testimony, that Loden
understood his appellate rights at the time of trial or that the other
considerations that prompted Loden to plead guilty would nevertheless have
motivated him to maintain a guilty plea even had he known he would be unable
to appeal the trial court’s rulings on his suppression motions.
Further, the state habeas judge was the same judge who advised Loden
of his appellate rights during his plea colloquy, which included an admonition
that Loden would have no right to appeal a finding of guilt. Loden discounts
that admonition here, arguing that a warning that he was waiving his right to
appeal was perfectly consistent with his attorneys’ erroneous advice that the
Mississippi Supreme Court’s automatic review would encompass his
suppression motions. As such, he argues that he had no reason to question the
trial judge further about his appellate rights or to be concerned that his right
to review of the suppression motions was more limited than his attorneys had
led him to believe. Yet the trial court was not unreasonable in rejecting that
interpretation of the facts, as lending it credulity requires embracing several
contradictions. First, Loden’s argument rests on the notion that he was an
uninformed novice when it came to understanding the legal system, incapable
of understanding the difference between review of a sentence and review of
guilt, but that, at the same time, he possessed sufficient erudition to
comprehend the (very) fine distinction between an appeal of a death sentence
to the Mississippi Supreme Court and the Mississippi Supreme Court’s
automatic review of a death sentence without feeling the need to question the
trial judge further. Second, Loden asserts that, with regard to the second issue
in this appeal, discussed infra, that he was virtually abandoned by his
attorneys and was so despondent because of their grossly negligent
performance that he gave up hope and waived his right to present any
16
Case: 13-70033 Document: 00512956829 Page: 17 Date Filed: 03/04/2015
No. 13-70033
mitigation evidence at sentencing. Yet at the same time, Loden argues that he
posed no questions to the trial judge regarding his appellate rights because he
was perfectly confident in those same attorneys’ advice. Given Loden’s repeated
assertions that the right to appeal the suppression motions was crucially
important to him, as he argues that he believed it was his only hope of avoiding
the death penalty, it is difficult to believe that Loden would not have asked the
trial judge for further clarification of his appellate rights after a guilty plea,
especially if he had truly lost confidence in his attorneys.
Based on the Mississippi state court’s ability to observe Loden’s
testimony firsthand and these contradictions in Loden’s arguments, we cannot
say that the Mississippi state court’s finding that Loden was not prejudiced by
his attorney’s (purportedly) deficient performance was unreasonable. As such,
the Mississippi courts’ decision that Loden is not entitled to habeas relief on
the basis of his attorneys’ advice regarding his appellate rights was not an
unreasonable application of clearly established federal law as interpreted by
the Supreme Court of the United States or an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding.
IV.
A.
Loden’s second argument is that his right to the effective assistance of
counsel was violated by his attorneys’ failure to prepare a mitigation case.
Defense attorneys in capital cases have an “‘obligation to conduct a thorough
investigation of the defendant’s background.’” Porter v. McCollum, 558 U.S.
30, 39 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 396 (2000)). Such an
investigation requires that defense counsel interview witnesses and request
relevant records, such as school, medical, or military service records. Id.
Further, when such interviews or records suggest “pertinent avenues for
17
Case: 13-70033 Document: 00512956829 Page: 18 Date Filed: 03/04/2015
No. 13-70033
investigation,” the defense attorney must follow up on those leads. Id. at 440;
accord Wiggins v. Smith, 539 U.S. 510, 525 (2003) (“As the Federal District
Court emphasized, any reasonably competent attorney would have realized
that pursuing these leads was necessary to making an informed choice among
possible defenses, particularly given the apparent absence of any aggravating
factors in petitioner’s background.”). As with all claims for ineffective
assistance of counsel, relief based on an insufficient mitigation investigation
requires a showing of both deficient performance and prejudice. See Porter,
558 U.S. at 38.
We begin with the prejudice element first, as, in this case, it is
dispositive. Loden’s argument that he was prejudiced by his attorneys’
mitigation investigation 4 is complicated by his instruction to his attorneys not
to present mitigation evidence during the sentencing phase of his trial. See
Schriro v. Landrigan, 550 U.S. 465 (2007). In Landrigan, the defendant was
convicted of capital murder. 550 U.S. at 469. When his attorneys attempted
to put on testimony in mitigation at sentencing, the witnesses refused to testify
at the defendant’s instruction. Id. Defense counsel told the court that he had
advised the defendant against declining to put on a mitigation case. Id. The
court then questioned the defendant, who told the court that he did not wish
for his attorneys to put on a mitigation case and that there were no mitigating
circumstances of which the court should be made aware. Id. When his
attorneys attempted to summarize the mitigation evidence they had intended
to put on, Landrigan interrupted and contradicted their explanations of his
past actions. Id. at 470. The trial judge sentenced Landrigan to death. Id. at
471. Landrigan then challenged his death sentence via a habeas petition,
4 Which we assume arguendo was deficient.
18
Case: 13-70033 Document: 00512956829 Page: 19 Date Filed: 03/04/2015
No. 13-70033
challenging his attorney’s failure to conduct a proper mitigation investigation
as ineffective assistance of counsel. Id. The Supreme Court held that
Landrigan’s refusal to allow his attorney to present mitigation evidence
precluded his ability to show Strickland prejudice. Id. at 481. Relying on
Landrigan’s repeated statements to the court and his attorney that he did not
want mitigating evidence presented, the Court held that the state post-
conviction court was not unreasonable in determining that Landrigan
instructed his attorney not to bring any mitigating evidence to the trial court’s
attention. Id. at 477. As such, the Court held that the district court did not
abuse its discretion in denying Landrigan an evidentiary hearing on habeas
review. Id. The Court stated that “[t]he District Court was entitled to conclude
that regardless of what information counsel might have uncovered in his
investigation, Landrigan would have interrupted and refused to allow his
counsel to present any such evidence,” and therefore, “the District Court could
conclude that because of his established recalcitrance, Landrigan could not
demonstrate prejudice under Strickland even if granted an evidentiary
hearing.” Id. Additionally, the Supreme Court rejected the Ninth Circuit’s
reliance on an absence of evidence that Landrigan’s decision not to present
mitigating evidence was informed and knowing, stating that “[w]e have never
imposed an ‘informed and knowing’ requirement upon a defendant’s decision
not to introduce evidence.” Id. at 479.
At this point, the AEDPA standard of review bears reiterating. We may
only set aside the Mississippi Supreme Court’s judgment if it was “contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
Given that statutory mandate, we do not here decide whether Loden is able to
demonstrate Strickland prejudice in spite of his instruction to his attorneys
19
Case: 13-70033 Document: 00512956829 Page: 20 Date Filed: 03/04/2015
No. 13-70033
not to put on mitigation evidence. Rather, we decide only whether the
Mississippi Supreme Court’s judgment that he could not so demonstrate
prejudice was unreasonable in light of clearly established Supreme Court
precedent.
Loden here instructed his attorneys not to present any mitigation
evidence. Daniels, one of his attorneys, told the court at the sentencing hearing
that Loden had “elected to and has instructed us that he desires to waive
presentation of this mitigation evidence for reasons I feel he will explain to the
Court when given an opportunity to make a statement.” Loden had also
instructed his attorneys not to conduct any cross-examination of the State’s
witnesses and not to object to any of the State’s evidence, an instruction that
his attorneys honored. The trial court specifically inquired as to Loden’s
instruction not to cross-examine witnesses or object to evidence:
MR. JOHNSTONE: Your Honor, if we could at this time advise the
Court. We have conferred with our client Mr. Loden, and as the
Court noted earlier we were not making any objections nor cross-
examining these witnesses. And we’ve conferred with Mr. Loden
and he’s advised us that he does not want us to cross-examine
witnesses or object to the introduction of any exhibits that are
being introduced through these witnesses that the State intends
to call.
THE COURT: All right. Mr. Loden, you understand that in
instructing your attorneys to that effect you are giving up a
valuable right of cross-examination and timely objections to
evidence which might or might not be admissible under the rules
of this court.
THE DEFENDANT: I understand, sir. I’m just doing what I feel I
need to do.
Loden further instructed his attorneys not to make any closing argument
during the sentencing phase, instead electing to make a brief statement
himself apologizing to Gray’s family and stating, “I hope that by my actions
20
Case: 13-70033 Document: 00512956829 Page: 21 Date Filed: 03/04/2015
No. 13-70033
here today you may see that I am trying to right a wrong,” and “I am sorry for
the delay, and I hope that you may have some sense of justice when you leave
here today.” 5 Loden also stated that he had “tried to keep this as short and as
painless as possible for everyone.”
With those facts before it, we cannot say that the Mississippi Supreme
Court’s application of Landrigan in this case was an unreasonable application
of clearly established Supreme Court precedent. Loden’s instruction to his
attorneys to not only refrain from putting on any mitigation case, but also to
refrain from objecting to the State’s proffered evidence, cross-examining the
State’s witnesses, and making closing arguments lends support to an inference
that Loden’s decision not to present a mitigation case was firm. Daniels’s
statement to the trial court further indicates that Loden’s decision was a
considered one and that he had explained his reasoning to his attorneys. While
the trial court did not inquire as to Loden’s reasons for declining to present a
mitigation case, Loden’s statement alludes to a likely motivation. Loden’s
words of apology suggest that he believed declining to object, cross-examine, or
present evidence served as a measure of penance for his crime. Daniels also
commented in his deposition that “Loden did not want to acknowledge what he
had done, and he didn’t want to acknowledge it to me. He didn’t want a jury
to hear it. He didn’t want anybody that didn’t have to know about it to know
about it.” Daniels’s observations provide additional insight into the
motivations behind Loden’s instruction to abbreviate the sentencing
proceedings. Moreover, the type of mitigation evidence described by Daniels,
and interdicted by Loden, at the sentencing hearing—evidence of childhood
physical and sexual abuse, academic achievement, distinguished military
5 Loden’s statement was made in lieu of his attorney’s closing arguments and was not
offered as testimony in mitigation.
21
Case: 13-70033 Document: 00512956829 Page: 22 Date Filed: 03/04/2015
No. 13-70033
service, and psychological troubles—is at the very least of the same type as the
evidence Loden now offers, further indicating that the Mississippi Supreme
Court’s application of Landrigan was not unreasonable. Additionally, while
Loden’s instructions to his attorneys here may not have been as strident,
public, or obstructive as those in Landrigan, the record here evidences
something more resolute than a mere instruction not to present mitigation
evidence. Landrigan states only that the defendant’s actions in that case were
sufficient to preclude a showing of prejudice; it does not speak to what actions
are necessary to bar such a showing. See Landrigan, 550 U.S. at 475–77.
Therefore, the Mississippi Supreme Court’s conclusion that, under Landrigan,
Loden’s decision not to present mitigation evidence precludes a showing of
Strickland prejudice was not an unreasonable application of clearly
established Supreme Court precedent to the facts of this case.
As such, given the evidence in the record—and the AEDPA standard of
review—we must conclude that the district court’s denial of Loden’s claim of
ineffective assistance of counsel based on his attorney’s mitigation
investigation was not error.
B.
We also hold that the Mississippi Supreme Court’s rejection of Loden’s
argument that the constitutionally ineffective advice of his attorneys led him
to waive his right to jury sentencing was not an unreasonable application of
clearly established Federal law as determined by the Supreme Court. During
the plea colloquy, the trial judge explained to Loden that he had the right to
be sentenced by a jury, that the jury would weigh the aggravating factors
against the mitigating factors, and that, in order to receive the death penalty,
the jury would have to unanimously agree that the aggravating factors
outweighed the mitigating factors. The judge then asked Loden if he
22
Case: 13-70033 Document: 00512956829 Page: 23 Date Filed: 03/04/2015
No. 13-70033
understood those rights and waived them. The trial judge’s careful explanation
of Loden’s right to jury sentencing on the record undermines Loden’s present
attempts to show Strickland prejudice. See Frye, --- U.S. at ---, 132 S. Ct. at
1406–07 (“Before a guilty plea is entered the defendant’s understanding of the
plea and its consequences can be established on the record. This affords the
State substantial protection against later claims that the plea was the result
of inadequate advice.”). As such, the Mississippi Supreme Court’s decision that
Loden could not show that—but for any unprofessional advice by his
attorneys—he would not have waived jury sentencing was not an unreasonable
application of clearly established Federal law as determined by the Supreme
Court. 6
V.
Lastly, Loden argues that his appellate counsel was constitutionally
deficient. A criminal defendant has a Sixth Amendment right to the effective
assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985).
Claims for ineffective assistance of appellate counsel are governed by the two-
part Strickland standard. Dorsey v. Stephens, 720 F.3d 309, 319 (5th Cir.
2013).
Beginning with the first part of that standard, Loden has failed to show
that his appellate attorneys’ performance was deficient. As an initial matter,
6Loden also appears to argue that his attorneys’ performance was deficient due to
their failure to explain to him the circumstances of the Byrom case, another death penalty
case tried before Judge Gardner. Loden points us to no Supreme Court precedent holding
that an attorney’s failure to explain a trial judge’s performance in specific prior cases
constitutes ineffective assistance of counsel. Loden also fails to point to any resources
relating to the professional responsibility of criminal defense attorneys indicating that a
failure to explain the results and circumstances of specific prior cases before the trial judge
is unprofessional. See Strickland, 466 U.S. at 688 (suggesting that “[p]revailing norms of
practice as reflected in American Bar Association standards and the like” could be used to
aid the inquiry into attorney performance).
23
Case: 13-70033 Document: 00512956829 Page: 24 Date Filed: 03/04/2015
No. 13-70033
the Mississippi Supreme Court did not address this element of the Strickland
standard, and, as such, this claim is reviewed de novo, not under AEDPA. See
Rompilla, 545 U.S. at 390. In order to show that his appellate lawyers were
deficient, Loden must show “‘that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment’ based on ‘an objective standard of reasonableness.’” Dorsey, 720
F.3d at 320 (quoting Strickland, 466 U.S. at 687–88). Counsel is “‘strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.’” Pinholster, ---
U.S. at ---, 131 S. Ct. at 1403 (quoting Strickland, 466 U.S. at 690). Here,
Loden’s proffered evidence of deficient performance is an affidavit from his
appellate attorney, Andre de Gruy. De Gruy states in his affidavit that he did
not raise certain issues relating to Loden’s mental state or social history. He
also states, however, that Mississippi law was unclear at the time he
represented Mr. Loden, and, therefore, he believed that the additional claims
would have to be raised in post-conviction proceedings challenging the
sentence. Given the apparent ambiguity in Mississippi law at the time counsel
made his decision, Loden has failed to rebut the “strong presumption” that his
attorneys’ decision was the result of “reasonable professional judgment.”
Strickland, 466 U.S. at 689–90.
As to the second part of the Strickland standard, Loden has failed to
show that the Mississippi Supreme Court’s conclusion that he was not
prejudiced was an unreasonable application of clearly established federal law,
as determined by the United States Supreme Court. In order to show prejudice
under Strickland, a defendant must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Here, that requires Loden to show a reasonable
24
Case: 13-70033 Document: 00512956829 Page: 25 Date Filed: 03/04/2015
No. 13-70033
probability that the result of his direct appeal would have been different.
Loden has failed to make such a showing here, as he has waived the issue for
failure to adequately brief it. See United States v. Scroggins, 599 F.3d 433, 446
(5th Cir. 2010) (“A party that asserts an argument on appeal, but fails to
adequately brief it, is deemed to have waived it.”). Loden’s argument here is
that an adequate performance by appellate counsel would have changed the
outcome of his Motion to Vacate Guilty Plea before the trial court, yet he does
not articulate the standard for such motions under Mississippi law. See id. at
447 (“[A]mong other requirements to properly raise an argument, a party must
ordinarily identify the relevant legal standards and any relevant Fifth Circuit
cases.” (internal quotation marks omitted)). Loden also points to the additional
psychological evidence presented in Dr. High’s affidavit and argues that
appellate counsel was deficient for not developing that evidence themselves
and presenting it before the trial court. Yet Loden fails to connect Dr. High’s
statements regarding Loden’s mental state at the time he pleaded guilty to the
mental state required by law for the entry of a valid plea or even to articulate
what the required mental state is. See id. at 446–47. Loden also argues that
his appellate attorneys’ arguments that his trial lawyers’ erroneous advice
about his right to appeal the denial of his suppression motions were deficient.
Yet that claim was presented by Loden’s appellate lawyers in the motion to
vacate the guilty plea. In resolving that motion, Loden testified and the trial
court apparently found his assertion that he misunderstood his appellate
rights and would not have pleaded guilty had he been properly advised not to
be credible. It is unclear what Loden contends his appellate counsel should
have done that would alter that result. As such, the Mississippi Supreme
Court’s decision that Loden was not prejudiced by any deficient performance
25
Case: 13-70033 Document: 00512956829 Page: 26 Date Filed: 03/04/2015
No. 13-70033
by his appellate counsel was not unreasonable under clearly established
federal law, as determined by the United States Supreme Court.
VI.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
26