Johnson v. Cockrell

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 02-50046

MICHAEL DEWAYNE JOHNSON,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, Director, Texas Department
of Criminal Justice, Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court
For the Western District of Texas
September 17, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

On May, 8, 1996, Michael Dewayne Johnson was convicted of, and

received the death penalty for, the 1995 murder of Jeff Wetterman.

The Texas Court of Criminal Appeals affirmed the conviction and

sentence in an unpublished opinion, and the United States Supreme

Court denied certiorari on May 18, 1998. Johnson filed a state

application for habeas relief in the trial court, which was denied
on February 18, 2000, after a hearing was held. The Texas Court of

Criminal Appeals also denied the application based on the trial

court’s findings. In September 2000, Johnson filed his federal

habeas petition in the Western District of Texas. After the

district court denied relief, Johnson filed a timely notice of

appeal, but the court denied his request for a certificate of

appealability (COA). Johnson now appeals, requesting this Court

issue a COA. For the following reasons, Johnson’s request is

denied.

I. BACKGROUND

Around 7:00 a.m. on September 10, 1995, Johnson and David Vest

were driving a stolen Cadillac southbound on I-35 near Waco after

leaving Dallas on their way to the Texas coast. Johnson possessed

a stolen 9 mm gun. Their car was low on gas, so they decided to

“make a gas run.”1 Johnson drove the car into Lorena Fastime, a

convenience store/gas station, and Vest jumped out and started

pumping gas. The store clerk, Jeff Wetterman, came outside and

began talking to Vest. Johnson got out of the car and moved to the

rear of the vehicle, where Vest was pumping gas. Vest asked

Johnson if he had the gun on him, and Johnson lifted his shirt to

A “gas run” is a quick theft of gas from a service station. The
1

car is driven up to a gas pump and left running, while the
passenger (who leaves his door open) pumps gas into the tank. When
the passenger hangs up the pump handle, the passenger jumps into
the car as the driver speeds away without paying for the gasoline.

2
show Vest the gun. Vest claimed at trial he muttered “shit” under

his breath, and, as he returned the nozzle to the pump, he heard a

shot and saw the victim fall. Johnson later claimed at trial that

he thought Vest said “shoot.” The two sped away, headed for Corpus

Christi. The single bullet passed through Wetterman’s jaw and

neck, killing him.

II. ISSUES PRESENTED

Johnson does not challenge his conviction for this crime.

Rather, he seeks COA on several issues related to the imposition of

the death penalty. Specifically, he asserts:

1) Trial counsel was ineffective during the punishment
phase when they failed to investigate and produce
available mitigating evidence of Johnson’s organic
brain impairment, physical and sexual abuse as a
child, alcoholism, drug use, and an exceptionally
unhappy and unstable childhood.

2) Trial counsel was ineffective when they failed to
object to Dr. Grigson’s expert testimony on the
future dangerousness issue.

3) Article 37.071 of the Texas Code of Criminal
Procedure is unconstitutional because it does not
provide an independent review of the propriety of
the death sentence, and thus creates the
possibility the death sentence in Texas will be
imposed arbitrarily and capriciously in violation
of the Eighth and Fourteenth Amendments to the
United States Constitution.

4) Capital sentencing provisions are unconstitutional
because they fail to inform juries of minimum
prison time.

5) The trial court failed to properly instruct the
jury about Texas parole law and the meaning of a

3
 life sentence in violation of the Eighth and
Fourteenth Amendments.

III. ANALYSIS

Johnson may not appeal the district court’s denial of his

petition for habeas corpus absent this Court’s issuance of a COA.

To obtain a COA, Johnson must make a substantial showing of the

denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This

standard is met if he demonstrates that “reasonable jurists could

debate whether (or, for that matter agree that) the petition should

have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.

2000). “[T]he determination of whether a COA should issue must be

made by viewing the petitioner’s arguments through the lens of the

deferential scheme laid out in 28 U.S.C. § 2254(d).” Id. at 772.

ISSUE I: Whether Johnson’s trial counsel failed to adequately
investigate and introduce available mitigating evidence,
and, if so, whether this failure amounted to ineffective
assistance of counsel.

Johnson argues that his trial counsel had available

substantial evidence of his history of head injuries, physical and

sexual abuse, behavioral instability, and drug and alcohol abuse.

He asserts that this evidence “supports the scientific conclusion”

that he “suffers from an organic brain impairment which not only

mitigates his moral culpability for the offense, but also supports

4
a claim that because of a physical/mental defect, he was unable to

conform his actions to the requirement of the law.” In addition,

he argues that there was evidence available to show that his brain

injuries are treatable and that treatment, combined with a highly

structured environment, could significantly reduce or eliminate his

propensity toward violence.

Johnson likens his counsels’ failure to conduct adequate

research about mitigating evidence to the deficient performance by

counsel in Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2001). In

Lockett, there was evidence that the defendant suffered from a

personality disorder and brain abnormality. Also, the defendant

suffered from seizures caused by temporal lobe epilepsy, a

condition that would explain “senseless acts of violence and . . .

[an] eccentric interpretation of reality.” Lockett, 230 F.3d at

713. After noting that “[a]lthough he possessed information that

plainly suggested the need to investigate Lockett’s psychological

problems, he did not, to any degree, pursue this information,” this

Court held Lockett’s counsel to be deficient. Id. at 714. Johnson

asserts here that his counsel had a photo taken shortly after his

birth that shows a head injury resulting from forcep’s use.

However, his trial counsel did not take this cue to investigate.

Consequently, the photo was not introduced to the jury, and his

mental state was not really investigated until his state habeas

counsel took the initiative to do so.

5
 Finally, Johnson urges that his attorneys incorrectly resolved

a perceived conflict in interest. Specifically, he claims his

attorneys were faced with a quandary: Any mitigation evidence

about his abusive childhood would have impugned his mother, father,

and other relatives. However, these same people were necessary

witnesses to his alibi. Nonetheless, Johnson argues that his

attorneys had a duty to present mitigating evidence at the

sentencing phase because it was already apparent that the alibi had

failed. And he asserts that his counsel’s failure to do so amounts

to deficient performance. See Williams v. Taylor, 529 U.S. 362,

395-96 (2000); see also Caro v. Woodford, 280 F.3d 1247, 1255-58

(9th Cir.), cert. denied, 122 S.Ct. 2645 (2002).

We deny Johnson’s request for a COA on this issue because he

has not made “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). During the

punishment phase of his trial, the Government introduced evidence

of Johnson’s violent propensities and future dangerousness. To

rebut this evidence, Johnson’s attorneys introduced mitigating

evidence of his good character, mainly through testimony by his

family members. Johnson’s contention here is that his counsels’

failure to also introduce mitigating evidence about an alleged

injury, alcohol and drug abuse, and abusive childhood was deficient

representation. To prevail on this claim, he must establish that

his attorneys failed to investigate or introduce this evidence;

6
that this failure amounted to deficient performance by his

attorneys; and that he was prejudiced by this failure. See

Strickland v. Washington, 466 U.S. 668, 687 (1984).

Johnson fails to establish any of these three things. First,

it does not appear that his attorneys shirked their duty to

investigate possible mitigating evidence—an important fact which

distinguishes this case from Lockett, the case upon which Johnson

relies. In Lockett, this Court noted:

[T]he state habeas record reflects an overworked defense
counsel, trying to present a defense in two death penalty
trials . . . Defense counsel’s December 1998 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 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.

230 F.3d at 711-12. In contrast, the Government notes here that

Johnson’s attorneys spent hours interviewing his family members at

length and maintained weekly contact with them. During these

interviews, they asked about a “laundry list” of topics, beginning

7
with Johnson’s childhood. They specifically inquired about

possible substance abuse, physical and sexual abuse, and brain

injury issues. Apparently, despite all their questions, neither

Johnson nor his family ever disclosed any history of abuse or brain

injury.

Because Johnson’s attorneys appear to have adequately

investigated possible mitigation evidence, their performance was

not deficient under Lockett. This Court has consistently refused

to hold attorneys responsible for introducing mitigation evidence

that their client and other witnesses fail to disclose. E.g.,

Soria v. Johnson, 207 F.3d 232, 250-51 (5th Cir. 2000); West v.

Johnson, 92 F.3d 1385, 1408-09 (5th Cir. 1996).

Second—even assuming the truth of Johnson’s newly claimed

mitigating evidence and that it was available to his attorneys—we

have made clear that, so long as the decision not to introduce

double-edged mitigating evidence was based on trial strategy rather

than lack of investigation, “those questions are even less

susceptible to judicial second-guessing.” Kitchens v. Johnson, 190

F.3d 698, 703 (5th Cir. 1999).

Finally, it does not appear that Johnson could establish that

he was prejudiced by his attorneys’ alleged deficient performance.

See Strickland, 466 U.S. at 693. The Government introduced

evidence from several witnesses as to his future dangerousness: (1)

he beat his ex-girlfriend and she had witnessed him fleeing police

8
in a stolen car; (2) he pointed a gun at a neighbor; (3) he pulled

a knife on another person and chased him around, eventually cutting

him; (4) he tried to run over a cat, and, when he failed, he backed

up and tried again; (5) he would steal cars and drive them into

mailboxes to wreck them; (6) he got in an argument with a woman,

jumped on the hood of her car, and smashed in the window; and (7)

he was spiteful, uncooperative, and destructive while in pre-trial

confinement. Dr. Grigson, the state’s expert psychologist, also

testified that Johnson posed a continuing threat to society.

In response, Johnson’s attorneys introduced character evidence

on his behalf. They also vigorously attacked the validity of the

state’s expert who opined that Johnson presented a future danger to

society. They even introduced their own expert testimony to rebut

the state’s expert. Notably, this was the strongest mitigation

evidence they could offer because any evidence about Johnson’s

alleged brain injury, abusive childhood, and drug and alcohol

problems is all “double edged.” In other words, even if his recent

claims about this evidence is true, it could all be read by the

jury to support, rather than detract, from his future

dangerousness. Thus, “[i]n light of the evidence presented at

trial, [Johnson] has failed to show evidence of sufficient quality

and force to raise a reasonable probability that, had it been

presented to the jury, a life sentence would have resulted.”

Andrews v. Collins, 21 F.3d 612, 624 (5th Cir. 1994); see also

9
Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001)

(“Considering [petitioner’s] history in light of the horrific

nature of this offense, a reasonable court could conclude that

there was no substantial likelihood that the outcome of the

punishment phase would have been altered by evidence that he

suffered organic brain damage.”), cert. denied, 122 S.Ct. 1463

(2000).

Because it is unlikely that Johnson can satisfy his burden

under Strickland to prove deficient performance and prejudice, we

deny his application for a COA on this issue.

ISSUE II: Whether trial counsels’ failure to object to Dr.
Grigson’s expert testimony regarding future dangerousness
amounted to ineffective assistance of counsel.

Under Texas law, the jury is required to decide, in a capital

case, “whether there is a probability that the Defendant would

commit criminal acts of violence that would constitute a continuing

threat to society.” TEX. CODE OF CRIM. PROC. art. 37.071 §2(b)(1).

In addition to the Government’s evidence about Johnson’s prior

violent behavior, it also presented Dr. Grigson’s expert testimony

that, based on a hypothetical assuming the truth of Johnson’s prior

acts, Johnson presented a future threat. Johnson’s attorneys did

not object to this testimony, although they did rigorously cross-

examine him about his methodology and credentials. In addition,

they presented their own rebuttal expert who opined that Johnson

10
was not a future danger to society.

Johnson argues that his counsels’ failure to object to Dr.

Grigson’s testimony amounted to ineffective assistance of counsel.

Specifically, he contends that Grigson’s opinion was inadmissable

and that it effected the jury’s decision to impose the death

penalty.

Johnson relies almost exclusively on Rios-Delgado v. United

States, 117 F. Supp. 2d 581, 588-89 (W.D. Tex. 2000), where the

district court held that an attorney’s failure to object to a

sentencing enhancement that was the subject of a circuit split

amounted to ineffective assistance of counsel. In Rios-Delgado,

the district court concluded that the attorney’s “silence

reflect[ed] nothing more than a failure to investigate the relevant

facts and law that would have given her a strategy.” 117 F. Supp.

2d at 591.

In arguing the inadmissability of Grigson’s testimony, Johnson

relies upon Judge Garza’s concurrence in Flores v. Johnson, where

he questioned the admissibility of expert future dangerousness

testimony. 210 F.3d 456, 458 (5th Cir. 2000). He also points to

Daubert, Robinson, and Kelly for the proposition that expert

testimony must be reliable, relevant, and helpful to the jury to be

admissible.2 He argues that Grigson’s methodology cannot be

2
See Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993); E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549 (1995); Kelly v. State, 824 S.W.2d 568
(Tex. Crim. App. 1992).

11
tested, and that his testimony is not ultimately helpful to the

jury.3 Thus, he contends that any objection to this testimony

would have been sustained by the trial court.

For these reasons, Johnson asserts that his counsels’ failure

to object to this testimony amounts to deficient performance under

Strickland’s first prong. He characterizes the decision not to

object as “an unexplainable and erroneous decision.”

He also argues that, under Strickland’s second prong, he has

demonstrated prejudice. Specifically, he posits that his criminal

history is unremarkable, and would not have incited in the jury a

natural or reasonable fear that he was a future danger without an

“expert” to interpret this criminal history.

We deny Johnson’s application for a COA on this issue. The

facts here are distinguishable from Rios-Delgado, the district

court case upon which he relies. In Rios-Delgado the defendant’s

attorney failed to object to a sentencing enhancement that treated

his prior conviction for commercial burglary as an “aggregated

felony.” The district court concluded that this failure to object

was deficient for three reasons. First, such an objection would

not have been frivolous. 117 F. Supp. 2d at 589. The plain

3
Johnson acknowledges that the Supreme Court, in a case
involving this same expert, concluded that expert testimony about
future dangerousness was admissible in Barefoot v. Estelle, 463
U.S. 880, 897-99 (1983); however, he contends that, under Daubert
and Robinson, the Supreme Court would reach a different result if
faced with the same facts now.

12
language of the sentencing guidelines could support an argument for

a narrow reading of the sentencing guideline provision. Id. at

590. Second, this failure to object reflected a failure to conduct

even the most basic legal investigation. Id. Had the attorney

investigated, she would have discovered and brought to the court’s

attention a circuit split on this very issue. Id. She could also

have pointed to a pending Fifth Circuit case on this very issue.

Finally, the court noted that there was no evidence that counsel’s

failure to object stemmed from strategic reasons rather than pure

neglect. Id. at 591.

In contrast with Rios-Delgado, precedent from the Supreme

Court, Fifth Circuit, and Texas Court of Criminal Appeals

unanimously support the conclusion that an objection to Dr.

Grigson’s testimony would have been frivolous. Johnson’s argument

about the inadmissability of Grigson’s testimony is foreclosed by

Barefoot v. Estelle, where the Supreme Court rejected the view that

this type of evidence is inadmissable. We also disagree that

Johnson could have persuasively argued to the district court that

Daubert or Robinson altered the admissibility of this type of

evidence after Barefoot. Johnson cites no authority questioning

the continued validity of Barefoot. And, more importantly, this

Court has rejected the very argument that Johnson is making here.

See Tigner v. Cockrell, 264 F.3d 521, 526-27 (5th Cir. 2001) (“We

decline Tigner’s invitation to undercut Barefoot, because to do so

13
on collateral review would constitute a new rule in violation of

Teague’s non-retroactivity principle”); see also Little v. Johnson,

162 F.3d 855, 862-63 (5th Cir. 1998).

In addition, the Texas courts have repeatedly found

psychiatric predictions of future dangerousness to be admissible.

Fuller v. State, 829 S.W.2d 191, 195 n.1 (Tex. Crim. App. 1992)

(“Indeed, we have even held, without dissent, that objection to Dr.

Grigson’s expert testimony on this issue ‘would amount to a futile

act.’”), overruled on other grounds by Castillo v. State, 913

S.W.2d 529 (1995); Nenno v. State, 970 S.W.2d 549, 560-62 (Tex.

Crim. App. 1998) (holding ‘future dangerousness’ expert testimony

to be admissible), overruled on other grounds by State v. Terrazas,

4 S.W.3d 720 (Tex. Crim. App. 1999).

Because any objection to the admissability of Grigson’s

testimony would have been overruled based on existing precedent,

such an objection would have been futile. See Koch v. Puckett, 907

F.2d 524, 527 (5th Cir. 1990) (“This Court has made clear that

counsel is not required to make futile motions or objections.”).

Finally, the fact that there is evidence that Johnson’s

attorneys’ decision not to object was made for strategic reasons

further distinguishes this case from Rios-Delgado. In fact, his

attorneys claim that they consciously decided not to mount a futile

objection to prevent putting the witness and Government on notice

as to the challenges they intended to make to Dr. Grigson’s

14
qualifications.

In sum, given the factual differences between this case and

Rois-Delgado, coupled with our prior admonishment that “[g]enerally

speaking, a failure to object, standing alone, does not rise to the

level of constitutionally deficient performance,” see Rios-Delgado,

117 F. Supp. 2d at 589 (citing Murray v. Maggio, 736 F.2d 279, 283

(5th Cir. 1984)), Johnson has failed to make a substantial showing

of the denial of a constitutional right. Accordingly, we deny his

application for a COA on this issue.

ISSUE III: Whether Article 37.071 of the Texas Code of
Criminal Procedure is unconstitutional because it
does not provide for an independent review of the
propriety of a death sentence.

Article 37.071(e)(1) of the Texas Code of Criminal Procedure

requires the court in a capital murder case to instruct the jury to

answer the following issue:

Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the
defendant’s character and background, and the personal
moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that
a sentence of life imprisonment rather than a death
sentence be imposed.

While a defendant’s potential “future dangerousness” is subject to

review on appeal, the Texas Court of Criminal Appeals has refused

to review the sufficiency of the evidence weighed by the jury in

deciding whether mitigating evidence exists to support a life

15
sentence rather than death under article 37.071(e). See McFarland

v. State, 928 S.W.2d 482, 498 (Tex. Crim. App. 1996).

Johnson argues that article 37.071(e) grants juries the

unfettered discretion to impose the death penalty. Accordingly, he

urges that it is unconstitutional.

The Government notes that Johnson asserted this claim on

direct appeal where it was rejected by the Texas Court of Criminal

Appeals. It urges us to deny COA because the Texas Court of

Criminal Appeals’ determination that article 37.071 is

constitutional is not contrary to clearly established federal

precedent.

Johnson’s request for a COA on this issue is denied. This

Court has previously rejected a claim identical to the one Johnson

urges here. See Hughes v. Johnson, 191 F.3d 607, 621-23 (5th Cir.

1999). And the Supreme Court has held that the Eighth Amendment

does not require an appellate court to independently re-weigh

aggravating and mitigating evidence. Pulley v. Harris, 465 U.S.

37, 45-46 (1984). In fact, the Court has held that “[o]nce the

jury finds that the defendant falls within the legislatively

defined category of persons eligible for the death penalty, . . .

the jury then is free to consider a myriad of factors to determine

whether death is the appropriate punishment.” Tuilaepa v.

California, 512 U.S. 967, 979 (1994). And “the sentencer may be

given unbridled discretion in determining whether the death penalty

16
should be imposed after it has found that the defendant is a member

of the class made eligible for the penalty.” Id.

We deny Johnson’s request for COA on this issue because he

cites no authority directly supporting his position. Moreover,

even if this Court decided this claim had merit, we would not be at

liberty to create a new rule and apply it retroactively here. See

generally Teague v. Lane, 489 U.S. 288 (1989).

ISSUES IV & V: Whether Texas capital sentencing provisions are
unconstitutional because they fail to inform juries
of minimum prison time, and, if so, whether the
trial court failed to properly instruct the jury
about Texas parole law and the meaning of a life
sentence in violation of U.S. Constitutional
amendments XIII and XIV.

When Johnson was tried, Texas law provided that a defendant

who received a life sentence for a capital offense was first

eligible for parole after serving forty years. Consistent with

Texas law at the time, the district court specifically instructed

the jury that it was not allowed to consider the prospect of

parole. Johnson argues that the court’s failure to instruct the

jury in his case that he would not be eligible for parole until he

had served forty years violated the Eighth and Fourteenth

Amendments.

In Simmons v. South Carolina, the Supreme Court held that a

jury must be informed about the defendant’s non-eligibility for

parole when: (1) the Government argues the defendant’s future

17
dangerousness, and (2) where the “life sentence” option for a

capital offense carries no possibility of parole. 512 U.S. 154,

156 (1994). However, the Simmons’ Court specifically acknowledged

that its holding did not apply to Texas, where life without any

possibility of parole is not a sentencing option. See id. at 168

n.8.; see also Ramdass v. Angelone, 530 U.S. 156, 166 (2000) (“The

parole-ineligibility instruction is required only when, assuming

the jury fixes the sentence at life, the defendant is ineligible

for parole under state law.”).

Moreover, consistent with Simmons and its progeny, our Circuit

has also consistently emphasized that Simmons only applies when

there is a life-without-possibility-of-parole alternative to

capital punishment, an alternative not available in Texas. Collier

v. Cockrell, No. 01-10803 (July 25, 2002); e.g., Tigner, 264 F.3d

at 525.

Nonetheless, Johnson asserts that this limited reading of

Simmons’ reach is incorrect because the Supreme Court expanded

Simmons’ scope in Kelly v. South Carolina, 534 U.S. 246 (2002).

Kelly involved South Carolina’s sentencing scheme in capital cases.

Under South Carolina law, capital jurors first decide whether the

State has proven statutory aggravating circumstances beyond a

reasonable doubt. If they do not agree on these aggravating

factors unanimously, then the jury does not make a sentencing

recommendation. Rather, the judge is charged with sentencing the

18
defendant either to life imprisonment without parole, or to a

prison term of at least thirty years. S.C. Code Anno. §§ 16-3-

20(B), (C). But, if the jury does find a statutory aggravating

circumstance, it recommends one of only two possible sentences:

life without the possibility or parole, or death. Id. The Supreme

Court in Kelly held that, under this scheme, Simmons applied and

the defendant was entitled to have the jurors instructed that he

would be ineligible for parole. Kelly, 534 U.S. at 730. Nowhere

do we read Kelly to extend Simmons’ reach. To the contrary, Kelly

simply reiterates that when the jury is faced with only two

choices—death or life without the possibility of parole—the

defendant is entitled to an instruction about his or her parole

ineligibility. Accordingly, any extension of Simmons here in

Johnson’s case would constitute a new rule which is barred by the

non-retroactive principles of Teague v. Lane. For these reasons,

we decline to issue a COA on this issue.

IV. CONCLUSION

Johnson has not made a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). We therefore DENY

his request for a COA.

19