REVISED JANUARY 16, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50455
CHRISTOPHER BLACK, SR.,
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
December 11, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Christopher Black was sentenced to death upon his conviction
by a Texas jury of capital murder. In February 1998, angry at the
end of his marriage, Black recorded on cassette tapes why he wanted
to kill his family, applied for the purchase of a handgun, and some
days later purchased a semi-automatic pistol. The next day he went
to the house where his wife was living. There in the presence of
Deidre Blackburn, a friend of his wife,1 he shot his wife twelve
1
She testified that she saw Black shoot his wife and then fled to a
neighbor’s house as the shooting continued.
times, his infant daughter as she sat in a high chair, and fired
five rounds at point blank range into the chest of his step
granddaughter, then seventeen months old. All died of the gunshot
wounds. He then immediately called 911 and told a police
dispatcher that he had just killed his wife, daughter, and
granddaughter. Arrested at the scene, he was indicted by a Bell
County grand jury for the murder of a person under the age of six
years, a capital crime in Texas.
The Texas courts rejected his direct appeal and habeas attack
upon his conviction and sentence. The United States District Court
for the Western District of Texas in turn rejected his federal
petition filed under 28 U.S.C. § 2254 on the merits and denied his
request for a certificate of appealability. Today he requests from
this court a certificate of appealability upon claims of
ineffective assistance of counsel: that his counsel denied him the
right to testify in the punishment phase or was ineffective in
adopting a trial strategy with which he did not agree, and that the
state trial judge denied him the right to counsel by excusing a
member of the venire outside the presence of all counsel and Black.
We pay the deference due the decisions of the state courts and
conclude that Black has failed to make a substantial showing of
denial of a constitutional right. We deny his request for a
certificate of appealability.
I
2
Our standard of review is settled. Black filed his federal
habeas petition in 2001, and hence his claims are governed by the
Antiterrorism and Effective Death Penalty Act of 1996. A
certificate of appealability is a prerequisite to our jurisdiction,
and can be granted only upon a substantial showing that Black was
denied a constitutional right, and if we conclude that “reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.”2
In affirming Black’s conviction and sentence on direct
appeal,3 the Texas Court of Criminal Appeals rejected the second
claim he presents here, the excusing of the venire member by the
presiding trial judge. Then, in a March 7, 2001 unpublished order,
the Texas Court of Criminal Appeals rejected Black’s collateral
attack. This order denied any relief to Black upon his first claim
of ineffective assistance of counsel. As we will explain, the
state trial judge conducted an evidentiary hearing on Black’s
habeas petition and filed detailed findings of fact and conclusions
of law, the basis for the denial of habeas relief by the Court of
Criminal Appeals and its rejection of Black’s claim of ineffective
2
Slack v. McDaniel, 529 U.S. 473, 484 (2000). If we were to grant the
COA, to prevail on his habeas claim Black would have to show that the denial of
his claims on their merits by the Texas state courts 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.” Williams v. Taylor, 529 U.S. 362, 367, 386 (2000)
(internal quotation marks omitted).
3
Black v. State, 26 S.W.3d 895 (Tex. Crim. App. 2000).
3
assistance of counsel.
II
A claim of ineffective assistance of counsel must be judged
with eyes directly upon the reality of the situation facing defense
counsel at the time of the acts and not years later. This
discipline best assures faithful application of the objective
measure of whether the decisions of defense counsel are within the
range of those a reasonably competent lawyer might have made under
those same facts and circumstances. It also takes us far along in
judging its prejudice, if that inquiry is required. We begin with
that important setting.
Judge Joe Carroll of the 27th Judicial District Court of Bell
County presided at trial and at the later evidentiary hearing on
Black’s state habeas petition. At the outset of the case Judge
Carroll appointed Frank Holbrook and Bob Odom, criminal defense
lawyers with combined experience of more than sixty years, as
counsel to Black. Faced with little or nothing with which to
challenge the state’s case at the guilt stage, their efforts at
trial were directed toward avoiding the death penalty. At the
guilt phase, defense counsel worked with their eyes on the
punishment phase, attempting to elicit testimony on cross that
might suggest or support the picture they hoped they would later be
able to paint, a picture of a man with a distinguished military
record distraught over his marital problems who erupted in an
episode so horrendous and self-destructive as to itself suggest
4
that it was not the act of a man likely to be dangerous in a prison
environment. Their judgment was that an effort to resist a verdict
of guilt would risk loss of their credibility with the jury and
make more difficult the task facing them at the inevitable
punishment phase. This they did, even waiving argument. The jury
found Black guilty of capital murder in a matter of minutes,
circled the table in the vernacular, but deliberated over seven
hours before returning its answer to the three questions required
to be asked at the punishment phase by Article 37.071, Texas Code
of Criminal Procedure.
After the trial, Judge Carroll appointed John R. Duer as
appellate counsel. Following his direct appeal, Black filed his
application for a writ of habeas corpus, and on October 17, 2000,
Judge Carroll conducted an evidentiary hearing. At its outset the
trial judge observed: “The issues designated for hearing this
morning are, one, did the applicant’s attorneys refuse to allow him
to testify at his trial; number two, did the applicant’s attorneys
follow a trial strategy that he did not consent to or agree with;
and number three, did the applicant’s attorneys follow a trial
strategy that was forced upon him.” There were three witnesses:
Black, Holbrook, and Odom. Black was asked directly why he did not
testify. He responded, “For several reasons. One, the attorneys
were relying heavily on the testimony of Dr. Reid.” Dr. Reid, a
psychiatrist, testified at the punishment phase as a defense
witness. Black testified that he told Holbrook and Odom that he
5
could “rebut” the testimony of his ex-wife by denying that he ever
hit her, or that he used her alien status by threatening to report
her to the INS; he could have denied that he pointed his gun at
Deidre Blackburn, who was in the house when he shot his wife and
who testified against him in the guilt stage. He also testified
that he wanted to explain the tapes that had been introduced at the
guilt stage, although he was unclear what his explanation would
have been. Black denied that his counsel told him he had a right
to testify, or that he was otherwise aware of his right to do so.
Holbrook and Odom had a very different recall of these events.
Both testified that they had explained Black’s rights to him at
length and that he understood them; that the decision to not
testify was made by Black. On November 28th, Judge Carroll filed
detailed findings of fact and conclusions of law rejecting Black’s
version of events and finding “that the Applicant’s attorneys did
not refuse to allow him to testify at the guilt/innocence or
punishment stage of his trial, but advised him that testifying
would not be in his best interest.” He also found “that the ...
attorneys discussed with [Black] on more than one occasion the law
of the case, the State’s burden in the case, and their trial
strategy; and that he understood this strategy and it was not
forced upon him in any way.”
These findings were adopted by the Texas Court of Criminal
Appeals. In turn, the reviewing federal court was required to
presume that they are correct absent any “clear and convincing”
6
evidence that would show otherwise.4 Black’s first claim is
without merit and reasonable jurists would not disagree with its
rejection by the state court and the court below.
III
Black claims constitutional error in Judge Carroll’s decision
to excuse out of his and all counsel’s presence a late arriving
member of the venire who asked not to serve because she was hard of
hearing. The argument is that he was thus deprived of counsel in
violation of the teachings of United States v. Cronic.5 Black’s
counsel objected to the release of the member of the venire in their
absence. Judge Carroll immediately explained, “There was a lady
that came up and couldn’t hear. And she said she had a doctor’s
excuse with her. I interviewed her and determined she couldn’t hear
and so I let her go. And she promised me that she would bring her
excuse back. And I am sorry that I didn’t do that in the presence
in here awhile ago. It just caught me off-guard.” He later found
in his habeas findings of fact and conclusions of law that “[s]ince
a Trial Court has broad discretion to excuse jurors for other than
economic reasons without the parties being present, the trial court
did not abuse its discretion in granting a juror’s request that she
be excused because she could not hear out of the presence of counsel
4
28 U.S.C. § 2254(d)(2), (e)(1).
5
466 U.S. 648 (1984).
7
for either side or the applicant.”6 The judge also pointed out that
she was accompanied by a caretaker companion. Since Black cannot
show prejudice, his contention must persuade that this is a Cronic
case and not a Strickland case.7
Black’s contention relies upon a dubious principle of law. At
the least, it is by no means clearly established. Cronic speaks to
the absence of counsel at a critical stage of a trial. It is not
clear that here recognizing an inability of the prospective member
of the venire to sit on any jury because of a physical disability
was such a critical stage. Judges by practical necessity summon
large numbers of persons as members of a venire where they hear such
petitions of delay and relief from service entirely out the presence
6
Citing, inter alia, TEX. GOV’T CODE ANN. §§ 62.110, 62.1041(b) (Vernon
2000).
7
We have explained:
To sustain a claim of inadequate assistance of counsel, a defendant
usually must meet the standards of Strickland v. Washington, [466
U.S. 668, 687 (1984)], which requires proof that (1) “counsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense” so gravely as to “deprive the defendant of
a fair trial, a trial whose result is reliable.” “There are,
however, circumstances that are so likely to prejudice the accused
that the cost of litigating their effect in a particular case is
unjustified.” United States v. Cronic, [466 U.S. 648, 658 (1984).]
In such cases, where the defendant is constructively denied
assistance of counsel, prejudice is automatically assumed and need
not be proven.
Johnson v. Cockrell, 301 F.3d 234, 237-38 (5th Cir. 2002) (some citations
omitted); cf. Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (en banc)
(upholding a Cronic claim in a case where the defendant’s lawyer was asleep
during parts of the trial because “[u]nconscious counsel equates to no counsel
at all. Unconscious counsel does not analyze, object, listen or in any way
exercise judgment on behalf of the client”), cert. denied, 122 S. Ct. 2347
(2002).
8
of any lawyers. This because a panel from which a petit jury will
be selected is often cut from a large pool periodically summoned.
That pool may be summoned and qualified for jury service by a
presiding judge before an indictment is even drawn for cases to
come. Where the critical stage in a trial is reached in this
progression from the first pool to the panel for a particular case
is uncertain. At the least, extending Cronic to this circumstance
would call forth a new and Teague-barred rule.8
Requests for COA are rejected, and the judgment of the district
court dismissing the petition for federal habeas is AFFIRMED.
8
Teague v. Lane, 489 U.S. 288 (1989).
9