United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 23, 2003
Charles R. Fulbruge III
Clerk
No. 02-11007
ANDRE ANTHONY LEWIS,
Petitioner-Appellant,
versus
DOUGLAS DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
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Before KING, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Andre Anthony Lewis appeals the district
court’s second denial of his petition for habeas corpus filed
pursuant to 28 U.S.C. § 2254. On appeal from the district court’s
first denial of Lewis’s petition for habeas relief, we vacated that
ruling insofar as it denied relief on Lewis’s claims of ineffective
assistance of counsel during the punishment phase of his murder
trial, and we remanded the case to the district court with
instructions to conduct a full evidentiary hearing on those claims.
After conducting such an evidentiary hearing, the district court
again denied relief, this time on all of Lewis’s remanded claims.
The district court then granted a certificate of appealability
(“COA”) to allow Lewis to appeal those claims. We reverse and
remand with instructions to grant habeas corpus relief.
I
ANALYSIS
A. Standard of Review
Lewis filed his instant petition before the effective date of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
Therefore, pre-AEDPA habeas corpus law applies to Lewis’s petition.
See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Green v. Johnson,
116 F.3d 1115, 1120 (5th Cir. 1997). Because the state court did
not make any factual findings regarding these claims when they were
raised in a state habeas corpus application, no deference is owed
to the state court’s resolution of the instant claims. See Perillo
v. Johnson, 79 F.3d 441, 446 (5th Cir. 1996).
Furthermore, our scope of review after remand is limited to
“whether the court below reached its final decree in due pursuance
of [this court’s] previous opinion and mandate.” Burroughs v. FFP
Operating Partners, 70 F.3d 31, 33 (5th Cir. 1995). The district
court’s findings of fact are reviewed for clear error, and its
conclusions of law are reviewed de novo. See Johnson v. Puckett,
176 F.3d 809, 813 (5th Cir. 1999). As claims of ineffective
assistance of counsel involve mixed questions of law and fact, they
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are reviewed de novo. See United States v. Placente, 81 F.3d 555,
558 (5th Cir. 1996).
B. Lewis’s Burden
To prevail on his claim of ineffective assistance of counsel,
Lewis must show that his defense counsel’s performance in the
punishment phase of Lewis’s trial was deficient, i.e., that it
“fell below an objective standard of reasonableness.” Strickland
v. Washington, 466 U.S. 668, 688 (1984). If successful, Lewis then
must prove that there is a reasonable probability that, but for
defense counsel’s deficient performance, the result of the
proceedings would have been different. Id. at 694. Failure to
establish either prong defeats the claim. Id. at 697.
C. Lead Poisoning; Psychiatric Examination
In our previous order of remand, we expressed concern with
defense counsel’s failure to submit Lewis for psychiatric testing.
We also noted concern for defense counsel’s handling of the
question of lead poisoning. According to the expert testimony
presented at the evidentiary hearing, however, Lewis’s claim that
he had been exposed to high levels of lead as a child could not be
conclusively proven, and any lingering effects of Lewis’s alleged
lead poisoning could be shown only through a psychiatric
evaluation. As to both questions, the record supports the district
court’s holding that Lewis’s defense counsel made a strategic,
informed decision to forego a psychiatric evaluation of Lewis to
avoid the testimony of the State’s expert psychiatric witness on
3
the special issue of future dangerousness. Accordingly, defense
counsel’s performance regarding psychiatric testing, both generally
and in regard to lead poisoning, was not deficient. See Green v.
Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997); Williams v. Collins,
16 F.3d 626, 634 (5th Cir. 1994). Therefore, we need not determine
whether Lewis was prejudiced by defense counsel’s decision to
forego psychiatric testing. The district court’s denial of Lewis’s
ineffective-assistance claims regarding defense counsel’s failure
to submit him for psychiatric testing and to investigate or submit
mitigating evidence of his alleged lead poisoning was proper.
D. Sufficiency of Investigation into Mitigating Evidence
We cannot affirm, however, the district court’s denial of
Lewis’s claim that defense counsel was ineffective in failing to
investigate mitigating evidence of his abusive childhood.1 In our
previous order of remand, we expressed concern about the amount of
time that defense counsel spent —— more accurately, might not have
spent —— in preparing for Lewis’s punishment phase, and with
defense counsel’s failure to adduce mitigating evidence of Lewis’s
abusive childhood. This concern was aggravated by the fact that
the lead defense counsel testified at Lewis’s sentencing hearing
that the defense’s investigation of punishment phase issues was
1
We note that the district court’s investigation into defense
counsel’s representation of Lewis during his punishment phase was
greatly hindered by the fact that, because their files were
unavailable, the testimony of each defense counsel was primarily
based on his or her memory after the passage of more than fourteen
years following the punishment phase of Lewis’s trial.
4
incomplete. The district court’s findings on remand were not
sufficiently focused on whether defense counsel reasonably
fulfilled their duty to investigate mitigation in general and
Lewis’s abusive childhood in particular.
“[I]n the context of a capital sentencing proceeding, defense
counsel has the obligation to conduct a ‘reasonably substantial,
independent investigation’ into potential mitigating
circumstances.” Neal v. Puckett, 286 F.3d 230, 236 (5th Cir.
2002)(citation omitted). “In assessing counsel’s performance, we
look to such factors as what counsel did to prepare for sentencing,
what mitigating evidence he had accumulated, what additional
‘leads’ he had, and what results he might reasonably have expected
from these leads.” Id. at 237. The focus of this inquiry is “not
whether counsel should have presented a mitigation case,” but
“whether the investigation supporting counsel’s decision not to
introduce mitigation evidence . . . was itself reasonable.”
Wiggins v. Smith, 123 S. Ct. 2527, 2536 (2003)(emphasis in
original).2 A limited investigation into mitigating evidence may
be reasonable only if counsel has a basis for believing that
further investigation would be counterproductive or fruitless. See
id. at 2537 (and cases cited therein).
2
As the Supreme Court’s opinion in Wiggins was issued after
the district court’s judgment was entered, the district court did
not have the benefit of Wiggins when deciding the instant issue.
5
1. Deficiency of Performance
In its current state, the record does not reveal whether
defense counsel conducted an investigation into Lewis’s childhood
abuse and, if so, whether such investigation was sufficient under
the aforementioned standards. As noted, one difficulty with this
case is the understandably hazy memories of both defense counsel as
to the extent of their investigation. The magistrate judge
nevertheless found that counsel did attempt to speak with family
members about Lewis’s abusive background, but that the family
members were “not forthcoming.” This finding is based, however,
on but one brief passage in the testimony of defense co-counsel,
Jan Hemphill: “I don’t believe they were [forthcoming] and I don’t
know if I didn’t probe enough or they weren’t forthcoming or if I
didn’t ask the right questions.”
This mere modicum of evidence is insufficient to support the
district court’s conclusion. Counsel was obviously straining to
remember what had occurred, and she even qualified her statement by
conceding that the lack of response from family members might have
been attributable to her failure to ask the right questions.
Significantly, defense attorney Hemphill could provide no details
about whom she questioned, what questions she asked, and what
responses were forthcoming. Additionally, her pardonably vague
testimony is contradicted by the specific testimony of petitioner’s
sisters, Tammy Lewis, Peggy Clemmons, and Arlisa Lewis, each of
whom testified at the habeas hearing that, inter alia, they were
6
present at Lewis’s trial but that counsel never spoke with any of
them.
The State endeavors to support defense counsel’s failure to
adduce evidence of an abusive childhood by classifying it as a
tactical decision. The State argues that defense counsel could
have reasonably believed that, if adduced, evidence of severe
childhood abuse would be more harmful than helpful under then
existing law, because the court’s instructions would not give the
jury an avenue under which it could use the evidence in mitigation.
Nothing in counsel’s testimony, however, supports the theory of
their decision having been tactical. This likely explains why the
district court did not advert to the grounds of tactics or strategy
to justify counsel’s failure to adduce evidence of Lewis’s abusive
childhood.
It is axiomatic —— particularly since Wiggins —— that such a
decision cannot be credited as calculated tactics or strategy
unless it is grounded in sufficient facts, resulting in turn from
an investigation that is at least adequate for that purpose. It
may well be that here the district court harbored concerns that
counsel had not established that they conducted a sufficiently
thorough investigation of abuse to be in a position to make a
strategic decision not to use the evidence. The district court
observed that counsel adduced evidence of child abuse through the
testimony of Lewis’s grandmother, Lula. Yet, her conclusional
testimony contained none of the details provided by Lewis’s
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siblings at the habeas hearing, which could have been truly
beneficial. Lula’s skeletal testimony concerning the abuse of her
grandson was wholly inadequate to present to the jury a true
picture of the tortured childhood experienced by Lewis.
We are always reluctant to question a district court’s factual
finding when it is grounded in the credibility (or lack thereof) of
a witness who that court hears and views in person but of whom we
see nothing more than a cold record. Nevertheless, reversing such
a call under review for clear error (much less de novo) is
certainly not unheard of. Indeed, this is one of those rare
instances in which we are constrained to reverse the district
court’s rejection, on credibility grounds, of the testimony of
Lewis’s siblings at the habeas hearing. A careful reading of their
testimony and supporting portions of the record leaves us with the
clear belief that a mistake has been made.
First, the testimony of Lewis’s sisters is remarkably
consistent. Each testified that their (and Lewis’s) father beat
all of them with extension cords, switches, sticks, or anything
else within his reach. They testified further that he regularly
made them undress, then whipped them in the area of their genitals,
and that this conduct occurred at least every other day. According
to Lewis’s sisters, all of the children lived in constant fear of
their father’s rages, particularly when he was unable to get the
drugs to which he was addicted.
8
Each of Lewis’s sisters testified that she attended his trial,
but added that counsel never asked her to testify. Tammy Lewis
testified further that defense counsel did not make an effort to
speak with her; and that, despite her indication to counsel that
she was willing to testify, counsel never followed up and never
called her to the stand.
We must also disagree with the district court’s statement that
there was no corroborating evidence to support the testimony of
these three witnesses. There is abundant record evidence that
Lewis’s father was a violent drug abuser; that he shot Lewis’s
mother in the stomach and leg, almost killing her; and that, in the
presence of Lewis and the other children, he beat their mother on
numerous occasions. Additionally, medical records in evidence show
that the children made numerous trips to the hospital emergency
rooms for treatment of injuries that were consistent with the
described beatings. The record reveals, inter alia, that Lewis had
to be hospitalized for cuts on his penis and for an infection he
developed when a hypodermic needle was stuck into his foot. And
these records also reflect that Lewis’s sister, Arlisa, was treated
for severe burns on her back and that their mother had suffered a
gunshot wound. This record evidence is consistent with the
testimony of the sisters, as is the evidence of approximately seven
“domestic disturbance” calls to 911 from the Lewis household
between 1975 and 1978.
9
The district court reached its conclusion that defense
counsel’s performance was reasonable despite the absence of the
kind of inquiry and focus required in the Supreme Court’s
subsequent opinion in Wiggins. We therefore have no choice but to
reject that conclusion.
2. Prejudice Prong of Strickland.
Likewise flawed is the district court’s conclusion that Lewis
was not prejudiced by defense counsel’s deficient performance. It
is obvious to us that the level of abuse to which Lewis was exposed
mandates the conclusion that, had this evidence been produced, it
is quite likely that it would have affected the sentencing decision
of at least one juror. The district court examined the testimony
presented by Lewis’s family members at the evidentiary hearing and
held that such testimony would either be inadmissible or be given
little weight under the nexus requirement set forth in Penry v.
Lynaugh, 492 U.S. 302 (1989). The court based this holding on the
time that elapsed between the alleged child abuse and the
commission of the crime of conviction, and on the fact Lewis had
intervening criminal convictions.3 Mitigating evidence of
childhood abuse, however, was considered in Williams v. Taylor,
529 U.S. 362, 398 (2000), and in Wiggins, 123 S. Ct. at 2532, 2542-
3
Although Lewis’s sentencing occurred prior to issuance of
Penry, Penry is relevant to the instant issue because, unlike the
deficiency prong, Strickland’s prejudice prong is measured under
current law. See Westley v. Johnson, 83 F.3d 714, 723 (5th Cir.
1996).
10
43, despite the fact that in each of those cases, the time that
elapsed between the instances of abuse and the commission of the
crime of conviction were greater than such period in the instant
case. Furthermore, the defendant in Williams had many intervening
criminal convictions. See Williams v. Taylor, 163 F.3d 860, 867
(4th Cir. 1998), reversed by Williams, 529 U.S. at 399. The
district court’s conclusion regarding the temporal nexus
requirement was therefore erroneous.
II
CONCLUSION
As we conclude that the district court’s resolution of both
prongs of Lewis’s claim of ineffective assistance at sentencing is
erroneous in regards to the mitigating evidence of his childhood
abuse, we must reverse that court’s denial of this claim.
Although, as a general proposition, we might remand for further
fact finding by the district court, such a disposition would not be
appropriate in this case. We are satisfied that, at this late
date, no remaining significant evidence is available beyond that
which has already been put into the record at the district court:
As noted, the trial occurred 14 years before the habeas hearing; by
then, both defense counsel had lost or destroyed their files; their
memory of what transpired was hazy and is unlikely to be improved;
and both Lewis and the State had full opportunities at the hearing
to present whatever evidence they cared to present. We are firmly
11
convinced, therefore, that no good purpose would be served by
remanding the case to the district court for further proceedings.
For the foregoing reasons, therefore, we REVERSE the district
court’s rejection of habeas corpus relief, and REMAND this case to
that court with instructions to grant Lewis’s § 2254 petition for
such relief. On remand, the district court shall vacate Lewis’s
state court sentence of death by lethal injection and order that
the State grant him a new penalty phase trial within a reasonable
time determined by the district court; or, failing that, that a new
sentence of life imprisonment be entered for Lewis, consistent with
applicable Texas law.
REVERSED AND REMANDED with instructions.
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