United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 5, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 02-41179
__________________________
Michael Lynn RILEY,
Petitioner - Appellant,
versus
Doug DRETKE, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent - Appellee.
___________________________________________________
Appeal from the United States District Court
For the Eastern District of Texas
___________________________________________________
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Petitioner Michael Lynn Riley (“Riley”) is a death-row inmate in the custody of the Texas
Department of Criminal Justice, Institutional Division. The district court granted Riley a certificate
of appealability (“COA”) based on one of his sub-claims of ineffective assistance of counsel.1
Specifically, Riley argues that the state habeas court wrongly denied him habeas relief because
evidence showed that his trial counsel failed to investigate and present facts supporting Riley’s alleged
1
Riley also petitioned this Court to grant him three additional COAs. That petition was
denied in a separate opinion, Riley v. Cockrell, 339 F.3d 308 (5th Cir. 2003).
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mental retardation. On appeal, Riley also argues that the district court abused its discretion in
denying him investigative funds. For the reasons set forth below, we reject both arguments.
I. FACTS AND PROCEEDINGS
On February 1, 1986, Riley fatally stabbed 23-year-old Winona Lynn Harris. The state of
Texas twice tried and twice convicted Riley for capital murder. During the first trial, Riley submitted
into evidence a 1973 evaluation from the Terrell State Hospital assigning him an I.Q. score of 67, a
level consistent with borderline mental retardation. The jury returned a guilty verdict and imposed
a sentence of death. The first conviction was subsequently overturned on appeal because of an error
in jury selection.
In preparation for Riley’s second trial, Riley’s lead trial counsel, William Wright (“Wright”),
became aware of the 1973 I.Q. test. Despite this knowledge, Wright determined that Riley was not
mentally retarded based on Wright’s personal observations of and interactions with Riley, interviews
with Riley’s family, and school, probation and juvenile records. Furthermore, Wright decided to
forego presenting the prior I.Q. test because he believed that presenting it would detract from the
argument that Riley would not pose a future threat to society. Wright believed that the prior I.Q. test
was more likely to aggravate than to further the trial strategy.
Although Wright did not believe that Riley was mentally retarded, Wright still employed a
psychologist, Dr. Patrick Lawrence (“Dr. Lawrence”), to determine whether Riley posed a future
threat to society. In meeting with Dr. Lawrence, Wright discussed the 1973 I.Q. test with him. Part
of Dr. Lawrence’s examination of Riley consisted of administering a more recently developed
intellectual aptitude test. During the second trial, Dr. Lawrence testified as an expert and opined that
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Riley’s mental state would not pose a future threat to society; Dr. Lawrence did not testify as to
Riley’s I.Q.
After his second conviction and death sentence, Riley petitioned for a state habeas proceeding,
arguing, inter alia, that Wright had failed to adequately investigate and present mitigating evidence
of mental retardation. The state habeas court held that Wright had conducted “a thorough and
complete investigation as to other existence of retardation evidence,” and that Wright had made a
reasonable tactical decision that the 1973 I.Q. test would not benefit Riley in the overall trial strategy.
Upon exhausting his habeas claims in state court, Riley sought federal habeas relief. The
federal district court also denied Riley habeas relief, but did grant Riley a COA with respect to the
above argument. Riley then petitioned the district court for funds to investigate circumstances
surrounding Wright’s determination that Riley was not mentally retarded. The court denied this
motion.
On appeal, Riley presents his argument for which the district court granted a COA and
challenges the district court’s denial of his motion for investigatory funds.
II. STANDARD OF REVIEW
Because Riley filed his habeas petition on April 1, 1998, the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) applies to his appeal. See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir.
2002) (citing Lindh v. Murphy, 521 U.S. 320, 324-26 (1997) (noting that the AEDPA applies to all
federal habeas petitions filed on or after April 24, 1996)). According to the AEDPA, habeas relief
cannot be granted unless the challenged state court proceeding resulted in (1) “a decision that 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)(1); or (2) “a decision that was
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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)(2). Under subpart (d)(1) of § 2254, “unreasonable” does
not mean merely incorrect. Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003). “[A]n
application of clearly established Supreme Court precedent must be incorrect and unreasonable to
warrant federal habeas relief.” Id. (internal quotations omitted); accord Williams v. Taylor, 529 U.S.
362, 406 (2000).
A claim of ineffective assistance of counsel presents a mixed question of law and fact. Lockett
v. Anderson, 230 F.3d 695, 710 (5th Cir. 2000). The district court’s findings of fact are reviewed
for clear error and its conclusions of law are reviewed de novo. Beazley v. Johnson, 242 F.3d 248,
255 (5th Cir. 2001).
This Court reviews a district court’s denial of investigative funds pursuant to 21 U.S.C. §
848(q) under an abuse of discretion standard. Clark v. Johnson, 202 F.3d 760, 769 (5th Cir. 2000).
III. DISCUSSION
A. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, a habeas petitioner must satisfy
Strickland v. Washington’s two-prong test: first, the petitioner must affirmatively show that counsel’s
representation fell below an objective standard of reasonableness under prevailing professional norms;
and second, the petitioner must show that the deficient performance prejudiced the defense. 466 U.S.
668, 687 (1984). In applying this test, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. “[A] court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must overcome the
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presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.” Id. (internal quotations omitted).
1. Wright’s representation met an objective standard of reasonableness.
a. Wright investigated the possibility of mental retardation.
Riley first argues that Wright’s conduct fell below an objective standard of reasonableness
because Wright allegedly failed to adequately investigate whether Riley was retarded. In support of
this argument, Riley relies on Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir. 1983), in which this
Court stated that effective counsel must conduct a reasonable amount of pretrial investigation. “The
extent and scope of the required investigation depend on the number of issues in the case, the relative
complexity of those issues, the strength of the government’s case, and the overall strategy of trial
counsel.” Id. Riley’s claim is without merit. “The reasonableness of counsel’s actions may
be determined or substantially influenced by the defendant’s own statements or actions . . . . In
particular, what investigation decisions are reasonable depends critically on such information.”
Strickland, 466 U.S. at 691. In Boyd v. Johnson, 167 F.3d 907, 909-11 (5th Cir. 1999), this Court
considered whether a defendant’s counsel should have investigated the possibility that the defendant
was mentally retarded where the defendant had scored 67 on a prior I.Q. test. Despite the fact that
at the habeas hearing the defendant presented evidence independent of the prior I.Q. test showing that
he was in fact retarded, this Court determined that the attorney’s own subjective evaluation of his
client was sufficient to form a reasonable belief that the defendant was not mentally retarded. Id. at
910. The defendant’s counsel reached this belief based on his observations of the accused,
information from the accused’s family, and school records. Id. Of particular importance was the fact
that the defendant assisted counsel in the jury selection process. Id.
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In the instant case, Wright testified that he evaluated Riley’s mental status based on his
interactions with Riley while preparing for trial, discussions with Riley’s family members, and Riley’s
school, probation and juvenile records. Wright observed that Riley was “an intelligent part” of his
own defense, taking “a very active part in his voir dire” and deciding who would sit on the jury. It
is noteworthy that in Boyd, similar observations were deemed sufficient to overcome the defendant’s
additional evidence tending to show that he was retarded. 167 F.3d at 910. Here, Riley failed to offer
any evidence that he was retarded other than the I.Q. test conducted twelve years before the crime.
Moreover, unlike the counsel in Boyd, Wright even hired a psychologist and discussed the
1973 I.Q. test with him. Dr. Lawrence performed an intellectual abilities test on Riley. These facts,
which were not even present in Boyd, further strengthen the conclusion that Wright performed an
adequate pre-trial investigation.
Based on the foregoing evidence, the state habeas court determined that Riley’s trial counsel
made “a thorough and complete investigation” of circumstances suggesting that Riley could have
been mentally retarded. This finding in no way contravenes the evidence in the record. The state
habeas court finding was not “an unreasonable determination of the facts in light of the evidence
presented . . . .” 28 U.S.C. § 2254(d)(2).
b. Wright reasonably chose not to present evidence of mental retardation.
“Strategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable . . . .” Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003);
Strickland, 466 U.S. at 690-91. “[E]vidence of [a defendant’s] retardation must be considered in
tandem with the impressions that he gave the attorneys.” Boyd, 167 F.3d at 910. Given that Wright
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sufficiently investigated the possibility that Riley was ment ally retarded, Riley is precluded from
further arguing that Wright should have presented evidence that Wright failed to discover in his
investigation. Riley’s argument is limited to counsel’s decision not to present the 1973 I.Q. test as
evidence.
Wright’s decision to forego presenting that specific evidence of mental deficiency seems
reasonable under this Circuit’s caselaw. In Motley v. Collins, 18 F.3d 1223, 1227-28 (5th Cir. 1994),
this Court opined that a trial counsel’s decision to not present evidence of organic brain damage was
a reasonable strategy because such evidence could have disfavored the defendant on the future
dangerousness special issue. Consistent with Motley, Wright’s decision to forego presenting the 1973
I.Q. test to the jury was reasonable given Wright’s strategy of arguing t hat Riley would not be a
future threat to society. Furthermore, because his own impressions led Wright to believe that Riley
was not mentally retarded, Wright reasonably believed that the jury could have reached the same
conclusion. If this were so, a test indicating otherwise could discredit Riley’s defense. Thus, Riley
fails to satisfy the first prong of Strickland because he is unable to show that Wright’s decision fell
below an objective standard of reasonableness.
2. Wright’s representation did not result in prejudice to Riley.
Even if Wright’s decision to forego investigating and presenting evidence of mental
retardation was not objectively reasonable, Riley’s petition still fails the second prong of Strickland.
Riley is unable to show that prejudice resulted by his counsel’s decision to not submit evidence that
Riley had an I.Q. of 67. Borderline retardation is not always viewed as a mitigating circumstance.
In Smith v. Black, this Court determined that an I.Q. test suggesting that a defendant falls within the
“the upper borderline of mild retardation” does not amount to “any significant organic damage or
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mental illness.” 904 F.2d 950, 977-78 (5th Cir. 1990), vacated on other grounds by 503 U.S. 930
(1992). As a result, this Court opined that even if trial counsel chooses not to present evidence
showing that a defendant has an I.Q. of 70, this choice would not give rise to a deficiency or prejudice
to support a finding of ineffective assistance of counsel. Smith, 904 F.2d at 977-78; see also Andrews
v. Collins, 21 F.3d 612, 624 (5th Cir. 1994) (upholding counsel’s decision to not present evidence
of borderline mental retardation where defendant presented evidence that his I.Q. was 68 at habeas
hearing); cf. Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir. 1986) (finding counsel ineffective for
failing to present evidence of I.Q. score below 41). Riley thus fails to show how not presenting
evidence of an I.Q. of 67 resulted in prejudice.
We therefore hold that the state habeas court decision was not unreasonable under the
Supreme Court standards set forth in Strickland.
B. Investigative funds under 21 U.S.C. § 848(q)
The district court properly denied Riley’s counsel, Alexander Calhoun (“Calhoun”), funds to
investigate Riley’s claim on appeal. Section 848(q)(4)(B)(9) of Title 21 provides: “Upon a finding
that investigative, expert, or other services are reasonably necessary for the representation of the
defendant . . . the court may authorize the defendant’s attorneys to obtain such services on behalf of
the defendant and, if so authorized, shall order the payment of fees and expenses . . . .” Under this
statute, this Court requires Riley to show that he is indigent and that the requested services are
“reasonably necessary” for his representation. Hill v. Johnson, 210 F.3d 481, 487 (5th Cir. 2000);
Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir. 1997). This Court has construed “reasonably
necessary” to mean that a petitioner must demonstrate “a substantial need” for the requested
assistance. Clark v. Johnson, 202 F.3d 760, 768 (5th Cir. 2000); Fuller, 114 F.3d at 502. A
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petitioner cannot show a substantial need when his claim is procedurally barred from review. Fuller,
114 F.3d at 502.
Riley argues that he satisfied this “reasonably necessary” requirement. His current counsel,
Calhoun, requested funds so that Calhoun could investigate Riley’s background in order to prove that
Riley’s trial counsel was deficient in researching circumstances relevant to Riley’s alleged mental
retardation. The investigative assistance, Riley argues, would have enabled Calhoun to examine
“unexplored grounds for mitigation.”
Riley’s argument fails under the state-exhaustion procedural bar. “[A] habeas petitioner fails
to exhaust state remedies when he presents material additional evidentiary support to the federal
court that was not presented to the state court.” Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir.
2000) (quoting Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996)). Riley sought funding to
investigate additional material evidence surrounding a claim on which the state habeas court had
already ruled. The fruits of such an investigation would therefore have been procedurally barred.
Accordingly, Riley failed to satisfy the “reasonably necessary” requirement of 21 U.S.C. §
848(q)(4)(B)(9). The district court did not abuse its discretion in denying Riley funding.
IV. CONCLUSION
For the foregoing reasons, the district court’s denial of Riley’s habeas petition and the district
court’s denial of Riley’s motion for funds under 21 U.S.C. § 848 are AFFIRMED.
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