United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 3, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-10316
Summary Calendar
KURBY GERALD DECKER,
Petitioner-Appellant,
versus
DOUG 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
(7:98-CV-85)
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Kurby Gerald Decker, Texas state prisoner
# 594703, was convicted of solicitation of the capital murder of
his former wife. He appeals the district court’s denial of his 28
U.S.C. § 2254 petition. We previously granted a certificate of
appealability (COA) on two issues: “1) whether trial counsel
rendered ineffective assistance in failing to assert at trial an
insanity defense on Decker’s behalf; and 2) whether the district
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
court erred in summarily rejecting Decker’s six additional
ineffective-assistance-of-counsel claims as waived due to
inadequate briefing by appointed counsel, and, in the alternative,
on the ground that no evidence existed in the record in support of
the claims.”
Decker raises a number of arguments beyond the scope of the
issues on which we granted COA. We do not reach these issues
because he has not sought an expansion of the COA. See United
States v. Kimler, 150 F.3d 429, 430-31 (5th Cir. 1998); Lackey v.
Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).
Under 28 U.S.C. § 2254(d), we may not grant habeas relief on
an issue that was adjudicated on the merits in a state court
proceeding unless that 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 unless it
was based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding. To establish
that his attorney performed ineffectively, Decker must show both
that his counsel's performance was deficient and that the deficient
performance prejudiced his defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). Decker contends that his counsel
provided ineffective assistance by not obtaining psychiatric or
neuropsychological reports and pursuing an insanity defense at
trial. Counsel requested and obtained a report from a clinical
psychologist which, although cursory, indicated that Decker was
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sane at the time of the offense. Counsel questioned the
psychologist, reviewed Decker’s records, spoke with his family, and
attempted to confer with Decker regarding the offense. According
to counsel, she opted not to pursue an insanity defense at least in
part because it would have required admission of the offense
conduct, an admission that Decker had not made. Counsel elected
instead to put the state to its burden of proof in light of
perceived gaps in the state’s evidence. Given the competency
jury’s negative reaction to Decker during the competency
proceedings, counsel also sought to mitigate any potential
punishment.
“A conscious and informed decision on trial tactics and
strategy cannot be the basis for constitutionally ineffective
assistance of counsel unless it is so ill chosen that it permeates
the entire trial with obvious unfairness.” Crane v. Johnson, 178
F.3d 309, 314 (5th Cir. 1999) (citation and internal quotation
omitted). Under the instant circumstances, Decker has not shown
that the state court’s decision was contrary to or involved an
unreasonable application of Strickland. See Schaetzle v. Cockrell,
343 F.3d 440, 443 (5th Cir. 2003), cert. denied, 124 S. Ct. 1156
(2004); Green v. Johnson, 116 F.3d 1115, 1122-23 (5th Cir. 1997).
Decker did not raise the issue of the district court’s denial
of his remaining ineffective assistance claims on procedural
grounds in his initial brief. Even if these claims had been
properly raised, however, see Cousin v. Trans Union Corp., 246 F.3d
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359, 373 n.22 (5th Cir. 2001), Decker’s argument would be without
merit, as he contends only that he should not be blamed for his
counsel’s inadequate briefing. See Coleman v. Thompson, 501 U.S.
722, 752-54 (1991); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.
2000).
For these reasons, the district court’s denial of habeas
corpus relief under 2254 is
AFFIRMED.
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