United States Court of Appeals
Fifth Circuit
F I L E D
REVISED FEBRUARY 18, 2005
February 16, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-11260
TIMOTHY TYLER TITSWORTH,
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 Northern District of Texas
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
I
In 1993, a jury in Randall County, Texas, convicted Timothy
Titsworth of capital murder of Christine Marie Sossaman by striking
her with an ax in the course of a robbery. The Texas Court of
Criminal Appeals affirmed the conviction and sentence two years
later in an unpublished opinion.1 That court described the crime
as follows:
[T]he evidence shows [Titsworth] and the victim had been
living together for approximately two months when this
offense occurred. A friend of the victim testified that
on the day before the victim’s murder the victim told her
she intended to ask [Titsworth] to move out of the house
because the victim believed [Titsworth] was stealing from
her.
The next day [Titsworth] killed the victim in her
bedroom by striking her with a dull two-bladed ax
approximately sixteen times excluding the defensive
wounds on the victims [sic] hands and legs. The victim
probably was asleep in bed when the attack began. At
some point during the attack the victim “was either taken
off or came off the bed.” The victim suffered at least
seven blows from the ax while she was on the floor.
After the attack, [Titsworth] left the victim on the
floor. The medical examiner testified the victim could
have lived anywhere from twenty minutes to “a number of
hours” after the initial attack. After she died, the
victim suffered at least one more blow from the ax in a
separate episode from the initial attack.
After the initial attack, [Titsworth] took the
victim’s car and some of the victim’s personal property.
[Titsworth] sold the victim’s personal property and used
the money to buy crack cocaine. Over the next couple of
days [Titsworth] and other admitted crack cocaine users
made a couple of trips to the victim’s home and took more
of her property. They used the victim’s property to buy
more crack cocaine. One of these witnesses testified
[Titsworth] acted like he was “just having a good time.”
After [Titsworth] exhausted his supply of money and
drugs, he slept for approximately ten or eleven hours.
After he awoke, he and another person decided to make
another trip to the victim’s home in the victim’s car to
get more of her property. However, by this time the
victim’s mother had found the victim’s body and had
alerted the police who were then looking for [Titsworth].
The police arrested [Titsworth] and another person in the
1
Titsworth v. State, No. 71,804 (Tex. Crim. App. Nov. 22,
1995).
2
victim’s car while, according to this other person, they
were on their way to the victim’s home.
Later that day, after initially denying any
involvement in the offense, [Titsworth] confessed to
killing the victim and taking her property. In his
confession, [Titsworth] claimed he and the victim had
some type of argument after she accused [Titsworth] of
“messing around.” After slapping [Titsworth] around, the
victim went to bed. [Titsworth] left the house and bought
some crack cocaine and a pill he thought was LSD.
[Titsworth] ingested the drugs and went back to the
house. [Titsworth] retrieved an ax from a closet while
the victim was asleep in bed. [Titsworth] claimed he
blacked out but he remembered hitting the victim with the
ax. He claimed he hit the victim four or five times with
the ax. He claimed that when he realized what he had
done he did not know what to do so he sold some of the
victim’s property and bought more crack cocaine. On his
first trip back to the victim’s home, [Titsworth] claimed
the victim “was still breathing and it looked like she
had tried to crawl into the bathroom.” However,
[Titsworth] left the house with more of the victim’s
property which [Titsworth] sold to buy more crack
cocaine. [Titsworth] claimed he was taking a friend home
when the police arrested him.
[Titsworth’s] theory at trial was that he was not
guilty of capital murder because the evidence showed only
that he killed the victim under the influence of drugs as
a result of a “lover’s spat” and not with the intent to
take her property.2
Titsworth sought state habeas relief in 1997. The state
habeas judge, Samuel C. Kiser, also presided over the trial. Judge
Kiser found there were no questions of fact and entered findings
and conclusions with a recommendation that relief be denied. He
did not conduct an evidentiary hearing. The Court of Criminal
Appeals adopted his findings and conclusions and denied relief.
2
Id. at 1-3.
3
Titsworth filed a petition for federal habeas relief seeking
relief upon eleven grounds. The State makes no contention that any
of these federal claims were not first fairly presented to the
state courts, except for the claim that Titsworth’s confession was
involuntary and should have been suppressed because he was
intoxicated.3 United States District Judge Mary Lou Robinson
referred the case to Magistrate Judge Clinton E. Averitte. He held
an evidentiary hearing limited to portions of the four claims
involving the testimony of Deputy Cindy Risley.
Judge Robinson adopted the magistrate’s findings and
recommendation that the petition and a certificate of appealability
be denied. Titsworth in turn seeks a certificate of appealability
from this court on nine claims:
1. Whether Titsworth was deprived of due process
and a fair trial because the State failed to
disclose favorable and material evidence;
2. Whether the admission of Titsworth’s written
statement violated his right to due process
because he was intoxicated at the time the
statement was taken;
3. Whether Titsworth’s right to due process was
violated by the State’s allowance of false
testimony at trial;
4. Whether Titsworth was denied effective
assistance from trial counsel’s failure to
3
The State in footnote 4 of its opposition also does not
concede that Cindy Risley’s “statement” was exhausted in state
court because it was presented in an unsigned affidavit and the
court refused to consider it. It was later signed by Risley and
presented to the federal district court.
4
adequately investigate and present mitigating
evidence;
5. Whether Titsworth was denied effective
assistance from trial counsel’s failure to
fully investigate and present evidence in
support of suppressing Titsworth’s written
statement;
6. Whether Titsworth was denied effective
assistance from trial counsel’s failure to
request a copy of a psychiatric report, to
object to the State’s failure to provide
Titsworth with a copy of such report, or to
make the sealed report a part of the appellate
record;
7. Whether Titsworth was denied effective
assistance from trial counsel’s failure to
raise in a timely and specific manner, a
request for the appointment of a psychiatric
expert to assist in Titsworth’s defense;
8. Whether Titsworth was denied due process by
the trial court’s failure to provide funds for
a psychiatrist; and
9. Whether Titsworth was denied due process by
the trial court’s order sealing a psychiatric
report.
II
A certificate of appealability is a jurisdictional
prerequisite to this appeal.4 A certificate requires a
“substantial showing of the denial of a constitutional right.”5
This showing requires that “reasonable jurists could debate whether
(or, for that a matter, agree that)” the district court should have
4
28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322,
336 (2003).
5
28 U.S.C. § 2253(c)(2).
5
resolved the claims in a different manner or that this Court should
encourage Titsworth to pursue his claims in federal court.6
Following oral argument, we refused all requests for a certificate
of appealability, save one. We advised counsel as follows:
The court has denied a certificate of appealability
on all issues except one. It has granted a certificate
of appealability on Titsworth’s contention that the State
breached its duty under Brady in failing to disclose the
opinions of Deputy Risley regarding Titsworth’s condition
when he was booked into jail by her.
If petitioner Titsworth wishes to file a
supplemental brief, he may do so within fifteen days.
The State may reply ten days thereafter.
With the benefit of this additional briefing, we now explain our
denial of a COA and our reason for rejecting on its merits the
claim for which we issued a certificate.
III
A
Titsworth’s first three claims are factually interrelated.
They focus upon his intoxication when the murder was committed and
when he was taken into custody and interrogated. He asserts that
the government withheld evidence of his intoxication that was
material both to his contentions about the crime – that it was a
lover’s quarrel, not a robbery – and to whether his confession was
voluntary. Relatedly, he urges that the officer who took his
6
Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal
quotation marks omitted).
6
statement, Sergeant B.J. White, knowingly gave false testimony at
trial concerning the statement.
1
We turn first to the claim that the prosecution committed a
“Brady violation” by failing to disclose that a deputy in the
Randall County Sheriff’s Office had expressed an opinion to co-
workers that Titsworth was intoxicated when she booked him into the
jail.7 The law is clear. The Due Process Clause of the Fourteenth
Amendment requires prosecutors to disclose to a defendant, on
request, any evidence which is favorable and material to the issue
of guilt or punishment.8 Evidence is material if there is a
reasonable probability that the result would have been different
had it been disclosed to the defendant.9 A “reasonable probability
of a different result” is shown “when the government’s evidentiary
suppression undermines confidence in the outcome of the trial.”10
This disclosure requirement imposes a “duty to learn of any
favorable evidence known to the others acting on the government’s
behalf in the case, including the police.”11 A Brady violation
entails three components: “The evidence at issue must be favorable
7
See Brady v. Maryland, 373 U.S. 83, 87 (1962).
8
Id. at 87.
9
Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
10
Id. at 434 (internal quotation marks and citation omitted).
11
Id. at 437.
7
to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have
ensued.”12
The state trial judge granted the usual Brady pre-trial
request to order the prosecutor to turn over information favorable
to the defense, including information regarding any witnesses who
would give favorable testimony. Titsworth made no contention to
the state trial judge before his conviction and sentence that the
confession was involuntary because he was intoxicated.13 Rather,
his motion to suppress his confession contended that it was a
product of an illegal arrest. It was denied. He did rely at trial
upon evidence of his intoxication and difficulties with drugs and
alcohol, but only in mitigation and in support of his contention
that the killing was not a robbery but a lover’s quarrel.
Judge Kiser, presiding over the state habeas proceedings,
found that the failure to disclose Risley’s statement did not
violate Brady. He filed detailed findings of fact and conclusions
of law.
12
Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also
Banks v. Dretke, 540 U.S. 668, 691 (2004).
13
The attack on the confession based on intoxication came in
Titsworth’s state habeas petition and later in his federal
petition.
8
Deputy Risley’s testimony was presented to Judge Kiser only in
an “affidavit” which she had refused to sign. He refused to
consider it. He credited the testimony of John Ballard, who was
with Titsworth on the day he was arrested and confessed. Judge
Kiser found that he “gave uncontradicted testimony that [Titsworth]
had slept from ten to eleven hours immediately prior to his arrest.
During this time, neither Ballard nor [Titsworth] consumed any
drugs or alcohol.” Judge Kiser held as an alternative basis for
denying relief on this claim that it was barred because it was
never raised at trial or on direct appeal.
The federal magistrate in turn rejected the claim after an
evidentiary hearing at which he heard the testimony of Risley. At
the federal hearing Cindy Risley testified that she was the deputy
responsible for booking Titsworth into the Randall County Jail.
She testified that Titsworth was under the influence of drugs or
alcohol during the hour or so it took to book him into the jail.
She also stated that she had told fellow officers of Titsworth’s
condition at the time of booking, but was told not to say such
things. She testified that he was “grinning and laughing” and that
he “didn’t seem to be aware of the seriousness at the time.”
According to Risley: “[H]e would laugh, he’d nod off. I had to
wake him up a couple of times during the booking process. He
didn’t seem to understand at the time what he was being brought in
for.” She recalled that he answered questions as if the victim
were still alive.
9
The magistrate judge concluded that there was no Brady
obligation to produce this evidence because with due diligence it
was available to the defense. Specifically, Risley had been listed
as a trial witness and was available. She in fact testified in the
sentencing phase of the trial. The magistrate further pointed out
that, at the evidentiary hearing he conducted, Titsworth did not
testify and offered no other evidence regarding his intoxication.
The magistrate judge also noted that Titsworth made incriminating
statements to persons in addition to Sargent White, who took the
confession. Finally, he credited White’s testimony regarding
Titsworth’s interrogation in which he confessed, concluding that
White was in a much better position to observe Titsworth’s
intoxication than Risley.
We were persuaded that a certificate of appealability should
issue on the claim that the failure to disclose the statements made
by Deputy Risley violated Brady. Reasonable jurists may differ
over whether the federal district court should have resolved this
claim in a different manner insofar as it rested on the view that
there was no breach of duty to disclose Risley’s comments to her
co-workers because the defendant with due diligence could have
learned of them. The principle that there is no duty to produce,
evidence equally available to the prosecution and defense is sound
but is pushed too far on these facts. The prosecutors had been
ordered to produce information favorable to the defense and assured
10
counsel that they had done so. While we granted a certificate of
appealability on this issue, with the benefit of full briefing and
oral argument, we are persuaded that the claim is ultimately
without merit in that the evidence is not material. The judgment
of the district court denying relief on this claim must be
affirmed.
Titsworth made no claim to the trial court or the Texas Court
of Criminal Appeals on direct appeal that his confession was
involuntary because his free will was lost to alcohol and drugs.
Judge Kiser found that the claim is procedurally barred, and that
finding was adopted by the Court of Criminal Appeals and the
federal magistrate in turn.
This independent state ground for barring Titsworth’s Brady
claim does not end the matter. It is suggested that various
comments made to Risley by fellow officers, such as reminding her
that she is an at-will employee and she should not be making
comments like that, constitute good cause for excusing this
procedural default. When Titsworth finally raised the Brady issue
in his state habeas proceeding, his submission did not include
Risley’s testimony. Only her unsigned affidavit was offered to
Judge Kiser.14 Not surprisingly, he refused to consider it and
neither side had otherwise secured her testimony.
14
We do not pause over the question of whether this claim was
fairly developed in the state habeas hearing since we ultimately
reject it on the merits.
11
Risley’s sworn testimony as to Titsworth’s condition at the
time of booking was not taken until the hearing before the federal
magistrate. He credited her testimony that she always felt free to
express her opinion in open court and had told co-workers as much.
Risley testified that she would have cooperated with defense
counsel and testified truthfully at trial if asked to do so. Both
the former district attorney and County Sheriff testified that they
would not have prevented anyone with evidence from coming forward.
We are offered no basis for ignoring these fact findings and
reaching a contrary conclusion. Regardless, even if the various
comments made to Deputy Risley did frustrate the defendant’s access
to the evidence and excuse the procedural default, we need not rest
there. The claim also fails on its merits. That is, assuming the
defendant has opened a road, it leads nowhere now because it would
have led nowhere then.
The argument is that had Risley’s comments been disclosed to
defense counsel, he could have attacked the confession as
involuntary and further used her testimony both to support the
defensive theory of “lover’s spat, not a robbery” as well as in
mitigation. This contention is as unpersuasive to us as it was to
Titsworth’s trial counsel. As the magistrate judge pointed out,
Deputy Risley was listed as a trial witness. While it was a very
long list of witnesses the prosecution handed to court-appointed
counsel, Deputy Risley’s name was hardly lost in the crowd as
unknown. The defense knew that she was the booking officer and
12
that she had befriended Titsworth. Photographs of Titsworth being
booked were received into evidence reflecting behavior seemingly
inappropriate to the occasion, such as his laughing and smiling.
The level of detail in the confession itself disclosed his
significant capacity for recall. Trial counsel Selden Hale
explained that “[Titsworth] remembered what he told the police
officer and [intoxication] didn’t seem to me at the time to be an
issue.” Co-counsel Joe Marr Wilson also explained that Risley’s
opinion would not have changed the Judge’s ruling on the
confession. Moreover, he pointed out that Risley could have been
a harmful witness in the guilt phase, presumably by testifying - as
she later did in the sentencing phase - about an escape by
Titsworth with three other jail inmates, at least two of whom were
also charged with capital crimes. Significantly, she also could
have testified that Titsworth confessed to her some time after he
had been in jail. In any case, there were less risky ways of
developing Titsworth’s difficulties with drugs and alcohol, as the
trial reflects.
Furthermore, the State offered evidence that Titsworth
admitted the crime both to Jean Roper, his longtime probation
officer, when she visited him in jail, and to Risley when she was
making jail rounds. Attacking the formal confession as being
involuntary under these circumstances was not a realistic course of
action. In addition, while it was arguably relevant evidence of
13
intoxication in support of the lover’s spat theory and in
mitigation, it was at best cumulative.
Even so, when shown a picture of Titsworth taken while he was
being booked, Jean Roper, having recounted Titsworth’s long
difficulties with addiction and repeated failure in treatment,
observed that he was probably still high. It is true that had the
disclosure been made, defense counsel could have cross-examined
Deputy Risley about her opinion of Titsworth’s condition during
booking to counter the State’s suggestion that photographs of
Titsworth being booked showed his lack of remorse. But her opinion
would have been in the teeth of Sergeant B.J. White’s and John
Ballard’s testimony that Titsworth had just slept eleven hours
prior to being arrested while at a store to buy a soft drink. The
defense focused on his mental state at the time of the murder. If
he was still under the effects of the drug spree when he was
interrogated, as Risley would opine, it was powerful evidence
cutting against the claim for his mental state during the murder.
For example, he recalled events of the binge in detail and even
assembled electronic components, as Ballard had recounted.
The sum of this is that failure to disclose Deputy Risley’s
comments did not undermine confidence in the outcome of the trial.
The defense could do little with her testimony, as we have
explained. Overarching all of this is the reality that the
argument to “please understand that while I took an ax to my
14
girlfriend, I had a problem with drugs and alcohol,” without more
is a hard sell.
2
Titsworth also asserts a Brady violation by pointing to the
prosecutor’s failure to disclose a memorandum in his file regarding
a conversation with Ron Kelly, a Methodist minister and school
administrator. Kelly purportedly disclosed to the State that
Titsworth had confided to him that when under the influence of
alcohol or drugs, he was not very aware of anything. In an
affidavit, presumably given to state detectives, Kelly also
expressed the opinion that when drugs were involved Titsworth could
not control himself or distinguish right from wrong. The
magistrate judge observed that this evidence was hearsay and would
not have been admissible, and that Kelly was not competent to
express the opinion. The judge also noted that it was not clear
that the prosecutor had a Brady duty to disclose inadmissible
evidence, but did not rest there. He ultimately concluded that
nondisclosure of Kelly’s opinions regarding Titsworth’s cognitive
levels when drunk was not material because voluntary intoxication
is not a defense to the crime, and the evidence was relevant only
in mitigation. He pointed out that there was an abundance of
evidence in mitigation regarding alcohol and drugs and therefore
the Kelly evidence would have been cumulative. Because the lack of
materiality is not debatable by reasonable jurists, we conclude
15
that the requisites for a certificate of appealability have not
been met with this claim.
3
In Claim Two, Titsworth urges that his written confession was
involuntary because he was drunk. Relatedly, in Claim Three, he
urges that the State’s evidence that his confession was freely and
voluntarily given was false.
The magistrate judge held that there was no evidence that
Sergeant White had committed perjury, finding White’s testimony
before him to be credible. With this, he concluded, the first
element of a Giglio claim, falsity, was missing, as well as the
third element that the prosecution knew the testimony was false.15
We are offered no reason to disregard this credibility call.
That the district court should have resolved Claims Two and
Three in a different manner or that we should encourage further
prosecution of the claims in federal court is not debatable among
reasonable jurists.16 In the prosecution of these two claims, there
has been no substantial showing of the denial of a constitutional
right.
B
15
See Giglio v. United States, 405 U.S. 150, 153-54 (1972);
Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000).
16
We discuss further the voluntariness of Titsworth’s
confession in connection with Claim Five. See infra Part III.B.2.
16
We turn next to the claims of ineffective assistance of
counsel: Claims Four through Seven. These claims are measured by
the two-prong test of Strickland: deficient performance and
prejudice.17 A deficient performance is conduct beyond the bounds
of prevailing, objective professional standards.18 We are to accord
substantial deference to counsel’s performance, applying the strong
presumption that counsel performed adequately and exercised
reasonable professional judgment.19 Prejudice is shown by a
demonstration that there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result . . . would have been
different.”20
1
In Claim Four, Titsworth asserts that counsel was ineffective
in failing to adequately investigate and present mitigating
evidence. We declined to issue a certificate of appealability on
this claim. Titsworth’s drug addiction and his difficult
upbringing were the centerpieces of his case in the sentencing
phase of the trial. William Schlitz was the first witness for the
17
Strickland v. Washington, 466 U.S. 668, 687 (1984).
18
Id. at 687-88; Roberts v. Dretke, 381 F.3d 491, 498 (5th
Cir. 2004).
19
Strickland, 466 U.S. at 689; Riley v. Dretke, 362 F.3d 302,
305 (5th Cir. 2004).
20
Williams v. Taylor, 529 U.S. 362, 391 (2000) (quoting
Strickland, 466 U.S. at 694) (internal quotation marks omitted).
17
defense. This former addict, now working with prisoners having
histories of addiction, explained at length the addictive force of
crack cocaine and its effects on the mind. His testimony was
graphic and presented Titsworth’s difficulty in vivid terms. It
was testimony about the real world of the addict, including the
difficulties of extricating oneself from the grip of crack cocaine
and the overpowering need to obtain more drugs, the entry gate to
thefts, robberies and burglaries.21 After this witness, the defense
offered the testimony of Thomas W. Hale, Ph.D., a distinguished
scholar and professor. He explained the chemistry of drugs and the
effects of cocaine and crack cocaine, adding technical
reenforcement to Schlitz’s testimony.
Titsworth’s mother, Elsie May Titsworth, then testified,
detailing her own troubles with alcohol and the difficulties faced
by Titsworth in his youth. She recounted that he was conceived
during a time when she worked as a bartender, but that Tex
Titsworth, her husband, was not his father. She told the jury that
her husband resented Titsworth because he was not his son. He
persisted in calling him a “fat little Mexican.” She explained
that defendant’s biological father, Aragon, showed interest in his
21
Cross examination by the State supports the defense
counsel’s lack of interest in pursuing a theory that the confession
was involuntary. Schlitz readily conceded that while high he would
never have been able to produce either a written or oral
confession. Of course, Titsworth did offer details of the crime
and confessed it to two other persons on different occasions.
18
son but died when Titsworth was four and one-half years old.
Aragon had reunited with his wife but, on the first day of that
reunion, he murdered her and subsequently took his own life. There
were dozens of moves from town to town until the State of Wyoming
took the children, including Titsworth, then nine years old, and
put them in an orphanage. She testified about the abuse Titsworth
suffered in state custody until the children were returned about 18
months later.
Any suggestion that counsel was ineffective by failing to call
Deputy Risley is without merit. As we have explained, Deputy
Risley did testify, but in the sentencing phase as a State witness
recounting Titsworth’s later admission of guilt and subsequent jail
escape. The strategy pursued by defense counsel cannot now be
faulted, given the panoply of facts that they could not with
credibility seriously contest.
In sum, a reading of the trial transcript belies the assertion
that counsel was ineffective in investigating and presenting
evidence of mitigation in the sentencing phase. For these reasons,
we denied the request to issue a certificate of appealability on
this claim.
2
In Claim Five, Titsworth urges that his counsel was
ineffective in not fully investigating and presenting evidence in
support of his motion to suppress his confession. We were not
19
persuaded that counsel’s performance was deficient and declined to
issue a certificate of appealability on this claim. The want of
merit in this claim is evident in our discussion and rejection of
the first four claims.
As we have recounted, the State produced John Ballard who
testified at length in the guilt phase. Ballard detailed the
events of the two days preceding Titsworth’s arrest. He told the
jury that he accompanied Titsworth on two trips to the trailer
where the victim’s body lay, although he apparently did not know
then of the killing or see her body. On the first trip he helped
Titsworth remove and sell an expensive television. They then
purchased and smoked crack with the $100 they had received. After
exhausting these funds, they returned and removed an expensive
stereo set and sold it. Again they purchased crack cocaine. When
finally the money was gone and the dope was smoked, they slept for
eleven hours. On awakening, they left the house they were in and
were quickly arrested – the body having been found by the victim’s
mother in the meantime.
Judge Kiser credited this testimony in the state habeas
proceeding, rejecting the contention that the confession was
involuntary because Titsworth was high on drugs. He pointed to the
fact that Titsworth was sober when arrested, having slept for
eleven hours and then gone to the store for a Coke. This fact and
the detailed description of their drug spree posed a formidable
obstacle to any assertion that Titsworth’s drug use resulted in an
20
involuntary confession to Sergeant White. Titsworth was able to
retrieve property and effect its sale on two occasions. He also
had to connect and program the TV setup for the purchaser and show
the buyer how to operate the remote control – all during this drug
spree. The testimony of the defense’s own witness in the penalty
phase, Schlitz, who offered a vivid description of the grasp of
crack cocaine, was at odds with any suggestion that Titsworth was
so intoxicated as to render his confession involuntary.
Furthermore, Titsworth’s later admissions of guilt to his probation
officer on one occasion and to Deputy Risley on another would also
need explanation if the statement taken by Sergeant White were to
be challenged as involuntary. In sum, Counsel’s course of action
was then and now with hindsight a rational path. Having read the
trial transcript and heard oral argument, we concluded that
Titsworth was well defended by counsel who had little to work with.
3
In Claims Six and Seven, Titsworth asserted ineffective
assistance in counsel’s failure to obtain a copy of psychiatric
reports or to request an independent psychological evaluation.
Before the state trial, the trial judge ordered that Titsworth be
given a psychiatric examination to determine competency. The
resulting report of Dr. Shaw found that Titsworth was competent and
that his behavior at the time of the offense was consistent with
someone under the influence of alcohol and drugs. Trial counsel
did not request a copy of the report. The magistrate judge pointed
21
out that the state habeas judge had found that the testimony of Dr.
Shaw would only have been cumulative. The magistrate then rejected
the claim. On the basis of the state court record, the magistrate
judge concluded that counsel’s request for an expert was denied by
the state trial court and that Titsworth’s trial lawyer in any
event obtained voluntary expert assistance in presenting his
mitigation evidence. We agreed and were not persuaded to issue a
certificate of appealability on these claims.
C
In Claims Eight and Nine, Titsworth argues the trial court
denied him due process by not providing funds for a psychiatrist
and by sealing a psychiatric report. We refused a certificate of
appealability on this claim for essentially the reasons stated by
the magistrate judge.
IV
We have denied the request for a certificate of appealability
for all claims except the claim that the prosecution failed to
discharge its Brady duty by not disclosing comments made by Deputy
Risley to her co-workers, a claim we now reject on its merits.
AFFIRMED.
22