United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 8, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20326
CLYDE SMITH, JR.,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeals from the United States District Court
for the Southern District of Texas, Houston
H-01-CV-4294
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
In an earlier opinion, this Court granted Petitioner Clyde Smith, Jr., a Certificate of
Appealability to appeal the district court’s summary judgment denial of his petition for writ of
habeas corpus. See Smith v. Dretke, 89 Fed. Appx. 859 (5th Cir. 2004) (per curiam).
*
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not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
Accordingly, Petitioner filed the instant appeal. For the following reasons, we affirm the district
court’s grant of summary judgment.
I. Background
Petitioner Clyde Smith, Jr., was convicted of capital murder in Texas and sentenced to
death. Petitioner did not seek certiorari review in the Supreme Court of the United States. In
1997, Petitioner filed a state application for a writ of habeas corpus. Among other arguments
presented in his state habeas application, Petitioner claimed that his trial counsel’s failure to
present mitigating evidence of Petitioner’s childhood abuse during the punishment phase of trial
denied him his Sixth Amendment right to effective assistance of counsel. Without holding an
evidentiary hearing on Petitioner’s claims, the state trial-level habeas court recommended to the
Texas Court of Criminal Appeals that Petitioner’s application be denied. In 2001, the Texas
Court of Criminal Appeals followed that recommendation and denied Petitioner’s application.
Later that year, Petitioner filed a federal petition for a writ of habeas corpus, the denial of which
he seeks to appeal, in the United States District Court for the Southern District of Texas.
In the habeas proceedings before the district court, Petitioner again argued that his trial
counsel rendered ineffective assistance by failing to present mitigating evidence of childhood
abuse to militate against a death sentence. In support of that claim, he submitted several affidavits
and other documents not presented to the state court.
Affidavits from Petitioner’s brother and mother described Petitioner’s disturbing
childhood and attested that each affiant would have appeared in court to testify at trial if asked.
Similarly, an affidavit from Petitioner himself gave an account of his childhood and described the
scant contact he had with trial counsel and his meeting with trial counsel’s investigator, in which
2
the investigator did not ask about Petitioner’s childhood and Petitioner did not offer any
information about his childhood. Two letters written by Petitioner, one addressed to federal
habeas counsel and another to state habeas counsel, document Petitioner’s childhood in detail.
Also included in the evidence were two letters addressed to Petitioner from the State Bar
of Texas. One acknowledges receipt of Petitioner’s complaint regarding trial counsel, and the
other notifies Petitioner that the complaint does not sufficiently allege professional misconduct. A
letter from Petitioner to the judge presiding over Petitioner’s trial expresses concern over the
amount of contact between trial counsel and Petitioner. Petitioner also submitted the investigative
report and invoice from the investigation company hired by trial counsel. The report summarizes
the investigator’s actions and lists possible witnesses and the information they might provide at
trial. While the report is devoid of any mention of abuse, it refers to statements given by
Reverend E. T. Wade, with whom Petitioner had lived briefly, indicating that Petitioner had a
difficult relationship with his mother. The invoice shows that trial counsel was billed a total of
$600 for the entire investigation.
In another affidavit submitted with Petitioner’s federal habeas petition, a mitigation
specialist from Capital Punishment Investigation & Educational Services (“CPIES”) who
conducted an investigation for Petitioner’s federal habeas petition catalogues the individuals to
whom she was referred by Petitioner, the ease with which she located them, and the information
they provided. The director of investigation at CPIES stated in a separate affidavit that the
investigation done by trial counsel and his hired investigator was incomplete and inadequate.
Petitioner also submitted an affidavit from trial counsel that was originally submitted by
Respondent in the state habeas petition. In his affidavit, trial counsel acknowledges that he knew
3
Petitioner had a difficult relationship with his mother and that any information regarding an
abusive childhood might have been important at the punishment phase of trial. However, he
asserts that his thorough investigation revealed no such information.
The district court held that Petitioner’s failure to present the affidavits and other evidence
described above to the state habeas court rendered them unexhausted. Accordingly, the district
court disregarded the additional evidentiary materials, looking only to the evidence presented to
the state courts. Based upon that evidence, the district court granted Respondent’s motion for
summary judgment and denied the petition for habeas corpus.
We subsequently granted Petitioner leave to appeal “the district court’s denial of his
application for a writ of habeas corpus with respect to his ineffective assistance of counsel claim,
including the district court’s procedural ruling that it could not consider certain evidence because
the evidence was unexhausted in state court.” Smith, 89 Fed. Appx. at 863.
II. Discussion
Petitioner contends that the district court erred in reviewing only the affidavits and
evidence presented to the state habeas court. He claims that as a result of that error, the district
court incorrectly adjudicated the merits of his ineffective assistance of counsel claim in granting
Respondent’s motion for summary judgment. As explained below, we agree that the district court
erred in its determination that it could not consider any of the affidavits presented to it. However,
we nonetheless affirm the judgment of the district court because Petitioner’s additional evidence
does not alter the disposition of his ineffective assistance of counsel claim.
A. Consideration of Additional Evidence
We first consider the question whether Petitioner’s claim of ineffective assistance of
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counsel was partially unexhausted as determined by the district court. “Whether a federal habeas
petitioner has exhausted state remedies is a question of law reviewed de novo.” Anderson v.
Johnson, 338 F.3d 382, 386 (5th Cir. 2003); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.
2001).
Under 28 U.S.C. § 2254(b)(1), a federal habeas petitioner must fully exhaust remedies
available in state court before proceeding to federal court. Id. Thus, only if the substance of a
petitioner’s claim was fairly presented to the state habeas court may a federal court consider that
claim. Morris v. Dretke, 379 F.3d 199, 204 (5th Cir. 2004). Petitioner asserts that his claim of
ineffective assistance of counsel was sufficiently exhausted in state court to warrant consideration
of the additional evidence presented to the federal habeas court. He also argues that, to the extent
his claim was not exhausted in state court, the failure to do so was excused by the state court’s
improper denial of an evidentiary hearing. We treat each argument in turn.
1. Exhaustion of State Remedies
As stated above, the substance of a petitioner’s claim must first be fairly presented to the
state habeas court before a federal court may consider that claim. See 28 U.S.C. §2254(b)(1);
Morris, 379 F.3d at 204. The exhaustion requirement is not satisfied if the petitioner submits new
factual allegations or new legal theories to the federal habeas court. Anderson, 338 F.3d at 386.
See also Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir. 2000). However, “dismissal is not
required when evidence presented for the first time in a habeas proceeding supplements, but does
not fundamentally alter, the claim presented to the state courts.” Anderson, 338 F.3d at 386-87
(quoting Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994)) (emphasis added). The
determination of whether a petitioner has exhausted state remedies is a case- and fact-specific
5
analysis. Morris, 379 F.3d. at 205. In determining whether the evidence presented by Petitioner
for the first time in federal court is merely supplemental, we turn to our recent opinions on the
subject.
In Anderson v. Johnson, the petitioner claimed he had received ineffective assistance of
counsel based on trial counsel’s failure to interview and present testimony of a certain eye-witness
to the murder for which the petitioner was convicted. 338 F.3d at 385. In his state petition,
Anderson asserted that, had trial counsel interviewed the eye-witness, she would have attested
that the defendant was not the shooter. Id. at 388.
In his federal petition, Anderson submitted an affidavit from the eye-witness in which she
stated that the Anderson was not the shooter. Id. at 385. Because Anderson had been very
specific in his allegations in state court and the affidavit only confirmed those very specific
allegations, we concluded that Anderson had not fundamentally altered his claim. Id. at 388.
Rather, he had only supplemented his claim. Id. We also noted that there was no evidence that
Anderson had deliberately withheld the affidavit from the state courts: “if the state court had held
an evidentiary hearing, Gray’s exculpatory testimony likely would have been elicited.” Id. at 389.
Similarly, in Dowthitt, the petitioner claimed that his counsel had been ineffective in failing
to present a mitigation defense based on mental illness. 230 F.3d at 743. In his state petition,
Dowthitt submitted a form from a hospital indicating that the petitioner was diagnosed as having a
“schizophrenic reaction” of a “chronic paranoid type.” Id. Dowthitt also submitted a statement
from an Air Force Sergeant recommending that Dowthitt be discharged from the Air Force
because Dowthitt suffered “from some mental deficiency.” Id. at 744.
In his federal petition, Dowthitt added declarations from two mental health experts hired
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by habeas counsel. One declaration indicated that Dowthitt’s “profile was consistent with
paranoid and schizophrenic features,” that Dowthitt suffered from depression, but that he was not
sadistic or sociopathic. Id. The other stated that Dowthitt exhibited severe mental problems, that
Dowthitt functioned well in the prison environment, and that the trial mental health expert had not
done an adequate examination of Dowthitt. Id. We found that the new evidence did not render
Dowthitt’s claim unexhausted because “all crucial factual allegations were before the state courts.
. . .” Id. at 746 (citation omitted). Furthermore, the affidavits only confirmed Dowthitt’s claim in
state court–that he had a mental illness of the schizophrenic, paranoid type. Id.
The petitioner in Kunkle v. Dretke argued in his state petition that he was denied effective
assistance of counsel because trial counsel failed to present mitigating evidence regarding the
petitioner’s troubled home life and family history of mental illness. 352 F.3d 980, 986 (5th Cir.
2003). Kunkle’s conclusory allegations were accompanied by an affidavit from trial counsel that
simply averred there was abundant mitigating evidence of Kunkle’s troubled home life and history
of mental illness. Id. at 987. In his federal petition, Kunkle included an affidavit from his mother
that detailed her mental illness, Kunkle’s father’s mental illness, and several instances of physical
abuse that Kunkle suffered. Id. at 988 n.3. He also submitted a psychological report indicating
that Kunkle had a thought disorder similar to schizophrenia, as well as other personality disorders.
Id. at 988 n.4. We concluded that the addition of the report and affidavit detailing family mental
illness and concrete instances of abuse presented “significant evidentiary support” not previously
presented to the state court and that the state claim would have been substantially different in
state court had Kunkle included more than the conclusory affidavit of trial counsel. Id. at 988.
Thus, Kunkle had not exhausted his claims. Id.
7
From the opinions discussed above, we glean several factors that aid in a finding of
exhaustion: there is no intentional withholding of evidence from state court; the state petition is
very specific rather than vaguely conclusory as to petitioner’s theory of ineffective assistance of
counsel; additional evidence merely confirms what the petitioner specifically asserted in the state
habeas proceeding; and all crucial facts were before the state court. The presence of those factors
weigh in favor of finding that Petitioner has sufficiently exhausted his claim of ineffective
assistance of counsel in state court such that certain portions of the additional evidentiary support
presented to the district court may be considered.
Petitioner’s Intent
First, there is no evidence that Petitioner intentionally withheld evidence in order to
reserve it for federal court. To the contrary, like the state habeas court in Anderson, the state
court did not hold an evidentiary hearing in which Petitioner could have presented the affidavits
that he eventually submitted with his federal petition. While this did not prevent him from
submitting those affidavits as attachments to his petition, it does suggest that Petitioner may have
expected to substantiate his claims later on in the proceeding but was denied that opportunity.
Specificity of State Habeas Petition
Second, like the petitioners in Anderson and Dowthitt, Petitioner was specific in his state
application as to the theory behind his claim. Petitioner claimed that his counsel was ineffective in
violation of the Sixth Amendment for failure to present evidence of his violent childhood, either
through Petitioner’s or others’ testimony. The state application was also specific in the facts it
alleged. The application contained an account of his abusive mother’s violent relationships with
several different men, many of whom also beat Petitioner. Unlike the state habeas petition in
8
Kunkle, which lacked concrete incidents of abuse, Petitioner’s state habeas petition catalogued a
series of violent episodes he experienced or witnessed, including his step-father’s attempted rape
of Petitioner’s sister; an incident in which his stepfather broke a stick across Petitioner’s back
while beating him; and his escape from his home and subsequent life on the streets. Petitioner
argued that trial counsel should have called him or another witness to present Petitioner’s history
of abuse and asserted that, if he had been called to testify during the punishment phase of the trial,
he would have related his childhood history.
Nature of Evidence not Presented to State Habeas Court
Third, several documents submitted by Petitioner with his federal habeas petition merely
confirm what was alleged in the state habeas petition. Thus, they are merely confirm what was
already alleged in the state habeas proceeding. However, because other filings submitted by
Petitioner present new facts not alleged at the state habeas proceeding, they were properly
disregarded by the district court. We discuss each piece of evidence in turn.
The affidavit of Petitioner’s brother and mother merely substantiate Petitioner’s claims in
the state habeas proceeding. The affidavits present the history of divorce and turbulent
relationships between Ruth Maye, Petitioner’s mother, and various men. They describe the
violence with which Maye and her boyfriends treated Petitioner and his siblings, with specific
reference to some of the very incidents narrated in the state habeas petition. Likewise, the two
letters written by Petitioner to state and federal habeas counsel recount Petitioner’s childhood.
The narration in these letters follows the outline of events included in the state habeas petition. In
fact, it appears that the factual allegations in the state habeas petition were based on the letter to
state habeas counsel. The information presented in these affidavits and letters, while not identical
9
to the allegations made in the state habeas petition, serve to confirm, rather than fundamentally
alter, Petitioner’s claim that he suffered an abusive childhood and that he or other witnesses
would have testified regarding this information.
Petitioner’s affidavit, inasmuch as it narrates his childhood, also merely confirms the
allegations made in the state petition. The affidavit describes with further elaboration the abuse
chronicled in his state application. However, the portions of that affidavit dealing with trial
counsel’s relationship and contact with Petitioner, while relevant to Petitioner’s overall theory of
ineffective assitance of counsel, present facts not alleged in the state habeas petition. Thus, those
portions are more than supplemental and therefore unexhausted for purposes of federal review of
the habeas petition.
The affidavits of the CPIES investigators, while supporting the same legal theory of
ineffective assistance of counsel presented in the state habeas petition, provide new facts not
alleged in the state habeas proceeding. They serve as evidence of the ease with which evidence of
Petitioner’s childhood could have been obtained and the inadequacy of trial counsel’s
investigation. The state habeas petition did not discuss trial counsel’s preparation for trial, but
focused solely on trial counsel’s failings at trial. Similarly, the two letters from the Texas state
bar regarding Petitioner’s complaint about his trial counsel and the letter from Petitioner to the
judge presiding over the trial do more than merely confirm what was alleged in the state habeas
petition. These items evidence the lack of contact between Petitioner and his trial counsel, a topic
which was not mentioned in the state petition at all. The investigative report of the investigator
hired by trial counsel, along with its accompanying invoice, are equally concerned with a theme
not discussed in the habeas petition–trial counsel’s investigation into Petitioner’s background.
10
The affidavit of trial counsel, while new to Petitioner’s habeas petition, was presented to
the state habeas court by Respondent. It thus merely reasserts facts already presented to the state
court.
Facts Available to State Courts
Finally, as in Dowthitt, all crucial facts were before the state courts such that the inclusion
of the documents supplementing Petitioner’s state habeas petition would not fundamentally alter
Petitioner’s claim. The state court had sufficient information to ascertain whether Smith’s trial
counsel had improperly omitted evidence of Smith’s childhood abuse and whether that omission
may have changed the outcome of Petitioner’s trial.
The state court could determine how aware of potential abuse trial counsel was.
Petitioner specifically stated in an affidavit presented to the state court that he would have
testified at trial regarding his violent childhood. Furthermore, the court knew that Petitioner’s
trial counsel was aware that Petitioner had a difficult relationship with his mother and had heard
from an individual his investigator interviewed that Petitioner’s mother was the reason that he
had so many problems.
From the detailed account provided in the state petition, as well as trial counsel’s sworn
statement that if he had known of childhood abuse he would have presented that evidence, the
court understood the extent of Petitioner’s abuse and could therefore weigh whether that
evidence would have influenced jurors.
2. Excusal of Failure to Exhaust State Remedies
Petitioner contends that, to the extent his claim is not exhausted, the state habeas court’s
failure to hold an evidentiary hearing excused his failure to exhaust. He contends that the district
11
court should have held an evidentiary hearing in which Petitioner could have further developed
the facts relevant to his petition.
Under 28 U.S.C. § 2254(e)(2), an applicant that has failed to develop the factual basis of a
claim in the State habeas proceedings may not obtain an evidentiary hearing in the federal habeas
proceedings unless two conditions are met. First, the petitioner’s claim must rely on a new rule
of constitutional law, or, more relevant here, on a “a factual predicate that could not have been
previously discovered through the exercise of due diligence.” § 2254(e)(2)(A)(ii). Second, “the
facts underlying the claim would be sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” § 2254(e)(2)(B). These conditions on the grant of an evidentiary hearing,
however, do not work against a petitioner unless the petitioner’s failure to develop facts was due
to “lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”
Dowthitt, 230 F.3d at 758 (quoting Williams v. Taylor, 529 U.S. 420, 432 (2000)). This
determination depends upon “whether the prisoner made a reasonable attempt, in light of the
information available at the time, to investigate and pursue claims in state court.” Williams, 529
U.S. at 435.
Petitioner argues that his actions during the state habeas proceedings were sufficiently
diligent to preclude application of § 2254(e)(2). He turns our attention to his requests for an
evidentiary hearing in state court and the state court’s denial of his requests. However, “mere
requests for evidentiary hearings will not suffice.” Dowthitt, 230 F.3d at 758 (upholding district
court’s denial of evidentiary hearing in federal district court where petitioner had not fully
developed the facts relevant to his claim in the state habeas proceeding). The fact that Texas law
12
does not require the submission of affidavits with habeas applications and provides for evidentiary
hearings where the facts are controverted in no way prevented Petitioner from doing so.1 In fact,
Respondent attached the affidavit of Petitioner’s trial counsel with his response to Petitioner’s
state habeas application. Thus, Petitioner’s actions evidence a lack of diligence in his presentation
of his claims to the state habeas court; consequently, § 2254(e)(2) applies. Because there is no
evidence that an attempt to obtain and submit affidavits to the state habeas court would have been
in vain, Petitioner has not shown that the facts and evidence he now wishes to present to the
district court “could not have been previously discovered through the exercise of due diligence.”
§ 2254(e)(2)(A)(ii). Consequently, § 2254(e)(2) prevented the district court from holding an
evidentiary hearing on Petitioner’s claim of ineffective assistance of counsel.
B. Ineffective Assistance of Counsel
Having determined what evidence was properly before the district court, we now turn to
the merits of Petitioner’s ineffective assistance of counsel claim. In a habeas corpus appeal, we
review the district court’s summary judgment de novo, applying the same standard of review to
1
We are puzzled by the state habeas court’s failure to hold an evidentiary hearing or
otherwise request evidentiary support as contemplated by the Texas Code of Criminal Procedure.
See Tex. Code Crim. Proc. Art. 11.071 § 9(a). According to Article 11.071, section 9(a), a Texas
court considering a habeas application must enter an order designating any controverted factual
issues to be resolved. Id. Section 9(a) further provides that the court may resolve the issues
through the submission of evidence and personal recollection of the applicant’s trial. id. (“[T]he
court may require affidavits, depositions, interrogatories, and evidentiary hearings and may use
personal recollection.”) The remaining subsections detail the procedure, timing, and other rules
relating to an evidentiary hearing provided for in that section. See § 9(b)-(g). The state court did
not hold an evidentiary hearing as requested by Petitioner but instead relied in part on personal
recollection to find that Petitioner’s trial counsel had presented sufficient mitigation evidence at
trial. However, the state habeas court did not have any such personal recollection as it did not
preside over Petitioner’s trial. Petitioner’s concerns regarding the lack of evidentiary hearing are
understandable, but we reject Petitioner’s argument that this requires us to reverse the judgment
of the district court.
13
the state court’s decision as applied by the district court. Proctor v. Cockrell, 283 F.3d 726, 729-
30 (5th Cir. 2002); Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998).
Because Petitioner filed his petition for federal habeas corpus relief after the date of the
enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No.
104-132, 100 Stat. 1214 (codified as amended at 28 U.S.C. § 2254), we consider Petitioner’s
claims under the deferential approach provided by AEDPA. See Penry v. Johnson, 532 U.S. 782,
792 (2001). Under AEDPA, this Court cannot grant habeas relief on Petitioner’s claims unless
the state habeas court’s adjudication of the claim
(1) resulted in 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; or
(2) resulted in a decision that was 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). Under § 2254(d)(1), a state habeas court may not base its decision on a
rule of law contrary to one established by the Supreme Court or arrive at a result different from
one of the Supreme Court on materially indistinguishable facts. Williams, 529 U.S. at 413. A
state court decision is “an unreasonable application of clearly established” Supreme Court
precedent under § 2254 if the state court “correctly identifies the governing legal rule but applies
it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08. An unreasonable
application of federal law is not simply an incorrect application of federal law. Id. at 410. See
also Woodford v. Visciotti, 537 U.S. 19, 27 (2002). Rather, the application must be objectively
unreasonable. Id. To prevail under § 2254(d)(2), a petitioner must rebut by clear and convincing
evidence the presumption that a state court’s factual findings are correct. See § 2254(e)(1)
(providing that “a determination of a factual issue made by a State court shall be presumed to be
14
correct”); Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002).2
The applicable “clearly established federal law” in this case is the two-pronged inquiry
provided in Strickland v. Washington for the adjudication of ineffective assistance of counsel
claims, 466 U.S. 668 (1984). See Anderson, 338 F.3d at 390. Under Strickland, the defendant
must show both that (1) counsel’s performance was deficient and (2) the deficient performance
resulted in prejudice to the defendant. Strickland, 466 U.S. at 687. As discussed below,
Petitioner has failed to show that trial counsel was deficient. Consequently, his ineffective
assistance of counsel claim must fail and we need not consider the second prong of the Strickland
test. Id. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to . . .
address both components of the inquiry if the defendant makes an insufficient showing on one.”).
To establish deficient performance under Strickland, a defendant must show that counsel’s
actions fell below an objective standard of reasonableness. Id. at 687-88. “This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id. at 687. Our review of counsel’s performance is
highly deferential and employs a presumption that “counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689.
Here, Petitioner contends that trial counsel was ineffective at the punishment phase of trial
for failing to present evidence of Petitioner’s violent childhood and instead focusing on residual
2
Petitioner briefly contends that the denial of a hearing in the state habeas proceedings
relieves federal courts from applying 28 U.S.C. §§ 2254(d) and 2254(e)(1), which give deference
to a state habeas court’s denial of habeas relief. However, as acknowledged in Petitioner’s brief,
we rejected that very argument in Valdez v. Cockrell, 274 F.3d 941, 954, 959 (5th Cir. 2001)
(“[W]e hold that a full and fair hearing is not a prerequisite to the application of 28 U.S.C. §
2254’s deferential scheme.”).
15
doubt and good character evidence. A trial attorney bears the duty of making a reasonable
investigation or making a reasonable decision that makes a particular investigation unnecessary.
Id. at 691. However, “[n]otwithstanding the constitutional stature of appropriate mitigating
evidence in a capital case, counsel’s failure to develop or present mitigating background evidence
is not per se deficient performance.” Moore v. Johnson, 194 F.3d 586, 615 (5th Cir. 1999).
Before us is substantial evidence that Petitioner witnessed and suffered a great deal of
abuse as a child. Both Petitioner’s mother and brother attested to Petitioner’s violent childhood,
with reference to specific incidents. Petitioner’s affidavit and letters also substantiate his claims
that he was abused as a child. Arguably, a blatant disregard of that evidence or a complete failure
to investigate a defendant’s background would be unreasonable. See, e.g., Wiggins v. Smith, 539
U.S. 510, 525 (2003) (finding unreasonable trial counsel’s failure to further investigate
defendant’s background where counsel was aware that defendant’s “mother was a chronic
alcoholic; [the defendant] was shuttled from foster home to foster home and displayed some
emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least
one occasion, his mother left him and his siblings alone for days without food”). However, none
of the evidence properly before us shows objectively unreasonable action on the part of trial
counsel. There is no indication that trial counsel knew of Petitioner’s turbulent childhood or had
reason to believe that such mitigating evidence existed. Neither is there evidence that trial
counsel’s investigation of Petitioner’s background was objectively inadequate. Rather, trial
counsel’s affidavit supports Respondent’s contention that trial counsel did indeed perform an
adequate investigation. Trial counsel and a hired investigator spoke to Petitioner and others who
knew Petitioner regarding Petitioner’s background. Neither trial counsel nor the investigator
16
discovered anything unusual in the defendant’s childhood during this investigation. Petitioner has
not pointed to anything in the evidence properly before us that would support a contrary
conclusion.
Without any indication that trial counsel should have identified child abuse as potential
mitigation evidence, we are in no position to second-guess trial counsel’s investigation, see
Dowthitt, 230 F.3d at 743 (advocating caution in scrutinizing trial counsel’s investigation and
presentation of mitigating evidence when such inquiry comes down to “a matter of degrees”), and
we find that Petitioner has failed to show deficient performance of trial counsel as required by
Strickland.3
In light of the evidence properly before us, we cannot say that the state habeas court’s
denial of habeas relief, which was based on a finding that Petitioner failed to demonstrate deficient
performance in calling Petitioner or other witnesses to testify regarding Petitioner’s violent
childhood during the penalty phase of trial, was an impermissible result under 28 U.S.C. §
2254(d). Thus, summary judgment in favor of Respondent was proper.
III. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.
3
We must note that our inquiry would be much more difficult were we able to consider all
of the affidavits and evidence Petitioner presented to the district court. The filings that we are
precluded from considering suggest that trial counsel could indeed have discovered evidence of
childhood abuse with little effort. According to trial counsel’s own affidavit, if he had known of
such information, he would have seriously considered presenting it during the penalty phase of
Petitioner’s trial. However, Petitioner did not present or refer to any evidence of trial counsel’s
inadequate investigative measures in his state petition; we are bound by the requirements of §
2254(b)(1), as explained earlier in this opinion, which requires us to consider Petitioner’s claims
only insofar as they have been properly exhausted in state court.
17