O'Brien v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 27, 2005

)))))))))))))))))))))))))) Charles R. Fulbruge III
Clerk
No. 05-70006

))))))))))))))))))))))))))

DERRICK SEAN O’BRIEN,

Petitioner–Appellant,

vs.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent–Appellee.

Appeal from the United States District Court
for the Southern District of Texas
(02-CV-1865)

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Petitioner Derrick Sean O’Brien was convicted in Texas state

court of capital murder and sentenced to death. Subsequently,

O’Brien filed a petition for habeas corpus relief in federal

district court, which denied the petition and declined to issue a

certificate of appealability (“COA”) on any issue. O’Brien now

asks this court to grant a COA pursuant to 28 U.S.C. § 2253(c).

For the reasons that follow, we DENY the COA request.

*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
 I

A summary of the facts as recounted by the district court

will suffice:

On the night of June 24, 1993, eighteen-year-old O’Brien

participated in the initiation of Raul Omar Villareal into a gang

called the Blacks and Whites. Four other gang members, Peter

Cantu, Roman Sandoval, Joe Medellin, and Efrain Perez, were

present at the initiation, as were Frank Sandoval and Vernancio

Medellin, brothers of two of the gang members. The initiation

consisted of Villareal fighting each of the other gang members

for several minutes. Following this ritual, the gang members

drank beer.

At about 11:30 p.m., 14 year old Jennifer Ertman and 16 year

old Elizabeth Pena were returning to their homes after visiting a

friend. As they passed Joe Medellin, he grabbed Elizabeth Pena

and dragged her down a hill as she screamed for help. Jennifer

Ertman ran back to help Elizabeth Pena, but Joe Medellin grabbed

her and dragged her down the hill as well. Peter Cantu forced

Jennifer Ertman to perform oral sex on him and O’Brien raped both

girls. The gang rape continued for more than an hour. O’Brien

and other members of the gang later boasted that they gang-raped

both girls. The girls’s bodies were found on June 28, 1993.

They were close to each other, and were both in an advanced state

of decomposition.

Joe Cantu, Peter Cantu’s brother, testified that he received

2
a call from O’Brien after the murders. O’Brien admitted raping

and killing the girls, and he also expressed concern that the

girls might still be alive and that the gang left evidence,

including beer bottles with fingerprints, at the crime scene.

Both Roman Sandoval and Vernancio Medellin testified that the

gang had no formal leader, and O’Brien acted voluntarily

throughout the rape and murders of the two girls.

O’Brien, Peter Cantu, Efrain Perez, Jose and Vernancio

Medellin, and Raul Villareal were arrested on June 29, 1993.

When police knocked on O’Brien’s door and announced their

presence, O’Brien attempted to flee out the back door. He was

arrested by officers waiting in back. Houston Police Officer

Todd Miller read O’Brien his rights and advised him that he was

under arrest for capital murder. O’Brien replied that he knew it

was about the two girls who were killed. O’Brien also said he

wanted to make a statement. The police then took O’Brien to the

police station where he was again informed of his rights and was

brought before a magistrate, who again informed O’Brien of his

rights. O’Brien subsequently informed police that he gave his

belt to Jose Medellin, who used it to strangle one of the girls.

At Medellin’s instruction, O’Brien grabbed one end of the belt

and helped strangle the victim. They pulled so hard that one end

of the belt broke off. O’Brien consented to a search of his

apartment, and the police found the belt.

Dr. Marilyn Murr of the Harris County Medical Examiner’s

3
Office testified that the bodies were badly decomposed and

covered with maggots. Most of the soft tissue on Jennifer

Ertman’s head and the external portion of her vagina was eaten by

maggots, indicating that there was trauma, hemorrhaging and

bleeding. Autopsy photographs showed the differences in

decomposition between those areas that suffered trauma and those

that did not, such as Jennifer Ertman’s legs, chest, and abdomen.

Dr. Murr explained that maggots and bacteria are attracted to

blood, and these cause decomposition. Strangulation would cause

blood to accumulate in the head area, and cause hemorrhaging in

the eyes and mouth, because the pressure on the blood vessels in

the neck prevents blood from draining from the head. Dr. Murr

concluded that Jennifer Ertman died from trauma to the neck which

could include strangulation. Due to the state of decomposition,

she could not tell what was used to strangle Jennifer Ertman, but

the evidence was consistent with a belt or hands being used.

Jennifer Ertman also had three fractured ribs.

Elizabeth Pena’s body was similarly decomposed. Several

teeth were missing, and one tooth was fractured. Dr. Murr

concluded from this that Elizabeth Pena was punched or kicked in

the mouth. Dr. Murr concluded that Elizabeth Pena, too, died of

trauma to the neck consistent with strangulation. The jury found

O’Brien guilty of capital murder for the murder of Jennifer

Ertman.

Joyce Jones testified during the penalty phase of the trial.

4
Jones is a teacher at a Houston school for children with

behavioral problems. She taught O’Brien in 1987-1988. O’Brien

fought with other children and sometimes had to be restrained.

Jones described O’Brien as “very aggressive.” On one occasion,

O’Brien broke another child’s jaw. She was not surprised when

she heard about O’Brien’s involvement in the murders of Jennifer

Ertman and Elizabeth Pena.

Raymond Earl Ray testified that he worked as a security

guard at K-Mart in 1989. He arrested O’Brien for shoplifting a

pellet pistol. A security guard at a Houston public school

testified that she once saw O’Brien brandish a handgun at another

school security guard. O’Brien threatened to kill the other

guard and fired the gun into the air. On another occasion,

O’Brien brought a toy gun to school. On a third occasion,

security guards received a report that O’Brien had a gun, but no

gun was found. O’Brien also bragged about stealing cars,

consumed alcohol on the school bus, and once jumped out the bus

emergency door with six other students when there was no

emergency.

Houston Police Office Timothy Sutton testified that he

witnessed O’Brien and Peter Cantu punch, kick, and drag another

man at Burger King restaurant about three months before the

murder. O’Brien and Cantu were charged with simple assault.

Gregory Ristivo testified that he engaged in criminal

activity with O’Brien including stealing cars and stealing

5
jackets and shoes from people. He estimated that he and O’Brien

stole between 25 and 50 cars. They would then drive the cars,

vandalize them, and sometimes play bumper cars with two stolen

cars. Once, O’Brien tried to steal a gun from a car. O’Brien also

used a gun to shoot at lights and stop signs while joy riding

with Ristivo. Sometimes, O’Brien and Peter Cantu would start

fights with random people. O’Brien once grabbed a person at a

mall, threw him against a wall, and stole his shoes. This theft

occurred at mid-day with other shoppers around. O’Brien

intimidated another student at his school into giving O’Brien his

Nike shoes. Ristivo also saw O’Brien hit a teacher with a piece

of wood, and O’Brien bragged about stabbing someone with a

screwdriver while breaking into a car. Ristivo and O’Brien

burglarized Ristivo’s father’s house.

Houston Police Officer Jones testified that he arrested

O’Brien for stealing a car. When Officer Jones came upon the

scene, O’Brien was fighting with two wrecker drivers. After

Officer Jones arrested O’Brien and placed him in the police car,

O’Brien continued to yell at the wrecker drivers, threatening to

kill them.

Christopher Rodriguez testified that he knew O’Brien from

his neighborhood. O’Brien bragged about being a member of the

Crips gang and wore Crips colors. O’Brien often bragged about

robbing people.

Dr. Stanley Smoote, a psychologist with the Houston

6
Independent School District, testified that, based on O’Brien’s

records, O’Brien has conduct disorder. This disorder includes

physical aggression toward others.

Officer Mike Knox of the Houston Police West Side Gang Unit

testified that O’Brien has tattoos that appear to be gang

symbols. Based on the tattoos, Officer Knox concluded that

O’Brien was a member of the Folk Nation, a group espousing “the

promot[ion] of the black race” and engaging in criminal activity.

Leslie William Morgan was housed on the same floor as

O’Brien at the Harris County Jail. Morgan testified that O’Brien

denied involvement in the Ertman-Pena murders for the first six

months he was in jail, but changed his story when other inmates

began taunting him after some news stories came out about the

case. According to Morgan, O’Brien then said, “That they were

nothing but just whores anyway and that [the] pussy was real

good.”

O’Brien was also implicated in another murder. On January

4, 1993, Houston Police found the dead body of Patricia Lopez in

a park. She was nude from the waist down. Police found a broken

belt a few feet from the body, and five empty beer cans,

cigarette butts and other items in the area. Patricia Lopez’

shirt was unbuttoned and heavily blood stained; it had three

holes in the back. Her jacket also had three holes in it, and

her bra was cut. There was a stab wound and a cutting wound on

her neck, a stab wound on the abdomen, and three stab wounds on

7
the back. Several of the stab wounds could have been fatal.

There was no evidence of strangulation, and no evidence of sexual

intercourse. No one was charged with this homicide, but one of

the fingerprints lifted from the crime scene evidence belonged to

O’Brien. Jose Martin Medellin, the brother of Jose and Vemancio

Medellin, testified that Peter Cantu told him that O’Brien

admitted trying to rape the victim. He was unable to do so and

killed her. O’Brien was present when Cantu made his statement,

and O’Brien agreed with the statement.

Glenn Hanka testified for the defense. He is a sergeant

with the Harris County Sheriff’s department, and was the

custodian of records for the Detention Bureau of Inmate Affairs.

Hanka testified that there was no record of O’Brien having any

disciplinary problems while in jail. The defense called no other

witnesses.

II

O’Brien was arrested on June 29, 1993 and charged with

capital murder. His trial began on April 5, 1994, and the jury

returned a guilty verdict on April 7, 1994. Sentencing

proceedings took place on April 9, 1994, and based on the jury’s

answers to special issues, O’Brien was sentenced to death. The

Texas Court of Criminal Appeals affirmed his conviction and

sentence in an unpublished opinion. O’Brien v. State, No. 71,859

(Tex. Crim. App. May 15, 1996). O’Brien pursued a petition for

8
writ of certiorari to the Supreme Court, which was denied.

O’Brien v. Texas, 519 U.S. 1094 (1997). Subsequently, O’Brien

timely filed a state writ of habeas corpus. The state trial

court adopted the State’s proposed findings of fact and

conclusions of law, and recommended that the writ be denied. The

Texas Court of Criminal Appeals denied habeas relief on February

6, 2002. Ex parte O’Brien, No. 51,264-01 (Tex. Crim. App. Feb. 6,

2002).

O’Brien then timely filed this federal habeas petition. The

district court denied all claims for habeas relief and, sua

sponte, denied O’Brien a COA on any claim. O’Brien v. Dretke,

No. H-02-1865, slip op. at 47-49 (S.D. Tex. Jan. 14, 2005).

III

O’Brien filed his petition for writ of habeas corpus in

district court after the effective date of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), pursuant to 28 U.S.C. §

2254.1 AEDPA, therefore, governs this petition. Lindh v. Murphy,

521 U.S. 320, 336 (1997); Hughes v. Dretke, 412 F.3d 582, 588

(5th Cir. 2005).

Under AEDPA, a petitioner must obtain a COA before he can

appeal a district court’s denial of habeas relief. See 28 U.S.C.

§ 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)(“Until

1
AEDPA became effective on April 24, 1996. See Martinez v.
Dretke, 404 F.3d 878, 884 (5th Cir. 2005).

9
a COA has been issued[,] federal courts of appeals lack

jurisdiction to rule on the merits of appeals from habeas

petitioners.”). We will grant a COA if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). More specifically, we will issue a COA if

the district court’s application of AEDPA to petitioner’s

constitutional claims was debatable among reasonable jurists.

Miller-El, 537 U.S. at 336. “The question is the debatability of

the underlying constitutional claim.” Miller-El, 537 U.S. at

342. “Because the present case involves the death penalty, any

doubts as to whether a COA should issue must be resolved in

[petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248

(5th Cir. 2000).

In deciding whether to grant a COA, we recognize that

section 2254(d) of AEDPA imposes a deferential standard of review

on a federal habeas court with respect to claims adjudicated on

the merits in state court. Brown v. Dretke, 419 F.3d 365, 371

(5th Cir. 2005). A federal court cannot grant habeas relief

unless the state court adjudication of that claim either “(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

10
the state court proceeding.” 28 U.S.C. § 2254(d); see Wiggins v.

Smith, 539 U.S. 510, 520 (2003); Brown, 419 F.3d at 371. O’Brien

seeks appellate review on four grounds: (1) a Sixth Amendment

ineffective assistance of counsel claim, (2) an Eighth Amendment

claim regarding the jury’s ability to consider mitigating

evidence, (3) a First Amendment claim relating to O’Brien’s gang

affiliation, and (4) a due process claim under Simmons v. South

Carolina, 512 U.S. 154 (1994).

A. Would reasonable jurists find it debatable that O’Brien
received effective assistance of counsel?

O’Brien seeks a COA because, according to O’Brien,

reasonable jurists could debate that his Sixth Amendment right to

the effective assistance of counsel has not been violated.

Strickland v. Washington2 governs ineffective assistance of

counsel claims. See Williams v. Taylor, 529 U.S. 362, 390-91

(2000). In order to establish a violation of the Sixth Amendment

right to counsel, a petitioner must demonstrate that his

counsel’s performance was deficient and that the deficiency

prejudiced his defense. 466 U.S. at 687-88. Counsel’s

performance is deficient only when his “representation [falls]

below an objective standard of reasonableness.” Id. We measure

reasonableness against prevailing professional norms, viewed

under the totality of the circumstances. Id. at 688. “Judicial

2
466 U.S. 668 (1984).

11
scrutiny of counsel’s performance is highly deferential. . . . a

court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance.” Id. at 689.

O’Brien argues that a COA should issue because reasonable

jurists could debate that his trial counsel’s failure to adduce

only the most perfunctory mitigation evidence did not constitute

ineffective assistance of counsel. During the punishment phase

of O’Brien’s trial, defense counsel presented only one witness: a

records custodian who testified that there were no disciplinary

actions taken against O’Brien during his incarceration at the

Harris County Jail. O’Brien maintains that reasonable jurists

could debate the district court’s conclusion that his counsel was

not ineffective for failing to discover and present any

additional mitigating evidence.

12
 1. Mental Health Evidence

O’Brien first contends this court should grant a COA because

reasonable jurists could debate that his counsel’s failure to

pursue potentially mitigating mental health evidence did not

constitute ineffective assistance of counsel. O’Brien’s counsel

retained a clinical psychologist, Dr. Jerome Brown, a

psychiatrist, Dr. Roy Aruffo, and a clinical social worker, Ann

Estus, to evaluate O’Brien. O’Brien contends that his counsel

was in possession of their psychological reports, which were not

presented to the jury during sentencing, that suggested a long

history of abuse and attendant psychological problems and

allegedly would have been beneficial to O’Brien’s case. O’Brien

points to a list of factors, identified in Dr. Aruffo’s

psychiatric evaluation, as having important psychological

significance: (1) O’Brien’s mother’s difficulties with men at the

time of O’Brien’s birth; (2) early failures in establishing a

mother-infant bond; (3) asthma at an early age; (4) attachment to

a grandmother who proved to be over-indulgent and had

difficulties in setting boundaries; (5) having been treated

harshly in the formative years, by two jealous men–one married to

his mother and one married to his grandmother; and (6) becoming

much too deeply involved in one gang so that his behavior was

controlled externally. However, O’Brien’s counsel chose not to

call Dr. Aruffo, or any of these mental health experts, to

13
testify.

Nevertheless, reasonable jurists would not disagree that

O’Brien’s counsel’s decision regarding the testimony of Drs.

Brown and Aruffo was reasonable under the circumstances. Dr.

Brown’s psychological report was unfavorable to O’Brien,

concluding that “[a]lmost all of the clinical scales [were]

elevated to pathological levels.” Dr. Brown stated in his

report:

[I]t is my belief that the information obtained would be
more harmful to Mr. O’Brien in the long run than helpful. .
. . Much of his personality development and the documented
problem behaviors he has exhibited for a number of years
reveal him to be essentially anti-social in basic
personality characteristics and as able to at least
tolerate, if not participate in, violent and poorly planned
criminal activities such as the crime for which he is now
being tried. As you know, if I testify in court my results
will be available for scrutiny and use by the prosecution.
. . . I would not recommend that I be asked to testify on
his behalf in the punishment phase.

In addition, Dr. Aruffo noted that O’Brien’s “perception of

reality is greatly colored by defects in his personality.”

Although Dr. Aruffo observed in his prognosis that “[t]here is a

possibility that in a few years [O’Brien] would be more adult

like and inhibited and restrained,” he diagnosed O’Brien with

Antisocial Personality Disorder and stated, “There is little or

no indication that Mr. O’Brien wants or needs to make amends when

he has transgressed conventional morality. People with a mature

conscience feel good about themselves when they obey the commands

of their conscience. This young man feels increased self esteem

14
when he offends society.” Finally, Ann Estus, the clinical

social worker, concluded that due to O’Brien’s “lack of judgment

or impulse control and his inability to empathize with his

victims, it is likely he would, in a new community, once again

seek out an anti-social peer group.”

The district court concluded that the state court’s refusal

to grant habeas relief based on this evidence was not

unreasonable: counsel made a strategic decision not to call these

mental health witnesses, considering their negative observations

of O’Brien’s character. O’Brien’s trial counsel recognized that

the mental health experts’ testimony would be more harmful to the

defense than helpful, particularly given that counsel would have

had to make the expert reports available to the prosecution if

these witnesses had been called to testify.3

2. Ella Jones

O’Brien contends this court should grant a COA because

reasonable jurists could debate that counsel’s failure to call

his mother, Ella Jones, to testify on his behalf did not

constitute ineffective assistance of counsel. Ms. Jones

submitted statements to the state habeas court and federal

3
The petitioner also indicates that although counsel
investigated O’Brien’s mental health, the investigation was not
conducted in a timely fashion. However, the record shows that
the mental health evaluations and reports were completed prior to
the commencement of O’Brien’s trial. In addition, counsel
conferred with the mental health experts who expressed opinions
that counsel deemed detrimental to O’Brien.

15
district court,4 expressing concern that she was not given the

opportunity to speak on her son’s behalf or say anything to

contradict the other witnesses. In her statements, Ms. Jones

explains that her son had experienced some difficulties in school

as a result of alleged sexual advances by a male teacher. She

describes her son as a young man headed in a positive direction.

However, the record reveals that counsel spoke with Ms.

Jones and made a strategic decision not to call her as a witness.

During Ms. Jones’s interview with counsel, Ms. Jones stated: she

had attempted to take O’Brien to counseling, but that he wouldn’t

attend faithfully; she was not surprised that the incidents

leading up to O’Brien’s prosecution had occurred; and she had

warned O’Brien on numerous occasions about his conduct and the

people with whom he was associating. In addition, O’Brien told

his counsel that he did not want his mother to testify because he

did not want to subject her to cross-examination and other

harassment by the prosecution. “[S]trategic choices made after

thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.” Strickland, 466 U.S. at

690-91. Further, “in evaluating strategic choices of trial

counsel, we must give great deference to choices which are made

4
With respect to Ms. Jones’ affidavits, we only consider
the factual allegations that were presented to the state habeas
court. See Dowthitt v. Johnson, 230 F.3d 733, 745-46 (5th Cir.
2000).

16
under the explicit direction of the client.” U.S. v. Masat, 896

F.2d 88, 92 (5th Cir. 1990).

The state habeas court found counsel’s explanation as to why

counsel did not call Ms. Jones to testify credible. State court

findings of fact are presumed to be correct, unless rebutted by

clear and convincing evidence. See 28 U.S.C. § 2254(e)(1);

Valdez v. Cockrell, 274 F.3d 941, 947-48 (5th Cir. 2001); see

also Pondexter v. Dretke, 346 F.3d 142, 149 (5th Cir. 2003).

Consequently, the district court agreed with the state

habeas court: counsel made a professional judgment that Ms. Jones

would not be a favorable witness. The district court explained

that “[w]hile hindsight might suggest that counsel should have

called [Ms.] Jones, the tactic was not so ill chosen that it

permeated the entire trial with obvious unfairness.” O’Brien v.

Dretke, No. H-02-1865, slip op. at 13 (S.D. Tex. Jan. 14,

2005)(internal quotations omitted). Reasonable jurists would not

find this debatable.

3. James Fortson

O'Brien next argues this court should grant a COA because

reasonable jurists could debate that defense counsel’s failure to

call James Fortson, O’Brien’s step-grandfather, to testify during

sentencing did not constitute ineffective assistance of counsel.

O’Brien contends that evidence of Mr. Fortson’s mistreatment of

him could have provided the foundation for a meaningful

17
mitigation case. O’Brien lived with Mr. Fortson, and O’Brien’s

psychological evaluations indicate that Mr. Fortson was abusive

and intentionally cruel toward O’Brien when he was child.

However, the district court found that counsel’s decision

not to call Mr. Fortson was a reasonable strategic decision. Dr.

Aruffo’s psychiatric evaluation states that Mr. Fortson was cruel

to O’Brien because he was “jealous of the boy.” Given Mr.

Fortson’s reported hostile feelings toward O’Brien, counsel

concluded that Mr. Fortson would not be a favorable witness to

the defense.

Mr. Fortson’s affidavit, that he submitted during the state

habeas proceeding, states that he was never contacted by defense

counsel regarding O’Brien’s childhood and that he would have

liked to discuss his role in O’Brien’s life. However, Mr.

Fortson’s affidavit does not indicate what the nature of his

testimony would have been. Complaints based upon uncalled

witnesses are disfavored because “speculations as to what these

witnesses would have testified is too uncertain.” Alexander v.

McCotter, 775 F.2d 595, 602 (5th Cir. 1985); see Evans v.

Cockrell, 285 F.3d 370, 377 (5th Cir. 2002)(“[C]omplaints of

uncalled witnesses are not favored in federal habeas corpus

review because allegations of what the witness would have

testified are largely speculative.”). Here, such uncertainty

precludes the debatability of a finding of prejudice.

18
 4. Other Witnesses

O'Brien contends this court should grant a COA because

reasonable jurists could debate that counsel’s failure to

identify potentially mitigating witnesses did not constitute

ineffective assistance of counsel. O’Brien submits affidavits

from Sheila and Lois Powers and Eddie and Gwendolyn Walker.5

Sheila and Lois Powers are family friends of O’Brien and the

Walkers are O’Brien’s aunt and uncle. Their statements indicate

that O’Brien is a soft-spoken, respectful young man. The

affidavits also suggest O’Brien felt that he was not taken

seriously after his school disregarded his allegations of sexual

advances by a male teacher. Eddie Walker characterizes this

incident as the source of O’Brien’s difficulties. All four

declarants state that they would have testified on O’Brien’s

behalf.

5
O’Brien submitted these affidavits, for the first time, to
the district court on federal habeas review. Section
2254(b)(1)(A) of AEDPA states that "a writ of habeas corpus ...
shall not be granted unless it appears that-- the applicant has
exhausted the remedies available in the courts of the State."
However, we will consider these affidavits to the extent they do
not present material evidentiary support to the federal court
that was not presented to the state court. See Dowthitt, 230
F.3d at 745-46. In his state habeas petition, O’Brien argued
that his trial counsel failed to conduct a meaningful
investigation into potential mitigating testimony. He further
stated that, had counsel discovered available potential
witnesses, the testimony would have included O’Brien’s family
history, character, background, and evidence related to attempted
sexual abuse by a teacher.

19
 Despite counsel’s failure to discover these potential

witnesses, reasonable jurists could not disagree that counsel’s

investigation into O’Brien’s background was reasonable. See

Williams v. Maggio, 679 F.2d 381, 393 (5th Cir. 1982)

(“Petitioner's final argument charges counsel with failure to

conduct a thorough pre-trial investigation. . . . This challenge

to counsel’s performance attempts to do precisely that which is

barred by this Court; it invites us to question counsel's trial

strategy and judge his performance incompetent if it was not

errorless.”); see also Burger v. Kemp, 483 U.S. 776, 794 (1987)

(“[C]ounsel’s decision not to mount an all-out investigation into

petitioner’s background in search of mitigating circumstances was

supported by reasonable professional judgment.”). Counsel asked

O’Brien to identify potential mitigation witnesses, interviewed

several of O’Brien’s family members and friends, and retained

mental health experts. Based on counsel’s findings, he

determined that none of these potential witnesses would be

favorable to the defense. When counsel speaks with a great

number of mitigation witnesses, but reasonably determines those

witnesses would do more harm than good, he adequately

investigates possible mitigating evidence. See Boyle v. Johnson,

93 F.3d 180, 188 n.18 (5th Cir. 1996).

The district court’s rulings regarding O’Brien’s ineffective

assistance of counsel claim are not debatable among jurists of

20
reason. A COA may not issue as to this claim.

B. Would reasonable jurists find it debatable that the jury was
unhindered in its ability to consider mitigating evidence during
the punishment phase of trial?

O’Brien contends this court should grant a COA because

reasonable jurists could debate that his Eighth and Fourteenth

Amendment rights were not violated. According to O’Brien, the

jury was unable to consider all of the mitigating evidence

presented, in violation of those rights. Under Penry v. Johnson,

“the jury [must] be able to consider and give effect to a

defendant's mitigating evidence in imposing sentence.” 532 U.S.

782, 797 (2001) (internal citations omitted). O’Brien points out

that the prosecutor told the jury there must be a connection

between mitigating evidence and the charged crime. He concedes

that the trial court gave the proper statutory charge, but argues

that its effect was negated by deliberate, constant limitations

imposed by the prosecutor.

During voir dire examination, the prosecutor told some of

the prospective jurors that the only relevant mitigation evidence

was evidence connected to the crime itself. For example, the

prosecutor stated:

And you might consider whether or not those things in his
background or in the case background are connected to the
actual killing. For example, if there’s something in a
defendant’s background that you didn’t think was even
connected to why he did what he did, then you might
consider that as not sufficiently mitigating.

21
In addition, during direct examination at the punishment phase, a

witness testified that O’Brien was learning disabled in

mathematics. The prosecutor asked whether this disability could

be connected to the crime as an excuse. Finally, in his closing

argument, the prosecutor reiterated that a nexus between possibly

mitigating evidence and the crime was required;6 he concluded that

“there’s not anything at all [the jury] heard from any witness

that is mitigating.” O’Brien contends that, due to the

prosecutor’s statements throughout the trial, the jury was unable

to consider his youth7 and his behavior while in the Harris County

Jail.8

6
During closing argument at punishment, the prosecutor
stated:
Then you move on to [Special Issue] No. 3, then you
look at the Charge. And it tells you to ask yourself if
there’s anything mitigating. And we talked about what
does mitigating mean. . . . What, if anything, is
mitigating about him that you heard? The only thing that
I can possibly think of is that the guy’s learning
disabled in arithmetic, he can’t add. . . . Well, does
that have anything to do with raping and killing these
two girls? Can that have possibly somehow be connected as
an excuse for what he’s done to them?

[Dr. Smoote] told you no. You didn’t need a
psychiatrist or psychologist to tell you that. It
doesn’t take a rocket scientist to figure out if you
can’t add that doesn’t give you the right to go out and
kill . . . other people. So there’s not anything at all
that you heard from any witness that is mitigating.
7
O’Brien was eighteen years old at the time of the murder.
Youth is constitutionally relevant to the sentencing
determination. See Eddings v. Oklahoma, 455 U.S. 104, 115 (1982).
8
A good disciplinary record during incarceration is a
relevant mitigating circumstance. See Skipper v. South Carolina,

22
 Prior to the Supreme Court’s decision in Tennard v. Dretke,9

we required a petitioner to show that mitigating evidence was

relevant by demonstrating that he had a uniquely severe permanent

handicap acquired through no fault of his own, and there was a

nexus between the offense and the petitioner’s severe permanent

condition. See Davis v. Scott, 51 F.3d 457, 460-61 (5th Cir.

1995), overruled in part by Tennard, 542 U.S. at 283-84; Cole v.

Dretke, 418 F.3d 494, 499 (5th Cir. 2005). The Tennard Court,

however, explicitly held our “uniquely severe permanent handicap”

and “nexus” tests incorrect and rejected them. Tennard, 542 U.S.

at 289. Instead, the Supreme Court clarified its “low threshold

for relevance” of mitigating evidence stating, “[A] State cannot

bar the consideration of evidence if the sentencer could

reasonably find that it warrants a sentence less than death.” Id.

at 2570 (internal quotations omitted).

Although O’Brien’s trial took place prior to Tennard, the

trial court’s jury instructions were constitutional, reflecting

the proper statutory charge. In Lockett v. Ohio, a plurality of

the Supreme Court held that the “Eighth and Fourteenth Amendments

require that the sentencer, in all but the rarest kind of capital

case, not be precluded from considering, as a mitigating factor,

any aspect of a defendant’s character or record . . . as a basis

476 U.S. 1, 7 (1986).
9
542 U.S. 274 (2004).

23
for a sentence less than death.” 438 U.S. 586, 604 (1978).

During the punishment phase of O’Brien’s trial, the jury was

required to respond to the following special issue, in accordance

with Texas’s current capital sentencing scheme:

Taking into consideration all of the evidence,
including evidence of the offense, the defendant’s
character and background, and the personal moral
culpability of the defendant, do you find that there is
a sufficient mitigating circumstance or circumstances
to warrant that a sentence of life imprisonment rather
than a death sentence be imposed?10

See TEX. CRIM. PROC. CODE ANN. art. 37.071(2)(e)(1).

The jury was further instructed that “the term ‘mitigating

evidence’ or ‘mitigating circumstances’ means evidence that a

juror might regard as reducing the defendant’s moral

blameworthiness.” In addition, the judge instructed the jury

that “[a] mitigating circumstance may include, but is not limited

to, any aspect of the defendant’s character, background, record,

emotional instability, intelligence or circumstances of the crime

which you believe could make a death sentence inappropriate in

10
This was the third of three special issues presented to
the jury. The first special issue inquired, “Is there a
probability that the defendant, Derrick Sean Obrien [sic] would
commit criminal acts of violence that would constitute a
continuing threat to society?” The jury answered this first
question in the affirmative. The second special issued asked:
Do you find from the evidence beyond a reasonable doubt
that Derrick Sean Obrien [sic], the defendant himself,
actually caused the death of Jennifer Ertman, the
deceased, on the occasion in question, or if he did not
actually cause Jennifer Ertman’s death, that he intended
to kill Jennifer Ertman or another, or that he
anticipated that a human like would be taken?
The jury also answered this question in the affirmative.

24
this case.” In light of Tennard, these instructions “do not

unconstitutionally preclude the jury from considering, as a

mitigating factor, any aspect of a defendant's character or

record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.”

Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.), cert. denied,

534 U.S. 945 (2001)(internal quotations omitted); see Cole v.

Dretke, 418 F.3d 494, 504 & n.44 (5th Cir. 2005)(indicating that

Texas’s current capital sentencing scheme is constitutional after

Tennard because it includes a “catchall instruction on mitigating

evidence”). In the present case, the trial court’s instructions

taken alone, allowed the jury to consider and give effect to

O’Brien’s youth and post-arrest behavior.

However, the context of the proceedings is relevant in

determining whether the jury could reasonably have given effect

to the mitigating evidence. Boyde v. California, 494 U.S. 370,

383 (1990); Penry, 532 U.S. at 800-02 (“[W]e will approach jury

instructions in the same way a jury would–with a commonsense

understanding of the instructions in the light of all that has

taken place at trial.”) (internal quotations omitted); Simmons v.

South Carolina, 512 U.S. 154, 171 (1994)(“[I]n some circumstances

the risk that the jury will not, or cannot, follow instructions

is so great, and the consequences of failure so vital to the

defendant, that the practical and human limitations of the jury

25
system cannot be ignored.”) (internal quotations omitted). In

that vein, O’Brien argues that the prosecutor’s comments

prejudiced the jury such that it was unable to give meaningful

effect to any of the mitigating evidence presented. Indeed, the

district court recognized that the prosecutor’s comments seemed

intended to restrict the jury’s consideration of mitigating

evidence. Although a “crucial assumption underlying the system

of trial by jury is that parties will follow instructions given

them by the trial judge,” Marshall v. Lonberger, 459 U.S. 422,

438 n.6 (1983); see Penry, 532 U.S. at 799, prosecutorial

misrepresentations may have a decisive effect on a jury. Boyde,

494 U.S. at 384-85; see Penry, 532 U.S. at 799-800 (finding it

logically and ethically impossible for the jury to follow the

jury instructions). In an instance where prosecutorial

statements allegedly influence a jury’s interpretation of the

statutory charge, the proper inquiry is whether there is a

reasonable likelihood that the jury has applied the instructions

in a way that prevents it from considering constitutionally

relevant evidence. Boyde, 532 U.S. at 380. This is particularly

true in capital cases where there is “a strong policy in favor of

accurate determination of the appropriate sentence.” Id.

In this case, reasonable jurists would not debate the

effectiveness of the trial court’s statutory charge. In context,

rather than arguing that the jury was precluded from considering

26
these factors as mitigating circumstances, the prosecutor’s

statements could have been interpreted to mean that the jury

should not consider the factors mitigating in O’Brien’s case.

See Jones v. Butler, 864 F.2d 348, 360 (5th Cir. 1988). Even if

the jury understood the prosecutor’s statements to mean the

former, we do not attribute to a prosecutor’s comments the same

force as instructions of the court. Boyde, 494 U.S. at 384-85.

Reasonable jurists would not disagree that the prosecutor’s

statements were not so pervasive as to overcome the presumption

that jurors follow their instructions. See, e.g., Richardson v.

Marsh, 481 U.S. 200, 211 (1987); United States v. Hopkins, 916

F.2d 207, 218 (5th Cir. 1990).

There is not a reasonable likelihood that the jury felt

precluded from considering constitutionally relevant evidence.

Reasonable jurists would not disagree as to the district court’s

resolution and a COA may not issue as to this claim.

C. Would reasonable jurists find it debatable that introduction
of evidence during the punishment phase of trial, concerning
O’Brien’s gang affiliation, was harmless?

O’Brien contends this court should grant a COA because

reasonable jurists could debate that his First Amendment right to

freedom of association was not violated when, during sentencing,

the prosecution called Police Officer Knox to testify about the

significance of O’Brien’s tattoos. Officer Knox testified that

one of O’Brien’s tattoos indicated that O’Brien may be a member

27
of a gang, and that gangs are generally involved in criminal

activity. O’Brien relies on Dawson v. Delaware,11 to argue that

the introduction of evidence of his gang affiliation violated his

constitutional rights because his gang affiliation had no bearing

on the issue being tried.

Finding any possible error harmless, the district court

concluded that the state habeas decision denying relief was not

unreasonable.12 The district court first noted that O’Brien’s

case fell somewhere between Dawson and Fuller v. Johnson.13 The

district court observed that a prosecutor can validly introduce

evidence of gang affiliation if it is relevant to whether the

defendant is a future danger. In O’Brien’s case, the state

introduced evidence that O’Brien belonged to a gang that was

involved in criminal activity.

Without deciding if the trial court erred by admitting

11
503 U.S. 159 (1992) (stating that where both parties
stipulated to the defendant’s membership in the Aryan Brotherhood
prison gang, but the prosecution offered no evidence of the
gang’s violent tendencies relevant to sentencing, the use of that
associational evidence violated the defendant's First Amendment
rights).
12
More specifically, the district court stated that “[t]his
case falls somewhere between Dawson and Fuller. . . . While the
facts of this case place it in a somewhat gray area, any error in
admitting this testimony was harmless.” O’Brien v. Dretke, No. H-
02-1865, slip op. at 27 (S.D. Tex. Jan. 14, 2005).
13
114 F.3d 491 (5th Cir. 1997)(holding that where the State
introduced evidence that the defendant was a member of a gang
that had committed unlawful or violent acts the defendant’s First
Amendment rights had not been violated).

28
Officer Knox’s testimony, the district court held that any error

in admitting the testimony was harmless. Brecht v. Abrahamson,

507 U.S. 619, 630 (1993)(“[T]here may be some constitutional

errors which in the setting of a particular case are so

unimportant and insignificant that they may, consistent with the

Federal Constitution, be deemed harmless.”) (internal quotations

omitted). We find that reasonable jurists would not disagree.

As the district court explained, O’Brien was convicted of an

exceedingly brutal rape-murder of a teenage girl. The jury heard

a large amount of evidence establishing O’Brien’s long history of

criminality and violence. Other witnesses, in addition to

Officer Knox, testified regarding O’Brien’s gang membership;

Chris Rodriguez and Joe Cantu both testified as to O’Brien’s

affiliation with gangs. Furthermore, testimony presented during

the guilt-innocence phase of trial established that the rape and

murder of Jennifer Ertman occurred following the initiation of a

new member into O’Brien’s gang. A COA may not issue as to this

claim.

D. Would reasonable jurists find it debatable that O’Brien was
not denied due process under Simmons v. South Carolina?

O’Brien argues this court should grant a COA because

reasonable jurists could debate that he was not denied due

process when the trial court refused to allow the jury to hear

that, if sentenced to life imprisonment, he would be ineligible

for parole for 35 years. In Simmons, the Supreme Court held that

29
when “the alternative sentence to death is life without parole .

. . due process plainly requires that [the defendant] be allowed

to bring [parole ineligibility] to the jury’s attention by way of

argument by defense counsel or an instruction from the court.”

Simmons, 512 U.S. at 169. O’Brien concedes that, if sentenced to

life imprisonment, he would have been eligible for parole after

35 years. However, O’Brien argues that Simmons applies to his

case because, at the time of his conviction, Texas was a de facto

life without parole state.14 However, “Simmons applies only to

instances where, as a legal matter, there is no possibility of

parole if the jury decides the appropriate sentence is life in

prison.” Ramdass v. Angelone, 530 U.S. 156, 169 (2000)(emphasis

added). We have repeatedly rejected claims that Simmons extends

to instances other than where, as a legal matter, there is no

possibility of parole. See Green v. Johnson, 160 F.3d 1029, 1045

(5th Cir. 1998) (“[T]he Fifth Circuit has repeatedly refused to

extend the rule in Simmons beyond those situations in which a

capital murder defendant is statutorily ineligible for parole.”).

O’Brien does not fall within the scope of Simmons.15 Reasonable

14
In 2005, the Texas legislature amended the Texas Code of
Criminal Procedure, formally creating life without parole. See
TEX. CRIM. PROC. CODE ANN. art. 37.071(2)(e)(2).
15
The district court also held that O’Brien was barred from
any extension of Simmons under Teague v. Lane, 489 U.S. 288
(1989).

30
jurists would not disagree with the district court’s resolution

of this claim. We will not issue a COA.

IV

We find that jurists of reason could not disagree with

district court’s resolution of O’Brien’s constitutional claims.

We DENY a COA on all claims.

31