United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2006
_____________________
Charles R. Fulbruge III
No. 05-70045 Clerk
_____________________
CHARLES E. SMITH,
Petitioner - Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Pecos
USDC No. 4:03-CV-113
_________________________________________________________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judges:
Charles E. Smith was convicted and sentenced to death in Texas
for the 1988 capital murder of Pecos County Deputy Sheriff Tim
Hudson. He appeals the district court’s denial of federal habeas
relief on his claim that his counsel rendered ineffective
assistance by failing to present any evidence at the punishment
phase of the trial. Because Smith has not demonstrated that the
state court’s decision is contrary to, or an unreasonable
application of, clearly established federal law, we AFFIRM the
judgment of the district court denying federal habeas relief.
I
In August 1988, Smith was an inmate at a Kansas correctional
facility, serving a sentence for burglary, theft, and aiding a
felon. He and his cousin, Carroll Smith, who was also incarcerated
at the same facility, escaped. At the time of the escape, Smith
had approximately one month left to serve before he would have been
eligible for parole. They stole a pick-up truck and drove to
Houston, Texas. While in Houston, they burglarized several homes
and stole credit cards, jewelry, license plates, and a .357 magnum
pistol and ammunition. They abandoned the stolen truck and
replaced it with a stolen van, and began driving west toward New
Mexico. They stopped and pumped gasoline worth $22.50 into the van
in Bakersfield, Texas, and drove away without paying. Officer Tim
Hudson, a Pecos County Deputy Sheriff, and other law enforcement
officers responded to the reported theft. Smith, who was driving
the van, refused to stop when the officers tried to pull him over.
When Deputy Hudson pulled alongside the van, Smith fired three
shots into Deputy Hudson’s car, one of which fatally wounded Deputy
Hudson.
Smith and his cousin continued to evade law enforcement
officers. They made their way to a rural farm where they stole a
.22 rifle and ammunition. They also stole a tractor truck and set
the van on fire. As they approached a road block, they made a U-
turn, and a high-speed chase, exceeding speeds of 100 miles per
hour, ensued. Gunfire was exchanged between Smith and his cousin
2
in the tractor truck and law enforcement officers pursuing them on
the ground and by helicopter. Eventually Smith drove the tractor
truck off the road and was apprehended.
He made two videotaped confessions while in custody.
Smith was tried and convicted of capital murder and sentenced
to death in August 1989. The Texas Court of Criminal Appeals
reversed his conviction and sentence in December 1991, holding that
the trial court had abused its discretion by denying Smith’s
challenge for cause to strike a biased juror. Smith v. State, No.
71,010 (Tex. Crim. App. December 4, 1991) (unpublished). He was
retried and convicted in June 1992. The trial court submitted only
two special issues to the jury: (1) whether there was a
probability that Smith would commit criminal acts of violence
constituting a continuing threat to society; and (2) whether there
were any mitigating circumstances that warranted a sentence of life
imprisonment. The Texas Court of Criminal Appeals affirmed the
conviction, but remanded the case for a new sentencing hearing
because the trial court did not instruct the jury and submit a
special issue on whether Smith acted deliberately. Smith v. State,
907 S.W.2d 522 (Tex. Crim. App. 1995). At his third punishment
trial in November 1999, the jury found that Smith had acted
deliberately, that he would constitute a danger to society in the
future, and that there were no mitigating circumstances that would
warrant a sentence of life imprisonment rather than the death
penalty. The Texas Court of Criminal Appeals affirmed the sentence
3
on direct appeal in May 2002. Smith v. State, 74 S.W.3d 868 (Tex.
Crim. App. 2002).
Smith was represented by attorney Martin Underwood at all
three of his trials.
In October 2003, the Texas Court of Criminal Appeals adopted
the state habeas trial court’s findings of fact and conclusions of
law and denied post-conviction relief. Ex parte Smith, No. 57,076-
01 (Tex. Crim. App. October 22, 2003) (unpublished).
Smith filed a petition for federal habeas relief in October
2004. In September 2005, the district court granted the State’s
motion for summary judgment and denied relief. Smith v. Dretke,
No. P-03-CV-113 (W.D. Tex. September 16, 2005) (unpublished).
II
The district court granted a certificate of appealability
authorizing Smith to appeal the denial of habeas relief as to the
following issues:
1. Whether Smith was denied effective
assistance of counsel in his 1999
punishment trial when his trial counsel
failed to present any mitigation evidence
to the punishment jury; and/or
2. whether Smith in his 1999 punishment
trial was denied effective assistance of
counsel when his trial counsel failed to
offer any rebuttal evidence on the issue
of future dangerousness; and/or
3. whether Smith was denied effective
assistance of counsel at his 1999
punishment trial when his trial counsel
failed to investigate mitigation evidence
adequately thereby wrongfully deciding
not to present mitigation evidence to the
jury considering punishment; and/or
4
4. whether Smith’s Eigh[th] Amendment rights
were violated when the 1999 jury heard no
evidence from petitioner on mitigating
factors.
The parties did not brief these issues separately, but instead
grouped them together in the same discussion.1
Smith is not entitled to federal habeas relief on his claims
unless the state court’s adjudication of the claims
(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). The state court’s factual determinations
“shall be presumed correct”, and the petitioner “shall have the
burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
A
Smith claims that his counsel at the third punishment trial in
1999 rendered ineffective assistance by failing to present any
mitigating evidence, by failing to present any rebuttal evidence on
the issue of future dangerousness, and by failing adequately to
1
Smith’s contention that his Eighth Amendment rights were
violated when the 1999 jury heard no evidence from him on
mitigating factors is not adequately briefed and therefore any
separate claim of an Eighth Amendment violation based on counsel’s
decision not to present evidence at the punishment phase is
abandoned.
5
investigate mitigating evidence. We review these claims under the
clearly established law of Strickland v. Washington, 466 U.S. 668
(1984).2 To prevail, Smith must show that his counsel rendered
deficient performance, and that his defense was prejudiced by the
deficiencies. Id. at 687. Counsel’s performance was deficient if
it “fell below an objective standard of reasonableness.” Id. at
688. “The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” Id.
[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually
unchallengeable; and strategic choices made
after less than complete investigation are
reasonable precisely to the extent that
reasonable professional judgments support the
limitations on investigation. In other words,
counsel has a duty to make reasonable
investigations or to make a reasonable
decision that makes particular investigations
unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be
directly assessed for reasonableness in all
2
Smith’s argument that, because counsel presented no
witnesses, prejudice should be presumed, is without merit. Smith
did not present this claim to the state court, and so it is
unexhausted. See Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.
2001) (“where petitioner advances in federal court an argument
based on a legal theory distinct from that relied upon in the state
court, he fails to satisfy the exhaustion requirement”) (internal
quotations and citation omitted). In any event, the presumptive
prejudice standard does not apply because counsel chose, as a
matter of strategy, not to present any witnesses in order to avoid
opening the door to damaging evidence. See Bell v. Cone, 535 U.S.
685, 697-98 (2002) (“the failure to adduce mitigating evidence and
the waiver of closing argument are plainly of the same ilk as other
specific attorney errors we have held subject to Strickland’s
performance and prejudice components”). Counsel’s strategic
decision not to present evidence did not result in the constructive
denial of counsel.
6
the circumstances, applying a heavy measure of
deference to counsel’s judgments.
Id. at 690-91. “[O]ur principal concern in deciding whether
[Smith’s counsel] exercised reasonable professional judgment is not
whether counsel should have presented a mitigation case. Rather,
we focus on whether the investigation supporting counsel’s decision
not to introduce mitigating evidence of [Smith’s] background was
itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 522-23 (2003
(internal quotations and brackets omitted; emphasis in original).
“In assessing counsel’s investigation, we must conduct an objective
review of their performance, measured for reasonableness under
prevailing professional norms, which includes a context-dependent
consideration of the challenged conduct as seen from counsel’s
perspective at the time.” Id. at 523 (internal quotations
omitted). There is a “strong presumption” that counsel’s conduct
“falls within the wide range of reasonable professional
assistance,” and we may “not find ineffective assistance of counsel
merely because [we] disagree[] with counsel’s trial strategy.”
Bell v. Cone, 535 U.S. 685, 698 (2002); Strickland, 466 U.S. at
689.
The American Bar Association Guidelines for representation of
defendants at capital sentencing proceedings state:
A. Counsel should present to the sentencing
entity ... all reasonably available
evidence in mitigation unless there are
strong strategic reasons to forego some
portion of such evidence.
7
B. Among the topics counsel should consider
presenting are:
1. Medical history (including mental
and physical illness or injury,
alcohol and drug use, birth trauma
and development delays);
2. Educational history (including
achievement, performance and
behavior), special educational needs
(including cognitive limitations and
learning disabilities), an
opportunity or lack thereof;
....
5. Family and social history; ...
6. Rehabilitative potential of client;
7. Record of prior offenses, adult and
juvenile, especially where there is
no record, a short record, or a
record of non-violent offenses;
8. Expert testimony concerning any of
the above and the resulting impact
on the client relating to the
offense and to the client’s
potential at the time of sentencing.
See Strickland, 466 U.S. at 688 (referring to Bar Association
standards as guides); Wiggins, 123 S.Ct. at 2536 (same).
“Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the
effort would be to assist the defendant at sentencing.” Wiggins,
593 U.S. at 533. “Nor does Strickland require defense counsel to
present mitigating evidence at sentencing in every case.” Id.
We now turn to consider the evidence presented at the 1999
punishment trial, the evidence that Smith contends his counsel
8
should have presented, counsel’s explanation of why he decided not
to present that evidence, and the state court’s decision.
B
At the third punishment trial in 1999, the State presented
testimony relating to the crime: the theft of gas, the pursuit by
Deputy Hudson and other law enforcement officers, the murder of
Deputy Hudson, and the subsequent high-speed chase leading to
Smith’s capture. Smith’s videotaped confessions were also played
for the jury.
In addition, the State presented evidence regarding the crimes
for which Smith was incarcerated in Kansas before his escape. In
1987, Smith pleaded guilty to felony burglary and felony theft,
admitting that he and a companion, Jeff Miers, had broken into a
house and stolen a rifle. Smith’s conviction for aiding a felon
stemmed from his presence on January 22, 1987, when Miers used that
gun to kill Martin Esquivel and wound his brother, Fernando
Esquivel, in Garden City, Kansas. One witness testified that Smith
urged Miers to “shoot the [****ing] Mexicans”.
John Nondorf, the Kansas probation officer who prepared the
presentence investigation report for the burglary and theft
convictions, testified that Smith told him that he was riding a
bicycle and was hit by a car when he was 13 years old; that he went
to the hospital for one day, but had no serious complications from
the accident; and that he had no drug problems and only drank
alcohol on a social basis. Sally Ann Ochoa, the probation officer
9
who prepared the presentence investigation report for Smith’s
conviction for aiding a felon (relating to Smith’s involvement in
the Esquivel murder), testified that Smith did not express any
remorse and seemed unconcerned. Both probation officers concluded
that Smith was not a suitable candidate for probation and
recommended that he be sentenced to prison.
Norma Jean Jackson, a correctional officer in Kansas,
testified that while Smith was incarcerated in the facility where
she was employed, he violated the facility’s rules by shoving her
as she stood in a doorway. Joyce Whitt, another correctional
officer from Kansas, testified that Smith escaped from the Kansas
facility when he had approximately a month left to serve before
being eligible for parole, and that he could have faced two years
in prison if he had been captured.
Mark Yates, who was incarcerated in a cell adjoining Smith’s
cell in the Pecos County Jail, testified that Smith showed no
remorse for the murder of Deputy Hudson and stated that he (Smith)
had slept like a baby the first night in jail. Yates also
testified that Smith told him that, by killing a police officer, he
had fulfilled one of the goals of his life.
Cliff Harris, who supervised the jailers in Pecos County,
testified about contraband found in Smith’s cell and in the maximum
security area where he was housed. He testified that they had
numerous problems with Smith: he set his blankets on fire once; he
fought with other inmates; he had a very short temper and when he
10
lost his temper, he tore things up; he intimidated other inmates
and dominated the maximum security cellblock; and he was a danger
to other inmates and the jailers. Sam Esparza testified that while
he was assisting with visitation at the Pecos County Jail, he broke
up a fight between Smith and another inmate. T. J. Perkins,
another jailer at the Pecos County Jail, testified that Smith
grabbed him through the bars and that he felt that his life was in
danger. He also testified that he heard Smith singing a song: “I
shot the sheriff, but in my case it was the deputy.”3
Carol Barnett, a Pecos County jailer, testified that a razor
blade that had been removed from its plastic holder was taken from
the sink in Smith’s cell. She also testified that after a strip
search of the inmates and a shakedown of the maximum security
cells, Smith got angry because his cell had been searched. He tore
up light fixtures and a television set and threw the pieces through
the bars at the deputies, and then started a fire with a blanket.
She testified that Smith was more aggressive than most of the other
inmates.
Darlene Archer, another jailer, testified that she saw Smith
hitting another inmate in the face with his fist; and that she
heard Smith singing, in a cheery manner, “I shot the sheriff, but
3
Apparently Smith sang his own version of the song written by
Bob Marley and recorded by Eric Clapton, entitled “I Shot the
Sheriff.” The complete lyrics, as written by Mr. Marley, are
available at http://www.bobmarley.com/songs/songs.cgi?sheriff (last
viewed October 24, 2006).
11
in my case I shot the deputy.” In her opinion, Smith had “no good
points” and “no redeeming virtues.”
Bruce Wilson, Sheriff of Pecos County, testified that he came
to the jail the night Smith started the fire and heard Smith say,
“The first son of a bitch through that door I’m going to kill.” He
testified that Smith was moody and one day could be docile and the
next day “he can be a raging, crazy human being.” He testified
that Smith is “very dangerous” and was the dominating force in the
maximum security area of the Pecos County Jail.
Several other witnesses testified that Smith had a bad
reputation for being a peaceful and law-abiding citizen.
Smith rested without presenting any evidence at the 1999
trial. In cross-examination of the State’s witnesses and in
closing argument, Smith’s counsel attempted to show that Smith shot
at Officer Hudson’s car to try to avoid capture rather than to
deliberately take his life. He also argued that Smith had changed
in the twelve years since the murder, and stressed the fact,
brought out on cross-examination, that Smith had not used any of
the weapons described by the State’s witnesses against jailers or
other inmates.
In his affidavit presented in the state and federal habeas
proceedings, Smith’s counsel explained his decision not to present
any evidence at the 1999 trial as follows:
I, after discussing the matter with
CHARLES SMITH, decided upon the strategy of
reducing the quantity of damaging evidence
12
both as to future dangerousness and mitigation
by resting with the State. This was the third
time through the punishment phase, and there
was a wealth of bad information which I knew
the State would present to this third jury
either through cross examination of defense
witnesses or in rebuttal. Comparing the
predictive beneficial effect of our
presentation with the damaging effect of the
State’s yet-to-be-presented evidence, I was
convinced th[at] we would come closer to
avoiding the death penalty by that strategy
than any other. This really wasn’t just
speculation -- I had seen the evidence weighed
before, twice. I believed then and I believe
now, that there was no way our evidence would
benefit our changes enough to anywhere offset
the additional damaging State’s evidence that
would follow via cross examination and
rebuttal.
C
Smith acknowledges that Underwood is an experienced criminal
defense attorney, well qualified to represent persons accused of
capital offenses. He contends, however, that Underwood’s decision
to forego further investigation and to present no evidence at the
punishment phase of the third trial is a “flawed strategy”
representing a serious departure from professional norms. Smith
contends that counsel’s representation was constitutionally
ineffective because he failed to present (1) expert testimony from
Dr. Windel Dickerson, Dr. James Marquart, and Dr. Walter Quijano;
(2) the testimony of Smith’s mother, half-sister, aunt, and cousin;
(3) Smith’s testimony; and (4) juvenile offense and jail records.
(1)
(a)
13
Dr. Dickerson, a psychologist, was called as an expert witness
for the defense at the punishment phases of Smith’s first and
second trials in 1989 and 1992. He testified that he performed
psychological tests on Smith that revealed problems in his
intellectual functioning, commonly associated with some kind of
underlying organic brain injury. Dr. Dickerson concluded that
Smith suffers from a chronic brain dysfunction that was probably
caused by a head injury Smith sustained when he was struck by a car
while riding his bicycle when he was 13 years old. Smith’s medical
records indicated that he had an abnormal electroencephalogram that
indicated a possible seizure disorder. Doctors prescribed Dilantin
for Smith to control his severe headaches, but he did not take it
regularly. Although Dr. Dickerson did not interview Smith’s
family, he testified that he believed that Smith had either
experienced abuse or witnessed it. He testified that Smith had a
chaotic upbringing: his natural father had been sent to prison;
his mother had married many times; and the family lived on welfare.
According to Dr. Dickerson, Smith was exceedingly self-centered,
and had a great impairment in terms of impulse control that had at
least a partial organic basis. He testified that the results of
Smith’s Minnesota Multiphasic Personality Inventory revealed that
Smith is a profoundly disturbed person who has little regard for
others, has trouble conforming his behavior to the rules of
society, and acts aggressively out of fear.
14
In 1989, Dr. Dickerson testified that Smith is an appreciable
risk to commit future acts of violence and that he “needs to be
restrained in some way for our protection and his.” At the second
trial in 1992, Dr. Dickerson compared the results of psychological
tests performed on Smith in 1992 to the results of the 1989 tests
and concluded that Smith was a much more passive individual in
1992, somewhat moderating the risk of future dangerousness. He
further testified that Smith had not committed any violent acts
during the time between the first and second trials. He
acknowledged, however, that Smith was still a significant risk and
that he “has still got a ways to go.” He testified further that
there is a progressive dimension of risk level associated with
violent conduct with the passage of time and that, if Smith
received proper treatment in prison, there was a realistic
possibility that he could become a useful member of prison society.
He also agreed that past behavior is the single best predictor of
future dangerousness.
(b)
Dr. Marquart was called as an expert witness for the defense
at the punishment phase of Smith’s second trial in 1992. He
testified that, based on his research, he had concluded that it
would be statistically impossible to determine whether an
individual would be a continuing threat to society and that long-
term predictions of violence could not be accomplished with any
degree of accuracy.
15
(c)
Dr. Quijano, a psychologist, did not testify at either of
Smith’s first two trials. In support of his state and federal
habeas petitions, Smith presented Dr. Quijano’s affidavit. Dr.
Quijano states that, based on his review of Smith’s history and
records, he believes that Smith would have been placed in
administrative segregation if he had been sentenced to life in
prison. He states that, if he had been called as a witness at
Smith’s third punishment trial, he would have testified that the
probability would be low that Smith would be a future danger to
society, based on the fact that Smith was not violent while in the
Kansas correctional facility and his non-violent behavior in the
Texas Department of Criminal Justice. He states that Smith’s
violent conduct in the Pecos County Jail was an “anomaly” and might
have occurred because the law enforcement officers in Pecos County,
who were friends with the victim, may have goaded Smith into losing
his temper in order to provide evidence of future dangerousness at
trial so as to ensure that Smith received the death penalty.
(2)
Smith asserts that his mother, half-sister, aunt, and cousin
were present and willing to testify at his third punishment trial
in 1999. All of them submitted affidavits in the state and federal
habeas proceedings, stating that if they had been called to
testify, they would have expressed their love for Smith and pleaded
for mercy on his behalf, and would have testified about his head
16
injury and subsequent impaired intellectual functioning, his
impoverished and disadvantaged upbringing, and his positive
character traits.
(3)
Smith submitted an affidavit in which he states that, if he
had been called as a witness at the 1999 punishment trial, he would
have testified that he was only 22 years old at the time of the
murder; he had consumed 30 beers in a 22-hour period and was
intoxicated at the time of the shooting; his prior accident caused
him to have headaches and seizures and he was prescribed Dilantin;
he had had more than ten years to think about the crime and is very
remorseful; he has a good disciplinary record in prison; and he
believes that the officers at the Pecos County Jail baited him to
act violently in order to increase the likelihood of his receiving
the death penalty.
(4)
Smith contends that other evidence not previously presented
“apparently either [was] not discovered or used by trial counsel in
formulating the strategy to present no evidence at punishment.”
This evidence consists of Smith’s records from the Texas Department
of Criminal Justice, his jail records from Pecos County and
Crockett County, and portions of his juvenile record.
D
The state habeas court found that the defense decision to rest
without presenting any evidence at the 1999 punishment trial was a
17
matter of sound trial strategy based on trial counsel’s previous
experience in the 1989 and 1992 punishment trials. The court
rejected as unfounded Smith’s claim that counsel did not conduct
the necessary investigation on which to base a rational, informed
decision of whether to call witnesses. The court found that, by
not presenting testimony, Smith’s counsel was able to prevent the
prosecution from presenting other damaging evidence to the jury,
including:
a. The fact that [Smith] had been arrested
six or seven times as a juvenile;
b. The fact that [Smith] had been on
juvenile probation three times;
c. The fact that [Smith’s] previous
psychological reports indicated that
[Smith] “had psychological testing which
indicated that he was an impulsive,
angry, inadequate feeling individual with
tendencies toward acting out this anger.
He was diagnosed as having a conduct
disorder, undersocialized aggressive type
when he was 14 years old. Basically,
what that means is antisocial acts, acts
against society, criminal type behavior.
Undersocialized means that he was not
socialized to the extent of dealing
effectively with society, and aggressive
type means as opposed to a passive type
which is just stealing things of that
nature, and aggressive type is active
aggression against people. That was
1980, when he was 14 years old.”
The state habeas court found that the prosecution could have
used Dr. Dickerson’s prior testimony that a person’s past behavior
is “the best single predictor” in predicting how violent a person
might be in the future in cross-examining him had he been called as
18
a witness in 1999. The court found that the prosecution could have
cross-examined Dr. Marquart about the inconsistency between his
1992 testimony that accurate long-term predictions of violence are
impossible and his prior testimony in another case that older
inmates are less likely to engage in violent activity in prison.
It also found that, if Dr. Quijano had been called as a witness for
the defense, the State could have cross-examined him about his
prior testimony in another case that the “best” and “strongest”
indicator of whether someone would commit crimes in the future is
their prior record of criminal actions.
Furthermore, the court found that trial counsel’s strategic
decision not to present evidence regarding Smith’s chaotic
upbringing, his diagnosis of attention deficit disorder, and the
role of his head injury and failure to take Dilantin was sound,
because if such evidence had been presented, it would have opened
the door to the State calling Dr. Richard Coons as an expert
witness in rebuttal. The court found that, if Dr. Coons had been
called as a witness, he would have rebutted Smith’s mitigating
evidence and would have testified, as he did in the prior trials,
that he did not think Smith’s head injury had anything to do with
his behavior. At the first two trials, Dr. Coons, a psychiatrist,
testified that, in the light Smith’s history and the facts of the
crime, there was a probability that Smith would constitute a future
danger. In his previous testimony, Dr. Coons observed that Smith’s
family had financial problems and that he had a deprived
19
upbringing; that Smith had been diagnosed at age 14 as an
undersocialized aggressive type; that he had been placed on
juvenile probation three times and had been charged as a juvenile
on six occasions; that he had been diagnosed with attention deficit
disorder with hyperactivity, which can lead to behavioral problems
as an adult; and that Smith’s prior behavior, psychological and
psychiatric assessments, social history, and family background did
not change his mind about Smith’s future dangerousness, but instead
reinforced his assessment. Dr. Coons testified that he did not
believe that Smith’s head injury had anything to do with his
behavior.
The state court found that counsel’s decision not to call
Smith’s mother as a witness was sound because she had told
investigator Larry Jackson that she was not surprised that Smith
had killed someone, and Jackson would have been available to
testify at the 1999 trial in rebuttal had Smith’s mother been
called as a witness.
E
The state court’s decision is neither contrary to, nor an
unreasonable application of, Strickland. Most of the evidence that
Smith contends should have been presented at the 1999 trial,
including his own testimony, had been presented at the 1989 and
1992 trials. Smith’s counsel, who represented him at all three
trials, was well aware that the defense evidence did not persuade
the juries in those trials to spare his life, even in the 1992
20
trial when the jury was instructed to answer a special issue on
mitigating circumstances. Smith’s family members did not testify
at the two previous trials, but the information they could have
provided regarding Smith’s family background and his head injury
was presented to the juries at those trials through Dr. Dickerson’s
testimony. Although Smith argues that his counsel should have
called Dr. Dickerson to provide updated testimony at the third
trial in 1999, Smith did not furnish an updated report from Dr.
Dickerson in the habeas proceedings. Therefore, he offers only
speculation that Dr. Dickerson could have provided helpful
testimony in 1999. Dr. Marquart did not evaluate Smith and could
not have provided the jury with any information specific to Smith.
As the state court observed, all three experts would have been
subjected to damaging cross-examination by the prosecution based on
their prior testimony, and the presentation of expert testimony by
the defense would have led to rebuttal and more damaging evidence
from the State’s expert, Dr. Coons.
In the light of brutal and senseless nature of the crime, and
all of the other evidence of Smith’s violent conduct, it is
unlikely that evidence of his head injury, his troubled childhood
and chaotic upbringing, pleas for mercy from his relatives, or the
jail and juvenile records that Smith says his counsel should have
discovered and presented would have made any difference. If
Smith’s relatives had testified, they would have been impeached on
cross-examination with information that Smith and his mother had
21
provided earlier to medical personnel and probation officers
(regarding his head injury, his relationship with his father and
stepfathers, and his use of alcohol and drugs) that contradicted
statements in the family members’ affidavits. As the district
court noted, Smith did not submit as exhibits in the state or
federal habeas proceedings the jail and juvenile records that he
claims his counsel should have discovered and presented.
Consequently, he has failed to demonstrate that the state court
unreasonably concluded that he was not prejudiced by counsel’s
failure to discover and present those records to the jury.
III
The state court’s decision that Smith’s counsel made a
reasonable strategic decision to forego the presentation of
evidence at the punishment phase is neither contrary to, nor an
unreasonable application of, clearly established federal law.
Therefore, the judgment of the district court denying Smith’s
petition for a writ of habeas corpus is
AFFIRMED.
22