Sonnier v. Quarterman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
______________________ Fifth Circuit

No. 06-70003 FILED
______________________ January 22, 2007

Derrick SONNIER, Charles R. Fulbruge III
Clerk

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 Southern District of Texas
________________________________________________

Before HIGGINBOTHAM, BENAVIDES, and DENNIS,
Circuit Judges.

DENNIS, Circuit Judge:

Petitioner Derrick Sonnier, a Texas death row

inmate, filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2254 with the United

States District Court for the Southern District of

1
Texas on June 4, 2004 and amended it on August 5,

2004. Respondent Doug Dretke1 filed a motion for

summary judgment on July 14, 2005. The district

court granted respondent’s motion for summary

judgment and denied Sonnier’s petition for a writ

of habeas corpus in a memorandum and order dated

January 23, 2006. It additionally denied a

Certificate of Appealability (COA) sua sponte.

Sonnier now seeks a COA from this court.

I. Background

Sonnier was convicted of the capital murder of

Melody Flowers and her son, Patrick Flowers, by a

Texas jury.2 At sentencing, Sonnier’s attorneys,

pursuant to his wishes and instructions, did not

1
On June 1, 2006, Nathaniel Quarterman succeeded Doug
Dretke, the previously named respondent-appellee, as Director of
the Correctional Institutions Division of the Texas Department of
Criminal Justice. Quarterman is substituted as a party. Fed. R.
App. P. 43(c)(2).
2
Specifically, the jury found Sonnier guilty of
intentionally and knowingly killing the two in the same criminal
transaction in violation of Texas Penal Code § 1903.

2
present any mitigation evidence. Sonnier, on the

record, confirmed that he had consistently

instructed his attorneys not to present any

mitigation evidence. Based upon the jury’s

answers to interrogatories under the 1991 Texas

capital sentencing scheme, the trial court

sentenced Sonnier to death.

Sonnier’s motion for new trial was denied, and

his conviction and sentence were affirmed by the

Texas Court of Criminal Appeals. See Sonnier v.

State, 913 S.W. 2d 511 (Tex. Crim. App. 1995).

Sonnier instituted state habeas proceedings in

which his petition was denied. See Ex Parte

Sonnier, No. 57,256-01 (Tex. Crim. App. Nov. 5,

2003)(unpublished). Sonnier then filed his

federal habeas petition in the district court.

The district court granted the State’s motion for

summary judgment, dismissed Sonnier’s petition in

3
its entirety, and denied a COA. Sonnier now

requests a COA from this court, claiming that:

(1) his trial counsel was ineffective for (a)

failing to investigate for mitigation evidence and

for (b) failing to present mitigating evidence at

the punishment phase of his trial; (2) he was

constitutionally entitled, under Simmons v. South

Carolina, 513 U.S. 154 (1994), to inform the jury

that, if sentenced to life imprisonment, rather

than death, he would not be eligible for parole

for 35 years; and (3) Texas Code of Criminal

Procedure article 37.071, as amended effective

September 1, 1991, is unconstitutional.

II. Legal Standard

Our review of Sonnier’s request for a COA is

governed by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), which provides that a

petitioner can appeal a district court’s dismissal

4
of a petition under 28 U.S.C. § 2254 only if

either the district court or this court issues a

COA. See 28 U.S.C. § 2253(c)(1); Fed. R. App. P.

22(b)(1). A court can issue a COA “only if the

applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). The Supreme Court has explained that

under this standard, a COA should issue only when

the petitioner demonstrates “that jurists of

reason could disagree with the district court’s

resolution of his constitutional claims or that

jurists could conclude the issues presented are

adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322,

327 (2003). Thus, a petitioner seeking a COA must

show that “‘reasonable jurists would find the

district court’s assessment of the constitutional

claims debatable or wrong.’” Id. at 338 (quoting

5
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

When determining whether a petitioner has

established an entitlement to a COA, we do not

fully consider the underlying factual and legal

bases in support of the petitioner’s claims. Id.

at 336. Rather, this court conducts only a

limited, “threshold inquiry into the underlying

merit of [the petitioner’s] claims.” Id. at 327.

Finally, in capital cases, doubts over whether a

COA should issue are to be resolved in favor of

the petitioner. See Newton v. Dretke, 371 F.3d

250, 254 (5th Cir. 2004).

III. Discussion

A. Ineffective Assistance of Counsel

Sonnier first asserts that he is entitled to a

COA because his trial counsel, Wilford Anderson

and Stephen Morris, were ineffective during the

punishment phase of his trial for failing to: (1)

6
investigate for mitigating evidence; and (2)

present known available mitigating evidence.

The Sixth Amendment guarantees a criminal

accused the right to assistance of counsel; “[t]he

right to counsel is the right to the effective

assistance of counsel.” McMann v. Richardson, 397

U.S. 759, 771 n. 14 (1970). The Supreme Court has

explained the Sixth Amendment right to counsel as

follows: “The benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct

so undermined the proper functioning of the

adversarial process that the trial cannot be

relied on as having produced a just result.”

Strickland v. Washington, 466 U.S. 668, 686

(1984). Strickland provides a two-pronged test to

analyze its provided benchmark:

(1) the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so
serious that counsel was not functioning

7
 as the “counsel” guaranteed by the Sixth
Amendment;...
(2) the defendant must show that the
deficient performance prejudiced his
defense. This requires showing that
counsel’s errors were so serious as to
deprive the defendant of a fair trial, a
trial whose result is reliable.

Id. at 687. Both prongs must be satisfied for a

defendant to carry his burden and thus, succeed on

an ineffective assistance of counsel claim.

As to the first prong, deficient performance,

we measure the adequacy of counsel’s performance

against an objective standard of reasonable

performance based on accepted professional norms.

See Rompilla v. Beard, 545 U.S. 374, 380 (2005)

(citing Strickland, 466 U.S. at 688). “Because of

the difficulties inherent in making the

evaluation, the court must indulge a strong

presumption that counsel’s conduct falls within

the wide range of reasonable professional

assistance; that is, the defendant must overcome

8
the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial

strategy.’” Strickland, 466 U.S. at 689.

As to the second prong, prejudice to the

defense, a petitioner must show that there is a

reasonable probability that, absent counsel’s

deficient representation, the outcome of the

proceedings would have been different. Rompilla,

545 U.S. at 390 (citing Strickland, 466 U.S. at

694). A reasonable probability is a probability

sufficient to undermine confidence in the outcome

of the trial. Strickland, 466 at U.S. at 694. To

assess prejudice during the sentencing phase of a

capital proceeding, the court “reweigh[s] the

evidence in aggravation against the totality of

the available mitigating evidence.” Wiggins v.

Smith, 539 U.S. 510, 534 (2003). To find

prejudice, there must be a reasonable probability

9
that, absent the error, the sentencer would have

concluded that the balance of aggravating and

mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695.

With these standards in mind, we turn to

Sonnier’s claims of ineffective assistance of

counsel. Sonnier asserts that his trial

attorneys’ performance was deficient in two

respects: (1) they failed to investigate for

mitigation evidence; and (2) they failed to

present mitigation evidence. This deficient

performance, he alleges, prejudiced his defense.

Failure to Investigate for Mitigation Evidence

Sonnier first asserts that his trial attorneys

were deficient because they failed to investigate

for mitigation evidence. Sonnier and the State

disagree as to the exact extent of counsel’s

investigatory efforts. Sonnier’s current

10
attorneys, in conclusory fashion, urge that his

trial attorneys failed to conduct any

investigation for mitigation evidence, which they

claim resulted in a verdict unworthy of

confidence. The state’s attorneys, by contrast,

assert that Sonnier’s allegation of failure to

investigate fails. As they argue, “Counsel’s

investigation led him to believe that he should

present evidence. Counsel asked Sonnier to allow

them to offer the testimony. Indeed the witnesses

were in the courtroom ready to testify. After

counsel had investigated and settled upon a

strategy, the decision not to proceed was

Sonnier’s.” They further allege that Sonnier’s

trial counsel contacted his family members and

solicited their attendance at his trial.

The record reveals that one of Sonnier’s trial

attorneys, Stephen Morris, prepared a sworn

11
affidavit that stated that:

(1) Sonnier refused to cooperate in any way to

try to fashion a defense and that Sonnier had

become belligerent towards one of his

attorneys for his efforts to convince Sonnier

to mount one;

2) he asked Sonnier every day to speak with

his attorneys to help them prepare a defense

and that Sonnier refused;

(3) the attorneys sent a private investigator

to talk to Sonnier, hoping that he [the

investigator] could foster a relationship with

Sonnier that would lead to Sonnier’s

cooperation, but that Sonnier refused to speak

to him;

(4) Sonnier, insisting that he did not hang

around with any of his neighbors, refused to

provide names of other people who lived at the

12
 apartment complex where he and the victim

resided who could have been present in the

complex when the murders occurred;

(5) Sonnier’s relatives, whom the attorneys

wanted to call as witnesses should Sonnier be

found guilty, were present at the trial at the

request of co-counsel, Anderson; and

(6) Sonnier objected to his attorneys’

speaking with his family members about

mitigation evidence.

The state habeas court found the affidavit of

Morris to be credible.

To determine whether counsel’s performance was

deficient, we must measure it against an objective

standard of reasonable performance based on

accepted professional norms. See Rompilla, 545

U.S. at 380 (citing Strickland, 466 U.S. at 688).

The Supreme Court, in Strickland, addressed an

13
ineffective assistance claim based on an

attorney’s failure to investigate for and present

mitigation evidence. Relying upon the guideposts

of the American Bar Association‘s Guidelines for

the Appointment and Performance of Counsel in

Death Penalty Cases,3 it noted that counsel has a

duty to make reasonable investigations or to make

a reasonable decision that makes particular

investigations unnecessary. Strickland, 466 U.S.

at 691.

Applying that standard, we conclude that the

trial attorneys stopped short of making a

reasonable investigation for purposes of

uncovering relevant mitigating evidence that could

have been useful in reaching two goals that it was

3
The version of these Guidelines in place at the time of
Sonnier’s trial provided that “investigation for preparation of
the sentencing phase should be conducted regardless of any
initial assertion by the client that mitigation is not to be
offered.” American Bar Association, Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases §
11.4.1c (1989).

14
their duty to pursue: (1) fully informing Sonnier

of all available mitigating evidence and their

opinion of its potential effectiveness based on

their professional knowledge and experience; and

(2) persuading the sentencing jury that Sonnier’s

moral culpability was not sufficient to warrant

the death penalty.

According to the record prepared for our

review, the trial attorneys did not talk to

Sonnier’s family and acquaintances at the length

or in the depth required for these purposes. If

any of these persons could have presented or

directed counsel to highly effective mitigation

evidence, it appears unlikely that the truncated

investigation of the family and other witnesses by

Sonnier’s
trial attorneys would have uncovered it.

Sonnier’s refusal to consent to their undertaking

more extensive and in-depth discussions with his

15
family and acquaintances to determine the nature

and extent of the mitigation evidence available

was not reasonable grounds for their failure to do

so.

Having found deficient performance with

respect to Sonnier’s attorneys failure to

investigate for mitigation evidence, we now turn

to the second prong of the Strickland analysis,

prejudice. Sonnier carries the burden of showing

that his trial attorneys’ ineffective

investigation for mitigation evidence prejudiced

his defense. After reviewing the mitigation

evidence that Sonnier’s current counsel now

contend that his trial attorneys failed to

discover and present, we conclude that the

requisite showing of such prejudice has not been

made.

Sonnier presents the affidavits of Rosa

16
Christine Law, his mother, and Cynthia Patterson,

his investigator, to show the nature and extent of

the available mitigation evidence. Law’s sworn

statement is that she was never approached by or

interviewed by Sonnier’s attorneys or investigator

regarding any potential testimony in Sonnier’s

favor. Instead, she attested, she had one very

brief telephone conversation with trial attorney

Anderson a few days prior to trial regarding

locating a witness. Law explains that she was

never interviewed regarding her son’s background

or personal history nor was she ever asked to

testify about it, though she was available and

willing to do so. Had she testified, she would

have explained that Sonnier “was never a problem,”

“was respectful to everyone,” and “is a kind

person who loves children.” Further, she would

have testified that she could not believe he would

17
ever harm a child and that when speaking to her

son shortly after his arrest, he was “very

distraught and just ‘out of it.’” Additionally,

Law would have spoken of visiting her son’s

apartment a week prior to the murders where she

met Melody Flowers, one of the victims, and

noticed no problems between her son and Flowers.

She also noted that “everyone went in and out of

each other’s apartments without knocking and

appeared to be more like brothers and sisters,

than neighbors.”

Sonnier’s investigator, Cynthia Patterson,

explains in her affidavit that Roxanne Saunders,

Rose Bias, Hattie Buckley, and Paul Goodwin were

willing to come to court and testify regarding

Sonnier’s good character but were not interviewed

or asked to testify. Additionally, Patterson

states that Shirley Goodwin, Carol DeJean, Sarah

18
Lewis, and Jackie Bourne were present, available,

and willing to testify at Sonnier’s trial.

According to the investigator’s affidavit,

Shirley Goodwin is Sonnier’s step-mother and,

though she recalled speaking to Sonnier’s

attorneys a couple of times during the trial in

brief, approximately two-minute conversations, she

could not recall being asked to testify or being

asked any questions regarding Sonnier’s background

or personal history. Goodwin was never

interviewed prior to trial by Sonnier’s attorneys

and could not recall being asked for the names of

character witnesses. If asked, she would have

testified that Sonnier was kind, respectful, and

loving, that she had never witnessed violent or

aggressive behavior on his part, that he was kind

to his girlfriend and her children, and that he

loved Patrick Flowers, one of the victims, and was

19
not capable of hurting him.

Patterson’s affidavit also states that Carol

DeJean is Sonnier’s aunt who was present at his

trial but, despite speaking to his attorneys in

general conversation, was not asked to testify.

Had she been asked to do so, she would have

testified that Sonnier was even-tempered, mild-

mannered, and well-mannered. Further, she would

have expressed that he loved children and was very

kind to her children. Additionally, she would

have stated that she had never heard Sonnier raise

his voice and never witnessed him do anything that

would indicate that he was capable of violence.

She noted that she would never believe that

Sonnier committed this type of offense.

Sarah Lewis, Sonnier’s aunt, is also

referenced in Patterson’s affidavit. Patterson

explains that Lewis did not speak with the

20
attorneys and that no one asked her to testify.

She described Sonnier as a person who loved kids,

loved everybody, and stated that he is easy to get

along with, would not harm anybody, and would let

someone harm him instead of harming them to

protect himself. She also stated that he was good

with his girlfriend’s kids and Melody Flowers’s

children.

Finally, Patterson’s affidavit presents the

statements of Jackie Bourne, Sonnier’s cousin, who

asked one of the attorneys whether Sonnier would

be allowed to have witnesses testify on his

behalf. The attorney explained that Sonnier did

not want testimony on his behalf. Had she been

asked to testify, Bourne would have described

Sonnier as a sweet person who was not a problem.

Further, she would have stated that she does not

believe Sonnier is capable of committing this type

21
of offense and has never displayed any indications

of violence. She also would have explained that

she never saw him act inappropriately towards

females and that he went to school, did his work,

and stayed at home.

Although this mitigation evidence, if

discovered and presented, would have shown some

favorable aspects of Sonnier’s character, after

re-weighing the aggravating evidence of record4

against it, we do not find that there is a

reasonable probability that its introduction would

have caused the jury to decline to impose the

4
The record shows that Melody Flowers, the adult victim,
was a neighbor of Sonnier. Prior to her death, the evidence
shows that Sonnier, on more than one occasion, intruded into her
apartment without her knowledge or consent and scared her. Upon
doing so, he would laugh and taunt her for her fear. The precise
cause of Melody Flowers’s death is unknown; it could have been
from any of the four harms she endured: (1) the bludgeoning with
a hammer upon her head; (2) the asphyxia due to manual and
ligature strangulation; (3) the stomping upon her chest and neck;
(4) or the two stabbings to her chest. Patrick Flowers, the
child victim, died from being stabbed twice in the chest, one of
which penetrated his heart; he was thereafter submerged in a
bathtub.

22
death penalty in this case; nor does the failure

of trial counsel to discover and present it

undermine our confidence in the jury’s

determination of the sentence.

Our conclusion in this regard is illumined,

although not necessarily controlled by, a

comparison with cases in which the Supreme Court

determined whether there was a reasonable

probability that the trial attorneys’ failure to

discover and present mitigation evidence had

affected the outcome of the sentencing

proceedings. For example, in Williams v. Taylor,

529 U.S. 362,395-96, the Court held that the

defendant’s trial counsel were prejudically

ineffective when they failed to discover or

introduce mitigation evidence in the form of

extensive records that graphically described

petitioner’s:

23
(1) nightmarish childhood, including grossly

unsanitary living conditions; (2) parents’

alcoholism, as well as their convictions and

incarceration for criminal neglect of their

children; (3) severe and repeated beatings by his

parents; (4) commitments to social services

bureau; (5) placements in abusive foster homes;

and his (6) borderline mental retardation.

Similarly, in Rompilla v. Beard, 545 U.S. 374,

391-91, the defendant’s attorney was prejudicially

ineffective because of her failure to secure and

review a prior conviction file, which included

evidence of petitioner’s: (1) severely alcoholic

parents; (2) mother’s chronic drunkenness during

her pregnancy; (3) drinking problems; (4) father’s

overt abuse towards his mother; (5) infidelity in

respect to his mother; (5)parents’ violent fights;

(6) father’s verbal and physical abuse of him and

24
his siblings, including striking them with his

hands and fists, leather straps, belts and sticks,

in addition to locking them in a pen, filthy with

dog excrement; (7) horrific living conditions,

including no indoor plumbing, sleeping in the

attic with no heat, no clothes and attending

school in rags; and (8) petitioner’s mental

retardation. On the other hand, in Woodford v.

Visciotti, 537 U.S. 19, 26 (2002), the United

States Supreme Court ruled that the California

Supreme Court’s rejection of an ineffective

assistance of counsel claim was not objectively

unreasonable. In that case, counsel failed to

discover and present evidence of Woodford’s (1)

dysfunctional family in which he suffered

continual psychological abuse; (2) low self-

esteem; (3) depression; (4) club feet; (5)

feelings of inadequacy, incompetence, inferiority;

25
and (6) 20 changes of residences. Id.

The weight of the failure to discover

mitigation evidence by Sonnier’s trial counsel is

comparable to that of the neglect urged

unsuccessfully as grounds for Strickland’s

ineffective assistance claim. There, the Supreme

Court explained, “At most this evidence shows that

numerous people who knew the respondent thought he

was generally a good person and that a

psychiatrist and a psychologist believed he was

under considerable emotional stress that did not

rise to the level of extreme disturbance. Given

the overwhelming aggravating factors, there is no

reasonable probability that the omitted evidence

would have changed the conclusion that the

aggravating circumstances outweighed the

mitigating circumstances and, hence, the sentence

imposed.” Strickland, 466 U.S. at 700.

26
 For these reasons, we conclude that Sonnier

has failed to carry his burden under Strickland of

showing that there was a reasonable probability

that his capital sentencing jury would have

imposed a life imprisonment sentence rather than

the death penalty if his trial attorneys had

investigated more diligently for mitigation

evidence. Accordingly, we conclude that he has

not shown that the error prejudiced him or

rendered his penalty trial unreliable, and we must

therefore deny his request for a COA in this

respect.

Failure to Present Mitigation Evidence

Sonnier’s current counsel argue additionally

that his trial attorneys were ineffective, due to

their failure to present any mitigation evidence.

They argue that Sonnier’s family and friends were

present at his trial and ready and willing to

27
testify on his behalf, yet the defense attorneys

did not present them. By contrast, the State

argues that because Sonnier’s trial attorneys were

acting upon his instructions, Sonnier cannot now

complain of their inaction.

The record shows that Sonnier directed his

attorneys not to present mitigation evidence.

Trial attorney, Stephen Morris’s, affidavit states

that:

(1) upon the guilty verdict, the attorneys

called for a recess, during which they

urged Sonnier to reconsider and allow them

to call witnesses, but he refused;

(2) Morris spoke with Sonnier, as he would

have had Sonnier been his own brother, in

an effort to convince Sonnier to allow his

attorneys to put mitigation evidence

before the jury on his behalf, but he

28
 refused;

(3) Sonnier’s other attorney, Mr.

Anderson, informed the court, on the

record, that Sonnier would not allow

counsel to call witnesses on his behalf;

(4) Sonnier, upon inquiry by the trial

court, openly admitted that he had

discussed his decision with counsel and

was instructing them not to present

evidence at punishment.

Furthermore, the record also shows that Sonnier

was informed of the advisability of presenting

such mitigation evidence. Morris’s affidavit

states, “I spoke with him as earnestly as I could

concerning the critical need to have the jury hear

from his relatives and friends in his defense.”

Additionally, the trial court transcript shows the

following colloquy by Mr. Anderson, one of

29
Sonnier’s attorneys:

Mr. Morris and I have discussed presenting
witnesses on behalf of Mr. Sonnier, those
witnesses being various family members of
Mr. Sonnier. We have advised Mr. Sonnier
of our desire to present those witnesses
on his behalf in his best interest,
especially at this part of the trial,
punishment phase of trial. Mr. Sonnier
has advised us that he does not want us to
put on any witnesses or put forth any
evidence or testimony in regards to the
defense at this stage of the trial. We
have advised him it is our opinion that he
should do so, but he has indicated that he
does not want to have any witnesses
testify in his behalf. Had we called
witnesses to testify in his behalf, they
would testify as to their knowledge of Mr.
Sonnier, their relationship with Mr.
Sonnier, the length of time they have
known him. They would testify as to the
type of person Mr. Sonnier is in a
positive sense and would, in our opinion,
present evidence that would help mitigate
any punishment that may be assessed by the
jury, allow them to consider some evidence
of mitigation in determining how they
would answer special issue number two.

After hearing this recitation, the trial judge

spoke directly to the defendant, asking, “Mr.

30
Sonnier, have you discussed this with your

attorneys and are you instructing them not to call

witnesses in your behalf in the punishment stage

of trial?” Sonnier replied, “Yes, sir, Your

Honor, I am.” On appeal, Sonnier does not dispute

that he was informed of the importance of

presenting mitigation evidence.

Under Fifth Circuit case law, “when a

defendant blocks his attorney’s efforts to defend

him, including forbidding his attorney from

interviewing his family members for purposes of

soliciting their testimony as mitigating evidence

during the punishment phase of the trial, he

cannot later claim ineffective assistance of

counsel.” Roberts v. Dretke, 356 F.3d 632, 638

(5th Cir. 2004); see also Autry v. McKaskle, 727

F.2d 358, 361-62 (5th Cir. 1984); United States v.

31
Masat, 896 F.2d 88, 93 (5th Cir. 1990);5 Dowthitt

v. Johnson, 230 F.3d 733 (5th Cir. 2000).6

5
The Masat court explained, “...[I]t is apparent that we
are being asked to permit a defendant to avoid conviction on the
ground that his lawyer did exactly what he asked him to do. That
argument answers itself.” United States v. Masat, 896 F.2d 88,
93 (5th Cir. 1990). The court then cited the Eleventh Circuit
case of Mulligan v. Kemp, 771 F.2d 1436 (11th Cir. 1985),
“...[W]e must give great deference to the choices which are made
under the explicit direction of the client...[I]f counsel is
commanded by his client to present a certain defense, and if he
does thoroughly explain the potential problems with the suggested
approach, then his ultimate decision to follow the client’s will
may not be lightly disturbed.” Id. at 1441-42. But see Hardwick
v. Crosby, 320 F.3d 1127 n. 215 (11th Cir. 2003), where the
Eleventh Circuit provided, “Even if Hardwick [the defendant] did
ask Tassone [his attorney] not to present mitigating evidence, .
. . Tassone had a duty to Hardwick at the sentencing phase to
present available mitigating witnesses as Hardwick’s only defense
against the death penalty.

6
This is consistent with other federal circuits’
jurisprudence, as well. See e.g., Shelton v. v. Carroll, 464
F.3d 423 (3d Cir. 2006); Campbell v. Polk, 447 F.3d 270 (4th Cir.
2006)(no ineffective assistance of counsel where defendant
strongly insisted that his attorney not call his mother, even
after he was advised of the need for family witnesses); Frye v.
Lee, 235 F.3d 897, 906-07 (4th Cir. 2000)(no ineffective
assistance of counsel where the attorney failed to present
supplemental witnesses during the sentencing phase where the
defendant adamantly refused to allow counsel to contact members
of the defendant’s family or engage their services in obtaining
mitigating evidence, despite repeated requests by defense
counsel to do so); Jones v. Page, 76 F.3d 831 (7th Cir.
1996)(defendant could not complain of ineffective assistance of
counsel based on his attorney’s failure to call defendant’s
grandmother as a mitigation witness when the defendant personally
instructed the attorney not to do so); Hall v. Washington, 106
F.3d 742 (7th Cir. 1997)(defendant waives his claim for
ineffective assistance of counsel if his refusal to cooperate
causes his attorney’s deficient performance); Williams v.
Woodford, 384 F.3d 567 (9th Cir. 2004)(no ineffective assistance
of counsel when, among other things, the defendant specifically

32
 Furthermore, even if this Fifth circuit

precedent could be found contrary to or an

unreasonable application of the Supreme Court’s

decisions, Sonnier’s ineffective assistance claim

regarding his trial attorneys’ failure to present

mitigating evidence would still fail. When

directly applying the second prong of the

Strickland analysis to the alleged ineffectiveness

of Sonnier’s trial counsel in failing to present

the mitigation evidence shown to have been

available, we find that it necessarily duplicates

and reaches the same result as the foregoing

analysis of his failure to investigate claim.

Given the overwhelming aggravating factors, there

is no reasonable probability that the omitted

evidence would have changed the conclusion that

requested that no witnesses be called); James v. Gibson, 211 F.3d
543 (10th Cir. 2000)(no ineffective assistance of counsel where
defendant directly influenced counsel by requesting that his
grandfather not be called as a witness).

33
the aggravating circumstances outweighed the

mitigating circumstances and, hence, warranted the

capital punishment sentence that was imposed.

B. Due Process Violation in Voir Dire

Sonnier’s second claim, based upon Simmons v.

South Carolina, 512 U.S. 154 (1994), is that he

was deprived of due process of law when, during

jury selection, the trial court refused to allow

the defense to inform the jury that if convicted,

Sonnier would be ineligible for parole until he

had served 35 years. In Simmons, the court held

that where a state argues in favor of the death

penalty based upon the defendant’s future

dangerousness, the defendant must be allowed to

respond to that argument with evidence showing

that if sentenced to life in prison, he will not

be eligible for parole. Simmons, 512 U.S. at 165.

Simmons does not apply to the facts of this

34
case. Unlike the South Carolina sentencing scheme

at issue in Simmons, the Texas death penalty

statutes under which Sonnier was sentenced did

offer life imprisonment without parole as a

possible sentence. Instead, they provided only

for sentences of death or life imprisonment with

the possibility of parole. Sonnier’s argument, as

he concedes, is foreclosed by Supreme Court and

Fifth Circuit precedent. See Ramdass v. Angelone,

530 U.S. 156, 169 (2000) (“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.”); Green

v. Johnson, 160 F.3d 1029, 1045 (5th Cir. 1998);

Wheat v. Johnson, 238 F.3d 357, 362 (5th Cir.

1999) (finding Simmons inapplicable to the Texas

sentencing scheme); Miller v. Johnson, 200 F.3d

274, 290 (5th Cir. 2000)(“[B]ecause Miller would

35
have been eligible for parole under Texas law if

sentenced to life, we find his reliance on Simmons

unavailing.”); Hughes v. Johnson, 191 F.3d 607,

617 (5th Cir. 1999). Accordingly, we conclude

that Sonnier’s case does not fall within the scope

of Simmons and that a COA cannot be issued on the

grounds he asserts.

C. Constitutionality of Texas Code of Criminal
Procedure article 37.071
Sonnier’s final argument is that the Texas

death penalty statute, Texas Code of Criminal

Procedure article 37.071, violates the Eighth and

Fourteenth Amendments. The Texas legislature

amended article 37.071, effective September 1,

1991, by removing the deliberateness7 and

provocation special issues and adding a general

7
The amended statute retains the deliberateness special
issue for defendants found guilty of capital murder under the law
of the parties.

36
mitigation special issue.8

Under the 1991 version of the statute

applicable here, the jury is first asked whether

there is a probability that the defendant would

commit criminal acts of violence that would

constitute a continuing threat to society. See

TEX. CODE CRIM. PRO. ANN. art. 37.071, Section

2(b)(1).9 The court must charge the jury that in

deliberating on that interrogatory, it shall

consider all evidence admitted at the guilt or

innocence stage and the punishment stage,

including evidence of the defendant’s background

or character or the circumstances of the offense

that militates for or mitigates against the

imposition of the death penalty. See TEX. CODE

8
This addition requires a jury to consider all mitigation
evidence and allows a jury to impose a life sentence if the
mitigation evidence so warrants.
9
The state must prove this issue beyond a reasonable doubt,
and the jury shall return a special verdict of “yes” or “no.”
See TEX. CODE CRIM. PRO. ANN. art. 37.071, Section 2(c).

37
CRIM. PRO. ANN. art. 37.071, Section 2(d)(1). If

the jury returns a unanimous,10 affirmative finding

as to the first issue, the court shall then

instruct the jury to answer the following issue:

Whether, taking into consideration all of the

evidence, and the personal moral culpability of

the defendant, there is a sufficient mitigating

circumstance or circumstances to warrant that a

sentence of life imprisonment rather than a death

sentence be imposed. See TEX. CODE CRIM. PRO. ANN.

art. 37.071, Section 2(e)(1). The court must

charge the jury that in answering that

interrogatory, it must consider mitigating

evidence to be evidence that a juror might regard

as reducing the defendant’s moral blameworthiness.

See TEX. CODE CRIM. PRO. ANN. art. 37.071, Section

10
See TEX. CODE CRIM. PRO. ANN. art. 37.071, Section
2(d)(2).

38
2(f)(4). If the jury then returns a unanimous,11

negative finding, the court shall sentence the

defendant to death. See TEX. CODE CRIM. PRO. ANN.

art. 37.071, Section 2(g). Sonnier was sentenced

under the amended version of the article and now

challenges its constitutionality.

I. The Eighth Amendment Claim

In its last term, the United States Supreme

Court, referencing Furman v. Georgia, 408 U.S. 238

(1972) and Gregg v. Georgia, 428 U.S. 153 (1976),

explained that a state capital sentencing system

must satisfy two requirements in order to be

constitutionally permissible. Kansas v. Marsh,

126 S.Ct. 2516, 2524-25 (2006). First, it must

“rationally narrow the class of death-eligible

defendants.” Id. at 2524. Second, it must

11
See TEX. CODE CRIM. PRO. ANN. art. 37.071, Section
2(f)(2).

39
“permit a jury to render a reasoned,

individualized sentencing determination based on

a death-eligible defendant’s record, personal

characteristics, and the circumstances of his

crime.” Id. at 2524-25. “So long as a state

system satisfies these requirements, our

precedents establish that a State enjoys a range

of discretion in imposing the death penalty. . .

.” Id. at 2525.

Sonnier argues that “the amended version of

article 37.071 regresses from the safeguards of

the former version and renders the imposition of

the death sentence arbitrary and erratic in

violation of the Eighth Amendment’s prohibition of

cruel and unusual punishment.” In essence,

Sonnier’s argument is that the removal of the

deliberateness special issue renders the Texas

capital sentencing system constitutionally

40
impermissible because, without consideration of

whether the defendant’s actions in committing the

crime were deliberate, the sentencing scheme fails

to rationally narrow the class of death-eligible

defendants. We do not agree.

In Kansas v. Marsh, the Supreme Court

addressed the constitutionality of the Kansas

capital sentencing scheme. Under KAN. STAT. ANN.

§ 21-3439, the death penalty is an option only

after a defendant is convicted of capital murder.

According to KAN. STAT. ANN. § 21-4624(e), a

defendant becomes eligible for imposition of the

death penalty as follows:

If, by unanimous vote, the jury finds
beyond a reasonable doubt that one or more
of the aggravating circumstances
enumerated in K.S.A. 21-4625 and
amendments thereto exist and, further,
that the existence of such aggravating
circumstances is not outweighed by any
mitigating circumstances which are found
to exist, the defendant shall be sentenced

41
 to death; otherwise the defendant shall be
sentenced as provided by law. (emphasis
added).

One of the aggravating circumstances enumerated in

KAN. STAT. ANN. § 21-462512 is that “the defendant

knowingly or purposely killed or created a great

risk of death to more than one person.” KAN.

STAT. ANN. § 21-4625(2).

The Court found that “[t]he Kansas death

penalty statute satisfies the constitutional

12
The complete list of exclusive aggravating factors is as
follows:
(1) The defendant was previously convicted of a in which the
defendant inflicted great bodily harm, disfigurement,
dismemberment or death on another.
(2) The defendant knowingly or purposely killed or created a
great risk of death to more than one person.
(3) The defendant committed the crime for the defendant’s self or
another for the purpose of receiving money or any other thing of
monetary value.
(4) The defendant authorized or employed another person to commit
the crime.
(5) The defendant committed the crime in order to avoid or
prevent a lawful arrest or prosecution.
(6) The defendant committed the crime in an especially heinous,
atrocious or cruel manner.
(7) The defendant the crime while serving a sentence of
imprisonment on conviction of a felony.
(8) The victim was killed while engaging in, or because of the
victim’s performance or prospective performance of, the victim’s
duties as a witness in a criminal proceeding.

42
mandates of Furman and its progeny because it

rationally narrows the class of death-eligible

defendants.” Marsh, 126 S.Ct. at 2526. As it

explained:

Kansas’ procedure narrows the universe of
death-eligible defendants consistent with
Eighth Amendment requirements. Under
Kansas law, imposition of the death
penalty is only an option after a
defendant is convicted of capital murder,
which requires that one or more specific
elements beyond intentional premeditated
murder be found. Once convicted of
capital murder, the defendant becomes
eligible for the death penalty only if the
State seeks a separate sentencing hearing,
and proves beyond a reasonable doubt the
existence of one or more statutorily
enumerated aggravating circumstances. Id.

The Texas capital sentencing scheme bears some

striking similarities to the Kansas scheme at

issue in Marsh. First, under both Texas law and

Kansas law, the death penalty is only an option

for those defendants convicted of the crime of

43
capital murder.13 Under Texas law, a person

commits capital murder if he commits murder14 and:

(1) the person murders a peace officer or
fireman who is acting in the lawful
discharge of an official duty and who the
person knows is a peace officer of
fireman;

(2) the person intentionally commits the
murder in the course of committing or
attempting to commit kidnaping, burglary,
robbery, aggravated sexual assault, arson,
obstruction or retaliation, or terroristic
threat under Section 22.07(a)(1), (3),
(4), (5), or (6);

(3) the person commits the murder for
remuneration or the promise of

13
Compare TEX. CODE CRIM. PRO. art. 37.071 with KAN. STAT.
ANN. § 21-3439.
14
Under Texas law, a person commits murder if he:
(1) intentionally or knowingly causes the death of an
individual;
(2) intends to cause serious bodily injury and commits an
act clearly dangerous to human life that causes the death of
an individual; or
(3) commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the
commission or attempt, he commits or attempts to commit an
act clearly dangerous to human life that causes the death of
an individual.
V.T.C.A, Penal Code § 19.02(b)(1).

44
remuneration or employs another to commit
the murder for remuneration or the promise
of remuneration;

(4) the person commits the murder while
escaping or attempting to escape from a
penal institution;

(5) the person, while incarcerated in a
penal institution, murders another:
(A) who is employed in the operation of
the penal institution; or
(B) with the intent to establish,
maintain, or participate in a combination
or in the profits of a combination;

(6) the person:
(A) while incarcerated for an offense
under this section or Section 19.02,
murders another; or
(B) while serving a sentence of life
imprisonment or a term of 99 years for an
offense under Section 20.04, 22.021, or
29.03, murders another;

(7) the person murders more than one
person:
(A) during the same criminal transaction;
or
(B) during different criminal transactions
but the murders are committed pursuant to
the same scheme or course of conduct;

45
 (8) the person murders an individual under
six years of age; or

(9) the person murders another person in
retaliation for or on account of the
service or status of the other person as a
judge or justice of the supreme court, the
court of criminal appeals, a court of
appeals, a district court, a criminal
district court, a constitutional county
court, a statutory county court, a justice
court, or a municipal court.

V.T.C.A. § 19.03. This distinction between

capital murder and other categories of murder is

the initial narrowing of the class of persons who

may potentially face the death penalty.

Second, under both the Texas and Kansas

schemes, once a defendant is convicted of capital

murder, he becomes eligible for the death penalty

only if the State seeks a separate sentencing

hearing. Compare TEX. CODE CRIM. PRO. art. 37.071

with KAN. STAT. ANN. § 21-4706.

Additionally, under both state schemes, the

46
government must prove beyond a reasonable doubt

the existence of one or more statutorily

enumerated aggravating circumstances. Under the

Texas scheme, a defendant will be eligible for the

death penalty only upon a unanimous jury finding

that “there is a probability that the defendant

would commit criminal acts of violence that would

constitute a continuing threat to society.” TEX.

CODE CRIM. PROC. ANN. art. 37.071 (1991). This is

somewhat analogous to KAN. STAT. ANN. § 21-4624,

which requires the existence of one or more

aggravating circumstances for death sentence

eligibility.

Consequently, we conclude that the Texas

scheme, like the one in place in Kansas, is

constitutionally valid under the rationale

provided in Marsh, in that it rationally narrows

the classes of defendants determined to be

47
eligible and selected for the death penalty. The

Texas capital sentencing scheme, like the Kansas

system, limits the death penalty, first, to

defendants convicted of capital murder under one

or more of the aggravating circumstances inherent

in the definition of that crime, and, second, to

those capital murderers who are determined to be

eligible for the death penalty by virtue of the

jury’s finding of an additional aggravating

circumstance in respect to their character,

background, and crime, i.e., the probability that

they will commit criminal acts of violence that

would constitute a continuing threat to society.

In Thompson v. Lynaugh, 821 F.2d 1054 (5th

Cir. 1987), this court addressed an argument that

the pre-1991 version of Article 37.071 failed to

narrow the class of death-eligible defendants.

Specifically, Thompson argued that the

48
“deliberateness” special issue duplicated the

finding of an “intentional” killing at the guilt-

innocence phase of trial. In Thompson, the court

stated, “...[T]he Texas death penalty scheme

requires the jury to find at least one aggravating

circumstance-a future threat to society-that does

not duplicate any finding made at the guilt phase.

Hence, we need not reach the argument that the

special issue about ‘deliberateness’ duplicates a

guilt-phase issue.” Id. at 1059 (emphasis added).

The court went on to discuss two other cases,

Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985)

and Lowenfield v. Phelps, 817 F.2d 285 (5th Cir.

1987) that involved duplication arguments. The

Thompson court noted, “Thompson’s case is readily

distinguishable from both Collins and Lowenfield

by the existence of an alternative narrowing issue

at the penalty phase [future dangerousness].” Id.

49
at 1060. These statements by the Thompson court

indicate that a jury finding of the aggravating

circumstance of future dangerousness suffices to

satisfy the Eighth Amendment. As such, the

removal of “deliberateness” as a special issue has

no adverse constitutional effect upon a capital

defendant’s Eighth Amendment rights because the

amended article continues to require the finding

of an aggravating factor, i.e., future

dangerousness, as a safeguard against

arbitrariness.

Though the “deliberateness” special issue has

been removed, the imposition of the death penalty

under the amended article is not arbitrary,

erratic, wanton, or freakish. The amended Texas

capital sentencing scheme, by retaining the future

dangerousness special issue, continues, much like

the constitutionally-valid Kansas scheme in Marsh,

50
to rationally narrow the class of death-eligible

defendants, as mandated by of the Eighth Amendment

under Furman.

ii. The Fourteenth Amendment Claim

Sonnier also argues that the amended article

violates the Fourteenth Amendment’s Equal

Protection Clause. According to Sonnier, the

amended article treats those convicted of capital

murder prior to September 1, 1991 differently than

those convicted of capital murder after this date.

He further asserts in conclusory fashion that,

regardless of the level of review15 we employ, “the

change in the law violate[s] [his] Equal

Protection Rights. . . .”

The Government, on the other hand, argues that

this classification, differentiating between two

15
As discussed in detail infra, the levels of review are
strict scrutiny and rational basis scrutiny.

51
classes of defendants, is rational. According to

it, if Sonnier’s argument prevails, the

Legislature could never change a penal law or

procedure.

The Equal Protection Clause demands that

similarly situated persons be treated similarly

under the law. Plyler v. Doe, 457 U.S. 202, 216

(1982). However, the Supreme Court has explained

that:

[t]he Fourteenth Amendment's promise that
no person shall be denied the equal
protection of the laws must coexist with
the practical necessity that most
legislation classifies for one purpose or
another, with resulting disadvantage to
various groups or persons. We have
attempted to reconcile the principle with
the reality that by stating that, if a law
neither burdens a fundamental right16 nor

16
The Supreme court has explained that fundamental rights,
for equal protection purposes, are such rights as: a right of a
uniquely private nature, the right to vote, right of interstate
travel and rights guaranteed by the First Amendment.
Massachusetts Bd. of Retirement v. Murgia, 96 S.Ct.at 2566.

52
 targets a suspect class,17 we will uphold
the legislative classification so long as
it bears a rational relation to some
legitimate end.

Romer v. Evans, 116 S.Ct. at 1620, 1627

(year)(internal citations omitted). By contrast,

if a classification does target a suspect class or

impact a fundamental right, it will be strictly

scrutinized and upheld only if it is precisely

tailored to further a compelling government

interest. Plyler v. Doe, 457 U.S. at 217-18.

The purpose of the Equal Protection Clause is

to secure every person within the state’s

jurisdiction against intentional and arbitrary

discrimination. Village of Willowbrook v. Olech,

120 S.Ct. 1073, 1075 (2000). “Even if a neutral

17
A suspect class, as used in an equal protection analysis,
is one saddled with such disabilities, or subjected to a history
of purposeful unequal treatment, or relegated to such a position
of political powerlessness as to command extraordinary protection
from the majoritarian political process. Massachusetts Bd. Of
Retirement v. Murgia, 96 S.Ct. 2562, 2567 (1976). Examples of
suspect classes are those based upon race, ancestry, or religion.
Id.; Anderson v. Winter, 631 F.2d 1238, 1240 (5th Cir. 1980).

53
law has a disproportionately adverse impact. . .,

it is unconstitutional under the Equal Protection

Clause only if that impact can be traced to a

discriminatory purpose.” United States v.

Galloway, 951 F.2d 64, 66 (5th Cir. 1992)(quoting

Personnel Adm’r v. Feeney, 442 U.S. 256, 272

(1979)); see also United States v. Crew, 916 F.2d

980, 984 (5th Cir. 1990)(“It is well established

that showing of discriminatory intent or purpose

is required to establish a valid equal protection

claim.”). Discriminatory purpose, in this

context, implies that the decision maker selected

or reaffirmed a particular course of action at

least in part because of, not merely in spite of,

its adverse effects. Id.

As we begin our analysis, it is important for

us to remember the warning of the United States

Supreme Court: equal protection is not a license

54
for courts to judge the wisdom, fairness, or logic

of legislative choices. F.C.C. v. Beach

Communications, Inc., 113 S.Ct. 2096, 2101 (1993);

see also Ferguson v. Skrupa, 372 U.S. 726, 729

(1963) (“Under the system of government created by

our Constitution, it is up to the legislatures,

not the courts, to decide on the wisdom and

utility of legislation.”).

The first inquiry for this court is whether

the Texas legislature, in amending article 37.071,

established a classification at all. We find that

the omission of the deliberateness special issue

results in a classification among convicted

capital offenders, based upon the date of their

underlying crime. Those defendants facing a death

sentence prior to September 1, 1991, enjoyed the

advantage that the state was required to prove an

additional aggravating circumstance to show that

55
they were eligible for the death penalty;

specifically, the jury was asked to consider, in

deciding whether to impose the death penalty,

whether the defendant acted deliberately. By

contrast, those defendants facing a death sentence

after September 1, 1991, did not enjoy jury

consideration of the deliberateness special issue.

Our equal protection analysis cannot end here,

however, because mere classification does not of

itself deprive a group of equal protection of the

law. Carrington v. Rash, 85 S.Ct. 775, 778. We

must next determine whether Sonnier has carried

his requisite burden of showing the existence of

discriminatory purpose, which implies more than

intent as volition or intent as awareness of

consequences; it implies that the decision maker

selected or reaffirmed a particular course of

action at least in part because of, not merely in

56
spite of, its adverse effects. United States v.

Galloway, 951 F.2d at 66. We cannot find that

Sonnier has carried this burden because nowhere

has he even alleged an invidious purpose on the

part of the Texas legislature in amending this

article.

Furthermore, the Supreme Court has explained

the widely-accepted rule that “the 14th Amendment

does not forbid statutes and statutory changes to

have a beginning, and thus to discriminate between

the rights of an earlier and later time.” Sperry

& Hutchinson Co. V. Rhodes, 220 U.S. 502, 505

(1911).

IV. Conclusion

We cannot grant a COA to Sonnier. Sonnier has

failed to demonstrate that jurists of reason could

disagree with the district court’s resolution of

his constitutional claims or that jurists could

57
conclude the issues presented are adequate to

deserve encouragement to proceed further, as

required by the United States Supreme Court’s

interpretation of 28 U.S.C. § 2253(c)(2) in

Miller-El v. Cockrell.

In sum, we reject each of Sonnier’s arguments.

As to his ineffective assistance of counsel

claims, we recognize that counsel’s failure to

conduct an in-depth investigation for mitigation

evidence constitutes deficient performance under

Strickland’s requisite first prong. Nevertheless,

we find that Sonnier did not carry his burden of

showing that his attorneys’ deficient performance

prejudiced his death penalty defense under the

second requirement of Strickland. As for his

Simmons claim, following United States and Fifth

Circuit precedent, we hold that Simmons is

inapplicable to the Texas death penalty sentencing

58
scheme at issue in the instant case. Finally, the

Texas death penalty sentencing scheme does not

violate either the Eighth or Fourteenth Amendment.

It sufficiently narrows the death-eligible class

and does not deny Sonnier equal protection the

laws.

For these reasons, we deny Sonnier’s request

for a COA in its entirety.

59