United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 9, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
______________________ Clerk
No. 04-70005
______________________
ROBERT JAMES CAMPBELL
Petitioner-Appellant
versus
DOUGLAS 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, Houston Division
(C.A. No. H-00-3844)
___________________________________________________
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
In 1991, Robert James Campbell was convicted of capital murder
and sentenced to death for the murder of Alexandra Rendon. On June
14, 1995, the Texas Court of Criminal Appeals affirmed Campbell’s
conviction and sentence on direct review. Campbell v. State, 910
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
S.W.2d 475 (Tex. Crim. App. 1995),1 cert. denied, 517 U.S. 1140
(1996). Campbell, through counsel appointed by the Court of
Criminal Appeals, filed a state habeas application raising two
grounds for relief.2 The Texas habeas court denied habeas relief
as to each of Campbell’s claims, and on March 8, 2000, the Court of
Criminal Appeals affirmed the lower court’s denial. In late 2000,
Campbell filed a timely petition for writ of habeas in federal
district court raising seven grounds for relief. The district
court denied Campbell’s petition in its entirety and refused to
grant a certificate of appealability (“COA”). Campbell v. Dretke,
H-00-3844 (S.D. Tex. March 20, 2003) [herinafter Ct. Op.]
Campbell now seeks a COA on six grounds: (1) denial of his
constitutional entitlement to a lesser-included offense
instruction; (2) constitutional error in instructing the jury on
the conspiracy law of parties during the liability phase of his
trial; (3) procedural default does not bar his claims that his
trial and appellate counsel provided ineffective assistance; (4)
ineffective assistance of trial counsel; (5) ineffective assistance
of appellate counsel; and (6) the federal district court’s denial
1
The Texas Court of Criminal Appeals only selected portions
of this opinion for publication. The entire case is No. 701491,
slip op. (Tex. Crim. App. June 15, 1995).
2
The two grounds for relief were: (1) Campbell was entitled
to a lesser-included offense instruction for murder, felony
murder, kidnapping, and aggravated sexual assault; and (2)
ineffective assistance of counsel for not presenting testimony by
a mitigation expert during the punishment phase.
2
of authorization for intellectual functioning testing. We DENY
Campbell’s application for a COA on all of his claims.
BACKGROUND
On January 3, 1991, Alexandra Rendon left her job at Bank One
between 10:00 and 10:30 p.m. She was wearing a white leather
skirt, a cream-colored dress coat with snake skin patches on the
shoulders, a high school graduation ring, an engagement ring, and
a watch. At 10:53 p.m. Ms. Rendon purchased gasoline at a Chevron
station located near her place of employment. The next day, Ms.
Rendon’s mother realized that her daughter was missing, and on
January 5, she contacted the police about her daughter’s
disappearance.
On January 14, 1991, the police picked up Lawrence Thomas,
Campbell’s friend of three years, for questioning. Thomas told the
police that Campbell had told him that he and his friend Lewis had
gotten a car from a lady at a gas station, driven her to a field,
and shot and killed her. On January 15, Thomas led the police to
the field where Campbell had told him that Ms. Rendon’s body was
located. On January 16, the police arrested Campbell for Ms.
Rendon’s murder.
At trial, the State presented several witnesses whose
testimony tied Campbell to the commission of Ms. Rendon’s murder.
Campbell’s friends Thomas, Carey Pennamon, and Jesse Criff all
testified that Campbell told them that he had shot and killed a
woman whose car he’d taken at a gas station. Campbell also
3
mentioned to two friends watching a news story about Ms. Rendon’s
murder, Otha Norton and Sheila Robeson, that Ms. Rendon looked like
the woman he’d shot and killed.
Additionally, Campbell told Thomas, Criff, and Pennamon that
he’d shot at Ms. Rendon twice, hitting her the second time. He
told Pennamon that he told her to “run, bitch run” before shooting
at her and told Thomas that he’d told her to walk away from the car
before shooting at her. He showed Thomas the field where he’d left
Ms. Rendon’s body, and described the location to Criff. That field
was where the police later recovered Ms. Rendon’s body.
The police also recovered many of Ms. Rendon’s belongings from
Campbell’s friends and family. They recovered the coat Ms. Rendon
had been wearing from Campbell’s mother Wilda, the class ring and
watch she had been wearing from Campbell’s girlfriend Demetrius
Brown,3 and the gun used to kill Ms. Rendon from Campbell’s friend
Pennamon. Pennamon testified that Campbell had asked him to hold
onto the gun. Campbell offered Ms. Rendon’s white leather skirt,
which Thomas had seen earlier in the car Campbell was driving, to
his friends Robeson and Norton. Robeson declined the skirt because
it was dirty and Norton later threw it away. Campbell told
Pennamon that he had taken the personal belongings of the woman he
had killed. Campbell also drove numerous friends, including
Thomas, Norton, and Robeson around in a car identical to Ms.
3
Pennamon had also seen Campbell wearing the ring a day or
so after Ms. Rendon’s disappearance.
4
Rendon’s.
The police recovered semen of two men from Ms. Rendon’s body.
Campbell told Criff that he had sex with his victim and told Thomas
that Leroy Lewis, who was with Campbell that night, had also had
sex with her. DNA testing further determined that 85.3% of
African-American males could be excluded from contributing the
semen attributed to Campbell,4 and only four percent of African-
American males could have contributed the semen attributed to
Lewis.
Although the draft jury charge contained instructions on
felony murder, murder, aggravated kidnapping, and aggravated
murder, the State objected to the inclusion of any lesser-included
offense instruction. The instructions given only allowed the jury
to return a verdict of not guilty or guilty of capital murder. The
jury found Campbell guilty of capital murder.
Punishment Phase
During the punishment phase, the State offered evidence of
other crimes Campbell had committed. Aside from judgments of
conviction against Campbell for two robberies, the State presented
evidence of two other carjacking crimes he committed about the time
of Ms. Rendon’s disappearance. In both instances Campbell
confronted persons getting into their cars, abducted them, took
them to a remote location, and stole their personal possessions.
4
The degraded nature of the DNA prevented more accurate
results.
5
In one instance, Campbell ordered the victim to walk away from the
vehicle and shot at him twice, missing both times. In the other,
Campbell’s accomplice talked him out of his plan to shoot the
female victim and drown her son in a nearby lake.
The defense called three family members and a friend to
testify on Campbell’s behalf. They testified that Campbell was
remorseful, needed rehabilitation, was loved by his family, and
would not be a future danger to society. On May 21, 1991, the jury
answered Texas’ special issues in a manner requiring the imposition
of a death sentence.
DISCUSSION
Campbell’s § 2254 habeas petition is subject to the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
because he filed his petition after its enactment. See Pub. L. No.
104-132, 100 Stat. 1214; Penry v. Johnson, 532 U.S. 782, 792
(2001). Under AEDPA, Campbell may not appeal the district court’s
denial of habeas relief until he has obtained a COA. 28 U.S.C. §
2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473, 478 (2000).
To obtain a COA, Campbell must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2000); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack, 529
U.S. at 483. Making such a showing requires Campbell to
demonstrate that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in
6
a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller-El, 537 U.S. at
336 (quoting Slack, 529 U.S. at 484). Our analysis “requires an
overview of the claims in the habeas petition and a general
assessment of their merit.” Id. Any doubt regarding whether to
grant a COA is resolved in favor of the petitioner, and the
severity of the penalty may be considered in making this
determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.
1997).
Where the lower court denied Campbell’s claims on procedural
grounds, a COA should issue only if Campbell demonstrates both that
“jurists of reason would find it debatable whether the petition
states a valid claim of a denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack, 529 U.S. at
484.
In our review of the district court’s determinations, we must
take into consideration that § 2254(d) of AEDPA requires a district
court to defer to a state court’s adjudication of a petitioner’s
claims on both pure questions of law and mixed question of law and
fact unless the state court’s determination was “contrary” to or an
“unreasonable application” of clearly established federal law as
determined by the Supreme Court. See Hill v. Johnson, 210 F.3d
481, 488 (5th Cir. 2000). A state court’s decision is contrary to
7
clearly established federal law when it “reaches a legal conclusion
in direct conflict with a prior decision of the Supreme Court or if
it reaches a different conclusion than the Supreme Court based on
materially indistinguishable facts.” Miniel v. Cockrell, 339 F.3d
331, 337 (5th Cir. 2003). Additionally, we must defer to the
state court’s factual findings unless they “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)(2). The state court’s factual findings are
presumed to be correct and petitioner “shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. 2254(e)(1).
I. Lesser-Included Offense
Campbell first seeks a COA on his claim that the state court
violated his due process rights as provided by the Supreme Court in
Beck v. Alabama, by not giving the jury a lesser-included offense
instruction for the crimes of sexual assault, kidnapping, felony
murder, and murder, when the evidence would support such a verdict.
447 U.S. 625 (1980). On review of an Alabama statute that
prohibited a lesser-included offense instruction in capital cases,
the Supreme Court stated that:
[W]hen the evidence unquestionably establishes that the
defendant is guilty of a serious, violent offense–but
leaves some doubt with respect to an element that would
justify a conviction of a capital offense–the failure to
give the jury the “third option” of convicting of a
lesser-included offense would seem inevitably to enhance
the risk of unwarranted conviction.
8
Id. at 637. However, “due process requires that a lesser-included
offense instruction be given only when the evidence warrants such
an instruction.” Hopper v. Evans, 456 U.S. 605, 611 (1982). Thus,
a lesser-included offense instruction will only be merited when
“the evidence would permit a jury rationally to find him guilty of
the lesser offense and acquit him of the greater.” Jones v.
Johnson, 171 F.3d 270, 274 (5th Cir.), cert. denied, 120 S. Ct. 29
(1999).
The Fifth Circuit’s interpretation of Beck requires a trial
court judge to consider all of the evidence in the case as a whole
in determining whether a rational jury could have found the
defendant not guilty of capital murder but guilty of a lesser-
included offense. Ransom v. Johnson, 126 F.3d 716, 726 (5th Cir.
1997); United States v. Harrison, 55 F.3d 163, 167 (5th Cir. 1995);
Montoya v. Collins, 955 F.2d 279, 286 (5th Cir. 1992).
Fifth Circuit precedent has held that the determination of
whether a defendant is entitled to a lesser-included offense
instruction is a factual determination made by the state court and
to be entitled to habeas relief, a petitioner must rebut the
state’s holding under the “clear and convincing evidence” standard
contained in § 2254(e)(1). Dowthitt v. Johnson, 230 F.3d 733, 757
(5th Cir. 2000), Robertson v. Johnson, 234 F.3d 890, 898 (5th Cir.
9
2000).5 We will address each requested lesser-included offense
charge that Campbell was denied.
1. Aggravated Sexual Assault or Kidnapping but not Capital
Murder
Campbell contends that a rational jury could have found that
he kidnapped and raped Ms. Rendon but still have reasonable doubt
as to whether he killed her. Thus, he argues that the Texas state
trial court violated his due process rights under Beck when it did
not instruct the jury on the offenses of aggravated sexual assault
and kidnapping. To support this contention, Campbell relies on the
medical examiner’s testimony that the body’s decomposition would
have been expected to reach a more advanced stage if it had been
lying where it was discovered from January 3 until January 15.
Based on the examiner’s testimony, Campbell argues, the jury could
have rationally found that although Campbell kidnapped or sexually
assaulted Ms. Rendon while stealing her car on January 3, someone
other than Campbell may have killed her and left her body in the
5
There is, however, a debate as to whether it is correct to
classify the issue of whether a defendant was entitled to a
lesser-included offense instruction as a question of fact or a
question of law. See Bryson v. Ward, 187 F.3d 1193, 1211 (10th
Cir. 1999) (Briscoe, J., concurring) (arguing that whether a
defendant is entitled to a lesser-included offense instruction is
a mixed question of fact and law). If we were to analyze this
issue as a mixed question of law and fact we would apply §
2254(d)(1) to decide whether the state court’s decision was
“contrary to, or involved an unreasonable application of, clearly
established Federal law.” Because we find that Campbell is not
entitled to a COA under either standard and we are bound by Fifth
Circuit precedent, we do not resolve the debate in this case.
10
field on a date subsequent to January 3, because her body would
have sustained more decomposition if she had been killed and left
in the field on January 3.
Although the district court stated that the medical examiner
testified “that the body’s decomposition would have been expected
to reach a more advanced stage...unless the temperature was cool,”
Ct. Op. at 37, the medical examiner actually said that even if the
temperature was cool “there would be changes more than what we have
here.” St. Rec. Vol. 59 at 519-20. Campbell also argues that
aggravated sexual assault and kidnapping instructions were
warranted because the murder weapon was discovered in Pennamon’s
possession rather than in Campbell’s.
It is not disputable that Campbell failed to present “clear
and convincing evidence” to rebut the state court’s determination
that he was not entitled to a lesser-included offense instruction.
Dowthitt, 230 F.3d at 757-58. The evidence before the jury showed
that in the days following Ms. Rendon’s disappearance, Campbell
repeatedly bragged to multiple friends that he had shot and killed
Ms. Rendon, and he was seen wearing her class ring. Moreover, he
gave her dirty clothing to his friends and family. Considering
these admissions, in light of the whole record, jurists of reason
would agree that a rational jury could not have found Campbell
guilty of sexual assault or kidnapping without also finding him
guilty of murder. Only by a contorted and irrational view of the
evidence could the jury have found that Campbell kidnapped or
11
sexually assaulted her and took her belongings on the day she
disappeared, but that she was murdered by an unidentified person
afterwards, although Campbell repeatedly bragged about being the
killer. We therefore deny Campbell’s request for a COA on this
claim.
2. Felony Murder but not Capital Murder
Campbell next contends that the jury may have rationally found
him guilty of felony murder rather than capital murder because it
could have had a reasonable doubt that he intended to kill Ms.
Rendon. Felony murder is a lesser-included offense of capital
murder. Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App.
1999). The distinguishing element between the two crimes is the
“intent to kill.” Id. Therefore, Campbell is only entitled to a
lesser-included offense instruction on felony murder if he can show
that the jury could rationally have found Ms. Rendon’s homicide
unintentional.
Campbell argues that the evidence shows that he shot at Ms.
Rendon with only the intent to terrify or wound her. In support of
this argument, Campbell points to the following facts: (1) the
scene of the murder was likely pitch black; (2) Campbell told Ms.
Rendon to run into the darkness, which would have made it more
difficult for him to shoot her; and (3) the bullet wound on Ms.
Rendon’s body was located on her upper hip rather than her head.
Of that evidence, the Texas court found that the only evidence that
12
tended to support Campbell’s theory was his claim that the shooting
occurred when it “may have been ‘pitch black,’” and that a rational
jury could have found that the darkness obscured his target to the
extent that his hitting her was unintentional. As the district
court explained, however, giving Ms. Rendon a chance to run into
the darkness before shooting her may have added “a sadistic element
of sport into the murder,” but not grounds for reasonable doubt as
to Campbell’s intent to kill Ms. Rendon. Ct. Op. at 32.
It is not debatable that the fact that it was dark when
Campbell shot Ms. Rendon is not sufficient clear and convincing
evidence to rebut the state court’s factual determinations.
Similarly, no reasonable jurist could argue, given the evidence,
that a rational jury could have found Campbell guilty of felony
murder but not capital murder; and it therefore cannot be
reasonably maintained that the state habeas court unreasonably
applied clearly established federal law. We therefore deny
Campbell’s request for a COA on this issue.
3. Murder but not Capital Murder
Campbell next contends that a properly instructed jury may
have rationally found him guilty of murder but not capital murder
because the jury could have had a reasonable doubt as to whether
Campbell intentionally caused Ms. Rendon’s death during the
commission or attempted commission of aggravated sexual assault or
kidnapping. Under Texas law, murder is defined as “intentionally
or knowingly caus[ing] the death of an individual.” TEX. PEN. CODE
13
§ 19.02(b)(1). Under Texas law, murder is a lesser-included
offense of capital murder, which requires that a defendant
intentionally cause the death of another while in the course of
committing or attempting to commit some other crime such as
aggravated sexual assault or kidnapping. TEX. PEN. CODE §
19.03(a)(2); Ex Parte McClelland, 588 S.W.2d 957, 959 (Tex. Crim.
App. 1979).
A. Aggravated Sexual Assault
Campbell argues that the jury could have harbored a reasonable
doubt with regard to whether he committed aggravated sexual assault
based on the following evidence: (1) Campbell told Thomas that
Lewis had raped Ms. Rendon, but did not confess to raping her
himself; and (2) while Campbell consented to providing the state
with body tissue and fluid samples, Lewis refused.
It is not maintainable that the evidence that Campbell, in his
conversation with Lewis, neither volunteered nor denied that he had
raped Ms. Rendon and that he provided a blood sample without the
state obtaining a warrant, rebuts the state court’s findings by the
clear and convincing evidence. Dowthitt, 230 F.3d at 757.
Similarly, it is not maintainable that the state habeas court’s
holdings were unreasonable in light of clearly established federal
law. Specifically, no rational jury could have convicted Campbell
of murdering Ms. Rendon but not sexually assaulting her. We
therefore deny a COA on this issue.
B. Kidnapping
14
Campbell argues that there was sufficient basis for a rational
jury to find that he killed Ms. Rendon without kidnapping her
because of Thomas’ testimony that Campbell said Ms. Rendon complied
when he “just told her to get in [her car]” with Campbell and Lewis
at the gas station, St. Rec. Vol. 58 at 145-46, because it tends
to create a doubt as to whether Campbell made her leave the gas
station with him by means of force, intimidation, or deception, as
would be required under Texas law to uphold a verdict of
kidnapping. As the district court properly noted, however, before
Thomas so testified, he had earlier told the police that Campbell
told him that he forced Ms. Rendon into the car. Furthermore, as
the district court properly explained:
Logic defies the assumption that Ms. Rendon, a bank
employee who stopped to get gasoline in her car after
leaving work at night, would voluntarily get into her
vehicle with two strangers, having not met them before
and with at least one of them carrying a gun, and then
proceed to an out-of-the-way location merely because one
of the men “just told her to get in it.”
Ct. Op. at 36.
We agree. It cannot be maintained that Campbell presented
clear and convincing evidence rebutting the state court’s findings.
Similarly, it is not maintainable that the state habeas court’s
holding was unreasonable in light of clearly established federal
law. We therefore deny a COA on this issue.
II. Jury Instructions on The Law of Parties During The Liability
Phase
Campbell’s next request for a COA relies on the Supreme
Court’s holding in Enmund v. Florida that it violates the Eighth
15
Amendment to execute someone for aiding in a murder that he himself
did not commit. 458 U.S. 782 (1982). He argues that based on the
holding in Enmund, he is entitled to a COA on the issue of whether
the inclusion of the “law of the parties” charge during the guilt-
innocence phase of trial led to a constitutional error during the
punishment phase. Id. Campbell argues that the trial court’s
instructions created a substantial risk that the jury answered the
special issues requiring imposition of the death penalty upon
Campbell without finding that Campbell killed, intended to kill, or
intended that a killing take place as required for a death sentence
to comport with the Eighth Amendment. Id.
Over Campbell’s objection, the charge submitted to the jury
during the guilt-innocence phase contained the following
instruction:
If, in an attempt to carry out a conspiracy to commit one
felony, another felony is committed by one of the
conspirators, all conspirators are guilty of the felony
actually committed, though having no intent to commit
it, if the offense was committed in furtherance of the
unlawful purpose and was one that should have been
anticipated as a result of the carrying out of
conspiracy.
St. Rec. Vol. 1 at 185.
During the punishment phase the trial court judge did not give the
jury an “anti-parties” instruction, specifying that conspiratorial
liability does not apply to the punishment phase and that Campbell
should not get the death penalty unless he personally killed Ms
Rendon.
16
Language identical to the language contained in the first
special issue in the instant case, however, has been held to
include the requirement of a jury finding of individual liability
during the punishment phase.6 Beyleu v. Scott, 67 F.3d 535, 543
(5th Cir. 1995); Andrews v. Collins, 21 F.3d 612, 630-31 (5th Cir.
1995). Furthermore, “th[e] structure of the punishment phase
reasonably lead[s] the jury to assume the law of the parties was
not applicable during this phase.” Westley v. Johnson, 83 F.3d
714, 723 (5th Cir. 1996).
Campbell’s attempts to distinguish prior Fifth Circuit cases
because the trial court judge instructed the jury to consider
evidence from both phases “in accordance with the previous
instructions of the court”7 fail for the three reasons clearly
stated by the district court. First, the jury instructions during
the punishment phase told the jury to make an “individualized
determination...of the personal culpability of...Campbell.” St.
Rec. Vol. 1 at 225. Second, the closing arguments by both sides
6
Special Issue No. 1 asked:
Was the conduct of the defendant, Robert James Campbell,
that caused the death of the deceased committed
deliberately and with the reasonable expectation that the
death of the deceased or another would result?
This Court, in Beyleu v. Scott, 67 F.3d 535, 543 (5th Cir. 1995),
and Andrews v. Collins, 21 F.3d 612, 630-31 (5th Cir. 1994), found
that asking whether “the conduct of defendant was committed
deliberately and with the expectation that death would result” in
the special issue requires the finding of individual liability.
7
St. Rec. Vol. 1 at 227.
17
informed the jury that deliberations during the punishment phase
must focus on Campbell’s conduct alone. Finally, the evidence
before the jury contained few details about Lewis’ personal
culpability in crimes other than rape of the victim.
As for Campbell’s argument that the trial court erred by not
including a conspiracy instruction in the application portion of
the jury charge, as the district court noted, Campbell does not
cite any case finding a federal right to such instruction and
Campbell is unable to tie the application paragraph to a federal
Enmund right. Because reasonable jurists would not debate the
correctness of the district court’s determination that the Texas
habeas court’s decision did not involve an unreasonable application
of clearly established federal law, we deny Campbell a COA on this
issue.
III. Procedural Default of Ineffective Assistance of Counsel Claims
In district court, Campbell asserted a habeas claim based on
ineffective assistance of his trial and appellate counsel on three
grounds. Campbell concedes that he did not raise in state court:
(1) trial counsel’s failure to object to, and request limiting
instructions regarding, the admission of certain hearsay testimony;
and (2) appellate counsel’s failure to raise several points of
error on direct appeal in state court.8 He recognizes that 28
U.S.C. § 2254(b) requires him to present and exhaust any habeas
8
We discuss the third ground below.
18
claim he may have in state court before bringing a habeas claim on
those grounds in federal court.9 Campbell argues, however, that he
can overcome that default by demonstrating cause for the defaults
and actual prejudice, which would excuse his procedural default.10
Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir.), cert. denied, 537
U.S. 1040 (2002).
To establish cause, Campbell asserts that his state appointed
counsel was ineffective in not raising those claims of ineffective
counsel in Campbell’s state habeas proceedings. He argues that
although there is no Sixth Amendment right to effective habeas
counsel, because Texas law provides for state appointed habeas
counsel,11 a due process right attaches to that state-created right
and protects Campbell from an arbitrary deprivation of that right.
He bases his argument on the Supreme Court’s decision in Coleman v.
Thompson, 501 U.S. 722 (1991), which held that an inmate generally
has no right to effective representations in post-conviction
proceedings, but expressly did not reach the question of whether
that reasoning also applied when the state habeas forum is the
9
Because Campbell has already brought a request for habeas
in state court, however, Texas’ abuse-of-the-writ doctrine would
prevent the presentation of these claims in a successive habeas
application. See TEX. CODE CRIM. PRO. art. 11.071 § 5(a).
10
Campbell does not rely on the “manifest injustice”
exception to procedural bar.
11
TEX. CODE CRIM. P. art § 2(a) states that a person seeking
habeas relief from imposition of the death penalty: “shall be
represented by competent counsel unless the applicant has elected
to proceed pro se....”
19
“first forum in which a federal claim can be raised.” Id. at 750.
Campbell is correct that the Supreme Court left that question
unanswered. As the district court properly noted, however, the
Fifth Circuit has consistently rejected the argument that
compliance with Texas’ statutory provision guaranteeing the
appointment of “competent” counsel in state habeas proceedings
mandates constitutionally effective representation even where, as
here, state habeas proceedings are the first forum in which
petitioner could assert such claims. Ogan, 297 F.3d at 357;
Martinez v. Johnson, 255 F.3d 229, 245 (5th Cir. 2001); In re Goff,
250 F.3d 273, 274-76, (5th Cir. 2001). This Court has clearly
stated that “ineffective assistance of habeas counsel cannot
provide cause for a procedural default.” Martinez, 255 F.3d at
241.
Other Circuits to address this issue similarly found
insufficient “cause” for a procedural default based purely on a
habeas petitioner’s collateral counsel’s ineffectiveness. See
Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir. 1997); Hill v.
Jones, 81 F.3d 1015, 1024-26 (11th Cir. 1996); Bonin v. Calderon,
77 F.3d 1155, 1159-60 (9th Cir. 1996); Nolan v. Armontrout, 973
F.2d 615, 616-17 (8th Cir. 1992). Accordingly, we conclude that
jurists of reason could not debate whether Campbell has made out a
claim of cause for his procedural default. The district court did
not err in denying Campbell a COA on the issue of ineffective
20
assistance of trial and appellate counsel. We therefore deny a COA
on Campbell’s claims that his counsel failed to object and request
limiting instructions regarding the admission of certain hearsay
testimony and failed to raise several points of error on direct
appeal.
IV. Ineffective Assistance During the Punishment Phase:
Campbell argues that he did present his third claim of
ineffective assistance of counsel in state court. He requests a
COA on the issue of whether he received constitutionally
ineffective assistance of counsel because his trial counsel did not
do an adequate investigation of mitigation evidence for the
punishment phase. In support of his claim, Campbell presents
affidavits by friends and family members describing Campbell’s
abused childhood and stating that Campbell’s attorneys had not
previously asked them about his childhood. The state argues, and
the district court found, that Campbell’s claim on this issue is
procedurally barred because he did not present those affidavits in
state court. Because the lower court denied Campbell’s claims on
procedural grounds, a COA should issue only if Campbell
demonstrates that “jurists of reason would find it debatable
whether the petition states a valid claim of a denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 484.
Exhaustion of Remedies in State Court?
21
“The exhaustion requirement is satisfied when the substance of
the habeas claim has been fairly presented to the highest state
court” so that a state court has had a “fair opportunity to apply
controlling legal principles to the facts bearing on the
petitioner’s constitutional claim.” Soffar v. Dretke, 368 F.3d
441, 465 (5th Cir. 2004).
Exhaustion inquiries are case and fact-specific and “dismissal
is not required when evidence presented for the first time in a
habeas proceeding supplements, but does not fundamentally alter,
the claim presented to the state courts.” Anderson v. Johnson, 338
F.3d 382, 387 n.8 (quoting Caballero v. Keane, 42 F.3d 738, 741 (2d
Cir. 1994)). But “[s]ubstantial evidence rising to a ‘180 degree
turn’ will render a claim unexhausted.” Id. at 389 n.26.
Furthermore, a petitioner has not exhausted his state claim when he
offers material additional factual allegations and evidentiary
support to the federal court that were not presented to the state
court. Dowthitt, 230 F.3d at 746; Barrientes v. Johnson, 221 F.3d
741, 761 (5th Cir. 2000); Graham v. Johnson, 94 F.3d 958, 968-69
(5th Cir. 1996).
Although Campbell’s state habeas petition stated that his
trial counsel did not do an adequate mitigation investigation, the
claim was in the context of arguing that counsel should have
presented the testimony of a mitigation specialist during the
punishment phase of Campbell’s trial. Specifically, in the state
22
habeas proceedings Campbell argued that he was:
[D]enied effective assistance of counsel during the
punishment phase of his trial when trial counsel failed
to adequately investigate [his] history, when such
historical information was essential in the preparation
of a biopsychological assessment by an expert in the area
of mitigation, thereby denying [Campbell] the opportunity
to present mitigating evidence during punishment.
His petition failed to allege what specific facts such an
investigation would have uncovered in Campbell’s case or any facts
tending to show that Campbell’s trial attorney did not investigate
Campbell’s background. He relied solely on the fact that his state
trial counsel did not present a mitigation expert’s testimony.
The state habeas court found that Campbell’s trial counsel’s
strategy to not use a mitigation expert was reasonable and that
trial counsel did present evidence of Campbell’s background that
was within the scope of the special issues submitted to the jury
during the punishment phase. Because in the state habeas
proceedings Campbell did not allege any other facts tending to show
that Campbell’s trial lawyer failed to investigate his background,
the state habeas court did not perform any further analysis.
Although Campbell now faults the state habeas court for not holding
an evidentiary hearing, he gave no indication to the state court
that he had any evidence that Campbell’s state trial counsel did
not investigate Campbell’s background.
Before the federal district court, Campbell argued not that
his state trial counsel should have investigated his background for
23
the purpose of presenting expert testimony, but alleged more
broadly that trial counsel was not adequately informed as to
Campbell’s background. For the first time in federal court
Campbell submitted affidavits by Campbell’s family and friends
stating that Campbell’s state trial counsel did not ask them about
Campbell’s background and describing various aspects of Campbell’s
childhood. Campbell’s state habeas counsel did not make any of
these allegations. Thus, as the district court explained, because
Campbell’s claim in federal court did “not focus on counsel’s
preparation of information to be used by an expert, but the
preparation of substantive evidence for trial...The expanded
breadth and divergent focus render Campbell’s current habeas claim
unexhausted.” Ct. Op. at 57.
Because Campbell’s state habeas claim only briefly mentioned
counsel’s failure to investigate Campbell’s background and instead
focused on counsel’s failure to present testimony from a
“mitigation expert,” Campbell’s claim took a “180 degree turn” in
federal court when he presented for the first time specific factual
allegations that Campbell’s state habeas counsel did not
investigate his background and allegations of the facts they would
have uncovered if they had. See Anderson, 338 F.3d at 389 n. 26,
Dowthitt, 230 F.3d at 746; Graham, 94 F.3d at 968. For those
reasons, reasonable jurists would not find debatable that the state
court did not have a “fair opportunity to apply controlling legal
principles to the facts bearing on the petitioner’s constitutional
24
claim” when Campbell presented no specific facts of a failure to
investigate Campbell’s background to the state court. Soffar, 368
F.3d at 465. Because Campbell’s arguments attempting to establish
“cause” for and “prejudice” from his procedural default are no
different than the arguments he asserted for his other claims of
ineffective assistance of counsel, they fail for the same reasons.
We therefore deny Campbell’s request for a COA on this issue.
V. Authorization for IQ testing
Finally, Campbell requests a COA on the issue of whether the
district court erred by not giving him funding to pursue his IQ
testing. Campbell’s original state and federal habeas petitions
did not allege that he was mentally retarded. Almost two years
after Campbell filed for habeas relief in federal court, the
Supreme Court held in Atkins v. Virginia that execution of mentally
retarded individuals is unconstitutional. 536 U.S. 304 (2002).
Prompted by that ruling, Campbell filed a successive state writ
application claiming for the first time that his death sentence was
invalid under Atkins because he was mentally retarded. After the
Texas Court of Criminal Appeals dismissed Campbell’s subsequent
application as an abuse of the writ, Campbell filed a motion in
this Court requesting authorization to file a successive federal
habeas petition pursuant to the “new rule” exception contained in
28 U.S.C. § 2244(b)(2)(A). This Court denied Campbell’s request
when it found that Campbell had not stated a prima facie case of
25
mental retardation under Atkins because he presented no evidence of
impaired mental functioning but only that he was “at risk” of being
mentally retarded. In re Campbell, 82 Fed. Appx. 349, 351 (5th
Cir. 2003).
After this Court denied Campbell’s request for authorization
to file a successive habeas petition, Campbell filed a motion with
the district court requesting funds for IQ testing under 21 U.S.C.
§ 848(q)(9).12 The district court denied Campbell’s motion on the
grounds that he could not authorize public funds for the
prosecution of a theory that the Court of Appeals has found
insufficient to support the filing of a successive habeas petition.
A lower court’s denial of a motion for authorization of funds
is reviewed for abuse of discretion. Riley v. Dretke, 362 F.3d
302, 304 (5th Cir. 2004). To be entitled to IQ testing, Campbell
must “show that he is indigent and that the requested assistance is
‘reasonably necessary’ for his representation.” Id. at 307.
And to be entitled to additional discovery, Campbell must show
“good cause.” Hill, 210 F.3d at 487; Rules Governing § 2254 Cases,
Rule 6(a). “Good cause” generally exists when a habeas petitioner
has “establish[ed] a prima facie claim for relief.” Id. (quoting
Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000)). Because
12
Section 848(q)(9) allows for the court to “authorize
[public funds for] a [capital] defendant’s attorney to obtain
services” that are “reasonably necessary for the representation
of the defendant.” 21 U.S.C. § 848(q)(9).
26
this court previously ruled that Campbell failed to make out a
prima facie Atkins claim and was therefore not entitled to file a
successive habeas petition before Campbell requested funds to
further investigate his claim, reasonable jurists would not find it
debatable that the district court did not abuse its discretion when
it denied Campbell funding for IQ testing. We therefore deny a COA
on this issue.
CONCLUSION
For these reasons, we DENY Campbell’s application for a COA on
all of his claims.
27
Campbell v. Dretke
Court: Court of Appeals for the Fifth Circuit
Date filed: 2004-12-09
Citations: 117 F. App'x 946
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