IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-40573
KENNETH GENTRY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
________________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
(4:93-CV-153)
________________________________________________
August 12, 1996
Before GARWOOD, WIENER and EMILIO M. GARZA, Circuit Judges.*
GARWOOD, Circuit Judge:
Petitioner-appellant Kenneth Gentry (Gentry) appeals the
district court’s denial of his habeas petition challenging his
Texas conviction and death sentence for the capital murder of Jimmy
Don Hamm (Hamm). We affirm.
Facts and Proceedings Below
I. Pre-Trial Proceedings
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
On September 16, 1983, Gentry was arrested in Minnesota for
the September 10, 1983, murder of Hamm in Denton County, Texas. On
September 17, 1983, Denton County, Texas Sheriff’s Detective Alton
Davis (Davis) first met Gentry in Minnesota after his arrest. At
that time, Davis advised Gentry of his rights under Miranda v.
Arizona, 86 S.Ct. 1602 (1966), including the right to remain silent
and the right to have a lawyer present prior to and during
questioning. Gentry waived extradition and was returned to Denton
County, Texas; he was arraigned in Texas on the same day. Gentry
was again advised of his Miranda rights by the judge during the
arraignment. Gentry requested counsel during the arraignment, and
Gary Patton (Patton) was appointed to represent him.
On October 12, 1983, Gentry’s mother, Betty Inez Gentry (Mrs.
Gentry), delivered a handgun to Gentry in jail. Mrs. Gentry was
arrested, charged with introduction of a deadly weapon into the
jail, and was placed in jail. Mrs. Gentry was held in a cell
behind her son for approximately one month; he could hear
everything she said in the cell. After about a week in jail, Mrs.
Gentry began crying and begging Gentry to help her. According to
Gentry, his mother has physical health ailments, including
emphysema. Mrs. Gentry would cry and call out to Gentry most often
when the jail was sprayed for insects, apparently believing that
her jailers were trying to kill her. “[R]ight before” October 24,
1983, Gentry requested to be moved, but the police officers
2
responded that there was no other place to put him.
On October 23, 1983, Gentry asked Officer Baker if his mother
would be released (or put on probation) if he made a confession.
Officer Baker told Gentry “they probably would” make such a deal
but that he would have to speak to Davis. The next day, Officers
Baker and Wilson informed Davis that Gentry wanted to talk to him.
Davis knew that Gentry was represented by counsel and had made no
attempt to question him at any time since his September 17, 1983,
arraignment. After learning that Gentry wanted to discuss the
offense, Davis met with him and again informed him of his Miranda
rights, including his right to remain silent and the right to have
a lawyer present. Gentry confessed to Davis that he had murdered
Hamm, but when he was asked if he wanted to make a videotaped
confession, Gentry asked if it would help get his mother out of
jail. Davis said that he could not make any deals and that Gentry
would have to speak to the district attorney. Gentry never asked
to speak with his attorney or to have him present or notified.
In Davis’s presence, Gentry met with Assistant District
Attorneys Alan Levy (Levy) and Lee Gabriel at their office. When
Gentry asked if he could make a deal for his mother to be released
in return for his videotaped confession, he was informed that the
district attorney’s office would not make any deals with him. Levy
stated that whether Gentry gave a statement or not would have “no
impact whatsoever on [his] prosecution of the case.” After Davis
3
and Gentry left the district attorney’s office, Gentry told Davis
there was no reason for him to make a videotaped statement if his
mother would not be released. According to Gentry, Davis suggested
that if he made a videotaped confession, then Levy might make a
deal to let his mother out of jail. Davis did not recall the
specifics of the conversation. Gentry admits that he was never
promised any specific deal for making the videotaped confession.
Instead, he understood that, after he made a videotaped confession,
they would “discuss making a deal” about his mother. Gentry agreed
to make a videotaped confession and was again advised of his
Miranda rights before making the confession. He testified that he
understood at the time he made the statement that he had the right
to remain silent, that he had the right to have a lawyer present,
and that he had the right to terminate the interview at any time.
When the sound on the first videotape failed, Gentry gave his
confession on videotape a second time.1
After the second videotaped confession was made, Patton was
advised by the prosecuting attorney that Gentry had confessed and
that the charges would be elevated to capital murder. Two or three
days after Gentry made his confession on videotape, Patton visited
Gentry in jail and advised him of the prosecution’s offer: Gentry
1
In this videotaped confession, Gentry admitted to killing Hamm and
inculpated himself in other crimes. He claimed to have shot Hamm
three times (instead of two as the physical evidence at trial
showed). Gentry also claimed that he killed Hamm in response to
threats made by two unknown individuals.
4
could plead guilty to murder and receive a life sentence; if he
refused, then he would be re-indicted for capital murder. Gentry
refused the offer and was re-indicted for capital murder. At some
point after Gentry was re-indicted, Richard Podgorski (Podgorski)
was appointed to represent him as Patton’s co-counsel.
II. The State Murder-Robbery Trial
The guilt-innocence phase of Gentry’s trial began on February
29, 1984. The State rested the following morning, after calling
several witnesses and entering the videotaped confession into
evidence. The Texas Court of Criminal Appeals set forth the facts
of the offense as shown at trial:
“The appellant, Kenneth Gentry, and the deceased, Jimmy
Don Hamm, became acquainted when Gentry[2] gave Hamm, who
was hitchhiking, a ride into the Denton area. At the
time, Gentry was wanted by the authorities in connection
with several prior offenses, including an escape from a
Georgia prison. After a brief visit in Denton, Gentry
and Hamm left Texas, along with Gentry’s girlfriend and
sister.[3] They travelled to Georgia, where the two men
committed an armed robbery. The foursome then moved on
to Florida, then back to Texas, to Oklahoma, and then
came back to the Denton area, where Hamm’s body was later
discovered.
According to the testimony adduced at trial,
approximately two days prior to the offense, Gentry posed
the following hypothetical question to Harold Loftin
[(Loftin)], his uncle: ‘If you was [sic] going to
2
The name Gentry has been substituted here and subsequently for
“appellant” or “the appellant” in the excerpted portion of the
opinion, and we use the spelling “Hamm” instead of the Criminal
Court of Appeals’ spelling “Ham.”
3
We note that it appears from the record that Gentry’s girlfriend
and sister first joined Gentry and Hamm in Georgia, not Texas.
5
dispose of somebody, how would you do it?’ Loftin
obligingly replied, ‘I would find the most wooded, most
deserted area I could find and that’s where I would do it
. . . because I love the woods.’ Gentry’s sister
overheard the conversation between Gentry and his uncle,
and testified to the effect that her brother was seeking
a new identity at that time. Linda Patterson
[Patterson], Gentry’s girlfriend, testified that Gentry
told her he intended to assume the identity of [] Hamm
and find work in another state.
On the date of the murder, September 10, 1983,
Gentry and his travelling companions (sister [Violet Ann
Hayes (Hayes)], girlfriend and Hamm) arrived at the
trailer home of Gentry’s friend, Charles Goodman
[(Goodman)]. Also present were Gentry’s two brothers,
Calvin and Larry Gentry. According to the testimony, at
one point, when Hamm left the room for a few moments,
Gentry announced: ‘There goes my new I.D.’ A short time
later, a police car was seen driving down the road
adjoining Goodman’s property. Gentry’s sister, aware
that her brother was wanted by the Georgia authorities
for his prison escape and for the robbery he committed
with Hamm, ran to warn the two men. Momentarily, Gentry
and Hamm left in one vehicle, with Gentry’s two brothers
following in a truck.
According to the testimony admitted before the jury,
during the time the offense was to have occurred, Calvin
Gentry, Gentry’s younger brother, testified that he and
his brother Larry went to a local pool hall and ‘shot
pool for about two, three hours.’ While [Gentry’s]
brothers were at the pool hall, [he] took Hamm to a
remote part of Lake Dallas, ostensibly to engage in
target practicing with a pistol. The evidence indicated
that both Gentry and [] Hamm were intoxicated at the
time. Hamm finished firing the pistol and handed the gun
to Gentry. Gentry took the pistol and made as if he were
preparing to shoot toward a drink can he had thrown into
the lake. Rather than shooting the target, Gentry
abruptly swung around and shot Hamm once in the head and
once in the chest area. [] Patterson, Gentry’s
girlfriend, testified as to a conversation she had with
Gentry later that evening: ‘He [Gentry] asked me if I
knew what brains looked like. And I said ‘No.’ It
hadn’t got quite dark yet. He told me to look up, that
is what brains look like, like clouds . . . . [Gentry]
said him and [Hamm] were on the riverbank target
practicing. [Hamm] had just got through with his turn,
handed the gun to [Gentry], [Hamm] was doing something to
the bullets and [Gentry] pretended he was going to shoot
6
whatever they were shooting at. He swung the gun around
and shot [Hamm] twice in the chest. And [Hamm] fell down
and he shot him once through the head.’
Gentry and [the] state presented contradictory
versions as to whether the wallet was on Hamm’s person at
the time of the murder or whether Gentry removed the
wallet from the decedent’s back pocket after the killing.
Gentry then dumped Hamm’s body into the shallows of Lake
Dallas. It was recovered some four days later, after
being spotted floating face down in the lake by a
fisherman and his son. The autopsy revealed that the
decedent was shot twice: once in the left chest area and
once in the skull. According to the evidence, either
wound would have caused the death of the victim.
Following the murder, Gentry and his sister, and his
girlfriend fled to Austin, Minnesota, where they were
later arrested and returned to Denton County after
waiving extradition. Evidence obtained from
[Patterson’s] purse included Hamm’s wallet and several
items of identification bearing the name of [] Hamm.
In addition to the above testimony, in a videotaped
statement, Gentry confessed to the murder of [] Hamm by
shooting him with a pistol. According to Gentry, the
victim’s wallet was left on the dashboard of the car
while the two were target practicing.” Gentry v. State,
770 S.W.2d 780, 783-84 (Tex. Cr. App. 1988), cert.
denied, 109 S.Ct. 2458 (1989).
Defense counsel’s cross-examination of the State’s witnesses
was brief. They asked no questions at all of seven State
witnesses. Defense counsel made no opening statement to the jury
and called no new witnesses, choosing instead to recall three of
the State’s witnesses. Gentry’s case-in-chief was also quite
brief. The case was submitted to the jury on the afternoon of
March 1——the same day the prosecution rested its case-in-chief. On
March 2, 1984, the jury returned a guilty verdict against Gentry
for the robbery-murder of Hamm.
After the jury returned its verdict in the guilt-innocent
7
phase——and possibly as late as after the verdict in the punishment
phase——a psychiatrist hired by defense counsel evaluated Gentry.
The psychiatrist diagnosed Gentry with sociopathy and told trial
counsel that they would not want him to testify for their client.
The punishment phase of the trial began in the afternoon of March
2. The State called twelve witnesses and rested. Defense counsel
again made no opening statement and did not call any witnesses.
The jury returned a verdict later that afternoon, answering two
special issues: that Gentry acted deliberately and that there was
probability of future dangerousness. The trial court sentenced
Gentry to death on March 5, 1984.
III. Appeal and Post-Conviction Proceedings
Gentry was appointed counsel for his appeal (Podgorski and
Thomas Whitlock). After Gentry’s appeal, the Texas Court of
Criminal Appeals affirmed the conviction and sentence on November
23, 1988. Gentry v. State, 770 S.W.2d 780 (Tex. Crim. App. 1988).
Gentry’s conviction became final when the United States Supreme
Court denied certiorari on June 5, 1989. Gentry v. Texas, 109
S.Ct. 2458 (1989). Gentry’s execution was first set for August 1,
1989, but it was stayed to allow Gentry to file a post-conviction
application for a state writ of habeas corpus. Gentry, through new
counsel, filed a state habeas application on January 22, 1990. His
execution date was modified to March 20, 1990. The state trial
court, the same judge who had presided at Gentry’s trial, resolved
8
factual issues underlying petitioner’s claims on the basis of
attorney affidavits supplied by petitioner’s two trial counsel, and
entered findings and conclusions recommending denial of habeas
relief on March 9, 1990. The Texas Court of Criminal Appeals later
adopted these findings and denied habeas relief in an unpublished
opinion issued April 1, 1992. The United States Supreme Court
denied certiorari review of the denial of state habeas relief on
January 19, 1993.
Gentry, through the same counsel who represented him in the
state habeas proceedings, filed the instant petition under 28
U.S.C. § 2254 on June 28, 1993. The State responded, incorporating
a motion for summary judgment in its response on December 8, 1993.
Gentry filed a motion for summary judgment on February 23, 1994.
An evidentiary hearing was held on May 16, 1994. At the hearing,
the district court heard testimony from Gentry’s family members
regarding his childhood and relationship with his family, and
Gentry offered exhibits regarding his trial attorneys’ fees. The
district court ordered the hearing to be resumed on July 7, 1994.
Gentry continued his efforts to obtain certain evidence through
discovery. On June 15, 1994, the district court ordered the State
to answer Gentry’s interrogatories and to produce all available
documents requested in Gentry’s request for production. On June
27, the State provided some of the requested discovery, but it
claimed that most of the documents requested were reposed with the
Denton County District Attorney, who had provided all of the
9
documents in the county’s possession.
At the July 7, 1994, evidentiary hearing, the district court
heard testimony from one of Gentry’s trial counsel (Patton), his
sister Hayes, and L.D. Shipman (Shipman) of the Denton County
District Attorney’s Office. Shipman testified that while the
section 2254 proceeding was pending he had provided Gentry’s habeas
counsel with every requested item in the county’s possession, but
that some of the pages from the physical evidence file were
missing. The pages in the physical evidence file were hand-
numbered and were no longer in order. After the July 7 evidentiary
hearing, the district court ordered a final evidentiary hearing to
be held on December 16, 1994. On November 22, 1994, the district
court denied Gentry’s motion for summary judgment, and it granted
the State’s motion for summary judgment on all claims except the
claims of ineffective assistance of counsel and improper inducement
of his confession. Thus, the only remaining issues of fact to be
considered at the December 16, 1994, evidentiary hearing were
related to the ineffectiveness of Gentry’s trial counsel and
improper inducement of his confession. At the December 16 hearing,
the district court heard testimony from Gentry’s other trial
counsel (Podgorski), the psychiatrist retained by Gentry’s trial
counsel (Dr. Edwin Taboada (Taboada)), and prosecutor Levy.
The district court entered its final order denying all relief
to Gentry on April 12, 1995, and it denied his motion for
reconsideration on June 12, 1995. Gentry filed a notice of appeal
10
on June 29, 1995, and the district court granted a certificate of
probable cause on August 17, 1995.
Discussion4
I. Sixth Amendment Right to Counsel
Gentry argues that the state trial court erred by allowing his
videotaped confession to be admitted into evidence because it was
obtained in violation of his Sixth Amendment right to counsel.5
4
In its post-oral argument letter brief, the State relies on the
habeas corpus provisions of the Antiterrorism and Effective Death
Penalty Act of 1996. Because we affirm the denial of Gentry’s
petition on other grounds, we do not reach the issues raised by the
State in its letter brief.
5
Gentry also implies that the videotaped confession was involuntary
under the Fifth Amendment because it was improperly induced by (1)
improper promises that his confession would aid his mother’s case,
and (2) a false promise that giving a statement would not harm his
case. These implied arguments are without merit.
Gentry suggests that he was improperly induced to give his
confession by suggestions allegedly made by Levy and Davis that, if
Gentry confessed, his mother would be given more lenient treatment.
Gentry testified that he understood that prosecutor Levy and
Detective Davis would “discuss making a deal” regarding his mother
after he made a videotaped confession. He does not claim that any
specific promises were made to him by any police officer or
prosecutor. Prosecutor Levy denied suggesting that a deal might be
made if Gentry confessed on videotape. Davis, who was present
during the meeting between Gentry and Levy, testified that his
impression from the conversation was that no deals would be made.
The district court believed the State’s version of the facts. The
district court’s credibility determination is not clearly
erroneous. See United States v. Leal, 74 F.3d 600, 605 (5th Cir.
1996) (applying clearly erroneous standard to district court’s
credibility choices and findings of fact). Because Levy did not
suggest that Gentry’s mother might be released from jail if he
confessed on videotape, Gentry was not induced to confess by such
a suggestion by Levy. In contrast to Levy, Davis did not
specifically deny suggesting that Gentry’s mother might be treated
more leniently if he confessed. Davis stated that he did not
11
Specifically, he argues that the Sixth Amendment mandates the
presence and participation (or at least notification of) counsel in
an accused’s post-indictment decision to forego further assistance
of counsel. The State responds that the only pertinent inquiry is
whether, under a totality of the circumstances test, Gentry
voluntarily waived his Sixth Amendment right to counsel.
We have previously held that “[a] defendant [who is
represented by counsel] may waive his [Sixth Amendment] right to
counsel without notice to counsel.” Self v. Collins, 973 F.2d
1198, 1218 (5th Cir. 1992) (citation omitted), cert. denied, 113
S.Ct. 1613 (1993); see Mann v. Scott, 41 F.3d 968, 976 n.7 (5th
Cir. 1994) (recognizing and agreeing with holding in Self), cert.
recall making such a suggestion. Nevertheless, the fact that Levy
specifically told Gentry that he would make no deals, along with
the fact that Gentry knew that Davis had no authority to make a
deal with him, supports the district court’s implicit finding that
Gentry was not induced by any suggestion Davis may have made. The
district court’s implicit finding is not clearly erroneous.
Gentry also claims that he was improperly induced to provide
the videotaped confession by Levy’s statement that a confession
would have no impact whatsoever on the prosecution of his case
because this statement misled Gentry to believe that his confession
would not lead to the elevation of the charge against him from
murder to capital murder. As noted by the district court, Gentry
“has never testified that he operated under such a
misapprehension.” In addition, Levy testified that he:
“told [Gentry] I would not make a deal with him under any
circumstance. Matter of fact, I think part of the
conversation was the defendant indicated that rather than
go to prison he would rather get the death penalty. And
I told him that I would be happy to accommodate him.”
The district court credited Levy’s testimony, and its credibility
choice is not clearly erroneous. The context in which Levy’s
statement was made supports the district court’s finding that such
statement did not induce Gentry’s videotaped confession.
12
denied, 115 S.Ct. 1977 (1995). In Mann, we rejected an argument
identical to Gentry’s: that whether a defendant initiated any
communication with police is irrelevant because the State had a
duty under the Sixth Amendment to notify his counsel prior to
engaging in interrogation and obtaining a confession from him.
Mann, 41 F.3d at 976. We note that, even if we were inclined and
able to alter our previous rule, a habeas petitioner such as Gentry
would not be entitled to have such a new rule applied to his case
unless it were “dictated by precedent existing at the time [his]
conviction became final.” Id. (quoting Teague v. Lane, 109 S.Ct.
1061 (1989)). No such precedent exists.6
6
Massiah, Maine, and Brewer, relied on by Gentry, were each rendered
prior to our decision in Self. See Maine v. Moulton, 106 S.Ct. 477
(1985); Brewer v. Williams, 97 S.Ct. 1232 (1977); Massiah v. United
States, 84 S.Ct. 1199 (1964). Gentry also relies on Michigan v.
Jackson, 106 S.Ct. 1404 (1986), but Jackson was considered by this
Court in Mann. Mann, 41 F.3d at 975. Neither does Holloway v.
State, 780 S.W.2d 787, 795 (Tex. Cr. App. 1989), support Gentry’s
position. Holloway, a state court decision, would not dictate a
new federal constitutional rule to this Court. And Holloway was
rendered more than four months after Gentry’s conviction became
final, meaning that it could not have dictated the rule within the
appropriate time frame. Finally, we acknowledge that Holloway has
been interpreted to stand for the proposition that, once the Sixth
Amendment right to counsel attaches, “the police may initiate
interrogation only through notice to defense counsel, and a
defendant’s unilateral waiver of his Sixth Amendment right to
counsel is invalid under these circumstances.” Upton v. State, 853
S.W.2d 548, 553 (Tex. Cr. App. 1993) (en banc) (emphasis added).
But, because Holloway involved state-initiated questioning, it does
not necessarily support petitioner’s requested rule that under any
circumstances a
defendant cannot unilaterally validly waive his Sixth Amendment
right to counsel after such right has attached. See State v. Frye,
13
In fact, two Supreme Court cases have suggested that
petitioner’s requested rule should be rejected. First, the Supreme
Court stated in dicta in Patterson v. Illinois, 108 S.Ct. 2389,
2394 (1988)(citation omitted), that if the defendant had invoked
his right to counsel, then the State would have been prohibited
from questioning him further “unless the accused himself initiates
further communication.” Second, the Supreme Court described the
prophylactic rule prohibiting the admission of statements obtained
in violation of the Sixth Amendment right to counsel as applicable
when the State initiates the communication. Michigan v. Harvey,
110 S.Ct. 1176, 1177 (1990) (“once a criminal defendant invokes his
Sixth Amendment right to counsel, a subsequent waiver of that
right——even if voluntary, knowing, and intelligent under
traditional standards——is presumed invalid if secured pursuant to
police-initiated conversation”(emphasis added)).7 The extension of
897 S.W.2d 324, 327 (Tex. Cr. App. 1995) (applying Holloway to
state-initiated telephone conversations); Upton, 853 S.W.2d at 553-
54 (“[H]ere, it is undisputed that each statement resulted from
police-initiated interrogation.); Holloway, 780 S.W.2d at 795
(finding Sixth Amendment violation occurred pursuant to police-
initiated interrogation).
7
We reject Gentry’s argument that the Harvey language is inapposite
because Harvey allowed evidence admitted only for impeachment
purposes. While the Harvey decision does address the admissibility
of a confession for impeachment purposes, the distinction between
evidence admitted for impeachment purposes and that admitted as
substantive evidence has no bearing on the antecedent question
whether the evidence is obtained in violation of the Sixth
Amendment.
14
the prophylactic rule to exclude voluntary statements made in
defendant-initiated conversations with the State is not supported
by the precedent of this Circuit or the Supreme Court. Even if
this Court were to create such a new rule, Gentry could not benefit
from it because the rule did not exist prior to when his conviction
became final. The district court did not err in refusing to grant
the writ of habeas corpus on this ground. Consequently, the
question is whether, under the totality of the circumstances test,
Gentry voluntarily waived his Sixth Amendment right to counsel.
For this purpose we accept the district court’s findings of
historical facts, as those findings are not clearly erroneous, see
Mann at 975, and considering the totality of the circumstances, we
conclude, as did the district court, that the waiver was voluntary.
There is sufficient evidence to support the district court’s
finding that Gentry initiated his statement with the police. Davis
testified that Gentry informed officer Baker of his desire to speak
with Davis about the offense. Davis also testified that when he
met with Gentry he again informed him of his Miranda rights,
including the right to remain silent and to have an attorney
present. Gentry does not deny that he initiated the communications
with Davis, nor does he claim to have ever requested the
assistance, presence, or notification of counsel after he initiated
the communication with Davis. His only argument that he did not
validly waive his Sixth Amendment right to counsel——other than the
15
legal argument that he could not validly waive his right to counsel
without notice to counsel——is that he did not initiate the
communication with Levy because Davis suggested the meeting between
Gentry and Levy. His argument implies that a defendant’s
initiation of communications to one State actor does not allow
other state actors to then participate in the communications. We
reject such a distinction. See Michigan v. Jackson, 106 S.Ct.
1404, 1410 (1986) (“[T]he Sixth Amendment concerns the
confrontation between the State and the individual.”). Because
Gentry initiated the communication with the State, never indicated
any desire whatsoever to speak to his attorney (or have him present
or notified), and repeatedly disavowed his right to counsel, we
hold that the district court properly found a voluntary and valid
waiver of his Sixth Amendment right to counsel.
II. Brady Complaints
Gentry argues that the State improperly denied him access to
exculpatory material available to the State at trial, thus
requiring reversal under Brady v. Maryland, 83 S.Ct. 1194 (1963).
The Supreme Court held in Brady that the Due Process Clause is
violated when material evidence favorable to the accused is
withheld from the defense. Brady, 83 S.Ct. at 1196-97. To
establish a violation of Due Process under Brady, a defendant must
show that (1) the State withheld evidence (2) which was favorable
to the defense and (3) was material either to guilt or punishment.
16
Id.; Westley v. Johnson, 83 F.3d 714, 725 (5th Cir. 1996) (citation
omitted). Evidence is material under Brady if there is a
reasonable probability that disclosure would have resulted in a
different outcome. Kyles v. Whitley, 115 S.Ct. 1555, 1565 (1995);
United States v. Bagley, 105 S.Ct. 3375, 3383 (1985). A reasonable
probability is probability sufficient to undermine confidence in
the outcome. Kyles, 115 S.Ct. at 1566; Bagley, 105 S.Ct. at 3383.
Thus, Gentry must show the suppression of “favorable evidence
[that] could reasonably be taken to put the whole case in such a
different light as to undermine confidence” in the outcome. Kyles,
115 S.Ct. at 1566. He fails to meet this burden.
A. The missing pages
Gentry’s trial counsel specifically requested production of
certain pages from the State’s physical evidence file prior to voir
dire. The State refused to produce some of the specified pages.
The trial court denied Gentry’s request to order the State to
produce the pages, and it declined to review the pages in dispute.
The trial court did, however, specifically order the State not to
destroy or dispose of the disputed pages in order to preserve them
for appeal. The State is now unable to locate forty-two of the
disputed pages. Gentry argues that the forty-two missing pages
from the State’s physical evidence file should be deemed to be
exculpatory under the adverse inference rule.
The Supreme Court has expressed its unwillingness to impose an
17
absolute constitutional duty on police to retain and preserve all
material that might conceivably be significant evidence. Arizona
v. Youngblood, 109 S.Ct. 333, 337 (1988). Although generally
courts allow an adverse inference to be drawn from the destruction
of records, the destruction must have been committed in bad faith.
See Vick v. Texas Employment Comm’n, 514 F.2d 734, 737 (5th Cir.
1975). Mere negligence is not enough to trigger the inference. Id.
A similar adverse inference rule, grounded in the Due Process
Clause, may be applied against prosecutors in the criminal context,
and it, too, is only applied if the criminal defendant can prove
bad faith. See Youngblood, 109 S.Ct. at 337.
Gentry suggests that bad faith should be inferred in the
instant case because the State failed to preserve evidence pursuant
to a court order. The State’s failure to preserve evidence which
it has been ordered to retain might, in some cases, be one indicia
of possible bad faith, but all of the surrounding circumstances
must be considered in determining bad faith. See, e.g., Woodson v.
Surgitek, Inc., 57 F.3d 1406, 1418 (5th Cir. 1995) (considering
facts surrounding party’s refusal to comply with court orders to
find bad faith). The Brady claim was not raised in state court
(for good reason), and the district court made no express finding
regarding bad faith. Gentry points to two pieces of “evidence” of
the State’s bad faith——other than the State’s failure to preserve
the missing pages pursuant to court order. First, Gentry accuses
18
Levy of lying about having an open file policy during trial.
Second, he accuses the State of suppressing from his counsel “each
and every document in its files that reflected [the state]
investigators’ suspicion” of Loftin. Neither claim is supported by
the record.8 On the other hand, Shipman’s undisputed testimony
that the pages in the physical evidence file were all hand-numbered
and were out of order suggests negligence, not bad faith. We find
that Gentry fails to carry his burden of proving bad faith. See
Youngblood, 109 S.Ct. at 337. While the court’s order certainly
obligated the State to retain the now-missing evidence, and while
8
Levy testified that he had a general open files policy at the time
of Gentry’s trial, but that he could not guarantee what Gentry’s
trial counsel did or did not see. In contrast, Podgorski testified
that he had never seen certain specific documents. The district
court credited Podgorski’s more specific memory but did not find
that Levy had lied about the policy. We likewise do not view the
somewhat conflicting testimony as evidence that Levy lied about the
policy. Gentry points to no other “evidence” of Levy’s alleged
deceit, and we find none.
Nor does the record support Gentry’s assertion that the State
intentionally suppressed information implicating Loftin. Gentry
cites to Loftin’s affidavit to support this assertion. Loftin’s
affidavit is consistent with his testimony. Of all of the other
evidence which was withheld from Gentry’s trial counsel, only
Hayes’s statement implicates Loftin, and it does so only to the
extent that it repeats the assertion that Loftin told Gentry that
the woods would be a good place to kill someone. Loftin’s
suggestion of the woods as a killing place was before the jury at
trial through Loftin’s own testimony. The other suppressed
evidence includes a report of Loftin’s polygraph test, showing that
he truthfully answered questions that he was not involved in the
murder of Hamm, and taped interviews of Calvin Gentry, Larry
Gentry, and Patterson. None of this evidence implicates Loftin.
Thus, we find no record support of an intent to withhold evidence
implicating Loftin.
19
we do not condone the State’s negligent failure to do so, we reject
Gentry’s invitation to extend the adverse inference rule to cases
in which bad faith has not actually been proven.
B. Specific evidence
Gentry next points to two specific, allegedly exculpatory
pieces of evidence which were withheld from him at trial as Brady
violations. This evidence, according to Gentry, was material to
punishment because it would have allowed him to raise doubt about
robbery as the motive for the murder and to raise the possibility
of mitigating circumstances.
First, Gentry complains that statements attributed to himself
in the affidavit of David Travis (Travis) were not made available
to him. Travis was an inmate in the Denton County Jail, along with
Gentry, in September and early October 1983. Travis testified for
the State during the punishment phase of Gentry’s trial about
conversations he had with Gentry in jail regarding Gentry’s plan to
escape and kill his brothers and father for reporting him to the
police. Travis made a written statement to the State on October 4,
1983. The State did not provide this statement to Gentry. Gentry
argues that it was a violation of Brady to withhold Travis’s
statement because portions of the statement repeating three of
Gentry’s own statements are exculpatory. We reject this
20
contention. Even if the statement is exculpatory,9 it is not
9
Gentry does not claim that he could have impeached Travis with any
part of his statement. Instead he points to three particular
statements that Gentry himself made to Travis, and that Travis
repeated in his statement to the police, as exculpatory. Gentry
told Travis that: (1) Hamm left his billfold on the dashboard
during the murder; (2) Loftin came up with the idea of Gentry
killing Hamm for his identification and that Loftin suggested that
he kill Hamm soon; and (3) Gentry shot Hamm three times, instead
of two as the autopsy report showed. We doubt that the first two
of these statements are exculpatory at all.
Gentry’s statement that he was in possession of his brother’s
identification and that Hamm left his billfold on the dashboard
does not support an inference that he had no intent to rob Hamm
when viewed in context of the entire statement. The relevant
paragraph of Travis’s undisclosed statement follows:
“Gentry said that he was using his brother’s
identification for work, but the police found out that he
was living in a trailer over in Krum, so it was time for
him to get out of town. He and [Hamm] left in Gentry’s
car and went to Oklahoma, and spent a day and a night
there. Then they came back to Gentry’s uncle’s place.
He said the uncle’s name is Harold. The uncle came up
with the idea of Gentry killing [Hamm] and taking his
identification to use. Harold said to Gentry, ‘if you’re
going to do it, now’s the best time.’ He said that he
could [switch] ID with [Hamm], and then Harold would go
and identify the body as that of Gentry, and this would
take the heat off Gentry. Gentry said he was headed out
to do it right then.”
This statement cannot reasonably be viewed as providing an
inference that Gentry lacked the intent to rob Hamm. Similarly, no
reasonable juror could view the claim that Loftin initiated the
idea of killing Hamm for his identification as weakening the
State’s claim of a robbery motive.
We also find it doubtful that a reasonable juror could view
Loftin’s alleged initiation of the idea to kill Hamm as a
mitigating circumstance. Mitigating circumstances relevant to
punishment within the meaning of the Eighth Amendment include
evidence of “the defendant’s background and character [which will
support a] belief, long held by this society, that defendants who
commit criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be less
culpable than defendants who have no such excuse.” See California
v. Brown, 107 S.Ct. 837, 841 (1987) (O’Connor, J. concurring).
21
material. Travis’s statement is not material under Brady because
all of the allegedly exculpatory material is merely repeated from
Gentry himself. Gentry obviously had knowledge of the alleged
facts which he complains were withheld. A defendant cannot
establish a Brady claim based on withheld evidence if he already
has knowledge of it. See, e.g., Williams v. Scott, 35 F.3d 159,
163 (5th Cir. 1994), cert. denied, 115 S.Ct. 959 (1995) (“A Brady
violation does not arise if the defendant, using reasonable
diligence, could have obtained the information”); Blackmon v.
Scott, 22 F.3d 560, 564-65 (5th Cir.), cert. denied, 115 S.Ct. 671
(1994) (“The state is not required to furnish a defendant with
exculpatory evidence that is fully available to the defendant or
that could be obtained through reasonable diligence”); Duff-Smith
v. Collins, 973 F.2d 1175, 1181 (5th Cir. 1992), cert. denied, 113
S.Ct. 1958 (1993); May v. Collins, 904 F.2d 228, 231 (5th Cir.
1990), cert. denied, 111 S.Ct. 770 (1991). “Brady claims involve
‘the discovery, after trial of information which had been known to
the prosecution but unknown to the defense.’ United States v.
Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342
(1976).” Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994).
In Lawrence, we quoted with approval the following from United
States v. Jackson, 6 F.3d 911, 918 (2d Cir. 1993): “Evidence is
Loftin’s alleged initiation of the murder does not fit our
understanding of a mitigating circumstance.
22
not ‘suppressed’ if the defendant either knew, or should have
known, of the essential facts permitting him to take advantage of
any exculpatory evidence.” Lawrence at 257 (citation and internal
quotation marks omitted).10
Gentry next argues that it was a violation of Due Process
under Brady to withhold the statement of seven-year-old Jamie
Loftin (Jamie), Harold Loftin’s son. Jamie’s statement places
(Harold) Loftin at or near the scene of the crime on the day of the
murder, in direct contrast to Loftin’s own testimony. Assuming
that Jamie could have been qualified as a witness11 and would have
10
In addition, we also note that Gentry’s claims that Hamm’s billfold
was on the dashboard and that he shot Hamm three times were before
the jury in the form of Gentry’s confession. Merely cumulative
evidence is not material under Brady. Further, the allegedly
exculpatory portions of Travis’s statement are inadmissible hearsay
that was not reasonably likely to lead to admissible evidence. See
Wood v. Bartholomew, 116 S.Ct. 7, 10-11 (1995) (holding that
inadmissible evidence is not material for Brady purposes); Rumbaugh
v. State, 589 S.W.2d 414, 417 (Tex. Cr. App. 1979) (hearsay barred
in Texas criminal proceedings); Porter v. State, 578 S.W.2d 742,
748 (Tex. Cr. App. 1979) (trial court must abide by rules of
evidence, including hearsay, in punishment phase of capital murder
trial).
11
Although Jamie’s statement is inadmissible hearsay, it might still
be Brady material if there were a reasonable probability that it
could have changed the outcome (the death penalty) by leading to
other admissible evidence. See Wood, 116 S.Ct. at 10-11. Unlike,
Gentry’s own statements to Travis, there is no indication that
Gentry (or his counsel) knew that Loftin may have been at the crime
scene on the day of the murder. Gentry points to no source other
than Jamie that could have provided this information. Under Wood,
this Court cannot assume that Loftin himself would have recanted
and contradicted himself when faced with his son’s statement. See
id. at 10-11. It is possible, though not certain given Jamie’s
23
testified that Loftin was present at or near the crime scene on the
day of the murder, Gentry argues that this statement would have
allowed the jury to infer that Loftin was actually involved in the
murder. He further argues that implicating Loftin would have had
a two-fold effect. First, it could have cast doubt on the motive
of robbery. Second, it would have allowed the jury to consider
that Gentry might not be a future danger if he were locked in
prison away from the malignant influence of Loftin. Neither of
these arguments withstands examination.
Jamie’s statement provides evidence only that Loftin (and
Jamie) were at or near the scene of the crime on the day of the
murder. Considering the several witness statements that Gentry
said he wanted to obtain Hamm’s identification——in conjunction with
the fact that Hamm’s identification was in the possession of
Gentry, Hayes, and Patterson when they were arrested——Jamie’s
statement does not undermine our confidence in the jury’s
determination that Gentry’s motive for murdering Hamm was to obtain
his identification. Gentry’s argument that there is a reasonable
probability that the jury would have answered the future violence
issue negatively if they had evidence that Loftin was at the scene
confused musings during the cassette-taped interview of him, that
Gentry may have been able to qualify Jamie as a witness to testify
that he and his father were fishing at or near the crime scene on
the day of the murder.
24
of the crime earlier in the day is meritless.12
C. Cumulative effect of withheld evidence
Gentry argues that the district court erred by parsing the
undisclosed statements into their component parts and concluding
that each potentially exculpatory clause was not material. While
the Supreme Court has held that the cumulative effect of
undisclosed evidence must be considered as a whole, it noted at the
same time that the evaluation of the tendency and force of the
evidence must be done item by item. Kyles, 115 S.Ct. at 1567 n.10.
Thus, in sections II. A. & B. supra, we evaluated each item of
undisclosed evidence separately. Because Gentry is not entitled to
the adverse inference rule, the missing documents provide him no
support for a Brady error. Travis’s statement also lends no weight
to the cumulative effect of the alleged Brady error. Gentry’s
argument that the State violated the Due Process Clause by
withholding material, favorable evidence from him must rely solely
on Jamie’s statement. Our analysis of the cumulative effect of
Jamie’s statement is the same as our analysis of Jamie’s statement
alone. Its admission would not have provided a reasonable
probability of a different punishment. In summary, viewing all of
12
Gentry’s implied argument is that he would kill someone because his
uncle told him to. A jury is likely to find this itself to be
evidence of future dangerousness. There is certainly no reasonable
probability that a reasonable juror would find Gentry less culpable
than defendants who have no such “excuse.” See Brown, 107 S.Ct. at
841.
25
the suppressed evidence as a whole, the suppression does not
undermine our confidence in the outcome of the punishment imposed.
See Bagley, 105 S.Ct. at 3383. For these reasons, we find there
was no Brady error.
III. Ineffective Assistance of Counsel
Gentry argues that the district court erred in denying his
claim of ineffective assistance of trial counsel. To establish
this claim, Gentry must satisfy the two-prong test enunciated in
Strickland v. Washington, 104 S.Ct. 2052 (1984). First, Gentry
must prove that trial counsel’s performance fell below an objective
standard of reasonableness as measured by prevailing professional
norms. Id. at 2064. Second, he must also show that a reasonable
probability exists that, but for counsel’s unprofessional errors,
the outcome would have been different. Id.
Relying on evidence presented in three evidentiary hearings
before it, and without giving deference to the state habeas court
findings, the district court held that Gentry’s trial counsel’s
performance was deficient in, and only in, failing to cast doubt on
the state’s theory that the murder was committed during the course
of a robbery. But, the district court held that Gentry failed to
satisfy the second prong of the Strickland test to show prejudice
from this deficiency.
On appeal, Gentry restricts his argument of ineffective
26
assistance to counsel’s presentation of evidence at the sentencing
stage of trial, arguing that the prejudice he suffered was in
receiving the death penalty instead of incarceration. He points to
three areas in which his trial counsel’s performance was deficient
and prejudiced him: (1) failing to develop the possible role of his
uncle, Loftin, in the murder; (2) failing to develop, investigate,
and call witnesses to testify as to mitigating circumstances in his
past; and (3) failing to provide information to and call a medical
expert to testify that he would not be a danger in the future.
A. Harold Loftin’s role
Gentry argues that trial counsel’s failure to produce evidence
regarding “the implications of Harold Loftin’s involvement in the
offense” prejudiced him. He suggests two possible reasons this
failure may have prejudiced him at the sentencing stage: the jury
may reasonably have believed that Loftin (1) committed——or at least
participated in——the murder, leaving Gentry a less culpable role,
and/or (2) may have influenced Gentry to commit the crime, also
making Gentry less culpable. The State responds that cross-
examination of Loftin would not have resulted in Loftin’s admission
of a significant role in Hamm’s murder, that Gentry fails to
establish that any evidence of Loftin’s alleged role could have
been developed in any other manner, and that there is no reasonable
probability that the jury would have viewed such evidence as
lessening Gentry’s culpability to the extent that he would not be
27
a future danger.
1. A direct role in the murder for Loftin
The record reflects that boot prints and shotgun shell casings
were located near the scene of the murder. It also reflects that
there was evidence that Loftin left work on the day of the murder,
that he was wearing boots and carried a shotgun, that Loftin and
his son went fishing at or near the crime scene on the day of the
murder, that Loftin and his wife (Mrs. Loftin) were upset shortly
after the time of the murder, that Loftin and his wife were
concerned that Patterson might talk to the police, and that Mrs.
Loftin destroyed photographs in Hamm’s wallet after the murder and
described her plan to claim Hamm’s body as the body of Gentry.
As the district court noted, trial counsel’s decision not to
portray Loftin as a plausible suspect must be viewed in light of
the situation counsel actually faced. See Bouchillon v. Collins,
907 F.2d 589, 597 (5th Cir. 1990). “We must ‘indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance’ and that the ‘challenged action
might be considered sound trial strategy.’” Belye v. Scott, 67
F.2d 535, 538 (5th Cir. 1995) (quoting Strickland, 104 S.Ct. at
2065), cert. denied, 116 S.Ct. 1438 (1996). Gentry confessed that
he killed Hamm alone. There is no evidence that Gentry ever
repudiated his confession, to his lawyer or anyone else. Gentry
also told Hayes, Mrs. Loftin, Patterson, and Goodman that he had
28
committed the murder with no mention of Loftin’s presence, though
he did indicate that Loftin suggested that the murder take place in
a wooded area. The bullets which killed Hamm were .38 caliber,
consistent with the weapon carried by Gentry——not shotgun shells.
All of the evidence which might implicate Loftin in the murder is
also consistent with Gentry’s version of events. Neither Gentry
nor any other witness has ever testified or furnished an affidavit
saying either that Loftin was in fact present at (or participated
in) the murder of Hamm or that Gentry (or anyone else) ever so
informed any of Gentry’s lawyers. Though there was some indication
that Loftin may have lied about being at the scene of the crime on
the day of the murder, the statement placing him at or near the
scene did not implicate him in the murder. There is to this day no
evidence that Loftin was present at, or directly participated in,
the murder of Hamm. We agree with the district court that
“an agonistic stance toward Loftin might well have
injected damaging evidence against petitioner. The jury
might have heard of [Mrs.] Loftin’s destruction of Hamm’s
photographs from the billfold, and her plan to claim
Hamm’s body as the body of Gentry. Such evidence, not
introduced at trial, would have bolstered the state’s
theory that the object of the murder was a new identity
for petitioner. . . . [A] strategy to implicate Loftin
would have fortified Gentry’s motive for murder without
shifting the responsibility for the murder convincingly
to Loftin.”
Gentry fails to carry his burden of showing either that counsel’s
performance was deficient in this respect or that any reasonable
probability exists that Gentry would not have been given the death
29
penalty if his trial counsel had attempted to implicate Loftin
directly in the murder.
2. Loftin’s bad influence
Gentry argues that there is a reasonable probability that the
jury would not have sentenced him to death if counsel had informed
the jury of Loftin’s adverse influence on him since he was a young
teenager. Gentry points to no specific evidence of this bad
influence on appeal. There is record evidence that Loftin was
involved with Gentry’s burning of a car that Gentry stole from a
neighbor. There is also evidence that Loftin gave Gentry advice
about where to kill Hamm and may have given him the idea to do it.
We agree with the district court that
“[i]n order to have further explored the extent of
[Loftin’s bad] influence, counsel would have been
required to detail joint criminal enterprises conducted
in the past by Loftin and Gentry. Any marginal benefit
accruing from such a strategy would have to be weighed
against the resulting damage . . . .”
Because any evidence of Loftin’s bad influence would likely have
also shown Gentry’s own bad acts, Gentry has not shown either that
counsel’s performance was deficient in this respect or that there
is any reasonable probability that, by counsel’s addressing
Loftin’s bad influence on him, Gentry could have avoided the death
penalty. Gentry fails to show either defective performance or
prejudice from counsel’s failure to implicate Loftin directly in
the crime.
30
B. Witnesses of childhood hardship
Gentry complains that trial counsel failed to provide
effective assistance by failing to interview witnesses and present
mitigating evidence of his childhood hardships, including alcoholic
parents, childhood physical abuse, attempted suicide, several
successful suicides in his family, psychiatric problems from
adolescence, and periodic black-outs since infancy. Ineffective
assistance of counsel results from counsel’s failure to interview
witnesses only where a petitioner demonstrates that counsel would
have found witnesses to support the defense theory, and that, if
counsel had located and called the witnesses, they would have been
willing to testify and their testimony would have been favorable.
See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
The record shows that Gentry informed his counsel that he did
not want any of his family members to testify. A petitioner can
show no defective performance under Strickland by his counsel’s
failure to interview witnesses whom the petitioner has opposed
having testify. Amos v. Scott, 61 F.3d 333, 348-49 (5th Cir.),
cert. denied, 116 S.Ct. 557 (1995).13 Moreover, the district court
found, on the basis of clearly adequate evidence, that Gentry’s
trial counsel “were aware of the evidence regarding petitioner’s
traumatized youth and his mental, emotional, and physical problems,
13
Gentry fails to point to any nonfamily witnesses who could have
testified about his childhood traumas.
31
but made an informed tactical choice not to present such evidence”
based on “the state of Texas law at the time of petitioner’s
trial”——years before Penry v. Lynaugh, 109 S.Ct. 2934 (1989)——under
which counsel concluded “‘it would have only hurt him [Gentry].’”
The Court of Criminal Appeals in its habeas review, and the
district court below, both concluded that this was a reasonable
tactical decision under the circumstances. We agree. See, e.g.,
May v. Collins, 904 F.2d 228, 232 (5th Cir. 1990), cert. denied,
111 S.Ct. 770 (1991); id. at 234 (concurring opinion of Judges
Reavley and King). Counsel was not defective for failing to
anticipate Penry.14
Gentry has not shown defective performance under Strickland in
this respect.
C. Medical expert
Gentry complains of trial counsel’s failure to retain and
present a mental health expert during the sentencing phase because
such an expert could have presented the only scientific testimony
available to the jury on the issue of future dangerousness.
Defense counsel waited until the last day of trial——or perhaps the
last day of the sentencing phase——to have a psychiatrist, Dr.
14
Moreover, we note that Gentry’s failed attempted escape from the
jail was in part for the purpose of killing his father, brother,
and uncle, whom he believed had turned against him. His father
had contacted the authorities, and several of his family members
testified for the state. His mother was involved in the attempted
escape and had smuggled a gun to him.
32
Taboada, evaluate Gentry. Dr. Taboada met with Gentry one time,
for no longer than an hour. Counsel did not provide Dr. Taboada
with Gentry’s medical history, school history, psychiatric history,
or family history. Gentry argues that he was prejudiced by his
counsel’s failure to provide records and information to Dr. Taboada
because, after having access to the relevant information, Dr.
Taboada (1) was inclined to modify his original diagnosis to
include possible depressive disorder with genetic basis, (2)
explained that Gentry's family environment made it difficult to
"break [] through the cell . . . of this anti-social environment,”
and (3) stated that there was "hope" for Gentry because his
disorder is amenable to treatment. The State responds that
counsel’s failure to provide records to Dr. Taboada is irrelevant
because Dr. Taboada did not change his diagnosis of sociopathy or
his opinion that Gentry would be a future danger even after he
viewed all of the records. We agree with the State.
Dr. Taboada clearly stated that he would not alter his
diagnosis of sociopathy and that he still could not diagnose Gentry
with depressive disorder. He did state that, if he had been
provided the information regarding Gentry’s history, he would have
suggested further evaluations of Gentry to determine if he might
have some sort of genetic depressive disorder in addition to his
sociopathy. Dr. Taboada was still satisfied that Gentry is a
sociopath, and he explained that a person can simultaneously have
33
sociopathy and a depressive disorder. Dr. Taboada opined that
treatment of a person with both depressive order and sociopathy
might make the person feel better, but he would not say, despite
repeated questions, that the sociopathy could be treated.
According to Dr. Taboada, it is difficult to treat sociopathy, and
the treatment experience is largely negative.
Dr. Taboada also stated that, even after the information he
had received from habeas counsel about Gentry, he was still
satisfied with his original diagnosis that Gentry would probably
commit violent acts in the future. In response to Gentry's
attorney's question, Dr. Taboada equivocally stated that Gentry
might be less likely to commit violent crimes while in prison with
proper treatment and supervision, but he added that such a
statement was speculation.
Dr. Taboada, described by Gentry’s counsel as defense-
oriented, continues to opine that Gentry will commit violent crimes
in the future, with the caveat that if Gentry is locked up in
prison there is a chance to control his violent behavior. But even
this chance is mere speculation. Gentry has failed to show that
there is a reasonable probability that, if counsel had given Dr.
Taboada more information, his testimony would then have been
helpful and would have provided a reasonable probability of a
different punishment.
We reject Gentry’s ineffective assistance of counsel claims.
34
Conclusion
For the foregoing reasons, we AFFIRM the district court’s
denial of Gentry’s petition for habeas corpus relief.
AFFIRMED
35
Gentry v. Johnson
Court: Court of Appeals for the Fifth Circuit
Date filed: 1996-08-13
Citations: 95 F.3d 1149
Copy CitationsCombined Opinion