UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41477
ROBERT CHARLES LADD,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
October 24, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This appeal is from the denial of habeas relief concerning a
Texas capital murder conviction for which a death sentence was
imposed. Primarily at issue is whether the State’s request, as
permitted by Texas law, for a “jury-shuffle” at the start of jury
selection was impermissibly motivated by race. The district court
granted a Certificate of Appealability (COA) on two issues: (1)
whether Robert Charles Ladd was denied the right to a fair and
impartial jury because of the prosecution’s “shuffle” of the
venire; and (2) whether Ladd was denied effective assistance of
counsel at trial. AFFIRMED.
I.
On 25 September 1996, firemen responding to a fire in Tyler,
Texas, found the body of 38-year-old Vickie Ann Gardner. She was
on the floor in her apartment, her wrists bound together in front
of her. The fire had been started on or around Gardner’s body,
most likely on bedding that had been placed between her legs.
An autopsy revealed Gardner died as a result of strangulation
and had sustained blunt force trauma to the head. A vaginal smear
revealed the presence of spermatozoa. Gardner’s apartment had been
ransacked and several items were missing, including: a microwave
oven; a combination television and video recorder; and two
telephones.
The day firemen responded to the fire (25 September), Edwin
Wright pawned the missing combination television/video recorder and
one of the telephones. Wright testified he received the items from
J.T. Robertson.
Also that day, other items identified as Gardner’s were
recovered from Robertson’s apartment. Robertson testified: at
some point between 9:00 and 10:00 p.m. on 24 September, he received
the items from Ladd in exchange for five $20 “rocks” of crack
cocaine; early the next morning, Ladd returned with additional
items, for which Robertson gave Ladd two more $20 “rocks”.
Ladd was arrested the same day the items were recovered from
the pawn shop and Robertson’s apartment (25 September); various
2
pieces of jewelry on his person when he was arrested were
identified as Gardner’s. A fingerprint lifted from the microwave
oven that had been missing from Gardner’s apartment matched Ladd’s,
as did a palm print lifted from a kitchen cabinet in Gardner’s
apartment. Ladd had previously worked at, and been a client of, a
rehabilitation center where Gardner was employed. DNA tests
indicated Ladd was in the group that could have produced the
spermatozoa found in the vaginal smear.
On 23 August 1997, Ladd was convicted of capital murder under
four separate theories — the murder having taken place during the
commission of burglary, robbery, sexual assault, and arson. At the
sentencing phase, the State presented 11 witnesses, including
testimony that Ladd had previously committed a triple murder
(discussed in part II.B. infra) and testimony by two psychiatrists
that, in their opinion, Ladd constituted a continuing danger to
society. The defense did not present evidence at that phase.
The jury answered the special issues as follows: the killing
of Gardner was deliberate; there was a probability Ladd would
commit acts of criminal violence that would constitute a continuing
danger to society; and there was not sufficient mitigating evidence
to justify imposing a sentence of life imprisonment. On 27 August
1997, the trial judge sentenced Ladd to death.
In October 1999, the Texas Court of Criminal Appeals affirmed
Ladd’s conviction and sentence. Ladd v. State, 3 S.W.3d 547 (Tex.
3
Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). Ladd had
earlier filed for post-conviction relief in state court; on 11 June
1999, the trial court conducted an evidentiary hearing on his
application. On 15 December 1999, the Texas Court of Criminal
Appeals adopted the trial court’s proposed findings of fact and
conclusions of law and denied the application. Ex Parte Ladd, No.
42,639-01 (Tex. Crim. App. 1999).
Ladd filed for habeas relief in federal district court in
January 2001. The district court rejected, inter alia, Ladd’s
jury-shuffle and ineffective assistance claims and denied habeas
relief.
II.
From the numerous COA requests by Ladd, the district court
granted a COA on two: (1) the jury-shuffle denied him the right to
a fair and impartial jury; and (2) he received ineffective
assistance at trial. Along this line, Ladd asserts: (1) the Equal
Protection Clause and the right to a fair and impartial jury were
violated when the State was granted the shuffle of potential jurors
prior to jury selection; and (2) he received ineffective assistance
at the sentencing phase.
The district court’s legal conclusions are reviewed de novo;
its factual findings, for clear error. E.g., United States v.
Williams, 264 F.3d 561, 571 (5th Cir. 2001). Of course, review is
4
through the strictures imposed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA).
The federal habeas statute, as amended by AEDPA, requires a
great deal of deference to state court proceedings. A federal
court may not grant habeas relief to a state prisoner
with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim [in state
court]–
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding....
28 U.S.C. § 2254(d) (emphasis added).
In determining what constitutes an “unreasonable application”
of law under § 2254(d)(1), “‘[u]nreasonable’ does not mean merely
‘incorrect’: an application of clearly established Supreme Court
precedent must be incorrect and unreasonable to warrant federal
habeas relief”. Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.
2002) (emphasis in original) (citing Williams v. Taylor, 529 U.S.
362, 410-12 (2000)). Any state court factual findings are presumed
correct, and the unreasonableness, if any, of such findings must be
established by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
5
A.
The venire consisted of more than 200 persons. Ladd notes
that he is black; the victim, white. Relying on Batson v.
Kentucky, 476 U.S. 79 (1986) (peremptory strike to remove potential
juror on basis of race violates Fourteenth Amendment), Ladd
contends: Batson’s ban on the use of race as a ground for striking
potential jurors extends to a jury-shuffle, as employed at his
trial; and Batson was violated because the State requested and
obtained a shuffle of the venire in which seven of the first 34
potential jurors were black.
In his objection at trial to the requested shuffle, although
Ladd did not mention Batson or the Equal Protection Clause, he did
object on the ground that the racial make-up of the venire would be
altered. The State does not claim procedural default; and, on
direct appeal, the Court of Criminal Appeals addressed Ladd’s
Batson claim: it “[a]ssum[ed] arguendo that Batson extends to jury
shuffles”.
That court denied Ladd’s claim on the merits. The district
court held Batson not applicable to a jury-shuffle. Accordingly,
at issue is whether the Court of Criminal Appeals unreasonably
declined to find a Batson violation under this set of facts.
Texas procedure allows either side to request a shuffle of the
venire before voir dire:
6
The trial judge, on the demand of the
defendant or his attorney, or of the State’s
counsel, shall cause a sufficient number of
jurors from which a jury may be selected to
try the case to be randomly selected from the
members of the general panel drawn or assigned
as jurors in the case. The clerk shall
randomly select the jurors by computer or
other process of random selection....
TEX. CODE CRIM. PROC. ART. 35.11 (emphasis added). The purpose of the
shuffle is to prevent any perceived unfairness in the original
order in which the prospective jurors are seated; the parties have
a chance to view the venire and decide whether to request a
shuffle. E.g., Davis v. State, 782 S.W.2d 211, 213-14 (Tex. Crim.
App. 1989), cert. denied, 495 U.S. 940 (1990). In fact, the
opportunity to request a shuffle has been viewed as a protection
for the defendant. See, e.g., Jones v. State, 833 S.W.2d 146, 147-
48 (Tex. Crim. App. 1992). The jury may be shuffled only once; it
does not matter which side requested it. Id. at 148.
1.
As it did in district court, the State maintains that Ladd’s
Batson claim is barred by the non-retroactivity doctrine of Teague
v. Lane, 489 U.S. 288 (1989). The district court did not address
the Teague issue. Again, the Court of Criminal Appeals assumed
that Batson applies to a jury-shuffle.
Under Teague, federal courts may not create new constitutional
rules of criminal procedure on habeas review unless those rights
apply retroactively. According to the State, it would not be
7
possible to grant relief without applying a new constitutional rule
of criminal procedure (that Batson extends to jury-shuffles).
Where, as here, the “the State [argues] that the defendant seeks
the benefit of a new rule of constitutional law, [we] must apply
Teague before considering the merits of the claim”. Caspari v.
Bohlen, 510 U.S. 383, 389 (1994) (emphasis in original).
It is not immediately clear that Teague bars Ladd’s claim.
Teague prevents only new rules; applying Batson to a jury-shuffle
does not necessarily constitute a new rule. A new rule “breaks new
ground” or “imposes a new obligation”, Teague, 489 U.S. at 301, and
is not “dictated by existing law at the time [the defendant’s]
conviction became final”, Sawyer v. Smith, 497 U.S. 227, 237
(1990).
Although “new rule” has been defined quite broadly, see, e.g.,
Gray v. Netherland, 518 U.S. 152 (1996), applying an existing rule
to a different circumstance does not create a new rule where the
application is logical and foreseeable. See Stringer v. Black, 503
U.S. 222 (1992). There is considerable force to the contention
that the State was already obligated under Batson to select the
jury without using racial bias. Thus, to determine whether
applying Batson to a jury-shuffle is logical and foreseeable, we
must at least describe Ladd’s claim.
8
In addition, even if prohibiting the illegitimate use of race
in a jury-shuffle request were a new rule, doing so might be
justified under the second of the two exceptions to Teague. Courts
may create new constitutional law that will be retroactively
applied: (1) where the new rule “places certain kinds of primary,
private individual conduct beyond the power of the criminal law
mak[er]”; and (2) where the new rule adopts a procedure that is
“implicit in the concept of ordered liberty”. Teague, 489 U.S. at
307. The second exception is limited in scope to those procedures
“without which the likelihood of an accurate conviction is
seriously diminished”. Id. at 313.
Needless to say, a fair and impartial jury is implicit in the
concept of ordered liberty, see, e.g., Irwin v. Dowd, 366 U.S. 717,
721-22 (1961), as is the right to equal protection in the jury
selection context, see, e.g., Holland v. Illinois, 493 U.S. 474,
494 (1990) (exclusion of racial groups from jury service “at war
with our basic concepts of a democratic society and a
representative government”) (internal citations omitted). Thus, to
determine whether Ladd’s claim is Teague-barred, we must determine
the extent to which ordered liberty is infringed, if at all, by the
use of race in the decision to request a shuffle.
9
2.
Accordingly, for deciding whether Teague bars this Batson
claim, we must consider whether Batson should be extended to a
jury-shuffle. This is an issue of first impression.
The Supreme Court’s “Fourteenth Amendment jurisprudence
evinces a commitment to eliminate unnecessary and excessive
governmental use and reinforcement of racial stereotypes”. Bush v.
Vera, 517 U.S. 952, 985 (1996). Batson prohibits purposeful racial
discrimination by the prosecution in selecting the jury for three
reasons: (1) it violates the defendant’s right to equal protection
by denying him a fair and impartial jury of his peers; (2) it
denies the potential juror participation in jury service on account
of his race; and (3) it undermines public confidence in the
fairness of our system of justice. 476 U.S. at 86-87. For these
reasons, Batson stated it was “clear that the Constitution
prohibits all forms of purposeful racial discrimination in
selection of jurors”. Id. at 88 (emphasis added). If, as Ladd
claims, the prosecution requested a jury-shuffle to decrease the
chances that prospective jurors of a certain race would have the
opportunity to serve, it appears the prosecution may have violated
Batson’s ban on the use of race to select jurors.
On the one hand, the purposes behind Batson seem implicated by
jury-shuffling to disperse potential jurors of a particular race
who are near the front of the venire. Allowing this would hinder
10
efforts to achieve a fair and impartial jury, sanction an attempt
to exclude potential jurors on account of race, and diminish public
confidence in the fairness of criminal trials and convictions.
Further, we have previously suggested the requirement that jury
selection be race-neutral is not limited to the use of a peremptory
challenge. See McGinnis v. Johnson, 181 F.3d 686 (5th Cir.), cert.
denied, 528 U.S. 7125 (2000) (applying Batson to jurors’ being
excused); Wilson v. Butler, 813 F.2d 664 (5th Cir. 1987)
(suggesting Batson may apply to division of the venire).
On the other hand, Batson need not be read so broadly, and a
shuffle request does not mirror the use of a peremptory strike.
Unlike a peremptory strike, a jury-shuffle does not exclude any
venire member from serving on a jury on the basis of race. As the
district court stated:
It is counsel’s ability through the use of the
peremptory challenge to effect the deliberate
and complete exclusion of the African-American
venireperson from the venire which mandates
the articulation of [a] race-neutral
explanation. By contrast, the jury shuffle
acts randomly, and merely alters each
venireperson’s place in line, the result of
which may either lessen or increase the chance
that any one of them will be chosen for the
petit jury.
Ladd v. Cockrell, No. 1:99-CV-822, slip op. at 13 (E.D. Tex. 24
Oct. 2001).
Moreover, a jury-shuffle precedes jury-selection. Post-
shuffle, each side still has the opportunity to exercise its
11
peremptory challenges; and, if one side does so in a discriminatory
manner, the other side can object under Batson. In that regard, a
shuffle request where several members of one race are near the
front could be later used as evidence of discriminatory intent for
challenging peremptory strikes. See Henry v. Texas, No. 05-00-
01869-CR, 2002 WL 449700, at *3 (Tex. Ct. App. 25 Mar. 2002)
(unpublished).
Finally, the shuffle provides one opportunity for either side
to eliminate an extraordinary or unusual grouping of an observable
trait. Therefore, it may further, rather than undermine, the
public’s confidence in the proceeding.
In sum, as long as a requested shuffle is done once randomly
(pursuant to the statute), and is not repeated (contrary to the
statute), especially to obtain a certain grouping near the front of
the venire, the potential harm seems far less severe than that
imposed by the discriminatory use of a peremptory strike.
As our discussion indicates, reasonable arguments support both
positions on whether Batson applies to jury-shuffling. Along this
line, that reasonable jurists can disagree on whether Batson
extends to jury-shuffling suggests that Ladd’s claim is Teague-
barred. See Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999)
(internal quotation marks and citation omitted) (“Unless reasonable
jurists ... at the time [the] conviction became final would have
felt compelled by existing precedent to rule in [defendant’s]
12
favor, we are barred [by Teague] from doing so now.” (emphasis
added)). Moreover, the second (“implicit in the concept of ordered
liberty”) exception to Teague does not appear applicable. An
examination of the mechanics of jury-shuffling has demonstrated
that it cannot infringe the rights to a fair and impartial jury and
to equal protection as significantly as can the use of a peremptory
strike. Thus, applying Batson to jury-shuffling likely does not
constitute one of those procedures “without which the likelihood of
an accurate conviction is seriously diminished”. Teague, 489 U.S.
at 313.
In any event, two things are certain. First, because the
Texas Court of Criminal Appeals assumed Batson applies to jury-
shuffling, some of the primary reasons for a Teague-bar, such as
comity, are not in play. See Teague, 489 U.S. at 308. Second, as
discussed below, the holding by the Texas court that there was no
Batson violation is not unreasonable for AEDPA purposes.
Therefore, especially in the light of the reasonable positions on
both sides for whether Batson applies to a shuffle, we need not
decide the Teague issue.
3.
Assuming arguendo that Ladd’s Batson claim is not Teague-
barred and that Batson applies to jury-shuffling, Ladd fails to
show the Court of Criminal Appeals was unreasonable in holding
there was no Batson violation.
13
To prove a violation, the burden is on the “defendant who
alleges [discrimination] ... to prove the existence of purposeful
discrimination”. Batson, 476 U.S. at 93 (internal quotation marks
and citation omitted).
Once the [defendant] has made out a prima
facie case of racial discrimination (step
one), the burden of production shifts to the
proponent of the strike to come forward with a
race-neutral explanation (step two). If a
race-neutral explanation is tendered, the
trial court must then decide (step three)
whether the [defendant] has proved purposeful
racial discrimination.
Purkett v. Elem, 514 U.S. 765, 767 (1995).
In objecting to the State’s shuffle request, Ladd stated:
“Seven of the first several [potential jurors] are black panel
members, and this will change the racial makeup”. Out of “an
abundance of caution”, the trial judge asked the State to
articulate its reasons for the shuffle-request. Responding that
the request “had nothing to do with race”, the State offered the
following justifications: the first section of venire members
consisted of (1) a higher concentration of individuals with
criminal histories (“we have fourteen of the first forty-two
individuals that show some criminal history or same address”); (2)
not as many people wearing coats and ties; (3) only a small number
of elderly professional people; and (4) a probation officer the
State wanted to avoid having to strike.
14
Where, as here, the State “tender[ed] a race-neutral
explanation”, the question of the defendant’s prima facie case is
moot, and our review begins at step two. United States v.
Williams, 264 F.3d 561, 571 (2001). The State’s proffered race-
neutral explanation is a legal issue. Id. At this second step, we
“do[] not demand an explanation that is persuasive, or even
plausible”. Purkett, 514 U.S. at 767-68. The issue is whether
the explanation is facially valid: “Unless a discriminatory intent
is inherent in the prosecutor’s explanation, the reason offered
will be deemed race neutral”. Id. at 768. In other words, a
neutral explanation is based on something other than race.
Hernandez v. New York, 500 U.S. 352, 360 (1991).
There is no question that the State’s explanations were race-
neutral. Ladd contends: the explanation that there were more with
criminal histories among the first 42 potential jurors should “set
off alarms that these were code words for blacks”; and the
explanation that there were too few jurors with coats and ties is
“just another way of saying there were too many poor blacks”. We
disagree. To accept Ladd’s assertion that there is an inherent
connection between race and criminal history or race and clothing
would be to embrace the very stereotypes he condemns. Further,
even assuming Ladd could prove a correlation between race and
criminal history or race and poverty, disparate impact is “not ...
conclusive in the preliminary race-neutrality step”. Hernandez,
15
500 U.S. at 361 (Spanish-speaking ability a race-neutral
justification at step two). See also United States v. Webster, 162
F.3d 308 (5th Cir.), cert. denied, 528 U.S. 829 (1999) (having
relatives with criminal records race-neutral). The prosecutor’s
asserted reasons were race-neutral.
At step three, the decisive question is normally whether a
proffered race-neutral explanation can be believed. This ultimate
conclusion of discriminatory intent is a finding of fact.
Hernandez, 500 U.S. at 363. The burden of persuasion continues to
lie with the party making the claim of purposeful discrimination.
United States v. Montgomery, 210 F.3d 446, 453 (5th Cir. 2000). We
would tend to reverse if the State’s reasons were “fantastic or
inconsistent with its treatment of similar non-minority jurors”.
Williams, 264 F.3d at 572. Where its reasons are believable,
however, the inquiry is one of credibility. Id. Obviously, this
question of fact “turns heavily on demeanor and other issues not
discernible from a cold record, such that deference to the trial
court is highly warranted” (even if AEDPA did not apply). Id. The
trial court overruled Ladd’s objection and allowed the shuffle; the
Court of Criminal Appeals affirmed on direct appeal.
Under AEDPA, as previously stated, we presume the state
court’s factual findings are correct unless they would result in a
decision that is unreasonable in light of the evidence presented;
the unreasonableness, if any, must be established by clear and
16
convincing evidence. See 28 U.S.C. § 2254(d)(2), (e)(1). The
State’s asserted justifications are plausible, not fantastic, and
there is no evidence that black venire members were treated any
differently than whites. All were shuffled, not just the black
members; also, the similarly situated white members (those near the
front of the venire) were in the same position as the seven blacks
referred to by Ladd. In addition, when asked, the State was able
to back up its assertions; at Ladd’s request, it identified 13 of
the first 42 potential jurors (of more than 200) who had “some
criminal history or same address”. The State’s other explanations
appear similarly credible. Ladd simply has not established by any
evidence, much less the requisite clear and convincing evidence,
that the jury-shuffle request was based on race.
In sum, assuming Teague does not bar a Batson claim and Batson
applies, Ladd does not show under AEDPA that the Court of Criminal
Appeals was unreasonable in holding there was no Batson violation.
B.
In his state and federal habeas petitions, Ladd claimed
ineffective assistance of counsel. Ladd asserts trial counsel was
ineffective for failure to fully investigate mitigating evidence
and to present it at the sentencing phase.
The Court of Criminal Appeals, adopting the trial court’s
findings and conclusions, acknowledged that, for effective
assistance, defense counsel in a capital case has a duty to ensure
17
reasonable efforts are made to investigate potential mitigating
evidence. It determined: counsel did so; the investigation of
evidence did not fall below an objective standard of reasonableness
or violate any constitutional standards for effective assistance;
and Ladd received effective assistance of counsel at the sentencing
phase.
The district court similarly rejected the ineffective
assistance claim. Although the court concluded certain conduct by
defense counsel at the sentencing phase constituted deficient
performance, it held there was no reasonable probability that, but
for such performance, the result would have been different.
Because an ineffective assistance claim is a mixed question of
law and fact, we review de novo. E.g., Crane v. Johnson, 178 F.3d
309, 312 (5th Cir.), cert. denied, 528 U.S. 947 (1999). Again, we
may reverse only if the Texas court’s decision is “contrary to, or
an unreasonable application of, clearly established federal law” or
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). Ladd does not contest the state court’s
“determination of the facts”; therefore, at issue is only whether
the state court’s decision is “contrary to, or involved an
unreasonable application of” federal law. 28 U.S.C. § 2254(d)(1).
For determining under § 2254(d)(1) whether “clearly
established Federal law” has been unreasonably applied, in play are
18
the Sixth Amendment, entitling defendants to effective assistance
of counsel, and Strickland v. Washington, 466 U.S. 668 (1984) and
its progeny. See Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002).
For the well-known Strickland test for ineffective assistance, Ladd
must show: (1) counsel’s performance was deficient; and (2) that
performance prejudiced Ladd such that, absent such performance,
there is a reasonable probability that the result would have been
different. Strickland, 466 U.S. at 687.
1.
Ladd contends counsel was deficient for failing to investigate
and obtain mitigating evidence and for failing to present it during
the sentencing phase. Ladd points to counsel’s not obtaining
Ladd’s prior records from the Texas Department of Corrections
(which Ladd claims could have demonstrated his non-violent behavior
in prison), and not locating earlier juvenile records (which Ladd
claims could have, inter alia, helped explain his life as a child).
To establish deficient performance, Ladd must show counsel
“made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed ... by the Sixth Amendment”. Id. at 687.
Counsel’s performance is considered deficient if it “falls below an
objective standard of reasonableness”, as measured by professional
norms. Id. at 688. A court must, however, be “highly deferential”
of counsel’s performance and make every effort to “eliminate the
distorting effects of hindsight”, id. at 689; must “indulge a
19
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance”, id.; and “will not
find ineffective assistance of counsel merely because [it]
disagree[s] with counsel’s trial strategy”, Crane v. Johnson, 178
F.3d at 312.
It goes without saying that the Sixth Amendment requires
counsel to conduct a reasonably thorough, independent inquiry into
the defenses that might be offered in mitigation of punishment.
E.g., Baldwin v. Maggio, 704 F.2d 1325, 1332-33 (5th Cir.), cert.
denied, 467 U.S. 1220 (1984). “In assessing counsel’s performance
[at the sentencing phase], we look to such factors as what counsel
did to prepare for sentencing, what mitigating evidence he had
accumulated, what additional ‘leads’ he had, and what results he
might reasonably have expected from these leads.” Neal, 286 F.3d
at 237 (5th Cir. 2002).
Applying these factors to Ladd’s contention that counsel
should have presented evidence of his non-violent disciplinary
infractions in prison, we conclude that, in the light of AEDPA, the
Court of Criminal Appeals was not unreasonable in deciding that,
although counsel was aware of this evidence and chose not to
present it, his performance was not deficient. On the other hand,
as discussed below, its deciding that the failure to obtain Ladd’s
juvenile records was not deficient performance may have been
unreasonable under AEDPA.
20
With respect to the first factor (preparation for the
sentencing phase), counsel relied on the State’s broad subpoena to
the Texas Department of Corrections (“any and all records, files or
documents”) and did not independently subpoena documents. All
records the State received in response to the subpoena were
produced to Ladd’s counsel. His counsel had prepared a subpoena
for Ladd’s prison records but chose not to serve it after seeing
the records provided by the prosecution; Ladd’s counsel had
subpoenaed documents in prior cases and felt the State received
more documents in response to its subpoenas than did the defendant.
In addition to reviewing the documents provided by the State,
Ladd’s counsel made the following attempts to obtain mitigating
evidence: (1) counsel sent his investigator to Dallas, Texas, to
try to contact family members; (2) counsel or his investigator
spoke to all potential witnesses Ladd identified; and (3) counsel
used a psychiatrist to advise the defense on Ladd’s future
dangerousness and assist with development of defense theories.
Concerning the second factor (mitigating evidence
accumulated), it appears Ladd’s counsel obtained little if any.
Counsel did not present any evidence at the sentencing phase.
Although counsel took the above-described steps to gain mitigating
evidence, he concluded the defense had nothing to dispute the
State’s sentencing phase evidence. Counsel did have evidence of
Ladd’s prior non-violent incidents of misconduct while in prison,
21
but chose not to present such evidence, because counsel viewed it
as aggravating. The Court of Criminal Appeals determined Ladd’s
“counsel had no reliable, truthful, honest, and credible source of
evidence” to counter the State’s sentencing evidence.
With respect to the third factor (leads defense counsel had),
neither Ladd nor his family ever advised counsel that Ladd had been
sent to a juvenile facility (Gatesville State School) for an arson
conviction as a child, or that Ladd, while at that facility, had
been given a psychological evaluation, a prescription for a major
tranquilizer, and an IQ test. On the other hand, because the
subject came up at trial, counsel was aware that Ladd had been
arrested as a juvenile and that the prosecution’s file contained no
juvenile records.
Finally, regarding the fourth factor (results counsel might
reasonably have expected), counsel might reasonably have expected
to find mitigating evidence in Ladd’s juvenile record. Ladd
asserts that the records counsel failed to obtain (they were
obtained by his new habeas counsel) establish five points that
should have been presented as mitigating; the State responds the
records would not have assisted the defense.
The question, however, is not what following the lead would
have revealed, but rather “what results [counsel] might reasonably
have expected” from the lead. Neal, 286 F.3d at 237 (emphasis
added). Juvenile records may contain mitigating evidence (e.g.,
22
childhood abuse, childhood trauma, mental problems). See, e.g.,
Williams v. Taylor, 529 U.S. 362, 395 (2000) (juvenile records
showed defendant had been severely abused as a child and spent time
in foster homes, including an abusive foster home, while his
parents were imprisoned for criminal neglect). Without having
viewed Ladd’s juvenile record, his counsel could not reasonably
have presumed that Ladd’s record did not contain such evidence.
Relying on a district attorney’s “open file” policy is not, as
Ladd urges, per se unreasonable. See Strickler v. Greene, 527 U.S.
263, 282 n.23 (1999); Williams v. Head, 185 F.3d 1223, 1243 (11th
Cir.), cert. denied, 530 U.S. 1246 (2000). Here, however, where
counsel became aware of a juvenile arrest, the total lack of
juvenile records should have been noticed and investigated. In
this regard, we reject Ladd’s contention that the failure to
present any mitigating evidence is per se unreasonable, because
mitigating evidence may not exist. See Thomas v. Gilmore, 144 F.3d
513, 516 (7th Cir.), cert. denied, 525 U.S. 1123 (1999); McCleskey
v. Kemp, 753 F.2d 877, 900 (11th Cir.), aff’d, 481 U.S. 279 (1987).
The failure to obtain juvenile records, however, seems significant
when viewed against this absence, especially because this was a
capital case.
Thus, although counsel took steps to prepare for the
sentencing phase, his failure to follow a lead which could have led
23
to the discovery of mitigating evidence, coupled with his failure
to present any such evidence in this capital murder case, could be
considered objectively unreasonable. As noted, the Texas court’s
decision that counsel’s performance was not deficient may have been
unreasonable under AEDPA.
In any event, we need not decide this question. Regardless of
whether the decision was unreasonable for AEDPA purposes, we hold,
as discussed below, that the Texas court’s decision that there was
no prejudice to Ladd was not unreasonable under AEDPA.
2.
For the second (prejudice) prong for ineffective assistance,
Ladd must show a “reasonable probability that the result of the
proceeding would have been different but for counsel’s
unprofessional errors”. Crane, 178 F.3d at 312. For prejudice in
the context of failure to present mitigating evidence, Ladd must
show that, but for counsel’s error, his sentence would have been
“significantly less harsh”. United States v. Franks, 230 F.3d 811,
814-15 (5th Cir. 2000).
Ladd claims five types of information that could have been
ascertained had counsel subpoenaed his juvenile records: (1) his
troubled childhood and lack of supervision; (2) his mental
retardation diagnosis as a child; (3) his low score on an IQ test;
(4) his being put on (and doing well with) a psychomotor inhibitor
24
as a child; and (5) his good behavior in institutional settings.
According to Ladd, failure to present this evidence was
prejudicial, because its presentation could have resulted in a
lighter sentence.
First, some of the evidence to which Ladd refers is “double-
edged” (mitigating and aggravating). Although the evidence of
Ladd’s inadequate supervision as a child might permit an inference
that he is not as morally culpable for his behavior, it also might
suggest Ladd, as a product of his environment, is likely to
continue to be dangerous in the future. Moreover, although
presenting evidence that Ladd behaved well in juvenile detention
may have been somewhat mitigating (assuming the evidence would
reflect good behavior), it would have emphasized yet another arson
with sexual overtones in which Ladd had been involved. (Ladd was
sent to juvenile detention for setting a fire in his girlfriend’s
bedroom.) Thus, because some of the evidence to which Ladd refers
is “double-edged”, it is uncertain whether reasonable counsel would
have used the evidence had it been available; in any event, it is
unlikely to have had a significant mitigating effect had counsel
presented it.
In addition, the rest of the evidence is, at best, minimally
mitigating. The evidence of low IQ and/or mental retardation as a
child was undermined by evidence that Ladd had later obtained a GED
in prison and, as an adult, had obtained a second, higher IQ score.
25
The evidence that he had been treated with medication was
mitigating, but its effect was lessened by the doctor’s withdrawing
the medication after a month.
Finally, and most significantly, the evidence of Ladd’s future
dangerousness was overwhelming. When that is the case, it is
virtually impossible to establish prejudice. E.g., Strickland, 466
U.S. at 698 (no prejudice due to State’s overwhelming evidence on
aggravating factors supporting death penalty); Jones v. Johnson,
171 F.3d 270, 277 (5th Cir.), cert. denied, 527 U.S. 1059 (1999)
(no prejudice due to brutal facts of murder); Russell v. Lynaugh,
892 F.2d 1205, 1213 (5th Cir 1989) (no ineffective assistance
“[g]iven the weakness of such testimony when juxtaposed with the
overwhelming evidence of guilt, the horrifying nature of the crime,
and the abundant impeachment material available to the state”).
There is no question that the crime was extremely horrific and
the evidence of guilt overwhelming. Moreover, as noted, the
prosecution presented evidence during the sentencing phase that
Ladd had previously committed a triple murder: he sexually
assaulted an 18-year-old mother; stabbed her to death; and, as in
the murder in the case at hand, set a fire between her legs (her
two young children died from asphyxiation). That Ladd killed
Gardner some 16 years after having committed a similar crime
vividly demonstrates his future dangerousness. (As noted, two
psychiatrists testified that, in their opinion, there was a
26
probability that Ladd would be dangerous in the future; Ladd did
not testify.)
In the light of this overwhelming evidence, the modest
mitigating effect any evidence cited by Ladd could have had becomes
irrelevant. In short, there is no reasonable probability that
Ladd’s sentence would have been different had Ladd’s counsel
obtained, and decided to present, information contained in Ladd’s
juvenile records.
The Texas court was well-within the bounds of AEDPA
reasonableness in ruling that Ladd suffered no prejudice.
Therefore, the district court properly rejected Ladd’s ineffective
assistance claim.
III.
For the foregoing reasons, the denial of habeas relief is
AFFIRMED.
27
Ladd v. Cockrell
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