St. Aubin v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 21, 2006

Charles R. Fulbruge III
Clerk
No. 05-40277

KEITH MICHAEL ST. AUBIN,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Texas
(3:02-CV-397)

Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Keith Michael St. Aubin contests the denial of habeas relief

for his Texas-state-court conviction of, inter alia, murder, for

which he was sentenced to life imprisonment. Pursuant to our

highly deferential standard of review under the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214 (1996) (AEDPA), at issue is whether the following state-habeas

decision is unreasonable: St. Aubin’s lead trial counsel was not

ineffective at the trial’s punishment phase, for either his

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investigation of, or decision not to present, mitigating evidence

concerning St. Aubin’s mental-health history. AFFIRMED.

In February 1998, St. Aubin, then 19 years old and armed with

a loaded semi-automatic handgun, attended a street festival in

Galveston, Texas. Juan Garcia, who was attending the festival with

friends, felt someone push him and turned around to see St. Aubin.

A heated verbal argument and scuffle ensued between St. Aubin and

Garcia and his friends, ending with St. Aubin shooting the handgun

into the crowd, killing one person and injuring four. Witnesses

testified they did not observe Garcia or anyone with him possessing

or reaching for a weapon.

After the shooting, St. Aubin offered to pay two men to give

him a ride. St. Aubin told them he had just shot several people,

never mentioning that he feared for his life or that Garcia and his

friends had weapons. For safety reasons, the driver took the clip

from St. Aubin’s handgun while they were in the vehicle. On the

way to the destination, the vehicle became stuck; the driver sought

the assistance of police officers in the area. When the police

found the clip in the driver’s pocket, St. Aubin assaulted one of

the Officers.

At the trial’s guilt/innocence phase, St. Aubin claimed he

shot the victims in self-defense, after they surrounded him to

attack him. Although St. Aubin had an extensive history of mental-

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health problems, his lead trial counsel (LTC) did not include them

as part of the defense. A jury convicted St. Aubin of one count of

murder, four counts of attempted capital murder, and two counts of

assault on a public servant.

At the trial’s punishment phase, the State presented evidence

of St. Aubin’s bad reputation and character, including: deputies

testified about threats St. Aubin made in jail toward them and his

alleged suicide attempts; a fellow inmate testified St. Aubin

offered him money to help him execute an escape plan; and St.

Aubin’s high school coach testified St. Aubin did not have a

reputation as a peaceful, law-abiding citizen. St. Aubin’s LTC did

not call any witnesses. He maintained the shootings were not

premeditated but rather the panicked, impulsive reaction of a

frightened 19-year-old. In closing, the State argued St. Aubin’s

failure to present rebuttal witnesses confirmed his malicious

character. St. Aubin was sentenced to life for the murder and

attempted-murder convictions and ten years confinement for the

assault-on-a-public-servant conviction.

On appeal, St. Aubin claimed his LTC had been ineffective at

the trial’s guilt and punishment phases, by failing to develop and

present evidence of St. Aubin’s psychiatric conditions, which would

have both been relevant to his defense and mitigated his

punishment. In rejecting these claims and affirming St. Aubin’s

conviction and sentence, the intermediate court of appeals held:

“Nothing in the record shows counsel’s reasons for not offering the

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[medical] records, which also exposed multiple serious extraneous

bad acts. We will not speculate on those reasons”. St. Aubin v.

State, No. 01-98-01318-CR, 2000 WL 675705, at *1 (Tex. App. 25 May

2000). St. Aubin did not file a petition for discretionary review

with the Texas Court of Criminal Appeals (TCCA).

St. Aubin filed numerous state-habeas applications. Attached

to those applications were St. Aubin’s medical records from the

Galveston County Jail, West Oaks Psychiatric Hospital, and Dr.

Ronald Garb, his treating psychiatrist, and affidavits by the

following: Dr. Garb; Dr. Seth Silverman, a forensic psychiatrist

who examined and evaluated St. Aubin; Richard Burr, a lawyer and

claimed expert in penalty-phase representation; and St. Aubin’s

mother. The medical records showed hospitalization on two

occasions for psychiatric reasons and prescriptions for a number of

anti-psychotic medications. Evidence of St. Aubin’s mental

illness, aggression, isolated acts of violence, and other

incidences of anti-social behavior also were discussed in the

records, many of which St. Aubin’s mother had provided his LTC

prior to trial. The state-habeas trial court, without an

evidentiary hearing, recommended denial of relief.

The TCCA, however, concluded additional fact finding was

required to resolve the claimed ineffective-assistance-of-counsel

(IAC). Therefore, it remanded the proceeding to the state-habeas

trial court in order to have LTC explain why St. Aubin’s mental

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health, and its impact on his reaction to stress, had not been

presented at the trial’s punishment phase.

On remand, the state-habeas trial court ordered St. Aubin’s

LTC to address the IAC claim, including explaining why he did not

introduce evidence at the punishment phase showing St. Aubin had

prior mental problems that caused him to react in certain ways to

stress. In response, St. Aubin’s LTC submitted an affidavit in

which he: described his “extensive meetings” with St. Aubin and

his parents, discussing “all aspects of Mr. St. Aubin’s life,

background, and family history”; stated he was unaware of any prior

mental problems that would cause St. Aubin to react to stress in

ways that might explain the shootings; noted the double-edged

nature of mental-health evidence, in that it might diminish St.

Aubin’s blameworthiness but also indicate future dangerousness;

described his “strategic decision not to call any witnesses” at the

punishment phase; and stated that decision was made in consultation

with St. Aubin and his family.

The state-habeas trial court again recommended the denial of

habeas relief and made the following factual findings: (1) LTC

made a strategic decision not to call any witnesses at the

punishment phase to avoid opening the door to prior bad acts and

unadjudicated extraneous offenses; (2) although witnesses were

available to testify, after consultation with St. Aubin and his

family, LTC made a strategic decision not to call witnesses; (3)

LTC was unaware “of any evidence ‘of prior mental problems causing

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[St. Aubin] to react in certain ways to stress’” and such evidence

was not made known to counsel after extensive consultation with St.

Aubin and his family; and (4) if credible, meaningful mental-health

evidence had existed, LTC would nevertheless have struggled with

the strategic decision whether to present the evidence in

mitigation of punishment, for fear it would have been outweighed by

the danger of the State’s introducing evidence of bad acts and

extraneous offenses not previously introduced.

St. Aubin objected to the state-habeas trial court’s findings

and attached affidavits refuting LTC’s. Pursuant to the state-

habeas trial court’s findings, the TCCA denied St. Aubin’s habeas

application without written order.

Under 28 U.S.C. § 2254, St. Aubin sought federal habeas

relief, with two of his claims being for IAC. The magistrate judge

held an evidentiary hearing to determine the extent to which LTC

investigated St. Aubin’s mental-health history and reasons for not

introducing mental-health evidence at the punishment phase,

including testimony by LTC clarifying his state-habeas affidavit.

LTC testified that affidavit was intended to convey that, while he

was aware of St. Aubin’s mental-health issues, he did not view any

of it as mitigating, instead viewing it all as aggravating. Other

evidence introduced at the hearing included an audiotaped portion

of LTC’s conversation with Dr. Garb during the trial-preparation

period that contradicted Dr. Garb’s state-habeas affidavit that he

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never discussed St. Aubin’s psychiatric history with LTC. Dr. Garb

had advised LTC that St. Aubin’s psychiatric problems were

insufficient to raise an insanity defense because St. Aubin

understood the difference between right and wrong.

The magistrate judge’s extremely comprehensive report and

recommendation stated, inter alia: St. Aubin had not made the

necessary showing for habeas relief on his failure-to-investigate

claim — what a proper investigation would have revealed — because

he pointed only to information with which LTC was already familiar;

and, similarly, LTC’s decision not to call witnesses at the

punishment phase was not unreasonable, and, even if it were, St.

Aubin had failed to show the requisite prejudice.

In the light of St. Aubin’s objections to that report and

recommendation, the district court conducted a de novo review.

Pursuant to a detailed analysis of the record, it overruled the

objections, accepted the report and recommendation, and denied

habeas relief. St. Aubin v. Dretke, No. G-02-397 (S.D. Tex. 16

Feb. 2005). Shortly thereafter, by separate order and pursuant to

28 U.S.C. § 2253(c)(2), it granted a certificate of appealability

on the issues of whether St. Aubin received IAC based on LTC’s:

(1) investigation of his mental-health history; and (2) decision

not to present evidence of that history at the trial’s punishment

phase.

II.

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As noted, AEDPA governs St. Aubin’s 28 U.S.C. § 2254 habeas

petition. “AEDPA’s purpose [is] to further the principles of

comity, finality, and federalism”. Williams v. Taylor, 529 U.S.

420, 436 (2000). In pursuit of these principles, for a “claim that

was adjudicated on the merits in State court proceedings”, AEDPA

allows habeas relief only if “adjudication of the claim--”

(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)(1) and (2) (emphasis added). Accordingly, §

2254(d) permits a federal habeas court “to review only a state

court’s ‘decision,’ and not the written opinion explaining that

decision”. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en

banc), cert. denied, 537 U.S. 1104 (2003).

“A state-court decision is ‘contrary to’ federal law if it

relies on legal principles in direct conflict with prior Supreme

Court holdings, or if it reaches a different conclusion than that

reached by the Court on materially indistinguishable facts.”

Henderson v. Quarterman, 460 F.3d 654, 659 (5th Cir. 2006). A

state-court decision “involves an unreasonable application” where,

although “the state court correctly identifies the governing legal

principle ... [it] unreasonably applies it to the facts of the

8
particular case”. Bell v. Cone, 535 U.S. 685, 694 (2002). Simply

an erroneous or incorrect application of federal law is not

unreasonable; rather, the state-court’s application must be

objectively unreasonable. Rompilla v. Beard, 545 U.S. 374, 380

(2005).

The state-court’s determination of the facts on which it based

its decision is “presumed to be correct” in the context of § 2254

(d)(2). The habeas petitioner has “the burden of rebutting the

presumption of correctness by clear and convincing evidence”. 28

U.S.C. § 2254(e)(1).

An evidentiary hearing having been held in district court, its

findings of fact are reviewed for clear error; its conclusions of

law, de novo. E.g., Collier v. Cockrell, 300 F.3d 577, 582 (5th

Cir.), cert. denied, 537 U.S. 1084 (2002). A finding is clearly

erroneous only if it is implausible in the light of the record

considered as a whole. E.g., United States v. Cluck, 143 F.3d 174,

180 (5th Cir. 1998), cert. denied, 525 U.S. 1073 (1999).

For an IAC claim, Strickland v. Washington, 466 U.S. 668

(1984), provides the relevant underlying federal law. To prevail

on such a claim in state court, St. Aubin had to show: (1) LTC’s

performance was deficient; and (2) that performance prejudiced his

defense. Id. at 687. Under Strickland’s first prong, St. Aubin

had to show in state court that his LTC’s representation “fell

below an objective standard of reasonableness”. Id. at 688.

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Courts start with the presumption that counsel’s conduct falls

within the wide range of reasonable professional conduct. Soffar

v. Dretke, 368 F.3d 441, 471 (5th Cir. 2004). Under the second

prong, St. Aubin had to show in state court “there is a reasonable

probability that, but for his LTC’s unprofessional errors, the

result of the proceeding would have been different”. Strickland,

466 U.S. at 694.

As reflected above, a federal court’s AEDPA review of a state-

court denial of an IAC claim does not include determining whether

St. Aubin established IAC by satisfying each of Strickland’s

prongs. E.g., Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.

2003), cert. denied, 540 U.S. 1154 (2004). Rather, it determines

whether the state-court decision that St. Aubin did not make the

requisite IAC showing was contrary to, or an unreasonable

application of, clearly-established federal law for succeeding on

such a claim. E.g., Henderson, 460 F.3d at 655. Along this line,

it bears emphasis that, in addition to the TCCA remanding for LTC

to file an affidavit in the state-habeas trial court and for

further fact finding by that court, St. Aubin had the rare

advantage of an evidentiary hearing for his IAC claims in district

court.

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For the first of his two IAC claims, St. Aubin maintains his

LTC failed to properly investigate his mental-health history.

“[C]ounsel has a duty to make reasonable investigations or to make

a reasonable decision that makes particular investigations

unnecessary”. Strickland, 466 U.S. at 691. The reasonableness of

the investigation involves “not only the quantum of evidence

already known to counsel, but also whether the known evidence would

lead a reasonable attorney to investigate further”. Wiggins v.

Smith, 539 U.S. 510, 527 (2003). “[A] petitioner must allege with

specificity what the investigation would have revealed and how it

would have changed the outcome of the trial”. Miller v. Dretke,

420 F.3d 356, 361 (5th Cir. 2005).

St. Aubin contends his LTC’s investigation of his mental-

illness history, consisting of a five-minute telephone conversation

with his psychiatrist (Dr. Garb) and a review of documents

submitted by his mother, failed to reveal: the function of St.

Aubin’s prescribed medications; a professional explanation of St.

Aubin’s medical records; and that St. Aubin was suffering from

paranoid delusions shortly before he fired his handgun into the

crowd. He relies on affidavits by Drs. Garb and Silverman (the

earlier-referenced forensic psychiatrist) to show the specific

evidence his LTC would have uncovered had he conducted a proper

investigation. St. Aubin claims prejudice because this information

11
would have given the jury a framework within which to understand

his actions and would have shown his illness was treatable.

St. Aubin has not established that the state-court decision

was unreasonable in finding further investigation by his LTC would

not have uncovered evidence that would have altered the outcome of

the proceeding. The affidavits of Drs. Garb and Silverman support

the district court’s conclusion that these affidavits do not

contain mental-health information not already known to LTC and,

therefore, are not evidence that would have been uncovered by a

more thorough investigation.

As established at the district court evidentiary hearing, the

evidence known to LTC at trial was substantial. He had reviewed

all of St. Aubin’s medical records, which included accounts of his

psychiatric hospitalizations, read the detailed history of St.

Aubin’s life submitted by his mother, spoken with St. Aubin’s

treating psychiatrist, and reviewed St. Aubin’s jail records. As

a result, LTC knew St. Aubin had been diagnosed as paranoid, had

sociopathic traits, understood the difference between right and

wrong, and had been prescribed medication for psychosis and

depression. Furthermore, St. Aubin’s medical history showed he had

not complied conscientiously with treatment programs and had

behaved violently even while undergoing some form of treatment.

According to LTC’s testimony at the district-court evidentiary

hearing, he was deeply concerned the jury would be more, not less,

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inclined to consider St. Aubin a future danger if it were provided

this information. An attorney who wants to keep damaging

information out of a sentencing hearing does not act unreasonably

by failing to investigate the damaging evidence further. See

Foster v. Johnson, 293 F.3d 766, 780-81 (5th Cir.) (finding not

unreasonable state-court determination that attorney did not

conduct inadequate investigation by failing to pursue additional

psychological evidence when relevant known evidence was

aggravating), cert. denied, 537 U.S. 1054 (2002). It was not

unreasonable for the state court to conclude that any additional

information uncovered regarding St. Aubin’s mental-health history

would not have been helpful to the case.

In his state-habeas affidavit, St. Aubin’s LTC stated he was

unaware of his prior mental problems affecting his reaction to

stress. Obviously, that statement is of concern, given the many

indications to the contrary. In any event, the district court

credited LTC’s explanation (testimony) at its evidentiary hearing,

and this finding was not clearly erroneous. Pursuant to the highly

deferential AEDPA standard of review, the state-court decision for

this failure-to-investigate claim was not unreasonable.

St. Aubin’s other IAC claim concerns his LTC’s not presenting

at the trial’s punishment phase evidence of his mental-health

history in mitigation. “[S]trategic choices made after thorough

13
investigation of law and facts relevant to plausible options are

virtually unchallengeable”. Strickland, 466 U.S. at 690.

Moreover, “‘[a] conscious and informed decision on trial tactics

and strategy cannot be the basis for constitutionally ineffective

assistance of counsel unless it is so ill chosen that it permeates

the entire trial with obvious unfairness’”. United States v.

Jones, 287 F.3d 325, 331 (5th Cir.) (quoting Garland v. Maggio, 717

F.2d 199, 206 (5th Cir. 1983)), cert. denied, 537 U.S. 1018 (2002).

Although not all of the additional evidence need be favorable

to the petitioner for counsel to have been ineffective for failing

to present mitigating evidence, Williams, 529 U.S. at 396,

“Strickland requires ... [courts to] defer to counsel’s decision

... not to present a certain line of mitigating evidence when that

decision is both fully informed and strategic, in the sense that it

is expected, on the basis of sound legal reasoning, to yield some

benefit or avoid some harm to the defense”. Moore v. Johnson, 194

F.3d 586, 615 (5th Cir. 1999). Furthermore, “a tactical decision

not to pursue and present potentially mitigating evidence on the

grounds that it is double-edged in nature is objectively

reasonable, and therefore does not amount to deficient

performance”. Rector v. Johnson, 120 F.3d 551, 564 (5th Cir.

1997), cert. denied, 522 U.S. 1120 (1998).

St. Aubin claims his mental-health history was mitigating

evidence an attorney would reasonably present to a jury because, in

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context, the positive characteristics and acts far outweighed the

negative. He asserts that, because his arrest and post-arrest

behavior was so damaging, his pre-arrest violent incidents would

appear insignificant, negating the claimed double-edged nature of

the mental-health evidence.

The state-habeas court found, however, that introducing St.

Aubin’s mental-health history as mitigating evidence would have

opened the door for the State to introduce numerous violent

incidents which had not been introduced during the guilt phase.

St. Aubin’s medical records reflected episodes of violence directed

toward acquaintances and his immediate family, such as fracturing

his father’s ribs. In addition, the medical records contained

evidence that St. Aubin either rejected treatment or continued to

behave violently while undergoing treatment for his mental illness,

undermining the possibility a jury would find St. Aubin’s future

dangerousness minimal. In this regard, the prosecutor testified at

the district-court evidentiary hearing that, had St. Aubin’s LTC

introduced his mental-health history, he would have used it to

emphasize St. Aubin’s violent character and failed treatment

efforts.

The district court accepted LTC’s and his co-counsel’s

testimony at the district-court evidentiary hearing that

considerable thought and discussion went into the decision not to

present mitigating evidence during the punishment phase. This and

15
its following related findings were not clearly erroneous. The

district-court’s finding that LTC’s decision was based on a

professionally informed and competent assessment of St. Aubin’s

mental-health history, and thus fell “within the wide range of

reasonable professional assistance”, supports its concluding that

the state-court denial of the failure-to-present-evidence claim was

not unreasonable. Strickland, 466 U.S. at 689. See Riley v.

Dretke, 362 F.3d 302, 306 (5th Cir. 2004) (even in capital case,

counsel’s not presenting evidence of mental retardation as

mitigating evidence is reasonable in order to prevent negative jury

finding on issue of future dangerousness), cert. denied, 543 U.S.

1056 (2005). Pursuant to the highly deferential AEDPA standard of

review, the district court’s conclusion was not erroneous.

III.

For the foregoing reasons, the denial of habeas relief is

AFFIRMED.