United States Court of Appeals,
Fifth Circuit.
No. 96-50809.
Mitchell LACKEY, Petitioner-Appellant,
v.
Gary L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
June 26, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before WISDOM, BENAVIDES and STEWART, Circuit Judges.
STEWART, Circuit Judge:
Mitchell Lackey was convicted on various charges stemming from
the molestation of his four-year-old granddaughter. Lackey's
conviction was affirmed by the Fourth Court of Appeals of Texas;
Lackey did not appeal to the Texas Court of Criminal Appeals.
Lackey did file an application for state habeas relief but that
petition was denied. Lackey then filed a "Motion for Injunctive
Relief" in federal district court, which the district judge
interpreted as a request for federal habeas relief. Lackey claimed
that he was denied effective assistance of counsel. The district
court, noting that some of Lackey's claims had not been exhausted,
rejected all of Lackey's ineffective-assistance claims. However,
the district court did grant Lackey a Certificate of Appealability
(COA) on the question of whether Lackey's attorney provided
ineffective assistance of counsel when he elicited evidence about
Lackey's prior acts of sexual misconduct with his daughter (the
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mother of the victim in this case). Finding no error, we affirm
the district court's denial of habeas relief.
BACKGROUND
Jennifer Hoy (Jennifer) was four years old when she was
molested by her grandfather, defendant Mitchell Lackey. A jury
ultimately convicted Lackey for aggravated sexual assault,
indecency with a child (contact), and indecency with a child
(exposure). Lackey was sentenced to seven-and-one-half years'
imprisonment for aggravated sexual assault and five years'
imprisonment for each of the indecency convictions. Because this
appeal implicates defense counsel's conduct with regard to
eliciting damaging testimony against Lackey, we present only those
facts relevant to that claim.
Tamarine Gail Lackey (Tammy)—defendant Lackey's
ex-wife—testified for the defense that Jennifer and Lackey got
along well. She testified that Lackey and Jennifer's parents had
a dispute on October 31, 1991, when Tammy did not wish to take both
of the Hoys' children, and that they had a later dispute involving
an automobile. During the October 31 dispute, Lackey made a
comment to John Hoy (Hoy) suggesting that Hoy did not trust Lackey
with his children.
Hoy testified as a defense witness. Defense counsel asked Hoy
whether he had a reason to distrust Lackey. Hoy stated, "[t]he
reason is that about three years ago my wife had told me that he
had sexually molested her when she was 13." Hoy testified on
cross-examination that Rene Hoy (Rene) had been "sexually molested
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and raped when she was 13 by her own father."
Lackey testified and denied having abused Jennifer. Lackey
was unsure why he asked whether Hoy trusted him with the children.
On cross-examination, Lackey testified in detail about molesting
Rene one time when she was 12 or 13 years old. Defense counsel did
not object. According to Lackey, he had a substance abuse problem
at the time. Lackey denied that he molested Rene more than once.
Rene was recalled by the State and testified in detail about two
episodes during which Lackey sexually assaulted her.
PROCEDURAL HISTORY
Lackey's conviction was affirmed by the Fourth Court of
Appeals of Texas. Thereafter, Lackey filed a "Motion for
Injunctive Relief" in federal district court, in which he contended
that he received ineffective assistance of counsel and that there
was insufficient evidence to support his conviction. He requested
a new trial. Lackey attached his state-court appellate brief and
the Court of Appeals's opinion to his motion. The district court
construed Lackey's motion as a petition for habeas corpus relief.
The State moved for dismissal of Lackey's petition for failing
to exhaust state-law remedies because Lackey did not seek review by
the Texas Court of Criminal Appeals. Lackey had filed an
application for state habeas relief; that application was denied.
The district court found that Lackey had exhausted some claims and
failed to exhaust others; the district court rejected all of
Lackey's claims on the merits. However, the district court granted
Lackey a COA on the issue of whether counsel was ineffective by
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eliciting testimony about Lackey's prior acts of sexual misconduct.
DISCUSSION
I. THE SCOPE OF OUR REVIEW
The threshold question we face is whether the scope of our
appellate review is limited to the issue specified in the COA or
whether the grant of a COA permits a habeas petitioner to raise
issues other than those set forth in the COA. We conclude that
under the plain terms of the Antiterrorism and Effective Death
Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996), our
review of Lackey's habeas petition is limited to the issue
specified in the COA granted by the district court.
Under the AEDPA, a district court has the authority to issue
a COA. See Else v. Johnson, 104 F.3d 82, 83 (5th Cir.1997) (per
curiam) (on reconsideration). The district court in this case
limited Lackey's COA to the issue of whether defense counsel
provided Lackey ineffective assistance of counsel by eliciting
testimony about Lackey's prior acts of molestation. On appeal,
Lackey raises eight other claims, some of which were rejected by
the district court, others which are raised for the first time on
appeal. We have yet to address the question of whether a
three-judge panel like this one must reach the eight issues that
were not specified in the COA.
We need not look very far, however, for the answer. A plain
reading of the AEDPA compels the conclusion that COAs are granted
on an issue-by-issue basis, thereby limiting appellate review to
those issues alone. Section 2253(c)(3) states: "The certificate
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of appealability under paragraph (1) shall indicate which specific
issue or issues satisfy the showing required by paragraph (2)."
(Emphasis added.) A COA issues only if the petitioner makes a
"substantial showing of the denial of a constitutional right." §
2253(c)(2). Accordingly, only those factual and/or legal issues
which amount to a "substantial showing of the denial of a
constitutional right" can be reviewed on appeal.1 See, e.g., Hill
v. Johnson, --- F.3d ----, ---- (5th Cir.1997); Muniz v. Johnson,
--- F.3d ----, ---- (5th Cir.1997); Lucas v. Johnson, 101 F.3d
1045, 1046 (5th Cir.1996).
This conclusion is reinforced by looking to the language of
pre-AEDPA § 2253, which did not state that CPCs must specify the
issues for appellate review. Muniz, --- F.3d at ----. When
Congress alters the wording of a statute, we must presume Congress
intended a change in the law. See Brewster v. Gage, 280 U.S. 327,
337, 50 S.Ct. 115, 118, 74 L.Ed. 457 (1930). Moreover, if we were
to conclude that § 2253(c)(3) of the AEDPA requires issue
specification, yet hold that granting a COA brings up all issues
raised before the district or circuit judge who issued the COA, we
would render meaningless the specification language in §
2253(c)(3). Such a conclusion does not comport with the
fundamental principle of statutory construction that every word in
1
We do not suggest, of course, that if a federal habeas
petitioner presents one issue to a district or circuit judge and a
COA is granted without issue specification, that we would conclude
failure to specify the issue for review amounts to noncompliance
with § 2253(c)(3). See Muniz, --- F.3d at ---- n. 1 (relying on
Else, 104 F.3d at 83).
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a statute should be construed to have some operative effect. See
United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct.
1011, 1015, 117 L.Ed.2d 181 (1992); United States v. Rodriguez-
Rios, 14 F.3d 1040, 1044 (5th Cir.1994) (en banc).
In this appeal, Lackey (in addition to the issue specified in
the COA) raises issues that were either rejected by the district
court or raised for the first time in this court. We decline to
address those issues rejected by the district court because they
are outside the ambit of the COA. A contrary conclusion would risk
inconsistent adjudication, a concern we recently suggested factors
into a § 2253(c)(3) analysis. See Muniz, --- F.3d at ----
(declining to evaluate the issues that may be the subject of a COA
when such a determination may be inconsistent with the district
court's assessment of the viability of petitioner's federal habeas
claims). And we decline to address those claims that Lackey has
raised for the first time on appeal because those issues are deemed
waived. See Carter v. Johnson, 110 F.3d 1098, 1112 (5th Cir.1997).
In short, the sole question presented in this appeal is
whether Lackey was denied effective assistance of counsel when his
attorney elicited information about Lackey's prior acts of sexual
misconduct. We turn to that issue now.
II. LACKEY RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL
It is by now well settled that to prevail on an
ineffective-assistance-of-counsel claim, Lackey must show "that
counsel's performance was deficient" and "that the deficient
performance prejudiced the defense." Strickland v. Washington, 466
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U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To
prove deficient performance, Lackey has the burden of demonstrating
that counsel's actions "fell below an objective standard of
reasonableness." Id. at 688, 104 S.Ct. at 2064. And to prove
prejudice, Lackey must show that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different," id. at 694, 104 S.Ct. at
2068, and that "counsel's deficient performance render[ed] the
result of the trial unreliable or the proceeding fundamentally
unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838,
844, 122 L.Ed.2d 180 (1993).
At the outset, we note that we entertain serious doubts about
the veracity of Lackey's claim (raised in this appeal for the first
time) that he actually informed his attorney that he had molested
Rene. The Texas Court of Appeals found no evidence in the record
suggesting that Lackey told counsel that he sexually abused Rene,
and that counsel could not have been ineffective for failing to
discover information Lackey could have disclosed but did not. In
addition, the district court noted that Lackey did not allege that
counsel had reason to know Lackey abused Rene, thereby compelling
the conclusion that counsel could not have been ineffective for
accidentally eliciting the information at trial.
In general, counsel is not ineffective for failing to
discover evidence about which the defendant knows but withholds
from counsel. See Randle v. Scott, 43 F.3d 221, 225 (5th Cir.),
cert. denied, --- U.S. ----, 115 S.Ct. 2259, 132 L.Ed.2d 265
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(1995). Lackey alleges for the first time in this appeal that he
informed counsel before trial that he had abused Rene sexually.
This court reviews contentions not raised in the district court for
plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,
1428 (5th Cir.1996) (en banc). Only in the rarest of circumstances
do errors involving issues of fact amount to plain error. See
Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir.1995).
Whether Lackey informed his attorney before trial that he had
abused Rene sexually is a factual issue. Lackey has not
demonstrated plain error regarding that issue. Lackey did not
inform trial counsel about the previous sexual abuse before trial
and our review of the record reveals that there is no evidence that
Lackey's attorney knew or should have known about the prior abuse.
It must therefore follow that counsel was not ineffective when he
elicited testimony about the abuse during trial.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
district court denying Lackey federal habeas relief.
AFFIRMED.
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