Ladd v. Cockrell

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