United States Court of Appeals
Fifth Circuit
F I L E D
July 16, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
__________________________
No. 02-41179
__________________________
MICHAEL LYNN RILEY,
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
___________________________________________________
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Petitioner, Michael Lynn Riley (“Riley”), is a death-row inmate in the custody of the
Texas Department of Criminal Justice, Institutional Division. The district court granted
Riley a certificate of appealability (“COA”) based on one of his sub-claims of ineffective
assistance of counsel, because his trial counsel failed to investigate and present evidence
with regard to Riley’s possible mental retardation. In this motion, Riley urges this Court
to grant him COAs on the three additional grounds that: (1) the trial court deprived itself
of jurisdiction by granting a motion to set aside the indictment, which rendered Riley’s
conviction and sentence unconstitutional under the Due Process Clause; and (2) trial
counsel was ineffective because, (a) he argued that there were no mitigating factors that
arose from Riley’s personal history, and (b) he failed to argue that Riley had accepted
responsibility for his crime when trial counsel specifically urged him to plead guilty for
that purpose.
The state habeas court rejected all of the grounds Riley now advances on appeal,
including his claim of ineffective assistance of counsel based on counsel’s failure to
investigate and present evidence of Riley’s possible mental retardation. The Texas Court
1
of Criminal Appeals adopted all but two of the state habeas court’s findings. Aside from
granting a COA based on Riley’s sub-claim of ineffective assistance of counsel, the district
court rejected these additional grounds as possible bases for a COA. We now DENY
Riley’s motion for additional COAs.
I. FACTS AND PROCEEDINGS
On February 1, 1986, at approximately 9:30 a.m., Riley fatally stabbed 23-year-old
Winona Lynn Harris in the convenience store where she worked. Police found her stabbed
and cut thirty-one times; some of the stab wounds were delivered with enough force to
sever the underlying ribs. Later that day, Riley went to the Sheriff’s office and told a
deputy that he knew something about the murder, and left. The Sheriff went to Riley’s
1
The Court of Criminal Appeals declined to adopt the state habeas court’s
findings with regard to numbers thirty-nine and forty, which addressed trial counsel’s
failure to instruct the psychologist on Riley’s future dangerousness.
2
house and brought him back to the Sheriff’s office for further questioning. Riley led police
to the evidence of the crime: bloodstained coveralls with $970 in the pocket that was
hidden under some brush in a field close to Riley’s house. Riley waived his Miranda
rights and confessed to the murder.
A. Lack of Jurisdiction Claim
The state of Texas twice tried, and twice convicted Riley for capital murder. In
Riley’s second capital murder trial, his attorneys filed numerous pre-trial motions,
including a “Motion to Set Aside Indictment Due to Unconstitutionality of Statute”, filed
on June 16, 1995, and a “Motion to Quash Indictment”, filed July 10, 1995. The trial court
addressed these motions at a hearing on July 10, 1995. At the hearing, the judge stated in
open court that she denied the motion to quash the indictment. The judge further verbally
denied Riley’s Motion to Set Aside the Indictment Due to Unconstitutionality of the
2
Statute.
After the hearing, the court entered a written order, in which it checked
“GRANTED”, rather than “DENIED”, in the space designated for the disposition of the
motion. All parties proceeded to trial. Later, during Riley’s state habeas appeal a year
later, he challenged the validity of the trial court’s jurisdiction due to its clerical mistake
on the written order. The state habeas judge, who was the same as the state trial judge,
held an evidentiary hearing. Based on the reporter’s record and from state law, the judge
2
A colloquy between the court and Riley’s counsel, Mr. Taylor, ensued, during
which the court noted that she would deny the motion to set aside the indictment for
issues related to Penry and the unconstitutionality of the statute.
3
determined that she had, indeed, denied the motion on the record, that the written order
was clerical error, and that it was proper to rule on personal recollection. The state habeas
court entered a nunc pro tunc order correcting the original order granting the motion to
quash the indictment. The district court deferred to these findings in ruling that Riley was
not entitled to a COA based on this ground.
B. Ineffective Assistance of Counsel Claims
Riley’s counsel, William C. Wright (“Wright”), advised him to plead guilty in the
3
guilt phase, and primarily focused on the punishment phase of the trial. While Wright
mainly concentrated on the issue of Riley’s future dangerousness, he presented some
testimony from Riley’s mother and sister, who testified about Riley’s childhood in a large
family without a father, where he helped care for siblings and provided financial
assistance to both his mother and sister at different intervals. Riley’s cousin testified that
Riley was a good athlete and had made clocks as gifts for his family while in prison. The
defense further presented testimony from several prison staff employees who testified that
Riley was a model prisoner, had not displayed any violent tendencies, and was not a
future danger in the prison setting. Wright did not highlight any possible mitigating
factors during closing argument, aside from that evidence which demonstrated that Riley
would not be a future danger in the prison setting. Instead, he stated: “I’m not asking you
to look at mitigation. It’s not—not there. Wouldn’t lie to you.” Wright later claimed, at
3
Although Riley entered a guilty plea before the jury, the State did not accept the
plea because it sought the death penalty. The State entered a plea of “not guilty” for
Riley for purposes of trial.
4
the state habeas hearing, that his “no mitigation” argument was a measure taken to gain
“credibility with the jury.” The state habeas court found that this was a “reasonable trial
strategy under the facts of the case,” and that the outcome of the trial likely would not
have been different if Wright had employed a different strategy.
Although Wright had advised Riley to plead guilty, in part, for the purpose of
showing acceptance of responsibility for his crime, Wright never argued this point to the
jury. Wright did, however, mention in his closing argument that Riley had confessed to
the murder, and had led the police to the evidence when it was likely that the police would
4
not have found it. Wright did not state that Riley had plead guilty, but he highlighted the
5
fact that he and his co-counsel had put on a limited defense in the guilt phase. In the state
habeas proceedings, Wright did not present an explanation for why he did not argue that
6
Riley’s guilty-plea was either relevant to future dangerousness or mitigation. The district
court assumed that counsel had been deficient for failing to incorporate the guilty plea
within his final argument, but concluded that Riley had not sufficiently established
prejudice.
II. STANDARD OF REVIEW
4
29 S. Tr. at 218.
5
Id.
6
The government claims that Wright did not present an explanation for his
strategy because this ground for appeal was not advanced at the state level, and that
the district court sua sponte re-formulated Riley’s argument with regard to his guilty
plea.
5
Because Riley filed his habeas petition on April 1, 1998, the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) applies to this appeal. See Neal v. Puckett, 286
F.3d 230, 235 (5th Cir. 2002)(citing Lindh v. Murphy, 521 U.S. 320, 324-26 (1997) (noting
that AEDPA applies to all federal habeas corpus petitions filed on or after April 24, 1996)).
“Under AEDPA, a COA may not issue unless the applicant has made a substantial
showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 894 (1983) (internal quotations omitted)). To
obtain a COA, the petitioner must show that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to
deserve encouragement to proceed further.
Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003) (quoting Barefoot, 463 at 893 n.4)(internal
quotations omitted)). In Miller-El, the Supreme Court stated that a petitioner seeking a
COA must prove “something more than the absence of frivolity or the existence of mere
‘good faith’ on his or her part.” 123 S. Ct. at 1040. Furthermore, the Court reiterated the
guideline set forth in Slack: when the district court has rejected the petitioner’s
constitutional claims, to satisfy § 2253(c), the petitioner “must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Id. (quoting Slack, 529 U.S. at 484).
Moreover, in considering the petitioner’s claims, 28 U.S.C. § 2254(e)(1) provides
that:
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a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear
and convincing evidence.
III. DISCUSSION
A. Lack of Jurisdiction Claim
Riley claims that because the trial court entered and signed an order granting his
motion to set aside the indictment, the trial court lacked jurisdiction over his trial under
Texas law. As such, Riley claims that his conviction and death sentence violate the Due
Process Clause of the Fifth and Fourteenth Amendments. The State contends that the trial
court’s grant of the motion was a clerical mistake, as demonstrated by the trial court’s
verbal ruling in open court, and that the state habeas court’s nunc pro tunc order cured the
error. The district court agreed, and concluded that the trial court’s “later nunc pro tunc
order validly and retroactively restored the trial court’s jurisdiction.” Riley v. Cockrell,
215 F. Supp. 2d 765, 772 (E.D. Tex. 2002).
This Court will consider the sufficiency of the indictment as a basis for habeas relief
if the mistake in the indictment is so fatally defective that it deprives the convicting court
of jurisdiction. Meyer v. Estelle, 621 F.2d 769, 771 (5th Cir. 1980). It is well-settled under
Texas law that when a trial court dismisses an indictment, the defendant is “discharged
from the accusation against him . . . and, accordingly, no jurisdiction remain[s] in the
dismissing court.” Garcia v. Dial, 596 S.W.2d 524, 528 (Tex. Crim. App. 1980); Texas v.
Holmes, 671 S.W.2d 896, 898-99 (Tex. Crim. App. 1984) (en banc). If the convicting court
7
lacks jurisdiction, then “the power of the court to act is as absent as if it did not exist,” and
the conviction and sentence are void. Garcia, 596 S.W.2d at 528. A trial court lacks
jurisdiction to rescind an order to quash an indictment. Miller v. State, 909 S.W.2d 586, 592
(Tex. App. 1995).
Under Texas law, however, the entry of a nunc pro tunc order will cure a clerical
error. Jiminez v. State, 953 S.W.2d 293, 295 (Tex. App. 1997). An error is clerical in nature
if it did not involve judicial reasoning in its making. See English v. State, 592 S.W.2d 949,
955-56 (Tex. Crim. App. 1980) (holding that trial court was authorized to correct error by
nunc pro tunc order overruling motion for new trial when the trial court had mistakenly
signed an order granting a new trial).
Riley relies on In re Wal-Mart Stores, 20 S.W.3d 734 (Tex. App. 2000), for the
proposition that once a court has dismissed an action, it cannot reinstate its jurisdiction
solely on the basis that the dismissal resulted from a clerical error. Id. at 738. However,
this case is inapposite. Riley neglects the fact that the plaintiffs in Wal-Mart never
attempted to obtain a nunc pro tunc order. Rather, they argued that the court should
ignore the order of dismissal, and issue a writ of mandamus to reinstate their case without
officially correcting the mistake. See id. at 739. The court in Wal-Mart noted that a
judgment nunc pro tunc may issue if there is “clear and convincing” evidence that the
signed judgment did not accurately reflect the judgment rendered by the court. Id. at 739
n.5. The court did not rule on whether a judgment nunc pro tunc would be appropriate,
however, because neither of the parties had raised the issue. Id.
8
In this case, the district court concluded, after careful analysis, that the entry
granting the motion to set aside the indictment was a clerical error that did not involve
judicial reasoning. Riley, 215 F. Supp. 2d at 771 (citing Jiminez, 953 S.W.2d at 295; English
592 S.W.2d at 955-56). The district court based its conclusion on the fact that the trial judge
stated in open court that the defendant’s motions to set aside and quash the indictment
were both denied. Riley concedes that the trial court stated that it did not intend to grant
the motions to quash and set aside the indictment.
Riley has failed to “demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong” with regard to this
issue. Miller-El, 123 S. Ct. at 1040. Taking the state court’s findings as correct, the district
court determined that the state habeas court validly entered a nunc pro tunc order
correcting what it found to be a clerical error. Even given the “clear and convincing
evidence” standard set forth in Wal-Mart, Riley has not rebutted the presumption of the
truthfulness of the State habeas court’s conclusions. Based on the state habeas court’s
findings, mainly that the trial court stated that it denied Riley’s motions to quash and
dismiss the indictment, reasonable jurists could not differ on the conclusion that the trial
court’s grant of the motion to dismiss the indictment was, in fact, a clerical error.
Accordingly, we deny Riley’s request for COA on this claim.
B. Ineffective Assistance of Counsel
In his last two grounds for COA, Riley argues that Wright, his trial counsel for his
second trial, was ineffective by: (1) arguing that there was no mitigating circumstances in
9
Riley’s case in closing argument; and (2) failing to argue that Riley’s initial guilty plea was
an acceptance of responsibility. The district court found that Wright was not ineffective
on either of these grounds.
A habeas petitioner who alleges ineffective assistance of counsel must demonstrate
that counsel’s performance was both (1) constitutionally deficient; and (2) resulted in
actual prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Carter v. Johnson,
131 F.3d 452, 463 (5th Cir. 1997). A petitioner’s claim will fail if he does not establish both
prongs of the Strickland analysis. Strickland, 466 U.S. at 687.
To establish the first prong of Strickland, the petitioner must show that counsel’s
performance fell below an objective standard of reasonableness. Id. at 688. This Court’s
scrutiny of counsel’s performance is highly deferential. Id. at 689. “A fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Id. The petitioner must
overcome the presumption that counsel’s performance fell within the broad range of
reasonable professional assistance. Carter, 131 F.3d at 463.
Even if counsel’s performance was deficient, the petitioner must still demonstrate
that counsel’s deficient performance rendered the verdict “unfair or unreliable” Lockhart
v. Fretwell, 506 U.S. 364, 369 (1993). The petitioner has the affirmative duty to prove that
but for counsel’s deficient assistance , there is a reasonable probability that the outcome
of the proceeding would have been different. Williams v. Taylor, 529 U.S. 362, 391 (2000).
10
If the petitioner brings a claim of ineffective assistance with regard to the sentencing phase,
he has the difficult burden of showing a “‘reasonable probability’ that the jury would not
have imposed the death sentence in the absence of errors by counsel.” Carter, 131 F.3d at
463. A “reasonable probability” is a “probability that is sufficient to undermine confidence
in the outcome.” Williams, 529 U.S. at 391.
1. Failure to Argue Mitigation
Riley contends that his counsel was ineffective because, although he presented
mitigating evidence through testimony by Riley’s mother, sister, cousin, and death row
staff members, he ultimately argued in closing that there were no mitigating circumstances
in Riley’s case. Riley asserts that this tactic was objectively unreasonable, and that it
prejudiced the outcome by rendering the sentencing proceedings unreliable. The State,
however, argues that Wright’s singular comment—“I’m not asking you to look at
mitigation. It’s not—not there. Wouldn’t lie to you”—was not enough to constitute
ineffective assistance of counsel, especially when viewed in light of his entire closing
argument. Instead, the State maintains that Wright’s strategy was to focus on the future
dangerousness aspect of the sentencing phase, and therefore his “no mitigation” argument
fell within the broad range of reasonable professional assistance.
The state habeas court found that Wright’s argument was not ineffective assistance
of counsel. Specifically, it found:
43. [A]ny attempt by counsel to minimize the macabre facts or
Applicant’s responsibility and culpability for them would
have resulted in a complete loss of counsel’s credibility before
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the jury and hurt the most evidentiary [sic] supported
argument of lack of future dangerousness. The argument of
counsel was a reasonable tactical trial strategy decision to
advance the defensive theory to concentrate on the issue of
future dangerousness.
44. Applicant’s trial attorney’s conceding there was no
mitigation evidence was a tactical trial decision made after
thorough, thoughtful, and meaning [sic] consideration of all
the evidence. Such a tactical decision was reasonably (thought
[sic] unsuccessfully) made to promote credibility with the jury
in advancing what counsel believed was the strong trial theory
to obtain a negative answer on the future dangerousness issue
which would insure a life sentence and avoid the death
penalty.
The Texas Court of Criminal Appeals adopted the state habeas court’s finding that
Wright’s “no mitigation” argument was a means of promoting credibility with the jury,
and that his strategy was to focus on future dangerousness. Presuming that the state
habeas court’s finding was correct under § 2254, the district court found that Wright’s
performance was not ineffective under the Strickland analysis. The district court noted,
however, that by putting on mitigating evidence and later arguing that there were no
mitigating factors, would seem to lessen, rather than enhance, Wright’s credibility with the
jury. As such, the district court hypothesized that Wright’s strategy was likely directed
at framing the inquiry for the jury, as he had earlier argued that the jury should disregard
7
emotional appeals made by the prosecution in its closing argument. Because the district
7
Specifically, the district court found:
[c]ounsel repeatedly argued that the jury should ignore the
12
court could “discern a sound strategy underlying counsel’s actions, it [found] that those
actions were not unreasonable.” Riley, 215 F. Supp. 2d at 779.
Mitigating evidence that illustrates a defendant’s character or personal history
embodies a constitutionally important role in the process of individualized sentencing, and
in the ultimate determination of whether the death penalty is an appropriate punishment.
Moore v. Johnson, 194 F.3d 586, 612 (5th Cir. 1999). Counsel may be deemed
constitutionally ineffective if he fails to exercise reasonable professional judgment in
investigating a defendant’s personal history if the defendant’s background would be
relevant in evaluating the his moral culpability. See Wiggins v. Smith, __ S. Ct. __, 2003
WL 21467222 (June 26, 2003) (holding counsel was ineffective for failing to investigate the
“powerful” mitigating evidence relating to defendant’s extremely troubled personal
history). Even given the important role of mitigating evidence, however, counsel’s
performance is not per se deficient if he fails to present such evidence. See id.; Moore, 194
F.3d at 615. In determining whether counsel’s treatment of mitigating evidence prejudiced
the petitioner’s defense, a state court must “evaluate the totality of the available mitigation
prosecution’s attempts to play on their emotions and their
sympathy for the victim and instead simply decide the second
special issue (future dangerousness), based solely on the
relevant evidence. By bringing in similar emotional evidence
in Riley’s favor and casting it aside, counsel modeled for the
jury how they should decide the case, while at the same time
possibly balancing somewhat the impact of any emotional
appeal by the prosecution in its closing arguments.
215 F. Supp. 2d at 779 (citations omitted).
13
evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding
in reweighing it against the evidence in aggravation.” Williams, 529 U.S. at 397-98.
When examining counsel’s closing argument to determine whether it was
ineffective, this Court considers the closing argument in its entirety. Carter, 131 F.3d at 466
(citing Teague v. Scott, 60 F.3d 1167, 1173 (5th Cir. 1995)). To establish credibility with the
jury, counsel may make a tactical decision to “acknowledge the defendant’s culpability
and may even concede that the jury would be justified in imposing the death penalty.” Id.;
see United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999).
Examining Wright’s closing argument in its entirety, the State habeas court and the
district court were not unreasonable in concluding that Wright’s actions were not
unreasonable. The district court’s alternative hypothesis for Wright’s strategy of
presenting mitigating evidence, but later arguing that there was no mitigation as a means
of framing the inquiry for the jury, may be plausible. Yet, this alternative explanation is
dicta, and is not firmly grounded in the evidence presented at the state habeas proceeding.
Wright explicitly stated at the state habeas hearing that he employed the “no mitigation”
8
argument to gain credibility with the jury. While the district court did not find this to be
During the hearing, the following colloquy between Riley’s habeas lawyer,
8
Barry Bryant, and Wright, ensued:
BRYANT: What would be the purpose of a lawyer arguing that his client is not a good
guy?
WRIGHT: I think the purpose is to—if you come in and strike the jurors as being
unrealistic and untruthful on the small issues, that when you get to the big issues, you
have no credibility left.
14
a convincing rationale, it nevertheless noted that, pursuant to § 2254, it presumed correct
the state court’s finding that Wright’s decision was strategic.
Although Wright presented mitigating evidence during the penalty phase, it is
evident from his closing argument and the subsequent habeas hearing that he believed that
Riley’s strongest argument was lack of future dangerousness. Accordingly, his contention
that it was his strategy to focus on this issue, for which he had strong evidence, rather than
including the issue of mitigation, does not seem implausible, or unreasonable. Throughout
the closing argument, Wright not only argued that Riley would not be a future danger in
the prison population, he also stressed the importance of the jury’s decision, and stated
that justice demanded a life sentence, rather than death. Thus, given the deference entitled
to the state habeas findings under § 2254, and the likelihood that Wright’s “no mitigation”
argument, while perhaps improvident, was part of his strategy to gain credibility with the
jury and focus on the stronger issue of lack of future dangerousness, the state habeas court
and district court were not unreasonable in concluding that Wright was not ineffective
under Strickland.
2. Failure to Argue that Riley’s Guilty Plea Constituted an Acceptance of
***
BRYANT: What did you hope to gain by saying, there’s no mitigation, as opposed to
simply not arguing it at all?
WRIGHT: Credibility with the jury.
2 S.H. Tr. at 91, 94.
15
Responsibility
In his final ground for seeking a COA, Riley argues that Wright’s performance was
ineffective because he failed to argue that Riley’s guilty plea constituted acceptance of
responsibility, despite the fact that Wright urged Riley to accept a guilty plea, in part, for
the purpose of showing acceptance of responsibility. The State claims that Riley cannot
raise this as a ground for COA, as he never raised the “guilty plea” argument in the
present posture until the district court addressed Riley’s ineffective assistance claims. The
State contends that, at the state level, Riley argued only that Wright’s performance was
deficient in advising Riley to plead guilty in the guilt phase—not that his performance was
ineffective because he did not argue acceptance of responsibility as a mitigating factor in
closing arguments of the sentencing phase.
Section 2254(b)(1) requires a petitioner to exhaust his remedies in the state courts
before applying for relief in federal court. See Wilder v. Cockrell, 274 F.3d 255, 259 (5th
Cir. 2001). “To exhaust, a petitioner must have fairly presented the substance of his claim
to the state courts.” Id. (internal quotations and citations omitted). It is not enough that
the facts applicable to the federal claim were all before the State court, or that the petitioner
made a similar state-law based claim. Anderson v. Harless, 459 U.S. 4, 6 (1982). The
federal claim must be the “substantial equivalent” of the claim brought before the State
court. Fisher v. Texas, 169 F.3d 295, 303 (5th Cir. 1999). Yet, the petitioner “need not spell
out each syllable of the claim before the state court” for a claim to have been “fairly
presented”, and thereby fulfill the exhaustion requirement. Id.
16
AEDPA’s deferential standard of review does not apply if a petitioner has properly
exhausted his claim by raising it in the state court, but the state court misunderstood the
nature of the claim, and therefore did not adjudicate that particular claim on the merits.
See Henderson v. Cockrell, __ F.3d __, 2003 WL 21310813 at *4 (5th Cir. June 9, 2003) (citing
Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir. 2002)). This Court reviews such claims
under pre-AEDPA standards of review. Id.; see Jones v. Jones, 163 F.3d 285, 299-300 (5th
Cir. 1998) (applying de novo review to an ineffective assistance of counsel claim that
petitioner raised in state court, but the state court did not adjudicate on the merits).
It is clear from the record that Riley presented this specific claim of ineffective
assistance of counsel at the state habeas level. Riley first raised this argument in his
9
petition for state habeas relief. Moreover, Riley’s habeas counsel raised this argument
during the state habeas hearing. During the hearing, Wright acknowledged that
10
acceptance of responsibility is “obviously” a mitigating factor. Nevertheless, as the
district court noted, the state habeas court did not make findings with regard to this
9
In his petition, Riley argued:
[A]ny benefit by pleading guilty to the jury was wasted
when trial counsel conceded that there was no mitigation
evidence. Applicant’s plea of guilty could have been
effectively argued as evidence of Applicant’s acceptance of
responsibility and remorse for his conduct. Acceptance of
responsibility has been recognized as mitigation evidence.
1 C.R. at 22.
10
2 S.H. Tr. at 85-86.
17
argument. Because Riley exhausted this sub-claim at the state level, the district court was
correct in applying de novo review to this aspect of Riley’s ineffective assistance claim.
Jones, 163 F.3d at 299-300.
The district court assumed, arguendo, that Riley established the first prong of
Strickland, and that the jury did not factor in Riley’s guilty plea and acceptance of
responsibility, but they would have if Wright had made the argument. Notwithstanding
this conclusion, the district court found that Riley failed to prove that Wright’s ineffective
performance prejudiced the outcome of the sentencing proceedings, because the jury had
found that there was a probability that Riley would be dangerous in the future. The
district court concluded that it was improbable that the mere fact that Riley accepted
responsibility for his past conduct would cause the jury to overlook his future
dangerousness.
Here, Riley has not demonstrated that reasonable jurists would find the district
court’s assessment of his claim was debatable or wrong. Wright stated in his closing
argument that Riley had confessed and led the police to evidence that they may not have
found otherwise. Because the jury had this information before them, it is possible that a
juror may have taken it into consideration, and ultimately determined that this mitigating
factor did not outweigh the aggravating factors of his crime, given that it was so brutal in
nature. See Williams, 529 U.S. at 397-98 (explaining the importance of weighing mitigating
evidence versus aggravating factors). As such, it is unlikely that reasonable jurists would
find it debatable that Wright’s deficient performance in this regard rendered the jury’s
18
decision unreliable. Moreover, it was not unreasonable for the district court to conclude
that it was possible that, by arguing that Riley had accepted responsibility as a mitigating
factor, Wright would not have caused the jury to overlook the issue of future
dangerousness. This is especially true, considering that Wright’s main strategic goal was
to show that Riley was not a future danger. Thus, we deny COA on this claim.
IV. CONCLUSION
For the foregoing reasons, we DENY Riley’s motion for additional COAs based on
his claims of lack of jurisdiction to prosecute, and ineffective assistance of counsel for
arguing “no mitigation” and failing to argue that Riley had accepted responsibility for his
actions by pleading guilty.
19