United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 17, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20401
ROY GENE SMITH,
Petitioner-Appellant,
versus
DOUG DRETKE, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Petitioner-appellant Roy Gene Smith (“Smith”) was convicted in the Texas state courts and
sentenced to death for the capital murder of James Whitmire. The district court denied Smith’s
petition for a writ of habeas corpus and denied a certificate of appealability (COA) sua sponte. Smith
now requests a COA from this court on three issues, (1) whether his trial counsel provided ineffective
representation, (2) whether the jury instructions given at the sentencing phrase of his trial violated
his constitutional rights pursuant to Penry v. Johnson,1 and (3) whether the district court erred in
denying his request for funds under 21 U.S.C. § 848 for a psychologist. For the foregoing reasons,
we grant a COA as to Smith’s ineffective assistance of counsel and Penry claims. However, we find
that the district court did not abuse its discretion in denying Smith’s request for funds.
Factual and Procedural Background
On October 8, 1988, Smith and Mary Williams (“Williams”) spent the day smoking crack
cocaine at a boarding house. Around 8:00 p.m., Smith and Williams left the boarding house. As they
walked down the street, they came upon 67-year-old James Whitmire. Smith approached Whitmire
and asked him for a job. Whitmire responded that he had no work available and then turned away.
Smith unzipped his jacket, drew a .22 caliber pistol, and began shooting Whitmire. After Whitmire
fell Smith continued shooting, hitting him several times. Williams fled the scene. After Whitmire
was dead, Smith searched his pockets and stole $4.27. As Smith rifled through Whitmire’s clothing,
two men approached Smith and asked him what he was do ing. The men fled when Smith began
shooting at them. Smith later reunited with Williams and they purchased hot dogs with the stolen
money. The couple spent the night in an abandoned house.
The next day, Williams returned to her home and contacted the police. The police searched
for Smith and, after a chase, placed him under arrest. Smith subsequently signed a written statement
that the district court regurgitated as follows:
Last night I approached a guy and robbed him. When I pull my pistol he hollered
“I’m not giving up my money.” I already had it cocked. I just kept firing.
Afterwards I reached into his left back pocket and took his wallet, and his front
pocket had $4.27 in it. The wallet had no money.
1
532 U.S. 782 (2001).
2
The gun I used was a .22 revolver, I don’t know the make. The guy that got shot was
an old guy, I’d say about 54 or 55. After I shot him I ran all the way back to Mills
Court. I hid in an abandoned house, and stayed there until daybreak. About 3:00 to
3:15 this afternoon, I went to the park. I had the gun in a brown paper bag. The next
thing I knew was that you all arrived. I rolled over the hill and peeped up, and saw
that you all were coming up. I panicked and ran. I ran to this old abandoned garage
and threw the pistol down in the yard, by the garage. I climbed up in the garage, and
hid, and that is when the officer opened the door. This is the God honest truth.
Smith v. Cockrell, No. H-00-1771, slip op. at 2-3 (S.D. Tex. filed March 31, 2003). Smith also
confessed that in the week prior to the homicide, he committed another capital murder, another
shooting, and several robberies.
After a jury trial, Smith was convicted of capital murder in the 208th Judicial Court of Harris
County, Texas, Judge Benjamin A. Martinez presiding. The district court summarized the evidence
adduced at the punishment phase of trial as follows:
During the punishment phase of trial, the State elicited testimony concerning Smith’s
extensive criminal history. The State also introduced evidence relating to Smith’s
week-long crime spree before Whitmire’s homicide, including his confession to
several crimes. Additionally, the State introduced testimony of violent threats by
Smith in prison and his poor parole history.
At the punishment phase, the defense presented testimony from Smith’s sister,
Carolyn Smith, who described the crime-ridden environment her brother lived in [
Smith grew up in an area in Houston, Texas known as ‘Fifth Ward’] and testified that
she had never known her brother to use crack cocaine. She also described her brother
as calm and not violent. Smith’s mother, Wilbert Lee Smith, testified on his behalf.
She t estified that her son never used crack cocaine or carried a gun. She also
described her son’s childhood and the crime-infested neighborhood in which she lived,
commented on his good behavior in the penitentiary, and pleaded for mercy. A Harris
County Sheriff’s Deputy, Thomas Gentry, testified that Smith had no major trouble
while previously incarcerated. Finally, Smith took the stand himself and explained
that he had been on a drug binge at the time of the homicide and did not remember
killing Whitmire. Smith also expressed remorse for the killing.
Id. at 3-4.
3
Following the admission of this evidence, the state trial court instructed the jury to answer
Texas’ special issue questions in the negative if the mitigation evidence sufficiently required the
imposition of a life sentence. On May 11, 1990, the jury affirmatively answered all three special
issues and the trial court sentenced Smith to death by lethal injection accordingly. The Texas Court
of Criminal Appeals affirmed Smith’s conviction and sentence on February 24, 1993. Smith v. State,
No. 71,009 (Tex. Crim. App. 1993). The United States Supreme Court denied Smith’s petition for
a writ of certiorari on November 15, 1993. Smith v. Texas, 510 U.S. 979 (1993).
Collateral proceedings then ensued. On April 18, 1997, Smith filed a state writ of habeas
corpus raising one ground for relief. The presiding judge at the time of trial was not the same judge
presiding over Smith’s state habeas petition. On August 24, 1999, the state habeas court, in the
absence of an evidentiary hearing, entered findings of fact and conclusions of law recommending the
denial of state habeas relief. On September 29, 1999, the Texas Court of Criminal Appeals affirmed
the denial of habeas relief. Ex Parte Smith, No. 42, 801-01 (Tex. Crim. App. 1999).
On May 30, 2000, Smith timely filed his federal petition for a writ of habeas corpus under 28
U.S.C. § 2254. This case arises on appeal from the United States District Court for the Southern
District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for
summary judgment. On March 31, 2003, the district court granted the State’s motion for summary
judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an
unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D. Tex. filed March 31, 2003). The
district court also denied Smith’s COA request sua sponte. On September 22, 2003, Smith timely
filed his appeal, requesting a COA from this court.
Standard of review
4
Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it
under the st andards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA").
See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must
demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved
in a different manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)).
In determining whether to grant a COA, our inquiry is limited to a threshold examination that
“requires an overview of the claims in the habeas petition and a general assessment of their merits.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A full consideration of the merits is not required,
nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner
will be entitled to ultimate relief, rather “the question is the debatability of the underlying
constitutional claim, not the resolution of that debate.” Id. at 342. Accordingly, we must be mindful
that “a claim can be debatable even though every jurist of reason might agree, after the COA has been
granted and the case has received full consideration, that petitioner will not prevail.” Id. at 337. At
the COA stage, we do not apply the deferential AEDPA standard of review to examine the merits of
the habeas petition. Id. at 342 (“Before the issuance of a COA, the Court of Appeals had no
jurisdiction to resolve the merits of petitioner’s constitutional claims.”). Our immediate task is to
determine, not the ultimate merits of Smith’s claims, but only whether Smith has demonstrated that
“jurists of reason could disagree with the district court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to proceed
5
further.” Miller-El, 537 U.S. at 327 (citing Slack, 529 U.S. at 484). "Because the present case
involves the death penalty, any doubts as to whether a COA should [be] issue[d] must be resolved
in [the petitioner's] favor." Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
Discussion
Smith seeks a COA for each of the following three claims: (1) his trial counsel’s inadequate
investigation of mitigating evidence in Smith's background and the circumstances of his offense; (2)
the nullification instruction submitted by the trial court, which he contends violated the Eighth and
Fourteenth Amendments pursuant to Penry v. Johnson, 532 U.S. 782 (2001); and (3) the district
court's denial of funds under 21 U.S.C. § 848 fo r the assistance of a psychologist in his federal
post-conviction proceeding. Each claim will be addressed in turn.
I. Ineffective Assistance of Counsel
Smith appeals from the district court’s refusal to grant habeas relief and the denial of his COA
as to his claim that his counsel at trial, Ron Mock and Joyce Jones (“trial counsel”), were ineffective
because they failed to investigate available mitigating evidence. Specifically, Smith contends that trial
counsel provided ineffective assistance by not investigating mitigation evidence pertaining to: his
cocaine and alcohol intoxication, his background and upbringing, and his prior disciplinary record
from prison.
a. Exhaustion Requirement
The district court concluded that Smith’s ineffective assistance claim was procedurally barred
because Smith failed to exhaust his available state remedies. The district court, echoing the state
habeas co urt, held that Smith’s state habeas claim dealt with trial counsel’s failure to retain a
mitigation expert who could provide the jurors with a cohesive picture of Smith’s life. The court
6
concluded that Smith’s federal habeas petition differed significantly from the state habeas petition
because “Smith now argues that trial counsel should have investigated a possible temporary insanity
defense, sought prison records suggesting a nonviolent disposition during incarceration, and
interviewed Smith’s relatives with the intent that they testify in the punishment phase.” Smith, No.
H-00-1771, slip op. at 18. The district court noted that Smith’s present claim of ineffective assistance
of counsel turns on factual allegations outside of the record on direct appeal and the record in the
state habeas proceedings. Because Smith changed the focus of his federal claim to substantive areas
not covered in his state petition, the district court held that Smith’s claim for habeas relief was not
exhausted. In addition, the court concluded that Smith could not demonstrate cause and prejudice
for his failure to exhaust his state remedies.
First, Smith argues that the district court erred in adopting the state habeas court’s limited
formulation of his ineffective assistance of counsel claim. He concedes that his state habeas claim was
inartfully pleaded, but he contends that the state habeas court erred in simply framing his claim as one
that challenged his trial counsel’s failure to utilize a mitigation specialist when his claim was broadly
worded and not limited to the failure to utilize a mitigation specialist. Second, he argues that even
assuming arguendo that he did fail to exhaust his state remedies, his pro cedural default should be
excused based on his state habeas counsel’s deficient performance and the state habeas court’s failure
to hold an evidentiary hearing. He recognizes that the Fifth Circuit has rejected deficient habeas
counsel as a ground to excuse procedural default. However, he contends that deficient habeas
counsel is integral to his Due Process and access to courts rights, and the failure of the state courts
to ensure he had adequate habeas counsel violated his Due Process rights. He emphasizes that
7
constitutional violations which created a procedural default may justify the “cause” necessary to
excuse a default.
“Determining whether a COA should issue where the petition was dismissed on procedural
grounds has two components, one directed at the underlying constitutional claim[] and one directed
at the district court’s procedural holding.” Slack, 529 U.S. at 484-85. Where the district court has
dismissed the petition on procedural grounds, “a COA should issue when the prisoner shows . . . that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Id. at 484. In addit ion, because the district court, after denying Smith’s petition on
procedural grounds, nonetheless reached the merits of Smith’s constitutional claim, Smith must also
show that “reasonable jurists would find the district court’s assessment of the constitutional claim[]
debatable or wrong.” Id. “Each component . . . is part of a threshold inquiry[.]” Id. at 485. As to
the first threshold inquiry, we find that jurists of reason could debate whether Smith exhausted his
claim for ineffective assistance based on trial counsel’s alleged failure to investigate potential
mitigating evidence.
A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims
in state court prior to requesting federal collateral relief. Rose v. Lundy, 455 U.S. 509, 519-20
(1982). A federal habeas petition should be dismissed if state remedies have not been exhausted as
to all of the federal court claims. Id.; see also 28 U.S.C. § 2254(b)(1)(A) (writ shall not be granted
unless it appears that the applicant has exhausted state remedies). The exhaustion requirement is
satisfied when the substance of the federal habeas claim has been fairly presented to the highest state
court. Picard v. Connor, 404 U.S. 270, 275-78 (1971). A federal court claim must be the
"substantial equivalent" of one presented to the state courts if it is to satisfy the "fairly presented"
8
requirement. Id. The habeas applicant need not spell out each syllable of the claim before the state
court to satisfy the exhaustion requirement, Lamberti v. Wainwright, 513 F.2d 277, 282 (5th Cir.
1975), however, the petitioner cannot present new legal theories or new factual claims in his federal
application. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997).
The ineffective assistance of counsel claim submitted by Smith’s state habeas counsel, Stephen
Christopher Taylor, in the state petition averred that:
Trial Counsel failed to investigate Applicant’s history to discover evidence which
could have been used to Applicant’s advantage in mitigation of punishment. A
“comprehensive biopsychosocial life history outline or evaluation” was necessary in
establishing mitigating evidence for the punishment phase of Applicant’s trial. Such
an examination is designed to “detect the presence of significant factors such as
neurological impairment; cognitive disabilities; physical, sexual, or psychological
abuse; substance abuse; mental disorders; or other factors which influence the
development of Applicant's personality and behavior. A social history investigation
would have explained Applicant's developmental history and the links between that
history with Applicant's conduct at the time of the offense. The mitigation specialist,
as a professional and impartial third party, would have tied together the specific
incidents of Applicant’s life and interpret them so as to provide the jurors a cohesive
picture of the life Applicant lived.
The state petition went on to state that Smith was prejudiced by trial counsel’s failure because
“reasonably competent trial counsel would have co nducted an investigation into the life history of
Applicant for use by a mitigation specialist during the punishment stage of Applicant’s trial. Trial
Counsel’s conduct in failing to investigate Applicant’s life history denied Applicant the ability to have
a mitigation specialist provide the jurors with a cohesive picture of the life that Applicant lived.”
The state petition did assert that a “biopsychosocial outline” should have been developed,
which could have been used by a mitigation specialist at trial. However, the argument is broadly
stated such that one could reasonably argue that Smith’s claim was not confined to trial counsel’s
failure to retain a mitigation expert but rather was a more general claim that his trial counsel failed
9
to investigate Smith’s history. Smith’s state habeas argument could be defined as asserting that trial
counsel was ineffective for failing to investigate Smith’s history and as a result Smith was prejudiced
because trial counsel could not retain a mitigation expert who could then present said history before
the jury. It is not a strain to categorize Smith’s state habeas argument as a general assertion that trial
counsel failed to investigate Smith’s background. Smith’s argument in his writ was likely enough to
alert the state habeas court that he was asserting a constitutional claim concerning the adequacy of
his trial counsel’s investigation of mitigating evidence. See Soffar v. Dretke, 368 F.3d 441, 468 (5th
Cir. 2004); see also Schneider v. Delo, 85 F.3d 335, 339 (8th Cir. 1996) (holding that the fairly
presented analysis “is not meant to trap a petitioner who has poor drafting skills. The stakes in
habeas cases are too high for a game of legal ‘gotcha.’”). Therefore, it is debatable whether the
district court erred in finding that Smith did not satisfy the exhaustion requirement as to the legal
ground for his ineffective assistance of counsel claim.
However, even if Smith did adequately assert the legal ground for his ineffective assistance
of counsel claim, the State argues that Smith failed to make any factual allegations to support his
claim and therefore, his claim was not fully and fairly presented to the state habeas court. See Keeney
v. Tamayo-Reyes, 504 U.S. 1, 9, 10 (1992) (holding that AEDPA’s exhaustion requirement requires
more than notice, more than petitioner simply stating a federal claim in state court; it requires that the
petitioner afford the state court a full and fair opportunity to address his claim). The State
emphasizes that Smith’s state habeas counsel did not detail any mitigating facts which should have
been presented on Smith’s behalf, nor did the state writ application contain any affidavits setting out
specific mitigation facts that were omitted by trial counsel. Cf. Banks v. Dretke, 124 S.Ct. 1256
(2004) (finding that the petitioner satisfied the exhaustion requirement as to the legal ground of his
10
Brady claim but the petitioner did not produce evidence to substantiate his claim, therefore the
petitioner did not fully and fairly present the claim to the state court).
We find that reasonable jurists would find it debatable whether the ineffective assistance of
counsel claim was fully and fairly presented to the state habeas court. The state habeas petition was
not supported by the affidavits now before this court; nevertheless, reasonable jurists could find it
debatable whether the petition did assert specific mitigating facts omitted by trial counsel when the
petition averred that “trial counsel did not investigate signs of neurological impairment, cognitive
disabilities, physical, sexual or psychological abuse, substance abuse, mental disorders or any other
factors that may have influenced his development.” Thus, it is debatable whether Smith presented
a factual as well as a legal basis to support his constitutional claim.
Smith has shown that reasonable jurists could debate whether the legal and factual basis for
his ineffective assistance of counsel claim was fully presented to the state habeas court. We proceed
to the next step in the inquiry into whet her to grant a COA on this issue, namely, the underlying
merits of his constitutional claim.
b. Merits of Smith’s Ineffective Assistance of Counsel Claim
Smith argues that trial counsel were ineffective for deciding what mitigation evidence to
present during the punishment phase because their decision was based upon an incomplete and
superficial investigation of potential mitigating evidence. Specifically, Smith asserts that trial counsel
did no t adequately investigate (1) Smith’s drug and alcohol use and the possibility of a mitigation
defense of temporary insanity; (2) Smith’s prison records from previous incarcerations to show his
good behavior while in prison; and (3) Smith’s troubled background and abusive upbringing.
11
Even though the district court found that Smith had not exhausted his state remedies, it still
went on to address the merits of Smith’s ineffective assistance of counsel claim. As to Smith’s claim
that trial counsel should have investigated his voluntary intoxication, the district court held that
Smith’s history of substance abuse would have been presented for the purposes of raising a temporary
insanity issue. Because the district court concluded that the facts that Smith asserts are insufficient
to raise a valid intoxication insanity defense, the court held that it was reasonable for trial counsel to
decline to present the evidence. As to Smith’s prison records that demonstrate his prior good
behavior while imprisoned, the district court held that trial counsel was not ineffective for not
presenting the records because trial counsel adduced direct evidence of Smith’s good behavior while
incarcerated, namely, the testimony of Deputy Gentry. Finally, the district court concluded that
contrary to Smith’s assertion, trial counsel did adequately investigate Smith’s upbringing and
background. The district court relied on the affidavits of trial counsel who stated that they
interviewed many of Smith’s family members and childhood acquaintances and made a strategic
decision to only put on the testimony of Smith’s mother, sister and Deputy Gentry. Moreover, the
district court held that even if trial counsel failed to make an adequate investigation, Smith did not
show that trial counsel would have made a different decision about trial strategy had they interviewed
the witnesses Smith now presents. The district court averred that trial counsel’s strategy at
sentencing was to show that Smith could exist peacefully in prison society and Smith’s mother was
integral to this strategy. The evidence Smith now adduces would discredit Smith’s mother because
it paints her as dysfunctional. Therefore, the district court concluded that based on trial counsel’s
strategy, it is unlikely they would have made a different decision concerning the testimony presented
in the punishment phase.
12
Smith argues that trial counsel erroneously decided to forego having a psychologist testify as
to Smith’s cocaine and alcohol abuse. Smith contends that although he informed his trial counsel that
his drug use contributed to the commission of the offense, trial counsel did not develop the evidence
to demonstrate the extent of his abuse nor request an instruction that temporary insanity caused by
intoxication be considered as mitigating evidence. Smith argues that trial counsel erred in basing their
belief that Smith was sane on his appearance and behavior at trial. Instead, Smith asserts that trial
counsel should have explored the issue of the psychological impact of his substance abuse in order
to demonstrate his mental state at the time of the offense. Smith argues that there is sufficient
evidence to raise the issue of intoxication-based temporary insanity and therefore, trial counsel were
ineffective for failing to investigate this ground for mitigation.
Next, Smith argues that trial counsel did not adequately investigate his upbringing. He notes
that trial counsel’s affidavits give no details as to exactly who they contacted or what was learned
from the individuals they contacted. He contends that the record supports the conclusion that trial
counsel only contacted those individuals who actually testified at trial, namely, his mother, his sister
Carolyn, and Deputy Gentry. Had trial counsel conducted a reasonable investigation, Smith contends
that they would have discovered the neglect and physical abuse he suffered as a child, and his
mother’s alcohol and drug use. He asserts that trial counsel were not aware of this information
because they conducted an inadequate investigation.
Finally, Smith contends that trial counsel conducted an incomplete investigation into Smith’s
prior disciplinary records from prison. Smith admits that trial counsel did present the testimony of
Deputy Gentry to speak to his good behavior during prison. Deputy Gentry was familiar with Smith
because Smith was in his custody at the time of trial and had been in Gentry’s custody during a
13
previous incarceration. However, Smith notes that Deputy Gentry was forced to concede that Smith
was isolated from other prisoners during his capital trial. Smith asserts that further investigation
would have revealed that during his several stays in the Texas prison system he has a near spotless
disciplinary record, with the exception of a minor write up. He contends that it is unclear the extent
to which trial counsel reviewed Smith’s prison disciplinary records and why trial counsel failed to
present additional disciplinary records.
The State counters that trial counsel’s decision not to utilize a psychiatric professional to
testify as to the impact of his substance abuse was a strategic decision, and that decision was
reasonable. Had trial counsel introduced such evidence, the State contends the evidence could easily
be a “double edged sword” — meaning it could be viewed as an aggravating factor rather than a
mitigating factor. Furthermore, the State argues that Smith was not prejudiced by this failure because
the facts surrounding the offense are insufficient to raise an intoxication insanity issue. As to the
investigation of Smith’s upbringing, the State emphasizes that Smith’s trial counsel stated in their
affidavits that they did interview family members in preparation for sentencing. Finally, the State
argues that Smith’s trial counsel did in fact adduce direct evidence of Smith’s good behavior while
incarcerated, thus, trial counsel were not ineffective for failing to secure prison records that contained
duplicate information.
We conclude that Smith has demonstrated that reasonable jurists could conclude that the
district court’s assessment of the ineffective assistance of counsel claim is debatable or wrong.
Reasonable jurists could find it debatable whether the facts at bar are sufficiently analogous to the
facts the Supreme Court confronted in Wiggins v. Smith such that the district court erred in finding
14
the state habeas court’s assessment of Smith’s claim objectively reasonable.2 539 U.S. 510 (2003).
In Wiggins, the trial counsel only alluded to Wiggins’ difficult life and his clean criminal record at
sentencing. Wiggins asserted that trial counsel were ineffective for failing to retain a forensic social
worker to prepare a social history even though the State made funds available for that purpose. If
trial counsel had prepared a social history, they would have discovered the severe physical and sexual
abuse he suffered. The state habeas court denied him relief because it found that counsel’s decision
not to investigate and present certain mitigation evidence was based on trial strategy and was thus
not ineffective. Moreover, the state court noted that trial counsel obtained social service records that
did detail some abuse and mental retardation; thus, trial counsel were aware to some extent, and did
conduct some investigation into Wiggins’ unfortunate childhood.
In reversing the state habeas court, the Supreme Court restated that deference is owed
strategic judgments made by trial counsel. However, the Court emphasized that deference is owed
strategic decisions when the investigation supporting those judgments was adequate. Wiggins, 539
U.S. at 521-22. Where trial counsel has not “fulfill[ed] their obligaton to conduct a thorough
i
investigation of the defendant’s background,” “counsel’s failure to uncover and present voluminous
mitigating evidence at sentencing could not be justified as a tactical decision.” Id. at 522 (quoting
Williams, 529 U.S. at 396). Therefore, the “principal concern in deciding whether [trial counsel]
2
Wiggins was announced after the district court’s ruling but it should not be considered a
“new rule” such that Teague v. Lane might bar habeas relief. The Court in Wiggins emphasized that
its decision was not a new rule, rather it was squarely drawn from its previous decisions in Strickland
v. Washington and Williams v. Taylor, therefore, no new law was created. 539 U.S. at 522-23; See
Mackey v. United States, 401 U.S. 667, 695 (1971) (Harlan, J. concurring in part, dissenting in part)
(stating that a "new rule" does not occur when a court has simply "applied a well-established
constitutional principle to govern a case which is closely analogous to those which have been
previously considered in prior case law").
15
exercised ‘reasonable professional judgment’ is not whether counsel should have presented a
mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to
introduce mitigating evidence of Wiggins’ background was itself reasonable.” Id at 522-24 (internal
citations omitted and emphasize in original). The Court held that Wiggins’ trial counsel’s
investigation was inadequate because “counsel abandoned their investigation of petitioner’s
background after having acquired only rudimentary knowledge of his history from a narrow set of
sources.” Id. at 524 (citing the ABA Guidelines for the Appointment and Performance of Counsel
in Death Penalty Cases 11.8.6, p.133 (1989)(stating that among the topics counsel should consider
presenting are medical history, educational history, employment history, family and social history,
prior adult and juvenile correctional experience, and religious and cultural influences)). Trial counsel
did obtain a psychologist to evaluate Wiggins. Trial counsel also procured Wiggins’ social services
records and had available to them the presentence investigation report. However, the Court found
that trial counsel should have nonetheless arranged for a forensic social worker to compile a report
of Wiggins’ social history, and trial counsel was found ineffective for not so doing.
The Court also held that the scope of trial counsel’s investigation was unreasonable in light
of the investigation that they did conduct. In trial counsel’s investigation, they did discover that
Wiggins’ mother was an alcoholic, that he was shuttled between foster homes, and that his mother
often left him and his siblings alone without food. The Court held that based on this information, a
reasonably competent attorney would have further investigated Wiggins’ background. “In assessing
the reasonableness of an attorney’s investigation, a court must consider not only the quantum of
evidence already known to counsel, but also whether the known evidence would lead a reasonable
attorney to investigate further.” Id. at 527. The Court held that Wiggins’ trial counsel “chose to
16
abandon their investigation at an unreasonable juncture, making a fully informed decision with respect
to sentencing strategy impossible. . . . As a result, the court’s subsequent deference to counsel’s
strategic decision not ‘to present every conceivable mitigation defense,’ despite the fact that counsel
based this alleged choice on what we have made clear was an unreasonable investigation, was also
objectively unreasonable.” Id. at 527-28.
Recently, in Rompilla v. Beard, the Supreme Court reaffirmed that a trial counsel’s
perfo rmance cannot be found adequate if it is supported by an unreasonably limited investigation.
125 S. Ct. 2456 (2005). Rompilla’s mitigation evidence consisted of testimony from five of his family
members who pleaded with the jury for mercy, and asserted that Rompilla was an innocent and good
man. Id. at 2460-61. Nonetheless, the jury found that the aggravating factors outweighed the
mitigation evidence and sentenced Rompilla to death. Rompilla later presented a habeas claim for
ineffective assistance of counsel for trial counsel’s failure to present significant mitigating evidence
about Rompilla’s childhood, mental capacity and health, and alcoholism. Id. at 2461. Rompilla
argued that trial counsel should have examined his school records, especially considering several of
his family members were unfamiliar with his childhood and trial counsel knew that he had left school
after the ninth grade. Id. at 2463. Moreover, Rompilla asserted that trial counsel should have
investigated his juvenile and adult incarceration records considering that counsel knew that he had
a criminal history. Id. In addition, Rompilla faulted trial counsel for not investigating whether he had
a history of alcohol dependency in light of certain indications of alcohol abuse. Id. The Third Circuit
found that defense counsel was not ineffective given counsel’s efforts in investigating, including
interviewing Rompilla, several of his family members, and consulting three mental health experts. Id.
at 2461. Moreover, the state court found that defense counsel extensively interviewed Rompilla and
17
several of his family members, and that Rompilla was often actively obstructive in assisting trial
counsel in his defense. Id. at 2462-63, 2472. The Supreme Court reversed the denial of habeas relief.
The Court found that trial counsel’s investigation was unreasonable because counsel failed to examine
Rompilla’s prior conviction file even though the prosecution had acknowledged that it was going to
use Rompilla’s prior convictions as an aggravating factor to push for the death penalty. Id. at 2464.
The Rompilla Court rejected the argument that trial counsel sufficiently investigated Rompilla’s prior
convictions by reviewing his rap sheet. Id. at 2464 n.3. The Court held that if trial counsel had
examined Rompilla’s prior conviction file, counsel would have found information that would have
made t hem skeptical of the impression of Rompilla’s background they had gotten from the family
members thus far. Therefore, counsel would have undoubtably investigated further and uncovered
the voluminous mitigating evidence not introduced at trial. Id. at 2468. The Court also rejected the
contention that the efforts that counsel did take–namely, extensively interviewing Rompilla and his
family, and consulting three mental health experts–were enough to release counsel from investigating
further. Id. at 2466-67.
In the present case, a review of the record and the affidavits submitted reveals that jurists of
reason could debate whether trial counsel conducted a reasonable investigation. As in Wiggins,
counsel in the case before us did investigate possible mitigation evidence. Nonetheless, the Supreme
Court made it clear in Wiggins that even though trial counsel did do some investigating, the question
was whether the investigation conducted could be considered adequate in light of professional norms.
If trial counsel’s investigation was unreasonable then the state habeas court’s, and the district court’s,
deference to the strategic decision trial counsel made was also objectively unreasonable.
18
Joyce Jones, co-counsel at Smith’s trial, stated that Wilbert Smith’s testimony was presented
to demonstrate that Smith had a Christian upbringing, he regularly attended school, he did not give
his mother problems, and he came from a “stable family that was not only based on Christian beliefs,
but was also intact and functional.” Jones’ statements are contrary to the actual testimony presented
at sentencing and to the affidavits submitted by Smith’s family members. Therefore, reasonable jurists
could debate whether trial counsel conducted a reasonable investigation. Despite Jones’ alleged trial
strategy, Wilbert Smith did not testify that Smith came from a stable family, regularly attended church
and school, and gave the family no problems. Wilbert and Carolyn Smith both testified that Smith
came from a disadvantaged background. Specifically, Wilbert Smith testified that Smith's father died
in 1971 and Smith grew up very poor. She stated that she supports herself by welfare, and she lives
in a high-crime area with fourteen other people crammed into her home. Furthermore, she related
how she has helped Smith raise his son since Smith's common law wife died a violent death in 1981.
Finally, she begged for the life of her son. Smith’s own testimony at sentencing, that he has used
drugs and alcohol since the age of 13, also seems to cut against Jones’ assertions that Smith regularly
attended school, did not give his family problems, and that he came from a functional stable
backgro und. Moreover, Smith’s affidavit does not support Jones’ view that Smith had a stable
upbringing. Smith stated in his affidavit that his family lived with his grandmother, Coria Johnson,
when he lived in Louisiana and Dallas. He claimed that his mother was frequently absent from the
home and would leave him in the care of his grandmother, who was physically abusive to him and his
siblings.
The affidavits of Smith’s cousins, in particular Bertha Douglas, also cuts against Jones’ view
of Smith’s background. Bertha Douglas, Smith's cousin, grew up next door to Smith's family in both
19
Louisiana and Dallas, until Smith moved to Houston at the age of eleven. Douglas stated in her
affidavit that Wilbert Smith "was not a good mother." She accused Wilbert of neglecting her
children. She also stated that when Smith and his siblings would "do something Wilbert didn't like,
she whipped them something terrible. Wilbert whipped them with cow whips or anything she could
get her hands on. Wibert [sic] beat those kids something terrible. They would have bruises, whelps,
and cuts after her beatings." Furthermore, she noted that "[a]ll of Wilbert's children ended up on
drugs and in prison . . . Four out of five of Wilbert's kids can not read or write. Carolyn is the only
one who can a little." Douglas claimed that "Wilbert Smith drank everyday. When we moved to
Dallas, Wilbert started dating a man named Tom Jones. Tom Jones was a known drug dealer. . . .
I estimate at least 10 to 20 people would come and go from their home everyday. Sometimes people
would stay all night. . . . So, at the age of 5 or 6, Roy witnessed his mother drinking, doing and selling
drugs." Smith moved to Houston and away from Douglas when he was eleven. Douglas stated that
she "visited them a couple of times in Houston, but after a while I never went back. Every time I
went they had no food, the neighborhood was drug infested, drugs in the home, and people with
guns." Douglas also claimed that Wilbert is "mentally ill," extremely paranoid and practices
witchcraft. "She would have candles and voo-doo stuff all over her home." According to Douglas,
Wilbert had thrown Smith out of the house by the time Smith was fifteen and Smith was living on the
streets of Houston. Bobby, Jerome and James Douglas, Jr., Smith's cousins, each individually stated
that Wilbert neglected her children, beat them, and practiced voo-doo. James Douglas averred that
Smith's family was the most dysfunctional he had ever witnessed. The clash between the affidavit of
Joyce Jones and the statements of Smith and his family could lead a reasonable jurist to at least find
20
it debatable whether trial counsel adequately investigated Smith’s background and were aware of his
true upbringing.
The affidavits from Smith’s family also contradict trial counsel’s assertion that they
extensively interviewed Smith’s family members. Ron Mock, Smith’s other trial counsel, claimed that
he interviewed many of Smith's family members and childhood acquaintances. He stated that after
evaluating all the witnesses, he decided to put just four people on the stand for the punishment phase
of the trial. Joyce Jones, claimed that in preparation for Smith's trial they conducted an extensive
investigation in which they "interviewed various witnesses including his family members, associates,
sheriff's deputies, and his parole officer." She also claimed that they interviewed Smith on numerous
occasions about his social, educational, employment, criminal, and health history. Nonetheless,
Smith’s brother Gilbert, sister Sabrina and grandmother all assert that they were not contacted by trial
counsel even though they would have assisted if allowed.3 The aforementioned cousins of Smith also
contend that they were never contacted by trial counsel although they would have assisted in Smith’s
defense if allowed. Smith’s mother states that she only talked to Smith’s trial counsel for a total of
10 minutes right before she was to testify, and he only asked her questions about Smith’s previous
offenses.4 Despite trial counsel’s assertion that they extensively interviewed and contacted witnesses
3
Smith has two brothers and two sist ers. His sister Carolyn testified at trial. Gilbert and
Sabrina state they were not contacted by trial counsel. Smith's last sibling, his brother George, was
incarcerated, serving an extended prison term and it is not apparent whether he was ever contacted
by trial counsel.
4
Wilbert Smith stated in her affidavit that:
Roy's attorney Ron Mock did not come to my home. We had a brief 10-minute
conversation over the phone. During the conversation with Mr. Mock he asked me
a few questions about my son's past criminal history and why he got in trouble. Mock
also asked me questions concerning the incident which my son was found guilty of
21
and family members, the only persons that Lisa Milstein, the mitigation specialist retained by federal
habeas counsel, could confirm trial counsel contacted were the three persons presented at sentencing.
In Rompilla, trial counsel extensively interviewed several of Rompilla’s family members. 125 S. Ct.
at 2462-63, 2472. Nonetheless, the Court found that trial counsel could not rely on their thorough
interviewing of Rompilla and his family to excuse an unreasonable limitation to their investigation.
Id. at 2466-67. The Court also found it inconsequential that Rompilla impeded trial counsel’s
investigation of mitigating evidence. Based on the numerous affidavits submitted by Smith’s family,
jurists of reason could find that it is debatable whether trial counsel adequately investigated Smith’s
family and social background. Such failure would be unreasonable in light of prevailing professional
norms, Wiggins, 539 U.S. at 524, and in light of the fact that a defendant’s background is
unquestionably relevant to the jury’s determination of whether a sentence less than death is
warranted. Penry v. Lynaugh, 492 U.S. 302, 319 (1989).
Moreover, it is debatable among jurists of reason whether the scope of trial counsel’s
investigation was reasonable in light of the information that they did know. Trial counsel were aware
from Smith that he had a long and extensive history of substance abuse. The evidence adduced
established that Smith had been on a crack cocaine binge during the week previous to the murder,
and that he had smoked 7 crack rocks the day of the offense. He also asserted that he could not
remember committing the murder. Reasonable jurists could debate whether it was consistent with
professional standards to not investigate the psychological and biological impact of Smith’s substance
abuse. The State asserts that such evidence could have a double edge sword quality such that it was
capital murder. The first time I met Ron Mock was outside the courtroom the day I
testified. Mock told me that I was supposed to plead with jurors not to kill my son.
Mock also asked me if I knew anything about some stolen watches.
22
a reasonable strategic decision not to present a psychiatric expert. However, “strategic choices made
after thorough investigations of law and facts relevant to plausible options are virtually
unchallengeable; [while] strategic choices made after less than complete investigations are reasonable
precisely to the extent that reasonable professional judgments support the limitations on
investigation.” Strickland v. Washington, 466 U.S. 668, 690-91 (1984) (emphasis added).
At sentencing, trial counsel's argument was based in part on a theory that Smith “was too high
on coke during the offense for it to be deliberate.” In that same vein, Smith testified at sentencing
about his cocaine addiction, its influence upon his behavior, and his inability to remember parts of the
evening the offense occurred due to his intoxication. Even though trial counsel’s theory at sentencing
was grounded on the contention that Smith’s substance abuse affected his judgment, trial counsel did
not investigate the effect Smith’s substance abuse history could have had on him generally or
specifically at the time of the offense. It is reasonably debatable whether trial counsel’s failure to
investigate this line of evidence rendered their investigation inadequate, particularly in light of trial
counsel’s defense theory and Smith’s assertion that he did not remember the offense.5 As in Wiggins
where the Court held that trial counsel’s awareness of Wiggins’ troubled childhood would have
prompted a reasonably competent attorney to investigate further, in the case at bar reasonable jurists
5
Dr. Paula Lundberg-Love, a psychologist who specializes in psycho-pharmacology–the
study of the effects of drugs and alcohol upon an individual’s cognitive functioning and
behavior–asserts in her affidavit that based upon the information that Smith propounds concerning
his substance abuse history it is highly likely that Smith has organic brain damage. Given Smith’s
chronic alcohol abuse and the reported level of consumption, Dr. Love averred that it is highly likely
that Smith has suffered organic impairment that could have an effect on his behavior and cognitive
understanding. She also asserts that Smith’s history of crack cocaine probably influenced his
understanding of right and wrong at the time of the offense, as well as his understanding of his rights
when he later provided his written confessions. In addition, she asserted that the method in which
Smith administered crack–inhalation directly into the lungs–likely caused a temporary delusional
disorder, and the heavy abuse may have also disrupted his memory.
23
could debate whether in light of Smith’s, his sister Carolyn’s and his mother’s testimony that Smith
came from a disadvantaged background, a reasonably competent attorney would have investigated
his background further.
Although failure to present mitigating evidence during the penalty phase is not per se
ineffective assistance of counsel, counsel has a duty to make a reasonable investigation of defendant's
case or to make a reasonable decision that a particular investigation is unnecessary. Ransom v.
Johnson, 126 F.3d 716, 723 (5th Cir. 1997). Here, reasonable jurists could debate whether the
investigation that supported trial counsel’s strategy at sentencing was reasonable and adequate. If
trial counsel’s investigation was unreasonable then making a fully informed decision with respect to
sentencing strategy was impossible. Wiggins, 539 U.S. at 527-28. As a result, the district court’s
and the state habeas court’s decision to give deference to trial counsel’s strategic decision would also
be objectively unreasonable. Id. at 528.
In assessing whether Smith was prejudiced by trial counsel’s conduct, the court should
“reweigh the evidence in aggravation against the totality of the available mitigating evidence.” Id.
at 534. Here, trial counsel only presented the testimony of four people at sentencing. In light of the
scant mitigation evidence presented, reasonable jurists could debate whether the evidence Smith now
proffers would have convinced a juror that Smith was less morally culpable such that life
imprisonment, rather than the death penalty, was appropriate. Because we conclude that Smith has
established that reasonable jurists could find the district court erred in rejecting the underlying merits
of Smith’s claim and because, as previously stated, we find that the district court’s procedural ruling
is likewise debatable, we conclude that a COA should be issued.
II. Jury Nullification Instruction
24
Smith’s trial occurred in May 1990, a year after Penry v. Lynaugh, 492 U.S. 302 (1989)
(“Penry I”). In response to Penry I, the state trial court submitted an instruction to the jury advising
the jury, inter alia, to give effect to its consideration of mitigating evidence by submitting a negative
answer to the special issues if the mitigation evidence sufficiently required the imposition of a life
sentence.6 The supplemental instruction given in Smith case is identical to the supplemental
6
In this case, the trial court instructed the jury as follows:
You are instructed that when you deliberate on the questions posed in the special
issues, you are to consider all relevant mitigating circumstances, if any, supported by
the evidence presented in both phases of the trial, whether presented by the State or
the defendant. A mitigating circumstance may include, but is not limited to, any
aspect of the defendant’s character, background, record, or circumstance of the crime
which you believe could make a death sentence inappropriate in this case. If you find
that there are any mitigating circumstances in this case, you must decide how much
weight they deserve, and thereafter, give effect and consideration to them in assessing
the defendant’s personal culpability, at the time you answer the special issue. If you
determine when giving effect to the mitigating evidence, if any, that a life sentence,
as reflected by a negative finding on the issue under consideration, rather than a death
sentence, is an appropriate response to the personal culpability of that defendant, then
a negative finding should be given to that special issue under consideration.
The supplemental instruction given at Smith’s trial is identical to the supplemental instruction
denounced by the Supreme Court in Penry v. Johnson, 532 U.S. 782, 789-90 (2001):
“You are instructed that when you deliberate on the questions posed in the special
issues, you are to consider mitigating circumstances, if any, supported by the evidence
presented in both phases of the trial, whether presented by the state or the defendant.
A mitigating circumstance may include, but is not limited to, any aspect of the
defendant's character and record or circumstances of the crime which you believe
could make a death sentence inappropriate in this case. If you find that there are any
mitigating circumstances in this case, you must decide how much weight they deserve,
if any, and therefore, give effect and consideration to them in assessing the defendant's
personal culpability at the time you answer the special issue. If you determine, when
giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a
negative finding to the issue under consideration, rather than a death sentence, is an
appropriate response to the personal culpability of the defendant, a negative finding
should be given to one of the special issues.”
25
instruction later denounced by the Supreme Court in Penry v. Johnson. The jury affirmatively
answered all three special issues.7
Smith contends that the supplemental instruction given to the jury violated his Eighth and
Fourteenth Amendment rights because it did not provide an adequate vehicle for the jury to consider
and give effect to Smith’s mitigating evidence of drug addiction/intoxication, childhood poverty, and
exposure to a crime-infested environment as a youth.
First, the district court addressed whet her Smith’s Penry claim was procedurally barred.
Smith raised his argument on direct appeal to the Texas Court of Criminal Appeals. That court
rejected Smith’s claim because (a) the state court had previously approved of similar jury instructions
in response to Penry, and (b) Smith failed to make a contemporaneous objection of egregious error
to the court’s charge. The district court found that the Texas Court of Criminal Appeals intermixed
its procedural discussion with its merits resolution, and thus, the Texas Court of Criminal Appeals
did not clearly and expressly rely on an independent state procedural bar in denying Smith’s claim.
Second, the district court addressed four areas of mitigating evidence presented by Smith: poverty;
drug addiction and intoxication; character evidence; and growing up in a crime-ridden environment.
7
The three special issues submitted pursuant to TEX. CODE CRIM. PROC. art. 37.071(b)
(Vernon 1981) were as follows:
(1) Was the conduct of the defendant, Roy Gene Smith, that caused the death of
the deceased committed deliberately and with the reasonable expectation that the
death of the deceased or another would result?
(2) Is there a probability that the defendant, Roy Gene Smith, would commit
criminal acts of violence that would constitute a continuing threat to society?
(3) Was the conduct of the defendant, Roy Gene Smith, in killing the deceased
unreasonable in response to the provocation, if any, by the deceased?
26
The district court held that Smith’s mitigating evidence was not comparable to Penry I, and thus, the
special issues provided the constitutionally mandated vehicle for jury consideration of the mitigation
evidence. See Robertson v. Cockrell, 325 F.3d 243, 253 (5th Cir. 2003).
After the parties submitted their briefs in this appeal, the Supreme Court decided Tennard v.
Dretke, 124 S. Ct. 2562 (2004), and Smith v. Texas, 125 S. Ct. 400 (2004). We ordered the parties
to submit supplemental briefing, in light of the rulings in Tennard and Smith, but although the State
complied with our order, Smith never filed a supplemental brief addressing Smith and Tennard.
In the State’s supplemental briefing, the State argues that Smith and Tennard are fact specific
applications of Penry I and Penry II, that do not affect this case. They contend that despite the
presence of the constitutionally defective supplemental instruction, Smith is still required to show that
the jury was prevented from giving effect to his mitigation evidence. The State asserts that Smith and
Tennard do not affect this Circuit’s prior jurisprudence that would support finding that Smith’s
evidence of an improvished background, growing up in a crime-infested environment and alcohol
abuse can all be given effect through both the deliberateness and future dangerousness special issue
questions. Additionally, the State argues that the definition of “deliberate” that was given with the
instructions cures any deficiencies with the instruction.
The supplemental instruction given at Smith’s trial is identical to the instruction that has been
denounced by the Supreme Court on two occasions. See Penry II, 532 U.S. 782;Smith, 125 S. Ct.
400. “The Court has found a supplemental instruction, like the one present in [Smith’s] trial, to be
unconstitutional only where the special issue questions themselves are not broad enough to provide
a vehicle for the jury to give effect to the defendant's mitigation evidence.” Bigby v. Dretke, 402
F.3d 551, 570 (5th Cir. 2005) (citation omitted). “When the jury is able to consider and give effect
27
to the mitigation evidence in imposing sentence, the special issue questions are constitutionally
adequate. Thus, in considering a Penry II claim, the court must ask whether the evidence is beyond
the effective reach of the jury.” Id. (citation omitted).
Smith’s mitigation evidence that he asserts the jury could not give effect to was evidence of
(1) addiction/intoxication, (2) childhood poverty, and (3) exposure to crime-infested environment.
On cursory review, it would seem as though Smith’s argument that his evidence of addiction/
intoxication was beyond the scope of the special issue questions is foreclosed by Circuit precedent.
Smith took the stand at sentencing and explained that he was high on crack and under the influence
of alcohol at the time of the murder and did not remember killing Whitmire. This Circuit has held that
mitigation evidence of the defendant’s intoxication at the time of the offense can be considered under
the deliberateness question. See, e.g., Cordova v. Collins, 953 F.2d 167, 170 (5th Cir. 1992); Kelly
v. Lynaugh, 862 F.2d 1126, 1133 (5th Cir. 1988). Smith also testified that he has had no behavioral
problems when he was not under the influence of crack or alcohol. This Circuit has held that such
evidence of addiction could be considered under the future dangerousness question. See, e.g.,
Cordova, 953 F.2d at 170. These cases do not seem to rely on the rejected constitutionally relevance
test and therefore their holdings seem to be undisturbed by Tennard and Smith.
Arguably, Smith’s claim that the jury could not consider evidence that he grew up in poverty
and was exposed to a crime-infested environment as a child, is foreclosed by this Circuit’s decisions
that have denied Penry claims based upon a defendant’s assertion that evidence of a troubled
childhood was no t within the special issue questions. However, the cases that have denied Penry
relief for evidence of a troubled childhood seem to rely, in one way or another, on the now rejected
constitutional relevance test. See, e.g., Davis v. Scott, 51 F.3d 457, 461-62 (5th Cir. 1995) (evidence
28
of troubled childhood, alone without demonstrating any link to the crime, does not constitute
"constitutionally relevant mitigating evidence"); Madden v. Collins, 18 F.3d 304, 308 (5th Cir. 1994)
(evidence of troubled childhood is not constitutionally relevant mitigating evidence when not
attributable to the crime); Barnard v. Collins, 958 F.2d 634, 638-39 (5th Cir. 1992) (rejecting Penry
claim where crime not “attributable” to the proffered evidence of troubled childhood). Contra
Tennard, 124 S. Ct. at 2571 ("The Fifth Circuit was likewise wrong to have refused to consider the
debatability of the Penry quest ion on the ground that Tennard had not adduced evidence that his
crime was attributable to his low IQ."); see also Robertson, 325 F.3d at 259 (Higginbotham, J.,
concurring) (“The majority dismisses the defendant's effort to push his evidence of mitigation into the
Penry ring as contending for a categorical treatment of all child abuse. Fair enough; however. . . [w]e
must be careful that this push not lead us to categorically exclude classes of mitigating evidence such
as child abuse.”). Because we have not addressed this issue since the Supreme Court’s rejection of
the constitutional relevance test, we find that Smith’s Penry claim is debatable among jurists of
reasons and we grant a COA.
Smith also has another hurdle in the form of In re Kunkle. In Kunkle, this court stated that
“[a]ny reading of Smith as not being limited to mental impairment but rather reaching all types of
mitigating evidence is inconsistent with [Jurek v. Texas, 428 U.S. 262 (1976), Graham v. Collins,
506 U.S. 461 (1993), Johnson v. Texas, 509 U.S. 350 (1993)]. We are not persuaded that the Court
intended to undercut Jurek, Graham, and Johnson without even citing them. Whether Tennard or
Smith sweep so broadly as to create a conflict with its own Jurek or Graham decisions is for the
29
Supreme Court.” In re Kunkle, 398 F.3d 683, 685 (5th Cir. 2005).8 In order to assist this court in
adjudicating the merits of Smith’s Penry claim, he must directly address the precedents we have cited
and how they affect the disposition of the merits of his claim.
III. Claim for Funds under 21 U.S.C. § 848 for Assistance of a Psychologist
Following the denial of two ex parte motions for the assistance of a psychologist,9 Smith filed
his federal habeas application without the assistance of a psychologist to assist in the development
and pleading of a claim focusing on mitigating evidence of Smith’s mental state following his
substance abuse. The district court denied Smith’s habeas writ, without granting an evidentiary
hearing, rendering Smith’s motion for expert assistance moot.
Under § 848(q)(4)(b):
8
We note that the Supreme Court has never explicitly stated that Penry claims cannot be
extended beyond claims involving evidence of “mental impairment.” In fact at times, it seems the
Court has said the exact opposite. For example, in Smith v. Texas, the defendant put forward
evidence of (1) organic learning disabilities and speech handicaps; (2) verbal IQ score of 75 and a full
IQ score of 78; (3) his exemplary behavior at school despite his learning disabilities; (4) the
involvement of his father with drugs and gang violence; and (5) Smith’s young age of nineteen at the
time he committed the crime. In granting his Penry claim, the Supreme Court did not in any way
highlight any particular piece of Smith’s evidence. The only mention the Smith Court made of
whether the defendant’s evidence was outside the reach of the special issue questions was the Court’s
single sentence that “[j]ust as in Penry II, petitioner's jury was required by law to answer a verdict
form that made no mention whatsoever of mitigation evidence. And just as in Penry II, the burden
of proof on the State was tied by law to findings of deliberateness and future dangerousness that had
little, if anything, to do with the mitigation evidence petitioner presented.” 125 S. Ct. 400, 407
(2004).
9
The first ex parte motion was denied by the district court with leave to re-file upon providing
further support for the need of an investigator. Smith subsequently filed a second ex parte motion
for the same claim, this time supported by affidavits by Smith and Dr. Paula Lundberg-Love,
demonstrating the possibility that Smith’s cognition at the time of the offense was impaired by the use
of cocaine and alcohol. The district court again denied Smith’s motion with leave to re-file upon the
Court’s determination that Smith was entitled to an evidentiary hearing.
30
In any post conviction proceeding under section 2254 or 2255 of Title 29, seeking to
vacate or set aside a death sentence, any defendant who is or becomes financially
unable to obtain adequate representation or investigative, expert, or other reasonably
necessary services shall be entitled to the appointment of one or more attorneys and
the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8),
and (9).
(emphasis added).
Similarly, § 848(q)(4)(b) expressly incorporates § 848(q)(9):
Upon a finding that investigative, expert, or other services are reasonably necessary
for the representation of the defendant, whether in connection with issues relating to
guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such
services on behalf of the defendant and, is so authorized, shall order the payment of
fees and expenses therefor under paragraph (10) [Paragraph 10 provides that the
court shall fix reasonable rates for reasonable expenses].
(emphasis added).
Smith contends that the district court erred in denying him funding for an expert psychologist
under 21 U.S.C. § 848, which provides for funding for attorney, investigative, and expert assistance
in post-conviction proceedings. Smith argues that he has a “mandatory right” to the assistance of a
psychologist as long as he shows that he is indigent and that expert assistance is reasonably necessary.
Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir. 1997). Moreover, Smith contends that his need for
a psychologist was reasonably necessary because such service would be necessary to permit his
counsel to obtain evidence not yet acquired to support his ineffective assistance of counsel claim.
McFarland v. Scott, 512 U.S. 849, 855 (1994). Specifically, the affidavit of Dr. Paula Lundberg-
Love could show a valid basis to examine Smith’s drug and alcohol use to determine whether it
would support a defense mitigation theory. Smith’s counsel would be unable to develop or
investigate such evidence in the absence of a qualified expert.
31
The State counters with the authorization of investigative funds is within the discretion of the
district court. See Fuller, 114 F.3d at 502. Moreover, the State argues that Smith’s ineffective
assistance of counsel claim was procedurally defaulted, thus Smith failed to demonstrate a reasonable
necessity for further investigation of his claim.
This court has held that a COA is not necessary to appeal the denial of funds for expert
assistance. Hill v. Johnson, 210 F.3d 481, 487 fn.3 (5th Cir. 2000). Therefore, because a COA is
not necessary, this court’s reviews orders involving § 848(q) for abuse of discretion. Id. at 487. This
court has upheld the denial of such funding when a petitioner has (a) failed to supplement his funding
request with a viable constitutional claim that is not procedurally barred Fuller, 114 F.3d at 502, or
(b) when the sought-after assistance would only support a meritless claim, Hill, 210 F.3d at 476, or
(c) when the sought after assistance would only supplement prior evidence. See Barazza v. Cockrell,
330 F.3d 349 (5th Cir. 2003).
Smith does not show an abuse of discretion here. The question of mental capacity, like in
Barazza, was presented in this instance to the jury at trial. The jury heard testimony during the
punishment phase from Smith that he used drugs and alcohol the day of the offense, as well as almost
every day prior. Smith is now attempting to develop more evidence to support his claim of temporary
insanity by introducing the affidavit of Dr. Love, to supplement his temporary insanity claim. Such
supplemental evidence has been rejected by this court. See Chase v. Epps, 74 Fed. Appx. 339, 344
(5th Cir. 2003) (quoting Barazza, 330 F.3d at 352) (rejecting a section 848(q) claim where mental
capacity had been presented to the jury and “petitioner was not attempting to supplement, if not
contradict, the expert testimony rejected by the jury”). The testimony of Dr. Love would supplement
the prior testimony of Smith during the punishment phase — that Smith had constantly ingested
32
alcohol and cocaine prior to the offense — of which the jury has already been made aware.
Therefore, the district court judge did not abuse his discretion in rejecting the allocation of funds for
the development of supplemental evidence.
Moreover, even if Smith can show “reasonable necessity,” the granting of funds under section
848(q) is a discretionary decision to which Smith does not have a mandatory right. In 1996, the
AEDPA section 108 changed section 848(q)(9) inter alia “changing the mandatory ‘shall’ language
to the discretionary ‘may.’ AEDPA § 108, Pub. L. No. 104-32, 110 Stat. 1226 (1996); Fuller, 114
F.3d at 502. Here, the district court decided Smith’s habeas petition post-1996, and thus AEDPA
applies. The language of section 848(q)(9) states that upon a finding that an expert is “reasonably
necessary . . .the court may authorize” the granting of funds. Thus, the change from ‘shall’ to ‘may’
therefore can only reasonably be construed as changing a mandatory granting of funds to a
discretionary granting of funds even if the reasonable necessity language is complied with. The
district court judge did not abuse his discretion in denying the grant of funds.
Conclusion
For the reasons outlined above, Smith’s request for a COA is GRANTED as to his ineffective
assistance of counsel claim and his Penry claim. The district court decision to deny the grant of funds
for an expert under § 848 is AFFIRMED.
33