United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-40277
KEITH MICHAEL ST. AUBIN,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(3:02-CV-397)
Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Keith Michael St. Aubin contests the denial of habeas relief
for his Texas-state-court conviction of, inter alia, murder, for
which he was sentenced to life imprisonment. Pursuant to our
highly deferential standard of review under the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (1996) (AEDPA), at issue is whether the following state-habeas
decision is unreasonable: St. Aubin’s lead trial counsel was not
ineffective at the trial’s punishment phase, for either his
1
investigation of, or decision not to present, mitigating evidence
concerning St. Aubin’s mental-health history. AFFIRMED.
I.
In February 1998, St. Aubin, then 19 years old and armed with
a loaded semi-automatic handgun, attended a street festival in
Galveston, Texas. Juan Garcia, who was attending the festival with
friends, felt someone push him and turned around to see St. Aubin.
A heated verbal argument and scuffle ensued between St. Aubin and
Garcia and his friends, ending with St. Aubin shooting the handgun
into the crowd, killing one person and injuring four. Witnesses
testified they did not observe Garcia or anyone with him possessing
or reaching for a weapon.
After the shooting, St. Aubin offered to pay two men to give
him a ride. St. Aubin told them he had just shot several people,
never mentioning that he feared for his life or that Garcia and his
friends had weapons. For safety reasons, the driver took the clip
from St. Aubin’s handgun while they were in the vehicle. On the
way to the destination, the vehicle became stuck; the driver sought
the assistance of police officers in the area. When the police
found the clip in the driver’s pocket, St. Aubin assaulted one of
the Officers.
At the trial’s guilt/innocence phase, St. Aubin claimed he
shot the victims in self-defense, after they surrounded him to
attack him. Although St. Aubin had an extensive history of mental-
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health problems, his lead trial counsel (LTC) did not include them
as part of the defense. A jury convicted St. Aubin of one count of
murder, four counts of attempted capital murder, and two counts of
assault on a public servant.
At the trial’s punishment phase, the State presented evidence
of St. Aubin’s bad reputation and character, including: deputies
testified about threats St. Aubin made in jail toward them and his
alleged suicide attempts; a fellow inmate testified St. Aubin
offered him money to help him execute an escape plan; and St.
Aubin’s high school coach testified St. Aubin did not have a
reputation as a peaceful, law-abiding citizen. St. Aubin’s LTC did
not call any witnesses. He maintained the shootings were not
premeditated but rather the panicked, impulsive reaction of a
frightened 19-year-old. In closing, the State argued St. Aubin’s
failure to present rebuttal witnesses confirmed his malicious
character. St. Aubin was sentenced to life for the murder and
attempted-murder convictions and ten years confinement for the
assault-on-a-public-servant conviction.
On appeal, St. Aubin claimed his LTC had been ineffective at
the trial’s guilt and punishment phases, by failing to develop and
present evidence of St. Aubin’s psychiatric conditions, which would
have both been relevant to his defense and mitigated his
punishment. In rejecting these claims and affirming St. Aubin’s
conviction and sentence, the intermediate court of appeals held:
“Nothing in the record shows counsel’s reasons for not offering the
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[medical] records, which also exposed multiple serious extraneous
bad acts. We will not speculate on those reasons”. St. Aubin v.
State, No. 01-98-01318-CR, 2000 WL 675705, at *1 (Tex. App. 25 May
2000). St. Aubin did not file a petition for discretionary review
with the Texas Court of Criminal Appeals (TCCA).
St. Aubin filed numerous state-habeas applications. Attached
to those applications were St. Aubin’s medical records from the
Galveston County Jail, West Oaks Psychiatric Hospital, and Dr.
Ronald Garb, his treating psychiatrist, and affidavits by the
following: Dr. Garb; Dr. Seth Silverman, a forensic psychiatrist
who examined and evaluated St. Aubin; Richard Burr, a lawyer and
claimed expert in penalty-phase representation; and St. Aubin’s
mother. The medical records showed hospitalization on two
occasions for psychiatric reasons and prescriptions for a number of
anti-psychotic medications. Evidence of St. Aubin’s mental
illness, aggression, isolated acts of violence, and other
incidences of anti-social behavior also were discussed in the
records, many of which St. Aubin’s mother had provided his LTC
prior to trial. The state-habeas trial court, without an
evidentiary hearing, recommended denial of relief.
The TCCA, however, concluded additional fact finding was
required to resolve the claimed ineffective-assistance-of-counsel
(IAC). Therefore, it remanded the proceeding to the state-habeas
trial court in order to have LTC explain why St. Aubin’s mental
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health, and its impact on his reaction to stress, had not been
presented at the trial’s punishment phase.
On remand, the state-habeas trial court ordered St. Aubin’s
LTC to address the IAC claim, including explaining why he did not
introduce evidence at the punishment phase showing St. Aubin had
prior mental problems that caused him to react in certain ways to
stress. In response, St. Aubin’s LTC submitted an affidavit in
which he: described his “extensive meetings” with St. Aubin and
his parents, discussing “all aspects of Mr. St. Aubin’s life,
background, and family history”; stated he was unaware of any prior
mental problems that would cause St. Aubin to react to stress in
ways that might explain the shootings; noted the double-edged
nature of mental-health evidence, in that it might diminish St.
Aubin’s blameworthiness but also indicate future dangerousness;
described his “strategic decision not to call any witnesses” at the
punishment phase; and stated that decision was made in consultation
with St. Aubin and his family.
The state-habeas trial court again recommended the denial of
habeas relief and made the following factual findings: (1) LTC
made a strategic decision not to call any witnesses at the
punishment phase to avoid opening the door to prior bad acts and
unadjudicated extraneous offenses; (2) although witnesses were
available to testify, after consultation with St. Aubin and his
family, LTC made a strategic decision not to call witnesses; (3)
LTC was unaware “of any evidence ‘of prior mental problems causing
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[St. Aubin] to react in certain ways to stress’” and such evidence
was not made known to counsel after extensive consultation with St.
Aubin and his family; and (4) if credible, meaningful mental-health
evidence had existed, LTC would nevertheless have struggled with
the strategic decision whether to present the evidence in
mitigation of punishment, for fear it would have been outweighed by
the danger of the State’s introducing evidence of bad acts and
extraneous offenses not previously introduced.
St. Aubin objected to the state-habeas trial court’s findings
and attached affidavits refuting LTC’s. Pursuant to the state-
habeas trial court’s findings, the TCCA denied St. Aubin’s habeas
application without written order.
Under 28 U.S.C. § 2254, St. Aubin sought federal habeas
relief, with two of his claims being for IAC. The magistrate judge
held an evidentiary hearing to determine the extent to which LTC
investigated St. Aubin’s mental-health history and reasons for not
introducing mental-health evidence at the punishment phase,
including testimony by LTC clarifying his state-habeas affidavit.
LTC testified that affidavit was intended to convey that, while he
was aware of St. Aubin’s mental-health issues, he did not view any
of it as mitigating, instead viewing it all as aggravating. Other
evidence introduced at the hearing included an audiotaped portion
of LTC’s conversation with Dr. Garb during the trial-preparation
period that contradicted Dr. Garb’s state-habeas affidavit that he
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never discussed St. Aubin’s psychiatric history with LTC. Dr. Garb
had advised LTC that St. Aubin’s psychiatric problems were
insufficient to raise an insanity defense because St. Aubin
understood the difference between right and wrong.
The magistrate judge’s extremely comprehensive report and
recommendation stated, inter alia: St. Aubin had not made the
necessary showing for habeas relief on his failure-to-investigate
claim — what a proper investigation would have revealed — because
he pointed only to information with which LTC was already familiar;
and, similarly, LTC’s decision not to call witnesses at the
punishment phase was not unreasonable, and, even if it were, St.
Aubin had failed to show the requisite prejudice.
In the light of St. Aubin’s objections to that report and
recommendation, the district court conducted a de novo review.
Pursuant to a detailed analysis of the record, it overruled the
objections, accepted the report and recommendation, and denied
habeas relief. St. Aubin v. Dretke, No. G-02-397 (S.D. Tex. 16
Feb. 2005). Shortly thereafter, by separate order and pursuant to
28 U.S.C. § 2253(c)(2), it granted a certificate of appealability
on the issues of whether St. Aubin received IAC based on LTC’s:
(1) investigation of his mental-health history; and (2) decision
not to present evidence of that history at the trial’s punishment
phase.
II.
7
As noted, AEDPA governs St. Aubin’s 28 U.S.C. § 2254 habeas
petition. “AEDPA’s purpose [is] to further the principles of
comity, finality, and federalism”. Williams v. Taylor, 529 U.S.
420, 436 (2000). In pursuit of these principles, for a “claim that
was adjudicated on the merits in State court proceedings”, AEDPA
allows habeas relief only if “adjudication of the claim--”
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d)(1) and (2) (emphasis added). Accordingly, §
2254(d) permits a federal habeas court “to review only a state
court’s ‘decision,’ and not the written opinion explaining that
decision”. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en
banc), cert. denied, 537 U.S. 1104 (2003).
“A state-court decision is ‘contrary to’ federal law if it
relies on legal principles in direct conflict with prior Supreme
Court holdings, or if it reaches a different conclusion than that
reached by the Court on materially indistinguishable facts.”
Henderson v. Quarterman, 460 F.3d 654, 659 (5th Cir. 2006). A
state-court decision “involves an unreasonable application” where,
although “the state court correctly identifies the governing legal
principle ... [it] unreasonably applies it to the facts of the
8
particular case”. Bell v. Cone, 535 U.S. 685, 694 (2002). Simply
an erroneous or incorrect application of federal law is not
unreasonable; rather, the state-court’s application must be
objectively unreasonable. Rompilla v. Beard, 545 U.S. 374, 380
(2005).
The state-court’s determination of the facts on which it based
its decision is “presumed to be correct” in the context of § 2254
(d)(2). The habeas petitioner has “the burden of rebutting the
presumption of correctness by clear and convincing evidence”. 28
U.S.C. § 2254(e)(1).
An evidentiary hearing having been held in district court, its
findings of fact are reviewed for clear error; its conclusions of
law, de novo. E.g., Collier v. Cockrell, 300 F.3d 577, 582 (5th
Cir.), cert. denied, 537 U.S. 1084 (2002). A finding is clearly
erroneous only if it is implausible in the light of the record
considered as a whole. E.g., United States v. Cluck, 143 F.3d 174,
180 (5th Cir. 1998), cert. denied, 525 U.S. 1073 (1999).
For an IAC claim, Strickland v. Washington, 466 U.S. 668
(1984), provides the relevant underlying federal law. To prevail
on such a claim in state court, St. Aubin had to show: (1) LTC’s
performance was deficient; and (2) that performance prejudiced his
defense. Id. at 687. Under Strickland’s first prong, St. Aubin
had to show in state court that his LTC’s representation “fell
below an objective standard of reasonableness”. Id. at 688.
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Courts start with the presumption that counsel’s conduct falls
within the wide range of reasonable professional conduct. Soffar
v. Dretke, 368 F.3d 441, 471 (5th Cir. 2004). Under the second
prong, St. Aubin had to show in state court “there is a reasonable
probability that, but for his LTC’s unprofessional errors, the
result of the proceeding would have been different”. Strickland,
466 U.S. at 694.
As reflected above, a federal court’s AEDPA review of a state-
court denial of an IAC claim does not include determining whether
St. Aubin established IAC by satisfying each of Strickland’s
prongs. E.g., Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.
2003), cert. denied, 540 U.S. 1154 (2004). Rather, it determines
whether the state-court decision that St. Aubin did not make the
requisite IAC showing was contrary to, or an unreasonable
application of, clearly-established federal law for succeeding on
such a claim. E.g., Henderson, 460 F.3d at 655. Along this line,
it bears emphasis that, in addition to the TCCA remanding for LTC
to file an affidavit in the state-habeas trial court and for
further fact finding by that court, St. Aubin had the rare
advantage of an evidentiary hearing for his IAC claims in district
court.
A.
10
For the first of his two IAC claims, St. Aubin maintains his
LTC failed to properly investigate his mental-health history.
“[C]ounsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations
unnecessary”. Strickland, 466 U.S. at 691. The reasonableness of
the investigation involves “not only the quantum of evidence
already known to counsel, but also whether the known evidence would
lead a reasonable attorney to investigate further”. Wiggins v.
Smith, 539 U.S. 510, 527 (2003). “[A] petitioner must allege with
specificity what the investigation would have revealed and how it
would have changed the outcome of the trial”. Miller v. Dretke,
420 F.3d 356, 361 (5th Cir. 2005).
St. Aubin contends his LTC’s investigation of his mental-
illness history, consisting of a five-minute telephone conversation
with his psychiatrist (Dr. Garb) and a review of documents
submitted by his mother, failed to reveal: the function of St.
Aubin’s prescribed medications; a professional explanation of St.
Aubin’s medical records; and that St. Aubin was suffering from
paranoid delusions shortly before he fired his handgun into the
crowd. He relies on affidavits by Drs. Garb and Silverman (the
earlier-referenced forensic psychiatrist) to show the specific
evidence his LTC would have uncovered had he conducted a proper
investigation. St. Aubin claims prejudice because this information
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would have given the jury a framework within which to understand
his actions and would have shown his illness was treatable.
St. Aubin has not established that the state-court decision
was unreasonable in finding further investigation by his LTC would
not have uncovered evidence that would have altered the outcome of
the proceeding. The affidavits of Drs. Garb and Silverman support
the district court’s conclusion that these affidavits do not
contain mental-health information not already known to LTC and,
therefore, are not evidence that would have been uncovered by a
more thorough investigation.
As established at the district court evidentiary hearing, the
evidence known to LTC at trial was substantial. He had reviewed
all of St. Aubin’s medical records, which included accounts of his
psychiatric hospitalizations, read the detailed history of St.
Aubin’s life submitted by his mother, spoken with St. Aubin’s
treating psychiatrist, and reviewed St. Aubin’s jail records. As
a result, LTC knew St. Aubin had been diagnosed as paranoid, had
sociopathic traits, understood the difference between right and
wrong, and had been prescribed medication for psychosis and
depression. Furthermore, St. Aubin’s medical history showed he had
not complied conscientiously with treatment programs and had
behaved violently even while undergoing some form of treatment.
According to LTC’s testimony at the district-court evidentiary
hearing, he was deeply concerned the jury would be more, not less,
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inclined to consider St. Aubin a future danger if it were provided
this information. An attorney who wants to keep damaging
information out of a sentencing hearing does not act unreasonably
by failing to investigate the damaging evidence further. See
Foster v. Johnson, 293 F.3d 766, 780-81 (5th Cir.) (finding not
unreasonable state-court determination that attorney did not
conduct inadequate investigation by failing to pursue additional
psychological evidence when relevant known evidence was
aggravating), cert. denied, 537 U.S. 1054 (2002). It was not
unreasonable for the state court to conclude that any additional
information uncovered regarding St. Aubin’s mental-health history
would not have been helpful to the case.
In his state-habeas affidavit, St. Aubin’s LTC stated he was
unaware of his prior mental problems affecting his reaction to
stress. Obviously, that statement is of concern, given the many
indications to the contrary. In any event, the district court
credited LTC’s explanation (testimony) at its evidentiary hearing,
and this finding was not clearly erroneous. Pursuant to the highly
deferential AEDPA standard of review, the state-court decision for
this failure-to-investigate claim was not unreasonable.
B.
St. Aubin’s other IAC claim concerns his LTC’s not presenting
at the trial’s punishment phase evidence of his mental-health
history in mitigation. “[S]trategic choices made after thorough
13
investigation of law and facts relevant to plausible options are
virtually unchallengeable”. Strickland, 466 U.S. at 690.
Moreover, “‘[a] conscious and informed decision on trial tactics
and strategy cannot be the basis for constitutionally ineffective
assistance of counsel unless it is so ill chosen that it permeates
the entire trial with obvious unfairness’”. United States v.
Jones, 287 F.3d 325, 331 (5th Cir.) (quoting Garland v. Maggio, 717
F.2d 199, 206 (5th Cir. 1983)), cert. denied, 537 U.S. 1018 (2002).
Although not all of the additional evidence need be favorable
to the petitioner for counsel to have been ineffective for failing
to present mitigating evidence, Williams, 529 U.S. at 396,
“Strickland requires ... [courts to] defer to counsel’s decision
... not to present a certain line of mitigating evidence when that
decision is both fully informed and strategic, in the sense that it
is expected, on the basis of sound legal reasoning, to yield some
benefit or avoid some harm to the defense”. Moore v. Johnson, 194
F.3d 586, 615 (5th Cir. 1999). Furthermore, “a tactical decision
not to pursue and present potentially mitigating evidence on the
grounds that it is double-edged in nature is objectively
reasonable, and therefore does not amount to deficient
performance”. Rector v. Johnson, 120 F.3d 551, 564 (5th Cir.
1997), cert. denied, 522 U.S. 1120 (1998).
St. Aubin claims his mental-health history was mitigating
evidence an attorney would reasonably present to a jury because, in
14
context, the positive characteristics and acts far outweighed the
negative. He asserts that, because his arrest and post-arrest
behavior was so damaging, his pre-arrest violent incidents would
appear insignificant, negating the claimed double-edged nature of
the mental-health evidence.
The state-habeas court found, however, that introducing St.
Aubin’s mental-health history as mitigating evidence would have
opened the door for the State to introduce numerous violent
incidents which had not been introduced during the guilt phase.
St. Aubin’s medical records reflected episodes of violence directed
toward acquaintances and his immediate family, such as fracturing
his father’s ribs. In addition, the medical records contained
evidence that St. Aubin either rejected treatment or continued to
behave violently while undergoing treatment for his mental illness,
undermining the possibility a jury would find St. Aubin’s future
dangerousness minimal. In this regard, the prosecutor testified at
the district-court evidentiary hearing that, had St. Aubin’s LTC
introduced his mental-health history, he would have used it to
emphasize St. Aubin’s violent character and failed treatment
efforts.
The district court accepted LTC’s and his co-counsel’s
testimony at the district-court evidentiary hearing that
considerable thought and discussion went into the decision not to
present mitigating evidence during the punishment phase. This and
15
its following related findings were not clearly erroneous. The
district-court’s finding that LTC’s decision was based on a
professionally informed and competent assessment of St. Aubin’s
mental-health history, and thus fell “within the wide range of
reasonable professional assistance”, supports its concluding that
the state-court denial of the failure-to-present-evidence claim was
not unreasonable. Strickland, 466 U.S. at 689. See Riley v.
Dretke, 362 F.3d 302, 306 (5th Cir. 2004) (even in capital case,
counsel’s not presenting evidence of mental retardation as
mitigating evidence is reasonable in order to prevent negative jury
finding on issue of future dangerousness), cert. denied, 543 U.S.
1056 (2005). Pursuant to the highly deferential AEDPA standard of
review, the district court’s conclusion was not erroneous.
III.
For the foregoing reasons, the denial of habeas relief is
AFFIRMED.
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