United States Court of Appeals

Fifth Circuit



## FILED

July 16, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

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 Crim i nal 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 itself1 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 of jurisdiction by granting a mo tion to set aside the indictment, which rendered Riley’s

conviction and s

entence 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 couns el based on counsel’s failure to

investigate and present evidence of Riley’s possible mental retardation. The Texas Court

of Criminal Appeals adopted all but two of the state habeas court’s findings. 1 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 mu rder, and left. The Sheriff went to Riley’s2 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 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 hous e. Riley waived his M iranda

rights and confessed to the murder.

A. Lack of Jurisdiction Claim

The state of Texas twice tried, and twice convicted R iley for capital murder. In

Riley’s second capital murder trial, his attorne ys 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 Motio n to Set Aside the Indictment Due to Unconstitutionality of the

Statute. 2

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

m otion. 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 judge3 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 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

guilt phase, 3

and primarily focused on the punishment phase of the trial. While Wright

mainly concentrated on the issue of Riley’s future dangerousnes s, 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 te ndencies, 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, at4 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 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

strate gy 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

not have found it. 4

Wright did not state that Riley had plead guilty, but he highlighted the

fact that he and his co-counsel had put on a limited defense in the guilt phase. 5 In the state

habeas proceedings, Wright did not present an explanation for why he did not argue that

Riley’s guilty-plea was either relevant to future dangerousness or mitigation. 6 The district

court assumed that couns el had been deficient for failing to incorporate the guilty plea

within his final argument, but concluded that Riley had not sufficiently est ablished

prejudice.

II. STANDARD OF REVIEW6

Because Riley fi led his habeas petition on April 1, 1998, the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) applies to this appeal. S ee Neal v. Puckett

, 286

F.3d 2 3 0, 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.” S lack 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 petiti o n 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 t he petitioner’s claims, 28 U.S.C. § 2254(e)(1) provides

that:7 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

cour t’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.” R iley 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. M eyer 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 juris diction remain[s] in the

dismissing c

ourt.” Garcia v. Dial , 596 S.W.2d 524, 528 (Tex. Crim. App. 1980); T exas v.

Holmes

, 671 S.W.2d 896, 898-99 (Tex. Crim. App. 1984) (en banc). If the convicting court8

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. G arcia

, 596 S.W.2d at 528. A trial court lacks

jurisdiction to rescind an order to quash an indictment. M iller 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. J iminez 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. S ee 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

propositio n 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. I d. at 738. However,

this case is inapposite. Riley neglects the fact that the plaintiffs in W al-Mart nev e r

atte mpted to obtain a n unc 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. S ee id. at 739. The court in W al-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. I d. at 739

n.5. The court did not rule on whether a judgment n unc pro tunc would be appropriate,

however, because neither of the parties had raised the issue. Id.9

In this case, the district court concluded, after careful analysis, that t h e entry

granting the motion to set aside the indictment was a cleric al 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 ope n 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 r egard to this

issue. M iller-El

, 123 S. Ct. at 1040. Taking the state court’s findings as correct, the district

co urt determined that the state habeas court validly entered a n unc pro tunc order

correcting what it found to be a c lerical 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 in10

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. S ee 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 c onduct, and to

evaluate the conduct from counsel’s perspective at the time.” I d. The petitioner must

overco m e 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” L ockhart

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. W illiams v. Taylor

, 529 U.S. 362, 391 (2000).11

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.” C arter

, 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, a nd 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 o utcome 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 before7 Specifically, the district court found:

[ c]ounsel repeatedly argued that the jury should ign ore the

12 the jury and hurt the most evi dentiary [sic] supported

argument of lack of futu re dangerousness. The argument of

counsel was a reasonable tactical trial strategy dec ision to

advance the d e fensive theory to concentrate on the issue of

future dangerousness.

44. Applicant’s trial attorney’s conceding there was no

miti g ation evidence was a tactical trial decision made after

thorou gh, 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 co urt’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 dangerousnes s. 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 miti gating evidence and later arguing that there were n o

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

emotional appeals made by the prosecution in its closing argument. 7 Because the districtprosecution’s at t empts 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 a ny emotional

appeal by the prosecution in its closing arguments.

215 F. Supp. 2d at 779 (citations omitted).

13 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 evide nce that illustrates a defendant’s character or personal history

embodies a constitu tionally 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 professi onal judgment in

investigating a defend a nt’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

“p owerful” mitigating evidence relating to defendant’s extremely troubled personal

history). Even give n the important role of mitigating evidence, however, counsel’s

performance is not per se deficient if he fails to present such evidence. S ee 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 mitigation8 During the hearing, the following colloquy between Riley’s habeas lawyer,

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 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. C arter

, 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 d efendant’s culpability

and may even concede that the jury would be justified in imposing the death penalty.” I d. ;

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”

argument to gain credibility with the jury. 8 While the district court did not find this to be* * *

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 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 dur ing 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 no t 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 stresse d 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. F ailure to Argue that Riley’s Guilty Plea Constituted an Accep tance of16

Responsibility

In his final ground for seeking a COA, Riley argues that Wright’s performance was

ineffe ctive 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. A nderson v. H arless , 459 U.S. 4, 6 (1982). The

federal claim must be the “s ubstantial equivalent” of the claim brought before the State

court. F isher v. Texas

, 169 F.3d 295, 303 (5th Cir. 1999). Yet, the petitioner “need not spell

out each syllable of the claim before the stat e court” for a claim to have been “fairly

presented”, and thereby fulfill the exhaustion requirement. Id.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 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. J anecka , 312 F.3d 597, 606 (3d Cir. 2002)). This Court reviews such claims

under pre-AEDPA standards of review. I d. ; see Jones v. Jones

, 163 F.3d 285, 299-300 (5th

Cir. 1998) (appl y ing 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

petition for state

habeas relief. 9

Moreover, Riley’s habeas counsel raised this argument

during the state habeas hearing. During the hearing, Wright acknowledged that

acceptance of responsibi lity is “obviously” a mitigating factor. 1 0 Nevertheless, as the

district court noted, th e state habeas court did not make findings with regard to this18

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 p rong of

Strickland

, and that the jury did not f actor 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 Rile y would be dangerous in the future. The

district court concluded that it was improba ble 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 w rong. 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. S ee 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 perfor mance in this regard rendered the jury’s19

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 o f 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.