IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50006

LOUIS DOUGLAS HALLEY, IV, 

Petitioner - Appellant

v.

RICK THALER, DIRECTOR,TEXASDEPARTMENT OF CRIMINALJUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:06-CV-150

Before JONES, Chief Judge, HAYNES, Circuit Judge, and CRONE, District

Judge.*

MARCIA A. CRONE, District Judge:**

Following his plea of guilty and subsequent punishment hearing,

Petitioner-Appellant Louis Douglas Halley, IV (“Halley”), was sentenced to life

in prison for murder. He filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254(d), alleging that numerous errors by the state trial court

tainted his conviction. After the district court denied his petition, this court

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2011

Lyle W. Cayce

Clerk

 District Judge of the Eastern District of Texas, sitting by designation. *

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not **

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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granted a certificate of appealability (“COA”) on whether: (1) the State’s

introduction of a psychiatrist’s testimony during its case-in-chief violated the

Fifth Amendment to the United States Constitution; (2) Halley’s trial attorneys

rendered ineffective assistance by failing to object to the psychiatrist’s

testimony; and (3) the district court erred in denying Halley’s motion for an

evidentiary hearing on these issues. For the following reasons, we AFFIRM.

I. BACKGROUND

Halley pleaded guilty in 2001 to the murder of Johnny Okrasinski

(“Okrasinski”). Halley, who was facing five years to life imprisonment, elected

to have his punishment assessed by a jury. The evidence before the jury showed

that, in the Fall of 1998, Halley became enraged after his coworker, Krista Nagel

(“Nagel”), told him she had been drugged and raped by Okrasinski. Nagel

subsequently denied making this accusation. Halley’s beliefthat Nagel had been

assaulted, however, was bolstered by the statement of another woman, Tiffany

Judkins (“Judkins”), who purportedly told him that she, too, had been raped by

Okrasinski. Like Nagel, Judkins disputed that she had made such a claim. 

Thereafter, Halley frequently entreated Nagel to report Okrasinski’s behavior

to authorities, but Nagel refused, insisting that she had not been raped. 

Frustrated by Nagel’s inaction, Halley told several people that he might harm

Okrasinski. 

In January 2000, Halley waited outside Okrasinski’s workplace and

opened fire with a pistol as he approached his vehicle. Okrasinski attempted to

take cover behind his van, but Halley climbed atop the vehicle and continued

firing. After the victim fell to the ground, Halley shot him two more times. 

When apprehended later by authorities, Halley claimed that he had killed

Okrasinski to prevent him from victimizing other women. Police found the

murder weapon in Halley’s vehicle and a signed letter of confession on his

person. The jury also viewed numerous letters Halley had sent to his friends

and family explaining his intention to kill Okrasinski and then commit suicide.

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During the State’s case-in-chief, the prosecutor called Dr. Ravi Medi

(“Medi”), a psychiatrist appointed on the motion of the defense to examine Halley

regarding his sanity at the time of the offense and his competency to stand trial. 

Medi characterized Halley as “uncooperative” and “belligerent” and testified that

he was unremorseful for Okrasinski’s death. Medi also noted that he had

diagnosed Halleywith bipolar disorder NOS (not otherwise specified) and “mixed

personality disorder with narcissistic and antisocial traits.” Medi further opined

that mixed personality disorder is “very difficult” to treat. 

On cross-examination, defense counsel asked the doctor what treatment

Halley would receive in prison, implicitly suggesting that psychiatric treatment

would be more “beneficial for [Halley] or for society in the long run” than

imprisonment. On redirect, the following exchange occurred:

Prosecutor: Well, is it typical that someone with the type of

condition this Defendant exhibits that they do not want

to cooperate in their treatment and they do not want to

take the medication?

Medi: It’s very common with his condition.

Prosecutor: In fact, it’s traditionally cyclic, they will have this

condition, they’ll seek help temporarily, they’ll get some

medication, but . . . they’ll stop taking medicine, and

then they’ll act out again, and then they’ll wind up back

in jail or a hospital . . . and we just see them over and

over again coming through the system until we’ve got

something like our victim in this case laying [sic] dead

in an alley about four blocks from here, correct?

Medi: Unfortunately, that’s true.

Prosecutor: And you have no medical reassurance that there won’t

be another victim laying [sic] out in that alley in five

months if he doesn’t go to prison, do you?

Medi: I don’t.

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On re-cross, defense counsel asked Medi whether he could state “with any

medical certainty” that Halley would commit another violent act. Medi

answered that it was “possible,” but conceded that he did not “know about the

future.” Similarly, Halley’s attorney asked Medi if “it’s best to have Mr. Halley

incarcerated for the rest of his life,” to which Medi replied that it was not his

place to decide. The defense did not object to Medi’s testimony and, despite the

prosecutor’s request for a sixty-year prison term, the jury assessed a sentence

of life imprisonment.

Halley’s conviction and sentence were affirmed on appeal and, in 2003, the

Texas Court of Criminal Appeals refused his petition for discretionary review. 

Thereafter, Halley filed a state habeas application, which was denied by the

Texas Court of Criminal Appeals. On December 6, 2006, Halley filed an

amended 28 U.S.C. § 2254 petition asserting myriad grounds for relief. The 1

parties consented to proceed before a magistrate judge, who dismissed the

petition with prejudice. This court granted Halley a COA with respect to his

Fifth Amendment and ineffective assistance of counsel claims, as well as “the

denial of an evidentiary hearing on these two claims.”

II. DISCUSSION

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs

this court’s review of Halley’s claims. White v. Thaler, 610 F.3d 890, 898 (5th

Cir. 2010). Under the AEDPA, a federal court may not grant habeas relief

unless the state court’s adjudication of the claim resulted in a decision that (1)

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)

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)-(2).

Halley’s original federal habeas petition was dismissed without prejudice for failure 1

to exhaust state court remedies in 2004.

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A state court’s decision is “contrary to” clearly established federal law if

“it relies on legal rules that directly conflict with prior holdings of the Supreme

Court or if it reaches a different conclusion than the Supreme Court on

materially indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.

2004). A decision constitutes an “unreasonable application” of clearly

established federal law if it is “objectively unreasonable.” Neal v. Puckett, 286

F.3d 230, 236 (5th Cir. 2002) (en banc). The state court’s factual determinations

are presumed correct, and it is the petitioner’s burden to rebut this presumption

by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Pape v. Thaler, 645

F.3d 281, 287 (5th Cir. 2011).

“A state court’s determination that a claim lacks merit precludes federal

habeas review so long as fairminded jurists could disagree on the correctness of

the state court’s decision.” Harrington v. Richter, U.S. , , 131 S. Ct.

770, 786 (2011). In other words, under § 2254(d), a state prisoner seeking

federal habeas relief “must show that the state court’s ruling on the claim . . .

was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. 

B. Fifth Amendment

Halley first argues that the state habeas court’s denial of his Fifth

Amendment claim was contrary to or involved an unreasonable application of

clearly established federal law under § 2254(d)(1). Specifically, Halley asserts 2

that the admission of Dr. Medi’s testimony, which was the result of an unwarned

examination, runs afoul of the Supreme Court’s holding in Estelle v. Smith, 451

Respondent argues that the court need not reach the merits of Halley’s Fifth

2

Amendment claim because the state appellate court denied the claim on an independent and

adequate state procedural ground. Because the last reasoned state court decision rejected

Halley’s claim on the merits, however, the procedural default doctrine is inapplicable here. 

Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991).

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U.S. 454 (1981). The state habeas court denied Halley’s Fifth Amendment claim

on the merits, distinguishing the instant case from Estelle.

In Estelle, the trial court sua sponte ordered an in-custody psychiatric

examination to determine the competency of a capital murder defendant, Ernest

Benjamin Smith (“Smith”). 451 U.S. at 456-57. Smith was not advised of his

Miranda rights prior to the examination. Id. at 460. During the trial’s penalty 3

phase,the psychiatrist testified, over defense counsel’s objection, that Smith was

a severe sociopath likely to continue to commit criminal acts. Id. at 459-60. The

jury then answered special questions, including one addressing Smith’s future

dangerousness, in the affirmative, rendering the death penalty mandatory. Id.

at 457-60. The Supreme Court held that the admission of the psychiatrist’s

testimony under these “distinct circumstances,” where Smith did not receive

Miranda warnings and “had neither initiate[d] the psychiatric evaluation nor

attempt[ed] to introduce any psychiatric evidence,” violated Smith’s Fifth

Amendment privilege against self-incrimination. Id. at 456-69. 

Plainly, Halley’s case differs from Estelle in that it does not involve a

capital offense in which the jury must make a special finding regarding future

dangerousness. See Estelle, 451 U.S. at 466 (limiting its holding to situations

where “future dangerousness [is] a critical issue” and “one on which the State

ha[s] the burden of proof beyond a reasonable doubt”); see also Penry v. Johnson

(Penry II), 532 U.S. 782, 794 (2001). Instead, Halley’s jury was simply tasked

with deciding the “appropriate punishment” on the basis of the entirety of the

evidence presented. Therefore, the state court reasonably distinguished Estelle

from the facts presented in the case at bar.

Moreover, two subsequent Supreme Court cases further inform our

analysis. In Buchanan v. Kentucky, a capital defendant attempted to establish

the defense of extreme emotional disturbance by questioning his sole witness,

 Miranda v. Arizona, 384 U.S. 436 (1966).

3

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a social worker, about psychological reports detailing his mental condition. 483

U.S. 402, 408-10(1987). On cross-examination, the prosecutor elicited testimony

about the damaging report of a psychiatrist appointed by the court on the joint

motion of the parties. Id. at 410-11 & n.11. Finding no Fifth Amendment

violation, the Court reasoned that Estelle “logically leads to another proposition: 

if a defendant requests such an evaluation or presents psychiatric evidence,

then, at the very least, the prosecution may rebut this presentation with

evidence from the reports of the examination that the defendant requested.” 

Thus, because “petitioner’s counsel joined in a motion” for the examination and

based the defense strategy on the defendant’s mental state, there was “no Fifth

Amendment privilege against the introduction of this . . . testimony by the

prosecution.” Id. at 422-23.

Similarly, in Penry II, the Court held that the introduction of a

psychiatrist’s report during the prosecutor’s cross-examination of a defense

witness did not warrant federal habeas relief. 532 U.S. 782, 793-96 (2001). The

Penry II Court distinguished Estelle by noting, inter alia, that the defendant (1)

requested a mental examination and (2) was not yet facing the death penalty at

the time of his examination and, thus, future dangerousness was not specifically

at issue. Id. at 794. 

In light of Buchanan and Penry II, this court cannot conclude that the

Texas state court’s denial of Halley’s Fifth Amendment claim was contrary to,

or an unreasonable application of,“clearly established federal law, as established

by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Importantly, because Halley

was not charged with capital murder and he moved for a psychiatric evaluation,

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Estelle is not controlling. For these reasons, Halley’s case is distinguishable 4

from Estelle, which was expressly limited to its facts. 451 U.S. at 466.

Furthermore, any error that may have occurred is harmless. It is well

established that habeas petitioners are not entitled to relief based on a

constitutional error unless the error had a “substantial and injurious effect or

influence in determining the jury’s verdict.” Oliver v. Quarterman, 541 F.3d 329,

341 (5th Cir. 2008). This court has previously found equivocal psychiatric

testimony, like Medi’s, to be harmless. See Woods v. Johnson, 75 F.3d 1017,

1027 (5th Cir. 1996) (holding inadmissible psychiatric testimony harmless where

witness was unable to say with any degree of certainty how defendant would

behave in the future). Moreover, there was ample evidence before the jury to

justify Halley’s lengthy sentence. Testimony established that Halley obsessed

over Okrasinski’s treatment of women, extensively plotted his murder, waited

outside his workplace, and shot him multiple times as he attempted to seek

cover. See Dale v. Quarterman, 553 F.3d 876, 881 (5th Cir. 2008). In addition,

jurors, who viewed letters sent by Halley to his family and friends rationalizing

Okrasinski’s murder and heard Halley’s testimony, may have viewed him as

unremorseful without regard to Medi’s testimony. Accordingly, even if the

admission of Medi’s testimony constituted a Fifth Amendment violation, Halley

would not be entitled to habeas corpus relief. Oliver, 541 F.3d at 341.

C. Ineffective Assistance of Counsel 

Halley next asserts that his trial counsel was ineffective for failing to

object to Medi’s testimony. Because a § 2254 claim of ineffective assistance of 5

This court has previously held that the necessity for Miranda warnings is not

4

obviated where the defense requests a mental evaluation on the issue of competency. Battie

v. Estelle, 655 F.2d 692, 702 (5th Cir. 1981); see also Vanderbilt v. Collins, 994 F.2d 189, 196-

97 (5th Cir. 1993). Our inquiry here, however, is concerned only with clearly established

federal law “as determined by the Supreme Court” and not with our own precedent. 28 U.S.C.

§ 2254(d)(1); accord Renico v. Lett, U.S. , , 130 S. Ct. 1855, 1866 (2010).

Halley also argued below that Medi’s testimony was inadmissible under Article 38.22

5

of the Texas Rules of Criminal Procedure. This assertion, however, has been waived, as Halley

did not address it in his briefing. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

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counsel is a mixed question of law and fact, this court reviews the lower court’s

denial of such a claim de novo. See Smith v. Quarterman, 515 F.3d 392, 403 (5th

Cir. 2008). To prevail on his claim of ineffective assistance, Halley must show

that counsel’s performance was deficient and that the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish deficient performance, Halley must show that his counsel’s actions “fell

below an objective standard of reasonableness.” Id. at 688. In evaluating an

attorney’s performance, there is a “strong presumption that counsel’s conductfell

within the wide range of reasonable professional assistance.” Id. at 689. Under

Strickland’s prejudice prong, Halley additionally must demonstrate that “there

is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. “A reasonable

probability requires a substantial, not just a conceivable, likelihood of a different

result.” Pape, 645 F.3d at 288. Conclusory assertions of prejudice are

insufficient. Green v. Johnson, 160 F.3d 1029, 1041 (5th Cir. 1998). 

In a habeas case where a defendant alleges ineffective assistance of

counsel, the ‘pivotal question is whether the state court’s application of the

Strickland standard was unreasonable. This is different from asking whether

defense counsel’s performance fell below Strickland’s standard.’” Pape, 645 F.3d

at 288 (citing Harrington, 131 S. Ct. at 785). In conducting habeas review, the

state court is granted a “deference and latitude that are not in operation when

the case involves review under the Strickland standard itself.” Harrington, 131

S. Ct. at 785. 

In the instant case, the state habeas trial court denied Halley’s ineffective

assistance claim in light of its rejection of his substantive argument that Medi’s

testimony violated his Fifth Amendment rights. This is not an unreasonable

application of Strickland, as the failure to “raise meritless objections is not

ineffective lawyering.” Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). 

Moreover, this court has “consistently found counsel’s decisions regarding

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examination and presentation of witnesses and testimony to fall within [the]

category of trial strategy which enjoys a strong presumption of effectiveness.” 

Pape, 645 F.3d at 291. Here, counsel allowed Medi to testify, without objection,

as to Halley’s unstable mental condition. Then, counsel relied on that testimony

to question Medi regarding whether Halley would receive sufficient treatment

in prison as opposed to a psychiatric hospital. Counsel also recalled Medi’s

equivocal testimony in closing arguments to suggest to the jury that Halley

would not again pose a threat. Thus, the record evidence supports a finding that

counsel’s decisions fell within the “wide range of trial tactics that constitute

reasonable assistance.” Id.; see also Kitchens v. Johnson, 190 F.3d 698, 703 (5th

Cir. 1999) (recognizing the great deference afforded to counsel where evidence

of a “double-edged nature” is involved).

In any event, Halley has failed to establish prejudice. With respect to a

state sentencing, the question is whether, “absent counsel’s errors, there is a

reasonable probability that the defendant’s sentence would have been

significantly less harsh.” Dale, 553 F.3d at 880. Halley does not make such a

showing. Specifically, aside from Medi’s testimony, compelling evidence was

presented to warrant Halley’s life sentence. As noted above, the jury considered

evidence of Halley’s obsessive nature, extensive premeditation, and callous

attitude toward his victim. See White v. Johnson, 153 F.3d 197, 203 (5th Cir.

1998) (characterizing “statements by the defendant indicating a lack of remorse”

as “nonpsychiatric evidence of future dangerousness”). In short, while the jury 6

assessed a sentence in excess of the sixty years sought by the prosecutor,

sufficient evidence was presented at sentencing, exclusive of Medi’s testimony,

to demonstrate aggravating circumstances supporting a life sentence. Moreover,

Halley provided only conclusory allegations of prejudice in his briefing. Mallard

v. Cain, 515 F.3d 379, 383 (5th Cir. 2008) (denying prisoner’s habeas petition

For further discussion of the details of Halley’s offense, see Halley v. State, No. 08-01- 6

00088-CR, 2002 WL 1584198, at *1 (Tex. App.—El Paso July 18, 2002).

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that included mere conclusory assertions of prejudice). Because Halley’s

ineffective assistance claim lacks merit, the state court did not unreasonably

apply Strickland.

D. Evidentiary Hearing

Finally, Halley argues that the district court improperly denied an

evidentiary hearing on his Fifth Amendment and ineffective assistance of

counsel claims. This claim is foreclosed, however, by the Supreme Court’s

holding in Cullen v. Pinholster, U.S. , , 131 S. Ct. 1388, 1398 (2011),

which limits habeas review of claims adjudicated on the merits in state court to

the state court record. Accordingly, we affirm the district court’s denial of an

evidentiary hearing.

III. CONCLUSION

Consistent with the foregoing analysis, the district court’s denial of habeas

corpus relief is AFFIRMED. 

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