### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-50006

LOUIS DOUGLAS HALLEY, IV,

Petitioner - Appellant

v. R I C K T HAL E R , D I R E C T O R , T E X A S D E PAR TM E N T O F C RIM I N AL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court for the Western District of Texas USDC No. 7:06-CV-150

Be f o r e JONES, Chief Judge, HAYNES, Circuit Judge, and CRONE, District Judge. * MARCIA A. CRONE, District Judge: ** Following his p l ea 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. § 2 2 5 4 ( d), alleging that numerous errors by the state trial court tainted his conviction. After the district court denied his petition, this court U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 9, 2 011 Lyle W . Cayce Clerk

Di st ric t Judge of the East ern Di st ric t of Texas , sit ting by d es ignati on. *
Purs uant to 5 T H C IR

. R. 47.5 , the cour t has det erm ined that this opi nion sho uld not * * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-50006 Document: 00511660201 Page: 1 Date Filed: 11/09/2011No. 10-50006

granted a certificate of appealabilit y ( “ C O A”) on whether: (1) the State’s introduction of a psychiatrist’s testimony during its case-in-chief violat e d t h e Fifth Amendment to the United States Constitution; (2) Halley’s trial attorneys rendered ineffective assistance by fail i n g t o object to the psychiatrist’s testimony; a n d (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 guil t y 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 rape d b y O k r a sinski. Nagel subsequently denied making this accusation. H a l l e y’ s b e l i e f th at 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 s h e h a d m a de such a claim. Thereafter, Halley frequently entreated Nagel to report Okrasinski’s behavior t o a u t h orities, but Nagel refused, insisting that she had not been rap e d

. Frustrated by Nagel’s in action, Halley told several people that he might harm Okrasinski. In January 2000, Halley wa i t e d outside Okrasinski’s workplace and opened fire with a pistol as he approached his vehicle. Okrasinski attempted to take cover behind his v a n , b u t Halley climbed atop the vehicle and continued f i ring. After the victim fell to the ground, Halley shot him two m o r e t i m e s . When apprehended later by authorities, Halley c l aimed that he had killed Okra s i n s k i t o prevent him from victimizing other women. Police found the murder weapon in Halley’s vehicle and a signed let t er of confession on his
person. The jury also viewed numerous letters Halley had sent to his f r i e nds 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 de f e n s e t o examine Halley regarding his sanity at the time of the offense and his competency to stand trial. Medi characterized Halley as “uncooperativ e” a n d “b e ll i g e r e n t” a n d t e s t if ied that he was unremorseful for Okrasinski’s death. Medi also noted th a t he had di a gn o s e d H a ll e y w i th b i p o lar disorder NOS (not otherwise specified) and “ m ix e d
p e r s onality disorder with narcissistic and antisocial traits.” Medi further opin e d 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 “benefi c i a l f o r [ H alley] 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 w i l l have this

condition, they’ll se e k help temporarily, they’ll get some medication, but

. . . they’ll stop taking me d i cine, and then they’ll act out again, and then they’ll wind up back in jail or a hospital

. . . and we just see t h e m 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 a n o t her 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-cro s s , defense counsel asked Medi whether he could state “with any medical certainty” that H a l ley would commit another violent act. Medi answered t h a t 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 wa s not his place to decide. The defense did not object to Medi’s testimony and, despite the prosecutor’s request for a sixt y - y e a r 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 C r iminal Appeals refused his petition for discretionary review. Thereafter, Halley filed a state habeas application, whi c h w a s d enied by the T e x as Court of Criminal Appeals. On December 6, 2006, Halley filed a n amended 28 U.S.C. § 2254 petition asserting myriad grounds for r e l i e f

. The 1 parties consented to proce e d b e fore a magistrate judge, who dismissed the petition with prejud i c e . T h i s 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 Antiterro r i s m and Effective Death Penalty Act (“AEDPA”) governs this court’s review of Halley’s claims. White v. Thaler , 610 F.3d 890, 8 9 8 (5th Cir. 2010). Under the AEDPA, a federal cou r t m a y 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 t h e 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).

Ha lley’s origi nal fed eral habeas pet itio n wa s dis mi ss ed wi thou t pr ejudi ce for fai lure 1 to exhaus t st ate cour t rem edi es in200 4. 4 Case: 10-50006 Document: 00511660201 Page: 4 Date Filed: 11/09/2011No. 10-50006

A state court’s decis i o n 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); Pa p e 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 c l a i m . . . was so lacking in j u stification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id

. B. Fifth Amendment Halley first ar g u e s t h at the state habeas court’s denial of his Fifth Amendm e n t 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

R e s pond ent argues that the cour t need not reac h the me rit s of Ha lley’s Fift h 2 Ame ndm ent clai m beca use the st ate app ellat e cour t deni ed the clai m on an inde pend ent and ade quate st ate pr oce dur al ground

. Becaus e the las t reas oned s t ate cour t dec isi on rejec ted Ha lley’s clai m on the me rit s , how ever, the pr oce dur al def ault doc tri ne is inap pli cable here

. Ylst v

. Nunne ma ker , 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 o r dered an in-custody psychiatric examination to determine the competency of a capital murder defendant, Ernest Benjamin Smith (“Smith”). 451 U.S. at 4 5 6

- 5 7

. Smith was not advised of his Miranda rights prior to the examination. Id

. at 460. During the trial’s penalty

3 ph a s e , th e p s yc h i atrist 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 t e s t imony under these “distinct circumstances,” where Smith did not rece i v e Miranda warnings and “had neither initiate[d] the psychiatric evaluatio n n o r attempt[ed] to introduce any psychiatric evidence,” violate d Smith’s Fifth Amendment privilege against self-incrimination. Id . at 456-69. Plainly, Halley’s case differs from Estelle in that it does n o t i n v o l ve 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 “ o n e o n 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 simp l y 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 Su p reme Court cases further inform our analysis. In Buchanan v. Kentucky , a capital defendant attempted to establish the defense of extreme emotional disturbance by que s t i o n i n g his sole witness,

Mi ra nda v. A ri zo na , 384 U. S. 436 ( 1966)

. 3

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

. S

. 4 0 2 , 4 0 8

- 1 0 (1987). On cross-examination, the prosecutor elicited tes t i m o ny about the damaging report of a psychiatrist appointed by the court on the joint motion of the par t i e s. 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 examinatio n t hat 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 agai n st 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 p r o s ecutor’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 F ifth Amendment claim was contrary to,

or an u n r e a s o n ab l e a p p l i c a t i o n o f , “c l e a rly 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 46 6. Furthermore , a ny error that may have occurred is harmless. It is well established that habeas petitioners are not entitled to relief ba s e d o n a constitutional err o r u n less the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Oliver v. Quarterman , 541 F.3d 329, 3 4 1 ( 5th Cir. 2008). This court has previously found equivocal psychiatric testimony, li k e Medi’s, to be harmless. See Woods v. Johnson , 75 F.3d 1017, 1027 (5th Cir. 1996) (holding i n a d m i s s ib l e p s yc h i a t ri c t e stimony harmless where witness was unable to s ay 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 witho u t 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 ine f f e c t i ve for failing to object to Medi’s testimony. Because a § 2254 claim of ineffective assistance of 5

This cour t has pr evious ly held that the nece ss ity for Mi ra nda wa rnings is n o t 4 obviat ed w here the def ens e requ es ts a me ntal evalu atio n on the iss ue of co mp ete ncy. Battie v. Estel le , 655 F.2d 692, 702 (5t h Cir. 1981) ; see also Va nder bil t v. Coll ins , 994 F.2d 189, 196- 97 (5t h Cir. 1993)

. O u r inquir y here , how ever, is conc erne d only wi th clea rly es tabl ish ed fed eral law “as det erm ined by the Sup rem e Court ” and not wi th our ow n pr ece dent

. 28 U. S. C. § 2 254( d) (1) ; ac cor d Reni co v. Le tt , U .S

. , , 130 S. Ct

. 1855, 186 6 ( 2010)

. Ha lley als o argued below that Me di’ s tes tim ony wa s inad mi ss ible unde r Arti cle 38.2 2 5 of the Texas Rules of Crim inal Proc edur e. This ass ert ion, how ever, has been wa ived, as Ha lley didno t add res s it in his br ief ing. See Yohe

y v . Coll ins , 985 F.2d222 , 225 (5t h 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, H alley 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

e s t ab l i s h deficient performance, Halley must show that his counsel’s actions “f e l l below an objective standard of reasonableness.” Id. at 688. I n evaluating an

a t t o r n e y’ s performance, there is a “strong presumption th at c o u n s e l ’ s c o n du c t f e l l 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 unpro f essional 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. 1 998). In a habeas case where a defendant alleges ineffective assi s t a n c e of counsel, the ‘pivotal question is whether the state c o u rt’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 vi o lated his Fifth Amendment rights. This is not an unreasonable application of Strickland , as the failure to “ r a i s e meritless objections is not ineffective lawyer i n g .” 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 p r e s e n t a tion of witnesses and testimony to fall within [the] categor y o f 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. C o u nsel also recalled Medi’s equivocal testimony in closing arguments to suggest to the jury that H a lley 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 t h a t 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 a n y 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 ha v e b e en significantly less harsh.” Dale , 5 5 3 F

. 3 d a t 880. Halley does not make such a

s h o w i n g
. 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 c a l l o u s 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 sentenc e 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 s u p p o rti n g a l if e s e n t e n c e . Moreover, Halley provided only conclusory allegations of prejudice in his briefing. Mallard

v. Cain , 515 F.3d 379, 383 (5th Ci r . 2 0 0 8 ) (denying prisoner’s habeas petition

For fur ther dis cus sio n of the det ails of Ha lley’s off ens e, see Ha ll ey v. State , No. 08-0 1- 6 00088- CR, 2002 WL 1 584198, at*1 ( Tex. App .— El Pas o J uly 18 , 2002)

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that included mere conclusory assertions of prejudice). Becau se Halley’s ineffective assistance c l a i m lacks merit, the state court did not unreasonably apply Strickland

. D. Evidentiary Hearing Finally, Halley argues that the district court improperl y d e n i e d an evidentiary hearing on his Fifth Amend m e n t a nd ineffective assistance of counsel claims. This cla i m i s f o r eclosed, 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 th e f

o r e go i ng analysis, the district court’s denial of habeas corpus relief is AFFIRMED.

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