United States Court of Appeals

Fifth Circuit



## FILED

August 17, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-20401

ROY GENE SMITH,

Petitioner-Appellant,

versus

DOUG DRETKE, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Petitioner-appellant Roy Gene Smith (“Smith”) was convicted in the Texas state courts and

sentenced to death for the capital murder of James Whitmire. The district court denied Smith’s

petition for a writ of habeas corpus and denied a certificate of appealability (COA) sua sponte

. Smith

now requests a COA from this court on three issues, (1) whether his trial counsel provided ineffective

representation, (2) whether the jury instructions given at the sentencing phrase of his trial violated1 532 U.S. 782 (2001).

2

his constitutional rights pursuant to Penry v. Johnson

, 1 and (3) whether the district court erred in

denying his request for funds under 21 U.S.C. § 848 for a psychologist. For the foregoing reasons,

we grant a COA as to Smith’s ineffective assistance of counsel and Penry claims. However, we find

that the district court did not abuse its discretion in denying Smith’s request for funds.

Factual and Procedural Background

On October 8, 1988, Smith and Mary Williams (“Williams”) spen t t he day smoking crack

cocaine at a boarding house. Around 8:00 p.m., Smith and Williams left the boarding house. As they

walked down the street, they came upon 67-year-old James Whitmire. Smith approached Whitmire

and asked him for a job. Whitmire responded that he had no work available and then turned away.

Smith unzipped his jacket, drew a .22 caliber pistol, and began shooting Whitmire. After Whit mire

fell Smith continued shooting, hitting him several times. Williams fled the scene. After Whitmire

was dead, Smith searched his pockets and stole $4.27. As Smith rifled through Whitmire’s clothing,

two men approached Smith and asked him what he was do ing. The men fled when Smith began

shooting at them. Smith later reunited with Williams and they purchased hot dogs with the stolen

money. The couple spent the night in an abandoned house.

The next day, Williams returned to her home and contacted the police. The police searched

for Smith and, after a chase, placed him under arrest. Smith subsequently signed a written statement

that the district court regurgitated as follows:

Last night I approached a guy and robbed him. When I pull my pistol he hollered

“I’m not giving up my money.” I already had it cocked. I just kept firing.

Afterwards I reached into his left back po cket and took his wallet, and his front

pocket had $4.27 in it. The wallet had no money.3

The gun I used was a .22 revolver, I don’t know the make. The guy that got shot was

an old guy, I’d say about 54 or 55. After I shot him I ran all the way back to Mills

Court. I hid in an abandoned house, and stayed there until daybreak. About 3:00 to

3:15 this afternoon, I went to the park. I had the gun in a brown paper bag. The next

thing I knew was that you all arrived. I rolled over the hill and peeped up, and saw

that you all were coming up. I panicked and ran. I ran to this old abandoned garage

and threw the pistol down in the yard, by the garage. I climbed up in the garage, and

hid, and that is when the officer opened the door. This is the God honest truth.

Smith v. Cockrell , No. H-00-1771, slip op. at 2-3 (S.D. Tex. filed March 31, 2003). Smith also

confessed that in the week prior to the homicide, he committed another cap it al murder, another

shooting, and several robberies.

After a jury trial, Smith was convicted of capital murder in the 208th Judicial Court of Harris

County, Texas, Judge Benjamin A. Martinez presiding. The district court summarized the evidence

adduced at the punishment phase of trial as follows:

During the punishment phase of trial, the State elicited testimony concerning Smith’s

extensive criminal h ist o ry. The State also introduced evidence relating to Smith’s

week-long crime spree before Whitmire’s homicide, including his confession t o

several crimes. Additionally, the State introduced test imony of violent threats by

Smith in prison and his poor parole history.

At the punishment phase, the defense presented testimony from Smith’s sister,

Carolyn Smith, who described the crime-ridden env iro nment her brother lived in [

Smith grew up in an area in Houston, Texas known as ‘Fifth Ward’] and testified that

she had never known her brother to use crack cocaine. She also described her brother

as calm and not violent. Smith’s mother, Wilbert Lee Smith, testified on his behalf.

She t est ified that her son never used crack cocaine or carried a gun. She also

described her son’s childhood and the crime-infested neighborhood in which she lived,

commented on his good behavior in the penitentiary, and pleaded for mercy. A Harris

County Sheriff’s Deputy, Thomas Gentry, testified that Smith had no major trouble

while previously incarcerated. Finally, Smith took the stand himself and explained

that he had been on a drug binge at the time of the homicide and did not remember

killing Whitmire. Smith also expressed remorse for the killing.

Id. at 3-4.4

Following the admission of this evidence, the state trial court instructed the jury to answer

Texas’ special issue questions in the negative if the mitigation evidenc e sufficiently required the

i m position of a life sentence. On May 11, 1990, the jury affirmatively answered all three special

issues and the trial court sentenced Smith to death by lethal injection accordingly. The Texas Court

of Criminal Appeals affirmed Smith’s conviction and sentence on February 24, 1993. S mith v. State

,

No. 71,009 (Tex. Crim. App. 1993). The United States Supreme Court denied Smith’s petition for

a writ of certiorari on November 15, 1993. Smith v. Texas , 510 U.S. 979 (1993).

Collateral proceedings then ensued. On April 18, 1997, Smith filed a state writ of habeas

corpus raising one ground for relief. The presiding judge at the time of trial was not the same judge

presiding over Smith’s state habeas petition. On August 24, 1999, the state habeas court, in the

absence of an evidentiary hearing, entered findings of fact and conclusions of law recommending the

denial of state habeas relief. On September 29, 1999, the Texas Court of Criminal Appeals affirmed

the denial of habeas relief. Ex Parte Smith , No. 42, 801-01 (Tex. Crim. App. 1999).

On May 30, 2000, Smith t imely filed his federal petition for a writ of habeas corpus under 28

U.S.C. § 2254. This case arises on appeal from the United States District Court for the Southern

District of Texas, Housto n Division, Judge Ewing Werlein, Jr. presiding. The State moved for

summary judgment. On March 31, 2003, the district court granted the State’s motion for summary

judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an

unpublished deci sion. S mith v. Cockrell

, No. H-00-1771 (S.D. Tex. filed March 31, 2003). The

district court also denied Smith’s COA request sua sponte

. On September 22, 2003, Smith t imely

filed his appeal, requesting a COA from this court.

Standard of review5

Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it

under t he st andards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA").

See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must

demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved

in a different manner or that t he issues presented were ‘adequate to deserve encouragement to

proceed further.’” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle

, 463

U.S. 880, 893 n.4 (1983)).

In determining whether to grant a COA, our inquiry is limit ed to a threshold examination that

“requires an overview of the claims in the habeas petition and a general assessment of their merits.”

Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). A full consideration of the merits is not required,

nor permitted, by § 2253(c)(2). I d. The fact that a COA should issue does not mean the petitioner

will be entitled to ultimate relief, rather “the question is the debat abilit y o f the underlying

constitutional claim, not the resolution of that debate.” I d. at 342. Accordingly, we must be mindful

that “a claim can be debatable even though every jurist of reason might agree, after the COA has been

granted and the case has received full consideration, that petitioner will not prevail.” I d. at 337. At

the COA stage, we do not apply the deferential AEDPA standard of review to examine the merits of

the habeas petition. I d. at 342 (“Before the issuance of a COA, the Court of A ppeals had no

jurisdiction to res o lve t he merits of petitioner’s constitutional claims.”). Our immediate task is to

determine, not the ultimate merits of Smith’s claims, but only whether Smith has demonstrated that

“jurists of reason could disagree with the district court's resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement to procee d6

further.” M iller-El

, 537 U.S. at 327 (citing Slack

, 529 U.S. at 484). "Because the present case

involves the death penalty, any doubts as to whether a COA should [be] issue[d] must be resolved

in [the petitioner's] favor." Hernandez v. Johnson , 213 F.3d 243, 248 (5th Cir. 2000).

Discussion

Smith seeks a COA for each of the following three claims: (1) his trial counsel’s inadequate

investigation of mitigating evidence in Smith's background and the circumstances of his offense; (2)

the nullification instruction submitted by the trial court, which he contends violated the Eighth and

Fourteenth Amendments pursuant to Penry v. Johnson

, 532 U.S. 782 (2001); and ( 3) the distri ct

court's denial of funds under 21 U.S.C. § 848 fo r t he assistance of a psychologist in his federal

post-conviction proceeding. Each claim will be addressed in turn.

I. Ineffective Assistance of Counsel

Smith appeals from the district court’s refusal to grant habeas relief and the denial of his COA

as to his claim that his counsel at trial, Ron Mock and Joyce Jones (“trial counsel”), were ineffective

because they failed to investigate available mitigating evidence. Specifically, Smith contends that trial

counsel provided ineff

ect ive assistance by not investigating mitigation evidence pertaining to: his

cocaine and alcohol intoxication, his background and upbringing, and his prior disciplinary record

from prison.

a. Exhaustion Requirement

The district court concluded that Smith’s ineffective assistance claim was procedurally barred

because Smith failed to exhaust his available state remedies. The district court, echoing t he state

habeas co urt , held that Smith’s state habeas claim dealt with trial counsel’s failure to retain a

m itigation expert who could provide the jurors with a cohesive picture of Smith’s life. The court7

concluded that Smith’s federal habeas petition differed significantly from the state habeas petition

because “Smith now argues that trial counsel should have investigated a possible temporary insanity

defense, sought prison records suggesting a nonviolent dispo sition during incarceration, and

interviewed Smith’s relatives with the intent that they testify in the punishment phase.” Smith , No.

H-00-1771, slip op. at 18. The district court noted that Smith’s present claim of ineffective assistance

of counsel turns on factual allegatio ns outside of the record on direct appeal and the record in the

state habeas proceedings. Because Smith changed the focus of his federal claim to substantive areas

not covered in his state petition, the district court held that Smith’s claim for habeas relief was not

exhausted. In addition, the court concluded that Smith could not demonstrate cause and prejudice

for his failure to exhaust his state remedies.

First, Smith argues that the district cou r t erred in adopting the state habeas court’s limit ed

formulation of his ineffective assistance of counsel claim. He concedes that his state habeas claim was

inartfully pleaded, but he contends that the state habeas court erred in simply framing his claim as one

that challenged his trial counsel’s failure to utilize a mitigation specialist when his claim was broadly

worded and not limited to the failure to utilize a mitigation specialist. Second, he argues that even

assuming arguendo that he did fail to exhaust his state remedies, his pro cedural default should be

excused based on his state habeas counsel’s deficient performance and the state habeas court’s failure

to hold an evidentiary hearing. He recognizes that the Fifth Circuit has rejected deficient habeas

counsel as a ground to excuse procedural default. However, he contends that deficient habeas

counsel is integral to his Due Process and access to courts rights, and the failure of the state courts

to ensure he had adequate habeas counsel violated his Due Process rights. He emphasizes that8

constitutional violations which created a procedural default may justify the “cause” necessary to

excuse a default.

“Determining whether a COA should issue where the petition was dismissed on procedural

grounds has two components, one directed at the underlying constitutional claim[] and one directed

at the district court’s procedural holding.” S lack

, 529 U.S. at 484-85. Where the district court has

dismissed the petition on procedural grounds, “a COA should issue when the prisoner shows

. . . that

jurists of reason would find it debatable whether the district court was correct in its procedural

ruling.” I d. at 4 84. In addit io n, because the district court, after denying Smith’s petition on

procedural grounds, nonetheless reached the merits of Smith’s constitutional claim, Smith must also

show that “reasonable jurists would find the district court’s assessment of the constitutional claim[]

debatable or wrong.” I d. “Each component . . . is part of a threshold inquiry[.]” Id. at 485. As to

the first threshold inquiry, we find that jurists of reason could debate whether Smith exhausted his

claim fo r ineffective assistance based on trial counsel’s alleged failure to investigate potential

mitigating evidence.

A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims

in state court prior to requesting federa l collateral rel i ef. R ose v. Lundy

, 455 U.S. 509, 519-20

(1982). A federal habeas petition should be dismissed if state remedies have not been exhausted as

to all of the federal court claims. I d. ; see also 28 U.S.C. § 2254(b)(1)(A) (writ shall not be granted

unless it appears that the applicant has exhausted state remedies). The exhaustion requirement is

satisfied when the substance of the federal habeas claim has been fairly presented to the highest state

court. P icard v. Connor

, 404 U.S. 270, 275-78 (1971). A federal court claim must be the

"subs t ant ial equivalent" of one presented to the state courts if it is to satisfy the "fairly presented"9

requirement. I d. The habeas applicant need not spell out each syllable of the claim before the state

court t o satisfy the exhaustion requirement, L amberti v. Wainwright

, 513 F.2d 277, 282 (5th C ir.

1975), however, the petitioner cannot present new legal theories or new factual claims in his federal

application. Nobles v. Johnson , 127 F.3d 409, 420 (5th Cir. 1997).

The ineffective assistance of counsel claim submitted by Smith’s state habeas counsel, Stephen

Christopher Taylor, in the state petition averred that:

Trial Counsel failed to inves t igate Applicant’s history to discover evidence which

could have been used to Applicant’s advantage in mitigation of punishment. A

“comprehensive biopsychosocial life history outline or evaluation” was necessary in

establishing mitigating evidence for the punishment phase of Applicant’s trial. Such

an examination is designed to “detect th e presence of significant factors such as

neurological impairment; cognitive disabilities; physical , sexual, or psychological

abuse; substance abuse; mental disorders; or other factors which influence the

development of Applicant's personality and behavior. A social history investigation

would have explained Applicant's developmental history and the links between that

history with Applicant's conduct at the time of the offense. The mitigation specialist,

as a professional and impartial third party, would have tied together the specific

incidents of Applicant’s life and interpret them so as to provide the jurors a cohesive

picture of the life Applicant lived.

The state petition went on to state that Smith was prejudiced by tria l co unsel’s failure because

“reasonably competent trial counsel would hav e co nducted an investigation into the life history of

Applicant for use by a mitigation specialist during the punishment stage of Applicant’s trial. Trial

Counsel’s conduct in failing to investigate Applicant’s life history denied Applicant the abilit y to have

a mitigation specialist provide the jurors with a cohesive picture of the life that Applicant lived.”

The state petition did assert that a “biopsychosocial outline” should h a ve been developed,

which could have been used by a mitigation specialist at trial. However, the argument is broadly

stated such that one could reasonably argue that Smith’s claim was no t confined to trial counsel’s

failure to retain a mitigation expert but rather was a more general claim that his trial counsel failed10

to investigate Smith’s history. Smith’s state habeas argument could be defined as asserting that trial

counsel was ineffective for failing to investigate Smith’s history and as a result Smith was prejudiced

because trial counsel could not retain a mitigation expert who could then present said history before

the jury. It is not a strain to categorize Smith’s state habeas argument as a general assertion that trial

counsel failed to investigate Smith’s background. Smith’s argument in his writ was likely enough to

alert the state habeas court that he was asserting a constitutional claim concerning the adequacy of

his trial counsel’s investigation of mitigating evidence. S ee Soffar v. Dretke

, 368 F.3d 441, 468 (5th

Cir . 2004); see also Schneider v. Delo

, 85 F.3d 335, 339 (8th Cir. 1996) (holding that the fairly

presented analysis “is not meant to trap a petitioner who has poor drafting skills. The stakes in

habeas cases are too high for a game of leg a l ‘gotcha.’”). Therefore, it is debatable whether the

district court erred in finding that Smith did not satisfy the exhaustion requirement as to the legal

ground for his ineffective assistance of counsel claim.

However, even if Smith did adequately assert the legal ground for his ineffective assistance

of counsel claim, the State argues that Smith failed to make any factual allegations to support his

claim and therefore, his claim was not fully and fairly presented to the state habeas court. S ee Keeney

v. Tamayo-Reyes

, 504 U.S. 1, 9, 10 (1992) (holding that AEDPA’s exhaustion requirement requires

more than notice, more than petitioner simply stating a federal claim in state court; it requires that the

pet it io ner afford the state court a full and fair opportunity to address his claim). The St at e

emphasizes that Smith’s state habeas counsel did not detail any mitigating facts which should have

been presented on Smith’s behalf, nor did the state writ application contain any affidavits setting out

specific mitigation facts that were omitted by trial counsel. Cf. Banks v. Dretke , 124 S.Ct. 1256

(2004) (finding that the petitioner satisfied the exhaustion requirement as to the legal ground of his11

Brady claim but the petitioner did not produce evidence to substantiate his claim, therefore the

petitioner did not fully and fairly present the claim to the state court).

We find that reasonable jurists would find it debatable whether the ineffective assistance of

counsel claim was fully and fairly presented to the state habeas court. The state habeas petition was

not supp o rt ed by the affidavits now before this court; nevertheless, reasonable jurists could find it

debatable whether the petition did assert specific mitigating facts omitted by trial counsel when the

petition averred that “trial counsel did not investigat e signs of neurological impairment, cognitive

disabilities, physical, sexual or psychological abuse, substance abuse, mental disorders or any other

factors that may have influenced his development.” Thus, it is debatable whether Smith presented

a factual as well as a legal basis to support his constitutional claim.

Smith has shown that reasonable jurists could debate whether the legal and factual basis for

his ineffective assistance of counsel claim was fully presented to the state habeas court. We proceed

to the next step in the in quiry int o whet her to grant a COA on this issue, namely, the underlying

merits of his constitutional claim.

b. Merits of Smith’s Ineffective Assistance of Counsel Claim

Smith argues t hat t rial counsel were ineffective for deciding what mitigation evidence to

present during the punishment phase because their decision was based upon an incomplete and

superficial investigation of potential mitigating evidence. Specifically, Smith asserts that trial counsel

did no t adequately investigate (1) Smith’s drug and alcohol use and the possibility of a mitigation

defense of temporary insanity; (2) Smith’s prison records from previous incarcerations to show his

good behavior while in prison; and (3) Smith’s troubled background and abusive upbringing.12

Even though the district court found that Smith had not exhausted his state remedies, it still

went on to address the merits of Smith’s ineffective assistance of counsel claim. As to Smith’s claim

that trial counsel should have investigated his voluntary intoxication, the district court held that

Smith’s history of substance abuse would have been presented for the purposes of raising a temporary

insanity issue. Because the district court concluded that the facts that Smith asserts are insufficient

to raise a valid intoxication insanity defense, the court held that it was reasonable for trial counsel to

decline to present the evidence. As to Smith’s prison records that demonstrate his prior good

behavior while imp r isoned, the district court held that trial counsel was not ineffective for not

presenting the records because trial counsel adduced direct evidence of Smith’s good behavior while

incarcerated, namely, the testimony of Deputy Gentry. Finally, the district court concluded that

contrary to Smith’s assertion, trial counsel did adequately investigate Smith’s upbringing and

background. The district court relied on the affidavits of trial co unsel who stated that they

interviewed many of Smith’s family members and childhood acqu aint ances and made a strategic

decision to only put on the testimony of Smith’s mother, sister and Deputy Gentry. Moreover, the

district court held that even if trial counsel failed to make an adequate investigation, Smith did not

show that trial counsel would have made a different decision about trial strategy had they interviewed

t he wit nesses Smith now presents. The district court averred that trial counsel’s strategy at

sentencing was to show that Smith could exist peacefully in prison society and Smith’s mother was

integral to this strategy. The evidence Smith now adduces would discredit Smith’s mother because

it paints her as dysfunctional. Therefore, the district court concluded that based on trial counsel’s

strategy, it is unlikely they would have made a different decision concerning the testimony presented

in the punishment phase.13

Smith argues that trial counsel erroneously decided to forego having a psychologist testify as

to Smith’s cocaine and alcohol abuse. Smith contends that although he informed his trial counsel that

his drug use contributed to the commission of the offense, trial counsel did not develop the evidence

to demonstrate the extent of his abuse nor request an instruction that temporary insanity caused by

intoxication be considered as mitigating evidence. Smith argues that trial counsel erred in basing their

belief that Smith was sane on his appearance and behavior at trial. Instead, Smith asserts that trial

counsel should have explored the issue of the psychological impact of his substance abuse in order

to demonstrate his mental state a t the time of the offense

. Smith argues that there is sufficient

evidence to raise the issue of intoxication-based temporary insanity and therefore, trial counsel were

ineffective for failing to investigate this ground for mitigation.

Next, Smith argues that trial counsel did not adequately investigate his upbringing. He notes

that trial counsel’s affidavits give no details as to exactly who they contacted or what was learned

from the individuals they contacted. He contends that the record supports the conclusion that trial

counsel only contacted those individuals who actually testified at trial, namely, his mother, his sister

Carolyn, and Deputy Gentry. Had trial counsel conducted a reasonable investigation, Smith contends

that they would have discovered the neglect and physical abuse he s uffered as a child, and his

mother’s alcohol and drug use. He assert s t hat t rial counsel were not aware of this information

because they conducted an inadequate investigation.

Finally, Smith contends that trial counsel conducted an incomplete investigation into Smith’s

prior disciplinary records from prison. Smith admits that trial counsel did present the testimony of

Deputy Gentry to speak to his good behavior during prison. Deputy Gentry was familiar with Smith

because Smith was in his custody at the time of trial and had been in Gentry’s custody during a14

previous incarceration. However, Smith notes that Deputy Gentry was forced to concede that Smith

was isolated from other prisoners during his capital trial. Smith asserts that further investigation

would have revealed that during his several stays in the Texas prison system he has a near spotless

disciplinary record, with the exception of a minor write up. He contends that it is unclear the extent

to which trial counsel reviewe d Smit h’s prison disciplinary records and why trial counsel failed to

present additional disciplinary records.

The State counters that trial counsel’s decision not t o utilize a psychiatric professional to

testify as to the impact of his substance abuse was a strategic decision, and that decision was

reasonable. Had trial counsel introduced such evidence, the State contends the evidence could easily

be a “double edged sword”

— meaning it co uld be viewed as an aggravating factor rather than a

mitigating factor. Furthermore, the State argues that Smith was not prejudiced by this failure because

the fac t s surrounding the offense are insufficient to raise an intoxication insanity issue. As to the

investigation of Smith’s upbringing, the State emphasizes that Smit h’s t rial counsel stated in their

affidavits that they did interview family members in preparation for sentencing. Finally, the State

argues that Smith’s trial counsel did in fact adduce direct evidence of Smith’s good behavior while

incarcerated, thus, trial counsel were not ineffective for failing to secure prison records that contained

duplicate information.

We conclude that Smith has demonstrated tha t reasonable jurists could conclude that the

district court’s assessment of the ineffective assistan ce o f counsel claim is debatable or wrong.

Reasonable jurists could find it debatable whether the facts at bar are sufficiently analogous to the

facts the Supreme Court confronted in Wiggins v. Smith such that the district court erred in finding2 Wiggins was announced after the di st rict court’s ruling but it should not be considered a

“new rule” such that Teague v. Lane might bar habeas relief. The Court in W iggins emphasized that

its decision was not a new rule, rather it was squarely drawn from its previous decisions in Strickland

v. Washington and W illiams v. Taylor , therefore, no new law was created. 539 U.S. at 522-23; S ee

Mackey v. United States

, 401 U.S. 667, 695 (1971) (Harlan, J. concurring in part, dissenting in part)

(stating that a "new rule" does not occur when a court has simply "applied a well-established

constitutional principle to govern a case which is clo sely analogous to those which have been

previously considered in prior case law").

15 the state habeas court’s assessment of Smith’s claim objectively reasonable. 2 539 U.S. 510 (2003).

In Wiggins

, the trial counsel only alluded to Wiggi ns’ difficult life and his clean criminal record at

sentencing. Wiggins asserted that trial counsel were ineffective for failing to retain a forensic social

worker to prepare a social history even though the State made funds available for that purpose. If

trial counsel had prepared a social history, they would have discovered the severe physical and sexual

abuse he suffered. The state habeas court denied him relief because it found that counsel’s decision

not to investigate and present certain mitigation evidence was based on trial strategy and was thus

not ineffective. Moreover, the state court noted that trial counsel obtained social service records that

did detail some abuse and mental retardation; thus, trial counsel were aware to some extent, and did

conduct some investigation into Wiggins’ unfortunate childhood.

In reversing the stat e habeas court, the Supreme Court restated that deference is owed

strategic judgments made by trial counsel. However, the Court emphasized that deference is owed

strategic decisions when the investigation supporting those judgments was adequate

. W iggins

, 539

U.S. at 521-22. Where trial counsel has not “fulfill[ed] their obligat io n t o co nduct a thorough

investigation of the defendant’s background,” “counsel’s failure to uncover and present voluminous

mitigating evidence at sentencing could not be justified as a tactical decision.” Id. at 522 (quoting

Williams

, 529 U.S. at 396). Therefore, the “principal concern in deciding whether [trial counsel]16

exercised ‘reasonable professional judgment’ is not whether counsel should have presented a

mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to

introduce mitigating evidence of Wiggins’ background was itself reasonable. ” I d at 522-24 (internal

citations omitted and emphasize in original). The Court held that Wiggins’ trial co unsel’s

investigation was inadequat e because “counsel abandoned their investigation of petitioner’s

background after having acquired only rudimentary knowledge of his history from a narrow set of

sources.” Id. at 524 (citing the ABA Guidelines for the Appointment and Performance of Counsel

in Death Penalty Cases 11.8.6, p.133 (1989)(stating that among the topics counsel should consider

presenting are medical history, educational history, employment history, family and social history

,

prior adult and juvenile correctional experience, and religious and cultural influences)). Trial counsel

did obtain a psychologist to evaluate Wiggins. Trial counsel also procured Wiggins’ social services

records and had available to them the presentence investigation report. However, the Court found

that trial counsel should have nonetheless arranged for a forensic social worker to compile a report

of Wiggins’ social history, and trial counsel was found ineffective for not so doing.

The Court also held that the scope of trial counsel’s investigation was unreasonable in light

of the investigation that they did conduct. In trial counsel’s investigation, they did discover t hat

Wiggins’ mother was an alcoholic, that he was shuttled between foster homes, and that his mother

often left him and his siblings alone without food. The Court held that based on this information, a

reasonably competent attorney would have further investigated Wiggins’ background. “In assessing

the reaso nableness of an attorney’s investigation, a court must consider not only the quantum of

evidence already known to counsel, but also whether the known evidence would lead a reasonable

attorney to investigate f

urther.” I d. at 527. The Court held that Wiggins’ trial counsel “chose to17

abandon their investigation at an unreasonable juncture, making a fully informed decision with respect

to sentencing strategy impossible.

. . . As a result, the court’s subseq uent deference to counsel’s

strategic decision not ‘to present every conceivable mitigation defense,’ despite the fact that counsel

based this alleged choice on what we have made clear was an unreasonable investigation, was also

objectively unreasonable.” Id. at 527-28.

Recently, in Rompilla v. Beard

, the Supreme Court reaffirmed that a trial counsel’s

perfo rmance cannot be found adequate if it is supported by an unreasonably limited investigatio n.

125 S. Ct. 2456 (2005). Rompilla’s mitigation evidence consisted of testimony from five of his family

members who pleaded with the jury for mercy, and asserted that Rompilla was an innocent and good

man. I d. at 2460 -61. Nonetheless, the jury found that the aggravating factors outweighed the

mitigation evidence and sentenced Rompilla to death. Rompilla later presented a habeas claim for

ineffective assistance of counsel for trial counsel’s failure to present significant mitigating evidence

about Rompilla’s childhood, mental capacity and health, and alcoholi sm. Id. at 2461. Rompilla

argued that trial counsel should have examined his school records, especially considering several of

his family members were unfamiliar with his childhood and trial counsel knew that he had left school

after the ninth g rade. I d. at 2463. Moreover, Rompilla asserted that trial counsel should have

investigated his juvenile and adult incarceration records considering that counsel knew that he had

a criminal history. I d. In addition, Rompilla faulted trial counsel for not investigating whether he had

a history of alcohol dependency in light of certain indications of alcohol abuse. I d. The Third Circuit

found that defense counsel was not ineffective given counsel’s efforts in investigating, including

interviewing Rompilla, several of his family members, and consulting three mental health experts. I d.

at 2461. Moreover, the state court found that defense counsel extensively interviewed Rompilla and18

several of his family members, and that Rompilla was often act ively obstructive in assisting trial

counsel in his defense. I d. at 2462-63, 2472. The Supreme Court reversed the denial of habeas relief.

The Court found that trial counsel’s investigation was unreasonable because counsel failed to examine

Rompilla’s prior conviction file even though the prosecution had acknowledged that it was going to

use Rompilla’s prior convictions as an aggravating factor to push for the death penalty. I d. at 2464.

The Rompilla Court rejected the argument that trial counsel sufficiently investigated Rompilla’s prior

convictions by reviewing his rap sheet. I d. at 2464 n.3. The Court held that if trial counsel had

examined Rompilla’s prior conviction file, counsel would have found information that would have

made t hem skeptical of the impression of Rompilla’s background they had gotten from the family

members thus far. Therefore, counsel would have undoubtably investigated further and uncovered

the voluminous mitigating evidence not introduced at trial. I d. at 2468. The Court also rejected the

contention that the efforts that counsel did take–namely, extensively interviewing Rompilla and his

family, and consulting three mental health experts–were enough to release counsel from investigating

further. Id. at 2466-67.

In the present case, a review of the record and the affidavits submitted reveals that jurists of

reason could debate whether trial counsel co nducted a reasonable investigation. As in W iggins

,

counsel in the case before us did investigate possible mitigation evidence. Nonetheless, the Supreme

Court made it clear in Wiggins that even though trial counsel did do some investigating, the question

was whether the investigation conducted could be considered adequate in light of professional norms.

If trial counsel’s investigation was unreasonable then the state habeas court’s, and the district court’s,

deference to the strategic decision trial counsel made was also objectively unreasonable.19

Joyce Jones, co-counsel at Smith’s trial, stated that Wilbert Smith’s testimony was presented

to demonstrate that Smith had a Christian upbringing, he regularly attended school, he did not give

his mother problems, and he came from a “stable family that was not only based on Christian beliefs,

but was also intact and functional.” Jones’ statements are contrary to the actual testimony presented

at sentencing and to the affidavits submitted by Smith’s family members. Therefore, reasonable jurists

could debate whether trial counsel conducted a reasonable investigation. Despite Jones’ alleged trial

strategy, Wilbert Smith did not testify that Smith came from a stable family, regularly attended church

and school, and gave the family no problems. Wilbert and Carolyn Smith both testified that Smith

came from a disadvantaged background. Specifically, Wilbert Smith testified that Smith's father died

in 1971 and Smith grew up very poor. She stated that she supports herself by welfare, and she lives

in a high-crime area with fourteen other people crammed into her home. Furthermore, she related

how she has helped Smith raise his son since Smith's common law wife died a violent death in 1981.

Finally, she begged for the life of her son. Smith’s own testimony at sentencing, t hat he has used

drugs and alcohol since the age of 13, also seems to cut against Jones’ assertions that Smith regularly

at tended school, did not give his family problems, and that he came from a functional stable

backgro und. Moreover, Smith’s affidavit does not support Jones’ view that Smith had a stable

upbringing. Smith stated in his affidavit that his family lived with his grandmother, Coria Johnson,

when he lived in Louisiana and Dallas. He claimed that his mother was frequently absent from the

home and would leave him in the care of his grandmother, who was physically abusive to him and his

siblings.

The affidavits of Smith’s cousins, in particular Bertha Douglas, also cuts against Jones’ view

of Smith’s background. Bertha Douglas, Smith's cousin, grew up next door to Smith's family in both20

Louisiana and Dallas, until Smith moved to Houston at the age of eleven. Douglas stated in her

affidavit that Wilbert Smith "was not a good mother." She accused Wilbert of neglecting her

children. She also stated that when Smith and his siblings would "do something Wilbert didn't like,

she whipped them something terrible. Wilbert whipped them with cow whips or anything she could

get her hands on. Wibert [sic] beat those kids something terrible. They would have bruises, whelps,

and cuts after her beatings." Furthermore, she no ted that "[a]ll of Wilbert's children ended up on

drugs and in prison

. . . Four out of five of Wilbert's kids can not read or write. Carolyn is the only

one who can a little." Douglas claimed that "Wilbert Smith drank everyday. When we mo ved to

Dallas, Wilbert started dating a man named Tom Jones. Tom Jones was a known drug dealer.

. . .

I estimate at least 10 to 20 people would come and go from their home everyday. Sometimes people

would stay all night.

. . . So, at the age of 5 or 6, Roy witnessed his mother drinking, doing and selling

drugs." Smith moved to Houston and away from Douglas when he was eleven. Douglas stated that

she " visit ed them a couple of times in Houston, but after a while I never went back. Every time I

went they had no food, the neighborhood wa s drug infested, drugs in the home, and people with

guns." Douglas also claimed that Wilbert is "mentally ill," extremely paranoid and practices

witchcraft. "She would have candles and voo-doo stuff all over her home." According to Douglas,

Wilbert had thrown Smith out of the house by the time Smith was fifteen and Smith was living on the

streets of Houston. Bobby, Jerome and James Douglas, Jr., Smith's cousins, each individually stated

that Wilbert neglected her children, beat them, and practiced voo-doo. James Douglas averred that

Smith's family was the most dysfunctional he had ever witnessed. The clash between the affidavit of

Joyce Jones and the statements of Smith and his family could lead a reasonable jurist to at least find3 Smith has two brothers and two sist ers. His sister Carolyn testified at trial. Gilbert and

Sabrina state they were not contacted by trial counsel. Smith's last sibling, his brother George, was

incarcerated, serving an extended prison term and it is not apparent whether he was ever contacted

by trial counsel.

4 Wilbert Smith stated in her affidavit that:

Roy's attorney Ron Mock did not come to my h o me. We had a brief 10-minute

conversation over the phone. During the conversation with Mr. Mock he asked me

a few questions about my son's past criminal history and why he got in trouble. Mock

also asked me questions concerning the incident w hich my son was found guilty of

21 it debatable whether trial counsel adequately investigated Smith’s background and were aware of his

true upbringing.

The affidavits from Smith’s family also contradict trial counsel’s assertion that they

extensively interviewed Smith’s family members. Ron Mock, Smith’s other trial counsel, claimed that

he interviewed many of Smith's family members and childhood acquaintances. He stated that after

evaluating all the witnesses, he decided to put just four people on the stand for the punishment phase

of the trial. Joyce Jones, claimed that in preparation for Smith's trial they conducted an extensive

investigation in which they "interviewed various witnesses including his family members, associates,

sheriff's deputies, and his parole officer." She also claimed that they interviewed Smith on numerous

occasions about his social, educational, employment, criminal, and health his tory. Nonethel ess,

Smith’s brother Gilbert, sister Sabrina and grandmother all assert that they were not contacted by trial

counsel even though they would have assisted if allowed. 3 The aforementioned cousins of Smith also

contend that they were never contacted by trial counsel although they would have assisted in Smith’s

defense if allowed. Smith’s mother states that she only talked to Smith’s trial counsel for a total of

10 minutes right before she was to testify, and he only asked her questions about Smith’s previous

offenses. 4 Despite trial counsel’s assertion that they extensively interviewed and contacted witnessescapital murder. The first time I met Ron Mock was outside the courtroom the day I

testified. Mock told me that I was supposed to plead with jurors not to kill my son.

Mock also asked me if I knew anything about some stolen watches.

22 and family members, the only persons that Lisa Milstein, the mitigation specialist retained by federal

habeas counsel, could confirm trial counsel contacted were the three persons presented at sentencing.

In Rompilla

, trial counsel extensively interviewed several of Rompilla’s family members. 125 S. Ct.

at 2462-63, 2472. Nonetheless, the Court found that trial counsel could not rely on their thorough

interviewing of Rompilla and his family to excuse an unreasonable limitation to their investigation.

Id. at 2466-67. The Court al so fo und it inconsequential that Rompilla impeded trial counsel’s

investigation of mitigating evidence. Based on the numerous affidavits submitted by Smith’s family,

jurists of reason could find that it is debatable whether trial counsel adequately investigated Smith’s

family and social background. Such failure would be unreasonable in light of prevailing professional

norms, Wiggins

, 539 U.S. at 524, and in light of the fact that a defendant’s background is

unquestionably relevant to the jury’s determination of whether a sentence less than death i s

warranted. Penry v. Lynaugh , 492 U.S. 302, 319 (1989).

Mo reo ver, it is debatable among jurists of reason whether the scope of trial counsel’s

investigation was reasonable in light of the information that they did know. Trial counsel were aware

from Smith that he had a long and extensive history of substance abuse. The evidence adduced

established that Smith had been on a crack cocaine binge during the week previous to the murder,

and that he had smoked 7 crack rocks th e day of the offense. He also asserted that he could not

remember committing the murder. Reasonable jurists could debate whether it was consistent with

professional standards to not investigate the psychological and biological impact of Smith’s substance

abuse. The State asserts that such evidence could have a double edge sword quality such that it was5 Dr. Paula Lundberg-Love, a psychologist who specializes in psycho-pharmacology–the

study of t he effects of drugs and alcohol upon an individual’s cognitive functioning and

behavior–asserts in her affidavit that based upon the information that Smith propounds concerning

his substance abuse history it is highly likely that Smith has organic brain damage. Given Smit h’s

chronic alcohol abuse and the reported level of consumption, Dr. Love averred that it is highly likely

that Smith has suffered organic impairment that could have an effect on his behavior and cognitive

understanding. She also assert s t hat Smith’s history of crack cocaine probably influenced his

understanding of right and wrong at the time of the offense, as well as his understanding of his rights

when he later provided his written confessions. In addition, she asserted that the method in which

Smith administered crack–inhalation directly int o t he lungs–likely caused a temporary delusional

disorder, and the heavy abuse may have also disrupted his memory.

23 a reasonable strategic decision not to present a psychiatric expert. However, “strategic choices made

after thorough investigations of law and fact s relevant to plausible options are virtually

unchallengeable; [while] strategic choices made after less than complete investigations are reasonable

precisely to the exten t that reasonable professional judgments support the limitations on

investigation.” Strickland v. Washington , 466 U.S. 668, 690-91 (1984) (emphasis added).

At sentencing, trial counsel's argument was based in part on a theory that Smith “was too high

on coke during the offense for it to be deliberate.” In that same vein, Smith testified at sentencing

about his cocaine addiction, its influence upon his behavior, and his inabilit y to remember parts of the

evening the offense occurred due to his intoxication. Even though trial counsel’s theory at sentencing

was grounded on the contention that Smith’s substance abuse affected his judgment, trial counsel did

not investigate the effect Smith’s substance abuse history c o uld have had on him generally or

specifically at the time of the offense. It is reasonably debatable whether trial counsel’s failure t o

investigate this line of evidence rendered their investigation inadequate, particularly in light of trial

counsel’s defense theory and Smith’s assertion that he did not remember the offense. 5 As in W iggins

where the Court held that trial counsel’s awareness of Wiggins’ tro ubled childhood would have

prompted a reasonably competent attorney to investigate further, in the case at bar reasonable jurists24

could debate whether in light of Smith’s, his sister Carolyn’s and his mother’s testimony that Smith

came from a disadvantaged background, a reasonably competent attorney would have investigated

his background further.

Although failure to present mitigating evidence during th e penalty phase i s not p er se

ineffective assistance of counsel, counsel has a duty to make a reasonable investigation of defendant's

case or to make a reasonable decision that a particular investigation is unnecessary. Ransom v.

Johnson

, 126 F.3d 716, 723 (5th Cir. 1997 ). Here, reasonable jurists could debate whether the

investigation that supported trial counsel’s strategy at sentencing was reasonable and adequate. If

trial counsel’s investigation was unreasonable then making a fully informed decision with respect to

sentencing strategy was impossible. W iggins

, 539 U.S. at 527-28. As a result, the district court’s

and the state habeas court’s decision to give deference to trial counsel’s strategic decision would also

be objectively unreasonable. Id. at 528.

I n assessing whether Smith was prejudiced by trial counsel’s conduct, the court should

“reweigh the evidence in aggravation against the totality of the available mitigating evidence.” Id.

at 534. Here, trial counsel only presented the testimony of four people at sentencing. In light of the

scant mitigation evidence presented, reasonable jurists could debate whether the evidence Smith now

proffers would have convinced a juror that Sm it h was less morally culpable such that life

imprisonment, rather than the death penalty, was appropriate. Because we conclude that Smith has

established that reasonable jurists could find the district court erred in rejecting the underlying merits

of Smith’s claim and because, as previously stated, we find that the district court’s procedural ruling

is likewise debatable, we conclude that a COA should be issued.

II. Jury Nullification Instruction6 In this case, the trial court instructed the jury as follows:

Yo u are instructed that when you deliberate on the questions posed in the special

issues, you are to consider all relevant mitigating circumstances, if any, supported by

the evidence presented in both phases of the trial, whether presented by the State or

the defendant. A mitigating circumstance may include, but is not limited to, any

aspect of the defendant’s character, background, record, or circumstance of the crime

which you believe could make a death sentence inappropriate in this case. If you find

that there are any mitigating circumstances in this case, you must decide how much

weight they deserve, and thereafter, give effect and consideration to them in assessing

the defendant’s personal culpability, at the time you answer the special issue. If you

determine when giving effect to the mitigating evidence, if any, that a life sentence,

as reflected by a negative finding on the issue under consideration, rather than a death

sentence, is an appropriate response to the personal culpability of that defendant, then

a negative finding should be given to that special issue under consideration.

The supplemental instruction given at Smith’s trial is identical to the supplemental instruction

denounced by the Supreme Court in Penry v. Johnson , 532 U.S. 782, 789-90 (2001):

“Yo u are instructed that when you deliberate on the questions posed in the special

issues, you are to consider mitigating circumstances, if any, supported by the evidence

presented in both phases of the trial, whether presented by the state or the defendant.

A mitigating circumstance may inc lude, but is not limited to, any aspect of the

defendant's character and record or circumstances of the crime which you believe

could make a death sentence inappropriate in this case. If you find that there are any

mitigating circumstances in this case, you must decide how much weight they deserve,

if any, and therefore, give effect and consideration to them in assessing the defendant's

personal culpability at the time you answer the special issue. If you determine, when

giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a

negative finding to the issue under consideration, rather than a death sentence, is an

appropriate response to the personal culpability of the defendant, a negative finding

should be given to one of the special issues.”

25 Smith’s trial occurred in May 1990, a year af ter Penry v. Lynaugh , 492 U.S. 302 (1989)

(“ Penry I ”). In response to P enry I

, the state trial court submitted an instruction to the jury advising

the jury, inter alia

, to give effect to its consideration of mitigating evidence by submitting a negative

answer to the special issues if the mitigation evidence sufficiently required the i mposit ion of a life

sen tence. 6 The supplemental instruction given in Smith case is identical to the supplemental7 The three special issues submitted pursuant to TEX. CODE CRIM. PROC. art. 37.071(b)

(Vernon 1981) were as follows:

(1) Was the conduct of the defendant, Roy Gene Smith, that caused the death of

the deceased committed deliberately and with the reasonable expecta tion that the

death of the deceased or another would result?

(2) Is there a probability that the defendant, Roy Gene Smith, would commit

criminal acts of violence that would constitute a continuing threat to society?

(3) Was the conduct of the defendant, Roy Gene Smith, in killing the deceased

unreasonable in response to the provocation, if any, by the deceased?

26 instruction later denounced by the Supreme Court in P enry v. Johnson . The jury affirmatively

answered all three special issues. 7

Smith contends that the supplemental instruction given to the jury violat ed his Eighth and

Fourteenth Amendment rights because it did not provide an adequate vehicle for the jury to consider

and give effect to Smith’s mitigating evidence of drug addiction/intoxication, childhood poverty, and

exposure to a crime-infested environment as a youth.

First, the district court addressed whet her Smith’s P enry claim was procedurally barred.

Smith raised his argument on direct appeal to the Texas Court o f Criminal Appeals. That court

rejected Smith’s claim because (a) the state court had previously approved of similar jury instructions

in response to Penry

, and (b) Smith failed to make a contemporaneous objection of egregious error

to the court’s charge. The district court found that the Texas Court of Criminal Appeals intermixed

its procedural discussion with its merits resolution, and thus, the Texas Court of Criminal Appeals

did not clearly and expressly rely on an independent state procedural bar in denying Smith’s claim.

Second, the district court addressed four areas of mitigating evidence presented by Smith: poverty;

drug addiction and intoxication; character evidence; and growing up in a crime-ridden environment.27

The district court held that Smith’s mitigating evidence was not comparable to Penry I

, and thus, the

special issues provided the constitutionally mandated vehicle for jury consideration of the mitigation

evidence. See Robertson v. Cockrell , 325 F.3d 243, 253 (5th Cir. 2003).

After the parties submitted their briefs in this appeal, the Supreme Court decided Tennard v.

Dretke

, 124 S. Ct. 2562 (2004), and Smith v. Texas

, 125 S. Ct. 400 (2004). We ordered the parties

to submit supplemental briefing, in light of the rulings in Tennard and Smith

, but although the State

complied with our order, Smith never filed a supplemental brief addressing Smith and Tennard

.

In the State’s supplemental briefing, the State argues that Smith and Tennard are fact specific

applications of Penry I and Penry II , t hat do not affect this case. They contend that despite the

presence of the constitutionally defective supplemental instruction, Smith is still required to show that

the jury was prevented from giving effect to his mitigation evidence. The State asserts that S mith and

Tenna rd do no t affect this Circuit’s prior jurisprudence that would support finding that Smith’s

evidence of an im

pro vished background, growing up in a crime-infested environment and alcohol

abuse can all be given effect through both the deliberateness and future dangerousness special issue

questions. Additionally, the State argues that the definition of “deliberate” that was given with the

instructions cures any deficiencies with the instruction.

The supplemental instruction given at Smith’s trial is identical to the instruction that has been

denounced by the Supreme Court on two occasions. S ee Penry II , 532 U.S. 782; Smith , 125 S. Ct.

400. “The Court has found a supplemental instruction, like the one present in [Smith’s] trial, to be

unconstitutional only where the special issue questions themselves are not broad enough to provide

a vehicle for the jury to give effect to the defendant's mitigation evidence.” B igby v. Dretke , 402

F.3d 551, 570 (5th Cir. 2005) (citation omitted). “When the jury is able to consider and give effect28

to the mitigation evidence in imposing sentence, the special issu e questions are constitutionally

adequate. Thus, in considering a P enry II claim, the court must ask whether the evidence is beyond

the effective reach of the jury.” Id. (citation omitted).

Smith’s mitigation evidence that he asserts the jury could not give effect to was evidence of

(1) addiction/intoxication, (2) childhood poverty, and (3) exposure to crime-infested environment.

On cursory review, it would seem as though Smith’s arg ument that his evidence of addiction/

intoxication was beyond the scope of the special issue questions is foreclosed by Circuit precedent.

Smith took the stand at sentencing and explained that he was high on crack and under the influence

of alcohol at the time of the murder and did not remember killing Whitmire. This Circuit has held that

mitigation evidence of the defendant’s intoxication at the time of the offense can be considered under

the deliberateness question. S ee, e.g.

, Cordova v. Co llins

, 953 F.2d 167, 170 (5th Cir. 1992); K elly

v. Lynaugh

, 862 F.2d 1126, 1133 (5th Cir. 1988). Smith also testified that he has had no behavioral

problems when he was not under the influence of crack or alcohol. This Circuit has held that such

evidence of addicti o n could be considered under the future dangerousness question. S ee, e.g.

,

Cordova

, 953 F.2d at 170. These cases do not seem to rely on the rejected constitutionally relevance

test and therefore their holdings seem to be undisturbed by Tennard and Smith

.

Arguably, Smith’s claim that the jury could not consider evidence that he grew up in poverty

and was exposed to a crime-infested environment as a child, is foreclosed by this Circuit’s decisions

that have d enied P enry claims based upon a defendant’s assertion that evidence of a troubled

childhood was no t wit hin the special issue questions. However, the cases that have denied P enry

relief for evidence of a troubled childhood seem to rely, in one way or another, on the now rejected

constitutional relevance test. S ee, e.g.

, Davis v. Scott

, 51 F.3d 457, 461-62 (5th Cir. 1995) (evidence29

of troubled childhood, alone without demonstrating any link to the crime, does not constitute

"constitutionally relevant mitigating evidence"); Madden v. Co llins

, 18 F.3d 304, 308 (5th Cir. 1994)

(evidence of troubled childhood is not constit ut ionally relevant mitigating evidence when not

attributable to the crime); Barnard v. Co llins

, 958 F.2d 634, 638-39 (5th Cir. 1992) (rejecting Penry

claim where crime not “attributable” to the proffered evidence of troubled childhood). Contra

Tennard

, 124 S. Ct. at 2571 ("The Fifth Circuit was likewise wrong to have refused to consider the

debatability of the Penry quest ion on the ground that Tennard had not adduced evidence that his

crime was attributable to his low IQ."); see als o Robertson

, 325 F.3d at 259 (Higginbotham, J.,

concurring) (“The majority dismisses the defendant's effort to push his evidence of mitigation into the

Penry ring as contending for a categorical treatment of all child abuse. Fair enough; however. . . [w]e

must be careful that this push not lead us to categorically exclude classes of mitigating evidence such

as child abuse.”). Because we have not addressed this issue since the Supreme Court’s rejection of

the constitutional relevan ce t est, we find that Smith’s P enry claim is debatable among jurists of

reasons and we grant a COA.

Smith also has another hurdle in the form of In re Kunkle . In Kunkle

, this court stated that

“[a]ny reading of Smith as not being limit ed to mental impairment but rather reaching all ty pes of

mitigating evidence is inconsistent with [ Jurek v. Texas

, 428 U.S. 262 (1976), Graham v. Co llins

,

506 U.S. 461 (1993), Johnson v. Texas

, 509 U.S. 350 (1993)]. We are not persuaded that the Court

intended to undercut Jurek

, Graham

, and Johnson without even citing them. Whether T ennard or

Smith swe ep so broadly as to create a conflict with its own J urek or Graham decisions is for the8 We note that the Supreme Court has never explicitly stated that Penry claims cannot be

extended beyond claims invo lving evidence of “menta l impairment.” In fact at times, it seems the

Court has said the exact opposite. For example, in S mith v. Texas , the defendant put forward

evidence of (1) organic learning disabilit ies and speech handicaps; (2) verbal IQ score of 75 and a full

IQ score of 78; (3) his exemplary behavior at school despit e his learning disabilities; (4) the

involvement of his father with drugs and gang violence; and (5) Smith’s young age of nineteen at the

t ime he committed the crime. In granting his P enry claim, the Supreme Court did n ot in any way

hig hlight any particular piece of Smith’s evidence. The only mention the S mith Court made of

whether the defendant’s evidence was outside the reach of the special issue questions was the Court’s

single sentence that “[j]ust as in Penry II, petitioner's jury was required by law to answer a verdict

form that made no mention whatsoever of mitigation evidence. And just as in Penry II, the burden

of proof on the State was tied by law to findings of deliberateness and future dangerousness that had

little, if anything, to do with the mitigat ion evidence peti ti oner presented.” 1 25 S. Ct. 400, 407

(2004).

9 The first ex parte motion was denied by the district court with leave to re-file upon providing

further support for the need of an investigator. Smith subsequently filed a second ex parte motion

fo r the same claim, this time supported by affidavits by Smith and Dr. Paula Lundberg-Love,

demonstrating the possibility that Smith’s cognition at the time of the offense was impaired by the use

of cocaine and alcohol. The district court again denied Smith’s motion with leave to re-file upon the

Court’s determination that Smith was entitled to an evidentiary hearing.

30 Supreme Court.” In re Kunkle , 398 F.3d 683, 685 (5th Cir. 2005). 8 In order to assist this court in

adjudicating the merits of Smith’s Penry claim, he must directly address the precedents we have cited

and how they affect the disposition of the merits of his claim.

III. Claim for Funds under 21 U.S.C. § 848 for Assistance of a Psychologist

Following the denial of two ex parte motions for the assistance of a psychologist, 9 Smith filed

his federal habeas application without the assistance of a psychologist to assist in the development

and pleading of a claim focusing on mitigating evidence of Smith’s mental state following his

substance abuse. The district court denied Smith’s habeas writ, without granting an evidentiary

hearing, rendering Smith’s motion for expert assistance moot.

Under § 848(q)(4)(b):31

In any post conviction proceeding under section 2254 or 2255 of Title 29, seeking to

vacate or set aside a death sentence, any defe ndant who is or becomes financially

unable to obtain adequate representation or investigative, expert, or other reasonably

necessary services shall be entitled to the appointment of one or more attorney s and

the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8),

and (9).

(emphasis added).

Similarly, § 848(q)(4)(b) expressly incorporates § 848(q)(9):

Upon a finding that investigative, expert, or other services are reasonably necessary

for the representation of the defendant, whether in connection with issues relating to

guilt or the sentence, the court may authorize the defendant’s attorney s to obtain such

services on behalf of the defendant and, is so authorized, shall order the payment of

fees and expenses theref

or under paragraph (10) [Paragraph 10 provides that the

court shall fix reasonable rates for reasonable expenses].

(emphasis added).

Smith contends that the district court erred in denying him funding for an expert psychologist

under 21 U.S.C. § 848, which provides for funding for attorney

, investigative, and expert assistance

in post-conviction proceedings. Smith argues that he has a “mandatory right” to the assistance of a

psychologist as long as he shows that he is indigent and that expert assistance is reasonably necessary.

Fuller v. Johnson , 114 F.3d 491, 502 (5th Cir. 1997). Moreover, Smith contends that his need for

a psychologist was reasonably necessary because such service would be necessary to permit his

counsel to obtain evidence not yet acquired to support his ineffective assistance of counsel claim.

McFarland v. Scott

, 512 U.S. 849, 8 55 (1994). Specifically, the affidavit of Dr. Paula LundbergLove could show a valid basis to examine Smith’s drug and alcohol use to de termine whether i t

would support a defense mitigation theory. Smith’s counsel would be unable to develop or

investigate such evidence in the absence of a qualified expert.32

The State counters with the authorization of investigative funds is within the discretion of the

district court. S ee Fuller

, 114 F.3d at 502. Moreover, the State argues that Smit h’s ineffective

assistance of counsel claim was procedurally defaulted, thus Smith failed to demonstrate a reasonable

necessity for further investigation of his claim.

This court has held that a COA is not necessary to appeal the denial of funds for expert

assistance. H ill v. Johnson

, 210 F.3d 481, 487 fn.3 (5th Cir. 2000). Therefore, because a COA is

not necessary, this court’s reviews orders invo lving § 848(q) for abuse of discretion. I d

. at 487. This

court has upheld the denial of such funding when a petitioner has (a) failed to supplement his funding

request with a viable constitutional claim that is not procedurally barred Fuller

, 114 F.3d at 502, or

(b) when the sought-after assistance would only support a meritless claim, Hill

, 210 F.3d at 476, or

(c) when the sought after assistance would only supplement prior evidence. S ee Barazza v. Cockrell

,

330 F.3d 349 (5th Cir. 2003).

Smith does not show an abuse of discretion here. The question of mental capacity, like in

Barazza

, was presented in this instance to the jury at trial. The jury heard testimony during the

punishment phase from Smith that he used drugs and alcohol the day of the offense, as well as almost

every day prior. Smith is now attempting to develop more evidence to support his claim of temporary

insanity by introducing the affidavit of Dr. Love, to supplement his temporary insanity claim. Such

supplemental evidence has been rejected by this court. S ee Chase v. Epps

, 74 Fed. Appx. 339, 344

(5th Cir. 2003) (quoting Barazza , 330 F.3d at 352) (rejecting a section 848(q) claim where mental

capacity had been presented to the jury and “petitioner was not attempting to supplement, if not

contradict, the expert testimony rejected by the jury”). T he testimony of Dr. Love would supplement

the prior testimony of Smith during the punishment phase — t hat Smith had constantly ingested33

alcohol and cocaine prio r t o t he offense — of which the jury has already been made aware.

Therefore, the district court judge did not abuse his discretion in rejecting the allocation of funds for

the development of supplemental evidence.

Moreover, even if Smith can show “reasonable necessity,” the granting of funds under section

848(q) is a discretionary decision to which Smith does not have a mandatory ri ght. In 1996, the

AEDPA section 108 changed section 848(q)(9) inter alia “changing the mandatory ‘shall’ language

to the discretionary ‘may.’ AEDPA § 108, Pub. L. No. 104-32, 110 Stat. 1226 (1996); F uller

, 114

F.3d at 502. Here, the district court decided Smith’s habeas petition post-1996, and thus AEDPA

applies. The language of section 848(q)(9) states that upon a finding that an expert is “reasonably

necessary

. . .the court may authorize” the granting of funds. Thus, the change from ‘shall’ to ‘may’

therefore can only reasonably be construed as c h anging a mandatory granting of funds to a

discretionary granting of

funds even if the reasonable necessity language is complied with. The

district court judge did not abuse his discretion in denying the grant of funds.

Conclusion

For the reasons outlined above, Smith’s request for a COA is GRANTED as to his ineffective

assistance of counsel claim and his Penry claim. The district court decision to deny the grant of funds

for an expert under § 848 is AFFIRMED.