IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-40793

 

JOHN COCKRUM,

Petitioner-Appellee,

versus

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellant.

 

Appeal from the United States District Court

For the Eastern District of Texas 

 

July 29, 1997

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This opinion decides an appeal. It is also an extraordinary

account of perverse allocations of government resources in a

capital case. In 1986, two court-appointed lawyers and an

investigator had six months to prepare for a trial that ended in a

death sentence for John Cockrum. A state district judge in a small

community in far east Texas presided over the jury trial, running

the court with no secretary or law clerk. The lawyers were paid

$3,500 and $3,200 respectively for their time. After Cockrum’s

death sentence and unsuccessful appeal, a federal district judge

refused to allow Cockrum to forgo further review in federal court.
2

The United States District Court unleashed its full power by

appointing counsel and allowing these lawyers to develop over a

three-year-period the trial that the federal district court

concluded ought to have been conducted in the first place.

Supported by a federal payroll and unfettered access to the

discovery weapons of the Federal Rules of Civil Procedure,

including subpoenas, the newly appointed lawyers took twenty oral

depositions, including the deposition of the state trial judge, and

retained a forensic psychologist and lawyer to offer expert

testimony. Viewing this hypothesized trial conducted ten years

after the state trial, the federal court held that the lawyers in

the state trial did not provide a constitutionally adequate

defense. 

After oral argument and review of the entire record, we

conclude that even the federal case developed with these large

resources would not likely have made a difference in Cockrum’s

sentence. 

I

A jury in Bowie County, Texas, convicted Cockrum of the murder

of Eva May, an elderly lady who ran a rural convenience store and

was known to keep cash for use in cashing payroll checks. Before

dawn on May 29, 1986, Cockrum entered the store, which was attached

to May’s residence, robbed May, and then shot her in the head at

close range. Jerry Morgan, who drove Cockrum to the scene,

remained in the car and did not learn of the slaying until later.
3

The state district judge appointed Rick Shumaker and David

Malaby to defend Cockrum. They in turn hired an investigator. The

case went to trial in December of 1986. Confronted with powerful

physical evidence and the corroborating testimony of Morgan, who

entered a plea agreement, Cockrum’s counsel failed to convince the

jury not to convict Cockrum of capital murder.

During the punishment phase of the trial, Cockrum’s counsel

called Wayne Green, a corrections officer at the jail where Cockrum

was held pending trial. Green testified that Cockrum had been a

good prisoner. The defense also called Cockrum’s mother and two

sisters, who in brief and direct testimony described him as a

loving son and brother — who ought not be executed. Especially

important for our purposes is what Cockrum’s counsel did not do

during the punishment phase. The defense knew of his chronic drug

use, but they decided not to pursue that side of Cockrum’s history

and did not attempt to use his drug problems as an explanation of

the murder. They also knew that when Cockrum was seventeen years

old he had killed his own father. Although they could have

attempted to portray the killing as the result of domestic abuse

and the cause of Cockrum’s psychological instability, they chose

not to mention it to the jury.

For its part, the state called three law enforcement officers

from the local area who testified that Cockrum’s reputation for

being a law-abiding citizen was bad. It also presented evidence of

Cockrum’s three prior felony convictions: burglary of a building in

1979, attempted burglary in 1985, and possession of marijuana in
4

1986. The jury did not, however, learn about a long list of

Cockrum’s other violent and destructive acts, including the killing

of his father.

The jury sentenced Cockrum to death. The Texas Court of

Criminal Appeals affirmed the conviction and sentence, and the

Supreme Court denied Cockrum’s petition for a writ of certiorari.

Cockrum v. State, 758 S.W.2d 577 (Tex. Crim. App. 1988), cert.

denied, 489 U.S. 1072, 109 S. Ct. 1358, 103 L. Ed. 2d 825 (1989).

Three years later, the state trial judge who had presided at

Cockrum’s trial rejected Cockrum’s petition for collateral review

of his conviction and sentence. Without conducting an evidentiary

hearing, he entered findings of fact and conclusions of law to the

effect that Cockrum’s trial attorneys were not ineffective in

defending Cockrum during the sentencing phase. The Texas Court of

Criminal Appeals found the trial court’s findings supported by the

record and denied Cockrum’s application for a writ of habeas

corpus. The trial court scheduled his execution for April 21,

1993. 

On April 9, 1993, Cockrum wrote to the federal district court

and to his attorneys to ask that the state be allowed to carry out

the death sentence. The federal court appointed Dallas attorney

Alan Rich as Cockrum’s counsel. On April 16, 1993, Rich filed a

petition for a writ of habeas corpus on behalf of Cockrum in the

Eastern District of Texas. The federal trial court stayed the

execution, and on April 26 it forwarded to the state’s counsel a

copy of Cockrum’s letter. Nearly a year later, on April 11-12 and
5

July 5-6, 1994, the district court conducted a hearing on Cockrum’s

competency to waive collateral review, and on August 4, 1994, it

held that he was not competent to do so. In re Cockrum, 867

F. Supp. 484 (E.D. Tex. 1994). Rich was then appointed to act as

Cockrum’s next friend. In re Cockrum, 867 F. Supp. 494 (E.D. Tex.

1994). Rich ultimately filed a federal habeas petition with

twenty-five separate claims for relief. The district court allowed

discovery under the Federal Rules of Civil Procedure. Then it

allowed Rich to withdraw and appointed two lawyers from the Texas

Defenders Service, Mandy Welch and Richard H. Burr, III, as new

next friends. 

Finally, in February of 1996, nearly three years after

Cockrum’s first federal petition was filed, the district court

conducted a hearing on the four claims remaining, all others having

been voluntarily dismissed: (1) suppression of evidence and failure

to correct misleading testimony regarding Morgan’s plea bargain;

(2) trial venue; (3) jury misconduct in discussing the possibility

of parole at the punishment phase; and (4) ineffective assistance

of counsel at the punishment phase. In a careful and detailed

opinion filed on July 25, 1996, the district court first held that

the state trial court’s findings on collateral review enjoyed no

presumption of correctness because they were tainted by ex parte

discussion on the merits between the trial judge and the state’s

counsel. Cockrum v. Johnson, 934 F. Supp. 1417, 1424-31 (E.D. Tex.

1996). The district court then rejected the first three claims,

id. at 1431-40, but it upheld the claim of ineffective assistance
 

1 These holdings were based on federal habeas law in effect

when Cockrum filed his petition. When the district court issued

its opinion, it was unclear whether the Anti-terrorism and

Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214

(1996), should have any effect on Cockrum’s petition. Therefore,

the court also analyzed Cockrum’s four theories under the new

statute and concluded that relief would be appropriate even under

the AEDPA’s more restrictive rules. 934 F. Supp. at 1449-51.

Because the Supreme Court has determined that, with exceptions not

relevant here, the new statute applies only prospectively, Cockrum

gets the benefit of pre-AEDPA habeas law. See Lindh v. Murphy, ___

U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___, 1997 WL 338568 (1997).

6

of counsel, id. at 1440-49. The district court issued a writ of

habeas corpus directing Cockrum’s release or retrial.1

II

We turn now to the federal district court’s view of how

Cockrum should have been defended. In doing so, we must keep in

the forefront the reality that, even if one can find fault in the

failure to locate evidence or to offer known evidence, much

mitigating evidence has a dark side.

A

The district court faulted Cockrum’s trial counsel at every

turn and credited Cockrum’s mother and sister’s testimony that

Cockrum’s counsel had little contact with them before trial and did

not seek information about mitigation witnesses. It found Malaby

was not credible; that with “a little prompting,” the mother and

sisters could have added compelling detail to the short and

nonspecific testimony given at trial. Id. at 1445. Rejecting the

testimony of the two lawyers and the investigator, the district

court found that “Cockrum’s attorneys made no attempt to locate
7

witnesses to testify at the punishment phase or to investigate

mitigating evidence to present on their client’s behalf.” Id.

According to the district court, “the near total lack of

preparation by Cockrum’s attorneys for the punishment phase fell

below an objective standard of reasonableness.” Id. at 1447.

While acknowledging the difficulty of such an undertaking, the

court described the case defense counsel ought to have presented:

[Cockrum’s] father was an alcoholic police officer who

became violent when intoxicated, physically abusing the

applicant, his sisters, and his mother. At a very

early age — nine or ten years old — the applicant began

using illegal drugs and continued to do so until he was

arrested on the charges for which he was ultimately

sentenced to death. At the age of fifteen, he

allegedly set fire to his school and was confined to a

state correctional facility for boys. His family

situation did not improve when he returned home at the

age of sixteen. When the applicant was seventeen, he

shot his father during one of his father’s drunken,

abusive episodes. A few weeks later, his father died

of his wounds. Before he died, the applicant’s father

told authorities that the shooting was an accident;

therefore, the applicant never faced criminal charges

arising from the shooting. However, it is clear that

the shooting had a profound impact on the applicant.

His drug abuse escalated, and he attempted suicide at

least twice. He married and had one daughter, but his

marriage failed. Eventually, he became addicted to

methamphetamines.

Id. at 1443 n.22 (quoting In re Cockrum, 867 F. Supp. at 485).

According to the district court, failing to investigate this story

and relate it to the jury amounted to a violation of the first

prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064, 80 L. Ed. 2d 674 (1984), which requires a showing “that

counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
8

In spite of David Malaby’s experience in picking juries in

Bowie County each week for the previous five years, the district

court rejected the explanation of Cockrum’s counsel that in their

judgment offering evidence of their client’s drug use or the fact

that he shot and killed his father would not be helpful in a trial

to a Bowie County jury. Defense counsel testified at the federal

habeas hearing that they were concerned about opening the door

during the guilt phase to the state’s evidence of acts of violence.

The district court observed that this concern did not explain the

limited submission at the sentencing hearing because evidence of

bad acts would be admissible in the penalty phase in any event. In

short, the district court concluded that trial counsel could have

done more.

B

Of course, a claim of ineffective assistance requires not

merely ineffectiveness, but ineffectiveness that prejudices the

criminal defendant. A petitioner must show “that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Strickland, 466 U.S. at 687, 104

S. Ct. at 2064. The district court, therefore, had to hypothesize

what Cockrum’s counsel would have discovered if they had explored

Cockrum’s personal history and expanded their punishment-phase

presentation to make the jury more familiar with their client.

According to the district court, counsel could have depicted

Cockrum as a significantly more sympathetic figure than the one
9

that emerged from the truncated punishment phase that counsel chose

to use.

A reasonably competent investigation in

preparation for a punishment phase in this case would

have produced a wealth of readily available information

about Cockrum’s family background and medical history.

Had she been asked, Cockrum’s mother could have

provided valuable insight into her deceased husband’s

increasing problems with alcohol and his periods of

violence toward his family, the complex relationship

between Cockrum and his father, and the profound impact

of his father’s death on Cockrum’s behavior, Deposition

of Barbara Sutherland, Dec. 12, 1995, at 31-39;

Transcript, Feb. 22, 1996, at 89-91 (testimony of

Barbara Sutherland); she could have informed Cockrum’s

attorneys about her son’s long history of

hospitalization, Transcript, Feb. 22, 1996, at 93-95

(testimony of Barbara Sutherland); and she could have

provided a list of persons who thought highly of

Cockrum and who would have made excellent mitigation

witnesses, including Miledge Oglesby, John Blackburn,

and J.R. O’Rear. See id. at 115-19 (testimony of

Barbara Sutherland). Had Cockrum’s medical and

institutional records been subpoenaed, they would have

revealed a period of institutionalization at the Texas

Youth Commission’s Gatesville State School for Boys,

Second Amended Petition for Writ of Habeas Corpus, app.

O-2, a long history of severe drug abuse, id. app. O-4,

several suicide attempts, id. app. O-6; id. app. O-8,

and several psychotic episodes, including one in which

a twenty-five-year-old Cockrum thought that he was

seventeen years old again and that his father was still

alive, id. app. O-11. If a mental health examination

had been conducted, Cockrum could have been diagnosed

with post-traumatic stress disorder, antisocial

personality disorder, polysubstance abuse, and

dysthemia (long-term depression), all with their roots

in Cockrum’s shooting of his father. Transcript, Feb.

20, 1996, at 22 (testimony of Jack Randal Price,

Ph.D.). Although it is clear that Cockrum’s attorneys

provided deficient performance at the punishment phase

by failing to conduct any meaningful investigation, the

more difficult question posed by this claim is whether

counsels’ deficiencies prejudiced Cockrum. The State

did not, as it could have, put on evidence of

unadjudicated conduct from Cockrum’s past, and much of

the evidence that Cockrum’s attorneys could have

learned possesses both aggravating and mitigating

characteristics. It is thus difficult to hypothesize,

in this case, what a penalty phase defense would have
10

looked like after a reasonable investigation, much less

how a jury would have reacted to it. This evidence

could form the basis of a persuasive case that (1)

explained why Cockrum was violent — i.e., the enduring

mental health consequences of his father’s killing that

led to a deepening cycle of drug abuse, suicide

attempts, and violence; (2) identified his potential

for responsible behavior and his capacity for forming

close relationships with others — i.e., his long period

of employment with J.R. O’Rear, the high opinion that

O’Rear, Miledge Oglesby, and John Blackburn had of

Cockrum despite knowledge of his failings, and the

close ties Cockrum maintained with his mother and

sisters; and (3) demonstrated why, if given a life

sentence, Cockrum could be rehabilitated — i.e., the

crippling drug addiction and the mental diseases from

which he suffered could be alleviated through the

professional treatment available in the prison system

and the support of his family.

934 F. Supp. at 1447-48.

The court recognized the difficulties the defense would

confront with such a strategy. “[I]t would be nonsense to contend

that a jury could not find a person with a long history of severe

drug abuse, a diagnosis of antisocial personality disorder, and an

extensive criminal record culminating in a cold-blooded murder to

be a continuing threat to society.” Id. at 1448. Nevertheless, it

held that calling certain of Cockrum’s acquaintances to the stand

and dwelling on Cockrum’s difficult past would have made such a

large difference that Cockrum had shown prejudice.

Had this case been made, Cockrum’s chances for

obtaining a life sentence would have been significantly

enhanced, and there is a reasonable probability —

understood as “a probability sufficient to undermine

confidence in the outcome” — that a jury would not have

concluded unanimously, beyond a reasonable doubt, that

Cockrum posed a continuing threat to society.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Id.

III
11

Cockrum has not appealed the disposition of three of his four

theories: suppression of evidence, improper venue, and jury

misconduct. The remaining issue — ineffective assistance of

counsel — is a mixed question of law and fact that we review de

novo. Strickland, 466 U.S. at 698, 104 S. Ct. at 2070; Boyle v.

Johnson, 93 F.3d 180, 187 (5th Cir. 1996), cert. denied, ___ U.S.

___, 117 S. Ct. 968, 136 L. Ed. 2d 853 (1997).

We will assume without deciding that Cockrum’s counsel was

constitutionally ineffective for failing to mount a thorough

investigation of Cockrum’s history. See Spriggs v. Collins, 993

F.2d 85, 87 (5th Cir. 1993) (“A court need not address both

components of this inquiry if the defendant makes an insufficient

showing on one.”). As we will explain, however, we disagree with

the district court’s conclusion that any shortcomings of trial

counsel at the sentencing phase met the second Strickland prong.

In other words, even if we were to concur in the district court’s

unwillingness to give deference to the findings of the state habeas

judge and the Texas Court of Criminal Appeals, and even if we were

to agree with the findings of its de novo review, we are not

persuaded that the error rendered the sentencing proceedings

“fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506

U.S. 364, 369, 113 S. Ct. 838, 842, 122 L. Ed. 2d 180 (1993). We

conclude that Cockrum failed to show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at

694, 104 S. Ct. at 2068. We agree, of course, that a different
12

result would have been possible. But the second prong of

Strickland demands more. A review of the evidence the district

court thought would probably have made a difference makes plain the

absence of the required showing of prejudice. 

The district court pointed to J.R. O’Rear, Miledge Oglesby,

and John Blackburn as witnesses with “high opinions” of Cockrum

“despite knowledge of his failings.” J.R. O’Rear employed Cockrum

for several years as a bricklayer and would have testified that he

was a good worker with a pleasant personality. But he also would

have had to admit that he ultimately refused to allow Cockrum to

continue working for him because of drug and alcohol abuse.

Instead of lending credence to the theory that Cockrum is a victim,

cross-examination of O’Rear could have suggested to the jury that

Cockrum had the ability to lead a constructive life but chose

instead to pursue drugs and crime.

Blackburn’s daughter Brenda was married to Cockrum for several

years and bore him a daughter. They divorced in 1984. The couple

lived on Blackburn’s property, and Cockrum worked on Blackburn’s

construction crew. According to Blackburn, Cockrum could be a

productive, likeable worker. But Blackburn’s relationship with

Cockrum also had a dark side that the prosecution could have

exploited during the punishment phase. Toward the end of the

marriage, Blackburn repeatedly confronted Cockrum about the bruises

he saw on Brenda’s body. He also told Cockrum that he disapproved

of his abuse of alcohol. In 1986, at the time of the trial,

Blackburn admits, he harbored “ill feelings” toward Cockrum because
13

of his daughter’s failed marriage. Although he claims he would

have been willing to testify on Cockrum’s behalf at the punishment

phase, the prosecution could have turned his testimony against

Cockrum by intimating that Cockrum’s crime fits into a larger

pattern of violent, anti-social conduct.

Miledge Oglesby was an itinerant minister and school teacher

who got to know Cockrum when Cockrum was in the seventh grade.

Oglesby was fond of Cockrum and wanted to help him, but once again

cross-examination could have seriously damaged Cockrum’s case.

Cockrum was a problem in school from the moment Oglesby met him.

Oglesby “ran interference for him for years” by attempting to

smooth over his relationships with other school officials. When

Cockrum was in danger of being expelled for ransacking the band

hall, Oglesby persuaded the school board instead to transfer him to

Hooks, another high school. Oglesby had a heart-to-heart

discussion with Cockrum about his tenuous future and emphasized

that he had gone out of his way to help Cockrum. Cockrum promptly

tried to burn down the Hooks school with kerosene. Once

apprehended, Cockrum became a youthful offender under the

supervision of the Texas Youth Council and spent a year away from

his abusive home environment. Within a year of returning home, he

had killed his father. Even Oglesby has admitted that Cockrum had

a “Jekyll and Hyde” personality. A jury listening to this tale

could easily view Cockrum’s response to Oglesby’s heroic efforts as

contemptuous. Again, the facts are at least as consistent with the

theory that Cockrum is entirely responsible for his own deep-seated
14

destructive tendency as with the theory that he is at least

partially a victim of abuse and tragedy.

As difficult as it is to see how Oglesby’s testimony could

have helped, it is not the most problematic evidence that,

according to the district court, Cockrum’s counsel should have

offered. In the story of Cockrum’s killing of his father, the

district court saw a life story of abuse by an alcoholic father.

But the story is more volatile than that. The father was a Bowie

County deputy sheriff, and the prosecution could have raised

troubling questions about the account of the killing in the

father’s medical records. Those records stated that “in the course

of the fight, [Cockrum] became extremely angry, picked up a .22

caliber rifle, put in a shell and shot his father.” There is

evidence that local authorities did not prosecute Cockrum because

his father told his fellow deputies in a dying declaration that the

shooting was an accident. To succeed in the strategy the district

court imagines, the defense had to present Cockrum as a victim of

abuse justifying the killing. But this evidence lay as a

springboard for the state to ridicule claims of abuse. Cockrum’s

father’s statement was arguably a compassionate attempt to protect

the very son who took the time to get a gun, load it, and shoot

him.

Compounding this difficulty, it is doubtful that Barbara

Sutherland, Cockrum’s mother, would have testified to abuse. The

district court failed to attend to her testimony in a December 12,
15

1995, deposition that there was no abuse and that theirs was a

loving home. 

I felt like they had put it very harshly, that there

was no child abuse. I mean, I don’t know what people

call child abuse. Nowadays, all you have to do is hit

a child and it’s reported child abuse. But we grew up

in a loving family and I know that there was times that

the children were whipped — if you want to say this —

or punished by their father, more so when he was

drinking, and it was because he wanted them to be

better than maybe what he was doing right then with his

life.

Sutherland admitted that her husband was sometimes abusive when he

was drinking, but she said that the lawyers had misrepresented

Cockrum’s family life.

There is powerful evidence that Cockrum himself would not have

supported the abuse theory. Indeed, he tried to abandon his

appeals when his lawyers attempted to portray Cockrum’s father as

abusive, only to have the federal court conclude that he was not

competent to make that decision. Moreover, his family supported

his decision and refused to assist the lawyers at the competency

hearing in 1994. Only later, in the December 1995 deposition and

the February 1996 hearing on the merits, did Sutherland agree to

testify — nearly 10 years after Cockrum’s conviction. Even then,

the details of abuse were sketchy, and she did not describe the

killing of her husband. Habeas counsel carefully steered clear of

the question.

Dr. Price, the psychologist, offered the central theory that

shooting his father exacerbated Cockrum’s difficulties. But Price

also conceded that the medical records the district court said

should have been used reflect a diagnosis of Cockrum as a sociopath
16

— a diagnosis made before Cockrum killed his father. Price

testified at the federal hearing that he would have testified, if

asked, a decade before that Cockrum would likely not pose a danger

in prison. In order to probe Dr. Price’s present certainty about

hypothesized testimony he would have given, the state sought to

pursue the suggestion that Cockrum had in fact stabbed a fellow

inmate. The federal trial judge refused to allow this line of

questioning. Regardless, even if Cockrum had allowed the use of a

psychologist, which we doubt, calling a psychologist in the

sentencing phase was fraught with risk. As the state’s brief

points out, “a psychologist would have been require[d] to account

for Cockrum’s extensive history of antisocial conduct . . . .

Further, a psychologist would be required to concede that Cockrum

would be a future danger if not imprisoned and held under specific

conditions.” This history included Cockrum’s failure to benefit

from his prison incarceration as a youthful offender.

Even Cockrum’s expert witness at the federal habeas hearing,

an experienced criminal defense lawyer who was critical of defense

counsel’s preparation, could not say that he would have presented

evidence of Cockrum’s troubled past. The violence and drug abuse,

this expert admitted, had the potential to turn the jury against

Cockrum. The expert took the defense counsel to task for failing

to make better use of Cockrum’s mother and sister at trial. By

drawing out more detail, he explained, the attorneys could have

humanized the defendant. This fails, however, to credit the force

of a mother’s simple plea for her son’s life. And it ignores the
17

line counsel walked to keep from the jury the fact that Cockrum had

killed his own father. Pushing harder would have invited the

prosecutor to explode the image of a sweet, loving son.

In sum, we pass over the district court’s decision that

Cockrum’s defense was ineffective under the first prong of

Strickland and move directly to the trial that ought to have been,

as constructed by the district court. Perhaps counsel could have

done more to locate evidence. Accepting the district court’s

decision that the lawyers failed to do so, we have the benefit of

what the district court points to as evidence they should have

found. The district court’s conclusion that Cockrum did not

receive constitutionally adequate counsel during the sentencing

phase falters at this point. Given the back edge of the case that

the district court found ought to have been presented, we cannot

conclude that doing so would probably have produced a different

decision by the jury. We know that the strategy adopted did not

work. Colored by that knowledge, it is easy to conclude that the

result of the post-hoc version would have been better — it

certainly could not have been worse. But even with the post-hoc

look, we cannot find a reasonable probability of a different

outcome. The jury was not told of Cockrum’s prior imprisonment,

his physical abuse of his wife, his killing of his father, his

extensive drug use, or his ransacking of one school and the burning

of another in the face of Oglesby’s long efforts to help him. A

strategy of presenting Cockrum as a sympathetic figure, to be

spared for his brutal killing, would have required at least these
18

disclosures. It is possible that, spun together as the district

court suggested, this east Texas jury would have spared his life.

But even that is a stretch, and even that is not enough. See

Hernandez v. Johnson, 108 F.3d 554, 562-64 (5th Cir. 1997); West v.

Johnson, 92 F.3d 1385, 1410 (5th Cir. 1996), cert. denied, ___ U.S.

___, 117 S. Ct. 1847, ___ L. Ed. 2d ___ (1997); Woods v. Johnson,

75 F.3d 1017, 1035 (5th Cir.), cert. denied, ___ U.S. ___, 117

S. Ct. 150, 136 L. Ed. 2d 96 (1996); Callins v. Collins, 998 F.2d

269, 278 (5th Cir. 1993), cert. denied, 510 U.S. 1141, 114 S. Ct.

1127, 127 L. Ed. 2d 435 (1994) (all rejecting ineffectiveassistance claims where alleged failures to investigate mitigating

evidence did not prejudice the defendant because of the doubleedged nature of the evidence available).

The judgment of the district court is REVERSED.