United States Court of Appeals

Fifth Circuit

FILED

April 29, 2003

Charles R. Fulbruge III

Clerk

 In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 02-20650

_______________

EDWARD GREEN,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(01-CV-1270)

_________________________

Before JONES, SMITH, and 

EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Edward Green seeks a certificate of appealability (“COA”) to challenge the denial of his

petition for writ of habeas corpus. Concluding

that he has failed to make a substantial show-

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be pub-

(continued...)

*

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lished and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.
2

ing of the denial of a constitutional right, we

decline to grant a COA.

I.

In 1992, Green shot and killed Edward Haden and Helen O’Sullivan during an attempted

robbery. In 1993, he was convicted of capital

murder and wassentenced to death. The Texas Court ofCriminalAppeals affirmed his conviction and sentence. Green v. State, 912

S.W.2d 189 (Tex. Crim. App. 1995), cert.

denied, 516 U.S. 1021 (1996).

Green filed a state application for writ of

habeas corpus, alleging that his trial counsel

was ineffective in failing to investigate and

present certain mitigating evidence, particularly evidence that Green suffered from posttraumatic stress disorder (“PTSD”). The trial

court entered findings of fact and conclusions

of law recommending that relief be denied.

Based on that recommendation, the Texas

Court of Criminal Appeals denied Green’s application. Ex Parte Green, No. 48,502-01

(Tex. Crim. App. Mar. 28, 2001). 

On April 13, 2001, Green filed a federal

habeas petition based in part on the claims of

ineffective assistance. The district court denied relief and rejected Green’s request for a

COA. Green then filed his application for a

COA with this court.

II.

To secure a COA, a petitioner must make

a substantialshowing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To

meet this standard, Green must demonstrate

that the district court’s rejection of his constitutional claims was debatable or in error.2

 In

evaluating whether Green hassatisfied that requirement, his arguments must be “viewed

through the lens of the deferentialscheme laid

out in 28 U.S.C. § 2254(d).” Barrientes, 221

F.3d at 772.

The claims for which Green requests a

COA involve the allegedly ineffective assistance of trial counsel during the punishment

phase of his trial.3 Green contends that counsel failed to present mitigating evidence, specificallywitnesstestimonyexpressing the opinion that his violent conduct is related to his

troubled upbringing and the absence of a supportive family environment. Because these

claims were considered and rejected during

state habeas proceedings, Green is entitled to

federal habeasrelief only if he can demonstrate

that the state court’s decision is “contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States.”

2

See Barrientes v. Johnson, 221 F.3d 741, 772

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2

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(5thCir. 2000); Hughes v. Johnson, 191 F.3d 607,

612 (5th Cir. 1999) (citing Fuller v. Johnson, 114

F.3d 491, 495 (5th Cir. 1997)).

3

In the habeas petition presented to the district

court, Green asserted additional claims of ineffective assistance, as well as claims that the state introduced false testimony, suppressed exculpatory

evidence, and that the court improperly failed to

instruct the jury as to the possibility of life imprisonment without parole as an alternative to the

death penalty. In the brief supporting his request

for a COA, however, Green fails to address these

claims. We address only those claims briefed, for

issues not raised in a request for a COA are

waived. Hughes, 191 F.3d at 613 (citation omitted).
3

28 U.S.C. § 2254(d)(1).4

To prevail on his claims of ineffective assistance, Green must establish both that counsel’s performance was deficient and that he

was prejudiced by the deficient performance.

Strickland v. Washington, 466 U.S. 668, 687

(1984). Deficiency is established if counsel’s

performance fell below an objective standard

of reasonableness. Id. at 687-88. In making

that determination, we apply a strong presumption “that trial counselrendered adequate

assistance and that the challenged conduct was

the product of reasoned trial strategy.” Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th

Cir. 1992) (citing Washington, 466 U.S. at

690). Applying that standard, we conclude

that Green’s trial counsel did not render ineffective assistance and that the district court’s

denial of relief is not debatable among jurists

of reason. Green therefore has failed to make

a substantialshowing of the denial of a constitutional right and is not entitled to a COA.

A.

Green contends that his trial counsel rendered ineffective assistance by failing to investigate and present the testimony of Leonard

Cucolo and Darrel Sanders, counselors at the

TexasYouthCouncil’sGiddings StateSchool,

where Green had been incarcerated as a sex

offender. Green presented affidavits in which

Cucolo and Sanders detailed the testimony

they would have offered if called to testify.5 

4 Generally, a petitioner also may establish his

entitlement to habeas relief by demonstrating that

the state court adjudication rested on “an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(2). The showing is a difficult

one, because “the state court’s factual determinations carry a presumption of correctness; to rebut

them, thepetitioner must present clear and convincing evidence to the contrary.” Smith v. Cockrell,

311 F.3d 661, 667 (5th Cir. 2002) (citing § 2254-

(e)(1)). In the context of a request for a COA,

however, the question is not whether Green has, in

fact, satisfied this demanding standard. See Miller-El v. Cockrell, 123 S. Ct. 1029, 1041-42

(2003). Rather, we must determine whether the

district court’s conclusion that he has failed to do

so is debatable. Id.

Green contends that the affidavit proffered by

his trial counsel lacked specificity and that, consequently, the state court’s factual findings were insufficiently supported by the evidence submitted.

He fails, however, to present any evidence that

would tend to contradict the state court’s finding

that the affidavit was credible. Further, Green does

not identify particular findings of fact that he

believes are in error as a result of the court’s consideration of the affidavit. Given the absence of

any evidence of factual error, it is not even debatable that Green’s conclusional allegations are insufficient to rebut the presumption of correctness

applicable to state court findings of fact.

5 The issues surrounding the belated production

of these affidavits demonstrate the soundness of

our cautious approach to ineffective assistance

claims based on uncalled witnesses and undeveloped testimony. See, e.g., Evans v. Cockrell, 285

F.3d 370, 377 (5th Cir. 2002) (stating that complaints of uncalled witnesses are disfavored because allegations concerning what a witness would

have said are speculative); Lockhart v. McCotter,

782 F.2d 1275, 1282 (5th Cir. 1986) (“Where the

only evidence of a missing witness’ testimony is

from the defendant, this Court views claims of

ineffective assistance with great caution.”). Green

failed to produce affidavit support for his claims

until after the district court had ruled against him.

When submitted, the affidavits did not accord with

Green’s previous descriptions of the testimony the

witnesses would have offered. The district court

chose to consider these affidavits despite the

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4

The affidavits state the therapists’ shared

opinion that Green’s emotional and behavioral

problems are attributable to the troubled circumstancessurrounding his childhood and the

absence of a supportive family environment.

Green also argues that counsel’s failure adequately to prepare Ramon Campos, a third

counselor from Giddings, to testify resulted in

the omission of relevant mitigating evidence.

Campos filed an affidavit describing the testimony he would have given had he been adequately prepared, relating to the emotional

problems Green developed as a result of the

absence of family support and guidance.

Asthe district court noted, thisis not a case

in which trial counsel failed to present any

punishment phase evidence. In fact, Green’s

attorney called several witnesses during the

punishment phase, including teachers, coaches,

therapists, and familymembers. The proffered

testimony detailed various events from Green’s

extremely troubled childhood, including the

brutal murder of his father, his mother’s drug

addiction, his confinement to the Giddings

State School, and the resulting absence of a

stable home life. 

Several ofthe witnessesfrom Giddingstestified that in their interaction with Green, he

displayed a good attitude and had not been a

discipline problem. Despite the introduction of

this considerable mitigation evidence, Green

contends that counsel’s failure to present the

therapists’ testimony, and adequately to prepare Campos to testify, rendered counsel’s

performance constitutionally deficient.

A strategic or tactical decision not to call

particular witnesses does not constitute ineffective assistance.6

 In his affidavit, Green’s

counsel stated that he chose not to present

additional testimony relating to Giddings, because he did not believe it would be beneficial.

If that decision was made pursuant to an adequate investigation, it cannot serve asthe basis

of an ineffective assistance claim.7 Therefore,

to succeed on his claim, Green must establish

that the omission of the therapists’ testimony

was a consequence of trial counsel’s deficient

investigation in preparationfor the punishment

phase.

Counsel “has a duty to make a reasonable

investigation of the defendant’s case or to

make a reasonable decision that a particularinvestigation is unnecessary.” Ransom v. Johnson, 126 F.3d 716, 722 (5th Cir. 1997) (citing

Washington, 466 U.S. at 691). Green’s lawyer submitted an affidavit in the state habeas

proceedings detailing his efforts in preparing

and presenting mitigation evidence. That affidavitreflects a thoroughgoing investigation into Green’s background radicallydifferentfrom

the situation in cases in which we have found

5

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absence of any explanation for their untimeliness.

6

Salazar v. Estelle, 547 F.2d 1226, 1227 (5th

Cir. 1977); cf. Gray v. Lucas, 677 F.2d 1086,

1093 n.5 (5thCir. 1982)(“While a lawyer’sfailure

to investigate a witness who has been identified as

crucial may indicate an inadequate investigation,

the failure to investigate everyone whose name

happens to be mentioned by the defendant does not

suggest ineffective assistance.”).

7

Smith, 311 F.3d at 668 (“So long as counsel

made an adequate investigation, any strategic decisions made as a result of that investigation fall

within the wide range of objectively reasonable

professional assistance.” (citation and internal quotation marks omitted)).
5

counsel’s investigation to be deficient.8

B.

Green contends that his trial counsel was

ineffective in failing to introduce evidence on

the effects of PTSD. His complaint centers on

counsel’s failure to introduce a psychological

expert witness and to elicit from Campos certain testimony pertaining to PTSD.9

 Green has

entirely failed to present any evidence that he

suffersfrom PTSD, other than the Campos affidavit and his own unsubstantiated assertions.

Even assuming Green suffers from the disorder, however, counsel’s failure to present evidence relating to PTSD does not satisfy the

deficiency prong of Washington.

Although counsel did not observe any indications of PTSD during trial and did not believe that Green’s background was consistent

with PTSD, he did attempt to obtain a psychological evaluation of Green, who then refused

to submit to the evaluation. As a general rule,

a defendant cannot block his attorney’s efforts

and later claim the resulting performance was

constitutionally inadequate.10 Green argues,

however, that his refusal to cooperate did not

free counsel of the obligation to perform a

thorough investigation. 

Although a defendant’sfailure to cooperate

does not absolve trial counsel of the duty to

make a reasonable investigation, the scope of

that duty may be limited by a lack of cooperation.11 In the case of psychological examina

8

See, e.g., Neal v. Puckett, 286 F.3d 230 (5th

Cir. 2002) (per curiam) (en banc), cert. denied,

123 S. Ct. 963 (2003); Bouchillon v. Collins, 907

F.2d 589 (5th Cir. 1990); Profitt v. Waldron, 831

F.2d 1245 (5th Cir. 1987); Beavers v. Balkcom,

636 F.2d 114 (5th Cir. Unit B Feb. 1981). Much

of the omitted mitigating evidence in these cases

was missed as a result of counsel’s failure to investigate the defendants’ backgrounds in mental

institutions and prisons. Id. at 691. The trial counsel in Neal, for instance, failed to discover a substantial amount of mitigating evidence, including

evidence of brutal treatment at the hands of an

alcoholic father, difficult conditions during confinement in a mental institution, and sexual abuse

while petitioner was in prison. 239 F.3d at 689. In

the instant case, by contrast, in addition to interviewing Green and certain family members, trial

counsel subpoenaed Green’s complete Texas Youth

Council records, including his records from Giddings State School, and interviewed employees

from Giddings, including teachers, staff, and

coaches.

9 Campos contends, in his affidavit, that he

would have testified that Green suffersfromPTSD

as a consequence of histroubled childhood and that

his violent behavior is related to that disorder. As

thedistrict court pointed out, however,Campos has

never been qualified as an expert competent to

testify with respect to PTSD.

10 See Autry v. McKaskle, 727 F.2d 358, 361

(5th Cir. 1984) (rejecting claim of ineffective assistance of counsel for failure to investigate and

present evidence at punishment where defendant

had instructed his attorney not to fight death penalty); Amos v. Scott, 61 F.3d 333, 348-49 (5th Cir.

1995) (defendant not prejudiced by counsel’s failure to investigate and present mitigating evidence

where defendant had instructed counsel not to present punishment-phase evidence).

11 Bell v. Watkins, 692 F.2d 999, 1009 n.11

(5th Cir. 1982) (citing Gray, 677 F.2d at 1094);

see also Randle v. Scott, 43 F.3d 221, 225 (5th

Cir. 1995) (holding that attorney’s failure to investigate did not constitute ineffective assistance,

at least in part because defendant had failed to

provide relevant information); Wiley v. Puckett,

969 F.2d 86, 99 (5th Cir. 1992) (holding that attorney’sinvestigation intomitigating evidencemay

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6

tions, a defendant’srefusal to cooperate effectively prevents investigation, rendering counsel’s decision not to pursue the matter further

reasonable. Green’s refusal to submit to an

evaluation therefore precludes himfromclaiming that counsel was ineffective in failing to

present evidence regarding PTSD.12

III.

Related to Green’s claim of ineffective assistance is his contention that the district court

abused its discretion in refusing hisrequest for

investigative fundsfiled pursuant to 21 U.S.C.

§ 848(q)(4)(B) and (q)(9). Green sought these

funds primarily for the purpose of retaining a

psychologist able to determine whether he suffersfromPTSD.13 We review for abuse of discretion the denial of investigative assistance.

See Hill v. Johnson, 210 F.3d 481, 487 (5th

Cir. 2000).14 Under § 848(q)(4)(B) and (q)(9),

the district court may authorize funding for

expert or investigatory assistance if the defendant shows both indigence and that the expert assistance requested is “reasonably necessary for the representation of the defendant.”15

There is no dispute with respect to Green’s

indigence; the question turns on his failure to

establish that the expert assistance requested

wasreasonablynecessaryto hisrepresentation.

To demonstrate that assistance is reasonably

necessary, a defendant must couple hisrequest

with a viable constitutional claim that is not

procedurally barred. See Fuller, 114 F.3d at

11(...continued)

reasonably be limited when defendant fails to call

witnesses to attorney’s attention).

12 See Clanton v. Bair, 826 F.2d 1354, 1358

(4th Cir. 1987) (“When a seemingly lucid and rational client rejects the suggestion of a psychiatric

evaluation and there is no indication of a mental or

emotional problem, a trial lawyer may reasonably

forego insistence upon an investigation.”).

Although this case differs slightly from Clanton in

that trial counsel was aware ofsome of the difficult

circumstances of Green’s childhood, counsel did

not observe any indications of PTSD during trial

nor did he believe that Green’s background was

consistent with PTSD. As we have said, counsel’s

failure to discover and present evidence of a criminal defendant’s alleged mental disorder does not

constitute ineffective assistance in the absence of

“some indication that mental impairment might

prove a promising line of defense.” Byrne v. Butler, 845 F.2d 501, 513 (5th Cir. 1988); see also

Wiley, 969 F.2d at 100 (“Because nothing alerted

[trial counsel] to the possibility of mental impairment as a mitigating factor, we find the decision

not to obtain a psychiatric evaluation entirely

reasonable.”).

13 In addition to funds for expert psychological

assistance, Green’s original motion in the district

courtrequested funding to locate and interviewvarious individuals alleged to have information pertaining to his claims. Green mentions these additional funding requests only in passing and states

merely that the requests are governed by the same

legal standards as is his request for psychological

expert assistance. He makes no attempt to describe

the testimony these individuals would offer or how

such testimony would support his claim of ineffective assistance. He therefore has waived these additional claims as a result of his failure adequately

to brief the issue. Lookingbill v. Cockrell, 293

F.3d 256, 263 (5th Cir. 2002), cert. denied, 123

S. Ct. 878 (2003).

14 A COA is not required to appeal the denial of

relief under § 848(q)(4)(B). See Hill, 210 F.3d at

487 n.2 (citing Sterling v. Scott, 57 F.3d 451, 454

n.3 (5th Cir. 1995)).

15 28 U.S.C. § 848(q)(4)(b), (q)(9); Hill, 210

F.3d at 487 (citing Fuller v. Johnson, 114 F.3d

491, 502 (5th Cir. 1997)).
7

502. 

Even if Green were able to secure a psychological evaluation establishing that he suffers from PTSD, however, it would not affect

the disposition of his ineffective assistance

claim. As we have explained, trial counsel’s

failure to introduce evidence of Green’s alleged affliction with PTSD did not constitute

ineffective assistance of counsel, especially in

light of the fact that Green refused to cooperate with counsel’s attemptsto obtain a psychological evaluation at the time of trial. If it is

now established that Green suffers from

PTSD, counsel’s performance would not

thereby be retroactively rendered deficient. 

In light of the absence of any relationship

between the expert assistance sought and a viable constitutional claim, the district court did

not abuse its discretion in concluding that a

psychological expert was not reasonably

necessary.

The application for a COA is DENIED.