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

_______________



### E DWARD 

### G REEN



### ,

Petitioner-Appellant,

VERSUS



### J ANIE 

### C OCKRELL



### ,

D IRECTOR

, T EXAS D EPARTMENT OF C RIMINAL J USTICE

,

I NSTITUTIONAL D IVISION

,



### Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(01-CV-1270)

_________________________

Before J ONES , S MITH , and

E MILIO M. G ARZA , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: * Edward Green seeks a certificate of appealabilit y (“COA”) to challenge the denial of h i s

petition for writ of habeas corpus. Concluding

that he has failed to make a substantial show-

* Pursuant to 5 TH C IR. R. 47. 5, the court has

determined that this opinion should no t be pub-

(continued...) * (...continued)

lished and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.2

ing of the denial of a constitutiona l 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 was sentenced to death. The Texas Court of Criminal Appeals affirmed his convi ct ion and sentence. G reen v. State

, 912

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

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

Green filed a state application for wr it of

h abeas corpus, alleging that his trial counsel

wa s ineffective in failing to investigate and

present certain

mitigating evidence, particularly evidence that Green suff ered fromposttraumatic stress disorder (“PTSD”). The trial

court entered findings of fact and conclusions

of law recommending t hat relief be denied.

Based on that recommendation, the Texas

Court of Criminal Appeals denied Green’s app lication. E

x Parte Green

, No. 48,5 02-01

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

On April 13, 2001, Gr een 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

C OA. Green then filed his application for a

COA with this court.

II.

T o secure a COA, a petitioner must make

a substantial showing of the denial of a constit utional right. 28 U.S.C. § 2253(c)(2). To

meet this standa r d, Green must demonstrate

that the district court’s rejection of his constitutional claims was debatable or i n error. 2 I n evaluating whether Green has satisfied that requirement, his arguments must be “vi ewed

through the lens of the deferential scheme laid

out in 28 U.S.C. § 2254(d).” B arrientes

, 221

F.3d at 772.

The claims for which Green requests a

COA involve the allegedly ineffective assistance of tria l counsel during the punishment

phase of his trial. 3 Green contends that counsel failed to present mitigatin g evidence, specifically witness testimony expressing the opinion that his vio lent conduct is related to his

troubled upbringing and the absence of a suppor t ive family environment. Because these

claims were consider ed and rejected during

state habeas proceedings, Green is entitled to

federal habeas relief only if he can demonstrate

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

or involved an unreason able application of,

clearly established Federal law, as determined

by the Supre me Court of the United States.”

2 See Barrientes v. Johnson

, 221 F.3d 741, 772

(continued...) 2 (...continued)

(5th Cir. 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 exculp atory

evidence, and that th e 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 suppor ting his request

for a COA, however, Green fail s to address these

claims. We address only those claims briefed, for

issues not raised in a request for a COA are

wai ved. H

ughes

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

28 U.S.C. § 2254(d)(1). 4

To prevail on his claims of ineffe ctive assistance, Green must establish both that counsel’s performance was d eficient and that he

was prejudiced by

t he deficient performance.

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

(1984). Deficiency is established if counsel’s

performance fell be l ow an objective standard

of reaso nableness. I

d. at 687-88. In making

that determination, we apply a strong presumption “that trial counsel rendered adequate

assistance and that the challenged conduct was

the product of reason ed t rial strategy .” Wilkerson v. Collins

, 950 F. 2d 1054, 1065 (5th

C ir. 1992) (citing W

ashington

, 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 substantial showing of the denial of a constitutional right and is not entitled to a COA.

A.

Gre e n contends that his trial counsel rendered ineffective assistance by failing to investigate and present t he testimony of Leonard

Cucolo and Darrel Sanders, counselors at the

Texas Youth Council’s Giddings State School,

wher e Green had been incarcerated as a sex

offender. Green presented affidavits in which

Cucolo and Sanders detail ed t he testimony

they would have offered if called to testify. 5 4 Generally, a petitioner also may establish his

entitlement to habeas rel ief by demonstrating that

the state c ourt adjudication r ested 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, the petitioner must present clear and convincing evidence to the contrary.” S mith 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

. S ee Miller-El v. Cockrell

, 123 S. Ct. 1029, 1 041-42

(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 affidav i t 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 conclu sional allegations are insufficient to rebut the presu mption of correctness

applicable to state court findings of fact. 5 The issues surrounding the belated production

of these affidavits demonstr ate the soundness of

our cauti ous approach to ineffective assistance

claims based on u nca lled witnesses and undeveloped testimony. S ee

, e.g.

, Evans v. Cockrell , 285

F.3d 370, 377 (5th Cir. 2002) (stating that complaints of unca lled 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

o nly evidence of a missing witness’ testimo ny is

from the defendant, th is Court views claims of

ineffective assistance with great caution.”). Green

fail e d 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

witnesse s would have offered. The district court

chose to consider these affidavits desp ite the

(continued...)4

Th e affidavits state the therapists’ shared

opinion that Green’s emotional and behavioral

problems are attributable to the troubled circumstances surrounding his childhood and the

absence of a supportive family environment.

Green also argues that counsel’s failure a deq u ately 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 adequatel y prepared, relating to the emotional

problems Green developed as a result of the

absence of family support and guidance.

As the district court noted, this is not a case

in whic h trial counsel failed to present any

punishment phase evide n ce. In fact, Green’s

attorney called several witnesses dur i ng the

punishment phase, in cl

udi ng teachers, coaches,

therapists, and family members. The proffered

testi mony detailed various events from Green’s

extremely t roubled childhood, including the

brutal murder of his father, his mother’s drug

addic t ion, his confinement to the Giddings

State School, and the resulting absence of a

stable home life.

Several of the witnesses from Giddings test ified 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 coun s el’s failure to present the

t herapists’ testimony, and adequately to pr e

pare Campos to testify, rendered counsel’s

performance constitutionally deficient.

A strategic or tactical decis ion not to cal l

part i cular witnesses does not constitute ineffecti ve 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 as the basis

of an ineffective assistance claim. 7 Therefore,

to succeed on his claim, Green must establish

that th e o mission of the therapists’ testimony

was a consequence of trial counsel’s deficient

investigation in preparation for the punishment

phase.

Counsel “has a duty to m ake a reasonable

investigation of the defendan t’s case or to

make a reasonable decision that a particular investigation is unnecessary.” R ansom v. Johnson

, 126 F.3d 716, 722 (5th Cir. 1997) (citing

Washing t on

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

proceedings detailing his efforts in preparing

and presenting mitigation evidence. That affidavit reflects a thoroughgoing investigation into Green’s background radically different from

the situation in cases in which we have found

5 (...continued)

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 (5th Cir. 1982) (“While a lawyer’s failure

to investigate a witness who has been identified as

crucial may in dicate an inadequate investigation,

the failure to inv estigate 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 investi gation fall

within the wide range of objectivel y reasonable

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

counsel’s investigation to be deficient. 8

B.

Green contends that hi s t rial counsel was

ineffect i ve 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

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

Even assuming Green suffers from the dis o rder, however, counsel’s failure to present evidence relat ing to PTSD does not satisfy the

deficiency prong of Washington

.

Although counsel did not observ e 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 co unsel of the obligation to perform a

thorough investigation.

Although a defendant’s failure to cooperate

does not absolve trial counsel o f the duty to

make a reasonable investigation, the scope of

that duty may be limit

ed by a lack of cooperation. 11 In the case of psycho logical examina 8 See

, e.g.

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

Cir. 2002) (per curiam) (en banc), c ert. 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); B eavers 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 o f counsel’s failure to investi ga te the defendants’ backgrounds in mental

institutions and prisons. I

d

. at 691. The trial counsel in Ne al , for instance, failed to discover a substantial amount of mitigating evidenc e, including

evidence of brutal treatment at the h ands 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 contra s t, in addition to interviewing Green and certain fami l y members, trial

counsel subpoenaed Green’s complete Texas Youth

Council records, including his records f r om Giddings State School, and interviewed employees

from Giddings, including teachers, staf f, and

coaches.

9 Campos contends, in his affidavit, t hat he

would have testified that Green suffers from PTSD

as a consequence of his troubled childhood and that

his violent behavior is related to that disorder. As

the district court pointed out, however, Campos has

n ever 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 claimof ineffective assistance of counsel for failure to investigate an d

present evidence at punishment where defendant

had instructed his attorney not to fight dea t h penalty); Amos v. Scott

, 61 F.3d 333, 348-49 (5th Cir.

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

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

11 Bell v. Watkins

, 692 F.2d 999, 1009 n. 1 1

(5 t h 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 investiga t e did not constitute ineffective assistance,

at least in part because defen dant had failed to

provide relevant information); Wiley v. Puckett

, 969 F.2d 86, 99 (5th Cir. 1992) (holding that attorney’s investigation into mitigating evidence may

(continued...)6

tions, a defendant’s refusal to cooperate effectively prevents investigation, ren d ering counsel’s decision not to pursue the matter further

reason able. Green’s refusal to submit to an

evaluation therefore precludes him from claimi ng that counsel was ineffective in fail ing 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 his request for

investigative funds filed pursuant to 21 U.S.C.

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

funds primarily for t he purpose of retaining a

psychologist able to determine whether he suffers from PTSD. 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 co urt may authorize funding for

expert or investigatory assist ance 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 assis t ance requested

was reasonably necessary to his repres entation.

To demonstrate that assistance is reasonably

necessary, a defendant must couple his request

with a viable constitutional claim th at is not

procedurally barre d. 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 insist ence upon an investigation.”).

Although this case differs slightly from Clanton in

that trial counsel was aware of some of the difficult

circumstances of Green’s childhood, counsel did

not observe any indic ations of PTSD during trial

nor did he believe that Green’s backgrou nd was

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

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

constitute ineffective assistance in the absence of

“some ind ica tion that mental impairment might

prove a promising line of defense.” Byrne v. Butler

, 845 F.2d 501, 513 (5th C i r. 1988); see also

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

[tr ia l 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 o r iginal motion in the district

court requested funding to locate and interview vario u s individuals alleged to have information pertaining to his claims. Gr een 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), c ert. denied

, 1 2 3

S. Ct. 878 (2003).

14 A COA is not required to appeal the denial of

relief under § 848(q)(4)(B). S ee 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); H ill

, 210

F.3d at 487 (citing F

uller v. Johnson

, 114 F.3d

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

502.

Even if Green were able t o secure a psy

chological evaluation establishing that he suffers from PTSD, however, it would not affect

the disposition

o f his ineffective assistance

claim. As we have explained, t rial counsel’s

failure to introduce e vidence of Green’s alleged afflic t ion with PTSD did not constitute

ineffective assistance of counsel, especially in

light of the fact that Green refused to cooperate with counsel’s attem

pts to obtain a psychological evaluation at t he t ime o f trial. If it is

now established that Green s uffers from

PTSD, couns e l’s performance would not

thereby be retroactively rendered deficient.

In light of the absence of any rel at ionship

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

no t abuse its discretion in concluding that a

psychological expert was not reasonably

necessary.

The application for a COA is DENIED.