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

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 25, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40526

Summary Calendar

 

MARQUIS DE LA VICTOR GRANT,

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

USDC No. 3:03-CV-103

--------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

 Marquis de la Victor Grant, Texas prisoner # 877091,

appeals the district court’s denial of his 28 U.S.C. § 2254

application challenging his conviction for attempted capital

murder. We review the district court’s factual findings for

clear error and the district court’s conclusions of law de novo. 

See Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir. 2002);

United States v. Pierce, 959 F.2d 1297, 1300 n.3 (5th Cir. 1992). 
No. 04-40526

-2-

An ineffective-assistance-of-counsel claim is a mixed

question of law and fact. See Kitchens v. Johnson, 190 F.3d 698,

701 (5th Cir. 1999). The 28 U.S.C. § 2254(e)(1) presumption of

correctness applies to explicit and implicit findings of fact

which are necessary to the state court’s conclusions of mixed law

and fact. See Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th

Cir. 2001). 

Grant argues that trial counsel, E.J. Van Buren, performed

no investigation and did not prepare for trial. He points out

that counsel has been disbarred because of unprofessional conduct

involving at least three client matters, that counsel had been

charged with possession of cocaine, and that counsel’s drug abuse

was well known. Grant further asserts that counsel did not

coordinate evidence to present a defense. He contends that his

own trial testimony that he did not intend to kill the state

trooper only makes sense in light of the psychologist’s affidavit

that Grant suffers from a frontal-lobe impairment. Grant

contends that at least one juror would have insisted on a lesser

sentence if the available mitigating evidence had been presented

and that counsel’s failure to do so was prejudicial. 

While there is no evidence in the record that trial counsel

investigated the possibility of a defense based on mental

impairment, neither is there any evidence in the record that

trial counsel was on notice that investigation into the

possibility of such a defense was warranted. We have held that
No. 04-40526

-3-

“counsel is not constitutionally ineffective for insufficiently

investigating a defendant’s mental or psychological condition

when there is nothing to put counsel on notice that such a

condition exists.” Miniel v. Cockrell, 339 F.3d 331, 345 (5th

Cir. 2003). Here, there is no indication in the record that any

family member or Grant’s behavior itself put trial counsel on

notice that mental impairment might be a viable defense such that

further investigation was warranted. Grant’s mother’s affidavit

does not aver that she told counsel regarding the injuries to

Grant that she chronicled in her affidavit, and nothing in the

psychologist’s affidavit indicates that evidence of a frontallobe impairment would have been evident to counsel. Finally,

counsel’s misconduct in other cases is insufficient to show that

trial counsel was ineffective in this particular case. See

Bridge v. Lynaugh, 838 F.2d 770, 776 (5th Cir. 1988). 

Grant has not shown that counsel’s performance was

deficient, and, consequently, his ineffectiveness-assistance

claim for failure to investigate fails. See Strickland v.

Washington, 466 U.S. 668, 697 (1984). Because Grant’s alleged

facts would not entitle him to relief if true, the district court

did not err in not holding an evidentiary hearing. See Beathard

v. Johnson, 177 F.3d 340, 346 (5th Cir. 1999). The judgment of

the district court is AFFIRMED.