* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 2, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-41272

CHARLES DEAN HOOD,

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 Eastern District of Texas

(99-CV-109 )

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

Before SMITH, WIENER, and STEWART, Circuit Judges.

PER CURIAM: *

Petitioner-Appellant Charles Dean Hood appeals the district

court’s denial of 28 U.S.C. § 2254 relief. We affirm.

I. FACTS AND PROCEEDINGS

Hood’s petition for writ of habeas corpus stems from his 1990

conviction and death sentence for the murders of Ronald Williamson

an d Tracie Lynn Wallace. During the fall of 1989, Hood, who was

employed by Williamson, began living with Williamson and Wallace,2

Williamson’s girlfriend. On November 1, 1989, Williamson came home

from work for lunch and found a note purportedly written by Wallace

stating that she had gone jogging. Williamson grew suspicious when

he noticed that Wallace’s name had been misspelled and called the

police to report her possible abduction. When the police arrived

at Williamson’s home, they discovered the bodies of Williamson and

Wallace with gunshot wounds to their heads.

Prior to his trial, Hood moved for the appointment of an

independent psy chiatrist to assist him in preparing a mitigation

defense at sentencing. The trial judge granted his motion in part

and issued an order specifying that Hood was to elect in writing

either of two alternatives: (1) Have Dr. Sidney Brooks conduct the

psychiatric examination and report his findings to both parties, or

(2) Hood and the State each designate a psychiatrist who together

would conduct a joint interview of Hood and report only to the

designating parties.

Although no w ritten election was ever made, Dr. Brooks

examined Hood and concluded that he had a brain dysfunction and an

antisocial personality, and that in the future he was likely to act

out his aggressions on other persons or property. Dr. Brooks did

not testify at trial, but the State presented psychiatric evidence

that, in the future, Hood would probably commit criminal acts of1 See T E X

. C RIM

. P ROC

. C ODE A NN

. § 37.071(b)(2) (Vernon 1981 &

Supp. 2003).

2 Hood v. State , No. 72,167 (Tex. Crim. App. Nov. 24, 1993)

(unpublished).

3 Hood v. Texas , 513 U.S. 834 (1994).

4 Ex parte Hood

, No. 41,168-01 (Tex. Crim. App. Apr. 21, 1999)

(unpublished).

5 470 U.S. 68 (1985).

3 violence and was therefore a continuing threat to society, a

finding necessary for the jury to impose the death penalty. 1

Hood’s conviction and sentence were affirmed by the T exas

Court of Criminal Appeals. 2 The Supreme Court of the United States

denied certiorari. 3 In April 1997, Hood’s state habeas application

was denied by the Texas Court of Criminal Appeals, 4 and in February

2000, Hood sought federal habeas relief.

Although it u ltimately denied habeas relief, the district

court found that Hood’s counsel had misread the trial court’s order

regarding the appointment of a psychiatrist, which in turn had

resulted in a violation, albeit harmless, of his right to a

psychiatrist under Ake v. Oklahoma

. 5 The district court concluded

that counsel had performed deficiently by assigning to a paralegal

the duty of collecting mitigating evidence to be used at Hood’s

sentencing. It therefore granted Hood a certificate of

appealability (COA) on (1) whether Hood’s counsel’s misreading of

the trial court’s order regardi ng Hood’s psychiatric examination

and counsel’s delegating to an untrained legal assistant the6 Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, 110 Stat. 1214 (1996).

7 28 U.S.C. § 2254(d)(1) & (2).

4 investigation into potential mitigating evidence created a

reasonable probability that the result of his punishment hearing

would have been different if counsel’s performance had been

adequate, and (2) whether the cumulative effect of the violations

of Hood’s rights under Ake and his counsel’s deficient performance

deprived him of a fair trial.

II. ANALYSIS

A. Strickland Prejudice

1. Standard of Review

At issue is Hood’s sentence, not his conviction. Under the

AEDPA, 6 a feder al habeas petition may not be granted with respect

to a claim adjudicated on the merits in state c ourt unless that

court’s decision “was contrary to, or involved an unreaso nable

application of, clearly established Fed eral law, as determined

by the Supreme Court of the United States,” or “resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceed ing.” 7 “A decision is contrary to clearly established

Federal law ‘if the state court arrives at a conclusion opposite to

that reached by [the Supreme Court] on a question of law or if the

state court d ecides a case differently than [the] Court has on a8 Hill v. Johnson

, 210 F.3d 481, 485 (5th Cir. 2000) (quoting

Williams v. Taylor , 529 U.S. 362, 413 (2000) ).

9 Id. (quoting Williams , 529 U.S. at 413).

10 466 U.S. 668 (1984).

11 Id. at 687-94.

12 Bryant v. Scott

, 28 F.3d 1411, 1415 (5th Cir. 1994) (quoting

Strickland , 466 U.S. at 694).

5 set of materially indistinguishable facts.’” 8

“Under § 2254(d)(1)’s ‘unreasonable application’ language, a writ

may issue ‘if the state court identifies the correct governing

legal principle from [the] Court’s decisio n s but unreasonably

applies that principle to the facts of the prisoner’s case.’” 9

In this c ase, the “clearly established Federal law” is the

Supreme Court’s decision in Strickland v . Washington

, 10 governing

claims based on ineffective assistance of counsel. For Hood to

prevail on such a claim, he must show that (1) his counsel’s

performance was deficient because it fell below an objective

standard of reasonablenes s, and (2) such deficient performance

prejudiced Ho od’s defense. 1 1 Given the limited scope of the COA

grant, however, we need examin e only whether Hood has met

Strickland ’s prejudice prong, under which he “‘must show that there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reas onable probability is a probability sufficient to undermine

confidence in the outcome.’” 1213 Neal v. Puckett

, 286 F.3d 230, 236 (5th Cir. 2002) (en banc)

(internal quotations and citation omitted), cert. denied

, 537 U.S.

1104 (2003).

14 Id. at 241 (footnote omitted).

6 For the sentencing phas e of a capital case, counsel must

conduct a “reasonably substantial, independent investigation into

potential mitigating circumstances.” 13 In determining whether Hood

was prejudiced by a deficient presentation of mitigating evidence,

we must compare the eviden ce presented at sentencing with the

mitigating evidence adduced i n the post-conviction record to

ascertain if “a dditional mitigating evidence [is] so compelling

that there is a reasonable probability at least one juror could

have reasonably determined that, because of [Hood’s] reduced moral

culpability, death was not an appropriate sentence[.]” 14

2. Deficiency of Performance

Hood contends that if the new mitig ating evidence presented

during his state habeas proceeding had been presented d uring the

penalty-phase proceeding of his trial , there is a reasonable

probability that at least one juror would have voted to spare his

life. During the penalty phase, the defense’s primary mitigation

witness was Hood’s mother, whos e testimony painted the following

p icture: (1) From the time of his birth, Hood’s family moved

frequently; (2) he was hit by a septic truck at age three, injuring

his lower back and leg and possibly causing speech and behavior15 --- U.S. ----, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).

16 See Wiggins

, 123 S. Ct. at 2543; Williams

, 529 U.S. at 398.

7 problems; and (3) he was a chronic truant throughout his short

school career in which he achieved only a seventh grade education.

The new mitigating evidence presented dur ing the state

habeas proceeding consisted primarily of affidavits, social

services records, school records, and a social history report.

That evidence augments the evidence of mitigating circumstances

presented during the penalty phase of Hood’s trial by (1)

presenting additi onal details about his injuries caused by the

septic truck; (2) providing more details regarding his behavioral

problems in school and his learning disability; and (3) adding new

claims that (a) Hood and his siblings suffered physical and

emotional abuse at the hands of their domineering father, (b) his

father sexually molested Hood’s two sisters, and (c) Hood may have

suffered some type of brain damage at birth.

Our determination whether the state court unreasonably applied

Strickland is guided by the Supreme Court’s decisions in Williams

and, most recently, Wiggins v. Smith

. 15 In each case, the Court

held that the petitioner had established Strickland prejudice from

counsel’s constitutionally deficient presentation of mitigating

evidence. 16 In Hood’s case, however, the mitigating evidence is far

weaker an d the evidence in support of the death penalty

considerably stronger than in Williams and Wiggins

. As we shall17 See Neal , 286 F.3d at 243.

8 e xplain, this ultimately prevents his establishing the requisit e

prejudice.

We have construed William s to require that an evaluation of

Strickland prejudice include consideration of both the quantity and

quality of the additional mitigating evidence. 17 Hood presented a

total of 217 page s of mitigating evidence, yet 1 07 pages of that

evidence, approximately one-half, consists solely of social service

and counseling records pertaining to the sexual abuse suffered by

Hood’s sisters. Even though these social service documents verify

the tragic circums tances surrounding the relationship of Hood’s

sisters with their father, as well as their mother’s inadequate

response to the abuse, they do not specifically relate to Hood.

The quality of the remaining evidence is wanting. For

example, State witness Dr. Richard Coons, a psychiatrist, testified

on cross-ex amination during the penalty phase that children like

Hood, who had been “nearly crushed to death by a truck,” may

develop brain or personality problems if there was damage to the

brain. Hood’s hospital records which document the injuries he

received from the septic truck make clear, however, that he

suffered no head injury. Additionally, despite testimony that Hood

suffered speech problems after his accident, trial witnesses

Cynthia Insashi and Peggy Kliener testified that they had not

noticed anything unusual about Hood’s speech. F urthermor e, no18 Cf. Wiggins

, 123 S. Ct. at 2533 (Wiggins gang-raped in

foster care and sexually abused by his Job Corps supervisor); Neal

, 286 F.3d at 238 (Neal forced to sodomize 30 to 40 inmates in

succession and raped by two others).

1 9 See Williams

, 529 U.S. at 396 (“‘[B]orderline mentall y

r etarded’”); Neal

, 286 F.3d at 237 (I.Q. of 54, “low end o f mild

retardation”).

9 medical records were adduced to support or expand on Mrs. Hood’s

affidavit testimony that her son was born with an enlarged head and

black face, suggesting possible brain damage.

Evidence that Hood’s sisters were sexually abused by their

father is not of the same quality as ev idence previously held to

have the capability of reducing a capital defend ant’s moral

culpability in the eyes of the jury. 18 Significantly, there is no

t estimony that Hood knew of his sisters’ abuse or how he was

affected by it.

Furthermore, while there is new evidence that Hood was

physically abused by his domineering father, Hood had categorically

denied during his evaluation with Dr. Brooks that he had ever been

physically abused by either parent. The State certainly would have

introduced this fact to the jury to rebut any allegation of abuse,

and such confli cting evidence would have created a credibility

issue for the jury which might not have been resolved in Hood’s

favor.

Although the mitigating evidence revealed that Hood’s I.Q. was

low-a verage, it was nevertheless markedly higher than those of

Williams and Neal. 19 E vidence that Hood is predisposed to impulsive20 Cf. Williams

, 529 U.S. at 398 (“[I]n each case [Williams’s]

violent behavior was a compulsive reaction rather than the product

of cold-blooded premeditation.”).

10 behavior is likewise undercut by the fact that the murders of

Williamson and Wallace were premeditated. 20

Even though Dr. Marc Walter’s post-trial neuropsychological

examination “suggest[e d]” that Hood had brain damage or

dysfunction, with an impairment in the left temporal lobe of his

brain, Dr. Walter’s report did not, for purposes of reducing his

moral culpability, connect this purported brain damage with Hood’s

ability or inability to control his behavior. Rather, Dr. Walter

was of the opinion that Hood’s brain dysfunction rendered him

incapable of proceeding pro se in his state habeas proceedings.

Also, mitigating ev i dence of Hood’s brain dysfunction is

cumulative of testimony on that same subject that was heard by the

jury at Hood’s penalty-phase proceeding. During defense counsel’s

cross examination of State psychiatrist Dr. Richard Coons, the jury

learned that Dr. Brooks had diagnosed Hood with “neurophysiological

brain dysfunction with p robable left temporal cortical and deep

temporal limbic brain dysfunction.” Dr. Coons testified that Dr.

Brooks’s diagnosis referred to a biological dysfunction within the

brain and that there are scientists who theorize that a congenital

problem with the brain may cause specified individuals to be

conscienceless, causing the antisocial personality disorder with

which Hood was diagnosed. The jury thus learned that Hood had been21 Id. at 397.

22 Cf. id. at 367, 398 (Williams alerted police to hi s

responsibility for the homicide, showed remorse, and assisted their

investigation).

11 diagnosed by one physician with a brain disorder and, furthermore,

that such a disorder might possibly be the cause of his behavior.

We weigh the totality of the mitigating evidence adduced at

t rial and in the state habeas proceeding against the aggravat ing

evidence. 21 During both the guilt-innocence and penalty phases, the

jury heard the following aggr avating evidence concerning the

offense, Hood’s lack of remorse, his history of violenc e, his

criminal history, and his future dangerousness.

The jury learned that Hood shot each victim once in the head,

placed plastic bag s over Tracie Wallace’s head and upper torso,

affixed the bags to her body with duct tape, and stuffed her nude

body into a w ater heater closet. Hood showed no remorse for the

murders. 22 That same morning, Hood calmly ordered flowers for Jill

W orkman, his girlfriend in Indiana, representing to the florist

that he was Ron ald Williamson, using Williamson’s credit card,

wearin g Williamson’s gold watch and showing it off to the

empl oyees. At a pawn shop on that same day, Hood traded one of

Williamson’s diamond rings for a wedding band set, presumably for

Jill Workman. He also a ttempted to cash two company checks that he

had stolen from Williamson’s computer business, forging

Williamson’s signature on the checks.23 Cf. Wig gins , 123 S. Ct. at 2543-44 (Wiggins had no record

of violent conduct and no prior convictions).

12 While Hood was driving from Texas to Indiana in Williamson’s

Cadillac, he called Workman on Williamson’s cell phone, telling her

he was driving a new car that he had just purchased and that he was

going to give her a gold watch. Workman testified that during this

conversation Hood sounded “excited” and “happy.” The day after the

murders, Hood called Williamson’s son, told him he had been

arrested for his father’s murder, and denied any involvement in the

crime.

The jury also learned that Hood had a history of violent

conduct. 23 He had assaulted his father during an altercation with

his (Hood’s) girlfriend, Trava Henry, and her mother. Hood told

the responding officer that he would beat up or kill anyone who

tried to touch him. Hood also assaulted Henry when she attempted

to end their relationship, and he displayed sexual aggression

towards her.

Amy Hartman testified that Hood had raped her when she was 16

years old and told her that if he ever sa w her again or if she

reported the rape, he would kill her. Ho od was fired from a

job at a fast food restaurant after only three days on the job when

he engaged in a verbal altercation with another employee, and he24 C f. W illiams

, 529 U.S. at 395-96 (Williams received

commendations for good beha vior in prison and thrived in its

structured environment).

25 See Neal , 286 F.3d at 241 (footnote omitted).

13 even fought with a fellow inmate while incarcerated awaiting trial

on the instant offense. 24

The jury learned additionally that Hood had a prior criminal

r ecord. He had juvenile adjudications for breaking and entering

and had been convicted as an adult of the f elony offenses of

forgery and theft. While on parole, he was not prompt for his

parole appointments, and he failed to complete his parole because

he absconded to Texas. Finally, the jury heard testimony that Hood

h ad been diagnosed with antisocial personality disorder, was a

sociopath with little chance of rehabilitat ion, and would more

likely than not pose a future danger to the public.

We conclude that, when viewed in the light of the quality of

the mitigating evidence as compared with the streng th of the

aggravating evidence, Hood has failed to show that the “additional

mitigating evidence [is] so compelling that there is a reasonable

probability at least one juror could have reasonably determined

that, because of [Hood’s] reduced moral culpability, death was not

an appropriate sentence[.]” 25 The state court’s prejudice

determination was therefore a reasonable application of Strickland

,

and Hood is not entitled to habeas relief on this claim.

B. Cumulative Error26 Derde n v. McNeel , 978 F.2d 1453, 1454 (5th Cir. 1992) (en

banc) (quoting Cupp v. Naughten , 414 U.S. 141, 147 (1973)).

27 Spence v. Johnson , 80 F.3d 989, 1001 (5th Cir. 1996)

(internal quotations and citation omitted).

28 Westley v. Johnson , 83 F.3d 714, 726 (5th Cir. 1996).

29 See Strickland , 466 U.S. at 697.

14 In support of his cumulative error argument, Hood relies

solely on his contention that if the defense had presented the new

mitigating evidence adduced during his state habeas proceeding, at

least one juror might have determined that a life sentence was

appropriate. “[F]ederal habeas corpus relief may only be granted

for cumulative errors in the conduct of a state trial where (1) the

individual errors involved matters of constitutional dimension

rather than mere violations of state law; (2) the errors were not

procedurally defaulted for habeas purposes; and (3) the errors ‘so

infected the entire trial that the resulting conviction v iolates

due process.’” 26 To determine whether application of the cumulative

error doctrine warrants relief, we “review the record as a whole to

determine whether the errors more likely than not caused a suspect

verdict.” 27 Claims that are not prejudicial, however, cannot be

cumulated, regardless of the number raised. 28 Hood’s failure to

satisfy Strickland ’s prejudice prong precludes his showing

constitutional error with regard to his i neffective assistance

claims. 29 Inasmuch as counsel’s alleged deficiencies resulted in

no prejudice, Hood’s claim of ineffective assistance of counsel30 See Westley , 83 F.3d at 726.

15 cannot be cumulated with the Ake error claim, so his cumulative

error claim necessarily fails. 30

III. CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.