* 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this opinion should not be published and is not precedent except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

June 3, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-10316

Summary Calendar

 

KURBY GERALD DECKER,

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 Northern District of Texas

(7:98-CV-85)

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

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Kurby Gerald Decker, Texas state prisoner

# 594703, was convicted of solicitation of the capital murder of

his former wife. He appeals the district court’s denial of his 28

U.S.C. § 2254 petition. We previously granted a certificate of

appealability (COA) on two issues: “1) whether trial counsel

rendered ineffective assistance in failing to assert at trial an

insanity defense on Decker’s behalf; and 2) whether the district
2

court erred in summarily rejecting Decker’s six additional

ineffective-assistance-of-counsel claims as waived due to

inadequate briefing by appointed counsel, and, in the alternative,

on the ground that no evidence existed in the record in support of

the claims.” 

Decker raises a number of arguments beyond the scope of the

issues on which we granted COA. We do not reach these issues

because he has not sought an expansion of the COA. See United

States v. Kimler, 150 F.3d 429, 430-31 (5th Cir. 1998); Lackey v.

Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997). 

Under 28 U.S.C. § 2254(d), we may not grant habeas relief on

an issue that was adjudicated on the merits in a state court

proceeding unless that decision was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States or unless it

was based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding. To establish

that his attorney performed ineffectively, Decker must show both

that his counsel's performance was deficient and that the deficient

performance prejudiced his defense. See Strickland v. Washington,

466 U.S. 668, 687 (1984). Decker contends that his counsel

provided ineffective assistance by not obtaining psychiatric or

neuropsychological reports and pursuing an insanity defense at

trial. Counsel requested and obtained a report from a clinical

psychologist which, although cursory, indicated that Decker was
3

sane at the time of the offense. Counsel questioned the

psychologist, reviewed Decker’s records, spoke with his family, and

attempted to confer with Decker regarding the offense. According

to counsel, she opted not to pursue an insanity defense at least in

part because it would have required admission of the offense

conduct, an admission that Decker had not made. Counsel elected

instead to put the state to its burden of proof in light of

perceived gaps in the state’s evidence. Given the competency

jury’s negative reaction to Decker during the competency

proceedings, counsel also sought to mitigate any potential

punishment.

“A conscious and informed decision on trial tactics and

strategy cannot be the basis for constitutionally ineffective

assistance of counsel unless it is so ill chosen that it permeates

the entire trial with obvious unfairness.” Crane v. Johnson, 178

F.3d 309, 314 (5th Cir. 1999) (citation and internal quotation

omitted). Under the instant circumstances, Decker has not shown

that the state court’s decision was contrary to or involved an

unreasonable application of Strickland. See Schaetzle v. Cockrell,

343 F.3d 440, 443 (5th Cir. 2003), cert. denied, 124 S. Ct. 1156

(2004); Green v. Johnson, 116 F.3d 1115, 1122-23 (5th Cir. 1997).

Decker did not raise the issue of the district court’s denial

of his remaining ineffective assistance claims on procedural

grounds in his initial brief. Even if these claims had been

properly raised, however, see Cousin v. Trans Union Corp., 246 F.3d
4

359, 373 n.22 (5th Cir. 2001), Decker’s argument would be without

merit, as he contends only that he should not be blamed for his

counsel’s inadequate briefing. See Coleman v. Thompson, 501 U.S.

722, 752-54 (1991); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.

2000).

For these reasons, the district court’s denial of habeas

corpus relief under 2254 is 

AFFIRMED.