* Pursuant to 5 TH 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this opinion should not be published and is not precedent except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.

-1- United States Court of Appeals

Fifth Circuit



## FILED

October 27, 2005

Charles R. Fulbruge III

Clerk REVISED NOVEMBER 3, 2005

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 05 - 70010

_____________________________

GUY STEPHEN ALEXANDER,

Petitioner - Appellant,

VERSUS

DOUG DRETKE, Director,

Texas Department of Criminal Justice, Institutional Division,

Respondent - Appellee.

__________________________________________________

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

___________________________________________________

Before DAVIS, SMITH and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge: *

Pe titioner Guy Stephen Alexander was convicted of capital

murder in Texas and sentenced to death. Alexander filed a petition

for writ of ha beas corpus in the District Court pursuant to 28

U.S.C. § 2254 which was d ismissed. Alexander now requests that

this Court issue a certificate of appealability (COA) pursuant to

28 U.S.C. § 2253(c) on two claims: (1) deni al of right to-2-

individualized sentencing by the trial court when it excluded

expert testimony; (2) ineffective assistance of counsel. For the

following reasons, we grant Alexander’s application for COA on the

ineffective assistance of counsel (IAC) claim, but we deny a COA on

his remaining claim.

I.

The Court of Criminal Appeals succinctly summarized the facts

in its direct appeal opinion as follows:

Wilma Wofford, an elderly lady was murdered on the

morning of Janua ry 24, 1989, in Houston. The deceased

had suffered se veral lacerations to the head that were

consistent with being struck by a blunt instrument.

Portions of a broken brick were found near her body.

Ar ound the deceased’s neck was an electrical cord,

another cord, and a cloth belt. Her death was a result

of asphyxiation. The deceased’s automobile was missing.

Other personal property missing from the residence

included two rings and some silver coins, which were sold

to a pawnshop. These items were sold by [Alexander] on

January 24, 1989. Police ultimately recovered the

television and binoculars. Four fingerprints and three

palm prints, all matching [Alexander’s] were found in the

deceased’s premises. A blood-stained print of a tennis

sh oe, matching [Alexander’s] tennis shoe, was found on

the floor of the deceased’s premises.

On January 26, 1989, Officer Kenneth Broadis and two

other officers of the Jackson County Sheriff’s Department

i n Mississippi observed [Alexander] in a fast f ood

restaurant in Moss Point, Mississippi. [Alexander]

appeared to be acting suspiciously. A short time later

Officer Thomas Lamb of the Jackson County, Missi ssippi

Sh e riff’s Department was on patrol when he observed

[Alexander] driving the deceased’s automobile in excess

of the speed limit. Lamb had been advised that the

automobile was stolen and was being sought in connection

with a homicide case in Houston, Texas. After a brief

pursuit, Lamb pulled the vehicle over and appre hended

[Alexander]. In [Alexander’s] possession were several of

the deceased’s credit cards. In the automobile police-3-

discovered the deceased’s typewriter and a set of keys,

one of which fit the deadbolt lock at the deceased’s

home.

On Ja nuary 27, 1989, [Alexander] gave a written

statement in which he admitted killing the deceased. In

the statement he detailed exactly how he had murdered her

and what propert y he had taken from her. At

[Alexander’s] trial the s tatement was read to the jury

over [Alexander’s] objection.

Alexander v. State, No. 70941, slip op. at 1-2.

In August 1989, Alexander was convicted and sentenced to death

for the capital offense of murdering Wilma Wofford in the course of

committing or attempting to commit robbery. The Texas Court of

Criminal Appeals affirmed that judgment and the United States

Supreme Court denied certiorari. Subsequently, Alexander filed

petitions for state habeas relief which were denied. He then

sought federal habeas relief, which was also denied.

II.

Because Al exander filed his § 2254 petition for a writ of

habeas corpus after April 24, 1996 (the effective date of the

Antiterrorism and Effective Deat h Penalty Act (AEDPA)), his

petition is subject to the procedures imposed by AEDPA and,

therefore, his appeal is governed by the COA requirements of § 2253

(c). Ster ling v. Dretke

, 100 Fed.Appx. 239, 241 (5th Cir. 2004),

citing Slack v. McDaniel , 529 U.S. 473, 478 (2000).

In order to receive a COA, Alexander must make “a substantial

showing of the denia l of a constitutional right.” 28 U.S.C.A. §-4-

2253(c)(2). Meeting this standard “requires a pet itioner to

demonstrate that ‘reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to

deserve e ncouragement to proceed further’.” S terling

, 100 Fed.

Appx. at 242, citing Miller-El v. Cockrell

, 537 U.S. 322, 336

(2003). We evaluate petitioner’s application with the understanding

that “any doubts as to whether a COA should issue must be resolved

in [Alexander’s ] favor.” H ernandez v. Johnson

, 213 F.3d 243, 248

(5th Cir. 2000).

A. Whether a COA should issue on Alexander’s claim that he was

denied the right to individualized sentencing when the trial

court refused to admit the expert testimony of Dr. James

Marquart.

At trial, the defense attempted to call Dr. Marquart as an

expert witness to testify on the inaccuracy of jury predictions of

future dangerousness and prison b e havior. Marquart would have

testified that juries cannot predict with any accuracy the future

dangerousness of a capital murderer. More particularly, he would

have stated that in 8 out of 10 cases where people are predicted to

be dangerous, they have no significant disciplinary problems, which

demonstrates that jurors err in the direction of predicting future

dangerousness. The prosecution objected to Dr. Marquart’s testimony

as irrelevant, because Dr. Marquart had not interviewed Alexander

and could offer no testimony about Alexander’s individual threat to-5-

society. The trial court sustained the objection and excluded

Marquart’s testimony from the trial. Alexander argues that the

evidence was proper as mitigating evidence and, therefore,

exclusion of it from trial raises at least a debatable claim about

whether he was denied a constitutional right.

In its Opinion on Denial of Habeas Corpus, the district court

found that the trial court did not err in excluding Marquart’s

testimony because the testimony would not have aided the jury in

answering the special i ssue as required by Texas law. We are

persuaded by the district court’s conclusion that, where the law of

Texas requires the jury to make a finding of future dangerousness,

then an expert witness’ testimony criticizing that inquiry is

irrelevant. As the district court said,

Although Marquart f elt that a jury could not

adequately conclude whether or not Alexander would be a

future danger, Texas required the jury to engage in that

analysis. Marquart’s testimony commented on Texas law,

without addressing Alexander’s specific danger to

socie ty. His opinion of Texas law added nothing to the

jury’s consideration of the special issues. See Green v.

Johnson , 116 F.3d 1115, 1126 (5th Cir. 1997)(finding no

error in the exclusion of Marquart’s “generalized

c ritique of the accuracy of the future dangerousness

prediction”).

DC Opinion, 6.

The district court was clearly correct in denying reli ef on

this claim. The district court’s analysis leaves nothing open for

debate among reasonable jurists on this issue. We therefore deny

COA on this claim.-6-

B. Whe ther a COA should issue on Alexander’s ineffective

assistance of counsel claim during the sentencing phase.

In order to prevail on a claim of ineffective assistance of

counsel, a petitioner must show (1) that counsel’s performance was

deficient and (2) that the deficiency prejudiced the defense.

Wiggins v. Smith

, 539 U.S. 510, 521 (2003), citing Strickland v.

Washington

, 466 U.S. 668, 687 (1984). A petitioner must demonstrate

that counsel’s performance “fell below an objective standard of

reasonab leness” in order to establish a deficient performance.

Strickland , 466 U.S. at 688.

In this case, Alexander’s claim stems from what he depicts as

trial counsel’s failure to adequately investigate his tumultuous

family and psychological background. During the punishment phase,

Alexander’s trial attorneys presented the expert testimony of two

psychological witnesses

- Dr. Walter Quijano and Dr. Sally Webster.

Additionally, according to trial counsel’s affidavits submitted to

the state habeas court, they interviewed “several” of Alexander’s

family members, (although they specifically discuss only

Alexander’s sister and his father). The attorneys’ aff i davits

indicate that the father was somewhat unavailable and that the

sister’s view was compromised by her “position in the family.” The

attorneys both clai m to have been unaware of any evidence

regarding: “disturbed family origin; genetic susceptibility to drug

and alcohol dependency; orthopedic birth injury and subsequent

uncorrected disability; parental medical neglect; significant-7-

psychological disorder in childhood; developmental intellectual

deficits and learning difficulties; peer isolation, alienation, and

rejection; traumatic sexual exposure and precocious onset of

puberty; and inadequate parental supervision and structure” t hat

they failed to present. The state habeas court found that trial

counsel made a reasonable effort to investigate and present facts

for mitigation because it interviewe d Alexander, his family

members, and mental-health experts. The court also found that

Alexander and his family were not completely forthcoming with trial

counsel.

A lexander argues that trial counsel failed to off er any

meaningful explanation of his family background or the difficulties

of his childhood. Among other things, Alexander spe cifically

alleges that the following amount to ineffective assistance of

counsel on the part of his trial lawyers:

(1) Allowing Alexander’s father’s testimony that

Al exander had a “normal” family to go uncontested when

there was readily discoverable evidence that Alexander’s

father was homosexual, a situation which led to “ongoing

strife” in Alexander’s family.

(2) Not reviewing the family’s medical records,

which would have demonstrated significant evidence of

Alexander’s mother’s dependence on prescription

medication and Alexander’s significant orthopedic

impairments which led to his social isolation at school.

(3) Failing to discuss and produce Alexander’s

brother’s testimony that their father had a “mean streak”

and was bad tempered.

(4) Not discovering the substantial evidence of a

severe psychological disorder in Alexander’s childhood.-8-

This evidence could easily have been obtained through a review

of Alexander’s s chool records. These records include, among

other things, a history of transferring from school to school

and a reported suicide attempt.

While counsel conducted considerable investigation designed to

discover mitigating evidence and produced substantual evidence

during the punishment phase, the Supreme Court has suggested that

a reasonable investigation involves consideration of such factors

as “medical history, educational history, employment and training

history, f amily and social history

, prior adult and juven ile

correctional experience, and religious and cultural influences.”

Wiggins v. Smith

, 539 U.S. 510, 524 (2003). Because we find that

reasonable jurists could debate whether or not additional evidence

of Alexander’s background was available to and accessible by trial

counsel and whether that evidence could have influenced the jury

to not impose the death penalt y, we grant a COA on Alexander’s

ineffective assistance of counsel claim.

The clerk will establish a briefing schedule to allow the

parties to file supplemental briefs on this claim.

COA granted in part and denied in part.