* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined th at this opinio n s hould not be published and is not precedent except under the limit ed circumstances set fo rth in 5 TH C IR . R. 47.5.4. - 1 - United States Court of Appeals Fifth Circuit 

## FILED May 10, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 06-70033

__________________________ KARL EUGENE CHAMBERLAIN, Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

___________________________________________________ Appeal from the United States District Court fo r the Northern District of Texas

3:01-CV-388

___________________________________________________ Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: * The district court denied Karl Chamberlain’s peti tion fo r writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, in which Chamberlain challenged his capital murder conviction and death sentence. Chamberlain requests a certificate of appealability (“COA”) o n his ineffective assistance of counsel claims. We DENY Chamberlain’s request for COA.- 2 - I. FACTS AND PROCEEDINGS Felicia Prechtl was murdered on August 2, 1991. That day , she had arranged for her brother and his girlfriend to babysit her young son so that she could go out with her friends in the evening. Around 6:00 p.m ., Prechtl’s brother and his girlfrien d departed with Prechtl ’s son to go to the grocery store, leaving Prechtl to get ready. When they returned to Prechtl’s apartment, they noticed th at the bathroom door was closed and that Prechtl’s clo thes were still in t he hallway. Eventually, Pretchl’s brother entered the bathroom and saw Prechtl lying face down, wit h her jeans and underwear pulled down to her knees, and her wrists and ankles bound by duct tape. She was otherwise wearing no clothing, and blood was pooled around her head. An autopsy determ

ined the cause of death to be a gunshot wound to the head. The trajectory of the bullet was consistent with Pretchl sit ting on the toilet or kneeling on the floor. A .30 caliber cartridge was recovered. A rape examination found sperm in Prechtl’s anal cavity, and a specimen
was preserved as evidence. A roll of duct tape was also collected as evidence. Fingerprints from the duct tape were submit ted fo r com parison wit h records in the pol ice department’s database, but no mat ches materialized. Five years lat er, in 1996, the fingerprints were resubm it ted for com

parison, and several potenti al mat ches were identified, amo ng them th ose of Chamberlain. Chamberlain had lived in the
same apartm

ent com plex as Prechtl at the time o f t he murder. On July 17, 1996, he was arrested. Detective Kenneth Penrod int erviewed Chamberlain, and Chamberlain provided a written statem ent to the pol ice th at he had killed Prechtl. According to the statement, he had been drinking on the day
o f the murder and went to Prechtl’s apartment to borrow some sugar. He claimed that, when she answered the door, she was scantily dressed and that she gave him the sugar and told him to leave.- 3 -

H e stated th at, while preparing to take his dogs fo r a walk, he decided to return t o Prechtl ’s apartm ent and did so wit h duct tape and a rifle. He claimed that he had consensual anal intercourse wit h her but shot her aft er she th reatened to tell his wife. He stated that, afterwards, he took his dogs fo r a walk. In the interview, Chamberlain alerted the police that the rifle could be found at his father’s house. Chamberlain also provided samples of blood that were used to match the DNA profile from the sperm collected. In 1997, a jury fo und Chamberlain guilt y of capital murder and sentenced him to death. The
case was appealed to the Texas Court of Criminal Appeals, and the court affirmed. S ee Chamberlain v. State , 998 S.W.2d 230 (Tex. Crim. App. 1999). Chamberlain petitioned for a writ of certiorari, but the Court denied the peti tion. C hamberlain v. Texas , 528 U.S. 1082 (2000). Chamberlain filed
a state habeas peti

tion th at was denied in an unpublished order in Septem ber 20 00. In 2001, Chamberlain filed a federal habeas peti tion, which was denied in November 2005. The district court also denied Chamberlain a COA on his claims. Chamberlain now requests a COA before this court on his ineffective assistance of counsel claims.

II. STANDARD OF REVIEW Because this appeal arises from a federal habeas peti tion filed in 2001, aft er the effective date of the Ant it errori sm and Ef fective Death Penalty Act (“AEDPA”), AEDPA applies to Chamberlain’s claims. See Neal v. Puckett , 286 F.3d 230, 235 (5th Cir. 2002). This court will grant a COA only if the peti tioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To sati sfy t his st andard, a petitioner must demonstrate that “jurists of reason could disagree wit h the district court’s resol ution of his constitutional claims or th at jurists could conclude- 4 -

th e issues presented are adequate to deserve encouragement to proceed further.” Miller-E l v. Cockrell , 537 U.S. 322, 327 (2003). The Suprem

e Court has emphasized that determining whether a COA should issue is a th reshold inquiry and th at “[t]he question is the debatability of the underlying constitutional claim, not the resol

ution of that debate.” Id. at 342. At thi s stage, we do not conduct a full invest igation int o the factual and legal bases for each claim but instead “conduct an overview of the claims and a general assessment of their merit s.” Wright v. Quarterman , 470 F.3d 581, 585 (5th Cir. 2006). Because the peti

tioner is subject to the death penalty, any doubts as to whether a COA should issue must be resolved in the peti tioner’s favor. H

ernandez v. Johnson , 213 F.3d 243, 248 (5th Cir. 2000). We recognize th at the district court’ s review of Chamberlain’s claims was subject to the standard impo sed by AEDPA. A federal court may not issue a writ of habeas corpus “wit h respect to any claim t hat was adjudicated on the merits in State court proceedings” unless the state court’s decision was (1) “contrary to, or invo lved an unreasonable application of , clearly established Federal law, as determined by the Supreme Court,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)). III. DISCUSSION The Sixt h Amendment right to counsel enti tl es the defendant to “a reasonably competent attorney , whose advice is wit hin the range of com petence demanded of attorney s in criminal cases.” United States v. Cronic , 466 U.S. 648, 655 (1984) (int ernal quotation om it ted). To succeed on an ineffect ive assistance claim, Chamberlain must demonstrate that (1) his counsel’s performance “fell belo w an objective standard of reasonableness” and (2) th at the “deficient performance prejudiced the defense.” S ee Strickland v. Washington , 466 U.S. 668, 687–88 (1984). Prej udice to the defense- 5 -

means th at “counsel’s errors were so serious as to deprive the defendant of a fair tri al, a tri al whose result is reliable.” I

d. at 687. There is an initial presumption that counsel’s decisions are reasonable. Id. at 689. Deficient representation occurs when “counsel made errors so serious that counsel was not f unctioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. As we have said, It bears repeating th at the test f or f ederal habeas purposes is n ot whether [the peti tioner] made th at showing [unde r Strickland]
. Instead, the test is whether the state court’s decision—that [the peti tioner] did not make the Strickland showing—was contrary to, or an unreasonable application of , the standards, provided by the clearly established federal law ( Strickland), fo r succeeding on his [ineffective assistance of counsel] claim. Schaetzle v. Cockrell , 343 F.3d 440, 444 (5th Cir. 2003). Additionally, an ineffective assistance of counsel claim is a mixed question of law and fact, and under AEDPA, a state’s factual findings are presumed correct unless rebutted by the peti tioner wit h clear and convincing evidence. Kitchens v. Johnson , 190 F.3d 698, 700–01 (5th Cir. 1999). Chamberlain argues th at his Sixt h Amendment right to couns el was violated by virtue of ineffect ive assist ance of counsel during three stages: (1) the plea bargaining stage, (2) the guiltinno cence phase of the trial, and (3) the punishment phase of the trial. A. Ineffective assistance during plea bargaining Chamberlain argues, as he did before the district court, th at his t ri al counsel was ineffective fo r failing t o adequatel

y explain t he plea bargain that the state had offered. Under the plea bargain of fered by the state, Chamberlain would plead guilt y to murder and burglary and receive two stacked life sent ences. Chamberlain alleges that he was dissuaded from accepting the plea offer because of his counsel’s representations about how lo ng he would spend in jail and whether he would be paroled.- 6 -

According to Chamberlain, no com petent counsel would make predictions about the length of time a defendant could spend in jail or the possibility of a defendant’s parole. While the state habeas court did not issue it s own written opinio n, it adopted various factual findings and conclusions of law. Amo ng them, the court determined that Chamberlain’s attorney at th at time, Rick Magnis, told Chamberlain that, if he accepted the plea, he would not be eligible fo r parole fo r thirty years. The court f ound this calculation to be correct. According to the findings, Magnis told Chamberlain th at he might never be parole d and that he could not predict how long Chamberlain would spend in pri son because of the seriousness of the of fense. The court found that Magnis correctl

y told Chamberlain th at only the Board of Pardon and Paroles could ult imat ely decide when, or if, Chamberlain would be paroled. Based on an affidavit submitted by Magnis, the court determ ined th at Magnis had another attorney wit h experience in death penalty cases explain the plea of fer to Chamberlain as w ell. The court concluded that Chamberlain opted not to accept the plea of fer and th at Magnis rendered effective assistance of counsel by frankly advising Chamberlain th at he might never be paroled. “In determining whether or not to plead guilt y, the defendant should be made aware of the relevant circumstances and likely consequences so that he can make an int elligent choice.” T eague
v. Scott , 60 F.3d 1167, 1170 (5th Cir. 1995). Generally, the failure of defense counsel to inform the defendant about a plea bargain amo unts to ineffect ive assistance of counsel. I d
. Here, Chamberlain
was made aware o f t he plea of fer, and both his defense counsel and another experienced attorney advised him about the possible consequences of accepting the plea of fer. Though Chamberlain argues th at his attorney should not have made predictions about the possibilit y o f parole, the state court’s factual findings show th at Magnis told Chamberlain th at only the Board of Pardon and Paroles could- 7 -

ult imat ely decide about Chamberlain’s parole. Chamberlain was not misled by his attorney, and if he was dissuaded from accepting the plea because of the potential length of the prison term, it was Chamberlain’s choice to decline the plea offer. The federal district court determined that Chamberlain failed to demonstrate that the state habeas court was unreasonable in finding his counsel’s assistance effective. We agree with the district court th at the state court’s con clusion that the performance of Chamberlain’s attorney was not deficient was a reasonable application of Strickland . We hold that jurists of reason would not find the district court’s resolution of this claim debatable or wrong. B. Ineffective assistance during the guilt-innocence phase of trial Chamberlain had new counsel at tri al, Wayne Huff and Doug Parks. Before the state habeas court, Chamberlain argued that his attorney s provided ineffect ive assistance because they failed to call any fact wit nesses during the guilt -innocence phase of the tri al. The state habeas court determ ined th at, because Chamberlain confessed to the crime and because there was overwhelming corroborative evidence of his guilt, it was a reasonable tri al strategy fo r defense counsel to decline to present witn esses. The court also noted th at Chamberlain failed to demonstrate that there were any wit nesses who could have testified on his behalf. In federal district court, Chamberlain argued th at his attorney s provided ineffect ive assistance because they failed to call any fact wit nesses, and specifically, Chamberlain himself. He claims that, if he had been p ut on the wi tn ess stand, he could have testified that the statement in which he confessed to the crime was not entirely in his own words. Chamberlain argues that, because his confession statem

ent reflected a vio lent and unprovoked murder, he should have testified in order to establish th at the statem

ent was parti ally crafted by the detective to whom he spoke. In response, the- 8 -

Director contends th at Chamberlain’s claim th at he received ineffect ive assistance because he was not put on the witness stand is procedurally defaulted. The federal district co urt determ ined that Chamberlain’s claim was procedurally barred because he did not raise it before the state habeas court; the district court also fo und th at, even if the claim were not procedurally barred, i t would fail o n t he merits. Our task at this stage is only to determ ine whether Chamberlain’s claim deserves encouragement to proceed further. S ee Miller-El , 537 U.S. at 327 (“A petitioner sati sfies [the COA standard] by demonstrating that jurists of reason could disagree wit h the district court’s reso lut io n of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encoura gement to proceed f urther.”). Accordingly, because we agree wit h the district court th at Chamberlain’s claim fails o n t he merits, we will assume without deciding that his claim was not procedurally defaulted. Chamberlain argues th at his counsels’ strategy to not put him on the wit ness stand during the guilt -innocence phase was unreasonable. However, in addition t o th e signed confession, the prosecution had str ong corrob orating evidence of his guilt, including fingerprint matches, DNA evidence, and a rifle cartridge. Wit h such strong evidence of guilt, trial counsel may have decided th at, as a matter of strategy , it would be futile to pl ace Chamberlain on the witness stand and to do
so would also have exposed him to damaging cross-examination. Both the state habeas court and the federal district court observed th at the fo cu s of tri al counsels’ efforts, because of the overwhelming evidence of guilt , was not on the guilt -innocence phase of the tri al but inst ead on the punishment phase. The state habeas court concluded that, because of the overwhelming evidence of guilt , Chamberlain could not show th at his counsels’ performance in not putting him on the wit ness stand during the guilt -innocence phase fell belo w an obj ecti ve standard of reasonableness and- 9 -

prejudiced his defense. We hold that the state habeas court’s conclusion was a reasonable application of Strickland and th at jurists of reason would not find the resol ution of this claim debatable or wrong.

C. Ineffective assistance during the punishment phase of trial Finally, Chamberlain argues th at he received ineffe cti ve assi stance of counsel during the punishment phase because his attorney s did not call him as a wit ness to testify as t o his remorse. Chamberlain acknowledges th at the jury heard evidence of his remorse from other s ources but contends that a jury could not be convinced about his remorse without hearing from him directly. The state habeas court determ ined th at it was a reasonable strategy to advise Chamberlain against testifying. The court noted that defense counsel called twenty-one wit nesses during the punishment phase, including Chamberlain’s parents, a fo rm er therapist, and sixt een friends. Each of Chamberlain’s friends tes ti fied t hat he had never acted in a dangerous manner in their presence. Chamberlain’s fo rm

er therapist testified t hat, during their sessions, Chamberlain admitted to his invo lvement in the mu r der and th at Chamberlain was “seeking fo rgiveness in som e way.” The therapist stated th at, when he inst ructed Chamberlain to address an empty chair as if Prechtl were there, Chamberlain was “grief-stricken” and expressed sorrow fo r both Prechtl and her son. A fo rm er Alco holics Ano nymo us sponsor testified t hat Chamberlain admit ted having com mit ted the crime to him and th at Chamberlain was “very regretful” and concerned in particular about Prechtl’s son. The AA sponsor stated th at he believed th at Chamberlain was being genuine. Through these wit nesses, defense counsel presented evidence of Chamberlain’s remorse. The state habeas court concluded that it was a reasonable tri al strategy to use these wit nesses and to advise the defendant against testifying
so as not to expose him to cross-exam inat io n. The court also noted that the ultimate decision- 10 -

whether or not to testify was Chamberlain’s. Where defense counsel’s decision concerning which witnesses to place on the stand during the punishment phase reflects a sound tactical strategy , a court will not find ineffect ive assistance of counsel. See Boyle v. Johnson , 93 F.3d 180, 187–88 (5th Cir. 1996). The state habeas court determ ined th at Chamberlain had not demonstrated th at his defense counsel’s advice against testifying constituted ineffect ive assistance. In light of the evidence presented in the state court proceeding,
we hold, as the district court also fo und, th at the decision of the state habeas court was not based on
an unreasonable application of the Strickland standard. Jurists of reason would not find the district court’s resol

ution of this claim debatable or wrong. IV. CONCLUSION This court may not grant a COA if there is no doubt th at reasonable jurists would agree wit h the district court’s resol ution and th at the issues presented are not adequate to deserve encouragement to proceed further. Chamberlain’s request for a COA is DENIED.