UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 94-10730

___________________________

WAYNE EAST,

Petitioner-Appellant,

VERSUS

WAYNE SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

____________________________________________________ (June 9, 1995)

Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

Wayne East, a Texas Death Row inmate, appeals the district

court's dismissal of his § 2254 habeas corpus petition. East's

primary contention on appeal is that the district court erred by

dismissing his habeas petition without prov iding him with an

opportunity for discovery or an evidentiary hearing. After careful

consideration, we agree that the district court erred by dismissing

East's due process and B rady claims without affording him th e

opportunity for discovery. We further conclude, however, that the

dis trict court did not err by dismissing East's remaining claims

without the opportunity for discovery o r an evidentiary hearing.

We therefor e vacate the district court's judgment and remand for

further proceedings consistent with this opinion.

I.

In August 1982, a Ta ylor County, Texas jury convicted Wayne2

East of capital murder and sentenced him to die for the murder of

Mary Eula Sears. Sears was killed during a burglary of her home.

The linchpin of the state's evidence against East was the testimony

of his accomplice, Dee Dee Martin. Martin testified that after she

and East broke into Sears' house, East bound Sears and repeatedly

stabbed her when she refused to remain quiet. The Texas Court of

Criminal Appeals subsequently affirmed East's conviction and

sentence on d irect appeal, and the U.S. Supreme Court denied

certiorari. East v. State

, 702 S.W.2d 606 (Tex. Crim.App. 1985),

cert. denied , 474 U.S. 1000 (1985).

East filed his first state habeas petition in May 1986 and the

state trial court stayed East's June 1986 execution date. The

trial court granted East's request for an evidentiary hearing, but

denied his request for discovery. After the evidentiary hearing,

the trial court ente red findings of fact and recommended that

East's application be denied. The Texas Court of Criminal Appeals

subsequently denied East's h abeas application without a written

order.

In May 1987, East filed his first federal habeas petition.

Following an evidentiary hearing before a magistrate judge, the

district court adopted the magistrate's findings and denied East's

petit ion. East did not appeal the district court's order. In

February 1990, the district court appointed the Texas Resource

Center to represent East after East's former counsel withdrew from

the case. East's new counsel subsequently filed a Rule 60(b)

motion for relief from the district court's judgment denying habeas

relief. The court granted East's motion in part by allowing him to3

file an amended petition. The district court subsequently

dismissed East's amended petition without prejudice because he

failed to exhaust several of his claims in state court.

After exhausting his remaining claims in state court, East

filed the present federal habeas petition in June 1992. East's

petition alleged 23 grounds for reversing his conviction and death

sentence. East also filed a motion requesting an evidentiary

hearing and the opportunity to conduct discovery. In response to

the state's motion for summary judgment, the district court denied

East's request for discovery and an evidentiary hearing, and

dismissed Eas t's petition. We granted East a certificate of

probable cause to appeal the district court's dismissal.

II.

East argues that the district court erred in denying his

habeas petition in the following respects: (1) in dismissing his

petition without allowing him the opportunity for discovery or an

evidentiary hearing to resolve his claim that the participation of

a private attorney in his prosecution violated the Due Process

Clause, (2) in failing to conduct an evidentiary hearing to resolve

his Brady claims, (3) in failing to conduct an evidentiary hearing

to resolve his claim that the prosecution knowingly used false

testimony at trial in violation of Napue v. Illinois

, 360 U.S. 264

(1959), (4) in rejecting his argument that the state trial court

violated Beck v. Alabama

, 447 U.S. 625, 638 (1980) by not

instructing the jury on the lesser included offenses of murder and

felony murder, (5) in rejecting his argument that his trial counsel

provided ineffective assistance in violat ion of the Sixth4

Amendment, and (6) in rejecting his argument that the form of

Texas' death penalty special interrogato ries prevented the jury

from giving effect to mitigating evidence in violation of Penry v.

Lyn augh , 492 U.S. 302 (1989). We shall consider each of these

arguments in turn.

A.

THE PRIVATE PROSECUTOR

East first co ntends that the district court should have

permitted discovery and held an evidentiary hearing to resolve his

c laim that the involvement of a private prosecutor in his

prosecution denied him due process. Prior to East's trial, the

victim's family retained Russell Ormesher, a former Dallas County

prosecutor, to assist the Taylor County district attorney in East's

capital murder prosecution. East maintains that Mr. Ormesher

essentially controlled all the critical trial strategy and

prose cutorial decisions, and that Ormesher's role in the

prosecution thus violated the Due Process Clause.

The opportunity for an evidentiary hearing in a federal habeas

corpus proceeding is mandatory on ly where there is a factual

dispute which, if resolved in the petitioner's favor, would entitle

the petitioner to relief and petitioner has not received a full and

fair evidentiary hearing in state court. Townsend v. Sain

, 372 U.S.

293 (1963). East raised his due process claim for the first time

in an amendment to his federal habeas petition. Consequently, the

state trial court did not consider the claim during the evidentiary

hearing on East's original state habeas petiti on. The district

court considered East's claim only after the state waived the1 399 F.2d 322, 325 (5th Cir. 1968).

5 exhaustion requirement of § 2254. East's entitlement to an

evidentiary hearing on this claim thus turns on whether his claim

raises a quest ion of fact which, if decided in his favor, would

entitle him to relief. To resolve this issue, we must first

examine the case law governing the partic ipation of privatelyretained attorneys in criminal prosecutions.

P owers v. Hauck 1 was the first decision by this court to

expressly address whether the participation of a private prosecutor

in a criminal prosecution violates the Due Process Clause. In

Powers

, a habeas peti tioner convicted of capital murder alleged

that the victim's family hired a private attorney to assist in his

prosecution. The court adopted the district court's holding that

"the mere participation of a spec ial prosecutor alone is not

sufficient grounds to show denial of due process, without some

add itional showing of a violation of the rules relating to

prosecuting attorneys." Id. The court concluded that the private

prosecutor's involvement did not violate due process beca use the

elected district attorney ret ained control and management of the

prosecution and the private prosecutor never acted without the

district attorney's consent or supervision. Id

.

In Woods v. Linahan

, 648 F.2d 973, 97 6 (5th Cir. 1981), the

court similarly held that the participation of a privately-retained

attorney in a murder prosecution did not offend due process even

though the attorney exercised independent control over the

prosecution during its pre-trial stages. The private prosecutor in

Woods conducted the pre-trial investigation, interviewed witnesses,2 East argues that the Supreme Court's decision in Young

v. United States ex rel. Vuitton et Fils S.A. , 481 U.S. 787

(1987) creates a strict blanket prohibition against the

participation of private prosecutors and, therefore, impliedly

overrules Woods and Powers . We disagree that Young alters the

analysis set out in Woods and Powers

. Young merely held that the

counsel for a party in the position to gain from a criminal

contempt proceeding cannot be appointed by the court to prosecute

the party charged with contempt. In contrast to Woods and

Powers , the private prosecutor in Young acted as the government's

sole representative throughout the trial. Moreover, Young was decided under the Court's supervisory power over federal courts,

not as a matter of federal constitutional law.

6 fil ed and argued pre-trial motions, and made pre-trial strategy

decisions wit hout the supervision or control of the district

a ttorney. According to the court, the private prosecutor's pretrial activity "border[ed] on a constitutional violation" because

"these activities were not car ried out under the direction,

control, or knowledge of the district attorney." Id. at 976-977.

However, the co urt concluded that there was no due process

violation in Woods because the district attorney assumed control of

the prosecution once the trial started. After the trial started,

the district attorney assumed control over trial st rategy

decisions, gave the s tate's opening and closing arguments, and

examined all the witnesses. While the private prosecutor assisted

the district attorney during the trial, he never acted without the

district atto rney's consent or supervision. Thus, as in P owers

,

the Woods court held that the private prosecutor's actions did not

offend due process because he did not control important phases of

the prosecution. 2

In Person v. Miller

, 854 F.2d 656, 664 (4th Cir.), cert.

denied , 489 U.S. 1011 (1989), the Fourth Circuit followed similar

reasoning in concluding that a private prosecutor must effectively7

control a prosecution to violate the accused's due process rights.

The court reasoned that, for purposes of due process, it is

important to determine whet her a private prosecutor controlled

crucial prosecutorial decisions, such as "whether t o prosecute,

what targets of prosecution to select, what investigative powers to

utilize, wha t sanctions to seek, plea bargains to strike,or

immunities to grant." Id. According to the court,

It is control over the se critical prosecutorial decisions

which determine the fairness of particular prosecutions that

is the important consideration; operational conduct of the

trial is actually of subordinate concern, except as it may

actually impact upon the more fundamental prosecutorial

decisions.

Id

. The court reasoned that, while the quantitative division of

trial work has some relevance to determining control, the ultimate

question must be whether th e private prosecutor controlled these

crucial prosecutorial decisions. Id . at 663.

We agree with the Fourth Circuit's characterization o f the

proper framework for resolving East's claim. We therefore turn to

East's pleading s to determine whether he alleges specific facts

suggesting that Mr. Ormesher effectively controlled critical

prosecutorial decisions throughout East's prosecution. East makes

the following factual allegations regarding Mr. Ormesher's role:

-- Ormesher controlled all the significant trial strategy

decisions for the prosecution, including the decision to

offer a plea bargain to Dee Dee Martin, the prosecution's

key witness linking East to Sear's murder,

-- Ormesher conducted an independent pre-trial investigation

and maintained a separate case file,

-- Ormesher interviewed all the state's key witnesses

independent of the supervision or control of the Taylor

County district attorney,

-- Ormesher played a key role during the trial. According3 Rule 6 provides:

A party shall be entitled to invoke the processes of

discovery available under the Federal Rules of Civil

Procedure if, and to the extent that, the judge in the

exercise of his discretion and for good cause shown

grants leave to do so, but not otherwise.

8 to East, Ormesher made the prosecution's opening and

closing arguments and participated in the direct

examination of the prosecution's most important

witnesses,

-- Ormesher was a " s easoned" veteran of capital murder

prosecutions, while the district attorney prosecuting the

case had little experience.

Applying the framework developed in Powers

, Woods , and Person , we

conclude that these factual all egations raise the inference that

Ormesher effectively controlled East's prosecution and,

consequently, are facially sufficient t o establish a p rima facie

due process claim.

We now turn to East's contention that the district court erred

in denying his discovery motion and in failing to hold an

evidentiary hearing. Rule 6 of the Federal Rules Governing § 2254

Cases expressly provides for discovery in habeas proceedings if the

petitioner shows "good cause" for discovery. 3 According to the

commentary to Rule 6,

[W]here specific allegations before the court show reason to

believe that the p etitioner may, if the facts are fully

developed, be able to demonstrate that he is con fined

illegally and is therefore entitled to relief, it is the duty

of the court to provide the necessary facilities and

procedures for an adequate inquiry.

While the district court generally has discretion to grant or deny

discovery requests under Rule 6, a court's blanket de nial of

discovery is an abuse of discretion if discovery is "indispensable

to a fair, rounded, development of the material facts." Coleman v.9

Zant

, 708 F.2d 541, 547 (11th Cir. 1983)(quoting Townsend

, 372 U.S.

at 322).

Given the nature of East's allegations, we agree that East has

shown good cause for discovery under Rule 6. While the state court

record re veals the extent to which Ormesher questioned witnesses

and participated in the trial, the record is silent as to whether

Ormesher effectively controlled critical prosecutorial decisions.

Indeed, the Taylor Cou nty district attorney, the district

attorney's staff, and Mr. Ormesher are likely the only witnesses

who can shed any light on this issue. The record indicates that

East has not, however, been able to obtain access to these

witnesses or their files. The district court denied East's request

to depose these witnesses and examine their files. Because access

to these witnesses and their files are necessary to fully develop

the facts needed to consider East's claim, we conclude that the

district court abused its discretion in denying East's discovery

requests.

We need not, however, decide whether East is entitled to an

evidentiary hea ring. An evidentiary hearing is required under

Townsend only if the record reveals a genuine question of fact.

Ward v. Whitley , 21 F.3d 1355, 1367 (5th Cir.), cert. denied

, ___

U.S.

___, 115 S.Ct. 1257 (1995). Allegations that are facially

sufficient to entitle a petitioner to discovery under Rule 6 might

not entitle a petitioner to an evid entiary hearing if discovery

reveals the absence of any genuine issues of disputed fact.

Blackledge v. Allison , 431 U.S. 63, 80 (1977). Whether the record

raises a genuine factual issue is decided by the same standards4 East also alleges that the prosecution failed to

disclose that Bonnie Covington, a prosecution witness, agreed to

testify in exchange for the prosecution's agreement to dismiss

unrelated charges that were pending against her at the time.

East never asserted this claim in his habeas petition. Following

the district court's denial of his discovery motion, East

attempted to amend his petition to add this claim. However, the

court denied his motion to amend. East fails to show that the

district court abused its discretion in denying his motion to

amend. East filed his motion late in the proceedings. Moreover,

the district court had already previously granted East leave to

10 used to decide a Rule 56 motion for summary judgment. Id

.

Following discovery, the district cou rt will thus have the

opportunity to decide whether East has raised a genuine question of

mat erial fact requiring an evidentiary hearing. To ultimately

succeed on his claim, East must show that Mr. Ormesher controlled

crucial prosecutorial decisions throughout the proceedings to such

an extent that Ormesher was effectively in charge of East's

prosecution. See Person , 854 F.2d at 660.

B.

BRADY CLAIMS

East argues next that the district court erred by failing to

hold an evidentiary hearing to resolve his Brady claims. East

alleges that the prosecution failed to provide material evidence to

the defense in violation of Brady v. Maryland

, 373 U.S. 83 (1963).

Specifically, East alleges that the prosecution failed to disclose

that Barbara Hardaway, one of the state's sentencing-phase

witnesses, had severe mental problems and an extensive criminal

record. East further alleges that the prosecution failed to

disclose a statement made by another wi tness, Kim Houston, that

would have su pported the defense's theory at trial that another

person committed the murder. 4amend his petition to add his due process claim. Because East

raises this claim for the first time on appeal, we decline to

address its merits. Taylor v. Green , 868 F.2d 162 (5th Cir.),

cert. denied , 493 U.S. 841 (1989).

11 To prevail under Brady

, East must show (1) that the

prosecution failed to disclose evidence, (2) that the evidence was

favorable to his defense, and (3) that the evidence was material.

Wilson v. Whitley , 28 F.3d 433, 435 (5th Cir.), cert. denied

, ___

U.S.

___, 115 S.Ct. 754 (1994). Impeachment evidence is subject to

disclosure under Brady

. United States v. Bagley

, 473 U.S. 667, 676

(1985). Undisclosed evidence is material if "there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different." Id

. at

682. A reasonable probability is "a probability sufficient to

undermine confidence in the outcome." Id

.

1. Barbara Hardaway

The crux of East's Brady claim with regard to Hardaway is that

the state failed to disclose that she has an extensive history of

severe mental illness and numerous fel ony and misdemeanor

convictions. During the sentencing phase of East's trial, Hardaway

testified that East robbed a nd brutally raped her approximately

three months before Sear's murder. She also testified that East

threatened to kill her and confessed to murdering several other

women.

East contends that he could have effectiv ely impeached

Hardaway's testimony with evidence of her mental illness. East's

habeas petition includes a copy of a mental status report on

Hardaway that was in existence at the time of East's trial. This5 Hardaway was declared competent to stand trial several

months later. However, the state dismissed the burglary charge.

In exchange, Hardaway pled guilty to criminal trespass.

12 report was apparently prepared as part of a competency hearing

before a state district court in Bexar County, Texas, where

Hardaway was under indictment for burglary. The report states that

Hardaway experienced bizarre sexual hallucinations and that she

believed that unidentified individuals were attempting to kill her.

Significantly, the report concludes that Hardaway was incapable of

distinguishing between reality and the fantasies caused by her

hallucinations. The report concluded that Hardaway was mentally

incompetent to stand trial on the burglary charge. 5

Giv en the importance of Hardaway's testimony to the

prosecution's case during sentencing, her mental records are likely

material as impeachment evidence because they cast doubt on the

accuracy of her testimony. The state concedes that Hardaway was a

critical witness for the prosecution. In contrast to the

prosecution's other sentencing-phase witnesses, Hardaway provided

the jury with evidence of other unadjudicated murders committed by

East. Indeed, the prosecution referred to Hardaway's testimony at

least three times during closing argu ments. Under these

circumstances, we disagree with the state's assertion that East's

ability to effectively impeach Hardaw ay is immaterial because it

would not undermine the remainder of the state's case at

sentencing. See Lindsey v. King

, 769 F.2d 1034, 1042 (5th Cir.

1985)(observing that the effective impeachment of a crucial witness

has consequences for the prosecution's case far exceeding the

effect on that witness).13

Even if Hardaway's mental records are material impeac hment

evidence, however, East fails to allege any facts suggesting that

the prosecution knew about these records. Our review of the record

reveals no evidence that would have put the prosecution on notice

that Hard away was mentally ill. Mere speculative and conclusory

allegations that the district attorney might have known about

Hardaway's condition are not, however, sufficient to entitle East

to discovery and an evidentiary hearing. Ward v. Whitley , 21 F.3d

at 1367.

East alternatively argues that the prosecution had a duty to

investigate Hardaway's mental records and, therefore, shou ld be

deemed to have knowledge of any exculpatory evidence that a

reasonable investigation would have revealed. In U nited States v.

Auten

, 632 F.2d 478 , 480 (5th Cir. 1980), we held that the

prosecution is de emed to have knowledge of any criminal history

information pertaining to its witnesses that would be revealed by

a routine check of FBI and state crime databases, including a

wi tness' state "rap sheet." The court based its holding on its

recognition that the prosecution has ready access to certain types

of information that are often crucial to the defense. We therefore

concluded that the prosecution should bear the burden of obtaining

and disclosing the criminal histo ry of its witnesses "in the

interests of inherent fairness." Id . (quoting Calley v. Callaway

,

519 F.2d 184, 223 (5th Cir. 1975)).

We disagree, however, wi th East's contention that a

prosecutor's duty to investigate a witness' criminal history

extends to a witness' mental history. Neither A uten nor any of the6 In fact, Texas law restricts the disclosure of mental

health records. Section 611.002 of the Texas Health and Safety

Code provides:

Communications between a patient and a professional, and

records of the identity, diagnosis, evaluation, or treatment

of a patient that are created or maintained by a

professional, are confidential.

Section 611.004 provides that a mental health professional may

disclose mental health records to law enforcement personnel only

if "there is a probability of imminent physical injury by the

patient to the patient or others or there is a probability of

immediate mental or emotional injury to the patient."

14 other cases cited by East impose this duty on the prosecution.

East fails to show how mental records are any more accessible to

the prosecution than to the defense. Typically, mental health

records are subject to strict privacy regulations t hat restrict

access. 6 East's argument thus runs afoul of other decisions by

this court holding that Brady "does not place any burden upon the

Government to conduct a defendant's investigation or assist in the

presentation of the defense's case." United States v. Marrero

, 904

F.2d 251, 261 (5th Cir.), c ert. denied

, 498 U.S. 1000 (1990). We

therefore decline East's invitation to extend our holding in Auten

to the mental records of prosecution witnesses.

East's argument that the prosecution violated Brady by failing

to disclose Hardaway's criminal history presents a more difficult

question. The record shows that, at the time of East's trial,

Hardaway had been convicted of four felonies: three convictions for

check forgeries and one conviction for delivery of marijuana. The

record also shows that Hardaway had been convicted of at least two

misdemeanors: one conviction for prostitution and one conviction

for petty theft. Under Auten , the prosecution was deemed to have15

knowledge of these convictions and any other facts relevant to

Hardaway's criminal history that would have been revealed through

a routine FBI check and a review of her state rap sheet. 632 F.2d

at 480.

Whether the prosecution's failure to disclose Hardaway's

criminal history violates Brady

, however, turns on its materiality

as impeachment evidence. East contends that he would have

investigated Hardaway's criminal history and eventually uncovered

Hardaway's mental records in the files of the Bexar County district

court if the prosecution had disc losed Hardaway's rap sheet.

Whether Hardaway's rap sheet would have led to her mental records

turns on the nature and extent of the information contained in her

rap sheet at the time of East's trial. For example, if Hardaway's

rap sheet reveals her burglary indictment i n Bexar County, this

information may well have led East to the record of Hardaway's

competency hearing held in connection with this charge. Hardaway's

state rap sheet is not, however, in the record. East specifically

requested Hardaway's rap sheet, but the district court denied his

request. Because Hardaway's criminal records are critical to

resolving East's Brady claim, we conclude that the district court

erred in refusing East's disc overy request pertaining to these

records.

On remand, the district court should the refore grant East

reasonable discovery on his Brady claim, including pr oduction of

Hardaway's rap sheet. As with East's due process claim, the court

will have an opportunity after discovery to determine whether

East's Brady claim presents genuine issues of disputed fact. If no16

factual issues remain after discovery, the district court may

determine the materiality of Hardaway's criminal history as a

matter of law without the need for an evidentiary hearing. Tijerina

v. Thornburgh

, 884 F.2d 861 (5th Cir. 1989); see also MattaBallesteros v. Henman

, 896 F.2d 255, 258-59 (7th Cir.), c ert.

denied

, 498 U.S. 878 (1990)(holding that an evidentiary hearing was

unnecessary because discovery placed all the facts essential to

deciding the petitioner's claim before the court).

2. Kim Houston

East contends next that his sister-in-law, Kim H ouston,

provided the prosecution with a statement that supported the

defense's theory at trial that East's friend, Troy Ro binson,

actually committed the murder. To counter the defense's theory,

the prosecution presented the testimony of several alibi witnesses

who placed Robinson at a different location at th e time of the

murder. According to East, Houston saw Robinson at a time and

place inconsistent with the testimony of these alibi witnesses.

East maintains that Houston's statement would have allowed him to

impeach the prosecution's alibi witness es and, accordingly, the

prosecution violated Brady by failing to disclose the statement.

East's argument is unpersuasive. According to an affidavit

submitted by the state, Houston informed the prosecution that she

saw Robinson on the day after the murder. Houston's statement to

the prosecution did not, therefore, undermine the testimony of the

prosecution's alibi witnesses. The prosecution is not obliged to

disclose impeachment evidence unless the evidence is "favorable to

an accused." Bagley , 473 U.S. at 676. We therefore conclude that17

East's Brady claim involving Houston must fail.

C.

NAPUE CLAIMS

East next argues that the prosecution knowingly used false

testimony in violation of Napue v. Illinois

, 360 U.S. 264, 271

(1959) when it presented the testim ony of Hardaway during the

sentencing ph ase of the trial. According to East, Hardaway's

mental illness suggests that her testimony was probably false. To

prevail under Napue , East must show (1) that Hardaway's testimony

was actually false, (2) that the testimony was material, and (3)

that the prosecution knew that her testimony was false. United

States v. Blackburn

, 9 F.3d 353, 357 (5th Cir.), cert. denied

,

___

U.S. ___, 115 S.Ct. 102 (1994).

East's allegations fail to establish a prima facie case for

relief under Napue

. East fails to allege any facts suggesting that

the prosecution knew about Hardaw ay's mental illness. As we

discussed previously, we found nothing in the record that should

have put the prosecution on notice that Hardaway might be mentally

ill. East's allegations merely suggest that additional discovery

and an evidentiary hearing might uncove r evidence that the

prosecuti on knew about Hardaway's illness. These conclusory and

speculative allegations are not, however, sufficient to entitle

East to discovery or an evidentiary hearing under Townsend

. S ee

Ward , 21 F.3d at 1367.

D.

THE LESSER INCLUDED OFFENSE CHARGE

East next contends that the district court erred in rejecting7 Under § 19.03(a)(2) of the Texas Penal Code, the state

must prove that a capital murder defendant not only "intended to

engage in the act that caused the death," but also that the

defendant "specifically intended death to result from that

conduct." Kinnamon v. State , 791 S.W.2d 84, 88-89 (Tex.Crim.App.

1990).

18 his claim that the state trial court violated the Supreme Court's

decision in Beck v. Alabama

, 447 U.S. 625, 638 (1980) by denying

his request to instruct the jury on felony murder and murder as

lesser included offenses. In B eck

, the Court held that a state

cannot impose a blanket ban on lesser-included-offense instructions

in capital cases. Id

. Subsequent decisions by this court have

consistently held that a state trial court may not, under Beck

,

refuse a l esser-included-offense instruction "if the jury could

rationally acquit on the capital crime an d convict for the

noncapit al crime." C ordova v. Lynaugh

, 838 F.2d 764, 767 (5th

Cir.), cert. denied

, 486 U.S. 1061 (1988); see also Reddix v.

Thigpen , 805 F.2d 506, 511 (5th Cir. 1986).

East contends that evidence of his intoxication prior to the

murder raised a factual issue as to whether he possessed the

requisite specific intent to kill required for capital murder. 7

According to East, the trial court should have submitted murder and

felony murder as lesser included offenses because the jur y could

have reasonably inferred from the evidence of his intoxication that

he lacked the specific intent to kill.

In deciding whether a jury could rationally acquit on the

capital crime and convict for the noncaptial crime, we must turn to

Texas law. Cordova

, 838 F.2d at 767-768. Texas law establishes a

two-prong test for determining whether a court must submit a lesser19

included offense to the jury:

First, the lesser included offense must be included within the

proof necessary to establish the offense charged . Secondly,

there must be some evidence in the record that if the

defendant is guilty, he is guilty of only the lesser charge.

Royster v. State

, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981). Using

Royster's two-prong test, Texas courts have held that murder is a

lesser included offense of capital murder and should be submitted

to the jury where the evidence is sufficient to negate an element

required for capital murder. See Ross v. State

, 861 S.W.2d 870, 876

(Tex.Crim.App. 1993).

Texas law does not, however, allow evidence of voluntary

intoxication to negate a specific intent. In H awkins v. State

, 605

S.W.2d 586, 589 (Tex.Crim.App. 1980), the Texas Court of Criminal

Appeals held that evidence of intoxication could not "negate the

ele ments of intent or knowledge" for a general intent crime.

Several decisions by Texas' lower appellate courts have similarly

held that intoxication does not negate a specific intent.

Witherspoon v. State

, 671 S.W.2d 143, 144 (Tex.App.-- Houston [1st

Dist

. ] 1984, writ ref.)(intoxication does not negate specific

intent to rape); Pimentel v. State

, 710 S.W.2d 764 (Tex.App.-- San

Antonio 1986, writ ref.)(rejecting argument that intoxication

negates specific intent). Therefore, under Texas law, a jury could

not acquit East of capital murder and convict him of murder based

on evidence that he was voluntarily intoxicated. We therefore

conclude that the district court did not err in rejecting East's

Beck claim.

E.

INEFFECTIVE ASSISTANCE OF COUNSEL20

East next argues that the district court er red in rejecting

his claim that his trial counsel provided ineffective assistance of

counsel in violation of the Sixth, Eighth, and Fourteenth

Amendments. East posits two grounds for finding that his trial

counsel was constitutionally deficient. First, East contends that

his counsel faile d to adequately investigate Hardaway's mental

history. Second, East contends that his counsel failed to

investigate East's juvenile records. East maintains that his

juvenile records contain important mitigating evidenc e. For

example, East contends that his juvenile records show that he was

making progress in improving his behavior and that he expressed

genuine remorse for a rape he committed as a juvenile. East's

records also show that he suffered from mental problems.

To preva il on his claim, East must demonstrate that his

counsel was deficient and that this deficiency prejudiced his case.

Morlett v. Lynaugh

, 851 F.2d 1521, 1525 (5th Cir. 1988), cert.

denied

, 489 U.S. 1086 (1989) . Deficient performance is shown by

proof that "counsel made errors so egregious that he did not

satisfy the requirements of 'counsel' under the sixth amendment."

Id . In evaluating trial counsel's performance, we must be highly

deferenti al to counsel's trial tactics and decisions. V alles v.

Lynaugh

, 835 F.2d 126, 128 (5th C ir. 1988). We must also be

particularly careful to avoid "th e distorting effects of

hindsight." Id.

We are unpersuaded that East's allegations show that his trial

counsel was ineffectiv e for failing to investigate Hardaway's

mental history. East points to nothing in Hardaway's testimony or8 In his brief, East attempts to incorporate arguments

made in his habeas petition "in the interest of brevity." Because

East does not brief these arguments on appeal, we deem them

abandoned. Morrison v. City of Baton Rouge , 761 F.2d 242, 244

(5th Cir. 1985).

21 elsewhere in the record that would have put his counsel on notice

that Hardaway was mentally ill. Indeed, in discussing his B rady

c laims, East concedes that Hardaway's testimony was sufficiently

compelling and coherent that it l ikely influenced the jury's

decision to return a death sentence. Therefore, absent any facts

that would have put East's counsel on notice of Hardaway's mental

illness at the time of trial, we are not persuaded th at his

counsel's failure to investigate Hardaway's mental hi story "fell

below an objective standard of reasonableness" for professional

performance. T heriot v. Whitley

, 18 F.3d 311, 313 (5th Cir. 1994).

Similarly, we are not persuaded that counsel's performance was

constitutionally defectiv e for failing to obtain his juvenile

reco rds. These records contain information that could have

arguably ha rmed East more than it helped. In fact, the habeas

record contains an affidavit by East's trial counsel stating that

both he and East decided, as a matter of strategy, not to emphasize

East's problems as a juvenile. We therefore conclude that the

district cour t did not err in rejecting East's ineffective

assistance of counsel claims. 8

F.

PENRY CLAIM

Finally, East contends that the distri ct court erred in

rejecting his claim that the statutory special issues submitted to

the jury during the sentencing phase of his trial prevented the22

jury from considering and giving effect to crucial mitigating

evidence in violation of Penry v. Lynaugh

, 492 U.S. 320, 322-323

(1989). Pursuant to Texas Code of Criminal Procedure Article

37.071, the state trial court submitted two special interrogatories

to the jury at the close of the sentencing phase:

(1) Was the conduct of the defendant, Wayne East, that caused

the deat h of the deceased, Mary Eula Sears, committed

deliberately an d with the reasonable expectation that the

death of the deceased or another would result?

(2) Is there a probability that the defendant, Wa yne East,

would commit criminal acts of violence that would constitute

a continuing threat to society?

East contends that neit her interrogatory allowed the jury to

consider the fact that he used illegal drugs immediately prior to

the murder in mitigation of his sentence.

East's Penry claim is foreclosed by this court's recent

decision in Lackey v. Scott

, 28 F.3d 486 (5th Cir.), cert. denied

,

___ U.S.

___, 115 S.Ct. 743 (1995). In L ackey

, we held that Texas'

statutory special issues allowed the jury to consider and give

mitigating effect to evidence that the defendant was intoxicated at

the time of the offense. Id

. at 489. According to the court,

evidence of voluntary intoxication is relevant to deciding whether

the defendant acted deliberately. This evidence is also relevant

to whether the defendant posed a continuing threat to society. The

court concl uded that Texas' special issues adequately addressed

both of these factors:

[V]oluntary intoxication is not the kind of "uniquely severe

permanent handicap[] with which the defendant was b urdened

through n o fault of his own" that requires a special

instruction to ensure that the mitigating effect of such

evidence finds expression in the jury's sentencing decision."

Id

. (quoting Graham v. Collins

, 950 F.2d 1009, 1029 (5th Cir.23

1992), a ff'd

,

___ U.S.

___, 113 S.Ct. 892 (1993)). We conclude,

therefore, that the district court properly dismissed East's Penry

claim.

III.

For the reasons stated above, we VACATE the district court's

dismissal of East's due process claim and his Brady claim involving

Hardaway and REMAND this portion of East's habeas petition to the

court for proceedings consistent with this opinion. We AFFIRM the

district court's dismissal of East's remaining claims.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.