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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-70011

ROBERT SIMON, JR

Petitioner-Appellant

v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT

OF CORRECTIONS

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 2:04-cv-26

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Robert Simon, Jr. was convicted and sentenced to death for the murders

of Carl and Bobbie Joe Parker and their son Gregory Parker. The district court

denied Simon’s federal habeas petition, and he now seeks a Certificate of

Appealability (“COA”) on several ineffective-assistance-of-counsel claims.

Specifically, Simon claims that his counsel was ineffective in (1) failing to

investigate his history of familial abuse and present that history as mitigation

United States Court of Appeals

Fifth Circuit

F I L E D

September 9, 2009

Charles R. Fulbruge III

Clerk
No. 08-70011

2

evidence at sentencing, (2) failing to offer witnesses to corroborate his contention

that his confession was physically coerced, (3) failing to use extra for-cause

challenges at jury selection, and (4) failing to rehabilitate jurors who refused to

impose the death penalty.

We grant a COA on Simon’s first claim. The Supreme Court of Mississippi

held that Simon’s trial counsel was not ineffective for failing to investigate

Simon’s history of familial abuse because there was no evidence that counsel

knew or should have known that such abuse took place. According to that court,

counsel could not be ineffective absent some reason to investigate Simon’s

history of abuse. As detailed below, we find it debatable whether the Supreme

Court of Mississippi’s decision was an objectively reasonable application of

Strickland v. Washington, 466 U.S. 668 (1984).

As to Simon’s remaining claims, we deny a COA because the district

court’s resolution of these claims is not debatable among jurists of reason. We

therefore grant in part and deny in part Simon’s petition for a COA.

I. BACKGROUND

The parties are familiar with the background of this case, and we will only

briefly review the relevant facts. Carl and Bobbie Joe Parker lived in Quitman

County, Mississippi with their children, Charlotte and Gregory Parker. On

February 2, 1990, a passing motorist saw that the Parkers’ house was on fire.

After the fire was extinguished, the bodies of all four family members were found

inside the home. Carl, Bobbie Joe, and Gregory had all died of gunshot wounds.

Charlotte, though shot three times, died of smoke inhalation. Simon and

another man, Anthony Carr, were soon arrested and charged with the Parkers’

murder.

In June 1990, the State tried Simon for the capital murder of only

Charlotte Parker, a case that we refer to as Simon I. The jury found Simon
No. 08-70011

3

guilty but could not reach a unanimous decision on his sentence. The trial court

therefore sentenced Simon to life imprisonment for Charlotte Parker’s murder.

After Simon I, the State tried Carr for the capital murder of all four

Parkers. A jury convicted Carr on all four counts and returned a sentence of

death on each count.

Finally came Simon’s second trial, the one from which the present

proceedings arise. In October 1990, the State tried Simon for the capital

murders of Carl Parker, Bobbie Joe Parker, and Gregory Parker, a case that we

refer to as Simon II. A jury found Simon guilty on all three counts and returned

a sentence of death on each count. The Supreme Court of Mississippi later

affirmed Simon’s conviction and sentence. See Simon v. State (Simon II, Direct

Appeal), 688 So. 2d 791 (Miss.), cert. denied, 521 U.S. 1126 (1997).

Simon later filed a pro se petition for habeas relief in the Supreme Court

of Mississippi. See Simon v. State (Simon II, State Habeas), 857 So. 2d 668

(Miss. 2003). The court denied Simon’s petition, and he then filed a federal

habeas petition in the Northern District of Mississippi. See Simon v. Epps

(Simon II, Federal Habeas), No. 2:04-cv-26, 2007 WL 4292498 (N.D. Miss. Nov.

30, 2007). The district court denied relief on all of Simon’s claims and later

denied a COA to this court. See Simon v. Epps (Simon II, Denial of COA), No.

2:04-cv-26, 2008 WL 762182 (N.D. Miss. Mar. 19, 2008). Simon now appeals that

denial of a COA.

II. STANDARD OF REVIEW

To obtain habeas relief under 28 U.S.C. § 2254, Simon must show the

Supreme Court of Mississippi’s resolution of his claims was contrary to, or

involved an unreasonable application of, clearly established federal law as

determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). But before we have

jurisdiction to rule on the merits of his appeal, Simon must obtain a COA by
No. 08-70011

4

making “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “Under the

controlling standard, a petitioner must show 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

encouragement to proceed further.” Miller-El, 537 U.S. at 336 (alteration and

quotation marks omitted). “A prisoner seeking a COA must prove something

more than the absence of frivolity or the existence of mere good faith on his or

her part.” Id. at 338 (quotation marks omitted). “The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Id. (quotation marks omitted).

“[A] claim can be debatable even though every jurist of reason might agree, after

the COA has been granted and the case has received full consideration, that

petitioner will not prevail.” Id. Finally, “any doubts as to whether a COA should

issue must be resolved in [the petitioner’s] favor.” Ramirez v. Dretke, 398 F.3d

691, 694 (5th Cir. 2005) (alteration in original, quotation marks omitted).

III. DISCUSSION

Although he presents them as three arguments, Simon essentially raises

four claims of ineffective assistance of counsel. He primarily contends that his

trial counsel failed to adequately investigate his history of familial abuse and

thus did not present a proper case for mitigation at sentencing. Second, Simon

contends that his trial counsel was ineffective in failing to corroborate his claims

that his confession was physically coerced. Third, Simon contends that his trial

counsel failed to use extra for-cause challenges to strike biased jurors. Finally,

Simon asserts that his counsel failed to adequately rehabilitate jurors who had

refused to impose the death penalty.

All of Simon’s claims are governed by Strickland’s two-part standard for
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5

ineffective assistance. See Strickland, 466 U.S. at 687. Under this standard,

Simon must show (1) that his counsel’s performance was deficient, and (2) that

this deficient performance prejudiced him. Id. For counsel’s performance to be

deficient, he or she must commit “errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. We judge counsel’s performance against “an objective standard of

reasonableness.” Id. at 688. There are no strict guidelines for making this

determination; what constitutes deficient performance is fluid and evolving, and

we must measure counsel’s performance against the “prevailing professional

norms” of legal practice. Id.; see also Rompilla v. Beard, 545 U.S. 374, 380–81

(2005). Indeed, the Supreme Court has emphasized that there are no

“mechanical rules” when addressing a claim of ineffective assistance:

[T]he ultimate focus of inquiry must be on the fundamental fairness

of the proceeding whose result is being challenged. In every case

the court should be concerned with whether, despite the strong

presumption of reliability, the result of the particular proceeding is

unreliable because of a breakdown in the adversarial process that

our system counts on to produce just results.

Strickland, 466 U.S. at 696. In making this determination, we must consider all

relevant circumstances, including, for example, practice guides from the

American Bar Association. Id. at 688; see, e.g., AMERICAN BAR ASSOCIATION

GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH

PENALTY CASES (1989). Still, no single set of rules can definitively determine the

sufficiency of counsel’s performance. Strickland, 466 U.S. at 688–89. And

importantly, our assessment of counsel’s performance is “highly deferential.” Id.

at 689. We must avoid the biasing effect of hindsight, and we therefore

entertain a “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action
No. 08-70011

6

might be considered sound trial strategy.” Id. (quotation marks omitted).

As to Strickland’s second requirement, for counsel’s deficient performance

to prejudice a defendant, counsel’s errors must be “so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Under

Strickland’s prejudice requirement, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694. “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id.

Finally, when a petitioner cannot satisfy one component of Strickland,

there is no need to assess the other. Id. at 697, 700.

A. Failure to Investigate

Simon first argues that his trial counsel rendered ineffective assistance

during the sentencing phase of his trial. Simon asserts that his counsel failed

to conduct an investigation into his background, wherein counsel would have

found a history of abuse at the hands of Simon’s father. According to Simon, his

counsel’s failure to uncover this history of abuse resulted in the presentation of

a woefully weak case for mitigation. Simon further contends that, if the jury had

heard of his history of abuse, there is a reasonable probability that it would not

have sentenced him to death.

The Supreme Court of Mississippi denied Simon’s claim on this point.

According to that court, it was reasonable for counsel not to investigate Simon’s

history of abuse because Simon had not told his counsel of this abuse. In the

court’s words,

[W]e do not find that trial counsel’s conduct fell below the ordinary

standard of assistance of counsel because he did not

inquire—without prompting—into the possibility of abuse of his

client as a child. . . . Simon has failed to show in the record and in

his affidavits that his counsel knew or had reason to know of his

past abuse given his and [the defense psychologist’s] investigation.
No. 08-70011

7

Simon II (State Habeas), 857 So. 2d at 685. According to the court, because

there was no evidence that Simon’s trial counsel had any reason to investigate

Simon’s past, he could not be ineffective for failing to do so. Id. The court also

held, alternatively, that Simon could not show prejudice on this claim. Id.

According to the court, “[e]vidence of Simon’s abuse as a child . . . would not have

had a reasonable probability of changing the jury’s sentence from death to life

had it been presented to them.” Id.

The district court agreed with the Supreme Court of Mississippi.

According to the district court, “[t]he fact that counsel did not uncover or present

evidence of an abusive family history is not indicative of a lack of trial

preparation where counsel was given no information that would suggest such

abuse had been present.” Simon II (Federal Habeas), 2007 WL 4292498, at *19.

The district court also held that Simon failed to show that the Supreme Court

of Mississippi had erred in its determination that counsel’s purported failings

prejudiced him. Id.

We find the district court’s resolution of this claim debatable, and we

therefore grant a COA. At issue is counsel’s duty to investigate a capital

defendant’s history of abuse in preparing a case for mitigation at sentencing.

Like any claim of ineffective assistance, we must assess the reasonableness of

counsel’s investigation in light of all relevant circumstances. One relevant

circumstance, of course, is the information that the defendant has provided his

or her trial counsel. As the Supreme Court noted in Strickland, “the

reasonableness of counsel’s actions may be determined or substantially

influenced by the defendant’s own statements or actions”:

Counsel’s actions are usually based, quite properly, on informed

strategic choices made by the defendant and on information

supplied by the defendant. In particular, what investigation

decisions are reasonable depends critically on such information. For
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8

example, when the facts that support a certain potential line of

defense are generally known to counsel because of what the

defendant has said, the need for further investigation may be

considerably diminished or eliminated altogether. And when a

defendant has given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful, counsel’s failure

to pursue those investigations may not later be challenged as

unreasonable. In short, inquiry into counsel’s conversations with

the defendant may be critical to a proper assessment of counsel’s

investigation decisions, just as it may be critical to a proper

assessment of counsel’s other litigation decisions.

466 U.S. at 691.

That being said, the information the defendant provides to counsel is not

dispositive, and Strickland did not create a per se rule that counsel’s duty to

investigate begins and ends with information gleaned from the defendant himor herself. Indeed, such a bright-line rule would be inimical to Strickland’s

mandate of case-by-case consideration. Instead, counsel’s decision to investigate,

like all others, must be reasonable in light of all the relevant circumstances:

[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable;

and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary. In any ineffectiveness case, a particular decision not

to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s

judgments.

Id. at 690–91; see also Rompilla, 545 U.S. at 383 (“[R]easonably diligent counsel

may draw a line when they have good reason to think further investigation

would be a waste.”).

Along these lines, several post-Strickland decisions from the Supreme

Court make clear that counsel’s decision to cease investigating a capital
No. 08-70011

9

defendant’s past—or even not to investigate it at all—must be informed and

reasonable. See, e.g., Rompilla, 545 U.S. 374; Williams v. Taylor, 529 U.S. 362

(2000). Of particular relevance is Wiggins v. Smith, 539 U.S. 510 (2003), in

which the Court spoke at length of how we should evaluate counsel’s decision

regarding an investigation into mitigating evidence. In Wiggins, a capital

defendant’s trial counsel did not investigate the defendant’s life history or family

background—which, it turns out, included a substantial history of abuse—and

therefore presented no evidence of abuse at sentencing. Id. at 516. In an

opinion by Justice O’Connor, the Court held that counsel’s assistance was

ineffective, as there was no reason or justification for counsel’s failure to look

into the defendant’s past. The Court emphasized that the pertinent question

was “whether the investigation supporting counsel’s decision not to introduce

mitigating evidence of [a defendant’s] background was itself reasonable.” Id. at

523. Thus, the fact that counsel acquires some information does not necessarily

render counsel effective. Id. at 527. Instead, counsel must have sufficient

information from which they could make a reasoned strategic decision not to

pursue additional evidence of abuse:

In assessing the reasonableness of an attorney’s investigation, . . .

a court must consider not only the quantum of evidence already

known to counsel, but also whether the known evidence would lead

a reasonable attorney to investigate further. Even assuming

[counsel in Wiggins] limited the scope of their investigation for

strategic reasons, Strickland does not establish that a cursory

investigation automatically justifies a tactical decision with respect

to sentencing strategy. Rather, a reviewing court must consider the

reasonableness of the investigation said to support that strategy.

Id. In other words, courts must determine whether “the decision to cease all

investigation . . . actually demonstrated reasonable professional judgment.” Id.

The Wiggins Court made clear that counsel is not required “to investigate

every conceivable line of mitigating evidence no matter how unlikely the effort
No. 08-70011

10

would be to assist the defendant at sentencing.” Id. at 533. It also noted that

Strickland does not require “defense counsel to present mitigating evidence at

sentencing in every case.” Id. But, as the Court had previously stated in

Strickland, “strategic choices made after less than complete investigation are

reasonable only to the extent that reasonable professional judgments support the

limitations on investigation. A decision not to investigate thus ‘must be directly

assessed for reasonableness in all the circumstances.’” Id. (citations and

quotation marks omitted).

As to the trial counsel in Wiggins, the Court found that their investigation

was not reasonable, as the defendant’s “counsel abandoned their investigation

of [the defendant’s] background after having acquired only rudimentary

knowledge of his history from a narrow set of sources.” Id. at 524. Moreover,

counsel’s limited investigation revealed leads that any competent attorney would

have pursued, as doing so “was necessary to making an informed choice among

possible defenses.” Id. at 525. Indeed, counsel in Wiggins found no evidence

that a mitigation case would have been counterproductive, such that they had

no reason to cease their investigation. Id. In brief, counsel’s “failure to

investigate thoroughly resulted from inattention, not reasoned strategic

judgment.” Id. at 526.

In the present case, the actual contours of Simon’s trial counsel’s

investigation into his history of familial abuse is unclear. In his petition to the

Supreme Court of Mississippi, Simon attached several statements from family

members who relayed stories of abuse and said that Simon’s counsel never

contacted them. The Supreme Court of Mississippi did not order an evidentiary

hearing on the matter. Instead, taking the statements of Simon’s family as true,

the court held that Simon’s trial counsel was not ineffective because there was

no evidence “that Simon’s trial counsel was ever told before or during the
No. 08-70011

11

sentencing phase of trial that Simon was abused as a child.” Simon II (State

Habeas), 857 So. 2d at 685. In so doing, the Supreme Court of Mississippi’s

decision might suggest that even if Simon’s trial counsel made no investigation

into Simon’s history of abuse, the decision to do so was justified because there

was no evidence that counsel was aware of such a history. We conclude that the

question of whether the Supreme Court of Mississippi reasonably applied

Strickland’s deficient-performance prong is debatable among jurists of reason.

As to prejudice, the Supreme Court of Mississippi held that any evidence

of familial abuse—even if further developed at an evidentiary hearing—would

not have had a reasonable probability of altering the jury’s sentence when

considered against the heinousness of the crimes. See Simon II (State Habeas),

857 So. 2d at 685. But because Simon’s trial counsel presented no evidence of

abuse at sentencing, we conclude that it is debatable among jurists of reason

whether there is a reasonable probability that the development and presentation

of Simon’s history of abuse would have influenced the jury’s appraisal of Simon’s

moral culpability. Cf. Wiggins, 539 U.S. at 537–38.

Without passing judgment on the Supreme Court of Mississippi’s decision,

we think that jurists of reason can debate the merits of Simon’s claim on this

point. We therefore grant a COA on Simon’s claim of ineffective assistance at

sentencing. We also request additional briefing on this claim and have included

detailed instructions in the Conclusion.

B. Failure to Develop Evidence of Physical Coercion

Simon next argues that his counsel was ineffective in failing to offer

witnesses to corroborate his assertion that the police physically coerced his

confession. Simon confessed to the Parkers’ murders shortly after his arrest.

Before the trial in Simon I, he moved to suppress the confession as coerced. At

the suppression hearing, Simon’s trial counsel focused primarily on the
No. 08-70011

12

argument that the confession was psychologically, not physically, coerced. The

only evidence of physical coercion at the suppression hearing came from Simon’s

own testimony and a brief remark from another witness. The suppression

motion was ultimately unsuccessful. Later, during the Simon II trial, Simon’s

trial counsel did not argue that the confession was physically coerced, again

focusing on psychological coercion.

Simon now contends that his trial counsel was ineffective because counsel

failed to offer the testimony of three witnesses—his mother, wife, and

brother—who would have corroborated Simon’s claim of physical coercion. In

three documents attached to his petition for federal habeas, Simon’s brother,

mother, and wife all assert that they visited Simon a “couple” of weeks after his

confession. These witnesses allege that Simon displayed visible signs of abuse

and had said that police had beaten him. Aaron Simon, Simon’s brother, stated

that Simon’s “face was bruised and swollen.” Moreover, Simon told Aaron “that

law enforcement had jumped on him and beaten him up.” Finally, Aaron

asserted that he saw Simon shortly before his arrest and, at that time, Simon

showed none of the injuries that Aaron later saw.

Rosie Lee Simon, Simon’s mother, stated that Simon’s “head was very

swollen from having been beaten. His left eye was bruised, his hand was

shaking, and he said ‘They beat me up so bad.’” Rosie Lee noted that she is a

trained CNA and thus knows how to recognize signs of abuse. She also alleges

that she told Simon’s trial counsel of his injuries.

Martha Simon, Simon’s wife, said in an unsigned statement that Simon

“had been badly beaten.” In her words,

His head and face were swollen and I saw he was limping badly. He

said the police had beaten him up. It was pitiful. His eyes and

mouth were all swollen. I had a hard time understanding because

his mouth was so swollen. I didn’t recognize him when I first saw
No. 08-70011

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him.

Like Rosie Lee Simon, Martha Simon stated that she was trained to recognize

signs of abuse.

In addressing this issue, the Supreme Court of Mississippi held that

Simon had established neither deficient performance nor prejudice. See Simon

II (State Habeas), 857 So. 2d at 686–87. As to the suppression hearing, the court

found that Simon’s family members’ testimony would have added nothing to the

evidence that counsel did introduce. Id. The court first noted that the family

members’ testimony was both self serving and hearsay, and it would likely have

drawn a successful objection from the prosecution. Id. at 687. Putting that issue

aside, the court found that the family members’ testimony would have merely

repeated what Simon had told them, which Simon had already introduced

through his own testimony. Id. According to the court, the only independent

information in their testimony—personal observations of Simon’s

injuries—would have been of little value. Id. The court also noted that these

injuries could have had sources other than the police. Id.

As to the trial, the court again found that Simon’s family members’

testimony would not have survived an objection by the State. Id. As Simon did

not testify at the trial, his family members also could not have been used to

corroborate his claims of physical abuse. Id. Finally, the court noted that

Simon’s trial counsel would have had to overcome the adverse suppression

ruling. Id. The Supreme Court of Mississippi thus held that Simon’s trial

counsel’s decisions were strategic and therefore not deficient under Strickland.

Id.

The court also addressed Strickland’s second component, prejudice. It

noted that Simon’s testimony at the suppression hearing was sufficient to raise

the issue of whether his confession was voluntary. Id. As to the trial, the court
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determined that even if the jury had heard the family members’ testimony, it

would have little reason to disregard Simon’s confession because “there [was]

little else in the record to establish its involuntariness.” Id. Moreover,

regardless of the confession, there was substantial evidence of Simon’s guilt:

Had Simon’s confession to police been excluded, there would still

exist his inculpatory statements to his cellmate, his presence during

the robbery to get the guns used in the murders, the Parkers’

belongings found at his Memphis apartment, his observed flight

from the Parkers’ pickup truck the night of the murder, and the fact

that he was wearing some of the clothing stolen from the Parkers

when he was arrested.

Id. Thus, the court concluded, “Simon fail[ed] to demonstrate how trial counsel’s

failure to call his family members at the suppression hearing and trial

prejudiced the trial court’s ruling on the issue or the outcome of the trial itself.”

Id.

The district court held that the Supreme Court of Mississippi had not

erred in its assessment of this ineffective-assistance claim. The court paid

special attention to the details of Simon’s injuries, noting that the injuries

Simon’s family members observed (swollen eyes and mouth) were inconsistent

with Simon’s claims of abuse (choking and being placed on the floor with a boot

or knee in his back). See Simon II (Federal Habeas), 2007 WL 4292498, at *14.

The district court also looked to the time frame of the injuries; Simon’s

confession (and thus any concomitant abuse) occurred two days after his arrest,

yet his family members did not see him until two weeks after his arrest. Id. The

court further noted that Simon made his initial appearance before a judge one

hour after giving his statement but there was nothing in the record to suggest

that he had been beaten prior to that appearance. Id. Finally, the district court

thought that there was sufficient testimony to show that Simon’s confession was

voluntary. Id. Thus, the district court concluded, the Supreme Court of
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Mississippi did not err in its application of Strickland. Id. The district court

later denied a COA on this claim, concluding that the decision whether to call

the witnesses was one of trial strategy and that Simon had not demonstrated

that the family members’ testimony would be either admissible or favorable. See

Simon II (Federal Habeas, Denial of COA), 2008 WL 762182, at *6.

We do not find the district court’s resolution of this issue to be debatable

among jurists of reason. It appears that Simon’s trial counsel had two possible

theories for arguing that the confession was coerced: psychological and physical.

The case for psychological coercion was not insubstantial. At the suppression

hearing, Simon’s trial counsel pushed the theory that fear of mob violence caused

Simon to confess. The testimony of various witnesses indicates that members

of the community were incensed at the Parkers’ murder and that there was a

potential for violence against the suspects. Simon’s trial counsel also

emphasized the questionable circumstances of Simon’s confession; police did not

present Simon to a judge until after the confession, and his counsel implied that

they were trying to extract a confession before Simon invoked his right to

counsel. Finally, Simon’s trial counsel suggested various racial undertones in

Simon’s arrest and confession.

In contrast, the case for physical coercion was quite weak. Only two

witnesses mentioned that Simon had been physically abused. The first was only

in passing; Robert Brown, who shared a cell with Simon shortly after he

confessed, testified that Simon had said that the interrogators had beaten him.

The only other testimony as to physical abuse came from Simon himself. The

first alleged act of abuse occurred over a day before Simon’s confession. Simon

testified that, while being held awaiting transfer to another prison, a police

officer slapped him in the right ear. The other two alleged acts of abuse occurred

during the interrogation that led to Simon’s confession; Simon testified that one
No. 08-70011

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police officer choked him and threw him to the ground, at which point another

officer put his knee or boot in Simon’s back.

On rebuttal, every officer accused of abusing Simon resolutely denied any

misconduct, as did any officers present when the abuse allegedly took place.

Before hearing from Simon’s psychologist (who had to testify later due to a

scheduling conflict), the trial court expressed its belief that Simon had

voluntarily confessed. But it reserved a final judgment on the issue until

hearing from the psychologist. Although the psychologist’s testimony (as well

as the parties’ final arguments and the court’s ruling) do not appear to be in the

record, we know that the court eventually ruled that Simon’s confession was

voluntary.

The testimony of Simon’s family members would have added little to his

case for physical coercion. Whatever it might have added would also be easily

challenged on cross-examination. The family members saw Simon roughly two

weeks after his confession—and the alleged abuse—occurred. A number of

intervening acts (including, for example, later beatings from police or prisoners)

could have caused the injuries. Further, no one who saw Simon shortly after he

confessed—including the counsel appointed after the confession—said anything

about physical injuries like those described in the family members’ statements.

Indeed, after the confession and alleged beating, Simon was brought before a

judge for his initial appearance, and he points to nothing in the record where

anyone even remarked on any signs of abuse.

In short, Simon has not shown that his trial counsel made anything other

than a tactical decision to pursue the relatively stronger theory of psychological

coercion over the relatively weaker theory of physical coercion. Although

ultimately unsuccessful, Simon’s trial counsel presented a reasonable argument

that police concocted an atmosphere of fear that led Simon to confess. In
No. 08-70011

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contrast, Simon’s trial counsel had little evidence to support an argument that

the confession was physically coerced, and most of it (including the testimony of

Simon’s family members) was weak. Moreover, Simon’s trial counsel was

probably reasonably reluctant to offer the testimony of Simon’s family members,

as their statements on physical coercion would be quite open to challenge on

cross-examination. We do not find the district court’s resolution of this claim

debatable and therefore deny a COA.

C. Failure to Use Extra For-Cause Challenges at Jury Selection

Simon next argues that his counsel was ineffective in failing to use extra

for-cause challenges at jury selection. The parties do not dispute that, before the

trial in Simon I, the State engaged in substantial misconduct in the form of

pretrial publicity. Shortly after Simon’s arrest, a prosecutor held a press

conference at which he announced the murders and Simon’s link to the crimes.

As the prosecutor said nothing about the presumption of innocence, this press

conference violated local ethical canons. Police officials were also publicly

commenting on the crimes in violation of local rules. Finally, after the trial court

had set up procedures to protect Simon from improper disclosures, the State

improperly filed a public motion containing false information about Simon,

including an alleged jailhouse confession. Upon finding that the State had

engaged in misconduct, the trial judge moved the trial to another county.

Simon asserts that the State conceded that any juror exposed to pretrial

publicity should be struck for cause. When Simon’s trial counsel later tried to

challenge five jurors exposed to pretrial publicity, the trial court determined that

the challenged jurors could set aside what they had heard and denied the forcause challenges. Simon contends that his counsel should have invoked the

State’s alleged concession that any juror exposed to pretrial publicity should be

struck for cause. According to Simon, counsel’s failure to do so was deficient
No. 08-70011

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performance that resulted in the seating of possibly prejudiced jurors.

The Supreme Court of Mississippi rejected Simon’s argument on this

point. See Simon II (State Habeas), 857 So. 2d at 690–92. The court found that

the State had indeed made a concession regarding the striking of jurors exposed

to pretrial publicity, but not to the extent that Simon suggested. Id. at 691.

Specifically, the State admitted that any juror who was contaminated by pretrial

publicity (such as one who could not lay aside what she had heard or who had

already formed an opinion) should be struck for cause, but did not concede that

Simon was entitled to extra or special for-cause challenges for any juror exposed

to pretrial publicity. In the court’s words, 

It is a fair reading of the transcript that the State made such a

concession during consideration of the motion to dismiss. From the

context of the hearing, we find that the State was merely repeating

the standard routinely applied by trial courts to motions to strike

jurors “for cause.”

Id. at 691–92. According to the Supreme Court of Mississippi, then, the only

concession that Simon’s counsel could invoke was the State’s concession that the

normal standard for for-cause challenges applied to jurors exposed to pretrial

publicity.

The court went on to find that any failure to remind the trial judge of this

concession was not deficient performance. It first noted that striking jurors for

cause is left to the discretion of the trial judge, and none of the jurors in question

met the standard required for a for-cause strike. Id. at 692. The court stated

that “[e]ach of the jurors in question indicated that they could put aside any

conclusions they had formed from their exposure to the publicity in this case and

be fair and impartial during the trial.” Id. It also noted that Simon’s counsel

had sufficient peremptory challenges to strike each of the jurors unsuccessfully

challenged for cause. Id. According to the court, “[t]he fact that these particular
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jurors were ultimately seated without being peremptorily struck indicates they

were satisfactory to Simon from a strategic standpoint.” Id. And as to Simon’s

counsel’s failure to invoke any concession by the State, the court found that the

success of such an invocation depended on the discretion of the trial judge:

If Simon’s trial counsel had reminded the trial court that the State

had made this concession before the change in venue, it is possible

the judge might have stricken the jurors “for cause.” However, the

trial judge was certainly not bound to enforce the State’s concession.

Id. The court thus concluded that the State had not conceded that Simon should

have extra or special for-cause challenges and that any failure by Simon’s

counsel to invoke the State’s actual concession was not deficient:

[W]e conclude that the context of the concession by the State did not

empower Simon’s trial counsel to automatically exclude “for cause”

all members of the venire exposed to pretrial publicity. Trial

counsel was not deficient for failing to remind the trial judge of a

non-binding and unenforceable concession made by the State in the

course of discussing options to remove the taint of pretrial publicity

from the trial jurors.

Id. Finally, the court noted that Simon could not satisfy Strickland’s prejudice

component. According to the court, Simon’s counsel’s failure to strike the

challenged jurors peremptorily “indicate[d] a non-prejudicial strategic decision

was made to include them on the jury panel.” Id.

The district court agreed with the Supreme Court of Mississippi that “[t]he

transcript of the pretrial hearing makes it clear that the prosecutor was merely

asserting that those jurors tainted by pretrial publicity should be removed for

cause.” Simon II (Federal Habeas), 2007 WL 4292498, at *10. The court

therefore concluded that Simon’s “[t]rial counsel was not deficient in failing to

remind the trial court that the prosecutor knew the standard for removing jurors

for cause.” Id. The district court also found no prejudice, believing that the real

issue was “whether the jury that sat was impartial.” Id. The court saw “no
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indication that the seated jurors were not impartial” and dismissed any notion

that the use of peremptory challenges to remove certain jurors entitled Simon

to relief. Id.

Simon does not indicate where in the record this concession took place.

But both the Supreme Court of Mississippi and the district court looked to a

pretrial hearing where Simon and his co-defendant, Anthony Carr, moved to

dismiss their indictments due to improper pretrial publicity. During that

hearing, the trial court described a section of the State’s brief which arguably

includes the concession that Simon alleges:

I do understand that the State admits in its brief that one of the

remedial measures that might be taken, on page five of the

brief,[ ]counsel states that jurors may be dismissed for cause during

voir dire if pre-trial publicity has reached a prospective juror. That

may make it difficult throughout, but I understand that’s an

admission as a remedial measure. And, further on the same page

that jurors should be excused if there is any doubt about their

impartiality, referring to the State’s brief at this time.

Later, in an exchange with the court about a potential change of venue, the State

seemed to clarify the statement in its brief:

BY THE COURT: And, I believe you suggested in your brief that if

we go to another county, and if we find any juror during voir dire

that the pre-trial publicity has reached, that juror should be excused

for cause. That’s what your brief says.

BY [THE STATE]: Your Honor, of course—

BY THE COURT: —And, otherwise, so we may go to two or three

counties.

BY [THE STATE]: Your Honor, if that juror when questioned on

voir dire says that that juror has been contaminated with the virus

and cannot lay aside anything that that juror may have heard or

read, and has formed an opinion, well, certainly, that juror would

have to be excused. And, if that juror—

BY THE COURT: —That’s the normal thing. What remedial
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measures do we have because of this, regardless of how it came

about? I’m asking counsel for both sides. What is the remedy,

because it is out, because all these things through these filings of

these two responses, which should never have been.

(emphasis added). Reading these two sections in tandem, it appears that Simon

has misconstrued the State’s admission. Any concession regarding striking

jurors exposed to pretrial publicity was merely an admission of the normal

standard for striking such jurors. The State did not agree to a remedy in the

form of striking any juror exposed to any pretrial publicity. Indeed, throughout

its closing argument, the State repeatedly emphasized that the proper remedy

for the pretrial publicity was a change of venue. Although the State at one point

also said that “extensive voir dire” would be appropriate, Simon points us to

nowhere else in the record where the State indicates that any juror exposed to

any pretrial publicity should be struck for cause.

Simon’s claim on this point thus fails at step one; his counsel could not

have rendered ineffective assistance by failing to invoke a concession that the

State never actually made. The Supreme Court of Mississippi correctly

addressed this claim, and the district court’s resolution is not debatable. We

therefore deny a COA.

D. Failure to Rehabilitate Prospective Jurors

Finally, Simon contends that his counsel provided ineffective assistance

as to the rehabilitation of several potential jurors. During voir dire, several

jurors indicated that they would refuse to vote for the death penalty. Simon’s

trial counsel attempted to rehabilitate a particular juror who had expressed such

a refusal. After Simon’s counsel asked this juror whether she could “consider”

imposing the death penalty even though she did not believe in it, the State

objected to counsel’s use of the word “consider.” The trial judge sustained the

objection, noting that the substance of the question had already been asked and
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answered three times. Simon’s trial counsel then moved on to questioning the

venire about exposure to pretrial publicity.

Simon raises three issues stemming from this effort at rehabilitation. He

first argues that his counsel rendered ineffective assistance by not objecting to

being “cut off” or not asking the same question of other jurors who had expressed

a reluctance to impose the death penalty. Second, Simon contends that after

these jurors had been struck for cause because his counsel had only partially

rehabilitated them, his counsel rendered ineffective assistance by not pointing

out to the trial judge that he had cut short efforts at rehabilitation. Finally,

Simon asserts that the State was allowed to rehabilitate jurors that Simon

wished to strike for cause, and his counsel rendered ineffective assistance by not

objecting to the trial court’s disparate allowance of rehabilitation.

1. Failure to object when “cut off”

As to Simon’s first claim, he suggests that his counsel should have

persisted in questioning potential jurors about their views on the death penalty

or objected to the trial judge’s “cutting off” his opportunity to rehabilitate jurors

with beliefs against the death penalty. Simon notes that five jurors whom the

State later challenged due to their refusal to impose the death penalty had

indicated that they could follow the court’s instructions and determine guilt

without regard to their views on the death penalty: Ethridge, Craigen,

Dickerson, Tinnell, and Williams. Simon suggests that these jurors were

partially rehabilitated and that his trial counsel should have continued

attempting to rehabilitate them. He contends that counsel’s failure to do so

resulted in five jurors being needlessly struck for cause.

The Supreme Court of Mississippi rejected this claim, noting that the issue

Simon suggests his counsel should have continued to pursue—whether those

prospective jurors could ever impose the death penalty—“had indeed been
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covered several times by the trial Court, the State, and Simon’s trial counsel

before” counsel was cut off. See Simon II (State Habeas), 857 So. 2d at 693.

Moreover, the jurors who Simon argues his counsel should have questioned were

all “straightforward and unwavering in their opposition to imposing the death

penalty.” Id. Thus, according to the court, “the [trial] judge did not err in

cutting off Simon’s trial counsel’s last attempt to rehabilitate them, nor was

counsel’s assistance deficient for failing to object to this preemption.” Id.

The district court agreed with the Supreme Court of Mississippi, stating

that the record did not support Simon’s contentions. See Simon II (Federal

Habeas), 2007 WL 4292498, at *12. Indeed, the district court found Simon to be

“tak[ing] liberties with the facts of the case by characterizing the trial court’s

statements as impeding his opportunity to rehabilitate potential jurors.” Id.

The district court thus found it reasonable for Simon’s trial counsel to cease this

line of questioning.

We do not find the district court’s resolution of this issue debatable. The

pertinent issue—whether particular jurors would refuse to impose the death

penalty—had twice been covered before Simon’s trial counsel began his voir dire.

First, during the court’s voir dire, the trial judge asked the venirepersons

whether they would be able to impose a sentence of death. Several

unequivocally indicated that they were not. Later, during the State’s voir dire,

counsel for the State twice asked the jurors whether they had changed their

mind about their stated inability to return a sentence of death with no response.

The State also asked whether anyone (besides those who had indicated earlier)

could not impose a sentence of death, and one juror responded that she could not.

When Simon’s trial counsel began discussing the issue, he first asked who

on the venire did not believe in the death penalty. After roughly a dozen

affirmative responses, counsel then asked whether those who did not believe in
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the death penalty could follow the judge’s instructions and decide guilt or

innocence regardless of their feelings about the death penalty. Counsel received

varying answers, some yes, some no, some not knowing. Counsel then asked the

jurors whether they understood that a cross section of the community includes

people who do not believe in the death penalty. The State objected to this

question, and the trial judge sustained the objection.

Simon’s trial counsel then attempted to restate the question to one

particular juror:

Now, those people that I just asked about the death penalty, the

ones who do not believe in the death penalty, if you’re selected on

the jury, even though you do not believe in the death penalty—Ms.

Ethridge, could you follow the law and consider whether or not it’s

appropriate or not, even though you don’t believe in it.

The State objected to this question, noting that “the word ‘consider’ is not a part

of it.” The court then sustained the objection in detail:

JUDGE PEARSON: The question has been asked about three

different ways.

MR. WALLS [Simon’s trial counsel]: Your Honor, that’s the

question I wanted to pose to all those other jurors. Has the Court

ruled I shouldn’t ask that question?

JUDGE PEARSON: The Court has asked this question, Mr. Walls,

and this is the third different way that you’ve asked the same

question. I’m sustaining the objection.

MR. WALLS: All right. I have one other area, two quickly that I

want to go into. . . .

Simon’s trial counsel then went on to ask the venirepersons about what they had

heard regarding the case.

Under these circumstances, it was not unreasonable for Simon’s trial

counsel to cease his efforts at rehabilitation. The substance of the pertinent

question—whether jurors would refuse to return a sentence of death—had
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already been covered. It was reasonable for counsel to move on to a different

issue. Had Simon’s trial counsel persisted in the above-quoted line of

questioning, he likely would have drawn additional objections that the trial

judge would have sustained. Instead of antagonizing the trial judge in front of

potential jurors, counsel reasonably decided to move on.

Further, even if Simon’s trial counsel could have tried to rehabilitate

several of the jurors, his failure to do so was not deficient performance. A

potential juror can be excused for cause if his or her views on the death penalty

would prevent or substantially impair the performance of his or her duties.

Wainwright v. Witt, 469 U.S. 412, 424 (1985); Williams v. Collins, 16 F.3d 626,

633 (5th Cir. 1994). A juror whose views on the death penalty prevent him or

her from returning a sentence of death is therefore excusable for cause. See

Williams, 16 F.3d at 633. And where attempts to rehabilitate a juror who has

refused to impose the death penalty would be futile, refusal to engage in such

useless efforts rarely constitutes deficient performance under Strickland. See

id. Our review of the record reveals that four of the five jurors in

question—Ethridge, Craigen, Dickerson, and Tinnell—squarely indicated that

they could not return a sentence of death. Efforts to rehabilitate them would

have been fruitless, and the performance of Simon’s trial counsel was therefore

not deficient.

The fifth potential juror, Williams, is a bit less clear. We could only find

evidence that Williams did not “believe” in the death penalty. But we need not

address whether counsel was deficient regarding Williams; even if we assume

deficient performance, Simon cannot show that the exclusion of Williams

prejudiced his trial. The jury in Simon’s trial was selected from the first fortyfour members of the venire, with three alternates selected from the first fifty-six.

Williams was juror number seventy-two. Thus, even if Simon’s trial counsel had
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fully rehabilitated her, she would not have been on the jury that heard his case.

Any failure to rehabilitate Williams, then, could not have prejudiced Simon.

2. Failure to object to State’s for-cause challenges

The State later challenged the five above-mentioned jurors for cause, and

the trial judge excused all five due to their refusal to impose the death penalty.

Simon contends that his counsel should have pointed out to the trial judge that

his efforts to rehabilitate these jurors were cut off, and the failure to do so

amounted to ineffective assistance.

The Supreme Court of Mississippi held that it was not deficient

performance for Simon’s counsel not to object when the trial judge stated that

jurors struck for cause were only partially rehabilitated. See Simon II (State

Habeas), 857 So. 2d at 693. As “these jurors did not falter in their stated

opposition to imposing the death penalty,” they could be stricken for cause and

any cutting short of trial counsel’s questioning “had little, if any, effect upon the

adequacy of their voir dire.” Id. Thus, according to the court, Simon’s trial

“counsel did not render deficient performance in failing to remind the judge that

he had been cut off in his futile attempts to rehabilitate these jurors.” Id. The

district court agreed, stating that each of the jurors in question were unequivocal

in their inability to impose the death penalty. See Simon II (Federal Habeas),

2007 WL 4292498, at *12. The district court also noted that, in addition to

Williams, potential jurors Craigen, Dickerson, and Tinnell also were not among

the first forty-four venire members and therefore “would not have been reached

even if they had remained on the panel.” Id.

We do not find the district court’s resolution of this issue debatable.

Again, four of the five potential jurors in question had squarely stated that they

would refuse to impose the death penalty. Any further efforts to rehabilitate

them would have been fruitless, and Simon’s trial counsel was therefore not
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deficient in failing to point out that his efforts at rehabilitating them had been

cut short. And as to Williams, any failure to rehabilitate her did not prejudice

Simon.

3. Failure to object to disparate opportunities for rehabilitation

Simon’s trial counsel challenged several jurors for cause on the ground

that they had said they would automatically impose the death penalty. The trial

judge gave the State the opportunity to rehabilitate some of these jurors. Simon

again contends that his trial counsel should have pointed out that the trial judge

had cut short his efforts at rehabilitating jurors, and that his failure to do so

constituted ineffective assistance.

The Supreme Court of Mississippi found no deficiency in Simon’s trial

counsel’s performance on this matter. In the court’s words,

The record reflects that during the time jurors were being stricken

“for cause,” where the judge’s notes were inadequate, incomplete, or

where he considered them untrustworthy, he would permit an

individual voir dire of that juror to clear things up. No objections

were made to this procedure by either party. It benefitted both

sides. That Simon’s trial counsel did not object to the judge’s

allowing individual voir dire of jurors—where the State was

successful in clarifying the judge’s perception of those jurors in a

way that possibly could be characterized as favorable to the

State—was not the provision of deficient assistance.

See Simon II (State Habeas), 857 So. 2d at 693. The district court similarly

found no merit to Simon’s allegations of deficient performance when the State

was allowed to rehabilitate potential jurors, as both the State and defense were

allowed to conduct individual voir dire. See Simon II (Federal Habeas), 2007 WL

4292498, at *12.

Again, we do not find the district court’s resolution of this issue debatable.

The record shows that counsel for the State and Simon’s trial counsel were both

given the opportunity to question jurors when there was some confusion as to
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what the juror had said. Further, as to four of the five jurors in question, any

effort at rehabilitation would have been fruitless. And any failure to rehabilitate

Williams was harmless.

In sum, the district court held that the Supreme Court of Mississippi’s

resolution of Simon’s ineffective assistance claims regarding rehabilitation was

proper. The district court’s resolution of this issue is not debatable, and we

therefore deny a COA on this claim.

IV. CONCLUSION

We grant a COA on Simon’s claim that his counsel rendered ineffective

assistance at sentencing. We request that Simon provide supplemental briefing

on this claim within thirty days of the date of this order. The State should file

a response within fifteen days thereafter, and Simon may file a reply within ten

days after the State submits its brief. We ask that the parties address the

following issues:

1. Under Strickland, was it deficient performance for Simon’s trial counsel

not to investigate Simon’s history of familial abuse?

2. If the jury had heard evidence of Simon’s history of familial abuse, is there

a reasonable probability that it would not have returned a sentence of

death?

3. Considering that neither the Supreme Court of Mississippi nor the district

court held an evidentiary hearing to determine the actual contours of

Simon’s trial counsel’s investigation, what must we assume for the sake

of this appeal? Further, if we find Simon’s claims to be meritorious,

should we remand his petition to the district court for an evidentiary

hearing?

We deny Simon’s request for a COA on his remaining claims of ineffective

assistance. The certificate of appealability is therefore GRANTED in part and
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DENIED in part, and additional briefing is requested.

GRANTED in part, DENIED in part, additional briefing requested.