IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-10924

JOHN MICHAEL LAMB,

Petitioner-Appellant,

versus

GARY JOHNSON, Director, Texas Department of Criminal Justice,

Institutional Division,

Appellee-Respondent.

Appeal from United States District Court

for the Northern District of Texas

June 23, 1999

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge.

Petitioner John Michael Lamb, convicted of capital murder in Texas and sentenced to death,

requests from this Court a Certificate of Appealability (“COA”) pursuant to 28 U.S.C. § 2253(c)(2).

For the reasons set forth below, we DENY the COA.2 F ACTUAL & P ROCEDURAL B ACKGROUND

Lamb was convicted by a jury of capital murder and sentenced to death in 1983. The

pertinent facts can be found in the substance of his confession contained in the state court opinion

affirming his conviction:

Friday November 5, 1982[:] I got out of Jail in Searcy Arkansas about 10:30 a.m. I

started hitchhiking toward Texas. I caught a ride into a town about 45 miles from

Dallas on Interstate Highway 30 betwe en Arkansas and Dallas, Texas. I walked

across the Parking Lot of a motel I believe it was a Ramada Inn. I saw this guy in

front of a motel room I talked to him a little bit then he went to eat. I stayed around

the motel area for awhile. When this guy came back to his room after he had eaten

and invited me in the room

. We talked for about thirty minutes he was sitting on the

bed and I was sitting on a chair nearby. This guy put his hand on my leg and I said

take your hand off I don't go for that shit. I got up at this time and he said for me to

leave. I had earlier gotten a gun from a bag in the room while this guy was in the

bathroom. When I got up I took a step or two toward the door pulled the gun from

my pocket and sh o t the guy three times I shot three times because the gun was an

automatic after I shot the guy was on his knees on the bed and I heard him fall to the

floor. I got the guys billfold off the nightstand and took a shaving kit. I got the keys

to the guys car and drove his car t oward Dallas. The car was a tan Nova with

Virginia License Plates. The Drivers license and credit card in the billfold had the

name of Jerry Chafin. The gun that I shot the guy with was a small automatic Pistol.

I threw the gun out of the car somewhere between this town and Dallas. I slept a

couple hours in the car in Dallas then drove to Houston. I drove to a Holiday Inn in

Houston and checked into the Motel[.] Saturday November 6, 1982[:] I used Jerry

Chafin credit card and Drivers License to check into the Holiday In n

. I threw a

Television and some other stuff that was in the car into a Garbage bin at the Holiday

Inn. I stayed in Houston until Monday then started East toward Louisiana. Tuesday

I stopped at a Shamrock stati on in Lafyette Louisiana. I got some gas and two cases

of Budweiser Beer Longnecks. I attempted to use Jerry Chafin credit card and a girl

called in to check on the credit card. I took off wi thout the card. I drove East on

Interstate 10. Thursday Morning[:] I stopped at store and gas pumps in Greenville

Florida. I shot the attendant and took two cases of Budweiser Beer and some money.

A few minutes later I was stopped by the Police and arrested. When I was arrested

I was driving the car that I got in Texas and had the billfo ld in my pocket with Jerry

Chafin Drivers License of Jerry Chafin.3

Lamb v. State

, 680 S.W.2d 11, 14 (Tex. Crim. App. 1984) ( en banc)

. His conviction and sentence

were affirmed on direct appeal. S ee id

. at 13-17. The United States Supreme Court denied Lamb’s

petition for a writ of certiorari. See Lamb v. Texas , 470 U.S. 1009 (1985).

Thereafter, Lamb filed several applications for a writ of habeas corpus under Texas law. On

October 31, 1985, the trial court conducted an evidentiary hearing on the allegations raised in Lamb’s

first application. The trial court issued findings of fact and conclusions of law, and Lamb’s application

was denied on January 8, 1986. Lamb filed a motion for stay of execution and a second application

for state habeas corpus in February 1986, both of which were also denied.

In February 1986, La mb filed his first 28 U.S.C. § 2254 application in federal court. His

application was init ially denied, but the district court granted Lamb’s motion to allow him to amend

his application asserting additional grounds for relief. Lamb filed his first amended application, and

on March 22, 1988, the magistrate judge conducted an evidentiary hearing. Lamb then filed a second

amended application adding claims which had not been presented to the state court, and in May 1989,

his § 2254 application was dismissed for failure to exhaust state remedies. As such, Lamb filed his

third application for state habeas corpus in December 1989. The state trial court conducted an

evidentiary hearing on July 30, 1996. The trial court issued findings and denied the application on

April 22, 1997.

Lamb then filed the instant § 2254 petition on April 23, 1997. Lamb raised several claims in

this petition. Relevantly, the fifth claim among these was that he was denied effective assistance of

counse l when trial counsel failed to investigate and present mitigating evidence at the sentencing

phase of the trial. The magistrate judge conducted a limited evidentiary hearing at which it adopted

the previous evidentiary hearing conducted in 1988. The magistrate judge concluded that “Lamb’s1 Because Lamb raises Claim 5 only in his request for a COA a nd brief, all other issues are

considered abandoned. See Yohey v. Collins , 985 F.2d 222, 225 (5 th Cir. 1993).

4 attorneys’ strategic decision to not put on mitigating evidence and, as a result, to not conduct much

investigation into such evidence, was entirely reasonable in light of all the circumstances of the case.”

The magistrate judge further concluded that “there is not a reasonable probability that the result of

the punishment phase would have been any different had counsel put on mitigation witnesses.” Lamb

subsequently objected, arguing th a t the magistrate judge’s conclusion that the attorney s made a

strategic decision did not coincide with the fact s, and that some mitigating evidence would have

provided a reasonable probability that a life sentence could have been obtained. The district court

adopted the magistrate judge’s report and denied Lamb’s § 2254 application.

Pursuant to § 2253(c)(2), Lamb filed a request for a COA from the district court. After the

court below denied this request, he made a similar request to this Cou rt. We now consi der thi s

request. 1

D ISCUSSION

I

On April 24, 1996, the President signed into law the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), amending the procedures for seeking and obtaining a writ of habeas corpus

from a federal court. Lamb filed his habeas application in the district court on April 23, 1997, after

the effective date of AEDPA. AEDPA applies to those § 2254 applications filed in the district court

after the Act’s effective date. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997); N obles v.

Johnson , 127 F.3d 409, 412-13 (5th Cir. 1997), c ert. denied

, -- U.S.--, 118 S. Ct. 1845 (1998 )

.5

Under AEDPA, a § 2254 applicant must obtain a COA. S ee 28 U.S.C. § 2253(c)(2). A COA may

be issued only if the prisoner has made a substantial showing of the denial of a constitutional right.

See id

. A petitioner makes a “substantial showing” if he demonstrates that his petition involves issues

which are debatable among reasonable jurists, that a court could resolve the issues differently, or that

the issues are adequate enough to deserve encouragement to proceed further. S ee Drinkard v.

Johnson , 97 F.3d 751, 755 (5th Cir. 1996).

“The nature of the penalty in a capital case is a `proper consideration in determining whether

to issue a certificate of probable cause, but the severity of the penalty does not in itself suffice to

warrant the automatic issuing of a certificate.’” W ashington v. Johnson

, 90 F.3d 945, 949 (5th Cir.

1996) (quoting Barefoot v. Estelle

, 463 U.S. 880, 893 (1983)). In a capit al case, “any doubts

whether CPC [the predecessor to the CO A] sho uld be issued are to be resolved in favor of the

petitioner.” Buxton v. Collins , 925 F.2d 816, 819 (5th Cir. 1991).

Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not b e granted wi th respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim --

(1) resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Pure questions of law are reviewed under the “cont rary to” standard. S ee

Drinkard

, 97 F.3d at 767-68. On the other hand, mixed questions of law and facts are reviewed under

the “unreasonable application” standard. “[A]n application of law to facts is unreasonable only when

it can be said t hat reasonable jurists considering the question would be of one view that the state2 At the punishment phase, the state attempted to in t ro duce evidence of Lamb’s juvenile

criminal record, and Lamb’s attorneys’ objection to the lack of proper certification of the records was

sustained. The state then introduced records relating to Lamb’s adult convictions for burglary in

6 court ruling was incorrect.” Id. at 769. “In other words, [the court] can grant habeas relief only if

a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists.”

Id

. Finally, pure questions of fact are reviewed under the “unreasonable determination of the facts”

standard. See id. at 767.

II

Lamb submits that he was denied effective assistance of counsel beca use his trial counsel

failed to investigate and present mitigating evidence at the sentencing phase of the trial. The ultimate

determination of whether counsel was constitutionally effective is a mixed question of law and fact.

See Carter v. Johnson

, 131 F.3d 452, 463 (5th Cir. 1997), cert. denied

, 118 S. Ct. 1567 (1998). We

review ineffective assistance of counsel claims under the standard set forth in S trickland v.

Washington

, 466 U.S. 668 (1984). The petitioner must show that: (1) his counsel’s performance was

deficient; and (2) the deficient performance prejudiced his defense. See Boyle v. Johnson , 93 F.3d

180, 187 (5 th Cir. 1996). Failure to prove either deficient performance or actual prejudice is fatal to

an ineffective assistance claim. See Carter , 131 F.3d at 463.

A

At the punishment porti on of the trial, Lamb’s attorney s did not offer mitigating evidence in

the form of family and friends coming to ask the jury to spare his life. Instead, his attorneys chose

to make this plea through jury argument. 2 In his petition for a writ of habeas corpus, Lamb arguesArkansas and robbery and attempted murder in Florida. The Arkansas prosecuting attorney testified

that Lamb pleaded guilty to theft by receiving and criminal attempt of burglary on November 5, 1982,

and was released for time served. F red Respress, an investigator fo r t he Madison County Florida

Sheriff’s Department, testified that Lamb pleaded guilty to armed robbery with a firearm and attempt

to murder with a firearm on December 6, 1982. Respress testified that when he was taking Lamb into

custody in Florida, Lamb stated, “I’m glad you S.O.B.’s finally caught me before I killed somebody

else.” The State presented the testimony of Muriel Burnette, the gas station attendant in Florida. She

t est ified about how Lamb shot her in her back and hands and stole two cases of beer. The State

rested.

The court read three special issues to the jury. Special Issue 1 required the jury to determine

whether Lamb’s conduct was “committed deliberately and with the reasonable expectation that the

death of the deceased or another would result. ” Special Issue 2 required the jury to determine

whether there was a “probability that the defendant [Lamb] will commit criminal acts of violence that

would constitute a co ntinuing threat to society.” Special Issue 3 required the jury to determine

whether Lamb’s conduct was “unreasonable in response to the provocation, if any, by the deceased.”

Lamb’s attorneys argued that there was no evidence that Lamb’s conduct was deliberate or

that it was a planned act. On special issue 2, they pointed out that Lamb had two life sentences to

ser ve in Flo rida, which would be in addition to a life sentence in Texas if they did not impose the

death penalty, and that he would not therefore pose a continuing threat to society. C ounsel then pled

for leniency from the jury.

3 The record indicates that his trial counsel and trial investigator successfully contacted two

people: Lamb’s grandmother, and the chief of police in Gustine, California where Lamb had grown

up. They did not successfully contact Lamb’s mother, whom apparently found out about the capital

case and subsequent sentence after the jury handed down its verdict.

7 that t his decision constituted ineffective assistance of counsel. He points out that his attorneys’

investigation into these potent ial mitigation witnesses was insufficient at best. 3 He then submits

sever al affidavits from potential mitigation witnesses. These affidavits, according to Lamb,

demonstrate that there were many witnesses who would have come to Texas to testify regarding his

non-violent character in the past. As such, Lamb co nt ends that his trial counsel’s failure to

investigate this line of defense, coupled with the affidavits detailing th e nature of these wi tnesses’

testimony, present sufficient grounds for this court to issue a COA.

Jerry Davis, one of Lamb’s trial counsel, testified before the magistrate judge that he made

a strategic decision not to put mitigating witnesses on the stand to testify on Lamb’s behalf. Davis8

explained that he believed a plea for mercy would come better from his counsel than from friends and

family whom Lamb had not seen or dealt with i n several years. Davis further posited that, in his

opinion, the jury would have looked at such testimony very skeptic ally co nsidering (1) the brutal

nature of the crime he was on trial for in Texas; (2) the crime he had committed in Florida; (3) the

continuous criminal history of being in trouble with the law since he was a juvenile; and (4) his

previous conviction in Arkansas. Finally, Davis explained that he had believed that a strategy of

mitigating witnesses might backfire as it might harden the jury against Lamb and invit e prosecutorial

attack. Davis pointed out that the witnesses would have been vulnerable to “have you heard” types

of questions b y t he prosecution, thus putting before the jury Lamb’s non-violent but nonetheless

criminal juvenile record. All in all, Davis testified that he made a strategic decision not to introduce

mitigating witnesses.

Informed strategic decisions of counsel are given a heavy measure of deference and will not

be second guessed. See Ransom v. Johnson

, 126 F.3d 716, 721 (5th Cir.), cert. denied , 118 S. Ct.

361 (1997); Boyle

, 93 F.3d at 187. Moreover, “a tactical decision not to pursue and present potential

mitigating evidence on the grounds that it is double-edged in nature is objectiv ely reasonable, and

therefore does not amount to deficient performance.” See Rector v. Johnson

, 120 F.3d 551, 564 (5th

Cir. 1997) (citing Mann v. Scott

, 41 F.3d 968, 983-84 (5th Cir. 1994)), cert. denied

, 118 S. Ct. 1061

(1998). Viewing Lamb’s trial counsels’ strategic decision through the lens of R ector and Mann

makes it apparent that Lamb cannot prevail on his Strickland claim.

In order to get around Davis’ repeated testimony that the decision not to use witnesses from

California was made in order to keep evidence of Lamb’s juvenile record from the jury, Lamb argues

that this decision is not entitled to deference because it was uninformed an d was made without9

adequate investigation. He cites Thomas v. Kemp

, 796 F.2d 1322 (11th Cir. 1986), in which that

court affirmed the district court’s grant of the writ. The court stated that the record supported the

district court’s conclusion that counsel’s failure to investigate was deficient. His counsel admitted

at the evidentiary hearing that he had made little effort to produce mitigating evidence because the

defendant stated, in effect, that he did not want the jury’s tears. See 796 F.2d at 1324. However,

Thomas is distinguishable from the instant case because there was no testimony in Thomas that the

counsel’s decision was strategic in any way. There was no evidence of a criminal hist o ry which

counsel wished to avoid opening up through cross-examination of character witnesses.

B

Lamb also argues that his trial counsels’ explanation

– that they did not want to use mitigating

witnesses because they could have been impeached with “have you heard” questions

–was based on

an erroneous understanding of the law. He contends that, under Texas law, such questions are only

allowed as to a reputation witness and would not be admissible to impeach witnesses who stated a

personal opinion as to the accused’s background. See Rutledge v. State

, 749 S.W.2d 50 (Tex. Crim.

App. 1988).

Rutledge does state that “have you heard” questions are properly utilized to impeach a witness

who claims a familiarit

y with hearsay as to the defendant’s reputation, and that a witness who testifies

to his personal knowledge of the defendant’s character cannot be impeached with “have you heard”

questions. S ee 749 S.W.2d at 53. Lamb’s proposed witnesses were not reputation witnesses.

According to the proposed content of their testimony, they would be testifying about their personal10

knowledge of Lamb’s lack of violence. Lamb therefore is correct that these witnesses would not have

been subject to “have you heard” questions.

However, his attorney s were not incorrect in their opinion that the mitigation witnesses could

have been asked about their personal knowledge of Lamb’s juvenile record. In L ivingston v. Johnson

,

107 F.3d 297 (5 th Cir.), cert. denied

, 118 S. Ct. 204 (1997), counsel decided against calling several

suggested witnesses because, as counsel explained, anyone who knew the defendant well enough to

testify to his good character would also know about his prior bad acts. S ee id. at 308. We agreed that

this was plausible trial strategy. S ee id. In M cCoy v. Lynaugh

, 874 F.2 d 954 (5 th Cir. 1989),

counsel did not call

t he proposed punishment witnesses because counsel was concerned about

opening the door to allow the State to inquire into instances of prior bad acts of the defendant. S ee

id. at 964. We concluded that counsel’s actions did not fall outside the wide range of professional

assistance. See id

.

Lamb’s trial counsel may have been incorrect in their use of the “have you heard” terminology

when explaining why they did not introduce mitigat ing witnesses, but they were correct that any

witnesses who were called to testify about their personal knowledge of Lamb’s character could also

be cross-examined about their personal knowledge of his juvenile criminal record. As Davis explained

in his testimony before the magistrate judge:

We felt like that the jury would view this type of evidence, this juvenile problems in

their reasoning that

– well, this guy’s been in trouble for years; he started out as a

juvenile offender, a burglar; now’s he’s graduated up to robbing liquor stores;

burglaries, and now, capital murder; and he’s had every break. Thi s would, in our

opinion, i mpress t he jury that this guy’s had a chance. He has flunked the system.

We didn’t want to call people like his mo mma or his grandmother or the police chief

in California or a juvenile probation officer or a neighbor that had known that John

had spent probably quite a bit of time in the criminal justice syst em – t he juvenile

criminal justice system. We didn’t think that would be impressive at all or mitigating.11

The state trial court found that Davis’s strategy was to keep out aggravating circumstances such as

Lamb’s juvenile record and any proof that he had been in trouble all of his life as could be shown by

the California witnesses. The state court also found that Joe Weis, Lamb’s other trial attorney,

agreed that evidence of Lamb’s juvenile record was not in his best interest. We find that Lamb cannot

make a substantial showing that his trial counsel performed deficiently under Strickland

.

C

In the interest of thoroughness in this death penalty case, we address the prejudice prong of

the ineffective assistance of counsel test as well. In order to satisfy the prejudice prong, the petitioner

“must show that there is a reasonable probability that, but for coun sel’s unprofessional errors, the

result of the proceedi ng wo uld have been different.” S trickland

, 466 U.S. at 695. The petitioner

must show that, absent counsel’s deficiencies, there is a reasonable probability that the jury would

not have sentenced him to death. Davis

, 158 F.3d at 812. A reasonable probability is a probability

“sufficient to undermine confidence in the outcom e.” S trickland

, 466 U.S. at 694. The mere

possibility of a different outcom e is not sufficient to prevail on the prejudice prong. S ee Ransom

, 126

F.3d at 72 3. Lamb must show evidence of sufficient quality and force to raise a reasonable

probability that, had the evidence been presented to the jury, a life sentence would have resulted. S ee

id

. More particularly, when a defendant alleges that his counsel’s failure to investigate prevented his

counsel from making an informed tactical choice, he must show that knowledge of the uninvestigated

evidence would have altered his counsel’s decision, and that the bases underlying his counsel’s tactical

choice to pursue or forego a particular course would have been invalidated. S ee Gray v. Lucas

, 677

F.2d 1086, 1093 (5th Cir. 1982).12

Even if we were to assume that his trial counsel failed to make an adequate investigation,

Lamb has failed to show that counsel would have made a different decision about trial strategy if they

had investigated and amassed the information contained in the affidavits of the proposed witnesses.

Weis specifically testified that he would have considered the evidence but that he was not sure if he

would have made a different strategic decision, again referring to the possibility of opening the door

to the juvenile record. In the face of the proposed evidence, Davis never wavered from his opinion

that the proposed evidence of a nonviolent history would have been more harmful than helpful.

Additionally, Weis expressed the opinion that he did not believe the proposed testimony would have

affected the outcom e because of the testimony from the female gas station attendant about the

robbery and shooting in Florida. He did not believe that any of the testimony in the affidavits could

overcome that kind of devastating evidence.

The state trial court concluded that even if counsel’s actions were in error, the result of the

proceedings would not have been different. Lamb has not shown that this conclusion involved an

“unreasonable application” of clearly established federal law as determined by the Supreme Court.

See § 2254(d)(1); Davis

, 158 F.3d at 812. Reasonable jurists considering this claim would not be of

“one view” that the state court’s judgment was wrong. S ee Williams v. Cain

, 125 F.3d 269, 279-80

(5th Cir. 1997), cert. denied , 119 S. Ct. 144 (1998).

In Williams

, the state court found that the defendant was not prejudiced by counsel’s failure

to present the testimony of family and friends regarding the defendant’s troubled family history. The

evidence would have opened the door for cross-examination regarding the defendant’s drug and

alcohol abuse, expulsion from school, and discharge from his job. The evidence would have had little

mitigating effect against the evidence of the murder a t issue in that case. S ee id

. Similarly, Lamb13

cannot show that his proposed mitigating evidence of a non-violent history and troubled family life

raises more than a mere possibility of a different outcom e, and not the required “reasonable

probability.” R ansom

, 126 F.3d at 723. Given Lamb’s confession to the Texas murder, the

subsequent robbery and shooting of the female gas stati on attendant in Florida five days later, and

especially given his statement to the authorities taking him into custody in Florida that he was glad

they had “finally caught [him] before [he] k illed so mebo dy else,” we cannot say that there is a

reasonable probability of a different outcom e. S ee Carter

, 131 F.3d at 465 (holding that given the

defendant’s confession to the murder of a service stati on attendant during a robbery, the court could

not conclude that the testimony of character witnesses as to the defendant’s reputati on as a good and

peaceful person would have sufficiently impressed the jury to avoid the death sentence).

C ONCLUSION

Lamb has not made a substantial showing of the denial of a constitutional right. We therefore

DENY his request for a COA.