Lewis v. Johnson ( 2000 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 96-10616
    ANDRE ANTHONY LEWIS
    Petitioner-Appellant,
    v.
    GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
    OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
    Respondent-Appellee,
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Northern District of Texas
    (93-CV-0329-G)
    - - - - - - - - - -
    December 21, 2000
    ON PETITION FOR PANEL REHEARING
    Before KING, Chief Judge, and DAVIS and WIENER, Circuit Judges.
    PER CURIAM:*
    Petitioner-Appellant Andre Anthony Lewis has petitioned this
    panel to rehear its decision to affirm the district court’s
    denial of his application for a writ of habeas corpus.   After a
    *
    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    this opinion should not be published and is not precedent except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.
    1
    review of Lewis’s petition for panel rehearing, and in light of
    the Supreme Court’s recent decision in (Terry) Williams v.
    Taylor, 
    120 S. Ct. 1495
     (2000), we grant rehearing in part,
    vacate section II.C of the panel opinion as to its discussion of
    the punishment phase ineffective assistance of counsel claims,
    vacate the district court’s judgment insofar as it denied habeas
    relief on Lewis’s punishment phase ineffective assistance of
    counsel claims and remand for an evidentiary hearing solely on
    those claims.     We also correct a legal misstatement in our panel
    opinion.
    First, our unpublished disposition of Lewis’s petition for
    habeas relief does contain a misstatement of law.     The erroneous
    pronouncement appears in the discussion of Lewis’s claim that his
    Sixth Amendment right to effective assistance of counsel, as
    clarified by the Supreme Court in Strickland v. Washington, 
    466 U.S. 668
     (1984), was violated by the failure of counsel to
    present, at the punishment phase of the trial, evidence of
    Lewis’s abusive childhood.     Specifically, the statement (and
    accompanying footnote1) on page ten of our unpublished opinion
    that “[a]t the time of Lewis’s trial, evidence of such abuse was
    not admissible relative to Texas’s special issues at the
    1
    Footnote 14 read as follows: “Lewis was found guilty on
    June 2, 1987, well prior to the Supreme Court’s decision in Penry
    v. Lynaugh, 
    492 U.S. 302
    , 
    109 S. Ct. 2934
     (1989) which set forth
    the current rule allowing evidence of abuse at the punishment
    phase of a capital trial.”
    2
    punishment phase” is an incorrect statement of applicable law.
    Lewis’s trial occurred before the Supreme Court’s decision
    in Penry v. Lynaugh, 
    492 U.S. 302
     (1989); therefore, his counsel
    did not have the guidance of that decision in formulating Lewis’s
    defense strategy.   Nevertheless, evidence of abuse suffered by
    the defendant was admissible at the punishment phase of the
    trial, see May v. Collins, 
    904 F.2d 228
    , 232 (5th Cir. 1990),2 so
    the assertion to the contrary in our original opinion was
    erroneous.
    In light of our error, and due to (Terry) Williams v.
    Taylor, 
    120 S. Ct. 1495
     (2000), an analogous case that was not
    briefed until the Request for a Panel Rehearing,3 we withdraw the
    portion of section II.C in our panel opinion discussing
    ineffective assistance of counsel at the punishment phase and
    replace it with the following analysis.
    As our decision to remand turns on the inescapable
    2
    Lewis was entitled to introduce “as a mitigating factor,
    any aspect of a defendant’s character or record and any of the
    circumstances of the offense that the defendant proffers as a
    basis for a sentence less than death.” Lockett v. Ohio, 
    438 U.S. 586
    , 604 (1978); see also Burger v. Kemp, 
    483 U.S. 776
    , 789-90
    n.7 (1987) (noting that evidence of childhood abuse and mental
    problems was “relevant mitigating evidence that the sentencer
    could not have refused to consider and could not have been
    precluded from considering had counsel sought to introduce it”).
    3
    (Terry) Williams v. Taylor was decided April 18, 2000.
    Upon the Petition for Rehearing, this court requested a response
    from Respondent-Appellee Gary L. Johnson, Director of the Texas
    Department of Criminal Justice, to address Lewis’s post-(Terry)
    Williams ineffective assistance of counsel argument.
    3
    similarities between (Terry) Williams and the instant case, we
    are bound to discuss its reasoning.   In (Terry) Williams, the
    Supreme Court found that “Williams had a right–-indeed, a
    constitutionally protected right–-to provide the jury with the
    mitigating evidence that his trial counsel either failed to
    discover or failed to offer.”   
    120 S. Ct. at 1513
    ; see also
    Lockett v. Anderson, 
    230 F.3d 695
    , 711 (5th Cir. 2000) (“It is
    clear that defense counsel’s failure to investigate the basis of
    his client’s mitigation defense can amount to ineffective
    assistance of counsel.”).   The Court undertook to apply the
    Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984),4 framework to
    hold that Williams was denied his constitutionally guaranteed
    right to effective assistance of counsel when his attorneys
    failed to investigate and present substantial mitigating evidence
    during the sentencing phase of his capital murder trial.
    4
    The Strickland framework to determine ineffective
    assistance of counsel provides:
    First, the defendant must show that counsel’s performance
    was deficient. This requires showing that counsel made
    errors so serious that counsel was not functioning as the
    “counsel” guaranteed the defendant by the Sixth Amendment.
    Second, the defendant must show that the deficient
    performance prejudiced the defense. This requires showing
    that counsel’s errors were so serious as to deprive the
    defendant of a fair trial, a trial whose result is reliable.
    Unless a defendant makes both showings, it cannot be said
    that the conviction or death sentence resulted from a
    breakdown in the adversary process that renders the result
    unreliable.
    
    466 U.S. at 687
    .
    4
    Specifically, in regard to the first prong of deficient
    performance, the Court found that “[t]o establish
    ineffectiveness, a ‘defendant must show that counsel’s
    representation fell below an objective standard of
    reasonableness.’” (Terry) Williams, 
    120 S. Ct. at 1511
     (quoting
    Strickland, 
    466 U.S. at 688
    ).5
    In concluding that Williams’s counsel was deficient, the
    Supreme Court relied on several factors: (1) “counsel did not
    begin to prepare for that phase of the proceeding until a week
    before the trial,” id. at 1514; (2) counsel introduced only three
    punishment phase witnesses, whose testimony amounted to the
    conclusion that Williams was a “nice boy,” see id. at 1500; (3)
    counsel “failed to conduct an investigation that would have
    uncovered extensive records graphically describing Williams’
    nightmarish childhood,” id. at 1514; (4) counsel’s failure was
    not a result of strategy, but was based on an erroneous
    understanding of state law, see id.; (5) counsel had “failed to
    introduce available evidence that Williams was ‘borderline
    5
    As a benchmark for “objective” standards, the Court
    looked, as they had in Strickland, see 
    466 U.S. at 688
    , to the
    ABA Standards for Criminal Justice to find that “trial counsel
    did not fulfill their obligation to conduct a thorough
    investigation of the defendant’s background.” Terry Williams,
    
    120 S. Ct. at
    1515 (citing 1 ABA STANDARDS FOR CRIMINAL JUSTICE 4-4.1
    cmt. at 4-55 (2d ed. 1980)). The Court then applied this
    standard to the particular facts presented in (Terry) Williams.
    See id.; see also Strickland, 
    466 U.S. at 687
     (requiring a case-
    by-case determination for ineffective assistance of counsel
    claims).
    5
    mentally retarded’ and did not advance beyond sixth grade in
    school,” id.; (6) Williams had received a commendation from the
    prison, see id.; and (7) counsel failed even to return the phone
    call of a character witness who was willing to testify on
    Williams’s behalf, see 
    id.
    Lewis argues that his state counsel was equally ineffective
    for failing to put on available and substantial mitigating
    evidence at the punishment phase of trial.      First, like
    Williams’s counsel, Lewis’s counsel did not begin to prepare for
    the punishment phase of trial until one week before trial began.
    Lewis argues that according to the records of trial counsel,
    counsel only began meeting with family members to discuss
    mitigation evidence and strategy on May 22, 1987, one week before
    the trial began on May 27, 1987.       Lewis alleges that from trial
    counsel’s own records, only twelve hours of counsel’s time was
    devoted to punishment phase investigation or legal strategy
    before trial.   This omission is more troubling because counsel
    had eight months to prepare for trial in which they called no
    guilt-phase witnesses.   See, e.g., Lockett, 
    230 F.3d at 714
    (requiring “informed strategic choices”); Moore v. Johnson, 
    194 F.3d 586
    , 615 (5th Cir. 1999) (“Strickland does not . . . require
    deference to decisions that are not informed by an adequate
    investigation into the controlling facts and law.”); Wilson v.
    Butler, 
    813 F.2d 664
    , 672 (5th Cir. 1987) (remanding for
    evidentiary hearing because record did not reflect whether
    6
    counsel made a sound strategic decision not to investigate and
    present mitigation evidence of troubled background and mental
    impairment).
    Second, in comparison to the three witnesses called in
    Williams’s case (including taped testimony from a psychiatrist),
    Lewis’s sole punishment phase defense consisted of one witness,
    his grandmother.   The defense’s entire punishment phase lasted
    for sixteen pages of trial transcript, with most of the direct
    examination objected to and stricken on hearsay grounds.   As has
    been discovered by federal habeas counsel, character witnesses,
    including Lewis’s high school football coach and math teacher and
    Lewis’s aunt, were willing to testify about Lewis’s cognitive
    difficulties and abusive childhood, but were never contacted by
    defense counsel.   According to the affidavit evidence, Lewis’s
    sister, Tammy Tonnette Lewis-Berry, was also willing to testify
    about the abuse and was even at the courthouse during the trial,
    but was never asked to testify.6
    Third, Lewis’s federal habeas counsel has adduced
    substantial mitigating evidence that was not investigated or used
    6
    Our concern is not with whether certain witnesses were or
    were not called. See Strickland, 
    466 U.S. at 689
     (recognizing
    the deference given to decisions of counsel and the “distorting
    effects of hindsight”). Instead, we concern ourselves with
    whether this omission was, in fact, a tactical decision. See 
    id. at 680
     (recognizing that “[c]ounsel may not exclude certain lines
    of defense for other than strategic reasons.”); Bouchillon v.
    Collins, 
    907 F.2d 589
    , 597 (5th Cir. 1990) (“Tactical decisions
    must be made in the context of a reasonable amount of
    investigation, not in a vacuum.”).
    7
    in state court.   Like Williams, Lewis suffered from severe
    childhood physical, psychological, and sexual abuse, and experts
    have found neurological impairments that may have had a
    mitigating effect on the jury.   The allegations submitted in the
    affidavits of Lewis’s habeas counsel include a childhood equally
    as disturbing and relevant to mitigation as that in (Terry)
    Williams.7   See (Terry) Williams, 
    120 S. Ct. at 1516
     (“Mitigating
    evidence unrelated to dangerousness may alter the jury’s
    7
    For example, Lewis’s Petition for Panel Rehearing includes
    the following summary of Lewis’s proffered mitigation evidence:
    Andre Lewis grew up in violent, drug-ridden areas of West
    Dallas, including the George Loving Projects which were
    renowned for high levels of lead contamination. Massive
    amounts of documentary evidence were presented in Mr.
    Lewis’s writ relating to his low intelligence, his horrific
    childhood characterized by severe physical, sexual and
    psychological abuse, neglect, poverty, chronic isolation,
    complete lack of positive role models and chemically
    dependent parents. His father would make his children take
    off all their clothes and whip them on their genitals until
    they were bloody. Dr. Daniel Jay Sonkin, a psychologist and
    expert on family violence, characterizes Mr. Lewis’s
    childhood as ‘one of the most severe cases’ of abuse that he
    has ever reviewed. Mr. Lewis was exposed to extremely toxic
    levels of lead . . . . Dr. Richard L. Peck conducted a
    psychological investigation of Andre Lewis in 1992 and found
    that his condition was consistent with that of trauma
    victims or victims of childhood abuse; he had significant
    cognitive deficits, was unable to process disparate pieces
    of information, had symptoms of neuropathy, had cognitive
    impairment symptoms consistent with lead poisoning. . . .
    Mr. Lewis was remembered by his teachers as being easily
    led, simple and quiet. According to his football coaches,
    he could not understand the strategy of the game to the
    extent that they simply had to tell him to go with the ball.
    These findings are confirmed by the results of
    neuropsychological testing performed by experts. . . .
    (citations to the record omitted).
    8
    selection of penalty.”); see also Abdur’rahman v. Bell, 
    226 F.3d 696
    , 722 (6th Cir. 2000) (Cole, J., concurring in part and
    dissenting in part) (“Th[e] abuse, while not a justification for
    petitioner’s criminal conduct, is relevant, mitigating evidence
    that should have been presented to the jury.”).8
    Fourth, again as in (Terry) Williams, this failure to
    introduce evidence was admittedly based on counsel’s erroneous
    understanding of state law.   The record includes two signed
    statements by counsel that their decisions were based on a belief
    that evidence of abuse at the punishment phase of Mr. Lewis’s
    capital murder trial “was not relevant under the special issues
    in the Texas death penalty statute.”9   As discussed above, this
    belief was incorrect.10
    Fifth, despite counsel’s earlier request for a psychologist,
    8
    While Lewis’s state counsel have stated that they were
    aware of the abuse, they did not follow up on investigating and
    procuring documentary evidence to support this claim. We have
    previously required counsel who have been put on notice of
    possible abuse or other mitigating evidence to pursue that
    evidence, or to make an informed strategic decision not to pursue
    that evidence. See Moore, 194 F.3d at 616 (“[Counsel] testified
    that he was aware of Moore’s troubled background at trial. That
    awareness, which included knowledge that Moore’s family was
    physically abusive, should have triggered some sort of inquiry
    into Moore’s background.”).
    9
    The lower court recognized this fact when it held:
    “Petitioner’s trial counsel’s affidavits preclude a finding that
    the decision not to present evidence of his abusive childhood was
    a tactical decision . . . .”
    10
    As discussed infra, the fact that counsel erroneously
    understood the law may not be sufficient to find ineffectiveness.
    9
    and the court’s tentative grant of funds for a psychologist,11
    counsel never had Lewis undergo psychological testing.   As has
    been demonstrated by Lewis’s federal habeas counsel, such testing
    may have developed mitigation evidence useful for the punishment
    phase of trial.12   See Moore, 194 F.3d at 613-15 (granting relief
    due in part to federal habeas counsel’s production of
    “substantial evidence of impaired mental development and
    functioning, and some evidence of organic brain damage resulting
    from severe trauma”); see also Loyd v. Whitley, 
    977 F.2d 149
    ,
    157-58 (5th Cir. 1992) (granting relief where counsel failed to
    develop independent evidence of mental disease or defect).
    Further, school records and teachers’ affidavits were not
    investigated to demonstrate Lewis’s long-standing cognitive
    difficulties.
    Despite these factual similarities to the ineffective
    assistance of counsel holding in (Terry) Williams, we cannot
    reach the conclusion that Lewis’s attorneys were deficient
    without further factual development.   Our primary concern is that
    Texas law at the time of Lewis’s trial presented a vexing problem
    11
    On March 6, 1987, the state court granted a motion
    approving the appointment of a defense psychologist, but
    requested a cost estimate for the proposed expert. Despite its
    availability, counsel neither provided the court an estimate nor
    sought the services of a psychologist to evaluate Lewis.
    12
    The fact that counsel initially requested the appointment
    of a psychologist belies the argument that counsel was unaware of
    any mental infirmities of Lewis.
    10
    for defense counsel seeking to introduce mitigating evidence.     As
    was ably argued in the State’s Response to Appellant’s Petition
    for Panel Rehearing, the existing Texas capital sentencing law
    created a dilemma13 for counsel not to introduce certain
    mitigating evidence that might have a double-edged nature.14    As
    stated, the affidavits submitted by Lewis’s counsel implicitly
    reflect this Hobson’s choice not to introduce mitigating evidence
    of childhood abuse or mental impairment because they thought it
    13
    As Judge Reavley recognized in May v. Collins:
    This fixed state of the law left defense counsel
    representing victims of child abuse and mental impairment
    with a tactical dilemma: (1) either to present the
    mitigating evidence, which would do more harm than good by
    bolstering the state's case with regard to future
    dangerousness, and then to pursue a losing constitutional
    argument; or (2) to withhold that evidence and hope that
    other arguments would persuade the jury to impose a life
    sentence.   Any capable defense attorney would pursue the
    latter course, as did May's counsel. Counsel's tactical
    decision, wise and necessary at the time, may be considered
    imprudent today because of an unpredictable change in the
    law. The important reality is that May's jurors were
    prevented from hearing extremely probative evidence on his
    moral culpability and on the appropriateness of a death
    sentence. Consequently, May has been deprived of the
    sentencing jury's fully informed judgment of his crime and
    his character. He has been caught in a web spun of words
    and logic that, in the end, has deprived May of his
    constitutional rights, a deprivation that may cost him his
    life.
    
    904 F.2d 228
    , 234 (5th Cir. 1990) (Reavley, J., concurring).
    14
    In the non-Texas (Terry) Williams case, the Supreme Court
    found that the double-edge nature of the evidence did not excuse
    counsel’s deficient performance. See 
    120 S. Ct. at 1514
     (“Of
    course, not all of the additional evidence was favorable to
    Williams.”).
    11
    could be considered by the jury only as an aggravating factor.
    While counsel’s statement on relevancy was, as we noted,
    incorrect, the remaining question is whether this erroneous
    understanding fell below an objective standard of reasonableness
    at the time of Lewis’s trial.15   With the issue thus framed, we
    turn to the standard for granting an evidentiary hearing.
    “A defendant is entitled to an evidentiary hearing if he
    alleges facts that, if proved, would entitle him to relief, and
    the record reveals a genuine factual dispute as to the alleged
    facts.”   Theriot v. Whitley, 
    18 F.3d 311
    , 315 (5th Cir. 1994).
    From our analysis of (Terry) Williams, Lewis has alleged facts
    that may entitle him to relief on the deficient performance of
    counsel claim.   Further, under the pre-AEDPA standards for
    granting an evidentiary hearing, we find that a question exists
    15
    From a quick review of pre-Penry Texas capital cases in
    this circuit, it appears that despite this dilemma, other trial
    counsel regularly investigated and pursued mitigation evidence as
    a matter of course, but for strategic reasons often decided
    against offering this evidence in the punishment phase. See,
    e.g., Crane v. Johnson, 
    178 F.3d 309
    , 315 (5th Cir. 1999) (“All
    of the evidence that Crane contends should have been presented at
    the punishment phase of his trial had a double-edged quality.
    Trial counsel decided the evidence was potentially more harmful
    than helpful.”); Washington v. Johnson, 
    90 F.3d 945
    , 953 (5th
    Cir. 1996) (after interviewing family and teachers and retaining
    investigator to develop mitigation evidence, counsel decided not
    to introduce mental health evidence); Mann v. Scott, 
    41 F.3d 968
    ,
    983-84 (5th Cir. 1994) (counsel admitted in affidavit that he
    made a strategic decision not to introduce evidence of abuse).
    The question remaining for the evidentiary hearing is whether it
    can be said that Lewis’s counsel undertook any strategic
    calculation or informed balancing about possible mitigating
    evidence.
    12
    about the reasonableness of counsel’s punishment phase
    performance in the context of the Texas special issues statute,
    raising a substantial issue of material fact.16      An evidentiary
    hearing is thus appropriate.17
    To be entitled to an evidentiary hearing, Lewis must also
    allege facts that would entitle him to relief based on the
    prejudice prong of Strickland’s ineffective assistance of counsel
    framework.     Again, we are bound by the Supreme Court’s decision
    in (Terry) Williams, which found that counsel’s deficient
    performance “prejudiced Williams within the meaning of
    Strickland.”    
    120 S. Ct. at 1516
    .     The Court recognized that
    there existed “a reasonable probability that the result of the
    sentencing proceeding would have been different if competent
    counsel had presented and explained the significance of all the
    available evidence.”     
    Id.
       (Terry) Williams therefore cautions us
    not to dismiss the prejudicial effect of failure to investigate
    and introduce mitigation evidence in the punishment phase of a
    16
    See 
    28 U.S.C. § 2254
    (d) (1994); Townsend v. Sain, 
    372 U.S. 293
     (1963). “A federal habeas court must hold an
    evidentiary hearing if there are disputed facts and the
    petitioner did not receive a full and fair hearing in a state
    court, either at trial or in a collateral proceeding. This
    standard applies equally to ineffective assistance of counsel
    claims.” Wiley v. Puckett, 
    969 F.2d 86
    , 98 (5th Cir. 1992)
    (citations omitted). Under the pre-AEDPA standard, we are
    satisfied that the prerequisites for an evidentiary hearing have
    been met.
    17
    We note that there has never been an evidentiary hearing
    in state or federal court on this or any issue in Lewis’s case.
    13
    capital case.   See 
    id.
        “Mitigating evidence unrelated to
    dangerousness may alter the jury’s selection of penalty, even if
    it does not undermine or rebut the prosecution’s death-
    eligibility case.” Id. at 1516.
    In evaluating whether there was “a reasonable probability
    that, but for counsel’s unprofessional errors, the result of the
    proceeding would have been different,” id. at 1502 (quoting
    Strickland, 
    466 U.S. at 694
    ), the Court looked “to the totality
    of the available mitigating evidence,” id. at 1515, and concluded
    that such “unprofessional service prejudiced Williams within the
    meaning of Strickland.”     Id.   We find the omitted evidence in
    Lewis is similar in degree and kind to (Terry) Williams and,
    consequently, that Lewis has alleged facts that demonstrate
    prejudice and, thus, if proven in an evidentiary hearing, may
    entitle him to relief.18
    However, as in our discussion on deficiency, our concern
    centers around the particular dilemma created by the Texas
    special issues statute.    In remanding this case, we charge the
    district court to determine under the then-existing Texas death
    penalty statute, and in light of (Terry) Williams, whether Lewis
    was prejudiced by counsel’s failure to adequately investigate and
    18
    We recognize that in (Terry) Williams, “prejudice” was
    found despite the existence of serious aggravating evidence,
    including several violent felony convictions and expert testimony
    that “Williams would pose a serious continuing threat to
    society.” (Terry) Williams, 
    120 S. Ct. at 1500
    .
    14
    present mitigating evidence in the punishment phase of his trial.
    Therefore, we GRANT Lewis’s petition for panel rehearing,
    VACATE section II.C of the panel opinion as to its discussion of
    the punishment phase ineffective assistance of counsel claims,
    VACATE the district court’s judgment insofar as it denied habeas
    relief on Lewis’s punishment phase ineffective assistance of
    counsel claims and REMAND to the district court with instructions
    to conduct a full evidentiary hearing solely on those claims.    In
    all other respects, we DENY the petition for panel rehearing.
    No member of the panel nor judge in regular active service
    of the court having requested that the court be polled on
    Rehearing En Banc (FED. R. APP. P. and 5TH CIR. R. 35), the Petition
    for Rehearing En Banc is DENIED.
    15