Doughtie v. Johnson ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40366
Jeffrey Carlton Doughtie,
Petitioner-Appellant,
v.
Gary Johnson, Director,
Texas Department of Criminal Justice
Respondent-Appellee,
Appeal from the United States District Court for the
Southern District of Texas
(98-CV-152)
November 14, 2000
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Jeffrey Carlton Doughtie seeks a certificate of
appealability (COA) to challenge the district court’s denial of his
petition for habeas corpus relief from a capital murder conviction
and sentence. Finding no error in the district court’s ruling on
the issues Doughtie raises, we deny COA.
*
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opinion should not be published and is not precedent except under the limited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.
On August 2, 1993 Doughtie entered Golden Antiques, a
Corpus Christi shop owned by Sylvia and Jerry Dean, an elderly
married couple. Doughtie had worked for the Deans. He requested
money for a bus ticket to San Antonio. When Sylvia Dean refused to
give it to him, Doughtie grabbed a vase and left the store with it.
After walking a few blocks, Doughtie picked up a piece of metal
tubing and went back to Golden Antiques. Mrs. Dean told him that
she had called the police. Doughtie attacked the Deans and beat
them to death with the metal tubing. Doughtie was convicted of the
1993 bludgeoning murders of Jerry and Sylvia Dean by the state
court in Nueces, County, Texas. Based on the jury’s answers to the
special issues submitted pursuant to Texas Code of Criminal
Procedure Article 37.0711, Doughtie was sentenced to death.
Doughtie’s convictions and sentence were affirmed on direct appeal
by the Texas Court of Criminal Appeals. Doughtie then applied for
and was denied a post-conviction writ of habeas corpus at the state
level. Having exhausted his state remedies, Doughtie applied for
a federal writ of habeas corpus. The federal district court denied
relief and refused to issue a COA. Doughtie now seeks a COA from
this court.
In order to obtain appellate review of the district
court’s judgment denying his petition, Doughtie must receive a
certificate of appealability (“COA”) from this court. 28 U.S.C. §
2253(c)(1)(A); Fed. R. App. P. 22(b). The standard we apply to
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determine a COA application is whether a petitioner “has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 120 S.Ct. 1595, 1603
(2000). The petitioner need not prove that he should prevail on
the merits, but rather he must demonstrate that the issues “are
debatable among jurists of reason; . . . a court could resolve the
issues in a different manner; or . . . the questions are adequate
to deserve encouragement to proceed further.” Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983); Miller v. Johnson, 200 F.3d 274, 280
(5th Cir. 2000), petition for cert. filed, No. 99-9891 (April 3,
2000).
In a capital case, “the severity of the penalty does not
in itself suffice to warrant the automatic issuing of a
certificate,” although the court may properly consider the nature
of the penalty in deciding whether to allow an appeal. Barefoot,
463 U.S. at 893; Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir.),
cert. denied, 120 S.Ct. 522 (1999). However, “[a]ny doubts as to
whether the COA should issue are to be resolved in the petitioner’s
favor.” Penry v. Johnson, 215 F.3d 504 (5th Cir. 2000).
I. Ineffective Counsel
Doughtie’s argument that he was denied effective
assistance of counsel at the punishment phase of his trial is based
on his lawyer’s decision not to introduce certain evidence of
3
Doughtie’s remorse and of his voluntary but unsuccessful efforts to
gain admittance to an in-patient drug rehabilitation facility prior
to the murders. The standard for ineffective assistance of counsel
is well-established: Doughtie must prove that (1) his counsel’s
representation was deficient, and (2) the deficient performance was
so serious that it prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1989).
Doughtie had confessed his crimes to a local television
reporter, Dave Johnson, during a recorded pre-trial interview from
prison. Doughtie also expressed remorse for his crimes during this
interview. At the guilt-innocence phase of Doughtie’s trial, the
State called Mr. Johnson to testify about the portion of the
interview in which Doughtie confessed to the murders. In response,
Doughtie’s lawyer sought to introduce taped portions of the
interview in which Doughtie discussed his remorse for the killings
and his unsuccessful pre-murder attempt to enter an in-patient drug
treatment center. The trial court ruled that these portions of the
interview were inadmissible hearsay. Defense counsel did enter a
bill of exception concerning these allegedly mitigating statements,
but counsel did not attempt to reintroduce this inadmissible
hearsay evidence during the punishment stage of the trial.
Doughtie now argues that this failure to attempt to
reintroduce the potentially mitigating portions of the Johnson
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interview at the punishment phase of the trial amounts to
constitutionally ineffective assistance of counsel. Doughtie’s
argument is based on a comment made by Judge Joaquin Villareal, the
state trial judge, in ruling that the potentially mitigating
excerpts from the TV interview were inadmissible hearsay:
I think I would allow it if some live person, either your
client [Doughtie] or Johnson [the reporter], to come in,
but I’m still having a problem with Johnson speaking
about remorse and stuff like that. . . . Let me put it
this way: Those three lines [the allegedly mitigating
portions of the interview], questions and answer on pages
two, three, and six, I would allow your client to
testify to. Or if you wish to use them for punishment,
then Johnson could testify to that. And that’s it.
That’s the ruling as imperfect as it may be.
Trial Record, Guilt or Innocence Phase, Vol. XVI/XXI at 387. From
this statement, Doughtie concludes that the interview excerpts in
which he expresses remorse were hearsay for the guilt/innocence
phase of the trial but admissible as mitigating evidence during the
punishment phase. However, when Doughtie’s bill of exception was
discussed at the punishment stage, Judge Villareal clarified his
hearsay ruling regarding this evidence:
“It was the Court’s opinion that everything in the
[interview] tape is hearsay. The Court agrees that part
of the things included in the tape could be testified to
by the defendant [Doughtie] if he ever were to take the
stand, but the [contents of the tape alone] are not
appropriate because of -- the state would be deprived of
cross-examination of the witness.”
5
Trial Record, Punishment phase, Vol. XIX/XXI at 423-24. Thus,
Judge Villareal’s ultimate ruling on this potentially mitigating
interview evidence was that it is inadmissible hearsay.
The accuracy of this ruling is irrelevant for federal
habeas purposes, since a state trial court’s evidentiary ruling
cannot be challenged by federal habeas petition. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a
federal habeas court to reexamine state court determinations on
state-law issues.”). The federal district court correctly reasoned
that Doughtie’s federal habeas claim “ignores the fact that the
trial court determined that the statements were inadmissable
hearsay.”
Moreover, a trial counsel’s failure to attempt to
introduce inadmissible evidence does not rise to the level of
constitutionally deficient performance. See Robinson v. Johnson,
151 F.3d 256, 260-61 (5th Cir. 1998), cert. denied, 119 S. Ct. 1578(1999); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (counsel
is not constitutionally required to make futile motions or
objections). It would have been futile to attempt to reintroduce
evidence that Judge Villareal had already determined to be
inadmissible.
Doughtie asserts that his attorney’s failure to call him
personally to the stand to express his remorse amounted to
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ineffective assistance of counsel. Doughtie did not raise this
issue with the district court and may not raise it for the first
time on appeal. Doughtie’s Petition for Writ of Habeas Corpus
discusses his desire to testify about his efforts to find in-
patient drug rehabilitation, but not his desire to testify as to
his remorse. In any event, even if Doughtie’s counsel was
deficient in not calling him to testify about his remorse, Doughtie
would still be unable to satisfy the second prong of the Strickland
test. Given the brutality of his crimes and his record of
committing other violent offenses,2 a simple statement of remorse
would have been unlikely to affect a reasonable jury’s decision as
to his sentence. Thus, Doughtie suffered no prejudice as a
result of his counsel’s allegedly deficient performance. See
Strickland, 466 U.S. at 687.
Doughtie also asserts that his lawyer was deficient in
failing to introduce evidence that prior to committing the murders
Doughtie wanted to be placed in a “secure, in-patient” facility for
drug addicts. Doughtie believes that such evidence would have
2
In addition to the awful facts of the Dean murders themselves, the
State presented evidence at the punishment stage of the trial that: 1) Doughtie
had received prior convictions for forgery by passing and furnishing a controlled
substance to a prisoner; 2)he participated in an armed robbery of Mac’s Liquor
Store on August 16, 1993 and threatened to kill the clerk; 3)he committed armed
robbery at the Golden Sand Dollar store on August 24, 1993 and threatened to kill
the cashier; 4) he committed a burglary of a habitation; and 5) Doughtie
committed another, unrelated capital murder by a combination of bludgeoning and
strangulation.
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convinced the jury to reduce his punishment from death to life in
prison.
First, the portions of the Dave Johnson interview
pertaining to Doughtie’s desire for in-patient drug treatment were
determined by the state trial court to be inadmissible hearsay. As
discussed above, state evidentiary issues are not cognizable during
federal habeas review. See Estelle, 502 U.S. at 67-68. Counsel is
not obliged to make futile efforts to introduce inadmissible
evidence. See Robinson 151 F.3d at 260-61.
Second, Doughtie’s defense counsel was not deficient in
not calling Doughtie himself3 and/or drug counselor Patrick McGrew
to testify regarding Doughtie’s desire for in-patient drug
rehabilitation. It should be pointed out that Doughtie never
actually received in-patient drug rehabilitation; rather, he
merely expressed a desire to undergo such treatment. Doughtie
claims that this mere expression of desire--unaccompanied by any
affirmative steps to secure such care--is by itself mitigating
evidence sufficient to persuade a reasonable jury to opt for a
prison term instead of the death penalty. This argument is tenuous
at best, given the brutality of the Dean murders and Doughtie’s
history of violent crime.
3
We are bound by the state habeas court’s finding that Doughtie’s
attorneys did not prevent him from testifying, and he chose not to testify in his
own behalf.
8
Doughtie did in fact present evidence of his drug
addiction, and his counsel attempted to characterize Doughtie’s
attack on the Deans as a result of his drug use. The jury found no
mitigating value in this. It is therefore unlikely that they would
have found any additional mitigating value in Doughtie’s
recognition of his drug problem and subsequent failure to get
proper treatment for it. Indeed, Doughtie’s awareness of his
problem and evident understanding that in the absence of treatment
he was a danger to society could easily have been taken by the jury
as an aggravating, not mitigating, factor. The case thus mirrors
this court’s recognition that evidence of drug or alcohol abuse
tends to be “double-edged,” or potentially more harmful than
helpful to the defendant. Williams v. Cain, 125 F.3d 269, 278 (5th
Cir. 1998). Ineffective assistance of counsel claims based on the
failure to present allegedly mitigating evidence which is actually
“double edged” in nature are groundless. See Boyle v. Johnson, 93
F.3d 180, 187-88 (5th Cir. 1996); West v. Johnson, 92 F.3d 1385,
1410 (5th Cir. 1996); Woods v. Johnson, 75 F.3d 1017, 1035 (5th
Cir. 1996). Doughtie has not persuaded us otherwise.
Finally, even if the evidence of Doughtie’s efforts to
seek rehabilitation was not “double-edged,” counsel’s failure to
present this evidence would not rise to the level of a
constitutional violation under the second prong of Strickland:
9
Doughtie was not prejudiced by his attorney’s failure to introduce
this exceptionally weak mitigating evidence. See Strickland, 466
U.S. at 687. Given the brutality of the murders and Doughtie’s
numerous prior violent offenses, the mitigating evidence Doughtie
sought to introduce would not have swayed a reasonable jury away
from imposing the death penalty.
II. Evidentiary Hearing
Doughtie complains of the federal district court’s
failure to grant him an evidentiary hearing on his claims of
ineffective assistance of counsel. At this proposed evidentiary
hearing, Doughtie intended to present the allegedly mitigating
evidence of his remorse and attempt to enter a drug rehabilitation
center.
In the wake of the Antiterrorism and Effective Death
Penalty Act (AEDPA), we review the district court’s decision not
to grant an evidentiary hearing under an abuse of discretion
standard if the statutory minimum criteria for a hearing have been
met. See Rules Governing § 2254 Cases, Rule 8, 28 U.S.C.A. foll.
§ 2254; see also Clark v. Johnson, 202 F.3d 760, 766 (5th Cir.
2000); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998).
The statute permits a hearing where the petitioner has failed to
develop the factual basis for a claim if:
the claim relies on a new rule or constitutional law,
made retroactive to cases on collateral review by the
10
Supreme Court, that was previously unavailable; or a
factual predicate that could not have been previously
discovered through the exercise of due diligence; and the
facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
the constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2254(e)(2). The statutory exceptions apply only where
the failure to develop the factual basis is directly attributable
to the decision or omission of the petitioner. McDonald, id. To
find that the federal district court abused its discretion, it is
necessary to conclude that (1) the state habeas courts did not
provide Doughtie with a “full and fair hearing,” and (2) if
Doughtie’s allegations regarding the deficient performance of his
counsel were proven true, he would be entitled to relief. See
Clark, 202 F.3d at 766; Moawad v. Anderson, 143 F.3d 942, 947-48
(5th Cir. 1998), cert. denied, 525 U.S. 952 (1998).
The statute affords Doughtie no basis for a federal
evidentiary hearing. There is no requirement for either state or
federal habeas courts to conduct a “hearing” with live testimony.
Jackson, 150 F.3d 520, 523-24 (5th Cir. 1998). A paper hearing is
sufficient, particularly if, as here, the state trial and habeas
courts were one and the same. Clark v. Johnson, 202 F.3d at 766.
As Doughtie’s hearing opportunity in the state courts was adequate,
the statutory criteria for a federal evidentiary hearing were not
11
met. The district court correctly applied AEDPA in its handling of
the evidentiary hearing issue.
III. Texas Capital Punishment Statutes
Doughtie’s final ground for appeal is the oft-made and
consistently rejected argument that the Texas capital murder
statutes and the death penalty provisions thereof (Tex. Penal Code
§ 19.03 and T.C.C.P. Art. 37.071) are unconstitutional. Doughtie
breaks no new ground in his constitutional attack on the Texas
death sentencing scheme, asserting that (1) a finding of future
dangerousness on the first special issue jury question may be based
solely on the circumstances of the capital offense itself; (2) the
burden of proof on the mitigation special issue is not placed upon
the State; and (3) the jury’s answers to the special issue
questions are not subject to meaningful appellate review.
Doughtie’s arguments run contrary to clearly established
precedents. See Jurek v. Texas, 428 U.S. 262, 268-71 (1976)
(plurality opinion); Lowenfield v. Phelps, 484 U.S. 231, 244-45
(1988) (discussing the “narrowing function” of the Texas penal
statute). The district court’s order denying habeas corpus fully
refutes this standard “throw in” constitutional argument.
Because reasonable jurists could not disagree over
whether Doughtie has shown ineffective assistance of counsel, any
error by the district court in denying an evidentiary hearing, or
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a constitutional violation in the Texas capital murder statutes,
there is no basis for granting a COA.
Certificate of Appealability DENIED.
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