Goss v. Johnson ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10343
CORNELIUS A. GOSS,
Petitioner - Appellant,
VERSUS
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
(3:95-CV-51)
October 20, 1999
Before KING, Chief Judge, JOLLY and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:*
Petitioner Cornelius A. Goss, an inmate of the Texas
Department of Criminal Justice, seeks a certificate of
appealability from the district court’s refusal to grant him a writ
of habeas corpus. We grant COA and deny relief.
Goss was convicted of capital murder and sentenced to death by
lethal injection. The sentence was affirmed on direct appeal. See
Goss v. State, 826 S.W.2d 162 (Tex. Cr. App. 1992), cert. denied,
*
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this opinion should not be published and is not precedent except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.
509 U.S. 922, 113 S. Ct. 3035 (1993). His petition for habeas
corpus in state court was denied, and that denial was affirmed on
appeal. He subsequently filed a petition for habeas corpus in
federal district court, which was likewise denied. Goss only
challenges his death sentence -- he does not challenge the
underlying conviction -- so we need not repeat the details of the
murder.
We address each of Goss’ claims in turn.
I.
Goss contends that he had ineffective assistance of counsel at
trial, based on his lawyers’ failure to conduct an investigation
into his background or to have a mental health exam performed on
him, and based on their failure to examine the state’s star expert
witness on voir dire.
A two-pronged cause and prejudice test governs ineffective
assistance claims: “First, the defendant must show that counsel’s
performance was deficient. . . . Second, the defendant must show
that the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984). To
demonstrate “cause,” Goss must show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. To
establish “prejudice,” Goss must show “that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id.
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A.
Goss complains that his counsel rendered ineffective
assistance by failing to conduct a background investigation or a
mental health exam to uncover potentially mitigating evidence. He
claims that such an investigation should have been triggered by his
lawyers’ knowledge that he was intoxicated at the time of the
offense. He therefore reasons that a mental health exam was
necessary to determine whether his conduct was due to a substance
abuse disorder or a cognitive impairment. If his lawyers had made
such an investigation, Goss contends that his history of
psychoactive substance abuse would have been discovered, and the
state would not have been able to make the argument it did to the
jury: that there was no medical explanation for Goss’ offense.
If nothing alerted defense counsel to the potential for
mitigating evidence arising from a psychiatric examination, the
failure to obtain such an examination is not ineffective assistance
of counsel. See Wiley v. Puckett, 969 F.2d 86, 100 (5th Cir.
1992). A history of substance abuse alone is not sufficient to
trigger a duty to conduct such an examination. See id. To support
his claim that his lawyers should have known that an exam was
necessary, Goss points to the testimony of his defense expert Dr.
William R. Hester, Jr. Dr. Hester’s trial testimony did indeed
indicate that an examination of Goss for a possible mental
impairment was necessary. However, this comment was elicited at
trial during the course of an attempt to discredit an opinion of
the state’s expert witness, and the record contains no evidence
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indicating that counsel for Goss had the benefit of this particular
opinion prior to trial.
Furthermore, Goss was not prejudiced. The benefit of this
information would not have affected the defense theory at trial,
which was to dismiss the state’s evidence of Goss’ anti-social
personality as “psycho mumbo jumbo.” Since drugs were not related
to this offense, the reasons for Goss’ drug abuse would not have
affected sentencing.
In light of the lack of evidence that counsel had been alerted
before trial to information which should have prompted a full
mental exam, and considering counsel’s reasonable professional
decision to pursue a strategy of attacking the methodology used by
the state’s experts to reach conclusions about Goss’ future
dangerousness, we conclude that the failure to conduct such an exam
was not objectively unreasonable.
B.
Goss also complains of his counsel’s failure to object to the
trial court’s refusal to allow voir dire of the state’s expert, Dr.
Sigel, who testified that a hypothetical person with Goss’ history
would suffer from “long term chronic anti-social personality” which
is untreatable and cannot improve with age. Dr. Sigel opined that
such a person “will commit further acts of violence.” Although
defense counsel had been led to believe that voir dire would be
permitted outside the presence of the jury as permitted by Tex. R.
Crim. Evid. 705(e), the trial court reversed its position at the
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time the state called its expert. Counsel failed to object despite
the fact that Texas law clearly provides the right to conduct a
voir dire examination in this circumstance. Goss contends that he
was prejudiced because after the right to voir dire was lost, his
counsel could not have effectively cross-examined the expert.
The district court ruled that Goss had not demonstrated that
the state court’s failure to follow Tex. R. Crim. Evid. 705(e)
constituted a violation of due process or equal protection, and
concluded that a writ of habeas corpus should not issue to remedy
a failure to take advantage of a state rule of procedure. For the
purposes of the ineffective assistance claim, however, it matters
not that the underlying attorney conduct related to state
procedures which are not constitutionally mandated. The right to
effective counsel itself is a right assured by the Constitution,
see U.S. Const. amends. VI & XIV; see also Powell v. Alabama, 287
U.S. 45, 57, 53 S. Ct. 55, 59-60 (1932), and the failure to provide
effective assistance of counsel, albeit with respect to the
competent use of state procedure, can be remedied by a writ of
habeas corpus from a federal court.
Still, even were we to assume arguendo that the failure to
enter a contemporaneous objection constituted a deprivation of
counsel for the purpose of the Sixth and Fourteenth Amendments, the
writ cannot issue because Goss was not prejudiced. Despite the
lack of voir dire, Dr. Sigel was vigorously cross-examined by Goss’
attorney. Moreover, Dr. Sigel’s conclusions were directly attacked
by two defense experts. We conclude that the opportunity to
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conduct a voir dire examination of Dr. Sigel outside the presence
of the jury before cross-examination did not significantly affect
the ability of Goss’ lawyer to conduct a cross-examination. Any
doubts concerning the basis for Dr. Sigel’s opinion could be
clarified on cross-examination just as easily as on voir dire. We
thus conclude that Goss was not prejudiced because a voir dire
examination of Dr. Sigel likely would not have altered the result
of the sentencing proceeding.
II.
Goss argues that the trial court’s disallowance of a voir dire
examination of Dr. Sigel caused his trial to be fundamentally
unfair and thereby violated his right to due process. Here, we may
rest on procedural default. As previously noted, counsel for Goss
failed to make a contemporaneous objection. A contemporaneous
objection is required for the preservation of error in Texas
courts, see Tex. R. App. P. 33.1, and the rule is well-established
and consistently applied. See Hogue v. Johnson, 131 F.3d 466, 487
(5th Cir. 1997), cert. denied, 118 S. Ct. 1297 (1998). Having
waived his objection by failing to make it at trial, Goss must
demonstrate cause and prejudice to overcome his procedural default.
See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S. Ct. 2497, 2506
(1977); see generally 17A Charles Alan Wright et al., Federal
Practice and Procedure § 4266.1 (2d ed. 1988). The only reason
given by Goss for his failure to object, mistake by counsel, does
not constitute cause unless it rises to the level of ineffective
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assistance of counsel. See Murray v. Carrier, 477 U.S. 478, 486-
88, 106 S. Ct. 2639, 2644-45 (1986). We have already rejected that
possibility, see supra Part II. Additionally, as already noted,
see id., Goss was not prejudiced by his lawyer’s inability to
conduct the voir dire examination.
III.
In Texas, the capital sentencing procedure requires jurors to
determine “whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society.” Tex. Code Crim. Proc. art. 37.071, § 2(b)(1)
(Vernon 1981). The jury answered this special issue in the
affirmative. Goss challenges his sentence based on the trial
judge’s failure to instruct the jury about the meaning of the term
“criminal acts of violence” and based on the sufficiency of the
evidence to support the jury’s verdict.
A.
First, we consider the trial judge’s failure to define
“criminal acts of violence.” During the jury voir dire, most of
the eventual jury members were told by the presiding judge that
“criminal acts of violence” are “crimes against persons, or crimes
against property involving violence to persons.” A different judge
presided over Goss’ trial, and over objections by the defense he
declined to instruct the jury about the meaning of the phrase.
During deliberations, the jury sent the judge a handwritten note
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which asked whether “criminal acts of violence” are “against
property or persons or both.” The jury also asked for “a copy of
the legal definition of ‘criminal act of violence.’” The judge
declined to provide the requested definition.
Goss contends that “criminal acts of violence” should have
been defined due to the confusion that was caused when some but not
all jurors heard a definition early in the proceedings. According
to Goss, the mid-deliberation handwritten note demonstrates juror
confusion on this issue, and the trial judge erred by refusing to
provide a definition.
The district court concluded that this complaint is barred by
the rule in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989),
and we agree. Under Teague, a federal court is powerless to grant
habeas relief based on a “new rule” of constitutional law. On June
28, 1993, the date the Supreme Court denied certiorari in the
direct appeal of Goss’ conviction, the law in Texas plainly
provided that the failure to define “criminal acts of violence” was
not error. See, e.g., James v. Collins, 987 F.2d 1116, 1119-20
(5th Cir. 1993). To rule otherwise now would require the
application of a “new rule.” Neither of the narrow Teague
exceptions applies, so we cannot grant relief based on the failure
of the trial court to provide the jury a definition of “criminal
acts of violence.”
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B.
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Goss also challenges the sufficiency of the evidence to
support the jury’s verdict on this special issue. We need not
reach the merits of the argument because Goss failed to pursue the
issue on direct appeal. The state habeas court denied the writ,
reasoning that Goss confronts a procedural bar because Texas does
not permit collateral challenges to sufficiency of the evidence;
such claims must be asserted in a direct appeal. The district
court likewise denied the writ based on the state court’s
disposition on that independent and adequate state procedural
ground.
We tend to agree, but we base our decision on even simpler
principles concerning waiver. The Supreme Court recently ruled:
Before a federal court may grant habeas relief to a
state prisoner, the prisoner must exhaust his
remedies in state court. In other words, the state
prisoner must give the state courts an opportunity
to act on his claims before he presents those
claims to a federal court in a habeas petition.
. . . .
Because the exhaustion doctrine is designed to
give the state courts a full and fair opportunity
to resolve federal constitutional claims before
those claims are presented to the federal
courts . . . state prisoners must give the state
courts one full opportunity to resolve any
constitutional issues by invoking one complete
round of the State’s established appellate review
process.
O’Sullivan v. Boerckel, 119 S. Ct. 1728, 1731 (1999). According to
a well-established and consistently applied rule, the appellate
review process in Texas requires challenges to sufficiency of the
evidence to be raised on direct appeal, not in collateral
proceedings. See, e.g., Ex parte Brown, 757 S.W.2d 367, 368 (Tex.
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Cr. App. 1988); Ex parte Williams, 703 S.W.2d 674, 677 (Tex. Cr.
App. 1986) (“It has long been the general rule that the sufficiency
of the evidence cannot be attacked collaterally.”); Ex parte McKay,
199 S.W. 637, 639 (Tex. Cr. App. 1917) (“It is a general and
well-established rule that, when a court has jurisdiction to enter
a particular order or render a given judgment, and in the exercise
of this jurisdiction enters an order or judgment regular on its
face, its validity is conclusively presumed unless set aside or
annulled in a direct proceeding.”); cf. Sutherland v. De Leon, 1
Tex. 250 (1846) (“We are not now, however, to inquire into the
irregularities of the judgment on the attachment; if not void, it
cannot be treated as a nullity, although error may be very apparent
on the record; until reversed, it is conclusive of the
subject-matter, unless successfully impeached for fraud.”). Goss
has failed to do so, and the opportunity to raise this complaint on
direct review is long passed. Thus Goss’ failure to present this
error to the Texas Court of Criminal Appeals on direct appeal and
in a timely fashion has resulted in a procedural default of those
claims. See Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S. Ct.
2546, 2555 (1991); Engle v. Isaac, 456 U.S. 107, 125-26 n.28, 102
S. Ct. 1558, 1571 n.28 (1982).
IV.
Goss contends that he is entitled to relief based on the
prosecution’s violation of the rule in Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194 (1963), requiring the disclosure of exculpatory
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evidence to the defense. He contends that the prosecution failed
to disclose the identity of a taxi driver hired by Goss after the
murder, and the fact that it had promised to dismiss charges
against one of the witnesses in exchange for her testimony.
Goss contends that the taxi driver may have testified that he
(Goss) was intoxicated immediately after the crime, thereby
negating the mens rea element of the crime. But there is no
evidence in the record to suggest that the taxi driver observed
Goss to be intoxicated. Thus no Brady relief is available because
Goss has not shown that the evidence is material, i.e., that “there
is a reasonable likelihood that the testimony could have affected
the judgment of the trier of fact.” United States v. Bagley, 473
U.S. 667, 681-82, 105 S. Ct. 3375, 3383 (1985).
Goss also contends that the prosecution suppressed the fact
that criminal charges against one of the state’s witnesses were
dropped in exchange for testimony. The state habeas court
determined that there was no such deal. That factual finding is
presumed to be correct. See 28 U.S.C. § 2254(d)(2). Goss points
to no evidence which overcomes this presumption, and we are
therefore powerless to grant relief.
V.
Finally, relying on various newspaper articles and statistics,
Goss complains that he was the victim of racially discriminatory
prosecution policies at the Dallas County District Attorney’s
Office. He makes no effort to prove purposeful discrimination
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against him or a discriminatory effect on him, as are required to
make such a claim under McClesky v. Kemp, 481 U.S. 279, 292, 107 S.
Ct. 1756, 1766 (1987). In light of this fundamental failing, we
cannot grant relief.
VI.
We grant the certificate of appealability requested by Goss.
For the aforementioned reasons, we affirm the district court’s
denial of the writ, largely for the same reasons expressed by the
district court.
AFFIRMED.
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