Knight v. Quarterman , 186 F. App'x 518 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 30, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-70042
_____________________
PATRICK BRYAN KNIGHT,
Petitioner - Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Amarillo
USDC No. 2:99-CV-00085
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:1
Patrick Bryan Knight (“Knight”) was convicted of capital
murder and sentenced to death for the 1991 murders of Walter and
Mary Ann Werner. This court granted a certificate of appealability
(“COA”) authorizing Knight to appeal the district court’s denial of
habeas relief on his Brady and ineffective assistance of counsel
claims. We AFFIRM.
1
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this opinion should not be published and is not precedent except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.
I
Knight and a companion, Robert Bradfield, broke into the home
of Knight’s neighbors, Walter and Mary Ann Werner, on Monday
morning, August 26, 1991, after the Werners had left for work.
When the Werners came back home that evening, Knight and Bradfield
locked them in the basement of their home. The Werners were held
captive in their basement that night and the next day, during which
Knight and Bradfield drove around in the Werners’ vehicles. Around
midnight on Tuesday, Knight bound, gagged, and blindfolded the
couple, forced them into their own van, and drove them to a
location in the country about four miles away from their home. He
made them get out of the van and kneel, and then he shot each of
them in the back of the head, execution-style. He dragged their
bodies into a ditch on the side of the road and returned to his
trailer house and went to sleep.
During their investigation into the Werners’ disappearance,
law enforcement officers questioned Knight, who lived in a trailer
house next door to the Werners’ home. Although Knight initially
denied involvement, he eventually confessed and led the officers to
the location of the victims’ bodies. Knight was incarcerated in
the Randall County Jail from the time of his arrest in 1991 until
he was moved to death row in 1993. Deputy Sheriff Cindy Risley,
one of Knight’s jailers, developed a personal relationship with
Knight, who began calling Risley “Mom”.
2
At the punishment phase of the trial, the State presented the
following evidence: Knight was on probation for the burglary of a
grocery store at the time of the murders. He had stolen money from
a convenience store cash register while the clerk was away from the
register. On the day of the murders, Knight went to Ted Ramirez’s
home and threatened to kill him. He also went to Deborah Martin’s
home that day and told her he would “get” her and her boyfriend for
accusing him of stealing. Knight told other inmates that he
planned to avoid prison by pretending that he was insane when he
killed the Werners, and he asked them for advice on what kind of
statements and behavior could result in a diagnosis of insanity.
He had problems getting along with other inmates in the jail and
threatened to kill his cellmates with a shank made from a coat-
hanger. He hid razor blades, scissors, sharpened paper clips, and
rope in his cell, and kept contraband cleaning powder in a baby
powder container in his cell. A jury list was found in his cell.
He threatened to kill himself and others rather than be sent to
prison. He staged a suicide attempt while in jail. Because of
these incidents, he was kept isolated in a single cell for almost
the entire two years he was in jail prior to trial.
Knight’s counsel did not call any witnesses at the punishment
phase. However, they elicited the following mitigating evidence
through cross-examination of the State’s witnesses: Although the
State’s witnesses were aware of verbal threats by Knight, none of
them had observed Knight commit any violent acts against anyone
3
else; Knight did not threaten to injure his cellmates at the county
jail with the shank, but instead intended to harm himself with it;
Knight did not injure any of his cellmates; prior to his arrest, no
one had observed Knight in possession of a weapon; Knight’s prior
crimes did not involve physical harm to anyone; Knight had
cooperated with the police; Knight had a history of alcohol abuse;
and the district clerk had given Knight a copy of the jury list
pursuant to state law. In closing argument, defense counsel also
noted Knight’s young age (23) at the time of the murders.
Knight was convicted of capital murder and sentenced to death.
His conviction and sentence were affirmed on direct appeal. Knight
v. State, Cause No. 71,795 (Tex. Crim. App. March 6, 1996)
(unpublished). Knight did not file a petition for a writ of
certiorari.
The state habeas court denied Knight’s request for an
evidentiary hearing and denied his application for state habeas
relief. The Texas Court of Criminal Appeals adopted the trial
court’s findings and conclusions and denied relief. Ex parte
Knight, No. 40,236-01 (Tex. Crim. App. March 10, 1999)
(unpublished).
Knight filed a preliminary federal habeas petition in March
1999, and an amended petition in May 1999. The magistrate judge
held an evidentiary hearing and recommended that relief be denied.2
2
The magistrate judge stated that the federal evidentiary
hearing was conducted, in large part, because of Knight’s
4
The district court overruled Knight’s objections and adopted the
magistrate judge’s recommendation. The district court denied
Knight’s request for a COA.
Knight requested a COA from this court to appeal the denial of
relief as to four claims. Based on our “threshold inquiry”,
consisting of “an overview of the claims in the habeas petition and
a general assessment of their merits,” Miller-El v. Cockrell, 537
U.S. 322, 327, 336 (2003), this court granted a COA for three of
the four claims: (1) whether Knight’s right to due process was
violated by the prosecution’s suppression of mitigating evidence on
future dangerousness; (2) whether Knight’s trial counsel rendered
ineffective assistance at both phases of his trial by failing to
adequately investigate and present evidence of Knight’s mental
condition and other mitigating circumstances; and (3) whether
Knight’s rights were violated when the trial judge granted the
State’s challenge for cause and excluded a prospective juror.
The parties were given an opportunity to file supplemental
briefs with respect to the merits of the claims for which a COA was
granted. Both parties declined, stating that they had nothing to
add to the briefs on the COA application. Having considered the
arguments of counsel and based on our review of the record of the
allegations that he was unable to present Deputy Risley’s testimony
and/or statements to the federal habeas court because of
interference by law enforcement. The State does not argue that the
federal evidentiary hearing was inappropriate or that the evidence
presented at the hearing is unexhausted.
5
state court trial, and the state and federal habeas proceedings, we
conclude that the state court’s decision to deny relief on these
claims is not based on an unreasonable determination of the facts
in the light of the evidence presented, and is neither contrary to,
or an unreasonable application of clearly established federal law.
We therefore AFFIRM the district court’s denial of federal habeas
relief, for the reasons that follow.
II
Knight is not entitled to federal habeas relief on his claims
unless the state court’s adjudication of the claims
(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). The state court’s factual determinations
“shall be presumed to be correct”, and the petitioner “shall have
the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
III
A
Knight claims that the prosecution, which he argues included
Deputy Risley as a member of its team, violated his right to due
process by suppressing her mitigating evidence on future
6
dangerousness. This claim is reviewed under the clearly
established law of Brady v. Maryland, 373 U.S. 83 (1963). “The Due
Process Clause of the Fourteenth Amendment requires prosecutors to
disclose to a defendant, on request, any evidence which is
favorable and material to the issue of guilt or punishment.”
Titsworth v. Dretke, 401 F.3d 301, 306 (5th Cir. 2005). “This
disclosure requirement imposes a duty to learn of any favorable
evidence known to the others acting on the government’s behalf in
the case, including the police.” Id. (internal quotations
omitted). To establish a Brady claim, the petitioner must
demonstrate: “(1) the prosecutor suppressed evidence, (2)
favorable to the defense, and (3) material to guilt or punishment.”
Pippin v. Dretke, 434 F.3d 782, 789 (5th Cir. 2005) (citing Brady,
373 U.S. at 87). “The suppressed evidence is material if there is
‘a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different.’” Id. (quoting United States v. Bagley, 473 U.S. 667,
682 (1985)). However, “[t]he State has no obligation to point the
defense toward potentially exculpatory evidence when that evidence
is either in the possession of the defendant or can be discovered
by exercising due diligence.” Id. (quoting Rector v. Johnson, 120
F.3d 551, 558-59 (5th Cir. 1997)).
B
Knight asserts that Deputy Cindy Risley was aware of, and
could have testified, that he was emotionally disturbed and needed
7
treatment; that his family abandoned him at an early age and he had
no support from anyone while awaiting trial; that he was a loner,
housed in a seclusion cell, but she was not afraid of him; that he
was not dangerous in all situations, but existed well within a
structured environment; that she spoke with him about the murders
and observed his remorse; that he did not intend to use the weapons
found in his cell, but made and hid them because he was bored; that
he showed her the weapons, allowing her to take credit for finding
them; that he was obsessive about keeping his cell clean; that he
tried to protect his jailers; that he told her that his co-
defendant, Bradfield, had participated in the murders, but that he
was going to take the blame for Bradfield because he did not think
that Bradfield or his family could handle the death penalty; that
Bradfield was violent and had stabbed one inmate in the jail and
had broken another inmate’s ribs; and that, in her opinion, Knight
would not be violent in the future if he received a life sentence.
Knight contends that, even though Risley did not express her
opinions about Knight to anyone, her opinions were nevertheless
suppressed by the State because Risley was employed as a law
enforcement officer by the county that prosecuted him and was,
therefore, a member of the prosecution team. He contends that the
suppressed evidence is material because it provided alternative and
reasonable explanations for the same evidence that the prosecution
relied on to obtain a death sentence.
8
It should be noted that Risley was in fact called as a witness
for the State at the punishment phase of Knight’s trial. She
testified that she had been a Deputy Jailer for the Randall County
Sheriff’s Department for sixteen months, and had seen Knight
regularly during that entire time. According to Risley, the inmates
viewed her as a mother figure and a lot of them called her
“Mother”. She testified that Knight has a violent temper, but that
she was not really scared of him when he was mad because there was
a thick metal wall between them. However, if the wall was not
there, she testified that she would be afraid of him if he was mad.
She testified that Knight had never threatened her. She testified
further that she had found various contraband items in his cell,
including a screwdriver that he was making into a shank during the
week of jury selection, razor blades, sharpened paper clips,
medication, a rope, and a baby powder container containing Comet
cleanser. She also found in his cell a jury list with Knight’s
handwritten notations, and a drawing of a cartoon character with
the name “Mary Werner” written beside it. On cross-examination,
Risley testified that she was aware that the law required the
district clerk to give capital murder defendants a list of
prospective jurors, and that there was nothing threatening written
on the jury list. She also testified that Knight had not made any
violent use of the screwdriver or sharpened paper clips, and no
violent use of the razor blades, other than hurting himself. She
testified that she “got along fine” with Knight.
9
C
In support of his state habeas application, however, Knight
submitted Risley’s unsigned affidavit, along with an affidavit of
habeas counsel explaining that Risley refused to sign the
affidavit. In rejecting Knight’s Brady claim, the state habeas
court made the following findings of fact and conclusions of law:
[Findings of Fact]
2. The court finds that the affidavit of
Cindy Risley, a jailer with the Randall County
Jail in Canyon, Texas, attached to Applicant’s
writ, is not signed nor sworn to.
3. The court finds that, assuming the
Risley affidavit is competent evidence, Cindy
Risley might possibly have testified to
certain conclusions and impressions based
entirely on her conversations with Applicant
while incarcerated in the Randall County Jail
awaiting trial on his capital murder charges
and her observations of him as an inmate in
the jail. Her testimony might have included
opinions such that Applicant was lonely and
bored. She might also have testified that
Applicant was “abandoned” by his family and
that, as a consequence, he had no family
support. Risley might have testified that
Applicant told her that he was accepting
responsibility for killing both victims, even
though his co-defendant had killed one of the
two named victims, since the co-defendant’s
family “couldn’t handle the death penalty.”
Risley might have testified to Applicant’s
loss of control and manifestations of rage and
anger while housed as an inmate in the Randall
County Jail but that she believed such
exhibitions to be an “act.” She also might
have testified that Applicant made and stored
illegal weapons in jail out of boredom and
that “discovering” these weapons and turning
them over to jail personnel would have
afforded him some form of “credit” in the eyes
of the jailers.
10
....
5. The court finds that Cindy Risley was
fully available for pre-trial interview with
Applicant’s lawyers. The court finds no
evidence in the record to suggest that Risley
was prevented from communicating with
Applicant’s lawyers or instructed not to do so
with the defense team. The court further
finds that the totality of Risley’s opinions,
beliefs and observations were based entirely
on her dealings with Applicant as an inmate in
the Randall County Jail and on her
conversations solely with Applicant while he
was incarcerated.
6. The court finds that those matters
described within the unsigned Risley affidavit
having to do with her feelings, beliefs,
observations and opinions was information not
in exclusive possession of law enforcement or
the prosecution. The court further finds that
this information was fully available to the
defense, by way of full and complete
interviews with Risley or candid exchange
between Applicant and his lawyers.
....
[Conclusions of Law]
7. The court finds that the source of
information allegedly possessed by Cindy
Risley was Applicant himself and that the
circumstances Risley could have testified to -
his alienation from his family, his need for
attention and approval from jail personnel,
his motivations behind the production of
homemade weapons, his disclosure of same to
the jailers and his apparent lack of violent
tendencies when in Risley’s company - were
known to Applicant and thus were known to his
lawyers and defense staff as well. The rule
of Brady v. Maryland, supra, and its progeny
does not apply to situations where the
information or evidence in question was known
to the defense.... Thus, the prosecution did
not violate its duty to disclose favorable
evidence to the defense in this case when the
11
evidence about Applicant’s tendencies and his
platonic relationship with Risley was already
available and vicariously known to the
defense....
8. Because the record is barren of any
evidence tending to show that the State
possessed exclusive rights to this evidence or
that it was suppressed or otherwise withheld
from Applicant, his discussion of what Risley
could have testified to constitutes a post-
conviction bill of exception, a procedure
which does not comport with the
contemporaneous objection rule....
9. Moreover, even if one were to assume
arguendo that the prosecution had failed to
disclose evidence from Risley which was
favorable in terms of Brady and its progeny,
Applicant has not sustained his burden of
proving that such evidence was “material.”...
In this regard, Applicant has failed to
establish affirmatively that there is a
reasonable probability that, had such evidence
been disclosed to the defense, the result of
the trial would have been different or that
there is a reasonable probability sufficient
to undermine confidence in the outcome of the
trial as a result of the information provided
by Risley. The determination and evaluation
of the “materiality” of Risley’s information
must be made in light of the entire record and
in the context of the overall strength of the
State’s case.... When consideration is given
to the entire record and the overall,
overwhelming strength of the prosecution’s
case, there has been no showing by Applicant
of a probability sufficient to undermine
confidence in the outcome of the trial or more
specifically, the answers reached by the jury
in response to the special issues submitted to
them, as a result of the information or
opinions of Cindy Risley.
D
In the federal court proceedings, Knight submitted Risley’s
signed affidavit and she was called as a witness by Knight. She
12
testified that she signed the affidavit after she was no longer
working for Randall County and did not have to worry about losing
her job. She testified that Knight was kept in solitary
confinement for the safety of himself and others; that Knight had
emotional problems and had been abandoned by his family; that he
called her “Mom”; that he made and hid weapons because he was
bored, but never used the weapons on anybody in the jail; that in
her opinion, Knight would not be dangerous under structured,
controlled circumstances; and that, if she had been contacted by
the defense, she would have talked to them and would have
testified. On cross-examination, Risley acknowledged that she did
not know of any reason why Knight would be placed in a private cell
if sentenced to life imprisonment; and, therefore, she was unable
to say whether Knight would be dangerous in the less structured
environment of imprisonment in the general population rather than
in a private cell.
Risley testified that when she approached her supervisor about
state habeas counsel’s request to sign an affidavit, he advised her
to remember that she was an “at will” employee. Her supervisor
testified for the State, and denied making that statement.
Witnesses from the Sheriff’s Office testified that there was no
policy that prohibited employees from speaking with defense counsel
or signing an affidavit. Knight’s lead trial counsel testified
that he thought his investigator had interviewed Risley prior to
trial, and that he knew that Knight was fond of Risley.
13
Following the federal evidentiary hearing, the magistrate
judge concluded that most, if not all of the information known to
Risley, that would have been admissible at trial, was already known
to Knight, and that Risley’s opinions were, in large part, based on
speculation and hearsay. Therefore, Knight failed to rebut the
presumptively correct state habeas court finding that Risley’s
information was available to the defense. The magistrate judge
also observed the inconsistency between Knight’s allegation, on the
one hand, that he developed a very close personal relationship with
Risley during the two years he was incarcerated in the Randall
County Jail, and his contradictory allegation, on the other hand,
that he was not aware of her existence as a potential defense
witness, or that she had a favorable opinion of him. The
magistrate judge concluded that Risley’s testimony would have been
of questionable evidentiary value, and that there was not a
reasonable probability that her testimony would have affected the
outcome of this case in the light of the overwhelming evidence
against Knight, including the heinous execution-style murders of
the victims after holding them hostage for an extended period of
time. According to the magistrate judge, the evidence of Knight’s
acts, while incarcerated awaiting trial, including threats against
other inmates, plans to fake insanity, and his concealment of
weapons in his cell, greatly outweighed evidence of Risley’s
opinion that he would not constitute a continuing threat to society
14
if given a life sentence. The district court adopted the
magistrate judge’s recommendation.
E
Based on our review of the state and federal habeas records,
we conclude that the state court’s decision to deny relief is not
an unreasonable application of Brady. The evidence presented at
the federal evidentiary hearing merely reinforces the state habeas
court’s determination that Risley’s information was available to
the defense and, therefore, was not suppressed by the State.
Accordingly, we affirm the district court’s denial of habeas relief
on this claim.
IV
A
Next, Knight contends that his trial counsel rendered
ineffective assistance by failing adequately to investigate and
present evidence of Knight’s mental condition and other mitigating
circumstances. Knight contends that trial counsel or counsel’s
investigator had in their files substantial mitigating evidence
that was never developed, including the following: he drowned as
a child and suffered anoxia; he grew up in dysfunctional and
disadvantaged circumstances; he suffered personality disorders and
probably an organic brain condition that limited his ability to
control inappropriate impulses; the psychological expert retained
for trial (Dr. Price) was not aware of an earlier psychological
evaluation by Dr. Rumage that suggested the possibility that Knight
15
suffered from organic brain damage;3 counsel failed to interview
Risley; and, although counsel was not hampered by a lack of
resources, Knight was not tested or psychologically evaluated until
after jury selection began.
Knight asserts that Dr. Paula Lundberg-Love, the expert
retained by his habeas counsel, could have testified that Knight
suffers from psychoactive substance abuse and passive-aggressive
personality disorder; that Dr. Rumage’s evaluation of Knight at age
nine suggested that he suffered from organic brain dysfunction;
that Dr. Price’s clinical notes raise a suspicion of organic brain
dysfunction (Knight suffered a number of head injuries as a child,
he drowned when he was a child, and he had been diagnosed with
attention deficit disorder); that organic brain dysfunction
prevents the brain from functioning properly and removes the
ability to control impulses; that what little control Knight had
was erased by his consumption of alcohol; that his medical
condition (attention deficit disorder) creates a propensity to
3
Dr. Rumage evaluated Knight when he was nine years old. In
her report, she requested a comprehensive neurological evaluation
to determine the existence of organic brain dysfunction and
possible treatment. Although Knight asserts that such testing was
not done, the medical records attached as exhibits to the State’s
answer in the state habeas proceedings contradict that assertion.
Knight further asserts that trial counsel’s retained
neuropsychologist, Dr. Price, was not given a copy of the Rumage
report, because they did not find a copy of the Rumage report in
his file. However, trial counsel’s affidavit, which was credited
by the state habeas trial court, states that Dr. Price was given a
copy of the Rumage report and the other medical records, including
the follow-up neurological testing performed on Knight at Dr.
Rumage’s request.
16
abuse alcohol; that, because of his medical condition, Knight was
unable to suppress his emotional impulses; that his condition is
treatable; and that, with the right medication and abstinence from
alcohol, he can control his impulses and there is little
probability that he would be a continuing threat to society.
Lisa Milstein, the investigator retained by Knight’s habeas
counsel, submitted an affidavit to the state habeas court in which
she stated that she found the following mitigating evidence:
Knight grew up in a disadvantaged environment and had a background
of abuse and emotional neglect -- his mother and father divorced;
his mother and step-father divorced; his mother failed to
discipline her children and ignored them; no one in Knight’s family
visited him while he was in jail awaiting trial; and Knight’s
family was centered on money and efforts to please his grandmother,
who had money.
Knight asserts that Risley also had mitigating evidence and
that, although her name appeared on the prosecution’s witness list,
his trial counsel did not interview Risley and did not know whether
his court-appointed investigator had interviewed her.
B
To prevail on his ineffective assistance claim, Knight must
show that counsel rendered deficient performance, and that the
defense was prejudiced by the deficiency. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Counsel’s performance was
deficient if it “fell below an objective standard of
17
reasonableness.” Id. at 688. “The proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.” Id.[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. “[O]ur principal concern in deciding whether
[Knight’s counsel] exercised reasonable professional judgment is
not whether counsel should have presented a mitigation case.
Rather, we focus on whether the investigation supporting counsel’s
decision not to introduce mitigating evidence of [Knight’s]
background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510,
522-23 (2003) (internal quotations and brackets omitted; emphasis
in original). “In assessing counsel’s investigation, we must
conduct an objective review of their performance, measured for
reasonableness under prevailing professional norms, which includes
a context-dependent consideration of the challenged conduct as seen
from counsel’s perspective at the time.” Id. at 523 (internal
18
quotations omitted). We now turn to recount the investigation
conducted by counsel.
C
Jon Waggoner, who was Knight’s lead counsel at trial,
submitted an affidavit in the state habeas proceedings. In that
affidavit, he stated that he retained an investigator, Kathy
Garrison, to assist him in locating mitigating evidence. Based on
their interviews with Knight, they learned that he had spent his
formative years in southern Louisiana, around the New Orleans area.
Waggoner and Garrison traveled to New Orleans in early August 1993
to interview people who knew Knight and to secure medical and
educational records. Waggoner stated that he interviewed a nun who
had taught Knight. She told Waggoner that Knight was a disruptive
child who had behavioral problems, but normal intelligence.
Garrison reported to Waggoner that she had talked to some of
Knight’s friends and an elementary school teacher. While those
people expressed some sympathy toward Knight, they also remembered
many unpleasant things about Knight, including multiple allegations
of theft, lying, loss of temper, rage, behavioral problems,
threatening behavior, lack of empathy for others, and disciplinary
problems in school. Garrison also obtained educational and
aptitude testing records from schools and health care providers.
Waggoner stated that he reviewed those records and concluded that
they were of little probative, mitigating value. Waggoner also
obtained Knight’s medical records from the Naval Regional Medical
19
Center in New Orleans covering the period April 14, 1975, through
August 25, 1977. Those records showed that Knight had been
referred for a neurological work-up due to his poor performance in
school. Waggoner stated that the test results were “normal”, but
that he provided a copy of the psychological test report performed
by Dr. Rumage to Dr. Price, the neuropsychologist he retained to
evaluate Knight.
Waggoner stated that he and Garrison concluded that none of
the individuals they contacted would be able to provide any
substantive mitigating evidence and that, even if they could be
called to testify, the risk was too great for fear of opening the
door to damaging testimony regarding Knight’s admittedly anti-
social behavior as a child.
Waggoner stated in his affidavit that he also visited with
Knight’s mother and grandmother, neither of whom were helpful.
Knight’s mother stated that she did not wish to help her son, and
his grandmother felt the same way. Prior to the beginning of
Knight’s trial, Knight’s mother and grandmother moved from Amarillo
during the middle of the night, and Waggoner did not know where
they went and thus could not contact them.
Waggoner stated that he retained Dr. J. Randall Price, a
neuropsychologist from Dallas, to examine Knight for the purpose of
developing mitigating evidence. He stated that he and Garrison
provided Dr. Price with copies of all of the documentation they
collected during their trip to New Orleans, including the medical
20
records from the Naval Regional Medical Center and the
psychological evaluation by Dr. Rumage. Dr. Price examined Knight
in the Randall County Jail in early September 1993. Waggoner met
with Dr. Price after the examination. Dr. Price told Waggoner that
he believed that Knight exhibited a classic anti-social personality
disorder and that, if pressed, he would be compelled to testify
accordingly. Dr. Price described Knight’s statements about how he
liked to be “scared” and that he enjoyed going into people’s homes
and cars for the money and excitement. Dr. Price felt that the
results of the personality test administered to Knight were
exaggerated, suggesting that Knight had engaged in malingering.
Dr. Price also pointed out that Knight’s conduct in jail was not
good, including threats against other inmates and possession of a
shank and other contraband. Dr. Price did not believe that Knight
was brain-damaged. He based that opinion on the fact that Knight’s
IQ scores were not remarkable and that, if there had been brain
damage, there would have been much more deviation in those scores.
Dr. Price believed that Knight had a learning disability that
probably accounted for his terrible academic performance in school.
Waggoner stated that Dr. Price informed him that further
neurological testing was not justified. Dr. Price told Waggoner
that, if called to testify, he would have to opine that Knight
could be termed a future danger to others.
Waggoner explained his decision not to present any evidence at
the punishment phase as follows:
21
At trial, I was faced with a difficult
situation. In actuality, I had no mitigating
evidence on behalf of Knight. His family
abandoned him. The medical and educational
records covering his early years in the New
Orleans area revealed no objective evidence of
brain damage or mental illness. If anything,
the records revealed several instances of
classic anti-social behavior. Even his own
friends from the New Orleans area would, if
compelled to, testify to a variety of anti-
social behaviors which would have militated in
favor of the death penalty. Dr. Price
recommended no additional testing. Mr.
Knight’s behavior in jail was replete with
instances of rules violations, threats against
other inmates and possession of weapons.
Relying on Dr. Price’s recommendations and the
totality of my experience in over 100 jury
trials, it was my studied decision not to
present any of the evidence which we had
discovered (for fear of opening the door to
even more damaging evidence) and rest at
punishment without calling any witnesses.
....
I believe that I and my investigator
followed up on all leads and that we acted
fully on the mitigating evidence which we
possessed both before and during trial. I
know for a fact that I provided a copy of the
Nancy Rumage report to Dr. Price prior to his
evaluation of Knight and that my decision not
to follow-up with any additional psychological
testing was the direct result of my reliance
on the advice and opinions given to me by Dr.
Price. I and Kathy Garrison investigated all
possible mental health issues existing at the
time prior to trial.
Kathy Garrison, the private investigator who was appointed to
assist Waggoner with Knight’s defense, also submitted an affidavit
in the state habeas proceedings. She stated that she talked to
Knight’s family friends, former teachers, and boyhood friends, all
22
of whom described Knight’s unacceptable behavior, including
stealing, temper tantrums, chronic and habitual lying, disruptive
behavior in the classroom, and fighting. She also interviewed
Philip Wagner, who professed to be a good friend of Knight, but who
described Knight as a “compulsive liar” who had engaged in an
escalating pattern of criminal activity during the time Wagner
spent with him. Wagner told her that he feared Knight and that
Knight had no remorse for anything. She also interviewed Knight’s
mother and grandmother, neither of whom wanted to help Knight.
D
The state habeas trial court made the following findings of
fact with respect to Knight’s ineffective assistance claim:
9. The court finds that Dr. Paula
Lundberg-Love is not a forensic psychologist
but rather a psychological assistant with
licensure occurring in 1986. Her field of
expertise is in pharmacology and drug/alcohol
abuse.
10. The court finds that Dr. Randy Price
is an experienced forensic neuropsychologist
who has been qualified as an expert in the
district courts of both Potter and Randall
counties.
11. The court finds that trial counsel
Jon Waggoner had in his possession before he
retained the services of Dr. Price the medical
records from the Naval Regional Medical Center
in New Orleans, dated April 14, 1975 through
August 25, 1977.... These records contained
certain findings of medical tests conducted by
medical personnel there at the Naval Regional
Medical Center as well as a psychological
report completed by Nancy Rumage, dated August
17, 1977.
23
12. The court finds that Jon Waggoner
provided these records to Dr. Price prior to
his examination of Applicant in the Randall
County Jail in early September of 1993.
13. The court finds that Applicant made
full and frank disclosure to Dr. Price during
the interview process and admitted to the
elements of the crime. The court further
finds that Applicant made certain statements
to Dr. Price that can only be characterized as
evidence of anti-social behavior and thought
processes, particularly the comments that
Applicant enjoyed breaking into people’s homes
and cars because he “liked the excitement and
the money was great.”
14. The court finds that Dr. Price’s
representations to Jon Waggoner that Applicant
was not brain-damaged and that he most likely
represented a future danger to society are
adequately supported by the record in this
case, particularly in the clinical findings
contained within the medical records
indicating normal IQ scores, his anti-social
statements made to Dr. Price and other inmates
who testified at trial, his documented bad
behavior while incarcerated in the Randall
County Jail and the skewed scores on the MMPI
administered by Dr. Price, a deviation Dr.
Price attributed to malingering on Applicant’s
part.
15. The court finds that no further
neurological or psychological testing was
necessary in this case, particularly after Dr.
Price’s examination in September of 1993 and
after his report made to Jon Waggoner shortly
thereafter.
16. The court finds that if Dr. Price
had been called as a witness by Applicant, he
could have been compelled to testify before
the jury that Applicant might very well commit
future acts of criminal violence against
others and therefore be considered a future
danger to others.
24
17. The court finds that Lundberg-Love’s
conclusion that Applicant may have experienced
anoxia which could have resulted in brain
damage to be anecdotal in nature only and not
supported by any available medical records.
The court finds that Lundberg-Love found
Applicant’s IQ scores to be in the low-normal
range and that he may have a learning
disability, a finding confirmed by Dr. Price.
The court further finds that the 1977 Rumage
report does not contain indicia that Applicant
exhibited signs of brain damage and that any
conclusions drawn by Lundberg-Love [not]
confirming that conclusion are not credible or
supported by the record.
18. The court finds that Lundberg-Love’s
opinion that the MMPI-2 test results collected
by Dr. Price were invalid is not credible.
The court further finds that Lundberg-Love is
not professionally qualified to interpret
these results and does so only by guesswork
and supposition. The court further finds that
Dr. Price’s notes do not support the
conclusion that there is the presence of
organic brain damage or cerebral dysfunction,
notwithstanding Lundberg-Love’s feelings.
19. The court finds that Lundberg-Love’s
opinion that Applicant suffers from an organic
brain dysfunction, otherwise referred to as
Cognitive Disorder Not Otherwise Specified
(NOS), is anecdotal in nature and not
supported by objective findings in the record.
20. The court finds that Applicant had
abused alcohol in the past and probably could
be considered an alcoholic. The court finds
that the Price notes support the conclusion
that Applicant drank alcohol heavily during
the commission of the offense for which he was
convicted.
21. The court finds that court-appointed
trial counsel Jon Waggoner traveled to New
Orleans, Louisiana in August of 1993 in an
effort to investigate any mitigating
circumstances in the life and background of
Applicant. In this endeavor, trial counsel,
25
along with his court-appointed investigator
Kathy Garrison, sought to secure documentation
along these lines as well as interview
individuals who knew Applicant or who had any
interaction with him through family, schooling
or employment.
22. The court finds that Waggoner and
Garrison talked to several individuals in and
around the New Orleans area who had either
been a childhood friend, a teacher or relative
of Applicant. These individuals expressed
sympathy for Knight’s plight but all described
Applicant’s behavior as unacceptable and that
he was involved in stealing, loss of temper
and emotional control, chronic and habitual
lying, disruptive and inappropriate behavior
while in a schoolroom setting and fighting
with others. The court further finds that
Garrison interviewed one good friend of
Applicant who described Applicant as a
“compulsive liar” and one who was engaged in
an escalating pattern of criminal activity.
The court also finds that Waggoner and
Garrison obtained limited medical records on
Applicant from which little, if any,
mitigating evidence could be derived, a
conclusion confirmed by the opinions reached
by Dr. Price after his independent review of
the records the succeeding month.
23. The court finds that Waggoner also
made contact with Applicant’s family,
specifically his biological mother and
grandmother, in an effort to develop some
mitigating evidence for the punishment phase
of the trial. The court finds that both
Applicant’s mother and grandmother openly
refused to assist defense counsel in any
meaningful manner and did, in fact, physically
remove themselves from the jurisdiction at the
time of trial so as to refuse to assist
Applicant. The court finds that Applicant’s
mother and grandmother left no information
behind which would have assisted Waggoner in
locating them for purposes of testifying at
trial.
26
24. The court finds that neither
Waggoner nor Garrison were able to secure
employment records from the New Orleans area
or from anywhere else because Applicant had
never worked long enough at a given job so as
to give rise to an employment record.
25. The court finds that Waggoner had in
his possession summaries of his interviews
with family members, associates, teachers and
childhood friends of Applicant; medical
records on Applicant from a naval clinic in
New Orleans dating back to 1975-77; and the
summaries of Garrison’s interviews with
individuals there in the New Orleans-Slidell
area when he met with Dr. Randy Price in
September, 1993. The court further finds that
Waggoner shared these materials with Dr. Price
at the time of Price’s evaluation of Applicant
there at the Randall County Jail in September,
1993. The court finds that Waggoner, having
provided this information to his retained
expert, appropriately relied upon the
recommendations made by Dr. Price and that
these recommendations and observations made by
Dr. Price have ample support in the record.
The court further finds that the failure to
secure additional psychological testing was
grounded on the absence of evidence suggesting
the need for same as well as upon the clear
recommendation made by Dr. Price.
26. The court finds that Waggoner was
not required to seek professional, expert
assistance until and when he could find one
who would testify consistent with those
opinions and beliefs held by Paula Lundberg-
Love.
27. The court finds that Applicant and
the State differ significantly on the meaning
of the scant medical evidence in this case.
However, the court further finds that the
existing medical evidence was provided to
Applicant’s duly appointed trial counsel and
retained expert and that trial counsel’s
strategic decision not to present the evidence
he and his investigator had uncovered during
the discovery phase of pre-trial preparation
27
was plausible for the reason that [t]o have
done so would have opened the door to
additional, damaging punishment evidence.
Trial counsel’s decision to forego the
introduction of any of this evidence was
additionally plausible given his good faith
reliance on the opinions of his qualified,
experienced retained expert.
28. The court finds that regardless of
the decision to forego introduction of any of
the potential mitigating evidence discovered
by Waggoner and Garrison prior to trial, trial
counsel nevertheless developed some evidence
in support of the following themes which he
argued to the jury in an effort to persuade
the panel to answer the special issues in such
a manner so as to avoid the death penalty:
that there was insufficient evidence to
justify imposition of the death penalty based
on the plain facts of the case; that there was
a paucity of overt violence [in] Applicant’s
past, excluding the offense for which he was
convicted; that Applicant’s jail tenure was
free of any violence specifically directed
toward any identifiable jailer or inmate; that
Applicant’s criminal background consisted of
property offenses; that Knight was a very
young man who stood a good chance of being
rehabilitated if assessed a sentence of life
in prison; that the jury could exercise any
degree of residual doubt that they might
harbor in favor of Applicant, given the role
of his co-defendant in the crime (for which he
received a life sentence, thereby prompting a
proportionality review from the jury which
might have resulted in a life sentence); and
finally reminding the jury that it had the
power to engage in a form of “jury
nullification” and grant Applicant mercy,
notwithstanding the weight of evidence
suggesting imposition of the death penalty.
The court finds that these jury arguments were
properly made and were supported by evidence
in the trial record.
29. The court finds that trial counsel
and his investigator followed up on all
possible investigatory leads and acted fully
28
and completely on the mitigating evidence
which either possessed before and during
trial. The court finds that Waggoner and
Garrison investigated all possible mental
health issues at the time and prior to trial.
The court further finds that Waggoner and
Garrison did not fail to investigate
adequately and/or present evidence concerning
Applicant’s dysfunctional family life because
Applicant’s family refused to cooperate with
Applicant’s trial counsel and his investigator
prior to and during trial. The court finds
that the presentation of any evidence
concerning Applicant’s alleged “dysfunctional”
family life would have required the
cooperation of both his mother and grandmother
and any other immediate family members, none
of whom had any positive, helpful information
to share with the defense.
Applying Strickland, the state habeas trial court concluded
that Knight had failed to show deficient performance, much less
harm, stating:
The affidavits of Jon Waggoner and Kathy
Garrison establish that trial counsel and
those under his direction and control
instituted a diligent investigation into the
circumstances and background of Applicant.
They followed up on all identifiable sources
which did or could have led to the discovery
of relevant mental health information. Trial
counsel adequately investigated all known
mental health sources before Applicant’s
trial. He relied on representations made to
him by Applicant, Applicant’s family members
and the available documentary evidence
existing at that time. Applicant’s complaints
about trial counsel’s performance center on
the manner in which trial counsel and his
retained expert interpreted the available
mental health information and to what use, if
any, this evidence could have been utilized.
It is also apparent from the affidavits and
documentary exhibits included within the
record that defense counsel did act upon the
available mental health information when they
29
provided same to the retained psychological
expert Dr. Price. Waggoner’s affidavit
dispels any doubt that this report and other
relevant information was not provided to Dr.
Price. The available affidavits and exhibits
also make clear that trial counsel was
informed by his own expert that there was
sufficient information and evidence to support
findings that Applicant did not suffer from
brain damage, that the MMPI scores were not
valid (not due to the timing of the
administration of the test but rather to
malingering on Applicant’s part) and that
Applicant’s background and thought processes
were consistent with a diagnosis of
sociopathy. Thus, trial counsel’s decision
not to pursue further psychological testing
was an informed one and represented a logical,
plausible decision under all the facts and
circumstances existing at that time. Further,
his decision not to present any expert
testimony through Dr. Price was indeed
plausible and sound since Dr. Price had
informed trial counsel that he would render an
opinion, if called upon, that Applicant could
very well be considered to be a future danger
to others. By electing to forego presenting
Dr. Price, trial counsel avoided opening the
door to damaging evidence as illuminated
within Dr. Price’s handwritten notes and
further, avoided having his own retained
expert compelled to give an opinion totally
antithetical to the thrust of Applicant’s
defense during the punishment phase. Trial
counsel’s actions and decisions taken during
this phase of pre-trial and trial were
eminently reasonable. They constituted sound
trial strategy, notwithstanding Applicant’s
complaints.
.... [T]he undisputed facts in the record
establish that trial counsel entered the
punishment phase of the trial knowing that
Applicant’s family had abandoned him, his own
expert had concluded that Applicant’s behavior
was perfectly consistent with that of a
sociopath, that there was insufficient,
objective evidence to support an argument that
Applicant suffered from any somatic condition
30
which might explain his violent or otherwise
aberrant behavior, that Applicant had no
employment history nor possessed any special
talents, that Applicant’s own friends could be
compelled to testify to a wide range of
antisocial acts and behavior and that his
behavior in the Randall County Jail was very
poor, regardless of any ameliorating effect
that Cindy Risley’s anticipated testimony
might have provided. Given the fact that
those family members in the best position to
provide mitigating testimony regarding
Applicant’s regrettable family life had
refused to assist trial counsel (and had in
fact physically moved from without the
jurisdiction during trial, presumably to avoid
testifying altogether), it is understandable
that no such family life evidence was
presented since there was no competent witness
to so testify, save and except Applicant
himself. Moreover, even if it is accepted for
purposes of argument, that trial counsel
should have known of Risley’s anticipated
testimony, those matters set out in the
unsigned Risley affidavit in no way offset or
neutralize Applicant’s bad behavior while
incarcerated in the Randall County Jail.
Trial counsel’s decision to forego any
punishment evidence was reached in a
professional manner after careful
deliberation. This decision was prudent.
Moreover, the punishment argument made by
trial counsel was likewise a proper response
to the totality of the evidence presented by
the State and was supported by the record.
Trial counsel’s assistance was not deficient
nor can it be concluded that his performance
prejudiced Applicant’s punishment case. There
is simply no evidence to indicate that the
result of this trial would have been different
if such alleged mitigating evidence regarding
family life or jail behavior identified by
Applicant had, in fact, existed and counsel
had presented it.
E
31
At the federal evidentiary hearing, Risley testified that she
was not contacted by defense counsel or his investigator. Waggoner
testified that he knew prior to trial that Knight was fond of
Risley and that he thought his investigator had interviewed Risley.
He conceded that, in hindsight, it would not have been a bad idea
for him to have interviewed Risley. He testified further, however,
that he did not see a great deal of value in the information
presented in Risley’s affidavit.
The district court held that Knight had failed to show that
trial counsel acted unreasonably in accepting Dr. Price’s report
and following Dr. Price’s recommendation when he decided not to
offer evidence of Knight’s mental condition. The court explained
that trial counsel sought and obtained a mental evaluation by a
competent professional; he was faced with potential evidence from
his own expert that Knight exhibited classic anti-social
personality traits and that he was not brain-damaged; and his
expert, if pressed, could testify that he was a future danger to
others. The court stated that it could not say, even in hindsight,
that counsel erroneously decided that the potential detriment in
offering such evidence outweighed any possible benefit to offering
it.
The district court also concluded that Knight was not
prejudiced, because any evidence of mental defect, if offered, and
assuming it did not backfire, would not have affected the outcome
of the punishment phase. With respect to Risley’s proposed
32
testimony, the district court held that Knight failed to show that
it was material. The court stated that much of the testimony
Risley could have provided was based on hearsay statements made by
Knight; and the portion of her testimony that might have been
admissible at trial would not have constituted sufficient
mitigation evidence to be material to the issue of future
dangerousness and certainly would not have had any impact on the
jury’s determination of the special issues. The court noted that
Risley also admitted that she had filed an incident report against
Knight for a disciplinary infraction in June 1993, shortly before
his trial. The court reasoned that, by allowing the State to call
Risley as a witness at trial and then eliciting testimony from her
on cross-examination that Knight had not used any of the weapons
found in his cell against anyone and that she got along fine with
him, trial counsel was able to limit the State’s questioning on
redirect and avoid introduction of the damaging evidence of future
dangerousness that the State adduced on cross-examination at the
federal evidentiary hearing.
The district court noted that trial counsel and his private
investigator had traveled to Louisiana to investigate Knight’s
background, seeking potential mitigating evidence. Despite their
efforts, no useful mitigating evidence was discovered. Witnesses
interviewed by counsel and his investigator, while somewhat
sympathetic to Knight’s predicament, possessed knowledge which, if
33
developed at trial, could potentially assist the prosecution in
presenting Knight as anti-social.
F
Based on our review of the record, we conclude that the state
court did not unreasonably apply Strickland. The record
establishes that Knight’s counsel and his investigator conducted a
diligent and thorough investigation of Knight’s background. The
fact that they were unable to find any useful mitigating evidence
does not render counsel’s performance deficient. Furthermore,
counsel did not perform deficiently by relying on the expert
neuropsychologist’s recommendation that no further testing needed
to be performed. In sum, Knight’s counsel had very little to work
with, and made an informed strategic decision that Knight’s case
would not have been helped by the presentation of the evidence
uncovered during his investigation, because it would have opened
the door to even more damaging evidence about Knight’s anti-social
behavior.
We further conclude that, even if counsel had presented the
evidence uncovered by his habeas counsel, there is not a reasonable
probability that the jury would have answered the special issues in
a different way. The evidence of the kidnaping, robbery, and
brutal execution of the Werners is simply so horrible and cruel
that it is extremely unlikely that a reasonable juror would have
been willing to spare Knight’s life, even if presented with the
evidence that he now says trial counsel should have presented. We
34
therefore affirm the district court’s denial of habeas relief on
Knight’s ineffective assistance claims.
V
The final claim for which we granted a COA is Knight’s
contention that his rights were violated when the trial judge
granted the State’s challenge for cause and excluded prospective
juror David Johnson. The Supreme Court has held that prospective
jurors may be excluded for cause if they “would automatically vote
against the imposition of capital punishment without regard to any
evidence that might be developed at the trial of the case before
them, or ... that their attitude toward the death penalty would
prevent them from making an impartial decision as to the
defendant’s guilt.” Witherspoon v. Illinois, 391 U.S. 510, 522
n.21 (1968). Furthermore, a challenge for cause is properly
granted if a prospective juror’s personal feelings about the death
penalty would “prevent or substantially impair the performance of
[his] duties as [a juror] at the sentencing phase of the trial.”
Lockhart v. McCree, 476 U.S. 162, 165 (1986). A prospective juror,
however, may not be excluded for cause simply because he may be
“hesitant in [his] ability to sentence a defendant to death.”
Morgan v. Illinois, 504 U.S. 719, 732 (1992) (citing Witherspoon,
391 U.S. at 522 n.21). The trial court's finding of juror bias is
entitled to a presumption of correctness and the petitioner has the
burden of rebutting that finding by clear and convincing evidence.
35
See 28 U.S.C. § 2254(e)(1); Cardenas v. Dretke, 405 F.3d 244, 250
(5th Cir. 2005).
Knight argues that, although Johnson stated that he personally
had reservations about the death penalty, he also stated that, if
the evidence demanded it, he could answer the punishment issues in
a manner that would require imposition of the death penalty.
According to Knight, Johnson’s answers wavered only after the
prosecutor repeatedly questioned him and attempted to confuse him.
Knight contends that the state court and the district court
unreasonably applied Supreme Court precedent by failing to consider
the voir dire examination as a whole and by not considering the
probable effect of the prosecutor’s obvious attempts to cause
Johnson to vacillate.
On direct appeal, the Texas Court of Criminal Appeals examined
Johnson’s voir dire testimony as a whole, quoting it at length.
The court noted that, throughout lengthy questioning, Johnson was
unable to answer the question whether he could put aside his
personal reservations about the death penalty when answering the
special issues. In addition, when the prosecutor asked Johnson
whether he would require the State to meet a higher burden in
proving the special issues than the reasonable doubt standard,
Johnson answered that he would require proof “beyond any doubt.”
The court further noted that defense counsel’s attempt to
rehabilitate Johnson on the burden of proof led to further confused
and sometimes contradictory answers and, in fact, Johnson again
36
stated that he would not be able to answer the special issues
according to his oath and the trial court’s instructions. The
court concluded that the trial court did not abuse its discretion
in granting the State’s challenge for cause because Johnson’s views
on the death penalty would prevent or substantially impair the
performance of his duties as a juror in accordance with the court’s
instructions and his oath.
Based on our review of Johnson’s voir dire testimony, we
conclude that Knight has failed to rebut the state court’s factual
finding that Johnson’s views about the death penalty would prevent
or substantially impair the performance of his duties as a juror in
accordance with his oath and the instructions of the court. We
conclude further that the state courts did not unreasonably apply
clearly established federal law in rejecting Knight’s claim. We
therefore affirm the district court’s denial of habeas relief.
VI
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
37