Felder v. Johnson ( 1999 )

Revised July 22, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-20575
_______________________
SAM FELDER, JR.,
also known as Sammie Felder,
Petitioner-Appellant,
v.
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice, Institutional Division
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
June 30, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.1
EDITH H. JONES, Circuit Judge:
Sam Felder, a death row prisoner in Texas, appeals the
district court’s denial of his petition for a writ of habeas
corpus. He raises numerous issues, three of which are discussed in
depth in this opinion. First, Felder challenges the consti-
tutionality of the “Texas waiver rule,” which -- until it was
abrogated last year -- treated a criminal defendant’s admission of
1
Judge Dennis concurs in the judgment.
guilt during the punishment phase of his trial as a guilty plea
that waived all guilt-phase trial errors. This claim is Teague-
barred. Second, Felder argues that the prosecution violated his
due process rights by suppressing the arrest record of a government
witness. Third, Felder argues his representation was
constitutionally deficient. Because these claims and the others
raised by Felder are meritless, the district court’s denial of
habeas corpus is affirmed.
I. Facts and Procedural Background
Felder’s habeas petition arises from the third time he
was convicted and sentenced to death for the 1975 murder of James
C. Hanks. The first two convictions were reversed on appeal or
collateral review.2 The third conviction occurred in 1989 and was
affirmed by the Texas Court of Criminal Appeals in 1992.3
Testimony at Felder’s third trial established that James
Hanks, a 41-year-old quadriplegic, was fatally stabbed with
scissors in the temples and neck -- among the few areas of his body
in which he could feel pain -- in the early morning hours of March
14, 1975. Because of his quadriplegia, Hanks lived in a Houston
apartment complex for the disabled where he could receive frequent
care and services. That morning, when an attendant came to
reposition Hanks as he slept, she discovered that Hanks’s door was
2
See Felder v. McCotter, 765 F.2d 1245 (5th Cir. 1985); Felder v. State,
758 S.W.2d 760 (Tex. Crim. App. 1988).
3
See Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992), cert. denied,
510 U.S. 829 (1993)
2
open, though she had closed it on her previous stop two hours
before. (Because Hanks’s mother, who normally lived with him, was
temporarily in the hospital, his apartment door was being left
unlocked that week.)
Hanks was found in his bed, with his head contorted into
an awkward position. His breathing was very faint, and he had
wounds on the sides of his head.4 The mattress was bloody.
Hanks’s wallet, which he kept under his pillow when he slept, was
missing. The pillow was on the floor. Also missing was a pair of
stainless-steel surgical scissors that was usually kept on a table
near Hanks’s bed. Hanks, comatose, was taken to a hospital and
placed on life support. When it was later determined that Hanks
was brain dead, he was removed from the life support system.
Felder worked for the company that provided services to
the disabled residents in Hanks’s apartment complex. He was an
attendant whose duties extended to about fifteen residents,
including Hanks. On the day before Hanks was found stabbed, Felder
worked until 2:00 or 3:00 P.M. He was scheduled to work the day
Hanks was found, but he did not report to work that day or later,
or ever make arrangements to receive his last paycheck. Felder was
arrested one month later in Idaho Falls, Idaho, when he was unable
to produce valid identification during a traffic stop and found to
have a concealed .38 caliber pistol.
4
There were ten wounds on Hanks’s temples and neck. A medical examiner
testified that the cause of death was a stab to the left temple that had
penetrated into Hanks’s brain by 2½ to 3 inches. A hospital summary noted that
“brain was extruding” through this wound.
3
Edith Cobb testified that she had seen Felder in Denver
for “a couple of weeks” in late March and early April -- after
Hanks’s death and before Felder’s arrest. Cobb had met Felder in
August 1974 and helped him get a job in Denver before he returned
to Houston in November 1974. When Felder re-appeared in Denver in
March 1975, Cobb asked Felder if he would like her to get him
another job. Cobb testified that Felder told her “he had killed a
man in ... Houston, and that he couldn’t get a job.” Felder told
Cobb that he had been working in some kind of hospital and had seen
a paralyzed man with a lot of money. After getting off of work in
the afternoon, Felder returned at 2:00 or 3:00 A.M., armed with a
.38 caliber handgun, to rob the man. When Felder tried to take the
money, the man woke up, recognized him, and, calling him by name,
asked Felder what he was doing. Felder then grabbed a pair of
scissors next to the bed and “started stabbing him in his head and
throat and back and forth and back and forth and back and forth and
then he took the pillow and was -- kind of smothered -- the man was
crying and hollering, please don’t hurt me, and ... he just kept
stabbing him back and forth....” When it looked like the man was
still breathing, Felder stabbed him more times. Finally, when it
looked like the man was dead, Felder took the money, over $300, and
drove off in his car, throwing the scissors out the window on his
way home. That day, his brother took him to the airport, and
Felder flew to Denver, having packed the pistol in his suitcase.
Cobb testified that Felder was “kind of laughing” when he recounted
4
the killing. When she asked Felder why he had to kill the man,
Felder said, “a dead man tells no tales.”
Cobb saw Felder frequently over the next several days.
He told her that he called his sister in Texas every day to ask
whether the police were looking for him. Eventually, Felder heard
from his mother that he should not come back to Texas because he
was wanted by the police. Cobb last saw Felder on April 9, 1975,
five days before he was arrested in Idaho.
After the jury found Felder guilty of capital murder,
Cobb testified in the punishment phase of his trial. She described
other crimes Felder told her he had committed in Denver. The jury
answered both special issues in the affirmative, and Felder was
sentenced to death.
After his conviction and sentence were affirmed on direct
appeal, Felder filed a habeas petition in state court. The state
district court’s denial of relief was affirmed by the Court of
Criminal Appeals in 1995. Felder’s federal habeas petition was
denied by the district court in 1998. The district court granted
a certificate of probable cause. Felder now appeals the denial of
habeas relief.
II. Standard of Review
This case is governed by pre-AEDPA habeas standards
because Felder’s petition was filed before April 24, 1996. See
Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997). This means
that state-court fact findings are binding on federal courts when
5
they are “fairly supported by the record.” 28 U.S.C. § 2254(d)(8)
(1994) (amended 1996). Legal questions, however, as well as mixed
questions of law and fact, are reviewed de novo. See Johnson v.
Puckett, 176 F.3d 809, 814 (5th Cir. 1999).
The district court in this case mistakenly recited AEDPA
standards. Yet, because the record is complete, and virtually
every issue must be reviewed de novo, we need not remand the case
for further fact findings. Cf. Magouirk v. Phillips, 144 F.3d 348,
362-63 (5th Cir. 1998) (remanding on fact-based claims where state
trial transcript was missing from federal record and magistrate
judge incorrectly applied heightened, AEDPA-level deference).
III. The Texas Waiver Rule
At the time of Felder’s trial, Texas law treated a
defendant’s admission of guilt during testimony in the punishment
phase of a bifurcated trial as waiving for appeal any guilt-phase
trial errors. See McGlothlin v. State, 896 S.W.2d 183, 186 (Tex.
Crim. App. 1995); DeGarmo v. State, 691 S.W.2d 657, 660-61 (Tex.
Crim. App. 1985). This procedure, known as the DeGarmo doctrine or
“Texas waiver rule,” was abrogated by the Texas Court of Criminal
Appeals in December 1998. See Leday v. State, 983 S.W.2d 713, 725-
26 (Tex. Crim. App. 1998).
Felder argues that the Texas waiver rule -- when combined
with the district court’s refusal to grant a motion in limine for
his proposed punishment-phase testimony -- unconstitutionally
chilled his Fifth Amendment rights and compromised his Eighth
6
Amendment right to present all mitigation evidence. The waiver
rule purportedly achieved this result through the excessive threat
it posed to Felder if he decided to testify and risk opening the
door to cross-examination questions about his guilt. While
testifying in a bill of exceptions, Felder agreed that he wanted
“to give testimony regarding [his] feelings about [his] remorse in
regards to this offense,” that he wanted to describe how he had
“changed” since he had been to prison, and, in his own words, said,
“I wanted to explain to the Court how I felt about things.” He
also said that he would deny Edith Cobb’s allegations that he had
committed other crimes in Denver.
The district court rejected Felder’s claim. This court
has never ruled on the constitutionality of the Texas waiver rule
under the Fifth or Eighth Amendment.5
No matter how we characterize Felder’s constitutional
claims, however, they are not cognizable in this habeas corpus
proceeding because of the anti-retroactivity rule of Teague v.
Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). Teague resolved that
federal habeas relief may not be granted based on “new” rules of
constitutional law. Under Teague a new rule is one in which the
result was not “dictated by precedent existing at the time the
defendant’s conviction became final.” Id. at 301, 109 S. Ct. at
5
In a habeas appeal related to Felder’s first conviction, this court
expressly refused to decide the question. See Felder v. McCotter, 765 F.2d 1245,
1251 (5th Cir. 1985).
7
1070 (plurality opinion) (emphasis in original); see also Lambrix
v. Singletary, 520 U.S. 518, 527-28, 117 S. Ct. 1517, 1525 (1997).
Felder’s conviction and sentence became final for Teague
purposes on October 4, 1993, when the Supreme Court denied his
petition for certiorari after his conviction was affirmed on direct
review in state court. See Caspari v. Bohlen, 510 U.S. 383, 390,
114 S. Ct. 948, 953 (1994). Thus, this court must “[s]urve[y] the
legal landscape as it then existed and determine whether a state
court considering [Felder’s] claim at the time his conviction
became final would have felt compelled by existing precedent to
conclude that the rule [he] seeks was required by the
Constitution.” Id. (internal quotations and citations omitted).
If not, then Teague’s bar applies. Teague’s only exceptions are
for rules that would place certain primary conduct beyond the
government’s power to proscribe or bedrock rules of criminal
procedure that are necessary to ensure a fundamentally fair trial.
See O’Dell v. Netherland, 521 U.S. 151, 157, 117 S. Ct. 1969, 1973
(1997).
In this case, Teague clearly bars the relief Felder
seeks, and neither of its exceptions is applicable. The Texas
waiver rule, although unusual and now disavowed by the Texas
courts, was not condemned by any Supreme Court authority and,
indeed, was at least inferable from McGautha v. California, 402
U.S. 183, 91 S. Ct. 1454 (1971), vacated on other grounds by
Crampton v. Ohio, 408 U.S. 941, 92 S. Ct. 2873 (1972).
8
In McGautha, the Supreme Court interpreted its prior
opinion in Simmons v. United States, 390 U.S. 337, 88 S. Ct. 967
(1968). In Simmons, the Court had held that testimony given by the
defendant during a suppression hearing could not be used against
him on the issue of guilt during his trial. In McGautha, the
Supreme Court explained that Simmons involved an unusual situation
of pitting “another provision of the Bill of Rights” against the
Fifth Amendment. See McGautha, 402 U.S. at 212, 91 S. Ct. at 1469
(quoting Simmons, 390 U.S. at 394, 88 S. Ct. at 976). The McGautha
Court concluded that “the policies of the privilege against
compelled self-incrimination are not offended when a defendant in
a capital case yields to the pressure to testify on the issue of
punishment at the risk of damaging his case on guilt.” Id. at 217,
91 S. Ct. at 1472. It also rejected the related argument about a
defendant who is deterred into silence, concluding: “We do not
think that Ohio was required to provide an opportunity for [the
defendant] to speak to the jury free from any adverse consequences
on the issue of guilt.” Id. at 220, 91 S. Ct. at 1474. Although
the Supreme Court since McGautha has precluded a unitary trial
procedure in capital cases, bifurcation is normally understood as
insulating the guilt-phase determination from broader punishment-
phase testimony. See Gregg v. Georgia, 428 U.S. 153, 190-95, 96 S.
9
Ct. 2909, 2933-36 (1976) (plurality opinion). That is not the
problem of which Felder complains.6
Relief is thus unavailable to Felder in federal habeas
corpus because his entitlement to it would depend on establishing
a “new” rule of constitutional criminal procedure.
IV. Brady Claim for Impeachment Evidence
Felder argues that the prosecution violated Brady v.
Maryland, 373 U.S. 85, 83 S. Ct. 1194 (1963), by not disclosing
that its chief witness, Edith Cobb, had been arrested for forgery
in 1982. On appeal, this Brady claim is directed toward only the
sentence of death, even though Cobb testified during both the guilt
and punishment phases.
The state habeas court concluded that evidence of an
arrest without conviction was not Brady material because it would
not have been admissible to impeach Cobb. In addition, it found
that any suppression did not undermine confidence in the trial and
cited cases to show that the “mere possibility” that an item “might
have helped defendant” is insufficient to make it Brady material.
The federal district court found that the evidence was
inadmissible, and that, even if admitted, the evidence would not
have changed the outcome of the trial.
6
We also note the Supreme Court’s recent decision in Mitchell v. United
States, 119 S. Ct. 1307 (1999). In Mitchell, the Court held that a guilty plea
does not waive the Fifth Amendment privilege against adverse inferences from
failure to testify during the sentencing phase. This does not establish anything
approaching the right Felder proposes.
10
This court reviews the district court’s Brady
determinations de novo. See East v. Johnson, 123 F.3d 235, 237
(5th Cir. 1997).
Brady’s requirement that the prosecution disclose
exculpatory evidence does extend to information that could be used
to impeach government witnesses. See United States v. Bagley, 473
U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985). The suppressed
information, however, must still be “evidence” that is “material
either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.
Ct. at 1197. Evidence is material “only where there exists a
‘reasonable probability’ that had the evidence been disclosed the
result at trial would have been different.” Wood v. Bartholomew,
516 U.S. 1, 5, 116 S. Ct. 7, 10 (1995).
The Fifth Circuit has not clearly specified how to deal
with Brady claims about inadmissible evidence -- a matter of some
confusion in federal courts7 -- except to reaffirm that
7
In Wood v. Bartholomew, the Supreme Court did not declare squarely
whether inadmissible information could be material evidence under Brady, even
though the circuit courts had already developed various approaches to that
question. The Court first noted that polygraph results, being inadmissible, were
“not ‘evidence’ at all” and “could have had no direct effect on the outcome of
trial.” 516 U.S. at 6, 116 S. Ct. at 10. It proceeded, however, to discuss the
merits of the Ninth Circuit’s attempt to “get around this problem,” and concluded
that “mere speculation” about whether the information could have led defense
counsel to “additional evidence that could have been utilized” did not meet “the
standards we have established.” Id.
Reactions to Wood have been as varied as the pre-Wood jurisprudence. Some
courts read Wood to mean inadmissible information cannot be material under Brady.
See Hoke v. Netherland, 92 F.3d 1350, 1356 n.3 (4th Cir. 1996) (inadmissible
statements are immaterial “as a matter of law”); United States v. Montalvo, 20
F. Supp. 2d 270, 277 (D.P.R. 1998). One circuit has concluded that Wood did not
affect its practice of allowing inadmissible evidence to be material if it “would
have led to admissible evidence.” See Wright v. Hopper, 169 F.3d 695, 703 & n.1
(11th Cir. 1999). Another has followed Wood’s methodology, noting inadmissible
evidence is “not ‘“evidence” at all,’” and then asking whether a link to
(continued...)
11
“inadmissible evidence may be material under Brady.” Spence v.
Johnson, 80 F.3d 989, 1005 n.14 (5th Cir. 1996) (citing Sellers v.
Estelle, 651 F.2d 1074, 1077 n.6 (5th Cir. Unit A July 1981)).
Thus, we ask only the general question whether the disclosure of
the evidence would have created a reasonable probability that the
result of the proceeding would have been different. See East, 123
F.3d at 237. In this case, the question is whether the disclosure
of the inadmissible evidence of Cobb’s arrest would have created a
reasonable probability that Felder would not have been sentenced to
death.
Felder argues that if the evidence of Cobb’s arrest had
been disclosed, attempts to follow up on the arrest would have led
his attorneys to admissible impeachment evidence about Cobb’s
reputation for dishonesty in Denver.8 In the habeas proceeding,
Felder produced an affidavit from a Denver police officer saying in
part: “During 1988 and 1989 (and perhaps before), Edith Cobb was
known by the members of this community to be a dishonest person.”
Two aspects of Cobb’s testimony were relevant to the
jury’s punishment-phase decisions. First, Cobb testified during
the punishment phase that Felder had told her of other crimes he
7
(...continued)
admissible evidence is based on more than “mere speculation.” See Madsen v.
Dormire, 137 F.3d 602, 604 (8th Cir.), cert. denied, 119 S. Ct. 247 (1998).
Still another has done the same as the Fifth Circuit and hewed to its pre-Wood
practice without discussing Wood’s potential relevance. See Coleman v. Calderon,
150 F.3d 1105, 1116-17 (9th Cir.), rev’d on other grounds, 119 S. Ct. 500 (1998)
(per curiam).
8
On appeal, Felder wisely does not repeat his argument that the evidence
of the arrest would itself have been admissible to impeach Cobb.
12
had committed after the murder. She recounted his description of
his armed robbery of a barbershop in Denver. She also recounted
his explanation that he was able to afford staying at a hotel in
downtown Denver by burglarizing “the projects” to steal stereos and
televisions, and that he carried a gun with him during these
burglaries in case any of his victims woke up. These other crimes
were relevant to the jury’s punishment-phase determination that
there was a probability Felder would “commit criminal acts of
violence that would constitute a continuing threat to society.”
Second, some of Cobb’s guilt-phase testimony was relevant to the
jury’s punishment-phase determination that Felder’s conduct in
causing Hanks’s death was “committed deliberately.” Cobb had
supplied chilling details of the killing itself as described to her
by Felder and also of his laughing as he described the killing.
This court finds that the shadow cast upon Cobb’s
testimony by potentially-discoverable evidence of her dishonesty
does not “put the whole case in such a different light as to
undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S.
419, 435, 115 S. Ct. 1555, 1566 (1995); see also Strickler v.
Greene, 119 S. Ct. 1936, 1953 (1999) (not material if there is only
“a reasonable possibility that either a total, or just a
substantial, discount of [a witness’s] testimony might have
produced a different result” (emphasis in original)). Other
factors demonstrate that the introduction of evidence casting doubt
on Cobb’s honesty would not have created a reasonable probability
13
of a different sentence for Felder. First, there was physical
evidence to corroborate Cobb’s second-hand description of the
murder’s deliberateness: chiefly the number of wounds, their
severity, and their concentration in Hanks’s neck and head.
Second, Felder had a prior criminal record of burglaries, and he
had a gun when he was arrested, both demonstrating his threat to
society. Third, Cobb’s testimony about the additional crimes did
not go unquestioned. In fact, Felder’s defense counsel highlighted
the lack of any corroboration for Cobb’s descriptions of the
additional crimes. He noted that the prosecution brought a police
officer from Idaho to testify about the pistol Felder had when he
was arrested, but brought nobody from Denver besides Cobb to
testify about these other crimes. Defense counsel also openly
wondered at how Cobb had “miraculously remembered something else”
and stressed that Cobb had not testified about these other crimes
at either of Felder’s two previous trials. Cf. United States v.
Amiel, 95 F.3d 135, 145 (2d Cir. 1996) (“Suppressed evidence is not
material when it merely furnishes an additional basis on which to
impeach a witness whose credibility has already been shown to be
questionable.” (internal quotation omitted)).
This case is also distinguishable from East, on which
Felder relies and in which this court found a Brady violation based
on the suppression of a prosecution witness’s criminal history.
The witness in East testified at the punishment phase of East’s
murder trial that East had raped her at gunpoint, threatened to
14
murder her, and told her he had murdered several other women. See
123 F.3d at 237-38. Revelation of that witness’s criminal history,
however, would have led defense counsel to a report describing her
mental illness: she “experienced bizarre sexual hallucinations and
believed that unidentified individuals were attempting to kill
her.” Id. at 238. Thus, in East, the potential impeachment
evidence related directly to the subject-matter of the witness’s
testimony, and her testimony about future dangerousness was more
extreme than Cobb’s because it accused East of “several” other
murders.
The prosecution did not violate Brady because disclosure
of Cobb’s forgery arrest would not have created a reasonable
probability that Felder would not have been sentenced to death.
V. Ineffective Assistance of Counsel
Felder next asserts that his trial attorneys provided
unconstitutionally deficient representation because they (1) failed
to investigate and impeach the key prosecution witness, Edith Cobb;
and (2) failed to investigate and present mitigating testimony from
Felder’s family. In addition to these two grounds, Felder argues
that his representation was rendered deficient by the prosecution’s
surprise tactic of introducing unadjudicated offenses during the
punishment phase.
The test for defective representation is two-fold:
whether counsel’s representation was so objectively unreasonable
and incompetent as to be constitutionally deficient; and whether
15
counsel’s errors actually prejudiced the defendant by depriving him
of a fundamentally fair trial. See Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The state court’s
findings of fact are binding so long as they are “fairly supported
by the record,” 28 U.S.C. § 2254(d)(8) (1994) (amended 1996), but
the ultimate question of effective assistance is itself a mixed
question of law and fact, reviewed de novo. See Bryant v. Scott,
28 F.3d 1411, 1414 (5th Cir. 1994). Relief may be denied if the
defendant fails to establish either prong of the Strickland test.
See id. at 1415.
Reviewing the claims of deficient representation, the
federal district court found that the state court findings were
supported by the record, and we agree.
On counsel’s failure to investigate Cobb and impeach her
testimony with evidence of her lack of credibility, it is
sufficient to note that the standard for prejudice under Strickland
is “identical to” the standard for materiality under Brady.
Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir. 1995). Because the
impeachment evidence was not material under Brady -- as discussed
above, in part IV -- failure to present it was not prejudicial
under Strickland.
As for the mitigating evidence available from family
members,9 there is no reasonable probability that trial counsel’s
9
Felder summarizes 1994 affidavits from his family and friends as proof
that, had they been called by the defense in 1989, they would have testified as
follows:
(continued...)
16
deficient performance -- if any10 -- yielded a different result or
an unfair trial. The addition of testimony from family members to
buttress the mitigating character evidence already introduced would
not have created a reasonable probability of a different result in
the punishment phase. This claim does not meet Strickland’s
prejudice requirement.
Felder’s final claim of ineffective assistance of counsel
is odd because it focuses on the prosecution’s conduct. Felder
argues that Cobb’s testimony about unadjudicated offenses was such
a surprise that it made effective cross-examination impossible and
thus deprived him of effective assistance of counsel. To the
9
(...continued)
Felder was a “respectful and well-mannered person”; he was “quiet”
and “got along well with others”; ... he was “a real good listener,”
who was “always kind [and] peaceful”; “everyone liked Sam”; he was
not known to be the “type to argue, get in fights or act violent
towards anyone”; “he was never disrespectful or mean”; “Sam was not
violent and did not have a temper.”
None of the affidavits makes any explicit mention of any contact with Felder
after 1975.
10
Rather than failing to present any mitigating evidence whatsoever,
Felder’s defense attorneys presented testimony from a psychiatrist and from three
prison chaplains. Unlike the family-member affidavits presented by Felder, these
witnesses spoke about Felder’s character since he had been incarcerated. In his
bill of particulars, Felder himself said he wanted to testify about how he had
changed since 1975. The theme of defense counsel’s closing argument in the
punishment phase was captured in this passage:
Folks, Sammie has changed. All the evidence points to it.
Folks, some of you may not care. Some of you may say, I don’t
care if he has changed, that was such a horrible crime, I’m killing
him. It’s up to you. All I have to ask you is if that’s the way
you feel about it, then please just disregard all the chaplains,
disregard the psychiatric testimony, throw it out the window.
It is not obvious that the changed-man theme was an objectively unreasonable
trial strategy. Nor is it obvious that it would have been a better strategy to
rely on family members and tell the jury that had just convicted Felder for a
heinous murder something like “Sammie was never really that bad.” Furthermore,
it could have been equally suspicious to combine the changed-man strategy with
family testimony: “Sammie was never that bad, but he’s much better now.”
17
extent that this is a substantive claim that the introduction of
unadjudicated offenses was unfair, Felder is procedurally barred
from asserting it by his failure to object at trial on these
grounds.11 To the extent that Felder identifies ineffective counsel
as “cause” for the failure to object, our discussion above makes
clear that there was no Strickland prejudice from introduction of
the unadjudicated offenses, meaning the procedural bar cannot be
overcome.12
The district court did not err in finding that Felder had
not met his burden of demonstrating ineffective assistance of
counsel under both prongs of Strickland.
VI. Other Claims
Felder raises three contentions that border on the
legally frivolous: that executing him after two decades of delay is
unconstitutional; that the trial court failed to define reasonable
doubt; and that Texas’s method of lethal injection violates the
11
The trial transcript does not support Felder’s claim that this ground of
objection was apparent from context. Felder’s counsel objected to Cobb’s
testimony about the burglaries on the grounds that it lacked detail and had no
corroboration. The alleged armed robbery of the barbershop was objected to as
being “generally irrelevant to this hearing.”
12
It is not clear whether Strickland prejudice would be sufficient to meet
the prejudice required to overcome a procedural bar in habeas. Cf. Strickler v.
Greene, 119 S. Ct. 1936, 1956 n.2 (1999) (Souter, J., dissenting in part) (Court
treats habeas prejudice as synonymous with Brady materiality); Williams v.
French, 146 F.3d 203, 210 n.10 (4th Cir. 1998) (unclear whether habeas prejudice
is same as Strickland prejudice), cert. denied, 119 S. Ct. 1061 (1999); United
States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C. Cir. 1998) (“habeas prejudice may
require a greater showing” than Strickland prejudice), cert. denied, 119 S. Ct.
794 (1999); Zinzer v. Iowa, 60 F.3d 1296, 1299 n.7 (8th Cir. 1995) (habeas
prejudice “must be a higher standard” than Strickland prejudice). But without
Strickland prejudice at a minimum, there is not even cause to overcome the
procedural bar. See Turner v. Johnson, 106 F.3d 1178, 1188 (5th Cir. 1997);
Ellis v. Lynaugh, 883 F.2d 363, 367 (5th Cir. 1989).
18
Eighth Amendment.13 This court has previously rejected such claims
in similar or identical circumstances. It was not error for the
district court to deny relief on these claims.
Two of Felder’s other claims were inadvertently not ruled
on by the district court. Under the circumstances, where they are
easily resolved on the record and Felder already complains of the
time this case has taken, we can affirm the district court’s denial
of habeas corpus.
The first of these two claims is that there was
insufficient evidence of Felder’s future dangerousness in the
punishment phase of trial. Given the facts recited above --
including the brutality of the murder itself, Felder’s prior
burglary convictions, and his possession of a concealed weapon upon
arrest -- the contention that the evidence was insufficient must
fail.
The second claim on which the district court did not rule
is Felder’s challenge to the prosecution’s use of victim character
evidence. The state court found that Felder was barred from
raising the victim character evidence because his counsel never
objected to that testimony. This is true with respect to only some
of the testimony now invoked. In any event, the Supreme Court has
13
The lethal injection claim is procedurally barred. Several circuits have
applied habeas requirements to suits challenging methods of execution, even when
they are denominated civil rights claims. See Williams v. Hopkins, 130 F.3d 333
(8th Cir.), cert. denied, 118 S. Ct. 595 (1997); McQueen v. Patton (In re Sapp),
118 F.3d 460 (6th Cir.), cert. denied, 521 U.S. 1130 (1997); Felker v. Turpin,
101 F.3d 95 (11th Cir. 1996). But see Fierro v. Gomez, 77 F.3d 301 (9th Cir.),
vacated and remanded in light of new statute, 519 U.S. 918, 117 S. Ct. 285
(1996).
19
held that the Eighth Amendment poses no per se bar to a state’s
decision to allow victim impact evidence in the sentencing phase of
a capital case. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.
Ct. 2597, 2609 (1991). The testimony about the victim here -- that
Hanks “never refused anyone anything,” “was always in good spirits
even though he was disabled,” and was “a very good natured person”
who “didn’t have any enemies” -- was no more inflammatory than what
this court has allowed in other cases. See, e.g., Westley v.
Johnson, 83 F.3d 714, 722 (5th Cir. 1996) (testimony about victim’s
“community volunteer service and other good deeds”); Wiley v.
Puckett, 969 F.2d 86, 105 (5th Cir. 1992) (testimony that victim
was “not a violent or mean person, that he was known in the
community as ‘Mr. Good Buddy,’ and that he occasionally loaned
small amounts of money”). Furthermore, the potential impact of the
testimony must be considered in perspective with the facts of the
crime itself. See United States v. Hall, 152 F.3d 381, 405 (5th
Cir. 1998), cert. denied, 119 S. Ct. 1767 (1999).
VII. Conclusion
Because none of Felder’s claims justifies granting habeas
corpus relief, the district court’s judgment is AFFIRMED.
AFFIRMED
20