King v. Cockrell ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-40270
CALVIN KING,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(98-CV-377)
February 26, 2002
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant, Calvin King (King), was convicted and
sentenced to die in Texas state court for the murder of Billy Wayne
Ezell (Ezell). King now requests a certificate of appealability
(COA) to appeal the district court's denial of habeas corpus relief
*
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opinion should not be published and is not precedent except under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.
under 28 U.S.C. § 2254 on the basis of ineffective assistance of
counsel. Having carefully reviewed the entire record of this case,
and having fully considered the parties' respective briefings, we
find that King has not made a substantial showing that he was
denied effective assistance of counsel. Therefore, we DENY King's
application for a COA.
BACKGROUND
Ezell was found stabbed to death on February 26, 1994. The
record reflects that Ezell and a friend had recently withdrawn
$25,000 from a bank to purchase crack cocaine, which they intended
to sell. On February 25, King rented room 38 at the Cedar Sands
Motel in Beaumont, Texas. That night, Leonard Johnson, Carlette
Gibbs, and Danyell Williams joined King in room 38 and smoked crack
cocaine into the early morning hours of the next day. Ezell sold
crack to King and Johnson and went in and out of room 38 several
times during the evening. Ezell was seen going into room 38
shortly before his body was found there.
On February 26, King returned to his apartment, which he
shared with Danyell Williams. King's shirt was bloody and he was
in possession of crack cocaine and blood stained money. King,
Johnson, Gibbs, and Williams washed the blood out of the money.
King told Williams that “he had to kill a white boy because the
white boy was trying to kill” him.1
1
The record does, in fact, reflect that Ezell was white.
2
On June 22, 1995, King was found guilty of capital murder, and
sentenced to death in the Criminal District Court of Jefferson
County, Texas, No. 66665, on June 23, 1995. The Texas Court of
Criminal Appeals affirmed the conviction and death sentence on
September 24, 1997. King v. State, 953 S.W.2d 266, 267 (Tex. Crim.
App. 1997). King filed a writ of habeas corpus in state court on
March 16, 1998, in which he presented his claim of ineffective
assistance of counsel. After an evidentiary hearing, the state
district court recommended that relief be denied. On February 17,
1999, the Texas Court of Criminal Appeals adopted the trial court's
findings of fact and conclusions of law, and denied King's state
writ of habeas corpus. Ex Parte King, Writ No. 39,429-01.
On October 15, 1999, King filed a federal habeas petition,
again claiming ineffective assistance of counsel. On November 15,
2000, the magistrate judge assigned to the case entered proposed
findings and recommended denying King's requested relief. The
district court adopted the magistrate judge's findings and
recommendation and denied relief on February 6, 2001. The district
court denied the COA in an order dated May 11, 2001. King now
seeks a COA to appeal the district court's ruling.
STANDARD OF REVIEW
King's application for a COA is governed by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). Therefore, in
order for King to be successful in his request for a COA, he must
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make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
483 (2000). King must accomplish this task by “demonstrat[ing]
that reasonable jurists would find the district court's assessment
of the constitutional claims debatable or wrong.” Slack, 529 U.S.
at 484.
This Court will determine whether a COA should issue by
“viewing the petitioner's arguments through the deferential scheme
laid out in [AEDPA].” Barrientes v. Johnson, 221 F.3d 741, 772
(5th Cir. 2000) (citing 28 U.S.C. § 2254(d)). A state court's
adjudication of the issues raised in the habeas petition must
receive deference under AEDPA, unless the adjudication:
(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). Furthermore, “a determination of a factual
issue made by a State court shall be presumed to be correct.”
§ 2254(e)(1). The petitioner, therefore, bears “the burden of
rebutting the presumption of correctness by clear and convincing
evidence.” Id. Significantly, in capital cases, doubts as to
whether a COA should issue must be resolved in favor of the
petitioner. Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir. 1999).
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DISCUSSION
King contends that his trial counsel was ineffective as a
result of: (1) the manner in which counsel investigated the facts
of the case; (2) counsel's failure to preserve objections for
appellate review; and (3) counsel's failure to investigate and use
certain mitigation evidence in the punishment phase of the trial.
The Supreme Court has clearly stated that a person's “right to
counsel is the right to the effective assistance of counsel.”
Strickland v. Washington, 466 U.S. 668, 686 (1984). If a convicted
defendant is to be successful in making a claim that counsel's
performance was so deficient as to require the reversal of a
conviction or death sentence, two prongs must be met: (1) the
defendant must show that counsel's performance was deficient, and
(2) the defendant must show that the deficiency prejudiced the
defense. Strickland, 466 U.S. at 687. A court need not address
both prongs of this test. Amos v. Scott, 61 F.3d 333, 348 (5th
Cir. 1995). Rather a court “may dispose of such a claim based
solely on a petitioner's failure to meet either prong of the test.”
Id.
A. Trial counsel was not ineffective for the manner in which
they investigated the facts of the case.
King contends that his trial counsel were ineffective in the
manner that they investigated the facts of the case for two
reasons. First, King argues that counsel was ineffective because
they relied on a court-appointed investigator to interview
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witnesses. However, as the state habeas court and the federal
district court noted, neither Strickland nor any other authority
has ever concluded that utilizing a court-appointed investigator to
interview witnesses amounts to the ineffective assistance of
counsel. Without more evidence, King's argument is nothing more
than conclusory. As this Court has held, “[m]ere conclusory
allegations in support of a claim of ineffective assistance of
counsel are insufficient to raise a constitutional issue.” Green
v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998). Therefore, this
argument fails.
Second, King argues that counsel was ineffective because they
met with him on only two occasions prior to the commencement of
trial. King's only supporting authority for this argument is
Flores v. State, 576 S.W.2d 632 (Tex. Crim. App. 1978). In Flores,
an appointed investigator failed to conduct an investigation. Id.
at 633. As a result, counsel was forced to go to trial without
adequate knowledge of the facts of the case. Id. However, Flores
does not apply in this case. King has not demonstrated that his
counsel had an inadequate knowledge of the facts of the case when
they went to trial. On the contrary, the record from King's state
habeas proceeding indicates that trial counsel was very
knowledgeable about the facts of the case. Therefore, we conclude
that this argument also must fail.
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B. Trial counsel was not ineffective when they chose not to
pursue motions for mistrial.
King also contends that, after making proper objections, trial
counsel were ineffective for failing to preserve error for appeal
by not asking the court for a jury instruction or moving for a
mistrial on a number of occasions. King acknowledges that none of
these occasions individually can amount to ineffective assistance
of counsel. Rather, King argues that it is the cumulative effect
of all these occasions that amounts to ineffective assistance of
counsel.
The federal district court noted that King's trial counsel
conceded that their performance in this respect was deficient.
Thus, the court turned to whether King was able to demonstrate that
“there is a reasonable probability that, but for counsel's
unprofessional errors, the results of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Reasonable
probability” means a probability sufficient to undermine confidence
in the outcome of the proceeding. Id.
King contends that there is a reasonable probability that the
outcome of his trial would have been different had his counsel
followed through on their objections because members of the jury
would have been instructed to disregard evidence that they would
otherwise have been able to weigh however they chose. However, in
all of the instances that King alleges to have been prejudiced by
testimony that should not have been admitted, the district court
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found that the testimony was cumulative of other testimony that was
admitted without objection.
Having reviewed the record, we agree with the district court
that the evidence in question was cumulative. This court has found
that under Strickland, there is no prejudice when testimony is
duplicative of other testimony admitted at trial. Emery v.
Johnson, 139 F.3d 191, 197 (5th Cir. 1998). Again, we find that
King's assertions that the outcome of his trial would have been
different had the jury been instructed on numerous occasions to
disregard evidence are merely conclusory.
In addition, King complains that counsel failed to request a
jury instruction to disregard testimony that King intended to rob
Ezell, that counsel failed to persist in objecting to hearsay
testimony, and that counsel failed to request a mistrial based on
remarks made during the prosecutor's closing arguments. In all of
these instances, we agree with the district court that King argues
no facts or law that demonstrate prejudice. Thus, we conclude that
reasonable jurists would not disagree with the district court's
findings that any errors that may have been committed by King's
trial counsel were insufficient to undermine confidence in the
outcome of the trial.
C. Trial counsel was not ineffective for not introducing
additional mitigation evidence during the punishment phase of
the trial.
Finally, in his application for COA, King maintains that trial
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counsel failed to “investigate any possible 'avenues' provided by
readily obtainable sources to prepare and/or present mitigating
evidence.” We disagree.
This Court has held that a trial counsel's decision not to
present mitigation evidence is not per se ineffective assistance of
counsel. Crane v. Johnson, 178 F.3d 309, 314 (5th Cir. 1999);
Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997). The record
in this case shows that counsel sufficiently pursued different
avenues to obtain mitigation evidence. The fact that counsel made
a strategic decision “not to pursue and present potential
mitigating evidence on the grounds that it is double-edged in
nature is objectively reasonable, and therefore does not amount to
deficient performance.” Rector, 120 F.3d at 564. And, if that
strategic decision is an informed decision, it is “well within the
range of practical choices not to be second-guessed.” Id.
CONCLUSION
Both the state courts and the federal district court concluded
that King received effective assistance of counsel throughout his
trial. We agree. King has not shown that reasonable jurists would
have found that decision to be debatable or wrong. As a result, we
find that King has failed to make a substantial showing that he was
denied a constitutional right. Therefore, we DENY King's
application for a COA.
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