Whitaker v. Quarterman , 200 F. App'x 351 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 19, 2006
FOR THE FIFTH CIRCUIT
______________________
Charles R. Fulbruge III
No. 05-70022 Clerk
______________________
GEORGE H. WHITAKER, III,
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 Southern District of Texas, Houston Division
Case No. 4:04-CV-00886
___________________________________________________
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
Petitioner George Whitaker, a Texas death row
inmate, filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 with the United States District
Court for the Southern District of Texas on March 4,
*
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determined that this opinion should not be published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.
1
2004. The district court dismissed Whitaker’s petition
in an opinion and order dated March 18, 2005. Whitaker
now seeks a Certificate of Appealability (“COA”) from
the district court’s decision on three of his claims for
relief.
I. Background
Whitaker was convicted of capital murder by a Texas
jury on March 26, 1996. During the punishment phase of
Whitaker’s trial, Whitaker’s counsel presented
mitigation evidence in the form of testimony from a
number of Whitaker’s friends and relatives, who
testified generally that Whitaker was a good-natured and
law-abiding citizen. Among the defense witnesses called
during the punishment phase was Whitaker’s mother, who
testified that, among other things: (i) Whitaker’s
father had beaten him when he was a child; (ii) Whitaker
had attempted to commit suicide on several occasions;
and (iii) Whitaker fell from a moving truck and hit his
head when he was a child. Whitaker’s trial counsel did
not present any expert testimony during the punishment
phase of the trial, and counsel did not have Whitaker
2
examined by a mental health expert at any point prior to
or during the trial.1 At the conclusion of the
punishment phase, Whitaker was sentenced to death.
Whitaker unsuccessfully appealed his sentence and
conviction in the Texas state courts, and the United
States Supreme Court denied Whitaker’s petition for a
writ of certiorari. Whitaker then filed a state habeas
petition, which was also denied by the state courts.
While Whitaker’s state habeas petition was pending, but
after the deadline for filing a state petition had
expired, Whitaker filed a “supplement” to his petition,
which contained three additional claims (including one
of the claims that he asserts in this court). The Texas
Court of Criminal Appeals dismissed Whitaker’s
supplemental petition as an abuse of the writ and
1
In affidavits submitted in connection with
Whitaker’s state post-conviction proceedings,
Whitaker’s trial counsel stated that they did not
retain a mental health expert because they felt that
such an expert would not assist them in this case.
Counsel also stated that they made a strategic decision
not to offer expert testimony during the punishment
phase of Whitaker’s trial because “family members are
always much more persuasive and are in a much better
position than any expert to present a better and more
complete picture of the applicant’s background.”
3
declined to address the merits of any of petitioner’s
additional claims.
Whitaker then filed his federal habeas petition in
the district court. The district court granted the
State’s motion for summary judgment, dismissed
Whitaker’s petition in its entirety, and denied a COA.
Whitaker now requests a COA from this court on three
claims: (1) that trial counsel was ineffective for
failing to adequately investigate and present expert
mitigating evidence concerning Whitaker’s mental
condition at the punishment phase of his trial; (2) that
the Texas death penalty statute, combined with the
State’s plea bargain offer of life imprisonment, imposed
an unconstitutional burden on Whitaker’s rights to a
trial by jury and to plead not guilty, in violation of
United States v. Jackson, 390 U.S. 570 (1968); and (3)
that Whitaker was constitutionally entitled, under
Simmons v. South Carolina, 513 U.S. 154 (1994), to
inform the jury that, if sentenced to life imprisonment,
rather than death, he would not be eligible for parole
for 40 years.
4
II. Legal Standard
Our review of Whitaker’s request for a COA is
governed by the Antiterrorism and Effective Death
Penalty Act, which provides that a petitioner can appeal
a district court’s dismissal of a petition under 28
U.S.C. § 2254 only if either the district court or this
court issues a COA. See 28 U.S.C. § 2253(c)(1); Fed. R.
App. P. 22(b)(1). A court can issue a COA “only if the
applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Supreme Court has explained that under this
standard, a COA should issue only when the petitioner
demonstrates “that jurists of reason could disagree with
the district court’s resolution of his constitutional
claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). Thus, a petitioner seeking a COA must show
that “‘reasonable jurists would find the district
court’s assessment of the constitutional claims
debatable or wrong.’” Id. at 338 (quoting Slack v.
5
McDaniel, 529 U.S. 473, 484 (2000)).
When determining whether a petitioner has
established an entitlement to a COA, we do not fully
consider the underlying factual and legal bases in
support of the petitioner’s claims. Id. at 336.
Rather, this court conducts only a limited, “threshold
inquiry into the underlying merit of [the petitioner’s]
claims.” Id. at 327. Finally, in capital cases, doubts
over whether a COA should issue are to be resolved in
favor of the petitioner. See Newton v. Dretke, 371 F.3d
250, 254 (5th Cir. 2004).
III. Discussion
A. Ineffective Assistance of Counsel
Whitaker first asserts that he is entitled to a COA
on his claim that trial counsel was ineffective during
the punishment phase of his trial for failing to
adequately investigate and present mitigating evidence
relating to his mental health and mental condition.
To succeed on a claim for ineffective assistance of
counsel, Whitaker must show both that trial counsel’s
performance was constitutionally deficient and that he
6
was prejudiced by counsel’s deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). We
measure the adequacy of counsel’s performance against an
objective standard of reasonable performance based on
accepted professional norms. See Rompilla v. Beard, 545
U.S. 374, 125 S. Ct. 2456, 2462 (2005) (citing
Strickland, 466 U.S. at 688). To establish prejudice, a
petitioner must show that there is a reasonable
probability that, absent counsel’s deficient
representation, the outcome of the proceedings would
have been different. Strickland, 466 U.S. at 694. To
assess prejudice during the sentencing phase of a
capital proceeding, the court “reweigh[s] the evidence
in aggravation against the totality of the available
mitigating evidence.” Wiggins v. Smith, 539 U.S. 510,
534 (2003).
In this case, Whitaker argues that trial counsel
conducted an inadequate investigation into potential
mitigation evidence during the punishment phase of his
trial. Specifically, Whitaker asserts that, although
counsel knew that Whitaker was beaten as a child,
7
periodically suffered seizures, had attempted to commit
suicide on several occasions, and had suffered a head
injury after falling from a moving truck as a child,
counsel failed to have Whitaker examined by, or to
present testimony from, a mental health expert during
the punishment phase of his trial. Whitaker asserts
that this constitutes deficient performance because,
given this background information, any reasonable
attorney would have at least had Whitaker examined by a
mental health expert before concluding that it would not
be helpful to use a mitigation or mental health expert
at trial.
The state habeas court rejected Whitaker’s claim.
It held that trial counsel’s failure to present
mitigation evidence from a mental health expert or a
mitigation expert did not rise to the level of
ineffective assistance of counsel because the alleged
failures resulted from the reasonable strategic
decisions of trial counsel. The district court
dismissed this claim because it found that Whitaker had
failed to establish that the state court’s decision was
8
an unreasonable application of Strickland. The district
court noted that the mitigating evidence in question was
presented to the jury through the testimony of
Whitaker’s mother, and it found that Whitaker had failed
to show how this evidence would have been presented
differently by a mental health expert. The district
court also found that, because Whitaker had not produced
an opinion from a mental health expert in support of his
claims, the court could “only speculate on how a mental
health expert could have developed punishment phase
evidence that had a reasonable probability of a
different result,” and that “[s]uch speculation cannot
serve as the basis for habeas relief.” Whitaker v.
Dretke, No. 04-886, slip op. at 29 (S.D. Tex. Mar. 18,
2005); see also id. at 18 (noting that Whitaker’s
failure to show that an expert would have uncovered
mitigating evidence different from that presented at
trial was a “fatal flaw” of Whitaker’s ineffective
assistance claim).
We find that reasonable jurists could not debate
the district court’s resolution of Whitaker’s
9
ineffective assistance of counsel claim, and,
accordingly, we deny Whitaker’s request for a COA on
this claim. Although reasonable jurists could debate
whether Whitaker’s trial counsel should have had
Whitaker examined by a mental health expert,2 they could
not debate the district court’s finding that Whitaker
cannot prevail on this claim because he has failed to
make any showing of what additional mitigation evidence
further investigation would have uncovered or how that
evidence could have changed the outcome of the penalty
phase of his trial.
This court has often stated that a petitioner
alleging ineffective assistance of counsel on the basis
of a failure to investigate “must allege with
specificity what the investigation would have revealed
and how it would have changed the outcome of the trial.”
Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005)
2
See Roberts v. Dretke, 356 F.3d 632, 639-40 (5th
Cir. 2004) (finding that reasonable jurists could
debate whether counsel’s failure to develop evidence of
mental illness was deficient performance in light of
available information suggesting that defendant had
mental problems).
10
(citing United States v. Green, 882 F.2d 999, 1003 (5th
Cir. 1989)); Lockett v. Anderson, 230 F.3d 695, 713 (5th
Cir. 2000) (quoting Green, 882 F.2d at 1003). Here,
Whitaker has not made any showing of how further
investigation, such as the retention of a mental health
expert, would have helped his mitigation case. This is
not a case in which the petitioner asserts that trial
counsel simply failed to uncover potential mitigation
evidence about the petitioner’s background. Rather,
Whitaker asserts that counsel was aware of the relevant
information, which was presented to the jury through the
testimony of Whitaker’s mother, but that counsel’s
investigation fell short because counsel failed to
investigate the potential mental health significance of
this background information. Yet Whitaker has failed to
present any evidence, such as an affidavit from a mental
health expert, to show that further investigation would
have yielded any significant mental health mitigation
evidence. As the district court noted, without such
evidence, we “can only speculate on how a mental health
expert could have developed punishment phase evidence
11
that had a reasonable probability of a different
result.” Whitaker, No. 04-886, slip op. at 29.
Whitaker openly acknowledges this deficiency and
attributes it to the failure of state habeas counsel.3
The law is clear in this circuit, however, that
ineffective assistance of state habeas counsel does not
excuse a petitioner’s failure to properly present his
federal habeas claims. See, e.g., Elizalde v. Dretke,
362 F.3d 323, 328-31 (5th Cir. 2004); Martinez v.
Johnson, 255 F.3d 229, 240-41 (5th Cir. 2001); Beazley
v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001). Thus,
Whitaker instead asserts that he does not need actual
evidence of what a mental health expert could have added
3
Whitaker also asserts that federal habeas counsel
would be barred from introducing such evidence in
support of his claims for the first time in the federal
habeas proceedings because of the exhaustion doctrine.
See, e.g., Anderson v. Johnson, 338 F.3d 382, 386-87
(5th Cir. 2003) (noting that exhaustion doctrine
prevents a petitioner from presenting in federal court
material additional evidence not presented to the state
court). We need not decide here whether any new
evidence would be barred by exhaustion principles,
however, because Whitaker did not present any new
evidence before either this court or the district
court.
12
to his mitigation case. Rather, he argues that this
court can simply take judicial notice of the potential
value of mental health mitigation evidence.
We decline Whitaker’s invitation to find that a
petitioner can establish ineffective assistance of
counsel without any showing as to (1) what additional
evidence would have been available had counsel conducted
a reasonable investigation; or (2) how that evidence
could have affected the outcome. Although we recognize
that testimony from a mental health expert is frequently
a valuable source of mitigation evidence in capital
sentencing proceedings, we simply cannot assume that
such evidence would have been available or reasonably
likely to lead to a different result in any particular
case absent some indication as to what a mental health
expert would have testified on the witness stand. To do
so would eviscerate Strickland, as it would permit a
petitioner to establish a constitutional violation based
on nothing more than speculation. Accordingly, we deny
Whitaker’s request for a COA on his ineffective
assistance of counsel claim. Reasonable jurists could
13
not debate the district court’s ultimate determination
that Whitaker has not met his burden of showing that
counsel’s failure to further investigate or present
mental health mitigation evidence constitutes
ineffective assistance of counsel.
B. The Jackson Claim
Whitaker next argues that his death sentence is
unconstitutional because the state’s plea offer of life
imprisonment impermissibly burdened his rights to plead
not guilty and to be tried by a jury. Whitaker first
raised this claim in his untimely “supplement” to his
original state habeas petition. Although the state
court clerk initially treated this supplemental filing
as a part of Whitaker’s original petition, the Texas
Court of Criminal Appeals ultimately characterized the
filing as a second or successive pleading and dismissed
it as an abuse of the writ. The district court
dismissed this claim after finding both that the claim
was procedurally defaulted and that it was ultimately
meritless.
1. Procedural Default
14
Where a state court has previously dismissed a
habeas petitioner’s claim pursuant to an adequate and
independent state procedural ground, a federal court
will not consider that claim unless the petitioner shows
either (i) cause for the default and actual prejudice;
or (ii) that a fundamental miscarriage of justice will
result if the claim is not considered. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991). This court has
repeatedly held that a dismissal for abuse of the writ
under Texas law is an adequate and independent state
procedural ground for dismissal. See Aguilar v. Dretke,
428 F.3d 526, 533 (5th Cir. 2005).
Whitaker does not seriously dispute that his
supplemental state habeas petition, which contained his
Jackson claim, was untimely under Texas law. Nor does
Whitaker attempt to show either cause and prejudice or a
fundamental miscarriage of justice. Rather, Whitaker
argues only that the court should not read the Texas
statute governing the filing of capital habeas petitions
“hyper-technically” to deem a supplemental petition
successive when the supplemental petition is filed
15
before the original petition is decided on the merits.
Because Whitaker neither disputes that the Texas Court
of Criminal Appeals was permitted to treat his
supplemental petition as a second or successive petition
as a matter of Texas law nor asserts that the Texas
procedural rule conflicts with federal law, we find that
the district court properly dismissed this claim as
procedurally defaulted.
2. The Merits
Even were Whitaker’s Jackson claim not procedurally
defaulted, we would still deny his request for a COA
because reasonable jurists could not debate the district
court’s resolution of this claim on the merits. In
Jackson, the Supreme Court held that a section of the
Federal Kidnaping Act violated the defendant’s Fifth and
Sixth Amendment rights because it permitted the death
penalty to be imposed on only those defendants who
insisted on asserting their rights to plead not guilty
and to be tried by a jury. 390 U.S. at 582-83.4 The
4
The Jackson court interpreted the statutory
provision at issue in that case to prohibit a death
sentence in cases where the defendant either pleaded
16
Court found that, because the statute reserved the death
penalty exclusively for defendants who were convicted
after a jury trial, it impermissibly penalized those
defendants for choosing to assert their constitutional
rights. Id. at 382-83. Whitaker asserts that the Texas
capital sentencing scheme is analogous to the statutory
scheme in Jackson because it permits a defendant charged
with capital murder to avoid a possible death sentence
only if the defendant agrees to plead guilty and the
state agrees not to seek the death penalty.
Whitaker’s argument is meritless. First, Whitaker
ignores a crucial distinction between the statutory
scheme in Jackson and the Texas capital sentencing
scheme. In Jackson, a defendant could be sentenced to
death only if he pleaded not guilty and insisted on a
trial by jury; if the defendant either pleaded guilty or
guilty or waived the right to a jury trial. See id. at
581 (“Under the Federal Kidnaping Act, therefore, the
defendant who abandons the right to contest his guilt
before a jury is assured that he cannot be executed;
the defendant ingenuous enough to seek a jury acquittal
stands forewarned that, if the jury finds him guilty
and does not wish to spare his life, he will die.”).
17
waived a jury trial, a death sentence could not be
imposed. Under Texas law, however, a defendant who
pleads guilty to a capital offense still faces the
possibility of a death sentence unless the prosecution
agrees not to seek the death penalty. Thus, the Texas
statute does not impermissibly reserve the death penalty
for those defendants who assert their constitutional
rights. See Corbitt v. New Jersey, 439 U.S. 212, 217
(1978); Spinkellink v. Wainwright, 578 F.2d 582, 608
(5th Cir. 1978). Second, Jackson does not prevent
prosecutors from exercising their discretion to offer
the possibility of a lesser sentence in exchange for a
guilty plea, even in cases involving the death penalty.
See Brady v. United States, 397 U.S. 742, 747-53 (1970);
Spinkellink, 578 F.2d at 608-09. Accordingly, the
prosecution’s plea bargain offer in this case did not
violate Jackson, and we deny Whitaker’s request for a
COA on this claim.
C. The Simmons Claim
Whitaker’s final claim is that the trial court
erred by not instructing the jury that, if sentenced to
18
life imprisonment, Whitaker would not be eligible for
parole for 40 years. In Simmons v. South Carolina, 512
U.S. 154, 168-69, 171 (1994), the Supreme Court held
that, in states where life without parole is a capital
sentencing option, the defendant is entitled to inform
the jury that the alternative to a death sentence is
life without parole. This court has repeatedly refused
to extend Simmons to require that state courts allow
capital defendants to inform the jury about parole
eligibility where a life sentence would include a
possibility of parole. See, e.g., Coleman v.
Quarterman, 456 F.3d 537, 544-45 (5th Cir. 2006); Hughes
v. Dretke, 412 F.3d 582, 591-92 (5th Cir. 2005); Miller
v. Johnson, 200 F.3d 274, 290-91 (5th Cir. 2000).
Accordingly, we find that reasonable jurists could not
dispute the district court’s resolution of this claim,
and we deny Whitaker’s request for a COA.
IV. Conclusion
For the reasons explained above, we find that
reasonable jurists could not dispute the district
court’s resolution of Whitaker’s claims, and we
19
therefore deny Whitaker’s request for a COA in its
entirety.
20