Williams v. Cockrell ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20505
JEFFERY LYNN WILLIAMS,
Petitioner - Appellant,
v.
JANIE COCKRELL,
Director, Texas Department of Criminal Justice,
Institutional Division
Respondent - Appellee,
Appeal from the United States District Court
for the Southern District of Texas
Houston Division
(H-00-CV-1178)
January 4, 2002
Before DAVIS, JONES and DeMOSS, Circuit Judges.1
PER CURIAM:
Jeffery Lynn Williams, a Texas death row inmate,
petitions this court for a Certificate of Appealability (“COA”)
pursuant to 28 U.S.C. § 2253(c)(2) to appeal the district court’s
order denying habeas corpus relief. For the reasons set forth
below, we DENY Williams’s application for a COA.
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Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
BACKGROUND
During the night of October 26, 1994, nine-year-old Jamie
Jackson was violently awakened by an intruder who attempted to
strangle her. The intruder then raped Jamie, hit her, threatened
to kill her and stole several items from her room. After the
intruder left, Jamie got out of bed and found her mother, Barbara
Jackson Pullins, lying dead on the living room floor. Pullins was
wearing only a pair of panties and her ankles were bound by a phone
cord. There were several burn injuries on her body, and she was
covered with pieces of burnt paper. An autopsy revealed that
Pullins had died of asphyxia due to strangulation.
A day after the murder, the police received a tip that
implicated Williams in the crime. The police arranged a photo
array, and Jamie identified a photograph of Williams as the
intruder who had raped her. After obtaining a search warrant, the
police found several items of Pullins’s property in the possession
of Williams. Williams was arrested. On his way to the police
station, Williams informed the arresting officers that he had
killed Pullins accidentally.
Williams later gave three videotaped confessions. In the
first confession, Williams explained that he and Pullins engaged in
consensual sexual intercourse on the night of her death. Williams
did not remember exactly how Pullins died, but he asserted at one
point that her death was an accident resulting from sex that got “a
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little too rough.” Williams later retracted the first confession,
and gave a second videotaped confession in which he disclaimed all
responsibility for Pullins’s death. Williams claimed that his
cousin, Lisa Adams, strangled Pullins while he stole property from
Pullins’s apartment. In a third videotaped statement, however,
Williams admitted that he was lying in his second statement. He
stated that he had forced his way into Pullins’s apartment with a
knife, forced Pullins to disrobe and tied her up with a phone cord.
According to Williams, he talked with Pullins a little while, had
sex with her, put a plastic bag over her head and then strangled
her. He burned her corpse several times to assure that she was
dead. Williams also confessed that he strangled and raped
Pullins’s daughter, Jamie.
Williams was indicted and convicted of capital murder in
a state court in Harris County, Texas. The court sentenced
Williams to death. The Texas Court of Criminal Appeals affirmed
the conviction and sentence in Williams v. State, 937 S.W.2d 479(Tex. Crim. App. 1996). Williams did not petition the Supreme
Court for writ of certiorari.
Williams’s subsequent application for a writ of habeas
corpus was handled by the same judge who had conducted the capital
murder trial. In his habeas petition, Williams alleged that he
received ineffective assistance of counsel because his two court-
appointed trial counsel failed to present to the jury evidence
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supporting an “erotic strangulation” theory. The habeas petition
also alleged an interrelated issue of ineffective assistance of
counsel because of his trial counsels’ failure to request a jury
instruction for lesser included offenses. The trial court issued
extensive findings of fact and conclusions of law recommending that
Williams’s application be denied on the basis that counsels’
decision not to pursue the erotic strangulation theory was a
“plausible, reasonable trial decision,” which did not constitute
ineffective assistance of counsel as defined by Strickland v.
Washington, 446 U.S. 668, 104 S.Ct. 2052 (1984). The Texas Court
of Criminal Appeals accepted the trial court’s findings and
recommendations. Ex Parte Williams, No. 43,354-01, slip op. at 2
(Tex. Crim. App. Nov. 2, 1999) (per curiam).
On January 27, 2000, Williams filed his federal petition
for writ of habeas corpus in the district court. The district
court denied habeas relief with a careful and detailed opinion and
refused to grant Williams a COA. Williams now seeks a COA from
this court.
A. DISCUSSION
Williams’s post-1996 federal habeas petition and
application for a COA are governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). See Slack v.
McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1600 (2000). AEDPA
provides that a COA will issue “only if the applicant has made a
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substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When the district court has rejected the
habeas petition on its merits, a habeas petitioner makes a
“substantial showing of the denial of a constitutional right” 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, 120 S.Ct. at 1604.
The “determination of whether COA should issue must be
made 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)). AEDPA requires
deference to state court adjudication of the issues raised in the
habeas petition unless the state 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.” See § 2254(d); Wheat v. Johnson, 238 F.3d 357, 360
(5th Cir. 2001). Factual issues resolved by the state habeas court
are presumed correct, and the petitioner bears the burden of
rebutting such a presumption by clear and convincing evidence. See
§ 2254(e)(1). “The presumption of correctness is especially
strong, where, as here, the trial court and the state habeas court
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are one and the same.” Miller-El v. Johnson, 261 F.3d 445, 449
(5th Cir. 2001).
The nature of the penalty in this capital case does not,
in itself, require the issuance of a COA. Clark v. Johnson, 202
F.3d 760, 764 (5th Cir. 2000). “However, in capital cases, doubts
as to whether a COA should issue must be resolved in favor of the
petitioner. Miller-EL, 261 F.3d at 449.
B.
Williams raises interrelated ineffective assistance
claims in his petition for habeas relief. To prevail on a claim of
ineffective assistance of counsel, Williams must prove that: (1)
the performance of trial counsel was deficient; and (2) the
deficient performance resulted in actual prejudice to Williams.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. “A court need not
address both prongs of the conjunctive Strickland standard, but may
dispose of such a claim based solely on a petitioner’s failure to
meet either prong of the test.” Amos v. Scott, 61 F.3d 333, 348
(5th Cir. 1995) (citation omitted).
To establish deficient performance, Williams must
demonstrate that “his trial counsel made errors so serious that
counsel was not functioning as the counsel guaranteed by the Sixth
Amendment.” Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999).
The Sixth Amendment right to counsel is violated where “counsel’s
representation fell below an objective standard of reasonableness.”
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Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. However,
“[j]udicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse sentence,
and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable.” Id. at 689, 104 S.Ct. at
2065 (citations omitted).
Williams alleges that his trial counsels’ performance was
deficient because counsel failed to investigate and present
evidence supporting an erotic strangulation theory, which could
have resulted in a conviction of a lesser-included offense.
“Failure to present [evidence does] not constitute ‘deficient’
performance within the meaning of Strickland if [counsel] could
have concluded, for tactical reasons, that attempting to present
such evidence would be unwise.” Williams v. Cain, 125 F.3d 269,
278 (5th Cir. 1997). The state habeas court determined that
counsel made a “plausible, reasonable trial decision” not to
present the erotic strangulation theory to the jury. This finding
was based the state court’s review of post-trial affidavits
submitted by Williams’s trial counsel and the court’s personal
knowledge of the evidence presented at trial.2 “A conscious and
2
Williams contends that a COA should be granted because the federal
district court denied relief without conducting an evidentiary hearing to
determine the level of evidentiary support for his erotic strangulation theory.
As the above discussion makes plain, there was no need for a hearing. The state
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informed decision on trial tactics and strategy cannot be the basis
of constitutionally ineffective assistance of counsel unless it is
so ill chosen that it permeates the entire trial with obvious
unfairness.” Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir.
1999). Williams has failed to demonstrate obvious ineffectiveness
resulting from counsels’ strategic decision to forego presenting
the erotic strangulation theory.
The state court’s findings and conclusions necessarily
refute Williams’s additional contention that his counsel failed to
sufficiently investigate evidence pertinent to the erotic
strangulation theory. Such evidence only had meaning if counsel
had sought to introduce Williams’s first confession in which he
briefly alluded to consensual, rough sex as the cause of Pullins’s
death. But the state court found that:
“. . . trial counsel believed that the
applicant’s first confession made [him] look
like a worse person than he appeared to be in
the third confession,”
“. . . trial counsel made the strategic trial
decision not to present the applicant’s first
two videotaped confessions to the jury,” and
“. . . trial counsel could not develop any
proof that there had been an ongoing sexual
relationship between [Williams] and [Pullins],
and that counsel could find no proof to
support any theory of erotic strangulation or
some similar occurrence.”
court’s findings and conclusions eliminate the viability of such a defensive
theory, because of its dependence on the admission of the first confession even
if the evidence alluded to by Williams existed.
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These findings demonstrate that counsel had studied the case
thoroughly enough to make the reasonable professional evaluation
that the erotic strangulation theory would be incredible before the
jury. Accepting the dubious assumption that the allegedly un-
investigated “evidence” to which Williams refers would have
supported the concept of erotic strangulation, that defense would
have, in counsel’s view, backfired if disbelieved by the jury. It
cannot be constitutionally ineffective for counsel to fail to
investigate an implausible and potentially damaging “defense.”
Williams has not shown, with the heightened degree of certainty
required by AEDPA, that the state court’s findings and conclusions
were unreasonable.
Williams also alleges that his counsels’ performance was
deficient because counsel failed to request a jury instruction on
the lesser-included offenses of manslaughter and criminally
negligent homicide. This claim, however, is inseparable from
Williams’s contention that his trial counsel should have presented
evidence of Pullins’s death resulting from rough sex. Williams
concedes in his brief that “failure of his [erotic strangulation]
claim necessarily produces the failure of [the jury instruction]
claim as well.” We agree and so rule.
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CONCLUSION
For the foregoing reasons, Williams has not made a
substantial showing that his Sixth Amendment right to counsel was
violated. Therefore, we DENY his application for a COA.
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