Lawton v. Johnson ( 2000 )

REVISED - March 3, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40512
STACY LAMONT LAWTON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(6:98-CV-41)
March 1, 2000
Before WIENER, BARKSDALE, and STEWART, Circuit Judges
PER CURIAM:*
Petitioner-Appellant, Stacy Lamont Lawton (“Lawton”), appeals the district court’s denial
of his petition for federal habeas corpus relief under 28 U.S.C. § 2254, challenging his death sentence
for the capital murder of Dennis Price while in the course of committing or attempting to commit a
robbery. For the following reasons we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our description of the factual background of this appeal is drawn from the Texas Criminal
Court of Appeals’ decision which affirmed Lawton’s conviction. Lawton v. State, 913 S.W.2d 542,
548 (Tex. Crim. App. 1995) (en banc); cert. denied, 117 S. Ct. 88 (1996). On the night of December
23, and early morning of December 24, 1992, Karlos Fields (“Fields”) and Carlos Black (“Black”)
*
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited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
were burglarizing several vehicles in Smith County. Using a stolen shotgun, Lawton stood guard
while Fields and Black burglarized the vehicles. Witnesses at the trial testified that Lawton stood at
a distance from the vehicles being burglarized, and pointed the shotgun at the windows and doors of
the houses near which the vehicles were parked. Lawton told Black and Fields that he would "bust
on" (sho ot) anyone who attempted to interfere in the burglary spree. In the pre-dawn hours of
Christmas Eve, Dennis Price, the victim, was awakened by his daughter, who informed him that his
truck was being burglarized. Price ran out into his front yard and was shot in the chest by Lawton.
Price died shortly thereafter as a result of the injuries sustained. Lawton, Fields , and Black were
apprehended after a high-speed car chase.
In February 1993, a grand jury indicted Lawton for the capital offense of murder with a
firearm, in the course of committing and attempting to commit the offense of robbery. Lawton was
found guilty by the jury. The next day the jury found that Lawton constituted a continuing threat to
society and that Lawton intended to kill his victim. The jury failed to find any mitigating
circumstances. Based on the jury’s findings the trial court sentenced Lawton to death. The Texas
Court of Criminal Appeals affirmed Lawton’s conviction, and the Supreme Court denied his
subsequent petition for certiorari. In April 1997, Lawton filed an application for habeas corpus relief
in the state trial court. The state trial court conducted two evidentiary hearings to determine some
previously unresolved factual issues regarding Lawton’s claims of ineffective assistance of counsel.
After these evidentiary hearings, the state trial court denied Lawton’s application. Lawton filed his
original application for habeas corpus relief in federal district court in January 1998, which alleged
ineffective assistance of counsel and six other claims.1 Following a motion by the state for summary
1
In his original application for writ of habeas corpus in the district court Lawton raised six issues:
1) ineffective assistance of counsel at the punishment phase of his trial, 2) the statutory language
which constitutes the second special issue at the punishment stage is unconstitutional, 3) defining
mitigating evidence as evidence which makes the defendant less “morally blameworthy” is
unconstitutional, 4) the trial court ’s failure to inform the jury that a life sentence would result in
incarceration for thirty-five years is unconstitutional, 5)there is no meaningful appellate review for
sufficiency of the evidence regarding the “mitigating evidence” special issue, 6) t he “mitigating
evidence” special issue is facially unconstitutional because the statutory provision fails to allocate a
burden of proof. On appeal to this court, the petitioner has only briefed his ineffective assistance of
2
judgment, the court denied Lawton’s petition for habeas corpus relief. In May 1998 the district court
granted Lawton a certificate of appealability on all issues raised in his application.
DISCUSSION
Lawton appeals the district court’s grant of summary judgment denying his application for
a writ of habeas corpus on two grounds. First, Lawton claims that he received ineffective assistance
of counsel at the punishment phase of his trial. Second, the petitioner contends that the state trial
court erred in failing to instruct the jury that a life sentence would result in the petitioner’s
incarceration for at least thirty-five years without the possibility of parole. The Antiterrorism and
Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996),
amended, inter alia, § 2244 and §§ 2253-2255 of chapter 153 of title 28 of the United States Code,
governs all habeas proceedings in federal courts filed after the statute’s enactment. Because Lawton
filed his habeas petition after the effective date of AEDPA, the act governs the disposition of this
appeal. Williams v. Johnson, 171 F.3d 300, 303 (5th Cir. 1999) (citing Lindh v. Murphy, 521 U.S.
320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997)). Accordingly, we may not grant relief with respect
to any claim that was adjudicated on the merits in a state court proceeding unless that 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. Williams v. Cain, 125 F.3d 269, 276-77 (5th Cir. 1997); 28
U.S.C. § 2254(d)(1). We follow §2254(d)(1) because that section sets forth the standard of review
for pure questions of law and for mixed questions of law and fact. Id.; See, e.g., Trevino v.
Johnson, 168 F.3d 173, 181 (5th Cir.1999); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998).
I. Ineffective Assistance of Counsel
counsel claim, and his jury instruction claim. Therefore, the other issues for which a certificate of
appealability was granted have been abandoned.
3
To assert a successful ineffectiveness claim, Lawton is required to establish both: (1)
constitutionally deficient performance by his counsel, and (2) actual prejudice as a result of his
counsel's ineffectiveness. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 483 L. Ed. 2d 674 (1984)). "Failure to prove either deficient performance or actual prejudice
is fatal to an ineffective assistance claim." Id. In order to satisfy the first prong of the Strickland
analysis, Lawton must prove that his counsel's performance fell below an objective standard of
reasonableness. See id. Reviewing courts must give counsel's performance high deference. See id.
Lawton claims that his trial counsel failed to provide him with effective assistance of counsel
at the punishment phase of his trial because his trial counsel failed to conduct a meaningful
investigation of his background for the purpose of presenting mitigating evidence to the jury. At the
punishment phase of the trial no mitigating evidence was offered on Lawton’s behalf.
At the evidentiary hearings held in state court to gather evidence regarding Lawton’s claims
of ineffective assistance of counsel there was extensive testimony. It is necessary for us to thoroughly
review this evidence in order to assess Lawton’s claim of ineffective assistance of counsel. Lawton’s
lead trial counsel in the underlying action, William Wright, testified as to his efforts to gather
mitigating evidence on Lawton’s behalf. Wright testified that he contacted two psychologists and one
psychiatrist in preparation for testimony regarding Lawton’s future dangerousness. Wright hoped
that Dr. Terry Landrum would testify that Lawton posed no future danger, that in general predictions
of future dangerousness are not reliable, and to provide testimony about the prison classification
system. Wright stated that after he allowed Dr. Landrum to conduct a psychological evaluation of
Lawton he believed that if he called Dr. Landrum to testify that it would open the door to information
about Lawton’s previous incarcerations. During a previous incarceration Lawton had been
disciplined for delivery of a controlled substance while in the Smith County Jail. Therefore, he made
a strategic decision not to call Dr. Landrum to testify on Lawton’s behalf. Wright further testified
that although he did not use Dr. Landrum as a witness, he did consult with Dr. Landrum regarding
the testimony of the state’s expert on future dangerousness, and used the information he received
4
from Dr. Landrum in his cross examination of the state’s expert. Wright also stated that he talked
to Dr. Landrum about whether another expert witness would be helpful, and Dr. Landrum said that
it would not help.
Wright also recalled that he got Lawton’s records from the penitentiary, and he asked Lawton
for names of people to contact who would be willing to testify for him at the punishment phase of the
trial. Wright also asked Lawton about his family background, schooling, and any injuries he had
suffered. Wright says that he then asked his investigator, Silton Joseph “Buck” Fontenot
(“Fontenot”), to contact everyone that Lawton had mentioned. Wright states that Fontenot told him
that he contacted everyone on the list. He testified that Fontenot told him Lawton’s mother said that
Lawton had been spoiled by his great-grandmother as a child, and that she did not know a teacher
or preacher who would testify on Lawton’s behalf because Lawton refused to go to church. Wright
also spoke with Lawton’s sisters outside the courtroom. He said the sisters told him that Lawton had
a good childhood and was spoiled by his great-grandmother, and therefore they could not testify to
any hardship in his childhood. The sisters also told Wright that they loved their brother and that he
did not have a reputation for violence. Wright was not directly asked whether he made a strategic
decision not to call the sisters to testify. Wright further recalled that Lawton’s great-grandmother
that raised him died a week prior to the trial.2
Fontenot, Wright’s investigator, was also called to testify at this evidentiary hearing. He
stated that he was appointed by the court to assist in Lawton’s defense as an investigator. On direct
examination Fontenot stated that he remembered talking to some witnesses on Lawton’s behalf, but
he did not remember who, when, or where he talked to these witnesses. In his official court billing,
Fontenot recorded four hours for witness interview on three different dates.
Audrey Lorraine Rogers, Lawton’s mother, also testified at the evidentiary hearing. Ms.
2
Donald Killingsworth, Wright’s co-counsel in the underlying action, testified at the state habeas
evidentiary hearing. Killingsworth confirmed Wright’s testimony that the defense did contact several
psychologists for possible testimony on Lawton’s behalf, including Dr. Jerry Landrum. Killingsworth
further stated that although he had not talked to Lawton’s family himself he believed that the family
had been contacted, and Wright had decided that their testimony would not be helpful.
5
Roger’s testified that she was contacted by Fontenot and asked if she knew anyone in the
neighborhood who would be willing to testify on Lawton’s behalf. Rogers stated that this
conversation lasted for approximately three minutes, and that she was never contacted by Fontenot
or Wright again. Rogers also recalled that she attempted to contact Fontenot at his office, but he was
not in and she never attempted to call him again. Rogers testified that she was never asked by the
defense team about Lawton’s childhood, hardships, or anything else about his early life. Rogers told
the court that Lawton’s birth father was convicted for armed robbery and was in the penitentiary until
Lawton was nineteen. Rogers further recalled that Lawton’s step father once beat him severely with
a shoe, and that she was also physically abused by Lawton’s step father. Rogers also explained that
Lawton had a loving relationship with his girlfriend and her three children, and that Lawton did not
have a reputation for violence or being a bully. On cross examination Rogers conceded that Lawton
had not been ro utinely abused by his step father, and that he was primarily raised by his great-
grandmother who provided him with a “nice life.”3
“[F]ailure to present a case in mitigation during the sentencing phase of a capital murder trial
is not, per se, ineffective assistance of counsel." West v. Johnson, 92 F.3d 1385, 1408 (5th Cir. 1996)
(citing Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir.1988), vacated and rem anded on other
grounds, 503 U.S. 222, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992), following remand, 979 F.2d 38
(5th Cir.1992) (modifying original opinion in other respects)). See also, e.g., Andrews v. Collins, 21
F.3d 612, 623-25 (5th Cir.1994); Lincecum v. Collins, 958 F.2d 1271, 1278-80 (5th Cir.), cert.
denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992); DeLuna v. Lynaugh, 873 F.2d 757,
758-60 (5th Cir.), cert. denied, 493 U.S. 900, 110 S. Ct. 259, 107 L. Ed. 2d 208 (1989).
3
Sheryl Rogers, Lawton’s sister, testified at the hearing. She stated that if called to testify she
would have said that Lawton did not have a father figure growing up , that he did not have a
reputation as a bully, and that she loved him. Rogers stated that she was not contacted by any
member of the defense team prior to the trial.
Therese Grady, another of Lawton’s sisters says that Wright did speak to her outside in the
hallway of the courtroom, but that she was not contacted prior to trial. She stated that if called to
testify she would have told the jury that she loved her brother, and that he did not have a reputation
as a bully.
6
Furthermore, a defendant's trial counsel will not be found to have given ineffective assistance
if the attorney was legitimately concerned that any mitigating testimony would have been presented
by witnesses whose knowledge would have opened the door to more damaging evidence under
cross-examination. See Williams v. Cain, 125 F.3d at 278 (citing Williams v. Collins, 16 F.3d 626,
632 (5th Cir.), cert. denied, 512 U.S. 1289, 115 S. Ct. 42, 129 L. Ed. 2d 937 (1994)).
In the present case, Lawton has put forth the affidavits of several family members including
his mother and sisters that they were not contacted by the trial counsel to testify on Lawton’s behalf
at the punishment phase of the trial. Lawton also includes an affidavit from a clinical psychologist,
Dr. Patrick Lawrence, who states that he would have testified that in Texas prisons there is an inmate
classification system which works well in controlling and managing inmates. Lawton contends that
this testimony would have been helpful to the jury in assessing his future dangerousness in society,
because it would have shed light on the likelihood of Lawton harming other inmates in the prison
environment.
We have considered these affidavits and the testimony of all of the witnesses in the state
habeas proceedings. Although it is evident that Lawton’s counsel did not present any witnesses in
mitigation, it appears that this was done as a strategic decision and not due to lack of effort. See
Mann v. Scott, 41 F.3d 968, 983-84 (5th Cir.1994) (reviewing record evidence and finding that
counsel made a strategic decision not to offer mitigating evidence during the punishment phase of a
capital trial). Lawton’s trial counsel had a legitimate concern that testimony by Dr. Landrum would
open the door to damaging cro ss examination regarding Lawton’s previous behavior while in the
Smith County Jail. Unlike some of this court’s previous cases, we have a fully developed record that
shows that Wright did contact witnesses on future dangerousness and decided not to use them
because he felt they would be exposed to damaging cross examination. Compare Wilson v. Butler,
813 F.2d 664, 672 (5th Cir. 1987) (concluding that the existing record was inadequate for purposes
of determining whether counsel made a strategic decision not to offer mitigating evidence during the
punishment phase of a capital trial or whether that decision was professionally reasonable).
7
It is also evident that Lawton’s trial counsel made a strategic decision not to call Lawton’s
family to testify on his behalf. These witnesses would not have been able to testify to any severe
hardship or abuse in Lawton’s past, and would have opened the door to their testimony that in fact
they believed Lawton had a reasonably good childhood and was spoiled by his great grandmother.
While it may have been beneficial for Lawton’s counsel to expend more effort to have meaningful
interaction with Lawton’s family when assessing their helpfulness, it is clear that he did locate and
talk to Lawton’s family members in an effort to discover mitigating testimony. The decision not to
call Lawton’s family was a strategic one and does not constitute deficient performance within the
meaning of Strickland. See Williams v. Cain, 125 F.3d at 278 (finding that failure to present
mitigating lay testimony from family and friends does not constitute deficient performance if the
attorney could have concluded, for tactical reasons, that attempting to present such evidence would
be unwise).
Moreover, Lawton has failed to show any prejudice to him as a result of his counsel’s decision
not to present mitigation evidence. It is undisputed that the State produced evidence at Lawton’s trial
from several law enforcement officials that Lawton had a bad reputation for being peaceful and law
abiding. The state also presented expert testimony from a psychologist that Lawton would constitute
a continuing threat to society. Finally, the state presented a statement from the victim’s daughter.
Due to this extensive and persuasive evidence presented by the St ate it is highly unlikely that the
testimony of Lawton’s family or Dr. Landrum would have produced a different result. Therefore,
Lawton suffered no prejudice from the absence of their testimony.
II. Failure to Instruct jury on parole eligibility
Lawton argues that the trial court’s failure to instruct the jury that a life sentence would result
in Lawton being incarcerated for thirty-five years is a violation of the Eighth and Fourteenth
Amendments to the United States Constitution. Lawton admits that Fifth Circuit precedent on this
issue is against him, but argues that two Supreme Court decisions weigh in his favor. See Walton
v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990); Simmons v. South Carolina, 512
8
U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994). After a review of those decisions, we find that
Lawton’s claim is without merit. In Allridge v. Scott, 41 F.3d 213, 221-22 (5th Cir. 1994), this court
held that because the state of Texas does not statutorily provide for life imprisonment without parole,
due process does not require the court to instruct the jury on a defendant’s parole eligibility. We
interpreted Simmons to apply only when the defendant is legally ineligible for parole, which is never
the situation for Texas inmates sentenced to life in prison. See Allridge, 41 F.3d at 222.
CONCLUSION
We find that Lawton did not receive ineffective assistance of counsel during the
punishment phase of his trial. We further find that the trial court’s failure to instruct the jury on
possible parole eligibility did not violate Lawton’s constitutional rights. Therefore, the judgment
of the district court to deny Lawton’s petition for habeas corpus relief is AFFIRMED.
9