Simon v. Epps , 344 F. App'x 69 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    September 9, 2009
    No. 08-70011                    Charles R. Fulbruge III
    Clerk
    ROBERT SIMON, JR
    Petitioner-Appellant
    v.
    CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
    OF CORRECTIONS
    Respondent-Appellee
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 2:04-cv-26
    Before JOLLY, DENNIS, and PRADO, Circuit Judges.
    PER CURIAM:*
    Robert Simon, Jr. was convicted and sentenced to death for the murders
    of Carl and Bobbie Joe Parker and their son Gregory Parker. The district court
    denied Simon’s federal habeas petition, and he now seeks a Certificate of
    Appealability (“COA”) on several ineffective-assistance-of-counsel claims.
    Specifically, Simon claims that his counsel was ineffective in (1) failing to
    investigate his history of familial abuse and present that history as mitigation
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    No. 08-70011
    evidence at sentencing, (2) failing to offer witnesses to corroborate his contention
    that his confession was physically coerced, (3) failing to use extra for-cause
    challenges at jury selection, and (4) failing to rehabilitate jurors who refused to
    impose the death penalty.
    We grant a COA on Simon’s first claim. The Supreme Court of Mississippi
    held that Simon’s trial counsel was not ineffective for failing to investigate
    Simon’s history of familial abuse because there was no evidence that counsel
    knew or should have known that such abuse took place. According to that court,
    counsel could not be ineffective absent some reason to investigate Simon’s
    history of abuse. As detailed below, we find it debatable whether the Supreme
    Court of Mississippi’s decision was an objectively reasonable application of
    Strickland v. Washington, 
    466 U.S. 668
     (1984).
    As to Simon’s remaining claims, we deny a COA because the district
    court’s resolution of these claims is not debatable among jurists of reason. We
    therefore grant in part and deny in part Simon’s petition for a COA.
    I. BACKGROUND
    The parties are familiar with the background of this case, and we will only
    briefly review the relevant facts. Carl and Bobbie Joe Parker lived in Quitman
    County, Mississippi with their children, Charlotte and Gregory Parker. On
    February 2, 1990, a passing motorist saw that the Parkers’ house was on fire.
    After the fire was extinguished, the bodies of all four family members were found
    inside the home. Carl, Bobbie Joe, and Gregory had all died of gunshot wounds.
    Charlotte, though shot three times, died of smoke inhalation.           Simon and
    another man, Anthony Carr, were soon arrested and charged with the Parkers’
    murder.
    In June 1990, the State tried Simon for the capital murder of only
    Charlotte Parker, a case that we refer to as Simon I. The jury found Simon
    2
    No. 08-70011
    guilty but could not reach a unanimous decision on his sentence. The trial court
    therefore sentenced Simon to life imprisonment for Charlotte Parker’s murder.
    After Simon I, the State tried Carr for the capital murder of all four
    Parkers. A jury convicted Carr on all four counts and returned a sentence of
    death on each count.
    Finally came Simon’s second trial, the one from which the present
    proceedings arise.   In October 1990, the State tried Simon for the capital
    murders of Carl Parker, Bobbie Joe Parker, and Gregory Parker, a case that we
    refer to as Simon II. A jury found Simon guilty on all three counts and returned
    a sentence of death on each count. The Supreme Court of Mississippi later
    affirmed Simon’s conviction and sentence. See Simon v. State (Simon II, Direct
    Appeal), 
    688 So. 2d 791
     (Miss.), cert. denied, 
    521 U.S. 1126
     (1997).
    Simon later filed a pro se petition for habeas relief in the Supreme Court
    of Mississippi. See Simon v. State (Simon II, State Habeas), 
    857 So. 2d 668
    (Miss. 2003). The court denied Simon’s petition, and he then filed a federal
    habeas petition in the Northern District of Mississippi. See Simon v. Epps
    (Simon II, Federal Habeas), No. 2:04-cv-26, 
    2007 WL 4292498
     (N.D. Miss. Nov.
    30, 2007). The district court denied relief on all of Simon’s claims and later
    denied a COA to this court. See Simon v. Epps (Simon II, Denial of COA), No.
    2:04-cv-26, 
    2008 WL 762182
     (N.D. Miss. Mar. 19, 2008). Simon now appeals that
    denial of a COA.
    II. STANDARD OF REVIEW
    To obtain habeas relief under 
    28 U.S.C. § 2254
    , Simon must show the
    Supreme Court of Mississippi’s resolution of his claims was contrary to, or
    involved an unreasonable application of, clearly established federal law as
    determined by the Supreme Court. 
    28 U.S.C. § 2254
    (d)(1). But before we have
    jurisdiction to rule on the merits of his appeal, Simon must obtain a COA by
    3
    No. 08-70011
    making “a substantial showing of the denial of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2); Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003).         “Under the
    controlling standard, a petitioner must show that reasonable jurists could debate
    whether (or, for that matter, agree that) the petition should have been resolved
    in a different manner or that the issues presented were adequate to deserve
    encouragement to proceed further.” Miller-El, 
    537 U.S. at 336
     (alteration and
    quotation marks omitted). “A prisoner seeking a COA must prove something
    more than the absence of frivolity or the existence of mere good faith on his or
    her part.”   
    Id. at 338
     (quotation marks omitted).          “The petitioner must
    demonstrate that reasonable jurists would find the district court’s assessment
    of the constitutional claims debatable or wrong.” 
    Id.
     (quotation marks omitted).
    “[A] claim can be debatable even though every jurist of reason might agree, after
    the COA has been granted and the case has received full consideration, that
    petitioner will not prevail.” 
    Id.
     Finally, “any doubts as to whether a COA should
    issue must be resolved in [the petitioner’s] favor.” Ramirez v. Dretke, 
    398 F.3d 691
    , 694 (5th Cir. 2005) (alteration in original, quotation marks omitted).
    III. DISCUSSION
    Although he presents them as three arguments, Simon essentially raises
    four claims of ineffective assistance of counsel. He primarily contends that his
    trial counsel failed to adequately investigate his history of familial abuse and
    thus did not present a proper case for mitigation at sentencing. Second, Simon
    contends that his trial counsel was ineffective in failing to corroborate his claims
    that his confession was physically coerced. Third, Simon contends that his trial
    counsel failed to use extra for-cause challenges to strike biased jurors. Finally,
    Simon asserts that his counsel failed to adequately rehabilitate jurors who had
    refused to impose the death penalty.
    All of Simon’s claims are governed by Strickland’s two-part standard for
    4
    No. 08-70011
    ineffective assistance. See Strickland, 
    466 U.S. at 687
    . Under this standard,
    Simon must show (1) that his counsel’s performance was deficient, and (2) that
    this deficient performance prejudiced him. 
    Id.
     For counsel’s performance to be
    deficient, he or she must commit “errors so serious that counsel was not
    functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
    
    Id.
       We judge counsel’s performance against “an objective standard of
    reasonableness.” 
    Id. at 688
    . There are no strict guidelines for making this
    determination; what constitutes deficient performance is fluid and evolving, and
    we must measure counsel’s performance against the “prevailing professional
    norms” of legal practice. Id.; see also Rompilla v. Beard, 
    545 U.S. 374
    , 380–81
    (2005).   Indeed, the Supreme Court has emphasized that there are no
    “mechanical rules” when addressing a claim of ineffective assistance:
    [T]he ultimate focus of inquiry must be on the fundamental fairness
    of the proceeding whose result is being challenged. In every case
    the court should be concerned with whether, despite the strong
    presumption of reliability, the result of the particular proceeding is
    unreliable because of a breakdown in the adversarial process that
    our system counts on to produce just results.
    Strickland, 
    466 U.S. at 696
    . In making this determination, we must consider all
    relevant circumstances, including, for example, practice guides from the
    American Bar Association. 
    Id. at 688
    ; see, e.g., A MERICAN B AR A SSOCIATION
    G UIDELINES FOR THE A PPOINTMENT AND P ERFORMANCE OF C OUNSEL IN D EATH
    P ENALTY C ASES (1989). Still, no single set of rules can definitively determine the
    sufficiency of counsel’s performance. Strickland, 
    466 U.S. at
    688–89. And
    importantly, our assessment of counsel’s performance is “highly deferential.” 
    Id. at 689
    .   We must avoid the biasing effect of hindsight, and we therefore
    entertain a “strong presumption that counsel’s conduct falls within the wide
    range of reasonable professional assistance; that is, the defendant must
    overcome the presumption that, under the circumstances, the challenged action
    5
    No. 08-70011
    might be considered sound trial strategy.” 
    Id.
     (quotation marks omitted).
    As to Strickland’s second requirement, for counsel’s deficient performance
    to prejudice a defendant, counsel’s errors must be “so serious as to deprive the
    defendant of a fair trial, a trial whose result is reliable.” 
    Id. at 687
    . Under
    Strickland’s prejudice requirement, “[t]he defendant must show that there is a
    reasonable probability that, but for counsel’s unprofessional errors, the result of
    the proceeding would have been different.” 
    Id. at 694
    . “A reasonable probability
    is a probability sufficient to undermine confidence in the outcome.” 
    Id.
    Finally, when a petitioner cannot satisfy one component of Strickland,
    there is no need to assess the other. 
    Id. at 697, 700
    .
    A.    Failure to Investigate
    Simon first argues that his trial counsel rendered ineffective assistance
    during the sentencing phase of his trial. Simon asserts that his counsel failed
    to conduct an investigation into his background, wherein counsel would have
    found a history of abuse at the hands of Simon’s father. According to Simon, his
    counsel’s failure to uncover this history of abuse resulted in the presentation of
    a woefully weak case for mitigation. Simon further contends that, if the jury had
    heard of his history of abuse, there is a reasonable probability that it would not
    have sentenced him to death.
    The Supreme Court of Mississippi denied Simon’s claim on this point.
    According to that court, it was reasonable for counsel not to investigate Simon’s
    history of abuse because Simon had not told his counsel of this abuse. In the
    court’s words,
    [W]e do not find that trial counsel’s conduct fell below the ordinary
    standard of assistance of counsel because he did not
    inquire—without prompting—into the possibility of abuse of his
    client as a child. . . . Simon has failed to show in the record and in
    his affidavits that his counsel knew or had reason to know of his
    past abuse given his and [the defense psychologist’s] investigation.
    6
    No. 08-70011
    Simon II (State Habeas), 857 So. 2d at 685. According to the court, because
    there was no evidence that Simon’s trial counsel had any reason to investigate
    Simon’s past, he could not be ineffective for failing to do so. Id. The court also
    held, alternatively, that Simon could not show prejudice on this claim. Id.
    According to the court, “[e]vidence of Simon’s abuse as a child . . . would not have
    had a reasonable probability of changing the jury’s sentence from death to life
    had it been presented to them.” Id.
    The district court agreed with the Supreme Court of Mississippi.
    According to the district court, “[t]he fact that counsel did not uncover or present
    evidence of an abusive family history is not indicative of a lack of trial
    preparation where counsel was given no information that would suggest such
    abuse had been present.” Simon II (Federal Habeas), 
    2007 WL 4292498
    , at *19.
    The district court also held that Simon failed to show that the Supreme Court
    of Mississippi had erred in its determination that counsel’s purported failings
    prejudiced him. 
    Id.
    We find the district court’s resolution of this claim debatable, and we
    therefore grant a COA.      At issue is counsel’s duty to investigate a capital
    defendant’s history of abuse in preparing a case for mitigation at sentencing.
    Like any claim of ineffective assistance, we must assess the reasonableness of
    counsel’s investigation in light of all relevant circumstances. One relevant
    circumstance, of course, is the information that the defendant has provided his
    or her trial counsel.     As the Supreme Court noted in Strickland, “the
    reasonableness of counsel’s actions may be determined or substantially
    influenced by the defendant’s own statements or actions”:
    Counsel’s actions are usually based, quite properly, on informed
    strategic choices made by the defendant and on information
    supplied by the defendant. In particular, what investigation
    decisions are reasonable depends critically on such information. For
    7
    No. 08-70011
    example, when the facts that support a certain potential line of
    defense are generally known to counsel because of what the
    defendant has said, the need for further investigation may be
    considerably diminished or eliminated altogether. And when a
    defendant has given counsel reason to believe that pursuing certain
    investigations would be fruitless or even harmful, counsel’s failure
    to pursue those investigations may not later be challenged as
    unreasonable. In short, inquiry into counsel’s conversations with
    the defendant may be critical to a proper assessment of counsel’s
    investigation decisions, just as it may be critical to a proper
    assessment of counsel’s other litigation decisions.
    
    466 U.S. at 691
    .
    That being said, the information the defendant provides to counsel is not
    dispositive, and Strickland did not create a per se rule that counsel’s duty to
    investigate begins and ends with information gleaned from the defendant him-
    or herself. Indeed, such a bright-line rule would be inimical to Strickland’s
    mandate of case-by-case consideration. Instead, counsel’s decision to investigate,
    like all others, must be reasonable in light of all the relevant circumstances:
    [S]trategic choices made after thorough investigation of law and
    facts relevant to plausible options are virtually unchallengeable;
    and strategic choices made after less than complete investigation
    are reasonable precisely to the extent that reasonable professional
    judgments support the limitations on investigation. In other words,
    counsel has a duty to make reasonable investigations or to make a
    reasonable decision that makes particular investigations
    unnecessary. In any ineffectiveness case, a particular decision not
    to investigate must be directly assessed for reasonableness in all the
    circumstances, applying a heavy measure of deference to counsel’s
    judgments.
    
    Id.
     at 690–91; see also Rompilla, 
    545 U.S. at 383
     (“[R]easonably diligent counsel
    may draw a line when they have good reason to think further investigation
    would be a waste.”).
    Along these lines, several post-Strickland decisions from the Supreme
    Court make clear that counsel’s decision to cease investigating a capital
    8
    No. 08-70011
    defendant’s past—or even not to investigate it at all—must be informed and
    reasonable. See, e.g., Rompilla, 
    545 U.S. 374
    ; Williams v. Taylor, 
    529 U.S. 362
    (2000). Of particular relevance is Wiggins v. Smith, 
    539 U.S. 510
     (2003), in
    which the Court spoke at length of how we should evaluate counsel’s decision
    regarding an investigation into mitigating evidence.        In Wiggins, a capital
    defendant’s trial counsel did not investigate the defendant’s life history or family
    background—which, it turns out, included a substantial history of abuse—and
    therefore presented no evidence of abuse at sentencing. 
    Id. at 516
    . In an
    opinion by Justice O’Connor, the Court held that counsel’s assistance was
    ineffective, as there was no reason or justification for counsel’s failure to look
    into the defendant’s past. The Court emphasized that the pertinent question
    was “whether the investigation supporting counsel’s decision not to introduce
    mitigating evidence of [a defendant’s] background was itself reasonable.” 
    Id. at 523
    . Thus, the fact that counsel acquires some information does not necessarily
    render counsel effective. 
    Id. at 527
    . Instead, counsel must have sufficient
    information from which they could make a reasoned strategic decision not to
    pursue additional evidence of abuse:
    In assessing the reasonableness of an attorney’s investigation, . . .
    a court must consider not only the quantum of evidence already
    known to counsel, but also whether the known evidence would lead
    a reasonable attorney to investigate further. Even assuming
    [counsel in Wiggins] limited the scope of their investigation for
    strategic reasons, Strickland does not establish that a cursory
    investigation automatically justifies a tactical decision with respect
    to sentencing strategy. Rather, a reviewing court must consider the
    reasonableness of the investigation said to support that strategy.
    
    Id.
     In other words, courts must determine whether “the decision to cease all
    investigation . . . actually demonstrated reasonable professional judgment.” 
    Id.
    The Wiggins Court made clear that counsel is not required “to investigate
    every conceivable line of mitigating evidence no matter how unlikely the effort
    9
    No. 08-70011
    would be to assist the defendant at sentencing.” 
    Id. at 533
    . It also noted that
    Strickland does not require “defense counsel to present mitigating evidence at
    sentencing in every case.” 
    Id.
     But, as the Court had previously stated in
    Strickland, “strategic choices made after less than complete investigation are
    reasonable only to the extent that reasonable professional judgments support the
    limitations on investigation. A decision not to investigate thus ‘must be directly
    assessed for reasonableness in all the circumstances.’”        
    Id.
     (citations and
    quotation marks omitted).
    As to the trial counsel in Wiggins, the Court found that their investigation
    was not reasonable, as the defendant’s “counsel abandoned their investigation
    of [the defendant’s] background after having acquired only rudimentary
    knowledge of his history from a narrow set of sources.” 
    Id. at 524
    . Moreover,
    counsel’s limited investigation revealed leads that any competent attorney would
    have pursued, as doing so “was necessary to making an informed choice among
    possible defenses.” 
    Id. at 525
    . Indeed, counsel in Wiggins found no evidence
    that a mitigation case would have been counterproductive, such that they had
    no reason to cease their investigation.      
    Id.
       In brief, counsel’s “failure to
    investigate thoroughly resulted from inattention, not reasoned strategic
    judgment.” 
    Id. at 526
    .
    In the present case, the actual contours of Simon’s trial counsel’s
    investigation into his history of familial abuse is unclear. In his petition to the
    Supreme Court of Mississippi, Simon attached several statements from family
    members who relayed stories of abuse and said that Simon’s counsel never
    contacted them. The Supreme Court of Mississippi did not order an evidentiary
    hearing on the matter. Instead, taking the statements of Simon’s family as true,
    the court held that Simon’s trial counsel was not ineffective because there was
    no evidence “that Simon’s trial counsel was ever told before or during the
    10
    No. 08-70011
    sentencing phase of trial that Simon was abused as a child.” Simon II (State
    Habeas), 857 So. 2d at 685. In so doing, the Supreme Court of Mississippi’s
    decision might suggest that even if Simon’s trial counsel made no investigation
    into Simon’s history of abuse, the decision to do so was justified because there
    was no evidence that counsel was aware of such a history. We conclude that the
    question of whether the Supreme Court of Mississippi reasonably applied
    Strickland’s deficient-performance prong is debatable among jurists of reason.
    As to prejudice, the Supreme Court of Mississippi held that any evidence
    of familial abuse—even if further developed at an evidentiary hearing—would
    not have had a reasonable probability of altering the jury’s sentence when
    considered against the heinousness of the crimes. See Simon II (State Habeas),
    857 So. 2d at 685. But because Simon’s trial counsel presented no evidence of
    abuse at sentencing, we conclude that it is debatable among jurists of reason
    whether there is a reasonable probability that the development and presentation
    of Simon’s history of abuse would have influenced the jury’s appraisal of Simon’s
    moral culpability. Cf. Wiggins, 
    539 U.S. at
    537–38.
    Without passing judgment on the Supreme Court of Mississippi’s decision,
    we think that jurists of reason can debate the merits of Simon’s claim on this
    point. We therefore grant a COA on Simon’s claim of ineffective assistance at
    sentencing. We also request additional briefing on this claim and have included
    detailed instructions in the Conclusion.
    B.    Failure to Develop Evidence of Physical Coercion
    Simon next argues that his counsel was ineffective in failing to offer
    witnesses to corroborate his assertion that the police physically coerced his
    confession. Simon confessed to the Parkers’ murders shortly after his arrest.
    Before the trial in Simon I, he moved to suppress the confession as coerced. At
    the suppression hearing, Simon’s trial counsel focused primarily on the
    11
    No. 08-70011
    argument that the confession was psychologically, not physically, coerced. The
    only evidence of physical coercion at the suppression hearing came from Simon’s
    own testimony and a brief remark from another witness. The suppression
    motion was ultimately unsuccessful. Later, during the Simon II trial, Simon’s
    trial counsel did not argue that the confession was physically coerced, again
    focusing on psychological coercion.
    Simon now contends that his trial counsel was ineffective because counsel
    failed to offer the testimony of three witnesses—his mother, wife, and
    brother—who would have corroborated Simon’s claim of physical coercion. In
    three documents attached to his petition for federal habeas, Simon’s brother,
    mother, and wife all assert that they visited Simon a “couple” of weeks after his
    confession. These witnesses allege that Simon displayed visible signs of abuse
    and had said that police had beaten him. Aaron Simon, Simon’s brother, stated
    that Simon’s “face was bruised and swollen.” Moreover, Simon told Aaron “that
    law enforcement had jumped on him and beaten him up.”            Finally, Aaron
    asserted that he saw Simon shortly before his arrest and, at that time, Simon
    showed none of the injuries that Aaron later saw.
    Rosie Lee Simon, Simon’s mother, stated that Simon’s “head was very
    swollen from having been beaten.       His left eye was bruised, his hand was
    shaking, and he said ‘They beat me up so bad.’” Rosie Lee noted that she is a
    trained CNA and thus knows how to recognize signs of abuse. She also alleges
    that she told Simon’s trial counsel of his injuries.
    Martha Simon, Simon’s wife, said in an unsigned statement that Simon
    “had been badly beaten.” In her words,
    His head and face were swollen and I saw he was limping badly. He
    said the police had beaten him up. It was pitiful. His eyes and
    mouth were all swollen. I had a hard time understanding because
    his mouth was so swollen. I didn’t recognize him when I first saw
    12
    No. 08-70011
    him.
    Like Rosie Lee Simon, Martha Simon stated that she was trained to recognize
    signs of abuse.
    In addressing this issue, the Supreme Court of Mississippi held that
    Simon had established neither deficient performance nor prejudice. See Simon
    II (State Habeas), 857 So. 2d at 686–87. As to the suppression hearing, the court
    found that Simon’s family members’ testimony would have added nothing to the
    evidence that counsel did introduce. Id. The court first noted that the family
    members’ testimony was both self serving and hearsay, and it would likely have
    drawn a successful objection from the prosecution. Id. at 687. Putting that issue
    aside, the court found that the family members’ testimony would have merely
    repeated what Simon had told them, which Simon had already introduced
    through his own testimony. Id. According to the court, the only independent
    information    in   their   testimony—personal      observations    of   Simon’s
    injuries—would have been of little value. Id. The court also noted that these
    injuries could have had sources other than the police. Id.
    As to the trial, the court again found that Simon’s family members’
    testimony would not have survived an objection by the State. Id. As Simon did
    not testify at the trial, his family members also could not have been used to
    corroborate his claims of physical abuse. Id. Finally, the court noted that
    Simon’s trial counsel would have had to overcome the adverse suppression
    ruling. Id. The Supreme Court of Mississippi thus held that Simon’s trial
    counsel’s decisions were strategic and therefore not deficient under Strickland.
    Id.
    The court also addressed Strickland’s second component, prejudice. It
    noted that Simon’s testimony at the suppression hearing was sufficient to raise
    the issue of whether his confession was voluntary. Id. As to the trial, the court
    13
    No. 08-70011
    determined that even if the jury had heard the family members’ testimony, it
    would have little reason to disregard Simon’s confession because “there [was]
    little else in the record to establish its involuntariness.”        Id.   Moreover,
    regardless of the confession, there was substantial evidence of Simon’s guilt:
    Had Simon’s confession to police been excluded, there would still
    exist his inculpatory statements to his cellmate, his presence during
    the robbery to get the guns used in the murders, the Parkers’
    belongings found at his Memphis apartment, his observed flight
    from the Parkers’ pickup truck the night of the murder, and the fact
    that he was wearing some of the clothing stolen from the Parkers
    when he was arrested.
    Id. Thus, the court concluded, “Simon fail[ed] to demonstrate how trial counsel’s
    failure to call his family members at the suppression hearing and trial
    prejudiced the trial court’s ruling on the issue or the outcome of the trial itself.”
    Id.
    The district court held that the Supreme Court of Mississippi had not
    erred in its assessment of this ineffective-assistance claim. The court paid
    special attention to the details of Simon’s injuries, noting that the injuries
    Simon’s family members observed (swollen eyes and mouth) were inconsistent
    with Simon’s claims of abuse (choking and being placed on the floor with a boot
    or knee in his back). See Simon II (Federal Habeas), 
    2007 WL 4292498
    , at *14.
    The district court also looked to the time frame of the injuries; Simon’s
    confession (and thus any concomitant abuse) occurred two days after his arrest,
    yet his family members did not see him until two weeks after his arrest. 
    Id.
     The
    court further noted that Simon made his initial appearance before a judge one
    hour after giving his statement but there was nothing in the record to suggest
    that he had been beaten prior to that appearance. 
    Id.
     Finally, the district court
    thought that there was sufficient testimony to show that Simon’s confession was
    voluntary.   
    Id.
       Thus, the district court concluded, the Supreme Court of
    14
    No. 08-70011
    Mississippi did not err in its application of Strickland. 
    Id.
     The district court
    later denied a COA on this claim, concluding that the decision whether to call
    the witnesses was one of trial strategy and that Simon had not demonstrated
    that the family members’ testimony would be either admissible or favorable. See
    Simon II (Federal Habeas, Denial of COA), 
    2008 WL 762182
    , at *6.
    We do not find the district court’s resolution of this issue to be debatable
    among jurists of reason. It appears that Simon’s trial counsel had two possible
    theories for arguing that the confession was coerced: psychological and physical.
    The case for psychological coercion was not insubstantial. At the suppression
    hearing, Simon’s trial counsel pushed the theory that fear of mob violence caused
    Simon to confess. The testimony of various witnesses indicates that members
    of the community were incensed at the Parkers’ murder and that there was a
    potential for violence against the suspects.        Simon’s trial counsel also
    emphasized the questionable circumstances of Simon’s confession; police did not
    present Simon to a judge until after the confession, and his counsel implied that
    they were trying to extract a confession before Simon invoked his right to
    counsel. Finally, Simon’s trial counsel suggested various racial undertones in
    Simon’s arrest and confession.
    In contrast, the case for physical coercion was quite weak. Only two
    witnesses mentioned that Simon had been physically abused. The first was only
    in passing; Robert Brown, who shared a cell with Simon shortly after he
    confessed, testified that Simon had said that the interrogators had beaten him.
    The only other testimony as to physical abuse came from Simon himself. The
    first alleged act of abuse occurred over a day before Simon’s confession. Simon
    testified that, while being held awaiting transfer to another prison, a police
    officer slapped him in the right ear. The other two alleged acts of abuse occurred
    during the interrogation that led to Simon’s confession; Simon testified that one
    15
    No. 08-70011
    police officer choked him and threw him to the ground, at which point another
    officer put his knee or boot in Simon’s back.
    On rebuttal, every officer accused of abusing Simon resolutely denied any
    misconduct, as did any officers present when the abuse allegedly took place.
    Before hearing from Simon’s psychologist (who had to testify later due to a
    scheduling conflict), the trial court expressed its belief that Simon had
    voluntarily confessed.   But it reserved a final judgment on the issue until
    hearing from the psychologist. Although the psychologist’s testimony (as well
    as the parties’ final arguments and the court’s ruling) do not appear to be in the
    record, we know that the court eventually ruled that Simon’s confession was
    voluntary.
    The testimony of Simon’s family members would have added little to his
    case for physical coercion. Whatever it might have added would also be easily
    challenged on cross-examination. The family members saw Simon roughly two
    weeks after his confession—and the alleged abuse—occurred. A number of
    intervening acts (including, for example, later beatings from police or prisoners)
    could have caused the injuries. Further, no one who saw Simon shortly after he
    confessed—including the counsel appointed after the confession—said anything
    about physical injuries like those described in the family members’ statements.
    Indeed, after the confession and alleged beating, Simon was brought before a
    judge for his initial appearance, and he points to nothing in the record where
    anyone even remarked on any signs of abuse.
    In short, Simon has not shown that his trial counsel made anything other
    than a tactical decision to pursue the relatively stronger theory of psychological
    coercion over the relatively weaker theory of physical coercion.        Although
    ultimately unsuccessful, Simon’s trial counsel presented a reasonable argument
    that police concocted an atmosphere of fear that led Simon to confess.         In
    16
    No. 08-70011
    contrast, Simon’s trial counsel had little evidence to support an argument that
    the confession was physically coerced, and most of it (including the testimony of
    Simon’s family members) was weak.            Moreover, Simon’s trial counsel was
    probably reasonably reluctant to offer the testimony of Simon’s family members,
    as their statements on physical coercion would be quite open to challenge on
    cross-examination. We do not find the district court’s resolution of this claim
    debatable and therefore deny a COA.
    C.    Failure to Use Extra For-Cause Challenges at Jury Selection
    Simon next argues that his counsel was ineffective in failing to use extra
    for-cause challenges at jury selection. The parties do not dispute that, before the
    trial in Simon I, the State engaged in substantial misconduct in the form of
    pretrial publicity.   Shortly after Simon’s arrest, a prosecutor held a press
    conference at which he announced the murders and Simon’s link to the crimes.
    As the prosecutor said nothing about the presumption of innocence, this press
    conference violated local ethical canons.       Police officials were also publicly
    commenting on the crimes in violation of local rules. Finally, after the trial court
    had set up procedures to protect Simon from improper disclosures, the State
    improperly filed a public motion containing false information about Simon,
    including an alleged jailhouse confession. Upon finding that the State had
    engaged in misconduct, the trial judge moved the trial to another county.
    Simon asserts that the State conceded that any juror exposed to pretrial
    publicity should be struck for cause. When Simon’s trial counsel later tried to
    challenge five jurors exposed to pretrial publicity, the trial court determined that
    the challenged jurors could set aside what they had heard and denied the for-
    cause challenges. Simon contends that his counsel should have invoked the
    State’s alleged concession that any juror exposed to pretrial publicity should be
    struck for cause. According to Simon, counsel’s failure to do so was deficient
    17
    No. 08-70011
    performance that resulted in the seating of possibly prejudiced jurors.
    The Supreme Court of Mississippi rejected Simon’s argument on this
    point. See Simon II (State Habeas), 857 So. 2d at 690–92. The court found that
    the State had indeed made a concession regarding the striking of jurors exposed
    to pretrial publicity, but not to the extent that Simon suggested. Id. at 691.
    Specifically, the State admitted that any juror who was contaminated by pretrial
    publicity (such as one who could not lay aside what she had heard or who had
    already formed an opinion) should be struck for cause, but did not concede that
    Simon was entitled to extra or special for-cause challenges for any juror exposed
    to pretrial publicity. In the court’s words,
    It is a fair reading of the transcript that the State made such a
    concession during consideration of the motion to dismiss. From the
    context of the hearing, we find that the State was merely repeating
    the standard routinely applied by trial courts to motions to strike
    jurors “for cause.”
    Id. at 691–92. According to the Supreme Court of Mississippi, then, the only
    concession that Simon’s counsel could invoke was the State’s concession that the
    normal standard for for-cause challenges applied to jurors exposed to pretrial
    publicity.
    The court went on to find that any failure to remind the trial judge of this
    concession was not deficient performance. It first noted that striking jurors for
    cause is left to the discretion of the trial judge, and none of the jurors in question
    met the standard required for a for-cause strike. Id. at 692. The court stated
    that “[e]ach of the jurors in question indicated that they could put aside any
    conclusions they had formed from their exposure to the publicity in this case and
    be fair and impartial during the trial.” Id. It also noted that Simon’s counsel
    had sufficient peremptory challenges to strike each of the jurors unsuccessfully
    challenged for cause. Id. According to the court, “[t]he fact that these particular
    18
    No. 08-70011
    jurors were ultimately seated without being peremptorily struck indicates they
    were satisfactory to Simon from a strategic standpoint.” Id. And as to Simon’s
    counsel’s failure to invoke any concession by the State, the court found that the
    success of such an invocation depended on the discretion of the trial judge:
    If Simon’s trial counsel had reminded the trial court that the State
    had made this concession before the change in venue, it is possible
    the judge might have stricken the jurors “for cause.” However, the
    trial judge was certainly not bound to enforce the State’s concession.
    Id. The court thus concluded that the State had not conceded that Simon should
    have extra or special for-cause challenges and that any failure by Simon’s
    counsel to invoke the State’s actual concession was not deficient:
    [W]e conclude that the context of the concession by the State did not
    empower Simon’s trial counsel to automatically exclude “for cause”
    all members of the venire exposed to pretrial publicity. Trial
    counsel was not deficient for failing to remind the trial judge of a
    non-binding and unenforceable concession made by the State in the
    course of discussing options to remove the taint of pretrial publicity
    from the trial jurors.
    Id. Finally, the court noted that Simon could not satisfy Strickland’s prejudice
    component.    According to the court, Simon’s counsel’s failure to strike the
    challenged jurors peremptorily “indicate[d] a non-prejudicial strategic decision
    was made to include them on the jury panel.” Id.
    The district court agreed with the Supreme Court of Mississippi that “[t]he
    transcript of the pretrial hearing makes it clear that the prosecutor was merely
    asserting that those jurors tainted by pretrial publicity should be removed for
    cause.”   Simon II (Federal Habeas), 
    2007 WL 4292498
    , at *10.           The court
    therefore concluded that Simon’s “[t]rial counsel was not deficient in failing to
    remind the trial court that the prosecutor knew the standard for removing jurors
    for cause.” 
    Id.
     The district court also found no prejudice, believing that the real
    issue was “whether the jury that sat was impartial.” 
    Id.
     The court saw “no
    19
    No. 08-70011
    indication that the seated jurors were not impartial” and dismissed any notion
    that the use of peremptory challenges to remove certain jurors entitled Simon
    to relief. 
    Id.
    Simon does not indicate where in the record this concession took place.
    But both the Supreme Court of Mississippi and the district court looked to a
    pretrial hearing where Simon and his co-defendant, Anthony Carr, moved to
    dismiss their indictments due to improper pretrial publicity.        During that
    hearing, the trial court described a section of the State’s brief which arguably
    includes the concession that Simon alleges:
    I do understand that the State admits in its brief that one of the
    remedial measures that might be taken, on page five of the
    brief,[ ]counsel states that jurors may be dismissed for cause during
    voir dire if pre-trial publicity has reached a prospective juror. That
    may make it difficult throughout, but I understand that’s an
    admission as a remedial measure. And, further on the same page
    that jurors should be excused if there is any doubt about their
    impartiality, referring to the State’s brief at this time.
    Later, in an exchange with the court about a potential change of venue, the State
    seemed to clarify the statement in its brief:
    BY THE COURT: And, I believe you suggested in your brief that if
    we go to another county, and if we find any juror during voir dire
    that the pre-trial publicity has reached, that juror should be excused
    for cause. That’s what your brief says.
    BY [THE STATE]: Your Honor, of course—
    BY THE COURT: —And, otherwise, so we may go to two or three
    counties.
    BY [THE STATE]: Your Honor, if that juror when questioned on
    voir dire says that that juror has been contaminated with the virus
    and cannot lay aside anything that that juror may have heard or
    read, and has formed an opinion, well, certainly, that juror would
    have to be excused. And, if that juror—
    BY THE COURT:        —That’s the normal thing.       What remedial
    20
    No. 08-70011
    measures do we have because of this, regardless of how it came
    about? I’m asking counsel for both sides. What is the remedy,
    because it is out, because all these things through these filings of
    these two responses, which should never have been.
    (emphasis added). Reading these two sections in tandem, it appears that Simon
    has misconstrued the State’s admission. Any concession regarding striking
    jurors exposed to pretrial publicity was merely an admission of the normal
    standard for striking such jurors. The State did not agree to a remedy in the
    form of striking any juror exposed to any pretrial publicity. Indeed, throughout
    its closing argument, the State repeatedly emphasized that the proper remedy
    for the pretrial publicity was a change of venue. Although the State at one point
    also said that “extensive voir dire” would be appropriate, Simon points us to
    nowhere else in the record where the State indicates that any juror exposed to
    any pretrial publicity should be struck for cause.
    Simon’s claim on this point thus fails at step one; his counsel could not
    have rendered ineffective assistance by failing to invoke a concession that the
    State never actually made.      The Supreme Court of Mississippi correctly
    addressed this claim, and the district court’s resolution is not debatable. We
    therefore deny a COA.
    D.    Failure to Rehabilitate Prospective Jurors
    Finally, Simon contends that his counsel provided ineffective assistance
    as to the rehabilitation of several potential jurors. During voir dire, several
    jurors indicated that they would refuse to vote for the death penalty. Simon’s
    trial counsel attempted to rehabilitate a particular juror who had expressed such
    a refusal. After Simon’s counsel asked this juror whether she could “consider”
    imposing the death penalty even though she did not believe in it, the State
    objected to counsel’s use of the word “consider.” The trial judge sustained the
    objection, noting that the substance of the question had already been asked and
    21
    No. 08-70011
    answered three times. Simon’s trial counsel then moved on to questioning the
    venire about exposure to pretrial publicity.
    Simon raises three issues stemming from this effort at rehabilitation. He
    first argues that his counsel rendered ineffective assistance by not objecting to
    being “cut off” or not asking the same question of other jurors who had expressed
    a reluctance to impose the death penalty. Second, Simon contends that after
    these jurors had been struck for cause because his counsel had only partially
    rehabilitated them, his counsel rendered ineffective assistance by not pointing
    out to the trial judge that he had cut short efforts at rehabilitation. Finally,
    Simon asserts that the State was allowed to rehabilitate jurors that Simon
    wished to strike for cause, and his counsel rendered ineffective assistance by not
    objecting to the trial court’s disparate allowance of rehabilitation.
    1.     Failure to object when “cut off”
    As to Simon’s first claim, he suggests that his counsel should have
    persisted in questioning potential jurors about their views on the death penalty
    or objected to the trial judge’s “cutting off” his opportunity to rehabilitate jurors
    with beliefs against the death penalty. Simon notes that five jurors whom the
    State later challenged due to their refusal to impose the death penalty had
    indicated that they could follow the court’s instructions and determine guilt
    without regard to their views on the death penalty:             Ethridge, Craigen,
    Dickerson, Tinnell, and Williams.       Simon suggests that these jurors were
    partially rehabilitated and that his trial counsel should have continued
    attempting to rehabilitate them. He contends that counsel’s failure to do so
    resulted in five jurors being needlessly struck for cause.
    The Supreme Court of Mississippi rejected this claim, noting that the issue
    Simon suggests his counsel should have continued to pursue—whether those
    prospective jurors could ever impose the death penalty—“had indeed been
    22
    No. 08-70011
    covered several times by the trial Court, the State, and Simon’s trial counsel
    before” counsel was cut off. See Simon II (State Habeas), 857 So. 2d at 693.
    Moreover, the jurors who Simon argues his counsel should have questioned were
    all “straightforward and unwavering in their opposition to imposing the death
    penalty.” Id. Thus, according to the court, “the [trial] judge did not err in
    cutting off Simon’s trial counsel’s last attempt to rehabilitate them, nor was
    counsel’s assistance deficient for failing to object to this preemption.” Id.
    The district court agreed with the Supreme Court of Mississippi, stating
    that the record did not support Simon’s contentions. See Simon II (Federal
    Habeas), 
    2007 WL 4292498
    , at *12. Indeed, the district court found Simon to be
    “tak[ing] liberties with the facts of the case by characterizing the trial court’s
    statements as impeding his opportunity to rehabilitate potential jurors.” 
    Id.
    The district court thus found it reasonable for Simon’s trial counsel to cease this
    line of questioning.
    We do not find the district court’s resolution of this issue debatable. The
    pertinent issue—whether particular jurors would refuse to impose the death
    penalty—had twice been covered before Simon’s trial counsel began his voir dire.
    First, during the court’s voir dire, the trial judge asked the venirepersons
    whether they would be able to impose a sentence of death.                  Several
    unequivocally indicated that they were not. Later, during the State’s voir dire,
    counsel for the State twice asked the jurors whether they had changed their
    mind about their stated inability to return a sentence of death with no response.
    The State also asked whether anyone (besides those who had indicated earlier)
    could not impose a sentence of death, and one juror responded that she could not.
    When Simon’s trial counsel began discussing the issue, he first asked who
    on the venire did not believe in the death penalty.       After roughly a dozen
    affirmative responses, counsel then asked whether those who did not believe in
    23
    No. 08-70011
    the death penalty could follow the judge’s instructions and decide guilt or
    innocence regardless of their feelings about the death penalty. Counsel received
    varying answers, some yes, some no, some not knowing. Counsel then asked the
    jurors whether they understood that a cross section of the community includes
    people who do not believe in the death penalty. The State objected to this
    question, and the trial judge sustained the objection.
    Simon’s trial counsel then attempted to restate the question to one
    particular juror:
    Now, those people that I just asked about the death penalty, the
    ones who do not believe in the death penalty, if you’re selected on
    the jury, even though you do not believe in the death penalty—Ms.
    Ethridge, could you follow the law and consider whether or not it’s
    appropriate or not, even though you don’t believe in it.
    The State objected to this question, noting that “the word ‘consider’ is not a part
    of it.” The court then sustained the objection in detail:
    JUDGE PEARSON:          The question has been asked about three
    different ways.
    MR. WALLS [Simon’s trial counsel]: Your Honor, that’s the
    question I wanted to pose to all those other jurors. Has the Court
    ruled I shouldn’t ask that question?
    JUDGE PEARSON: The Court has asked this question, Mr. Walls,
    and this is the third different way that you’ve asked the same
    question. I’m sustaining the objection.
    MR. WALLS: All right. I have one other area, two quickly that I
    want to go into. . . .
    Simon’s trial counsel then went on to ask the venirepersons about what they had
    heard regarding the case.
    Under these circumstances, it was not unreasonable for Simon’s trial
    counsel to cease his efforts at rehabilitation. The substance of the pertinent
    question—whether jurors would refuse to return a sentence of death—had
    24
    No. 08-70011
    already been covered. It was reasonable for counsel to move on to a different
    issue.     Had Simon’s trial counsel persisted in the above-quoted line of
    questioning, he likely would have drawn additional objections that the trial
    judge would have sustained. Instead of antagonizing the trial judge in front of
    potential jurors, counsel reasonably decided to move on.
    Further, even if Simon’s trial counsel could have tried to rehabilitate
    several of the jurors, his failure to do so was not deficient performance. A
    potential juror can be excused for cause if his or her views on the death penalty
    would prevent or substantially impair the performance of his or her duties.
    Wainwright v. Witt, 
    469 U.S. 412
    , 424 (1985); Williams v. Collins, 
    16 F.3d 626
    ,
    633 (5th Cir. 1994). A juror whose views on the death penalty prevent him or
    her from returning a sentence of death is therefore excusable for cause. See
    Williams, 
    16 F.3d at 633
    . And where attempts to rehabilitate a juror who has
    refused to impose the death penalty would be futile, refusal to engage in such
    useless efforts rarely constitutes deficient performance under Strickland. See
    
    id.
          Our review of the record reveals that four of the five jurors in
    question—Ethridge, Craigen, Dickerson, and Tinnell—squarely indicated that
    they could not return a sentence of death. Efforts to rehabilitate them would
    have been fruitless, and the performance of Simon’s trial counsel was therefore
    not deficient.
    The fifth potential juror, Williams, is a bit less clear. We could only find
    evidence that Williams did not “believe” in the death penalty. But we need not
    address whether counsel was deficient regarding Williams; even if we assume
    deficient performance, Simon cannot show that the exclusion of Williams
    prejudiced his trial. The jury in Simon’s trial was selected from the first forty-
    four members of the venire, with three alternates selected from the first fifty-six.
    Williams was juror number seventy-two. Thus, even if Simon’s trial counsel had
    25
    No. 08-70011
    fully rehabilitated her, she would not have been on the jury that heard his case.
    Any failure to rehabilitate Williams, then, could not have prejudiced Simon.
    2.     Failure to object to State’s for-cause challenges
    The State later challenged the five above-mentioned jurors for cause, and
    the trial judge excused all five due to their refusal to impose the death penalty.
    Simon contends that his counsel should have pointed out to the trial judge that
    his efforts to rehabilitate these jurors were cut off, and the failure to do so
    amounted to ineffective assistance.
    The Supreme Court of Mississippi held that it was not deficient
    performance for Simon’s counsel not to object when the trial judge stated that
    jurors struck for cause were only partially rehabilitated. See Simon II (State
    Habeas), 857 So. 2d at 693. As “these jurors did not falter in their stated
    opposition to imposing the death penalty,” they could be stricken for cause and
    any cutting short of trial counsel’s questioning “had little, if any, effect upon the
    adequacy of their voir dire.” Id. Thus, according to the court, Simon’s trial
    “counsel did not render deficient performance in failing to remind the judge that
    he had been cut off in his futile attempts to rehabilitate these jurors.” Id. The
    district court agreed, stating that each of the jurors in question were unequivocal
    in their inability to impose the death penalty. See Simon II (Federal Habeas),
    
    2007 WL 4292498
    , at *12. The district court also noted that, in addition to
    Williams, potential jurors Craigen, Dickerson, and Tinnell also were not among
    the first forty-four venire members and therefore “would not have been reached
    even if they had remained on the panel.” 
    Id.
    We do not find the district court’s resolution of this issue debatable.
    Again, four of the five potential jurors in question had squarely stated that they
    would refuse to impose the death penalty. Any further efforts to rehabilitate
    them would have been fruitless, and Simon’s trial counsel was therefore not
    26
    No. 08-70011
    deficient in failing to point out that his efforts at rehabilitating them had been
    cut short. And as to Williams, any failure to rehabilitate her did not prejudice
    Simon.
    3.    Failure to object to disparate opportunities for rehabilitation
    Simon’s trial counsel challenged several jurors for cause on the ground
    that they had said they would automatically impose the death penalty. The trial
    judge gave the State the opportunity to rehabilitate some of these jurors. Simon
    again contends that his trial counsel should have pointed out that the trial judge
    had cut short his efforts at rehabilitating jurors, and that his failure to do so
    constituted ineffective assistance.
    The Supreme Court of Mississippi found no deficiency in Simon’s trial
    counsel’s performance on this matter. In the court’s words,
    The record reflects that during the time jurors were being stricken
    “for cause,” where the judge’s notes were inadequate, incomplete, or
    where he considered them untrustworthy, he would permit an
    individual voir dire of that juror to clear things up. No objections
    were made to this procedure by either party. It benefitted both
    sides. That Simon’s trial counsel did not object to the judge’s
    allowing individual voir dire of jurors—where the State was
    successful in clarifying the judge’s perception of those jurors in a
    way that possibly could be characterized as favorable to the
    State—was not the provision of deficient assistance.
    See Simon II (State Habeas), 857 So. 2d at 693. The district court similarly
    found no merit to Simon’s allegations of deficient performance when the State
    was allowed to rehabilitate potential jurors, as both the State and defense were
    allowed to conduct individual voir dire. See Simon II (Federal Habeas), 
    2007 WL 4292498
    , at *12.
    Again, we do not find the district court’s resolution of this issue debatable.
    The record shows that counsel for the State and Simon’s trial counsel were both
    given the opportunity to question jurors when there was some confusion as to
    27
    No. 08-70011
    what the juror had said. Further, as to four of the five jurors in question, any
    effort at rehabilitation would have been fruitless. And any failure to rehabilitate
    Williams was harmless.
    In sum, the district court held that the Supreme Court of Mississippi’s
    resolution of Simon’s ineffective assistance claims regarding rehabilitation was
    proper. The district court’s resolution of this issue is not debatable, and we
    therefore deny a COA on this claim.
    IV. CONCLUSION
    We grant a COA on Simon’s claim that his counsel rendered ineffective
    assistance at sentencing. We request that Simon provide supplemental briefing
    on this claim within thirty days of the date of this order. The State should file
    a response within fifteen days thereafter, and Simon may file a reply within ten
    days after the State submits its brief. We ask that the parties address the
    following issues:
    1.    Under Strickland, was it deficient performance for Simon’s trial counsel
    not to investigate Simon’s history of familial abuse?
    2.    If the jury had heard evidence of Simon’s history of familial abuse, is there
    a reasonable probability that it would not have returned a sentence of
    death?
    3.    Considering that neither the Supreme Court of Mississippi nor the district
    court held an evidentiary hearing to determine the actual contours of
    Simon’s trial counsel’s investigation, what must we assume for the sake
    of this appeal? Further, if we find Simon’s claims to be meritorious,
    should we remand his petition to the district court for an evidentiary
    hearing?
    We deny Simon’s request for a COA on his remaining claims of ineffective
    assistance. The certificate of appealability is therefore GRANTED in part and
    28
    No. 08-70011
    DENIED in part, and additional briefing is requested.
    GRANTED in part, DENIED in part, additional briefing requested.
    29