Conner v. Epps ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-60701
Summary Calendar
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RONNIE CONNER,
Petitioner-Appellant,
VERSUS
CHRISTOPHER B. EPPS,
ACTING COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;
MICHAEL MOORE,
ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
m 4:97-CV-17WS
_________________________
November 18, 2002
Before SMITH, EMILIO M. GARZA, and point, making her drive her car to a secluded
CLEMENT, Circuit Judges. country road a few miles from the station,
where he slit her throat. The wound was not
JERRY E. SMITH, Circuit Judge:* deep enough to cause instant death, so Brown
bled for up to ten minutes until she finally died.
This case presents the sole question wheth- The wound cut her jugular vein and punctured
er Ronnie Conner received ineffective assis- her oral cavity, leaving her unable to call for
tance of counsel during the sentencing phase help after Conner had left her for dead. As a
of his trial for capital murder. Because any result of these crimes, Conner took approxi-
deficiency in counsel’s performance did not mately $200 and a ring from Brown, which he
prejudice Conner under Strickland v. Wash- later sold for $15. He then used this money in
ington, 466 U.S. 668 (1985), we affirm. part to buy beer and crack.
I. A jury convicted Conner of capital murder
The Mississippi Supreme Court stated the based on overwhelming testimony and evi-
facts of this case in detail on Conner’s direct dence. A friend of Conner’s witnessed him ab-
appeal. Conner v. State, 632 So. 2d 1239, duct Brown shortly after Conner said he need-
1243-47 (Miss. 1993). We review these facts ed to rob someone to get some cash; forensic
briefly here. evidence connected him to the murder. Con-
ner also displayed Brown’s ring to several
At the time of the murder, Conner, a man acquaintances to obtain their estimates of the
of modest intelligence and less worldly suc- its value. Finally, he confessed, in the pres-
cess, was thirty-one years old. He had an IQ ence of three other people, to murdering
in the mid- to low seventies and had never held Brown. He relied on an alibi defense based on
a steady job. He drank often and used mar- testimony that, on cross-examination, proved
ihuana and crack cocaine. He was diagnosed to be either not credible or not inconsistent
in the 1980’s with schizophrenia and unspeci- with the state’s evidence.
fied personality disorders.
At the sentencing phase of the trial, the
On January 1, 1990, Conner declared that state re-introduced all evidence from the guilt
“I am out to get my revenge because I am tired phase and a record of Conner’s conviction of
of sitting around and waiting on people to give robbery. The state presented no additional
me mine, so I am going to start getting mine.” witnesses. Conner’s trial counsel also relied
He apparently decided to “get his” by kidnap- on the guilt-phase evidence, which included
ing and brutally murdering Celeste Brown, an Conner’s medical records, and presented two
elderly woman. When Brown arrived by car at additional witnesses.
a train station, Conner abducted her at knife
First, Conner’s sister Dorothy testified that
Conner had been treated for mental illness at
*
Pursuant to 5TH CIR. R. 47.5, the court has the Weems Mental Health Center for roughly
determined that this opinion should not be a decade and that he was on medication,
published and is not precedent except under the though she thought he did not always take his
limited circumstances set forth in 5TH CIR. R. medicine. She also testified to Conner’s gen-
47.5.4.
2
eral history of social maladjustment. On cross- further found insufficient mitigating circum-
examination, she acknowledged that Conner stances to outweigh these aggravating circum-
was responsible for his actions and that he stances. The jury did not state whether it
knew right from wrong on the day of the found any mitigating circumstances or, if it
murder. did, which ones, because Mississippi law does
not require the jury to agree on particular mit-
Second, Conner testified to his history of igating circumstances or to find them beyond
schizophrenia and its effects on him. He ac- a reasonable doubt.2 Bell v. State, 725 So. 2d
knowledged that he took his medication every 836, 859 (Miss. 1998); Conner, 632 So. 2d at
day, including the day of the murder. And 1277.
though Conner admitted that he sometimes
drank while taking the medication, against his After the Mississippi Supreme Court af-
doctor’s orders, he denied either drinking or firmed Conner’s capital conviction and sen-
smoking crack on the day in question. Perhaps
recognizing how damaging these admissions
were to his mitigating-circumstances argu- 1
(...continued)
ment, Conner quickly backpedaled and claimed 614 (Miss. 1996) (state collateral review). Conner
he could not remember whether he took his makes this same argument in his petition for a writ
medication, drank, or smoked crack that day. of habeas corpus. See infra part III.
To sentence to death, under Mississippi Also on direct appeal, Conner argued that the
law, the jury must find specific aggravating cir- jury instruction on the aggravating circumstance of
cumstances unanimously and beyond a rea- committing the crime in an “especially heinous,
atrocious, or cruel manner” was impermissibly
sonable doubt. MISS. CODE ANN. § 99-19-
vague under the Eighth Amendment. The Missis-
103. The jury identified five aggravating cir-
sippi Supreme Court acknowledged that one sen-
cumstances: Conner committed the murder tence of this instruction was impermissibly vague,
(1) while engaged in a kidnaping, (2) while but held that the other two sentences satisfied
engaged in a robbery, (3) for pecuniary gain, Clemons v. Mississippi, 494 U.S. 738 (1990), and
and (4) in an especially heinous, atrocious, or Shell v. Mississippi, 498 U.S. 1 (1990). Conner,
cruel manner, and (5) he had a felony convic- 632 So. 2d at 1269-71. Conner also makes this
tion involving the use or threat of violence. argument in his habeas petition. See infra part III.
MISS. CODE ANN. § 99-19-101(5).1 The jury
2
The instruction allowed the jury to consider
four statutory mitigating circumstances: (1) the
1
On direct appeal and state collateral review, possibility that Conner committed the murder under
Conner argued that the jury impermissibly double- the influence of extreme mental or emotional
counted the underlying offense of robbery and the disturbance, (2) the possibility that Conner’s ca-
motive, i.e., pecuniary gain, for the underlying of- pacity to appreciate the criminality of his conduct
fense. On both occasions, the Mississippi Supreme or to conform his conduct to the requirements of
Court acknowledged that it had disapproved of this law was substantially impaired, (3) Conners’s age
practice, after Conner’s trial, in Willie v. State, at the time of the murder, and (4) whether he had
585 So. 2d 660 (Miss. 1991), but held that Willie no significant history of prior criminal activity.
was not retroactive. Conner, 632 So. 2d at 1269 MISS. CODE ANN. § 99-19-103(6). The instruction
(direct appeal); Conner v. State, 684 So. 2d 608, also allowed the jury to consider any additional
(continued...) non-statutory mitigating circumstance.
3
tence on direct appeal, Conner filed a “Motion doctors and social workers who could have
to Vacate Conviction and/or Death Sentence” testified about Conner’s history of
under the Mississippi Uniform Post-Conviction schizophrenia and his supposed tendency not
Collateral Relief Act. MISS. CODE ANN. § 99- to take his medication. Furthermore, Conner
39-1 et seq. This motion stated, as a ground urges that the failure to present this testimony
for relief, the same question presented by prejudiced him, because there is a reasonable
Conner’s federal habeas corpus petition, probability that the jury would have found him
namely, whether Conner received ineffective under the influence of extreme mental
assistance of counsel during the sentencing disturbance or unable to appreciate the
phase of his trial because his counsel had criminality of his conduct or to conform his
failed to investigate and present allegedly mit- conduct to law.
igating evidence related to Conner’s schizo-
phrenia. The Mississippi Supreme Court iden- Thus, according to Conner, there is a
tified Washington as the controlling law and reasonable probability that the jury would have
held that Conner had suffered no prejudice sentenced him to life imprisonment instead of
from his counsel’s failure to offer the evidence. death had it known of this evidence. Finally,
Conner v. State, 684 So. 2d 608, 610-12 Conner argues that the Mississippi Supreme
(Miss. 1996). The court denied the petition. Court’s decision to the contrary is both an un-
reasonable application of Washington and the
Conner next filed a federal habeas petition result of an unreasonable determination of the
that identified eight separate grounds for relief. facts in light of the evidence before that court.
In an unpublished opinion, the court rejected 28 U.S.C. § 2254(d)(1)-(2).
all grounds and denied the petition, then
rejected two motions to reconsider. The court In Neal v. Puckett, 286 F.3d 230 (5th Cir.
nevertheless granted a certificate of appeal- 2002) (en banc), we reviewed a similar
ability (“COA”), 28 U.S.C. § 2253, limited to ineffective assistance claim of failure to
the question of ineffective assistance of investigate and present allegedly mitigating
counsel at the sentencing phase. evidence. The thorough reasoning of Neal
guides our analysis here. “In a habeas corpus
II. appeal, we review the district court’s findings
A. of facts for clear error and review its
Conner’s argument is straightforward: He conclusions of law de novo, applying the same
contends that his trial counsel was ineffective standard of review to the state court’s decision
by failing to investigate and therefore to as the district court.” Foster v. Johnson, 293
present allegedly mitigating evidence related to F.3d 766, 776 (5th Cir. 2002) (citation
Conner’s history of schizophrenia. “It is clear omitted).
that defense counsel’s failure to investigate the
basis of his client’s mitigation defense can B.
amount to ineffective assistance of counsel.” The Antiterrorism and Effective Death Pen-
Lockett v. Anderson, 230 F.3d 695, 711 (5th alty Act of 1996 (“AEDPA”) governs this
Cir. 2000). Conner argues that if his counsel appeal, because Conner filed his petition after
had prepared properly for the sentencing April 24, 1996, the effective date of AEDPA.
phase, the attorney would have called several Lindh v. Murphy, 521 U.S. 320, 324-26
4
(1997). In particular, the provisions of 28 Washington imposes the correct governing
U.S.C. § 2254(d) apply to Conner’s arguments legal principle.
that the Mississippi Supreme Court
unreaso nably applied federal law and We observed in Neal, 286 F.3d at 236, that
unreasonably determined the facts. “‘unreasonable’ is difficult to define,” but for-
tunately the Court offered some guidance in
Section 2254(d) governs any petition for Williams. First, the Court rejected a
writ of habeas corpus “with respect to any subjective standard of reasonableness like the
claim that was adjudicated on the merits in one we adopted in Drinkard v. Johnson, 97
State Court proceedings.” A case is decided F.3d 751, 769 (5th Cir. 1996), and announced
“on the merits” where the state court’s instead an objective standard. “Stated simply,
disposition is substantive, not procedural. a federal habeas court making the
Neal, 286 F.3d at 235 (citing Green v. ‘unreasonable application’ inquiry should ask
Johnson, 116 F.3d 1115, 1121 (5th Cir. whether the state court’s application of clearly
1997)). The Mississippi Supreme Court established federal law was objectively
expressly held that “Conner fail[ed] to show unreasonable.” Williams, 529 U.S. at 409.
that but for the presentation of evidence of his
alleged mental illness, the outcome of his trial Second, and more importantly, the Court
might have been different.” Conner, 684 So. distinguished between a merely incorrect or
2d at 612. This holding certainly qualifies as a erroneous application of federal law and an
decision “on the merits.” unreasonable application. “[A] federal habeas
court may not issue the writ simply because
Section 2254(d)(1) states that a federal that court concludes in its independent
court shall not grant a writ of habeas corpus judgment that the relevant state-court decision
unless the state court’s adjudication “resulted applied clearly established federal law
in a decision that was contrary to, or involved erroneously or incorrectly. Rather, that
an unreasonable application of, clearly application must also be unreasonable.” Id. at
established Federal law, as determined by the 411.4
Supreme Court of the United States.”3 The
two phrases in § 2254(d)(1)SS“contrary to”
and “unreasonable application” SShave 4
In Woodford v. Visciotti, 537 U.S. ___, 2002
independent meanings, and the “unreasonable U.S. LEXIS 8312 (U.S. Nov. 4, 2002) (per curi-
application” standard applies when “the state am), the Court addressed a similar claim of inef-
court identifies the correct governing legal fective assistance of counsel during the sentencing
principle from th[e Supreme] Court’s decisions phase of a capital murder trial. The Ninth Circuit
but unreasonably applies that principle to the had granted the petitioner a writ of habeas corpus,
holding that the state court had not considered the
facts of the prisoner’s case.” Williams v.
totality of the mitigating evidence or the prejudicial
Taylor, 529 U.S. 362, 413 (2000). The effect of counsel’s actions and the weakness of the
unreasonable application standard applies in aggravating factors. Id. at *3-*4. The Supreme
this case because, as the parties rightly agree, Court reversed, because “[t]he Ninth Circuit did
not observe this distinction [between an incorrect
and an unreasonable application], but ultimately
3
Washington is “clearly established Federal substituted its own judgment for that of the state
law.” Williams, 529 U.S. at 390-91. (continued...)
5
In Neal, we further addressed the scope of phatically do not review the Mississippi trial
the “unreasonable application” standard. First, record to determine de novo whether Conner
we, unlike several other circuits, specifically received ineffective assistance of counsel dur-
declined “to supplement the Williams Court’s ing the sentencing phase of his trial. Rather
‘objectively unreasonable’ standard. Neal, 286 “the question before us is whether the
F.3d at 246 n.11. Second, we held that a Mississippi Supreme Court’s decision to reject
federal habeas court should review only the [Conner’s] ineffective assistance claim
state court’s legal conclusion, not its reasoning ‘involved an unreasonable application’ (and
or method of reaching that conclusion. The not merely an incorrect application) of
“focus . . . should be on the ultimate legal [Washington].” Neal, 286 F.3d at 236.
conclusion that the state court reached and not
on whether the state court considered and dis- C.
cussed every angle of the evidence.” Id. at To establish ineffective assistance of
246. counsel, Conner must show that (1) his trial
counsel’s performance was deficient and (2)
Section 2254(d)(2) states that a federal this deficient performance prejudiced his
court shall not grant a writ of habeas corpus defense. Washington, 466 U.S. at 687. The
unless the state court’s adjudication “resulted Mississippi Supreme Court assumed that the
in a decision that was based on an trial counsel’s performance was deficient but
unreasonable determination of the facts in light held that the deficiency did not prejudice
of the evidence presented in the State court Conner. Conner, 684 So. 2d at 612. This
proceeding.” The Supreme Court has not determination is neither an unreasonable
interpreted t his new provision; we, however, application of Washington nor the result of an
have addressed § 2254(d)(2). “To establish unreasonable determination of the facts
that habeas relief is warranted on the § presented in the state court proceeding.
2254(d)(2) ground . . . a petitioner must rebut
by clear and convincing evidence the § 1.
2254(e)(1) presumption that a state court’s A lawyer’s performance is deficient if it
factual findings are correct.” Foster, 293 F.3d “falls below an objective standard of
at 776-77 (citing Dowthitt v. Johnson, 230 reasonableness” as measured by professional
F.3d 733, 744 (5th Cir. 2000), cert. denied, norms. Washington, 466 U.S. at 688. In
532 U.S. 915 (2001)). applying this standard for deficiency, “[w]e
must determine whether there is a gap between
With the deferential standards of § 2254(d) what counsel actually did and what a
in mind, we face a precise question. We em- reasonable attorney would have done under
the circumstances.” Neal, 286 F.3d at 236.
We must be wary of “the distorting effects of
4
(...continued)
hindsight,” Washington, 466 U.S. at 689, and
court, in contravention of 28 U.S.C. § 2254(d).” we do not assume that counsel’s performance
Id. at *9. The Court concluded that “[w]hether or was deficient “merely because we disagree
not we would reach the same conclusion as the with trial counsel’s strategy,” Crane v.
California Supreme Court, we think at the very Johnson, 178 F.3d 309, 312 (5th Cir. 1999).
least that the state court’s contrary assessment was
not ‘unreasonable.’” Id. at *13 (citation omitted).
6
At the same time, a criminal defendant fac- We by no means suggest that a trial
ing the death penalty is entitled to a counsel’s sworn acknowledgment of his
“reasonably substantial, independent deficient performance satisfies Washington’s
investigation” into potential mitigating deficiency standard. Such a rule, it should go
circumstances. Baldwin, 704 F.2d 1325, without saying, would invite every defendant
1332-33 (5th Cir. 1983). We consider several to attack his conviction based on an easily
factors when evaluating the adequacy of trial attainable affidavit from a now-removed and
counsel’s investigation: (1) what trial counsel probably conscience-stricken attorney. In this
actually did to prepare for sentencing, (2) what case, however, the state trial record supports
mitigating evidence he obtained, (3) what the attorney’s affidavit.
additional “leads” he had, and (4) what results
he might have expected from these leads. Conner contends that his lawyer should
Neal, 286 F.3d at 237. Conner’s trial counsel have presented additional evidence of Con-
did not satisfy this standard.5 ner’s schizophrenia and his failure to take
medication. The attorney did present these
Trial counsel admitted that his performance facts to the jury, albeit in skeletal form. Con-
was deficient. In an affidavit supporting Con- ner’s medical records documented his history
ner’s state petition for collateral relief and fed- of schizophrenia and his prescriptions for med-
eral habeas petition, counsel states that he was ication to control the disease. His sister
(and still is) convinced of Conner’s innocence. testified that he was treated at Weems Medical
Though he “recognized that should Mr. Con- Health Center and that he was on medication.
ner be found guilty, his best argument at sen- She told the jury that she thought Conner did
tencing was that he suffer[ed] from mental ill- not always take his medication. Conner
ness,” counsel did not prepare for the testified about his mental illness and its effects.
sentencing phase before trial. He did not Thus, the jury was aware of his main
consult with any of Conner’s treating argument for mitigation, though “it was
physicians at Weems Mental Health Center or presented to the jury in an abbreviated form
any expert witness on schizophrenia. with no elaboration.” Neal, 286 F.3d at 238.
After the jury returned a verdict of guilty, Based on several affidavits, Conner argues
counsel frantically tried to locate a treating that counsel could have offered much stronger
physician or an expert witness. Yet, with the evidence.6 This evidence is threefold. First is
sentencing phase beginning the next day, he an affidavit from W.M. Wood, the psychiatrist
could locate neither. Thus, he relied on Con- who treated Conner at Weems in 1988 and
ner’s medical records and the testimony of 1989. Wood attests that, i f the attorney had
Conner’s sister Dorothy, much of which was so requested, he could have testified regarding
excluded as hearsay. Conner’s history of schizophrenia and alcohol
abuse; Conner’s history of psychotic episodes,
including hearing voices; Conner’s leap from a
5
Although the Mississippi Supreme Court as-
6
sumed trial counsel’s performance was deficient, Conner presented these affidavits to the
the state does not concede the point. We therefore Mississippi Supreme Court and the federal district
address the state’s arguments. court.
7
moving train at these voices’ instructions; ner’s medical records, and the state court rec-
Conner’s medical prescriptions and the ord that Conner “very likely” was not taking
doctor’s belief that Conner did not always take his medication on the day in question.
the medication; the doctor’s belief that Conner
was using alcohol and drugs in the latter part More importantly, Webb expresses his
of 1989; and his opinion that Conner’s “acting “opinion to a reasonable degree of medical
out without regard to laws and morays [sic] is certainty” that Conner murdered Brown under
a product of his mental illness rather than be- the influence of extreme mental and emotional
havior under which he has control.” disturbance and that Conner’s capacity to ap-
preciate the criminality of his conduct or to
Second is a series of affidavits and conform his conduct to the requirements of
prescriptions allegedly suggesting that Conner law was substantially impaired. This language
was not taking his medication on the day of mimics the two statutory mitigating
the murder. As noted, Wood would have circumstances on which Conner relies. MISS.
testified that he “believed” Conner was off his CODE ANN. § 99-19-101(6)(b), (f). Conner
medication. Similarly, Marie Sipp, a social also suggests that Webb could have served as
worker who handled Conner’s case at Weems, a general medical expert on the origins and
attests that she would have testified that she symptoms of schizophrenia.
“believe[d] . . . he had gotten off his
medication.” As we explain, infra part III.C.2, we are
unimpressed by this evidence. Unlike the evi-
Marshall Powe, a social worker who dence discussed in Neal, 286 F.3d at 237-39,
assisted Conner at Weems from 1987 to 1989, this evidence is neither extensive nor weighty.
contends that he would have testified The state argues, for this reason, that
regarding the Conner family history of mental counsel’s failure to present the evidence could
illness, Conner’s inability to manage his financ- not amount to deficient performance. We dis-
es, and his frequent confusion. Ida Conner, agree.
Conner’s mother, attests that she found
prescriptions for medication in Conner’s The factors identified in Neal do not sup-
apartment shortly after his arrest. Perry Wal- port the state’s argument. Counsel did
lace, a doctor who treated Conner at a local nothing whatsoever to prepare for the
hospital, stated that he wrote these sentencing phase before trial began or during
prescriptions for Conner in December 1989. the guilt phase. Yet, he was well aware of
Conner offers these last two affidavits Conner’s medical history, and he rightly
presumably as the foundation to introduce the believed that Conner lacked any other
prescriptions and argue that they prove he was persuasive mitigating evidence. The attorney
not taking his medication on the day of the did not follow this obvious “lead,” even
murder. though any reasonable person, much less any
reasonable attorney, would have known to
Third, Conner offers the affidavit of Mark consult with Conner’s treating physician and a
Webb, a psychiatrist. Though Webb never medical expert.
treated, examined, or even met Conner, he
opines based on the preceding affidavits, Con- Moreover, this evidence was readily
8
available. These potential witnesses lived in probability that at least one juror7 reasonably
the same county as Conner and trial counsel, could have determined that Conner did not
i.e., the county where the state tried Conner. deserve the death penalty because of his
Several of these potential witnesses attest that reduced moral culpability. Id.trial counsel did not contact them before or
during Conner’s trial, a fact we found “most We do not, however, write on a blank slate,
troubling” in Neal, 286 F.3d at 240. Finally, because the Mississippi Supreme Court already
the state does not argue, nor does the record has adjudicated this claim on the merits.
indicate, that counsel strategically withheld Conner, 684 So. 2d at 610-12. We therefore
this evidence to avoid the introduction of must affirm the denial of the habeas petition
unflattering evidence along with the mitigating unless the Mississippi Supreme Court
evidence. unreasonably applied Washington or
unreasonably determined the facts based on
Conner’s lawyer had an obligation at least the record. 28 U.S.C. § 2254(d)(1)-(2). So
to investigate and perhaps to present this po- far from being unreasonable, we conclude that
tentially mitigating evidence, because it “could the Mississippi Supreme Court’s adjudication
reasonably have been expected to augment was imminently reasonable on the law and the
[Conner’s] case.” Id. His failure to do so facts.
“falls below an objective standard of
reasonableness” as measured by professional That court observed that at several
norms. Washington, 466 U.S. at 688. Thus, junctures of the trial, the state trial court
we agree with the Mississippi Supreme carefully considered Conner’s mental health.
Court’s implicit assumption: Counsel’s Conner, 684 So. 2d at 611. The court also
performance was deficient. noted that psychiatrists at the Whitfield State
Hospital had evaluated Conner in March 1990
2. and concluded that
Deficiency is not enough; Conner must
show prejudice, which is at least “a reasonable [t]he staff was unanimous in the opinion
probability that, but for counsel’s that he is competent to stand trial at the
unprofessional errors, the result of the present time. He appears to have a ra-
proceeding would have been different.” tional as well as factual understanding of
Washington, 466 U.S. at 694. A “reasonable the charges against him and he appears
probability” means a probability sufficient to capable of assisting his attorney in
undermine confidence in the outcome. Id. at preparing a defense. With regard to his
668. “In determining prejudice, we are thus sanity at the time of the crime, the staff
required to compare the evidence actually was unanimous in the opinion that he
presented at sentencing with all the mitigating knew the difference between right and
evidence contained in the postconviction wrong in relation to his actions.
record.” Neal, 286 F.3d at 241. The
additional mitigating evidence must be so
compelling that there is a reasonable
7
Under Mississippi law, the jury must vote
unanimously to impose the death penalty. MISS.
CODE ANN. § 99-19-103.
9
Mr. Conner has been treated at the was not taking his medication.
[Weems] Mental Health Center for a
number of years and has a Schizophrenic The additional evidence, however,
diagnosis. We have retained this diag- established merely that Conner once was
nosis, although he has shown few if any diagnosed with schizophrenia, may (or may
of the symptoms of this disorder during not) have failed to take his medication
his stay in the hospital. He is on regularly, and had a history of substance
medication and this could account for abuse. Id. The court acknowledged that “it
the lack of symptoms. We have given might be tempting to argue that Conner was
him a diagnosis of Personality Disorder prejudiced by his attorney’s lack of foresight,”
Not Otherwise Specified to reflect a but the court faithfully applied the Washington
long-standing pattern of social standard and held that “Conner fails to show
discomfort, excessive dependency, and that but for the presentation of evidence of his
a tendency to take out his anger in alleged mental illness, the outcome of his trial
indirect and passive ways. might have been different.” Id.
Id. at 611 (citation omitted).8 Next, the court We agree with the Mississippi Supreme
carefully distinguished two Washington Court that there is no reasonable probability
precedents. Id. at 611-12 (distinguishing that even a single juror would have refused to
Woodward v. State, 635 So. 2d 805 (Miss. impose the death penalty if presented with the
1993), and Loyd v. Smith, 899 F.2d 1416 (5th additional mitigating evidence. Conner does
Cir. 1990)). The court then stated that not argue that the jury would have found a
“[b]ased on the evaluation from Whitfield, it general mitigating circumstance such as a
hardly seems that further evidence of Conner’s troubled childhood, a hard life, or unadorned
alleged personality disorders was necessary.” mercy. Conner argues that the evidence would
Id. at 612. have convinced the jury that on the day of the
murder, he was under the influence of extreme
Finally, the Mississippi Supreme Court mental disturbance and lacked the capacity to
reached the heart of its analysis, namely, that understand the criminality of his conduct or to
the additional mitigating evidence is not es- conform his conduct to law, because he
pecially probative of the mitigating suffered from schizophrenic delusions as a
circumstances on which Conner relied. result of not taking his medication. The
Conner asserted that the evidence showed that additional mitigating evidence does little to
he murdered under the influence of extreme establish this proposition.
mental disturbance and that his capacity to
appreciate the criminality of his conduct or to None of the proffered witnesses
conform his conduct to the requirements of encountered Conner on the day of the murder,
law was substantially impaired. In particular, so they have no firsthand, personal knowledge
he claimed he suffered from schizophrenic of whether he was taking his medication.
delusions on the day of the murder because he Wood would have testified only that he
“believed” Conner did not take his medication
in “intervals” and that Conner generally
8
The full text of the Whitfield letter appears at “act[ed] out without regard to laws” because
Conner, 632 So. 2d at 1251.
10
of Conner’s “mental illness.” This testimony, why this kind of credibility determination
however, would not have established belongs particularly with the jury. We will not
specifically that Conner’s misdeeds were the revisit such a jury finding on direct appeal
result of schizophrenic delusions. Similarly, from a federal district court, and we certainly
the affidavits of Sipp and Powe state nothing will not do so on a habeas petition from state
more than their belief, based to some extent on court.
sheer speculation, that Conner was not taking
his medication. Even if the jury had credited this additional
evidence, the Mississippi Supreme Court is
The prescriptions offered as evidence, correct that, as we said in Neal, 286 F.3d at
based on the affidavits of Ida Conner and 247, “the additional evidence was not
Wallace, also do not prove that Conner was substantial enough to outweigh the
not taking his medications. Conner has overwhelming aggravating circumstances.”
presented no evidence that these prescriptions Conner manifested a shocking indifference to
were unfilled or, even if they were unfilled, human life with his gruesome murder of a
that he did not have medication remaining helpless old woman for barely more than $200.
from earlier prescriptions. Finally, Webb The jury expressed its reasoned and justifiable
might have explained, in more precise detail, moral outrage by finding four aggravating
the nature of schizophrenia to the jury, but this circumstances for imposing the death penalty.9
testimony certainly could not establish that
Conner was not taking his medicine on the day
of the murder. The jury had the basic facts of Conner’s
mitigating circumstances argument before it,
Vastly more probative than any of this evi- i.e., Conner was diagnosed with schizophrenia
dence is Conner’s testimony during the and may not have taken his medication
sentencing phase. He admittedSSon direct regularly, but it nonetheless voted unanimously
examination, no lessSSthat he took his that the aggravating circumstances outweighed
medication every day. On cross-examination, the mitigating circumstances (if any). Mere
he further acknowledged that he specifically hearsay and conjecture from a handful of doc-
recalled taking it on the murder date, and tors and social workers is unlikely, in the ex-
denied drinking alcohol or smoking crack that treme, to have shifted the balance.
day.
This case is a far cry from other cases in
Granted, Conner instantly retreated and which we have held that a capital defendant
claimed he could not recall whether he took was prejudiced by counsel’s failure to present
his medication, drank, or smoked crack. Per- additional mitigating evidence. In Neal, for
haps these admissions reveal a man still example, the attorney presented the “basic evi-
suffering schizophrenic delusions (though we dence” of the defendant’s miserable childhood,
note that he was taking his medication during
the trial). Perhaps Conner recognized that he
had terribly undermined his only plausible miti- 9
The jury actually found five aggravating cir-
gating circumstance. We cannot say, because cumstances, but the Mississippi Supreme Court
we did not observe his testimony, which is has explained that two of them should count as
only one. See supra note 1.
11
moderate retardation, history of institu- decision on an incorrect, much less an
tionalization, and serious behavioral problems. unreasonable, determination of the facts on the
Id. at 243. Yet, we held that the state court record before it. There is no reasonable
had erred in concluding that the failure to probability sufficient to undermine confidence
present the additional evidence did not pre- in the sentence of death.
judice the defendant, because the additional
evidence provided much more detail and con- III.
text, buttressed other evidence, and humanized Conner seeks habeas relief on four
the defendant, id. at 244, though we further additional grounds: (1) The jury double-
held that the state court had not acted un- counted, as aggravating factors, the underlying
reasonably under § 2254(d)(1) and Williams, felony of robbery and the motive, i.e.,
id. at 246-47. By contrast, the additional miti- pecuniary gain, for this underlying felony; (2)
gating evidence in this case provides no extra the Mississippi Supreme Court refused to
details, but simply attempts to buttress other grant Conner expert assistance; (3) the district
evidence with unsubstantiated speculation. court, after denying the petition on the merits,
refused to let Conner amend his petition to
In Lockett, for another example, trial include grounds for relief based on Penry v.
counsel offered essentially no mitigating Johnson, 532 U.S. 782 (2001), and Apprendi
evidence during the sentencing phase but v. New Jersey, 530 U.S. 466 (2000); and (4)
instead simply begged the jury for mercy. the jury instruction for the aggravating
Lockett, 230 F.3d at 711, 716. Yet, counsel circumstance of an “especially heinous,
knew of evidence that the defendant suffered atrocious, or cruel ” offense was
from a personality disorder, a brain unconstitutionally vague. We do not address
abnormality, and seizures caused by temporal the merits of these grounds, because they are
lobe epilepsy, which could have caused the not properly before this court.
violent murder. Id. at 713. We had little
trouble concluding that the failure to present In an effort to reduce frivolous appeals and
this evidence prejudiced the defendant, protracted death penalty litigation, AEDPA
because an objectively reasonable jury, if requires a habeas litigant to obtain a COA to
presented with this evidence, very well might appeal the denial of his petition. 28 U.S.C.
have concluded that the defendant had reduced § 2253. Section 2253(c)(3) plainly states that
moral culpability and therefore did not warrant a COA “shall indicate which specific issue or
the death penalty. Id. at 716-17. Unlike the issues satisfy the showing” necessary to obtain
evidence in Lockett, however, the additional a COA. Conner did not request a COA from
mitigating evidence in this case does not the district court, but instead filed a notice of
introduce an entirely new aggravating appeal in which he identified the ineffective
circumstance and does not supplement an assistance claim and these other four grounds
otherwise barren record. for relief. The court treated this notice of ap-
peal as a constructive request for a COA on all
On the record and with the arguments be- grounds. Yet, the court granted a COA only
fore us, we cannot say that the Mississippi Su- on the ineffective assistance ground.
preme Court incorrectly applied Washington,
much less unreasonably applied it, or based its We cannot review questions beyond the
12
scope of the COA. 28 U.S.C. § 2253(c)(3);
Lackey v. Johnson, 116 F.3d 149, 151 (5th
Cir. 1997). Furthermore, “a notice of appeal
is not a constructive request [to this court] for
review of issues refused certification by the
district court where the district court certified
some but not all issues.” United States v.
Kimler, 150 F.3d 429, 430 (5th Cir. 1998).
Conner did not specifically request that this
court grant a COA on the additional four
grounds.10 Thus, we decline to consider
whether he has made the necessary showing
for a COA on these grounds, 28 U.S.C.
§ 2253(c)(2), or whether relief is warranted on
the merits.11
The judgment of the district court, denying
the petition for writ of habeas corpus, is
AFFIRMED.
10
Briefly and without argument, Conner re-
quests a COA in his reply brief only after the state
correctly argued, in its response brief, that these
grounds are not properly before this court. We de-
cline to recognize the request, however, because
Conner should have made it in his opening brief.
“It is well-settled that, generally, we will not con-
sider issues raised for the first time in a reply
brief.” United States v. Jackson, 50 F.3d 1335,
1340 n.7 (5th Cir. 1995).
11
Our refusal to reach these grounds operates
as a dismissal with prejudice; we will not consider
a second or successive habeas petition based on
these grounds. 28 U.S.C. § 2244(b)(1).
13