Chase v. Epps ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 01-60516
RICKY R. CHASE,
Petitioner-Appellant,
versus
CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI
DEPARTMENT OF CORRECTIONS; MIKE MOORE, Attorney
General of the State of Mississippi,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
(3:97-CV-744)
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ON PETITION FOR REHEARING
Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Ricky R. Chase, a Mississippi death row
inmate, petitions for panel rehearing following our affirmance of
the district court's judgment denying his 28 U.S.C. § 2254petition. Chase contends that our decision is irreconcilable with
the Supreme Court's recent decision in Wiggins v. Smith, 123 S. Ct.
2527 (2003), and that the Mississippi Supreme Court's decision was
*
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that this opinion should not be published and is not precedent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.
an objectively unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984), in light of Wiggins. Chase argues
that defense counsel was ineffective in taking only "perfunctory
steps" to investigate Chase’s mental capacity despite clear
indications of his below-average intelligence and mental
retardation, stating that the Wiggins Court reviewed facts similar
to those present in his case.
In Wiggins, the petitioner's attorneys failed to investigate
and present mitigating evidence of his "dysfunctional background"
despite having some information available to them in a presentence
investigation report and social service records. These indicated
that the petitioner had suffered severe physical and sexual abuse
as a child, had an alcoholic mother, and was borderline retarded
with an IQ of 79. See Wiggins, 123 S. Ct. at 2532-33, 2536. The
Supreme Court held that, under Strickland, the concern was not
whether "counsel should have presented a mitigation case" but
"whether the investigation supporting counsel's decision not to
introduce mitigating evidence of Wiggins' background was itself
unreasonable." Id. at 2536. The Court concluded that, given the
information in the presentence report and the social services
reports, counsel's decision not to expand the investigation into
Wiggins' life history fell short of professional standards, id. at
2536-38, and that Wiggins was prejudiced by counsel's failure. Id.
at 2542-44.
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Wiggins is distinguishable from the instant case. In Wiggins,
defense counsel failed to follow standard practice in preparing a
social history report for the defendant despite availability of
public funds to do so. Id. at 2536. Here, defense counsel moved
for, and was granted, permission to obtain two psychological
evaluations. Merely conducting some investigation is not
necessarily sufficient; "[i]n 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." Wiggins, 123 S. Ct. at 2538. Yet the evidence possessed
by counsel in Wiggins is qualitatively different from the evidence
that was that present here.
First, defense counsel in Wiggins possessed a psychologist's
report indicating that the petitioner had an IQ of 79, had
difficulty coping with demanding situations, and had a personality
disorder. Id. at 2536. Second, the petitioner’s presentence
report noted his misery as a youth, quoted his description of his
own background as "'disgusting,'" and observed that the petitioner
spent most of his life in foster care. Id. Finally, social
services reports revealed that the petitioner's mother was a
chronic alcoholic, that he was shuttled between foster homes and
had emotional difficulties, that he had frequent, lengthy absences
from school, and that, on at least one occasion, his mother left
him and his siblings alone for days without food. Id. at 2537.
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Here, by contrast, as the Mississippi Supreme Court noted,
"there was no evidence presented, nor was it alleged, that Ricky
Chase was the victim of child abuse, poverty, substance abuse or
mental problems resulting from physical injury or organic disease."
Chase v. State, 699 So. 2d 521, 528 (Miss. 1997). Chase does not
contend now that he was a victim of such circumstances.
Defense counsel here knew that Chase had never failed a grade
in school, had almost completed tenth grade before dropping out,
and had been a good athlete in high school. Counsel also knew that
Chase had never been in special education classes and had completed
a welding course. As noted in the panel opinion, Dr. Perry's
indication that Chase's Performance IQ was in the "mildly retarded"
range was qualified by his finding that he did not believe Chase
was performing at his best on that particular part of the test.
When Dr. Perry administered the Wechsler Memory Scale (WMS) test,
on which occasion he believed that Chase was performing at his
best, Chase achieved a score in the average range, indicating no
problems with recent recall.
Defense counsel knew that Dr. Perry had found that Chase
possessed reading skills at the tenth grade level and spelling
skills at the seventh grade level, and that he was literate. As
also noted in the panel opinion, Dr. Perry found Chase's
intellectual ability to be "at least in the borderline range,"
found no "evidence of a mental disorder in observing him and in
reviewing his history," found "no indications of a thought disorder
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of any type," and concluded there was no need for further
evaluation or treatment of any mental disorder. Subsequently, Dr.
Pate (a psychiatrist) voiced the opinion that Chase did not have a
mental illness or a history compatible with a mental illness. The
Mississippi Supreme Court concluded that Dr. Perry's findings were
not "powerful evidence." Chase, 699 So. 2d at 529.
Although Chase invokes Wiggins as new Supreme Court precedent,
in reality he is re-arguing the issue previously presented to this
panel. In light of the information possessed by Chase’s defense
counsel, Wiggins does not alter our conclusion that the state
supreme court's decision was not contrary to or an unreasonable
application of federal law.
The petition for panel rehearing is DENIED. No member of this
panel nor judge in regular active service on the court having
requested that the court be polled on rehearing en banc, see FED.
R. APP. P. and 5TH CIR. R. 35, the petition for rehearing en banc is
also DENIED.
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