Chambers v. Quarterman ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 21, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-11248
_____________________
RONALD CURTIS CHAMBERS,
Petitioner - Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas
USDC No. 3:99-CV-1283-L
_________________________________________________________________
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
At his third trial in 1992, Ronald Curtis Chambers
(“Chambers”) was convicted of capital murder and sentenced to
death, for the third time, for the 1975 murder of Mike McMahan
during the course of a robbery. This court granted a certificate
of appealability (“COA”) authorizing Chambers to appeal the
district court’s denial of federal habeas relief as to certain
claims. We AFFIRM.
*
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this opinion should not be published and is not precedent except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.
I
In April 1975, Chambers and an accomplice, Clarence Ray
Williams, forced their way, at gunpoint, into the car occupied by
two college students, Mike McMahan and Deia Sutton, outside a night
club in Dallas, Texas. After robbing the victims, they drove to a
levee and forced the victims from the car, and down an embankment.
Both victims were shot. As Chambers and Williams walked back up
the hill, McMahan called out to Sutton. Williams told Chambers
that the victims were not dead and Chambers responded, “They gotta
be dead. I shot ‘em in the head.” Williams and Chambers returned
to the location of the victims. Chambers struck McMahan in the
head numerous times with the barrel of the shotgun and ordered
Williams to take Sutton into the water. Williams pulled Sutton to
the water and attempted to choke and drown her. When Chambers
finished beating McMahan, he approached Sutton, who begged him not
to kill her. He ignored her pleas, raised his shotgun over his
head, and struck her three times. McMahan died, but Sutton
survived. After committing the crime, Chambers washed blood and
hair off the shotgun, wiped blood from the stolen money and divided
it, and then played dominoes before going to sleep. A more
complete description of this brutal crime can be found in the
opinion of the Texas Court of Criminal Appeals. Chambers v. State,
903 S.W.2d 21, 24-25 (Tex. Crim. App. 1995). Williams pleaded
guilty and was sentenced to two stacked terms of life imprisonment.
2
Chambers was convicted and sentenced to death in 1976 for
capital murder during the course of a robbery. His conviction was
affirmed on direct appeal. Chambers v. State, 568 S.W.2d 313 (Tex.
Crim. App. 1978), cert. denied, 440 U.S. 928 (1979). His first
state habeas application was denied in 1981. Ex parte Chambers,
612 S.W.2d 572 (Tex. Crim. App. 1981). His conviction was reversed
in his second state habeas action in 1984, because the State’s
psychologist had interviewed him without informing him that his
statements would be used to obtain a death sentence. Ex parte
Chambers, 688 S.W.2d 483 (Tex. Crim. App. 1984), cert. denied, 474
U.S. 864 (1985).
Chambers was retried, convicted, and sentenced to death in
1985. His second conviction was reversed on direct appeal because
of violations under Batson v. Kentucky, 476 U.S. 79 (1986).
Chambers v. State, 784 S.W.2d 29 (Tex. Crim. App.), cert. denied,
496 U.S. 912 (1989).
In 1992, Chambers was convicted and sentenced to death for the
third time. His conviction and sentence were affirmed on direct
appeal. Chambers v. State, 903 S.W.2d 21 (Tex. Crim. App. 1995).
His state habeas application, filed in October 1996, was denied by
the state trial court in September 1998. Ex parte Chambers,
Application No. 7,929-03 (Tex. Crim. App. March 24, 1999)
(unpublished). In March 1999, the Texas Court of Criminal Appeals
adopted the trial court’s findings and conclusions and denied
relief.
3
Chambers filed his federal habeas petition in October 1999,
raising 41 claims. On August 26, 2003, the district court denied
relief. Chambers v. Cockrell, No. 3:99-CV-1283-L (N.D. Tex. Aug.
26, 2003) (unpublished). The district court denied Chambers’s
application for a COA in December 2003.
Chambers requested a COA from this court for sixteen claims.
This court granted a COA for the claims discussed below. Chambers
v. Dretke, No. 03-11248 (Aug. 19, 2005) (unpublished). The parties
filed supplemental briefs on the merits of the claims for which a
COA was granted, and this court heard oral arguments of counsel.
Having considered the arguments of counsel, and based on our review
of the state court record, we conclude that the state court’s
decision to deny relief on these claims is not contrary to, or an
unreasonable application of, clearly established federal law as
determined by the Supreme Court. We therefore AFFIRM the district
court’s denial of federal habeas relief.
II
Based on our “threshold inquiry”, consisting of “an overview
of the claims in the habeas petition and a general assessment of
their merits,” Miller-El v. Cockrell, 537 U.S. 322, 327, 336
(2003), this court granted a COA authorizing Chambers to appeal the
denial of relief as to the following claims:
(1) that Chambers’s Sixth Amendment right to counsel was
violated when one of two attorneys appointed to represent him on
the direct appeal of his third conviction in 1992 had a conflict of
4
interest based on that attorney’s representation of Chambers’s
accomplice, Clarence Ray Williams, in guilty plea proceedings in
1975;
(2) that his appellate counsel rendered ineffective assistance
on direct appeal by (a) failing to appeal the denial of Batson
objections to the prosecution’s peremptory strikes of three
minority jurors; (b) failing to appeal the prosecutor’s comment on
the defense’s failure to produce photographs; and (c) failing to
appeal the admission of testimony from a news reporter regarding
statements made by Chambers while he was on death row;
(3) that his Eighth Amendment rights were violated by the
trial court’s refusal to permit the introduction of evidence of his
accomplice’s criminal history to demonstrate Chambers’s comparative
culpability; and, alternatively, whether appellate counsel rendered
ineffective assistance by failing to raise the issue on direct
appeal; and
(4) that the Texas capital punishment statute in effect at the
time of his trial is unconstitutional as applied to Chambers
because it prohibited the jury from considering mitigating
evidence, and because it prohibited the court from submitting to
the jury a special issue regarding whether mitigating evidence
warranted a life sentence.
Chambers is not entitled to habeas relief on these claims
unless the state court’s adjudication of the claims “(1) resulted
in a decision that was contrary to, or involved an unreasonable
5
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State Court
proceeding.” 28 U.S.C. § 2254(d). The state court’s factual
determinations “shall be presumed to be correct”, and the
petitioner “shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1). We conclude that Chambers has not made the required
showing, for the reasons stated in the following discussion of each
of the claims.
A
The state court did not unreasonably conclude that Chambers’s
Sixth Amendment right to counsel was not violated because Lawrence
Mitchell, one of the two attorneys appointed to represent him on
the direct appeal of his third conviction in 1992, had a conflict
of interest based on Mitchell’s representation of his accomplice,
Clarence Ray Williams, in guilty plea proceedings in 1975. The
state court rejected this claim, holding that Mitchell did not
actively represent conflicting interests; that Mitchell’s
representation of Williams did not have an adverse effect on
Mitchell’s representation of Chambers; and that Mitchell did not
have a conflict of interest while representing Chambers. We
observe that the Supreme Court has not held that the standard
applied by the state court applies to claims of successive
6
representation conflicts. See Mickens v. Taylor, 535 U.S. 162, 176
(2001) (declining to decide whether to extend standard for multiple
concurrent representation conflicts in Cuyler v. Sullivan, 446
U.S. 335 (1980) -- conflict actually affected adequacy of
representation -- to successive representation conflicts); but see
Perillo v. Johnson, 205 F.3d 775, 797-98 (5th Cir. 2000) (holding
that Cuyler standard applies to all multiple representation
conflicts, whether concurrent or successive, under pre-AEDPA law,
and holding Teague bar inapplicable). Even assuming that the state
court incorrectly applied the Cuyler standard rather than the
prejudice standard of Strickland v. Washington, 466 U.S. 668
(1984), its decision is not objectively unreasonable. The Cuyler
standard is less demanding of habeas petitioners than the
Strickland standard, see Perillo, 205 F.3d at 781, and Chambers has
not demonstrated that his Sixth Amendment rights were violated
under either standard. Chambers has not offered any convincing
explanation of how anything Mitchell did or did not do in
Chambers’s 1992 appellate proceedings could have jeopardized
Williams’s 1975 guilty plea or the sentence he is now serving, or
the conditions of his imprisonment. Thus, there is no basis for
the speculation that Chambers’s Sixth Amendment right to the
effective assistance of counsel was harmed because Mitchell was
unwilling to raise any issues critical of Williams in Chambers’s
appeal.
B
7
The state court did not unreasonably conclude that Chambers’s
appellate counsel did not render ineffective assistance by failing
to appeal the denial of Batson challenges to the prosecution’s
peremptory strikes of three minority prospective jurors. The trial
court judge conducted a hearing on the objections and found that
the prosecutor provided race-neutral explanations for the
challenged strikes, and that there was no evidence that the
prosecutor’s explanations were pretextual. In rejecting Chambers’s
state habeas claim, the trial court stated that it had expected the
prosecution to strike these jurors “due solely to their answers and
not due to their race.” The trial court also noted that two
African-Americans and one Hispanic served on Chambers’s jury, and
that the prosecution had accepted three minority veniremembers that
the defense struck. Chambers concedes that he cannot prove that
the State exercised a high percentage of strikes against
minorities, that the strikes resulted in an all-white jury, or that
whites and minorities were questioned differently. The state
court’s decision that Chambers’s appellate counsel did not render
ineffective assistance by failing to raise a meritless Batson claim
on direct appeal is not contrary to, or an unreasonable application
of, clearly established federal law.
C
The state court’s decision that Chambers’s appellate counsel
did not render ineffective assistance by failing to appeal the
8
prosecutor’s comment on his failure to produce photographs is not
objectively unreasonable.
During closing arguments at the guilt-innocence phase, defense
counsel argued:
You know, we don’t have anybody--we have got
all these investigators and all this manpower
and everything, but the only picture that
[Deia Sutton has] ever been shown, according
to her own testimony, in 17 years, is Mr.
Chambers’ picture, and it’s in a photo lineup
that nobody can bring down here and show you.
It doesn’t exist anymore, which is pretty
convenient, I guess. Just doesn’t exist
anymore.
Why get rid of it? We don’t know what Mr.
Chambers looked like back in April of ‘75.
Nobody sees fit to come down and show you
that. Nobody’s seen fit to come down here and
show you what he looked like. Nobody’s -- and
they didn’t see fit to say, “Hey, could it
have been this guy? Could Bickems have been
the guy that did it?” No, they didn’t show
you that.
Did they talk--did they even show her a
picture of Williams? No, they didn’t do that.
We all know that.
In response, the prosecutor asked the jury to consider that
Chambers could have produced a photograph of himself to show that
he does not resemble the victims’ attacker:
We know from the testimony of Deia, she sees a
photo lineup. It’s not in existence anymore.
I would like to bring it to you, I can’t.
It’s long gone. We know she saw a photo
lineup, seven photographs of black males, all
about the same age, same body configurations,
same hair type, and she immediately, without
any hesitation, goes to the photograph of Mr.
Chambers. They say, why don’t we have a
photograph of Mr. Chambers? I don’t have that
9
photo lineup. It’s gone. We know he’s got a
father and family members. They could produce
a photo.
Defense counsel objected, and the trial court sustained the
objection. The prosecutor then continued, without objection:
Photographs of the Defendant exist. They
could bring them forth. Both sides have equal
subpoena power and both sides have a right to
bring photographs that they deem is [sic]
appropriate and admissible relevant [sic].
The Texas Court of Criminal Appeals adopted the state habeas
court’s findings that (1) “essentially the same argument was
repeated later in the trial without objection,” so any claim of
error was procedurally barred; (2) the argument was a proper
response to defense counsel’s argument that “We don’t know what Mr.
Chambers looked like back in April [of] ‘75"; (3) the argument was
not an indirect comment on Chambers’s failure to testify; and (4)
therefore, appellate counsel did not render ineffective assistance
by “reasonably deciding not to assert the seemingly frivolous point
of error.” Chambers has not demonstrated that the state court’s
decision is objectively unreasonable and, therefore, he is not
entitled to federal habeas relief on this claim.
D
The state court did not unreasonably conclude that Chambers’s
appellate counsel did not render ineffective assistance by failing
to appeal the admission of testimony from a news reporter regarding
statements made by Chambers while on death row. At the punishment
phase of the third trial, a former reporter for D Magazine, Mark
10
Donald (a licensed Texas attorney), was called as a rebuttal
witness for the State. Over Chambers’ objection, Donald testified
that, while writing a story about the crime, and with the
permission of Chambers’s counsel at the second trial, he
interviewed Chambers in the Dallas County Jail in January 1986, two
months after Chambers’s second trial. Donald testified that
Chambers told him that by the age of sixteen, Chambers could get
girls, guns and drugs, including marijuana, reds, codeine, coke,
and smack if he wanted, but that the only drug he used was
marijuana because he did not like to lose control. Chambers argues
that his appellate counsel should have appealed the admission of
Donald’s testimony, because it undercut a major defense contention
-- that Chambers’s normally peaceful nature was altered by drug
use.
The state habeas court held, inter alia, that because similar
evidence was introduced without objection, error had been waived,
and appellate counsel was not in a position to appeal the admission
of Donald’s testimony. Chambers has not demonstrated that the
state court’s decision is contrary to, or an unreasonable
application of, clearly established federal law.
E
The state court did not unreasonably conclude that Chambers’s
Eighth Amendment rights were not violated by the trial court’s
refusal to admit evidence of the criminal history of Williams, the
accomplice, to demonstrate Chambers’s comparative culpability, nor
11
did it unreasonably conclude that appellate counsel did not render
ineffective assistance by failing to raise this issue on direct
appeal.
At the punishment phase, Chambers sought to introduce as
mitigating evidence certified copies of accomplice Clarence Ray
Williams’s three prior violent criminal convictions. Chambers
argued that the record of convictions would show that Williams was
a far more dangerous man than Chambers; that Williams was likely
the leader; that Williams had led Chambers astray; and thus it was
fundamentally unfair for Chambers to be executed while Williams
“relaxed in prison” on a life sentence. After the trial court
ruled that it would admit only Williams’s indictment, judgment and
sentence for the murder and robbery for which Chambers was being
tried, defense counsel withdrew the offer of all of Williams’s
convictions, including Williams’s stacked life sentences for the
murder of McMahan and the robbery of Deia Sutton. Counsel
explained that the admission of Williams’s conviction and sentences
for the crime for which Chambers was being tried, without
Williams’s criminal history, would fail to convey to the jury the
magnitude of Williams’s dangerousness and would have presented a
misleading picture of Williams’s and Chambers’s relative
culpability.
The Texas Court of Criminal Appeals adopted the findings of
the state habeas court that: the claim was procedurally barred
because defense counsel withdrew their offer to introduce the
12
evidence after the trial court ruled that it would admit only
Williams’s conviction and sentence for the crime for which Chambers
was being tried; alternatively, evidence of Williams’s criminal
history was irrelevant to the determination of Chambers’s
individual culpability; and Chambers was not harmed by the
exclusion of the challenged evidence because his trial counsel were
still able to achieve the desired effect by having various
witnesses testify to Williams’s bad character.
At the time of Chambers’s trial in 1992, clearly established
federal law, as determined by the Supreme Court, required that the
jury be able to consider, as a mitigating factor, any aspect of
Chambers’s character or record and the circumstances of the offense
that he proffered as a basis for a sentence less than death. See
Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality)
(“in capital cases the fundamental respect for humanity underlying
the Eighth Amendment ... requires consideration of the character
and record of the individual offender and the circumstances of the
particular offense as a constitutionally indispensable part of the
process of inflicting the penalty of death”); Lockett v. Ohio, 438
U.S. 586, 604 (1978) (plurality) (“the sentencer [may] not be
prevented from considering, as a mitigating factor, any aspect of
a defendant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence
other than death”); Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)
(“the rule in Lockett recognizes that justice ... requires ... that
13
there be taken into account the circumstances of the offense
together with the character and propensities of the offender”)
(internal quotation omitted); Penry v. Lynaugh, 492 U.S. 302, 328
(1989) (“In order to ensure reliability in the determination that
death is the appropriate punishment in a specific case, the jury
must be able to consider and give effect to any mitigating evidence
relevant to a defendant’s background and character or the
circumstances of the crime.”) (internal quotation omitted).
The Supreme Court has never held that a capital murder
defendant has an Eighth Amendment right to present an accomplice’s
criminal history. Williams’s criminal history is not an aspect of
Chambers’s character or record, and is not a circumstance of the
capital murder for which Chambers was on trial. Thus, the state
court’s conclusion that evidence of Williams’s criminal history was
not relevant to the determination of Chambers’s individual
culpability is not contrary to, or an unreasonable application of,
clearly established federal law. To be sure, however, the trial
court ruled that Chambers could present as mitigating evidence the
fact that Williams received two life sentences for the murder of
McMahan and robbery of Sutton, but his counsel chose not to do so.
The state court’s decision that appellate counsel did not render
ineffective assistance by failing to appeal a procedurally barred
claim likewise is not contrary to, or an unreasonable application
of, clearly established law.
F
14
Finally, the state court’s decision that the Texas special
punishment issues were not unconstitutional as applied to Chambers
is not contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court.
Chambers offered the following mitigating evidence at the
punishment phase of the trial. Cathy Hill testified that Chambers
was the father of one of her three children, who was about a year
old at the time of the murder; that he cared for and supported them
and sent them cards from prison; and that his parents are nice,
hard-working, God-fearing people who tried to raise Chambers the
right way. Rhonda Mayes, Chambers’s daughter, who was 18 years old
at the time of trial, testified that Chambers had sent her cards
and letters from prison, and that she had visited him in prison.
Ron Byrd, Chambers’s cousin, testified that he grew up with
Chambers in the projects; that Chambers’s parents are good
Christian people who treated Chambers with love; that Chambers went
to church; that he was not in trouble while they were growing up
together; and that Chambers was remorseful. Chambers’s sister,
Patty, testified that he was respectful to his family, was well-
liked, and had a good sense of humor and a good personality.
Chambers’s uncle, James, testified that Chambers was a normal kid,
that his parents were good, church-going people, and that Chambers
was polite and kind. Chambers’s mother testified that he had a
normal upbringing, that she took him to church, and that he seemed
to be sorry for what he had done. Chambers’s first cousin, Doris
15
Mead, testified that she babysat him while his parents worked; that
he was not a bully; and that he was respectful to his elders.
Reverend Raymond Hunter, Chambers’s pastor, testified that Chambers
had always been respectful. Howard Falls testified that he grew up
in the projects with Chambers; that Chambers used marijuana and
alcohol; but that he did not bully or hurt people. Wayne Sternes,
who grew up with Chambers, testified that everybody loved Chambers;
that he did not have a violent nature; and that he had no business
“running with” Williams, who was a gangster. Julius Sternes, who
also grew up with Chambers, testified that he was a normal,
peaceful guy who was not a troublemaker. Chambers’s father
testified that Chambers was respectful, well-liked, had a good
sense of humor, and worked, painting houses. Glenn Byrd,
Chambers’s cousin, testified that Chambers was respectful and
pleasant, well-liked, and not a bully. Dr. George Parker, a
clinical psychologist, testified that psychological tests showed
that Chambers falls into the class of prisoners who are least
likely to have trouble or to be a major discipline problem; that
Chambers does not have an antisocial personality disorder; and that
he is remorseful. Dr. Richard Coons, a psychiatrist, testified
that Chambers is not a sociopath; that there is not a probability
that he would commit criminal acts of violence in the future; that
he feels remorse and sadness about the crime; and that the incident
was an aberration in his behavior.
16
In his closing argument, defense counsel argued that the
evidence of Chambers’s remorse for the crime, his caring
relationship with his daughter, his assistance to others, his
limited criminal history and absence of violent criminal history,
his upbringing in a depressed, crime-infested neighborhood, his
relative youth at the time of the crime, his good behavior while
incarcerated, and his age, 37 at the time of his 1992 trial,
supported a “no” answer to the special issue on future
dangerousness.
The trial court instructed the jury:
When you deliberate about the questions posed
in the Special Issues, you are to consider any
mitigating circumstances supported by the
evidence presented in both phases of the
trial. A mitigating circumstance may be any
aspect of the defendant’s character and record
or circumstances of the crime which you
believe makes a sentence of death
inappropriate in this case. If you find there
are any mitigating circumstances, you must
decide how much weight they deserve and give
them effect when you answer the Special
Issues. If you determine, in consideration of
this evidence, that a life sentence, rather
than a death sentence, is an appropriate
response to the personal moral culpability of
the defendant, you are instructed to answer at
least one of the Special Issues under
consideration “No”.
On direct appeal, Chambers argued that the Texas special
issues were unconstitutional as applied to him because they did not
allow the jury to consider and give effect to his mitigating
evidence of his youth at the time of the commission of the offense
and his good behavior in prison for the seventeen years between his
17
first conviction and his third trial. The Texas Court of Criminal
Appeals rejected that contention, holding that this evidence was
not beyond the scope of the special issues and therefore did not
call for a mitigating evidence instruction. 903 S.W.2d at 34-35.
The state habeas court denied Chambers’s Penry claims on the
ground that the above-quoted “nullification” instruction allowed
the jury to consider and give effect to his mitigating evidence in
assessing the death penalty. However, in Penry v. Johnson, 532
U.S. 782 (2001) (Penry II), the Supreme Court held that a similar
“nullification” instruction was “an inadequate vehicle for the jury
to make a reasoned moral response to Penry’s mitigating evidence.”
Id. at 790. The Court stated that because Penry’s mitigating
evidence (mental retardation and severe child abuse) was beyond the
scope of the special punishment issues on future dangerousness and
deliberateness, it was logically and ethically impossible for the
jury to answer the special issues truthfully and at the same time
give effect to Penry’s mitigating evidence. Id. at 799-800.
The district court held that Chambers’s mitigating evidence
was not constitutionally relevant under this court’s former
relevance standard (criminal act was attributable to uniquely
severe permanent handicap with which defendant was burdened through
no fault of his own) and, therefore, there was no Penry error and
Chambers was not harmed by the nullification instruction.
At this court’s direction, the parties filed supplemental
briefs addressing the impact of Smith v. Texas, 543 U.S. 37 (2004),
18
and Tennard v. Dretke, 542 U.S. 274 (2004). In Tennard, in which
the petitioner presented mitigating evidence of low IQ and
gullibility, the Supreme Court rejected the relevance standard
applied by this court and by the district court in Chambers’s case.
542 U.S. at 283-88. In Smith, the Texas Court of Criminal Appeals
had also applied the discredited relevance standard, and the
Supreme Court reversed, citing Tennard. 543 U.S. at 43-45. The
Court held further that the nullification instruction given at
Smith’s trial was not adequate to permit the jury to give effect to
Smith’s mitigating evidence (low IQ, speech handicap, organic
learning disability, placement in special education classes, youth
and immaturity, and troubled background, including drug-addicted
father who stole from the family). Id. at 45-48.
Chambers concedes that the special issues adequately addressed
his evidence of good behavior in prison and his youth at the time
of the offense, but he argues that much of his other mitigating
evidence -- particularly his caring relationship with his daughter,
his efforts to help others, and the deprivations of his community
-- had little, if anything, to do with the deliberateness and
future dangerousness inquiries. He contends further that the
nullification instruction given to the jury injected an intolerable
arbitrariness into the sentencing proceeding because it permitted
jurors to give effect to mitigating evidence only by violating
their oaths to answer the special issues truthfully.
19
Chambers argues that, although a defendant’s adaptability to
structured environments, or his non-violent nature generally, may
bear on future dangerousness, other kinds of good character
evidence -- such as his concern for his daughter and his
helpfulness to others -- is unrelated to the likelihood of future
dangerousness. He relies for support on Justice O’Connor’s
concurring opinion in Franklin v. Lynaugh, 487 U.S. 164, 186
(1988), in which she contrasted evidence of good behavior in prison
with evidence of “voluntary service, kindness to others, [and]
religious devotion,” which might call for a sentence less than
death, but not be reflected in the jury’s answer to the future
dangerousness issue.
Although it has had many opportunities to do so, the Supreme
Court has never held that evidence of good character traits and
upbringing in a disadvantaged community cannot be considered and
given effect under the Texas special issues. In Graham v. Collins,
506 U.S. 461 (1993), the Supreme Court held that the rule sought by
Graham -- that the Texas special issues did not allow the jury to
give effect to mitigating evidence of Graham’s youth, family
background (childhood poverty, parents’ separation, transient
upbringing, mother’s nervous condition), and positive character
traits (regular church attendance, visiting his mother, helping
with family chores, buying food and clothing for his two young
children) -- was not dictated by precedent in effect at the time
Graham’s conviction and sentence became final in September 1984,
20
and thus constituted a new rule barred by Teague v. Lane, 489 U.S.
288 (1989). Graham, 506 U.S. at 463-64, 475-76. The Court stated:
... Jurek [v. Texas, 428 U.S. 262 (1976)] is
reasonably read as holding that the
circumstance of youth is given
constitutionally adequate consideration in
deciding the special issues. We see no reason
to regard the circumstances of Graham’s family
background and positive character traits in a
different light. Graham’s evidence of
transient upbringing and otherwise nonviolent
character more closely resembles Jurek’s
evidence of age, employment history, and
familial ties than it does Penry’s evidence of
mental retardation and harsh abuse.
Id. at 476. The Court stated that, not only was the rule sought by
Graham not dictated by precedent existing at the time his
conviction became final in 1984, it could not say, “even with the
benefit of the Court’s subsequent decision in Penry, that
reasonable jurists would be of one mind in ruling on Graham’s claim
today.” Id. at 477. Graham was decided on January 25, 1993.
Chambers’s conviction and sentence were affirmed on direct appeal
on June 28, 1995. Because he did not seek further review in the
Supreme Court, his conviction became final when the time for filing
a petition for a writ of certiorari expired. Between the time that
Graham was decided and the time that Chambers’s conviction became
final, the Supreme Court did not hold that evidence of positive
character traits and transient upbringing could not be adequately
considered and given effect by the jury under the Texas special
issues. Therefore, Teague bars the relief sought by Chambers.
21
Consistent with Graham, this court has also held, repeatedly,
that the kinds of mitigating evidence that Chambers presented can
be considered and given effect by the jury in answering the special
issues. See Barnard v. Collins, 958 F.2d 634, 640-41 (5th Cir.
1992) (good character, including evidence of carpentry skills, work
history, and familial responsibility and support), cert. denied,
506 U.S. 1057 (1993); James v. Collins, 987 F.2d 1116, 1121-22 (5th
Cir.) (cooperation with police, remorse, impoverished and abusive
family history, positive familial ties despite troubled
upbringing), cert. denied, 509 U.S. 947 (1993); Andrews v. Collins,
21 F.3d 612, 629-30 (5th Cir. 1994) (good family relationships),
cert. denied, 513 U.S. 1114 (1995); Jacobs v. Scott, 31 F.3d 1319,
1327-28 (5th Cir. 1994) (“troubled childhood; cooperation with the
police; remorse; efforts to better his life by starting a
successful auto repair business while on parole and educating
himself while in prison; trustworthiness; love for his family and
friends; and, that he was president of a prison group dedicated to
benefiting charitable institutions and helping unwed mothers and
abused children”), cert. denied, 513 U.S. 1067 (1995); Boyd v.
Johnson, 167 F.3d 907, 912 (5th Cir.) (positive character traits),
cert. denied, 527 U.S. 1055 (1999); Beazley v. Johnson, 242 F.3d
248, 260 (5th Cir.) (good character), cert. denied, 534 U.S. 945
(2001); Newton v. Dretke, 371 F.3d 250, 256-57 (5th Cir.) (youth,
good character, church attendance, cooperation with police,
unfaithful/drug dealing spouse, and impoverished background), cert.
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denied, 543 U.S. 964 (2004); Summers v. Dretke, 431 F.3d 861, 882-
83 (5th Cir. 2005) (nonviolent nature and general good character,
grief for parents’ death, ability to conform to prison life); Coble
v. Dretke, 444 F.3d 345, 362-63 (5th Cir. 2006) (good character,
feelings of remorse and guilt, poverty in childhood, stepfather’s
alcoholism and conflicts with mother, and mother’s nervous
breakdown). Contrary to Chambers’s contention, Smith did not
overrule all of these cases. See Tennard v. Dretke, 442 F.3d 240,
250 (5th Cir. 2006) (“Typically, evidence of good character, or of
transitory conditions such as youth or being under some particular
emotional burden at the time, will tend to indicate that the crime
in question is not truly representative of what the defendant’s
normal behavior is or may become over time, and that the defendant
may be rehabilitable so as not to be a continuing threat to
society. The core of Jurek -- which we cannot conclude has been
abandoned -- is that the mitigating force of this kind of evidence
is adequately accounted for by the second special issue.”); Bigby
v. Dretke, 402 F.3d 551, 570 (5th Cir. 2005) (“The Supreme Court’s
rulings in Penry II and Smith should not be read to disturb its
earlier holdings affirming the constitutionality of Texas’s
statutory death penalty sentencing scheme.”), cert. denied, 126
S. Ct. 239 (2005); In re Kunkle, 398 F.3d 683, 685 (5th Cir. 2005)
(“We are not persuaded that the Court intended to undercut Jurek,
Graham, and Johnson without even citing them. Whether Tennard or
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Smith sweep so broadly as to create a conflict with its own Jurek
or Graham decisions is for the Supreme Court.”).
A juror who was considering whether a defendant should live or
die based on whether he would be a future danger to others, could
reasonably consider and give mitigating effect to evidence that he
has maintained a caring relationship with his daughter, despite his
incarceration, and evidence that he has been helpful to others in
the past, despite having been brought up in an economically-
disadvantaged, crime-ridden neighborhood, and thus conclude that he
is less likely to commit criminal acts of violence in the future if
sentenced to life in prison. See Boyd v. Johnson, 167 F.3d 907,
912 (5th Cir.) (“Evidence of good character tends to show that the
crime was an aberration, which may support a negative answer to the
special issue regarding the future dangerousness of the
defendant.”); James, 987 F.2d at 1122 (“[s]uch positive character
evidence is directly related to whether or not James would continue
to present a threat to society, and an additional instruction to
that effect is not required”). Because this evidence was not
beyond the effective reach of the jury in answering the special
issues, the nullification instruction given in this case did not
create any ethical or moral dilemma for the jury, because it was
not put in the position of having to answer the special issues
falsely in order to give effect to Chambers’s mitigating evidence.
See Bigby, 402 F.3d at 570 (noting that this court has found a
nullification instruction “to be unconstitutional only where the
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special issue questions themselves are not broad enough to provide
a vehicle for the jury to give effect to the defendant’s mitigation
evidence”).
In sum, we conclude that there is not a reasonable likelihood
that the jury would have found itself foreclosed from considering
and giving effect to Chambers’s mitigating evidence when answering
the special issues. See Johnson v. Texas, 509 U.S. 350, 368
(1993); Boyde v. California, 494 U.S. 370, 380 (1990). That
evidence was not beyond the effective reach of the jury because it
was within the scope of the special issues, and could have been
considered and given constitutional effect by the jury in answering
those special issues. Therefore, the state court did not
unreasonably conclude that under clearly established law, the
special issues, as applied to Chambers, were not unconstitutional.
III
For the foregoing reasons, the judgment of the district court
denying Chambers’s petition for a writ of habeas corpus is
AFFIRMED.
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