Foster v. Johnson ( 2002 )

Revised July 10, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-60270
_____________________
RON CHRIS FOSTER
Petitioner - Appellant
v.
ROBERT L JOHNSON, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
June 6, 2002
Before KING, Chief Judge, and SMITH and BENAVIDES, Circuit
Judges.
KING, Chief Judge:
Petitioner-Appellant Ron Chris Foster, a Mississippi death-
row inmate, appeals the district court’s denial of his petition
for a writ of habeas corpus brought under 28 U.S.C. § 2254 (1994
& Supp. V 1999). He raises three claims on appeal: (1) violation
of his Sixth and Fourteenth Amendment right to effective
assistance of counsel on the ground that his counsel failed to
investigate and to present available mitigating evidence, (2)
violation of his Sixth and Fourteenth Amendment right to
effective assistance of counsel on the ground that his counsel
failed to file a motion to transfer Foster’s case to juvenile
court, and (3) violation of the Eighth and Fourteenth Amendments’
prohibition against cruel and unusual punishments on the ground
that Mississippi does not mandate particularized findings
regarding the “maturity and moral culpability” of defendants
under eighteen years old before they may be tried and sentenced
for a capital offense as an adult. The district court granted
Foster’s request for a certificate of appealability (“COA”) on
the first claim, and he requests that this court grant COAs on
the other two claims. For the following reasons, we (1) affirm
the district court’s judgment denying Foster’s claim of
ineffective assistance of counsel based on the failure to
investigate and to present sufficient mitigating evidence, (2)
grant a COA on the ineffective-assistance-of-counsel claim based
on the failure to file a motion to transfer to a juvenile court
and then affirm the district court’s denial of habeas relief on
that claim, and (3) deny Foster’s request for a COA on the Eighth
Amendment claim.
I. BACKGROUND
On September 8, 1989, a Mississippi grand jury indicted
Petitioner-Appellant Ron Chris Foster for the murder of George
2
Shelton in the course of committing armed robbery, a capital
offense in Mississippi. See MISS. CODE ANN. § 97-3-19(2)(e)
(2000).1 Although Foster was only seventeen years old at the
time of the alleged offense, and the Mississippi youth courts
generally have exclusive jurisdiction over criminal cases brought
against anyone under eighteen years of age, see MISS. CODE ANN.
§§ 43-21-105(d), 43-21-151(1) (2000), the state district attorney
prosecuted Foster as an adult pursuant to section 43-21-151 of
the Mississippi Code, which provides that “[a]ny act attempted or
committed by a child, which if committed by an adult would be
punishable under state or federal law by life imprisonment or
death, will be in the original jurisdiction of the circuit court”
rather than the youth court, id. § 43-21-151(1)(a).
Before trial, Foster’s counsel, Michael Farrow, filed a
motion for a psychiatric examination to determine Foster’s
competency to stand trial and to ascertain “any mitigating
factors or circumstances which might be used by the defense in
the penalty phase of the case.” The motion requested that the
state provide for “a full psychiatric evaluation, psychiatric
history, mental and emotional history and all relevant
1
The statute of conviction provides, in pertinent part:
“The killing of a human being without the authority of law by any
means or in any manner shall be capital murder . . . [w]hen done
with or without any design to effect death, by any person engaged
in the commission of the crime of . . . robbery.” MISS. CODE ANN.
§ 97-3-19(2)(e).
3
psychiatric and physiological testing of the Defendant.”2 After
a hearing on the motion, the state trial court entered an order
committing Foster to the Mississippi State Hospital at Whitfield
(“Whitfield”) to undergo psychiatric evaluation for the specific
purposes of determining: (1) his competency to stand trial and
(2) his sanity at the time of the offense. However, the trial
court “h[e]ld its ruling in abeyance on the defendant’s request
[for a psychiatric opinion] on mitigating evidence until such
time as it [] received the report of the Physicians at
[Whitfield].”
On July 20, 1990, the state trial court received a letter
written by the director of forensic service at Whitfield
reporting on the staff’s examination of Foster (the “Whitfield
report”). According to the Whitfield report, the staff had
concluded that Foster “did have a rational as well as factual
understanding of courtroom proceedings and would be able to
assist his attorney in preparing his defense” and that “he knew
the difference between right and wrong in relation to his actions
at the time of the crime.” The report further stated:
2
In support of his motion for a psychiatric examination,
Foster submitted an affidavit in which his parents, Stevson and
Lillie Mae Foster, stated that “[d]uring the course of his life
Chris (Foster) has exhibited, at times, some rather strange and
bazaar [sic] behavior leading us to question his sanity and
emotional health and well being.” They further stated that “[w]e
. . . firmly believe that our son suffers from a substantial
defect of thought, mood, and perception [and] seriously question
whether, in his present mental state, our son can cooperate with
his attorney in the preparation of his defense.”
4
At no time during our observation of him here has Mr.
Foster displayed any symptom of psychotic disorder or
organic mental disorder. Our ward observations, former
mental status observations, and psychological testing all
supported the diagnosis of Conduct Disorder and
Personality Disorder with Antisocial and Narcissistic
Features. These diagnoses reflect an individual who
tends to disregard the rules of society and places his
own needs and desires ahead of those of other people.
Mr. Foster tends to over-emphasize his own importance and
prowess and minimize his responsibility for his behavior
and its consequences. Because of these personality
traits he may not always choose to cooperate with his
attorney or with the court, but I believe that he is
capable of cooperating if he chooses to. He has been
involved in physical altercations both in the jail and
here and this behavior may well continue.
Upon receiving the Whitfield report, the trial court did not
rule on the mitigating-evidence portion of Foster’s motion for
psychiatric examination. However, after the Whitfield report was
submitted to the court, Farrow filed a motion requesting state
funding to hire a mental-health expert for the purpose of
developing mitigating evidence. In a hearing on this and several
other pre-trial motions on August 29, 1990, Farrow informed the
trial court that he needed time to make inquiries regarding the
availability and fee schedules of mental-health experts.
Consequently, the trial court entered an order declining to rule
at that time on Foster’s motion to hire a mental-health expert.
In October 1990, Farrow filed a motion for continuance on
the ground that his poor health condition (mononucleosis)
precluded him from providing Foster with an adequate defense.
During cross-examination by the state district attorney at the
hearing on this motion, Farrow indicated that he intended to
5
present the testimony of mental-health experts as evidence
mitigating against imposition of the death penalty at the
sentencing phase of Foster’s trial. However, Farrow never
submitted information regarding the availability and fee
schedules of experts or otherwise renewed his request for state
funding to secure expert assistance in developing mitigating
evidence. The state trial court granted Farrow’s motion for a
continuance, and almost three months later, on January 14, 1991,
Foster’s trial began without a ruling on the motion requesting
funding for or appointment of a mental-health expert.
In the guilt/innocence phase of Foster’s trial, the state
built its case against Foster around the testimony of Vincent
Harris, a co-defendant charged as an accessory to capital murder
who claimed that he was with Foster on the night of the crime.
Harris, who was fifteen years old at the time of the offense,
testified that Foster told Harris that Foster planned to rob a
convenience store by bringing some items to the cashier’s counter
as if to purchase them and then jumping behind the counter in an
attempt to surprise Shelton (who they knew would be working at
the store at this time) and then rob the store. According to
Harris, he and Foster rode a bicycle to the convenience store,
and Harris waited outside some distance from the store while
Foster rode the bicycle the rest of the way and entered the
store. Harris testified that after a short period of time,
Foster came out of the store and told Harris that he had shot
6
Shelton. According to Harris, Foster explained that as he and
Shelton were struggling with each other to gain control of a gun
that Shelton had pulled from behind the cashier’s counter,
Shelton was shot in the fray. Harris further testified that
Foster was carrying this gun when he came out of the store. In
an effort to corroborate Harris’s testimony, the state introduced
the testimony of various detectives and other law enforcement
officials who had worked on the case and of forensic experts who
had examined some of the physical evidence (e.g., the gun and
fingerprints lifted from areas inside the convenience store).
Foster’s defense strategy consisted mainly of attempting to
implicate Harris as the perpetrator of the crime. The
investigators had retrieved the gun used to kill Shelton from
Rosie Clark, Harris’s mother. By presenting her testimony and
that of her husband (Harris’s stepfather), William Clark, Farrow
sought to bring out inconsistencies in Harris’s testimony
regarding how Rosie Clark had obtained the gun. In his closing
argument, Farrow also asserted that if the jurors concluded that
Foster was responsible for Shelton’s death, they should find
Foster guilty of manslaughter because the shooting of Shelton
occurred accidentally during a struggle.
On January 17, 1991, the jury found Foster guilty of capital
murder. The following day, the trial court held the sentencing
phase of Foster’s trial. The state reintroduced and then rested
on all of the evidence presented at the guilt/innocence stage of
7
the trial, contending that this evidence proved three of the
eight aggravating circumstances enumerated in Mississippi’s
death-penalty statute:
(1) “The capital offense was committed while the
defendant was engaged, or was an accomplice, in the
commission of, or an attempt to commit . . . any
robbery”;
(2) “The capital offense was committed for the purpose of
avoiding or preventing a lawful arrest or effecting an
escape from custody”; and
(3) “The capital offense was committed for pecuniary
gain.”
MISS. CODE ANN. § 99-19-101(5)(d)-(f) (2000). The state further
argued that Foster should be sentenced to death because these
three aggravating circumstances were not outweighed by any
mitigating circumstances.3
3
A Mississippi jury may impose a sentence of death only if
the jurors unanimously find “[t]hat there are insufficient
mitigating circumstances, as enumerated in subsection (6), to
outweigh the aggravating circumstances.” MISS. CODE ANN.
§ 99-19-101(3)(c). Subsection (6) provides:
Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior
criminal activity.
(b) The offense was committed while the defendant was
under the influence of extreme mental or emotional
disturbance.
(c) The victim was a participant in the defendant’s
conduct or consented to the act.
(d) The defendant was an accomplice in the capital
offense committed by another person and his participation
was relatively minor.
(e) The defendant acted under extreme duress or under
the substantial domination of another person.
(f) The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
Id. § 99-19-101(6)(a)-(g).
8
Farrow argued that the state had failed to meet its burden
of proving the aggravating circumstances beyond a reasonable
doubt because the evidence provided a strong indication that the
shooting of Shelton was accidental (and, thus, not motivated by a
desire to evade legal repercussions) and because no money was
missing from the store (and, thus, the shooting was not committed
in the course of robbery or for pecuniary gain). Farrow further
told the jury that the following mitigating circumstances
outweighed any aggravating circumstances applicable in Foster’s
case: (1) Foster’s youth at the time of the crime, (2) Foster’s
lack of any criminal history, (3) the “extreme emotional
disturbance” that resulted from Foster’s struggle with Shelton
over the gun, (4) Foster’s psychiatric problems of diminished
“capacity to understand his acts and to conform his conduct to
the requirements of the law” because of “an impulsive lack of
self-control,” (5) Foster’s “limited intelligence” and inadequate
educational background, (6) the impairment of Foster’s mental
capacity as a result of his prior head injuries, (7) Foster’s
intoxication at the time of the offense, and (8) Foster’s
eighteen-month-old son. Farrow further urged the jury to
consider any other potentially mitigating circumstances. Farrow
did not present any expert testimony to demonstrate the
mitigating circumstances relating to Foster’s mental health, as
he had indicated was his intention during the pre-trial
proceedings. Nor did he seek a ruling from the trial court on
9
his previous motions requesting that the state provide for a
mental-health expert to assist in developing mitigating evidence
for Foster. Rather, the only evidence that Farrow introduced in
the sentencing phase in support of the mitigating circumstances
that he had laid out for the jury was the testimony of Foster’s
parents, Stevson and Lillie Mae Foster (“Stevson” and “Lillie
Mae”), and Foster’s poor report card.4 However, some of Stevson
and Lillie Mae’s testimony was inconsistent with the mitigating
circumstances that Farrow told the jury were applicable in
Foster’s case. Specifically, Farrow asserted that Foster’s
problems with alcohol and his low intelligence mitigated against
imposition of the death penalty. However, both Stevson and
Lillie Mae testified that they were not aware of any history of
alcohol abuse by their son and that Foster had been a “good
student.”
Stevson and Lillie Mae also attempted to convince the jury
of Foster’s good character. They testified that Foster had lived
with them and his brother for his entire life, that he had never
before been convicted of any crimes, that they were a close and
religious family, and that Foster had a young son (apparently
born while Foster was in state custody waiting to be tried).
Both parents also testified that Foster had incurred two head
4
Farrow also relied on Harris’s testimony at the
guilt/innocence phase of the trial that Foster had consumed
twelve beers on the night of the robbery.
10
injuries while growing up (once by being hit with a baseball and
the other time by falling off a motorcycle), after which he often
behaved strangely. Before leaving the witness stand, Stevson and
Lillie Mae both cried and pleaded with the jury to spare their
son’s life.
After deliberating for approximately one and one-half hours,
the jury returned a verdict that Foster should be sentenced to
death. Foster directly appealed his conviction and sentence to
the Mississippi Supreme Court.5 Foster was represented on appeal
by both Farrow and James Craig. The Mississippi Supreme Court
rejected all of the twenty-six claims of error raised by Foster
and affirmed his conviction and death sentence. Foster v. State,
639 So. 2d 1263, 1268, 1304 (Miss. 1994) (6-3 decision)
(rehearing denied on Aug. 18, 1994). Foster thereafter filed a
petition for certiorari with the U.S. Supreme Court, which was
denied on March 20, 1995. Foster v. Mississippi, 514 U.S. 1019,
reh’g denied, 514 U.S. 1123 (1995). Although there is no formal
documentation of Farrow’s withdrawal as Foster’s counsel in the
state court records, Farrow apparently ceased his representation
of Foster after the state appellate proceedings, as Craig was the
sole counsel named on Foster’s Supreme Court petition for
certiorari, and Farrow was not involved in any of Foster’s
5
Mississippi’s death-penalty statute provides that “[t]he
judgment of conviction and sentence of death shall be subject to
automatic review by the Supreme Court of Mississippi.” MISS. CODE
ANN. § 99-19-101(4).
11
subsequent attempts to obtain state post-conviction relief or
federal habeas relief.
Pursuant to the Mississippi Uniform Post-Conviction
Collateral Relief Act, MISS. CODE ANN. §§ 99-39-1 et seq. (2000),
Foster filed an application for leave to file a motion for post-
conviction relief with the Mississippi Supreme Court on July 24,
1995.6 Among the claims that Foster sought to raise in his
motion for post-conviction relief was ineffective assistance of
trial counsel. Foster explained in his application for leave to
file this motion that he had not raised these ineffective-
assistance-of-counsel claims on appeal because he was still
represented by Farrow at that point. On May 16, 1996, the
Mississippi Supreme Court denied Foster’s application for leave
to file a motion for post-conviction relief. Foster v. State,
687 So. 2d 1124, 1141 (Miss. 1996) (5-2 decision) (rehearing
denied on Jan. 23, 1997). Foster sought review of this decision
by the U.S. Supreme Court in a petition for certiorari, which the
Court denied on June 23, 1997. Foster v. Mississippi, 521 U.S.
1108 (1997).
6
Under the procedures established in the Mississippi
Uniform Post-Conviction Collateral Relief Act, individuals such
as Foster, whose convictions and sentences have been affirmed on
direct appeal to the Mississippi Supreme Court or whose appeals
to that court have been dismissed, may not file a motion for
post-conviction collateral relief with the trial court until they
are granted leave to do so by the Mississippi Supreme Court.
MISS. CODE ANN. § 99-39-7.
12
On October 29, 1997, Foster filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 with the district
court. In his petition, Foster raised four claims of ineffective
assistance of counsel, each alleging that a certain omission by
counsel was unreasonable and prejudicial: (1) Farrow’s failure to
investigate and present adequate mitigating evidence at the
sentencing phase of Foster’s trial, (2) Farrow’s failure to file
a motion to transfer Foster’s case to youth court pursuant to
section 43-21-159 of the Mississippi Code, (3) Farrow’s failure
to preserve a number of errors committed during trial, and (4)
the failure of Foster’s appellate counsel (including Farrow) to
raise a claim of jury-instruction error that had been preserved
at trial. In addition to these ineffective-assistance-of-counsel
claims, Foster asserted that his death sentence violated the
prohibition against cruel and unusual punishment under the Eighth
and Fourteenth Amendments because he was seventeen years old at
the time of the crime, and the state system did not provide a
mechanism to determine whether he possessed sufficient “maturity
and moral culpability” before trying and sentencing him as an
adult for a capital offense.7
7
Foster’s federal habeas petition also contained a claim
that the Mississippi Supreme Court failed to conduct a
constitutionally meaningful review of the jury’s findings of
aggravating circumstances. However, the district court declined
to address this claim, stating that “[c]learly, [it] is addressed
to the Mississippi Supreme Court and cannot serve as a basis for
relief in this court.” Foster did not request a COA on this
claim.
13
After filing his federal habeas petition, Foster filed
motions requesting authorization to obtain expert assistance8 and
an evidentiary hearing,9 both of which he asserted were necessary
to present adequately his claim that Farrow had rendered
ineffective assistance by failing to investigate and to present
mitigating evidence. The district court denied both of these
motions.
On January 4, 2001, the district court denied Foster habeas
relief. After the district court denied his motion for
reconsideration, Foster timely filed a notice of appeal to this
court and requested a COA from the district court on each of his
ineffective-assistance-of-counsel claims and his Eighth Amendment
8
Where a habeas petitioner has been sentenced to death,
“[u]pon a finding that investigative, expert, or other services
are reasonably necessary for the representation of the defendant,
. . . the court may authorize the defendant’s attorneys to obtain
such services on behalf of the defendant and, if so authorized,
shall order the payment of fees and expenses therefor.” 21
U.S.C. § 848(q)(9) (2000).
9
The Antiterrorism and Effective Death Penalty Act of 1996
permits federal habeas courts to conduct an evidentiary hearing
on a claim where “the applicant has failed to develop the factual
basis of [that] claim in State court proceedings” only if:
(A) the claim relies on——
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2) (Supp. V 1999).
14
claim. The district court granted a COA on Foster’s claim that
he was denied effective assistance of counsel at sentencing
because of Farrow’s deficient performance with respect to
mitigating evidence (“ineffective-assistance/mitigation claim”),
but denied a COA on each of his remaining claims. Foster now
appeals the district court’s denial of habeas relief on his
ineffective-assistance/mitigation claim and requests a COA from
this court on the remaining claims raised in his federal habeas
petition.
II. FEDERAL HABEAS STANDARD OF REVIEW
“In a habeas corpus appeal, we review the district court’s
findings of fact for clear error and review its conclusions of
law de novo, applying the same standard of review to the state
court’s decision as the district court.” Thompson v. Cain, 161
F.3d 802, 805 (5th Cir. 1998). Because Foster filed his petition
for federal habeas corpus relief after the date of the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 100 Stat. 1214 (codified as amended at 28
U.S.C. § 2254 (Supp. V 1999)) (“AEDPA”), the district court’s
federal habeas review was governed by AEDPA. See Penry v.
Johnson, 532 U.S. 782, 792 (2001).
Under § 2254(d) of AEDPA, habeas relief is not available to
a state prisoner
15
with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim —
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d) (Supp. V 1999).
The Supreme Court recently elaborated on the § 2254(d)(1)
standards. See Williams v. Taylor, 529 U.S. 362, 404-13 (2000).
Applying statutory construction principles, the Court determined
that the phrases “contrary to” and “unreasonable application of”
establish “two categories of cases in which a state prisoner may
obtain federal habeas relief with respect to a claim adjudicated
on the merits in state court.” Id. at 404. According to the
Court, a state court decision is “contrary to . . . clearly
established Federal law, as determined by the Supreme Court” if:
(1) “the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases,” or (2)
“the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [Supreme Court]
precedent.” Id. at 405-06.
The Court determined that a state court decision is “an
unreasonable application of clearly established” Supreme Court
16
precedent if the state court “correctly identifies the governing
legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.” Id. at 407-08. The Court
established two guidelines for ascertaining when an application
of federal law is “unreasonable.” First, the Court indicated
that the inquiry into unreasonableness is an objective one. See
id. at 409-10. Second, the Court emphasized that “unreasonable”
does not mean merely “incorrect”: an application of clearly
established Supreme Court precedent must be incorrect and
unreasonable to warrant federal habeas relief. See id. at 410-
12.
To establish that habeas relief is warranted on the
§ 2254(d)(2) ground that the state court’s decision was based on
an “unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” a petitioner
must rebut by clear and convincing evidence the § 2254(e)(1)
presumption that a state court’s factual findings are correct.
Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000); see also
28 U.S.C. § 2254(e)(1) (Supp. V 1999) (“In a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
17
rebutting the presumption of correctness by clear and convincing
evidence.”).
III. INEFFECTIVE ASSISTANCE OF COUNSEL IN INVESTIGATING
AND PRESENTING MITIGATING EVIDENCE
As the Supreme Court has recognized, the standard governing
claims of ineffective assistance of counsel established in
Strickland v. Washington, 466 U.S. 668 (1984), “qualifies as
‘clearly established Federal law, as determined by the Supreme
Court of the United States’” for the purpose of federal habeas
review under § 2254(d). Williams, 529 U.S. at 391. Accordingly,
Foster is entitled to relief if the state court’s adjudication of
his ineffective-assistance-of-counsel claim was either contrary
to or involved an unreasonable application of Strickland, or if
the state court’s decision is based on an unreasonable
determination of the facts in light of the evidence before the
court. In Strickland, the Court held that in order to establish
a violation of the Sixth Amendment right to effective assistance
of counsel, a defendant must make two showings:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose
result is reliable.
18
466 U.S. at 687. “[B]oth the performance and prejudice
components of the ineffectiveness inquiry are mixed questions of
law and fact.” Id. at 698.
To prevail on an ineffective-assistance-of-counsel claim, a
defendant must tie Strickland’s deficiency and prejudice prongs
to particular instances of counsel’s performance, i.e., the
defendant “must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable
professional judgment” and to have rendered the result of the
trial unreliable. Id. at 690. Foster’s ineffective-assistance
claim is based on Farrow’s alleged failure to investigate and to
present evidence that would have mitigated against imposition of
the death penalty in Foster’s case.
Initially, Foster contends that Farrow’s performance was
constitutionally deficient because Farrow failed to present
existing mitigating evidence regarding Foster’s mental condition.
According to Foster, Farrow should have presented the Whitfield
report because its diagnoses of Foster with Conduct Disorder and
Personality Disorder and its determination that Foster had an IQ
of 80 constituted substantial mitigating evidence. Foster also
argues that Farrow’s investigation into mitigating evidence was
inadequate because he failed to seek the following: (1) an
expert’s opinion further developing the information in the
Whitfield report for purposes of mitigation and (2) further
psychiatric and neurological testing and evaluation of Foster,
19
including any medical records regarding Foster’s two head
injuries. In support of his claims that the Whitfield report
supported statutory mitigating circumstances (and thus should
have been presented) and that an adequate investigation would
have yielded further “mental health” mitigating evidence, Foster
submitted (to the state court as well as the district court) an
affidavit of Dr. Marc Zimmermann, a clinical and forensic
psychologist. In his affidavit, Dr. Zimmermann highlighted the
Whitfield report’s findings that he concluded were evidence
supporting the existence of certain statutory mitigating
circumstances and recommended that Foster undergo further
psychiatric and neurological testing.
Foster further argues that, in addition to failing to
present and investigate this “mental health” mitigating evidence,
Farrow did not adequately investigate mitigating evidence
regarding Foster’s family background. In support of this claim,
Foster submitted affidavits of his sister, one of his brothers,
three of his friends, and one of his neighbors. Each of these
individuals explained his or her relationship with Foster and
attested that he or she would have testified for Foster if Farrow
had asked him or her to do so. Collectively, the affidavits
indicated that Foster began consuming alcohol at a young age and
suggested that Foster’s father and two older brothers had abused
alcohol as Foster was growing up.
20
The Mississippi Supreme Court rejected Foster’s argument
that he was denied effective assistance of counsel as a result of
Farrow’s alleged omissions. Foster v. State, 687 So. 2d 1124,
1133-34 (Miss. 1996). The court denied Foster’s claim based on
the “mental health” mitigating evidence on the ground that he had
not established that Farrow’s performance was deficient under the
first prong of Strickland. See id. The court denied Foster’s
claim based on the “family background” mitigating evidence on the
ground that any deficiency in Farrow’s performance had not
prejudiced the outcome of trial, as required under the second
prong of Strickland. See id. at 1134. Foster contends that the
district court erred in denying him relief on both of these
claims. We address each of these arguments in turn.
A. Failure to Investigate and Present “Mental Health”
Mitigating Evidence
As noted above, the Mississippi Supreme Court rejected
Foster’s ineffective-assistance claim based on “mental health”
mitigating evidence because the court determined that Foster had
not established deficient performance under Strickland. Id. at
1133-34. In Strickland, the Supreme Court held that deficient
performance is established by showing that, “considering all the
circumstances,” “counsel’s representation fell below an objective
standard of reasonableness” “under prevailing professional
norms.” 466 U.S. at 688. More specific to Foster’s ineffective-
assistance claim is the Court’s holding that “counsel has a duty
21
to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Id.
at 691. “[A] particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances.”
Id. In particular, counsel’s strategic decisions not to conduct
further investigation in pursuit of mitigating evidence are
entitled to substantial deference under Strickland. See id.
Similarly, “Strickland requires that we defer to counsel’s
decision not to present mitigating evidence or not to present a
certain line of mitigating evidence when that decision is both
fully informed and strategic, in the sense that it is expected,
on the basis of sound legal reasoning, to yield some benefit or
avoid some harm to the defense.” Moore v. Johnson, 194 F.3d 586,
615 (5th Cir. 1999). Further, this court has held that “a
tactical decision not to pursue and present potential mitigating
evidence on the grounds that it is double-edged in nature is
objectively reasonable, and therefore does not amount to
deficient performance.” Lamb v. Johnson, 179 F.3d 352, 358 (5th
Cir. 1999) (quoting Rector v. Johnson, 120 F.3d 551, 564 (5th
Cir. 1997)).
The Mississippi Supreme Court determined that Farrow made
“tactical” decisions not to present the Whitfield report to the
jury at the sentencing phase and not to seek further “mental
health” mitigating evidence. See Foster, 687 So. 2d at 1131.
The court concluded that these “tactical” decisions were
22
reasonable because, according to the court, there was a
significant risk that such information would harm Foster’s case
for a sentence of life imprisonment rather than a sentence of
death. See id.
With respect to the Whitfield report, the court determined
that the information therein “would surely leave the jury with
the impression that Foster knew right from wrong and [that] he
could not care less about his actions or the consequences
thereof.” Id. Accordingly, the court concluded that it was
reasonable for Farrow to rely on Foster’s report cards in support
of the “limited intelligence” mitigating factor rather than
introducing the Whitfield report’s determination that Foster had
an IQ of 80. Id. at 1133.
Similarly, the court concluded that Farrow’s “tactical
decision not to investigate psychological evidence did not
deprive [Foster] of effective assistance of counsel” because
Farrow “could have judged that [any such evidence] would have
been harmful” in light of the information in the Whitfield
report. Id. at 1131. Thus, the court determined that Farrow
acted reasonably in relying on Foster’s parents’ testimony
regarding Foster’s two head injuries rather than seeking medical
documentation of those injuries or further expert evaluation of
Foster, particularly “[i]n light of the Whitfield Report which
indicated that no organic mental disorder existed.” Id. at 1133.
23
Foster argues that the Mississippi Supreme Court’s finding
that Farrow made a strategic decision to cease investigation into
Foster’s psychiatric condition is an unreasonable factual
determination warranting habeas relief under § 2254(d)(2).
According to Foster, this determination is unreasonable in light
of the undisputed evidence that Farrow filed motions seeking the
assistance of a mental health expert for purposes of developing
mitigating evidence after the Whitfield report was completed.
Foster asserts that Farrow did not make a strategic decision not
to pursue further investigation of Foster’s psychiatric
condition, but rather “wholly failed to follow through on this
request.”
The district court agreed with this argument, finding that
if the Mississippi Supreme Court had known that “Farrow had moved
for funds to obtain a mental health expert to aid in the
mitigation phase” after the Whitfield report was completed “and
that the trial court proceeded to trial without ruling and
without objection from Farrow,” then the Mississippi Supreme
Court “would not have concluded that . . . Farrow made a
reasonable decision ‘not to pursue further psychological
testing.’” The district court did not, however, address whether
“this error in the facts” constituted an unreasonable
determination of the facts in light of the evidence before the
Mississippi Supreme Court.
24
In support of his challenge to the Mississippi Supreme
Court’s finding that Farrow made a strategic decision not to
pursue further investigation into Foster’s psychiatric condition,
Foster relies solely on the fact that Farrow filed a motion
requesting funds for expert assistance after the Whitfield report
was completed. However, the fact that Farrow filed this motion
does not necessarily undermine the Mississippi Supreme Court’s
finding that Farrow ultimately made a strategic decision to
abandon this line of inquiry. The court could have determined
that Farrow did not follow up on his motion for expert assistance
(by submitting information on the availability and fee schedules
of experts) because, after further consideration of the
information in the Whitfield report, he concluded that pursuing
further expert evidence would not be fruitful or that the
potential detrimental effect of such information on the jury
would outweigh any potential benefits.
If we were reviewing the Mississippi Supreme Court’s factual
finding de novo, we might be inclined to agree with Foster that
Farrow’s filing of the motion for expert assistance after the
Whitfield report was completed indicates that his subsequent
failure to pursue this motion was an omission rather than an
affirmative decision not to act. However, we must presume that
the state court’s factual finding is correct unless Foster rebuts
that presumption with clear and convincing evidence. See
Dowthitt, 230 F.3d at 741. Foster does not satisfy this burden
25
merely by pointing to the fact that Farrow filed a motion for
expert assistance after the Whitfield report was completed.
Thus, we cannot conclude that the Mississippi Supreme Court’s
finding that Farrow made a strategic decision to limit his
investigation of mitigating evidence was an unreasonable
determination of the facts based on the available evidence.
Foster also challenges the Mississippi Supreme Court’s
determination that the Whitfield report was “double-edged in
nature,” and the court’s inference therefrom that any further
psychological evaluation of Foster would similarly yield “double-
edged” evidence. Initially, Foster contends that reasonably
competent counsel would have introduced the Whitfield report at
the sentencing phase of trial. He points to Dr. Zimmermann’s
testimony that “[w]hile the mental disorders diagnosed at
Whitfield (i.e., Conduct Disorder and Personality Disorder) would
not relieve a child in Chris [Foster’s] situation of
responsibility for capital murder, they would support a jury
finding [that] ‘[t]he offense was committed while the defendant
was under the influence of extreme mental or emotional
disturbance’ and [that Foster’s] ‘capacity . . . to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired’” (both of which
are statutory mitigating circumstances that Farrow stated were
applicable in his argument to the jury at the sentencing phase of
Foster’s trial).
26
Foster further argues that Farrow’s performance was
deficient as a result of his failure to conduct further
investigation into Foster’s psychiatric condition. According to
Foster, reasonable counsel would have obtained an expert (such as
Dr. Zimmermann) to explain how the Whitfield report’s diagnoses
and IQ determination support the existence of mitigating
circumstances. In support of this argument, Foster points to Dr.
Zimmermann’s statements (1) that Conduct Disorder and Personality
Disorder “appear[] more often in children of parents with Alcohol
Dependence,” (2) that “[p]eople with these disorders tend to have
difficulty conforming their behavior to the norms of society,”
and (3) that the IQ score of 80 attributed to Foster in the
Whitfield report “indicates that on the day Mr. Shelton was
killed Chris Foster had a mental age of less than 13 years old.”
Foster also argues that Farrow did not provide reasonably
effective assistance because he failed to seek further expert
evaluation of Foster to determine whether he suffered from
“organic brain damage or other serious mental or emotional
dysfunction.” In support of this argument, Foster apparently
relies on Dr. Zimmermann’s recommendation that “a thorough
neuropsychological and/or neurological evaluation should be
completed [because] [b]rain damage or dysfunction may be the
cause of behavior that is often labeled as Conduct Disorder and
would be considered as a mitigating factor.”
27
The Mississippi Supreme Court’s determination that the
Whitfield report and any further psychiatric evidence that might
have been obtained were double-edged in nature is a factual
finding that we presume correct absent clear and convincing
evidence to the contrary. Cf. Dowthitt, 230 F.3d at 745
(concluding that under § 2254(d)(2), “we are bound by the state
habeas court’s findings that the[] records (indicating that the
petitioner suffered from mental illness) included information
which could have hurt [the petitioner’s] case [because those]
findings are clearly supported by the record”). In concluding
that the Whitfield report contained damaging information
justifying a conclusion that further psychiatric investigation
would be fruitless and potentially harmful, the Mississippi
Supreme Court appears to have relied heavily on the following
language:
At no time during our observation of him here has Mr.
Foster displayed any symptom of psychotic disorder or
organic mental disorder. Our ward observations, former
mental status observations, and psychological testing all
supported the diagnosis of Conduct Disorder and
Personality Disorder with Antisocial and Narcissistic
Features. These diagnoses reflect an individual who
tends to disregard the rules of society and places his
own needs and desires ahead of those of other people.
Mr. Foster tends to over-emphasize his own importance and
prowess and minimize his responsibility for his behavior
and its consequences. Because of these personality
traits he may not always choose to cooperate with his
attorney or with the court, but I believe that he is
capable of cooperating if he chooses to. He has been
involved in physical altercations both in the jail and
here and this behavior may well continue.
28
Foster, 687 So. 2d at 1131. The court dismissed Dr. Zimmermann’s
opinion, noting that he merely reached different conclusions than
the Whitfield staff regarding: (1) the potentially mitigating
implications of Conduct Disorder and Personality Disorder, and
(2) the need for further testing of Foster for “brain damage or
dysfunction.” See id. at 1132-33. The court concluded that
reasonable counsel could have determined that the psychiatric
evaluation of Foster conducted by the Whitfield staff ——
involving “forty-four days of examination and observance” —— was
sufficiently comprehensive to justify a conclusion that further
psychiatric investigation would only lead to similarly damaging
information. Id. at 1131-32.
We cannot say that this finding by the Mississippi Supreme
Court regarding the “doubled-edged” nature of the information
contained in the Whitfield report and of any further
psychiatric/neurological evidence is an unreasonable
determination of the facts in light of the evidence before that
court. Accordingly, we presume this finding to be correct.
Foster did not provide any evidence suggesting, contrary to
the Whitfield report’s conclusions, that he did suffer from
“organic brain damage or other serious mental or emotional
dysfunction.” As the state points out, Dr. Zimmermann did not
interview Foster, but rather based the opinion in his affidavit
only on the Whitfield report and affidavits of Foster’s family
and friends. Consequently, Dr. Zimmermann did not provide a
29
medical assessment of Foster that differed from that already
presented to the trial court in the Whitfield report. Dr.
Zimmermann’s affidavit merely suggests that more investigation
into Foster’s mental condition should have taken place and
expands somewhat on the Whitfield report’s diagnoses and IQ
determination. Further, Foster has not proffered “any kind of
medical documentation evidencing that [he] changed in personality
due to [his] head injuries.” Foster, 687 So. 2d at 1133.
Thus, Foster has not shown that Farrow failed to find
evidence of organic brain dysfunction as a result of inadequate
investigation. Consequently, Foster’s contention that Farrow
should have investigated more and presented more mitigating
evidence “essentially come[s] down to a matter of degrees.”
Dowthitt, 230 F.3d at 743 (internal quotations and citation
omitted). We have noted that courts should be particularly
cautious about “second-guessing” such questions of degree in
evaluating counsel’s performance under Strickland. Id.; cf.
Burger v. Kemp, 483 U.S. 776, 793 (1987) (concluding that
although counsel’s decision not to present the testimony of a
certain witness “may have been erroneous, the record surely does
not permit us to reach that conclusion” because the petitioner
“has submitted no affidavit from that [witness] establishing that
he would have offered substantial mitigating evidence if he had
testified”).
30
Given the high level of deference that Strickland requires
us to accord to counsel’s strategic decisions, we conclude that
the Mississippi Supreme Court did not unreasonably apply federal
law in concluding that Foster did not establish deficient
performance under Strickland. Neither (1) Farrow’s failure to
present the Whitfield report (and thus the diagnoses and IQ
determination therein) nor (2) Farrow’s failure to conduct
further investigation in pursuit of more evidence regarding
Foster’s mental condition (including expert opinions elaborating
on the Whitfield diagnoses, medical documentation of Foster’s
head injuries, or further evaluation for “organic brain damage or
other serious mental or emotional dysfunction”) compels us to
conclude that the Mississippi Supreme Court’s assessment of
Farrow’s performance was objectively unreasonable.10 Thus, the
district court correctly determined that Foster’s ineffective-
assistance claim based on Farrow’s failure to present and
investigate “mental health” mitigating evidence does not warrant
habeas relief under § 2254(d).
B. Failure to Investigate “Family Background” Mitigating
Evidence
10
As noted above, the Mississippi Supreme Court did not
address the question whether Foster was prejudiced by Farrow’s
alleged deficiencies. In Strickland, the Supreme Court noted
that “there is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry
if the defendant makes an insufficient showing on one.” 466 U.S.
at 697.
31
The Mississippi Supreme Court apparently did not address the
deficient-performance prong in denying Foster’s ineffective-
assistance claim based on Farrow’s failure to investigate “family
background” mitigating evidence, but rather denied the claim
after determining that Foster was not prejudiced by the absence
of such evidence at the sentencing phase of his trial. Foster,
687 So. 2d at 1134. The Strickland Court held that in
determining whether a defendant challenging a death sentence was
prejudiced by counsel’s deficient performance, “the question is
whether there is a reasonable probability that, absent the
errors, the sentencer . . . would have concluded that the balance
of aggravating and mitigating circumstances did not warrant
death.” 466 U.S. at 695. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. at 694. For the purposes of the second prong of Strickland,
a reviewing court “must be confident that at least one juror’s
verdict would not have been different had the new evidence been
presented.” Loyd v. Smith, 899 F.2d 1416, 1426 (5th Cir. 1990).
Under Mississippi law, a jury may not impose the death penalty
unless it unanimously determines that the mitigating
circumstances do not outweigh the aggravating circumstances.
MISS. CODE ANN. § 99-19-101(3)(c).
In support of his claim that Farrow inadequately
investigated “family background” mitigating evidence, Foster
submitted affidavits of his sister, one of his brothers, three of
32
his friends, and one of his neighbors. All of these affiants
stated that they had never been contacted by Farrow and that they
would have been willing to testify for Foster had they been asked
to do so. Each affiant attested to the fact that Foster’s father
drank frequently as Foster was growing up or that Foster, who had
access to alcohol through his two older brothers, began consuming
alcohol at a very young age.
Foster maintains that he was prejudiced as a result of
Farrow’s failure to investigate more of the available “family
background” mitigating evidence because “had counsel conducted an
investigation of Foster’s life (beyond speaking to his parents)
and interviewed potential witnesses, counsel would have uncovered
a wealth of compelling mitigation evidence [on Foster’s
background].” According to Foster, the affidavits of his
siblings and friends indicate that “Foster’s father is a habitual
drunkard,” that Foster “began drinking about age twelve” because
of his two older brothers’ “willingness to provide [Foster] with
alcohol,” and that his older brother was in “constant trouble
with the law because of alcohol abuse.” Foster points out that
the jury did not hear such evidence of alcohol abuse in his
family. In fact, Foster asserts that his parents’ testimony
actually harmed him because they testified that he had never had
problems with alcohol, undermining Farrow’s argument that the
jury should consider Foster’s intoxication at the time of the
offense as a mitigating circumstance.
33
The Mississippi Supreme Court concluded that Foster had not
established prejudice because he failed to show “that
interviewing [these] additional witnesses would [have] produce[d]
a different outcome” at the sentencing phase of Foster’s trial.
Foster, 687 So. 2d at 1134. In reaching this conclusion, the
court found that the affidavits did not, as Foster claimed,
“paint a picture of alcoholic stupor and abusive behavior.” Id.
The court further reasoned that “[i]t would have been a
disservice [to Foster] to have friends and family brought in to
explain the longstanding history of alcoholism because a jury
could have inferred a high tolerance level and not credited the
twelve beers as being enough to intoxicate such a hard drinker.”
Id.
Based on our review of the affidavits in light of Foster’s
arguments on appeal, we conclude that Foster has not offered the
clear and convincing evidence necessary to rebut the presumption
of correctness accorded to the Mississippi Supreme Court’s
finding that the affidavits do not establish the “alcoholic
stupor and abusive behavior [that] Foster claims.” Id.
Accordingly, we cannot say that the Mississippi Supreme Court
unreasonably applied Strickland in determining that the omission
of this evidence did not prejudice the outcome of the trial. The
jury was presented with —— and sentenced Foster to death in spite
of —— mitigating evidence indicating that Foster was only
34
seventeen years old at the time of the offense, that he did not
have any criminal history, that he had a young son, that he had
stopped attending school in the middle of his eighth grade year
and had performed poorly throughout this brief period, and that
he did not carry a gun with him to the convenience store. The
Mississippi Supreme Court apparently determined that if this
mitigating evidence did not persuade the jury that Foster should
not be sentenced to die, it is not reasonably probable that
establishing a family history of alcohol abuse would have altered
at least one juror’s balancing determination in favor of life.
We cannot conclude that this assessment was objectively
unreasonable. Accordingly, the Mississippi Supreme Court’s
decision denying Foster’s ineffective-assistance claim based on
“family background” mitigating evidence does not provide a basis
for habeas relief under § 2254(d). See Strickland, 466 U.S. at
697 (“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will
often be the case, that course should be followed.” ). The
district court did not err in denying Foster habeas relief on
this claim.
IV. REQUESTS FOR CERTIFICATES OF APPEALABILITY
Although Foster apparently requests that this court issue
COAs on all five of the other claims that he asserted in his
federal habeas petition, he briefs only two of those claims on
35
appeal. We consider the unbriefed claims abandoned. Johnson v.
Puckett, 176 F.3d 809, 814 (5th Cir. 1999). The two briefed
claims, which we will address in turn, are: (1) that Farrow
rendered ineffective assistance of counsel by failing to file a
motion to transfer Foster’s case to youth court because Foster
was a “child” under Mississippi law at the time of the offense
(the “ineffective-assistance/transfer claim”), and (2) that
Foster’s death sentence violates the Eighth and Fourteenth
Amendments’ prohibition against cruel and unusual punishments
because the trial court did not make particularized findings
regarding his maturity and moral culpability before he was tried
and sentenced as an adult for a capital offense (the “Eighth
Amendment claim”).
In their district-court filings and in their briefs for this
appeal, both Foster and the state treat the ineffective-
assistance/transfer claim together with the Eighth Amendment
claim. Specifically, Foster claims that the Eighth Amendment
violation is a result of either “systematic failure” of
Mississippi’s procedures or ineffective assistance of counsel.
Likely in response to the parties’ approach, the district court
also treated these two claims together and did not fully
distinguish between them. We thus pause briefly in our analysis
to clarify that, in light of the state court proceedings, these
two claims must be treated separately for purposes of federal
habeas review.
36
Given that Farrow was still representing Foster in Foster’s
direct appeal to the Mississippi Supreme Court, it is not
surprising that Foster did not raise the ineffective-
assistance/transfer claim on direct appeal; rather, he raised
only the Eighth Amendment claim, challenging Mississippi’s
failure to require particularized findings before minor
defendants are tried as adults for a capital offense. In his
state application for leave to file a motion for post-conviction
relief, Foster asserted the ineffective-assistance/transfer claim
for the first time and the Eighth Amendment claim for the second
time. The Mississippi Supreme Court declined to reach the Eighth
Amendment claim on post-conviction review on the ground that the
court had already adjudicated that claim in Foster’s direct
appeal. Foster, 687 So. 2d at 1135. The court did, however,
address the ineffective-assistance/transfer claim. See id.
Accordingly, we must treat the two claims separately on federal
habeas review, looking to the Mississippi Supreme Court’s
decision on Foster’s application for post-conviction relief (the
“post-conviction decision”) in evaluating the ineffective-
assistance/transfer claim, and looking to that court’s decision
on direct appeal (the “direct-appeal decision”) in evaluating the
Eighth Amendment claim.11
11
Because the district court tended to merge Foster’s
ineffective-assistance/transfer claim and his Eighth Amendment
claim, that court, after recognizing that the post-conviction
decision deemed the Eighth Amendment claim to be procedurally
37
A. The COA Standard
We may grant a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (Supp. V 1999). “A ‘substantial showing’
requires the applicant to demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues (in a different manner); or that the questions are
adequate to deserve encouragement to proceed further.” Styron v.
Johnson, 262 F.3d 438, 444 (5th Cir. 2001) (internal quotations
and citations omitted). If the habeas petitioner seeks a COA on
a claim that the state court denied on a state procedural ground,
the petitioner must also show that reasonable jurists would find
it debatable whether the state procedural ground bars federal
habeas review. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In
determining whether Foster has met the COA standard, we resolve
all doubts in his favor, and we may consider the severity of his
death sentence in our determination. Hill v. Johnson, 210 F.3d
481, 484 (5th Cir. 2000).
Both the direct-appeal decision denying Foster’s Eighth
Amendment claim and the post-conviction decision denying his
ineffective-assistance/transfer claim rely on both state
procedural grounds and federal-law grounds. While the district
barred, proceeded to review the post-conviction decision’s denial
of Foster’s ineffective-assistance/transfer claim on the merits
as if it were an alternative ground for the state court’s denial
of the Eighth Amendment claim.
38
court recognized that the Mississippi Supreme Court invoked both
state law and federal law, the district court apparently based
its denial of habeas relief only on the merits of these claims,
not on the purported state procedural bar. In this appeal, the
state raises the procedural bar as a basis for denial of relief
on these claims in addition to arguing that the district court
correctly denied these claims on their merits.
Because federal courts must “honor a state holding that is a
sufficient basis for the state court’s judgment, even when the
state court also relies on federal law,” Harris v. Reed, 489 U.S.
255, 264 n.10 (1989), we first address the “procedural” prong of
the COA standard. Accordingly, we begin our analysis of each
claim by determining whether reasonable jurists would find it
debatable whether the state-law ground is a constitutionally
sufficient basis to preclude federal review (i.e., whether the
state-law ground is “independent and adequate”).
B. The “Independent and Adequate State Ground” Doctrine
Federal courts are precluded from reviewing a federal claim
that the state court denied on state-law grounds only if: (1) the
state-law ground relied on by the state court is both
“independent of the federal question and adequate to support the
judgment,” Coleman v. Thompson, 501 U.S. 722, 729 (1991)
(emphases added), and (2) the petitioner is not able to
demonstrate either that there is “cause for the default and
39
actual prejudice as a result of the alleged violation of federal
law, or . . . that failure to consider the claims will result in
a fundamental miscarriage of justice,” id. at 750. Where, as in
the instant case, the state court relied both on a state
procedural rule and on federal law in denying the federal claim,
we “will presume that there is no independent and adequate state
ground for [the] state court decision [if it] ‘fairly appears to
rest primarily on federal law, or to be interwoven with the
federal law, and when the adequacy and independence of any
possible state law ground is not clear from the face of the
opinion.’” Id. at 735 (quoting Michigan v. Long, 463 U.S. 1032,
1040-41 (1983)). This presumption may be rebutted, and thus
federal review precluded, only if the state court “clearly and
expressly” stated that the state procedural ground was a basis
for its decision independent of the federal-law ground. Id.;
Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995).
In addition to being “independent,” a state procedural
ground for denial of a federal claim must be “adequate” to
preclude federal habeas review of that claim. The Supreme Court
recently reiterated the meaning of “adequate” for purposes of the
“independent and adequate state ground” doctrine: “Ordinarily,
violation of firmly established and regularly followed state
rules . . . will be adequate to foreclose review of a federal
claim. There are, however, exceptional cases in which exorbitant
application of a generally sound rule renders the state ground
40
inadequate to stop consideration of a federal question.” Lee v.
Kemna, 122 S. Ct. 877, 885 (2002) (internal quotations and
citations omitted).
C. Ineffective Assistance of Counsel in Failing to File a
Motion to Transfer Foster’s Case to Youth Court
Foster requests a COA from this court on his claim that
Farrow rendered ineffective assistance by failing to file a
motion to transfer Foster’s case to the youth court. As noted
above, Foster did not raise this ineffective-assistance/transfer
claim in his direct appeal to the Mississippi Supreme Court (as
he was still represented by Farrow at that point), but rather in
his application for leave to file a motion for post-conviction
relief to that court. In its post-conviction decision, the
Mississippi Supreme Court clearly denied Foster’s ineffective-
assistance/transfer claim on its merits by applying the two-
pronged Strickland analysis: “[W]e must analyze the [claim] in
terms of whether Farrow was reasonable for not requesting [a
transfer] motion, and whether such failure resulted in
prejudicing Foster’s defense.” Foster, 687 So. 2d at 1135. The
court also, however, made reference to a purported state
procedural ground in denying this claim. Specifically, the court
stated that “[t]he true color of Foster’s (ineffective-
assistance/transfer) claim is that his death sentence is
unconstitutional because he was placed in adult court without
particularized findings.” Id. at 1136. According to the court,
41
it had already adjudicated this claim in Foster’s direct appeal
and thus the claim was barred from reconsideration under the
doctrine of res judicata. Id. at 1137. While in this portion of
its opinion the Mississippi Supreme Court appears to equate
Foster’s ineffective-assistance/transfer claim with his Eighth
Amendment claim (and thus to subject both claims to the state
procedural bar), the court appears to recognize that the two
claims are different and separate from each other elsewhere in
the opinion, stating:
[T]he issue of whether the death penalty is
unconstitutional due to a lack of particularized finding
in the youth court is a procedurally barred issue. We
cannot consider the merits of this issue, as it was
already dealt with on the direct appeal. . . . For the
purposes of this petition, the only question that Foster
could pose is whether Foster’s trial attorney was
ineffective by failing to request a transfer proceeding
from circuit court to youth court, and if ineffective,
whether this error prejudiced his defense.
Id. at 1135. The court then proceeded to adjudicate the
ineffective-assistance/transfer claim on its merits under
Strickland. See id. at 1135-36. Thus, at least in a substantial
portion of its discussion of the two claims, the Mississippi
Supreme Court apparently barred on res-judicata grounds only the
Eighth Amendment claim (which Foster raised on direct appeal and
again in the post-conviction proceedings) and deemed the
ineffective-assistance/transfer claim cognizable on post-
conviction review.
42
As a result of the Mississippi Supreme Court’s equivocation
about the basis for its decision to deny Foster’s ineffective-
assistance/transfer claim, that decision “fairly appears to rest
primarily on federal law,” or, at the very least, “to be
interwoven with federal law.” Coleman, 501 U.S. at 735 (quoting
Long, 463 U.S. at 1040). As the Supreme Court has instructed, in
such circumstances it is for the state court, not the reviewing
federal court, to disentangle the federal-law ground from any
state-law ground by a clear and express statement indicating that
the state-law ground was a separate basis for the court’s
decision independent of the federal-law ground. See, e.g., id.;
Harris, 489 U.S. at 263. Because there is no such statement in
the Mississippi Supreme Court’s opinion, federal review of
Foster’s ineffective-assistance/transfer claim is not barred
under the “independent and adequate state ground doctrine.12
12
The Mississippi Supreme Court invoked another state
procedural rule (in addition to the doctrine of res judicata) in
denying Foster’s ineffective-assistance/transfer claim, but the
importance of this rule to the court’s decision is even less
clear. The court noted that although “[n]o true new issues have
been raised” by Foster’s ineffective-assistance/transfer claim,
“any attempt to raise a new legal theory or ground at this point
would be procedurally barred” under subsection 99-39-21(2) of the
Mississippi Code. Foster, 687 So. 2d at 1136. Subsection 99-39-
21(2) provides, in pertinent part: “The litigation of a factual
issue at trial and on direct appeal of a specific state or
federal legal theory or theories shall constitute a waiver of all
other state or federal legal theories which could have been
raised under said factual issue.” MISS. CODE ANN. § 99-39-21(2)
(2000).
The subsection 99-39-21(2) procedural bar does not preclude
federal review in this case for the same reason that the res-
judicata bar does not preclude review, i.e., the Mississippi
43
We now turn to the question whether reasonable jurists would
find the merits of Foster’s ineffective-assistance/transfer claim
debatable. As noted above, the Mississippi youth courts
generally have exclusive jurisdiction over criminal cases brought
against anyone under eighteen years of age. See MISS. CODE ANN.
§§ 43-21-105(d), 43-21-151(1). If a child is at least thirteen
years old, the youth court “may, in its discretion, transfer
jurisdiction of the alleged offense described in the petition or
a lesser included offense to the criminal court which would have
trial jurisdiction of such offense if committed by an adult.”
Id. § 43-21-157(1). However, under section 43-21-151, “[a]ny act
attempted or committed by a child, which if committed by an adult
would be punishable under state or federal law by life
imprisonment or death, will be in the original jurisdiction of
the circuit court” rather than of the youth court. Id. § 43-21-
151(1)(a). In such cases, “the circuit judge, upon a finding
that it would be in the best interest of such child and in the
interest of justice, may at any stage of the proceedings prior to
the attachment of jeopardy transfer such proceedings to the youth
court.” Id. § 43-21-159(4). As the Mississippi Supreme Court
pointed out, based on this statutory provision, “Mississippi law
Supreme Court’s decision fairly appears to have rested primarily
on federal law (or, at the very least, to be interwoven with
federal law), and the court did not clearly and expressly state
that the procedural bar provided a basis for the decision
independent of the federal-law grounds.
44
clearly allows a person under the age of eighteen years, charged
with a capital offense, to request by proper motion that the
circuit court conduct a special hearing, considering the person’s
age, lack of prior offenses, likelihood of successful
rehabilitation and other factors which favor sending the case to
the youth court rather than continuing in the circuit court.”
Foster, 687 So. 2d at 1135 (quoting Foster v. State, 639 So. 2d
1263, 1297 (Miss. 1994)).
In reviewing Foster’s application for leave to file a motion
for post-conviction relief, the Mississippi Supreme Court noted
that Foster “cites no authority stating that it is ineffective
for counsel to not request a special hearing to determine
transfer to youth court,” but rather “merely states that trial
counsel must not have known that this procedure was available to
him, and that failure to know this constitutes a failure to know
the law, and thus, is a textbook example of deficiency.” Id.
The court rejected this argument, reasoning that the record did
not indicate that Farrow was unaware of the availability of the
transfer procedure and that “the issue of whether a capital case
juvenile is transferred back to a youth court is within the sound
discretion of the circuit judge.” Id. The court further
concluded that even assuming that Farrow’s failure to file a
transfer motion was constitutionally deficient, that failure did
not prejudice Foster. Id. at 1136. Reiterating that the
decision whether “to transfer from circuit court to youth court
45
is within the sound discretion of the trial judge,” the
Mississippi Supreme Court determined:
Had Farrow requested such a finding, the trial judge
would have found that Foster was seventeen and one-half
years old, on the brink of eighteen years of age, and
while he did not have any significant criminal history,
he had a violent, selfish nature, exhibited uncooperative
tendencies and according to the Whitfield Report, had the
maturity to know right from wrong. . . . These elements
will hardly send a case back to youth court.
Id. The district court determined that the Mississippi Supreme
Court’s denial of Foster’s ineffective-assistance-of-counsel
claim based on Farrow’s failure to file a transfer motion did not
warrant federal habeas relief under § 2254(d).
As stated above in Part III, deficient performance is
established if it is shown that, considering all the
circumstances, counsel’s representation is objectively
unreasonable under prevailing professional norms. Strickland,
466 U.S. at 688. The Strickland Court recognized that
“[p]revailing norms of practice as reflected in American Bar
Association standards and the like are guides to determining what
is reasonable.” Id. at 688 (internal citations omitted). The
American Bar Association’s standards regarding transfer from
juvenile court to adult court are based on a recognition of the
“critical nature of the transfer decision.” A.B.A. JUVENILE JUSTICE
STANDARDS § 8.2(b) cmt. (1990). For example, the standards
provide that “[i]n any case where transfer (from juvenile court
to adult court) is likely, counsel should seek to discover at the
46
earliest opportunity whether transfer will be sought and, if so,
the procedure and criteria according to which that determination
will be made.” Id. § 8.2(a). Further, counsel “should promptly
investigate all circumstances of the case bearing on the
appropriateness of transfer,” including, “[w]here circumstances
warrant, [the filing of a] prompt[] mo[tion] for appointment of
an investigator or expert witness to aid in the preparation of
the defense [against transfer].” Id. § 8.2(b); see also id.
§ 8.2(b) cmt. (“As at adjudication and disposition, a lawyer
cannot provide effective assistance on the basis of brief
familiarity with the case and the client’s circumstances.”).
Although the American Bar Association’s standards directly
address only the situation where a minor defendant must be
prepared to argue that a transfer from juvenile court to an adult
court is inappropriate, the concerns underlying these standards
are equally relevant in the situation where a minor defendant in
adult court has the opportunity to argue that transfer to
juvenile court is appropriate. Cf. Girtman v. Lockhart, 942 F.2d
468, 476 (8th Cir. 1991) (“If transferring an offender to adult
court without a hearing or a statement of reasons violates due
process, it logically follows that keeping a juvenile offender in
adult court without holding a transfer hearing or making oral or
written findings also violates due process.”). Just as it is
clearly in the minor’s best interest that counsel make every
effort to prevent a transfer from juvenile court to adult court,
47
it is clearly in the minor’s best interest that counsel make
every effort to secure a transfer from adult court to juvenile
court. At least in the circumstances of the instant case, there
is no conceivable strategic justification for forgoing available
procedures for obtaining a transfer to juvenile court, and thus
this omission is not entitled to Strickland deference.
In light of the foregoing and of the severity of the death
penalty, we resolve any doubts in favor of Foster and grant his
request for a COA on his ineffective-assistance-of-counsel claim
based on Farrow’s failure to file a motion to transfer the case
to juvenile court. Further, given the American Bar Association’s
Juvenile Justice Standards and our conclusion that Farrow’s
decision not to file a motion to transfer to the youth court was
not strategic, we have some concern about the reasonableness of
the Mississippi Supreme Court’s determination that Farrow’s
performance was not deficient. However, we need not decide the
deficient-performance issue because we cannot say that the
Mississippi Supreme Court’s determination that Foster was not
prejudiced by Farrow’s failure to file the motion involved an
unreasonable application of clearly established Supreme Court law
or was based on an unreasonable determination of the facts in
light of the available evidence. Cf. Strickland, 466 U.S. at 697
(“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.”).
48
The Mississippi Supreme Court did not unreasonably apply
Strickland or any other clearly established Supreme Court law in
determining that, given Foster’s age and the Whitfield report’s
findings, it was not reasonably probable that the outcome would
have been different (i.e., that the trial court would have
granted a transfer motion) if Farrow had filed a transfer motion.
Accordingly, we affirm the district court’s denial of relief on
the ineffective-assistance/transfer claim.
D. Claim That the Eighth Amendment Requires That Particularized
Findings Be Made Before Juveniles May Be Tried as an Adult
for a Capital Offense
Foster also requests a COA from this court on his claim that
his death sentence constitutes cruel and unusual punishment
prohibited by the Eighth and Fourteenth Amendments because the
trial court did not make a particularized finding that he was
sufficiently mature and morally culpable before he was tried and
sentenced as an adult for a capital offense. In affirming his
conviction and sentence on direct appeal, the Mississippi Supreme
Court denied this claim as procedurally barred on the ground that
Foster had failed to raise it in the trial court. Foster v.
State, 639 So. 2d 1263, 1295 (Miss. 1994). In the alternative,
the court denied the claim on its merits. Id. at 1297-98 (“Even
if Foster’s claim[] [that ‘it was unconstitutional not to have a
certification procedure in death cases under Mississippi law for
persons under 18 years of age’] were not barred because of his
49
failure to raise [it] in the trial court . . ., we would still
find th[is] issue[] to be totally without merit.”).
We conclude that the language in the Mississippi Supreme
Court’s opinion indicating that Foster’s Eighth Amendment claim
“is procedurally barred and, alternatively, found to be without
merit,” id. at 1298, constitutes a sufficiently “clear and
express” statement that the procedural ground was an independent
basis for that court’s decision. Corwin v. Johnson, 150 F.3d
467, 473 (5th Cir. 1998) (“It is clear in this Circuit that
alternative rulings do not operate to vitiate the validity of a
[state] procedural bar that constitutes the [state court’s]
primary holding.”); cf. Sochor v. Florida, 504 U.S. 527, 534
(1992) (holding that the state court had expressed the
independence of the state procedural ground with the “requisite
clarity” by stating that “[n]one of the complained-of jury
instructions were objected to at trial, and, thus, they are not
preserved for appeal,” even though the state court also noted
that “[i]n any event, [the] claims . . . have no merit”).
Foster does not argue that the procedural rule applied by
the Mississippi Supreme Court to his Eighth Amendment claim ——
i.e., the requirement that a defendant must raise claims in the
trial court in order to preserve them for appellate review —— is
inadequate. Nor do we find this preservation rule to be
inadequate —— either as a general matter or as applied in
Foster’s case. A review of Mississippi appellate cases indicates
50
that the preservation rule is firmly established and regularly
applied to claims alleging a violation of the “Cruel and Unusual
Punishments” Clause of the Eighth Amendment (via the Fourteenth
Amendment). See, e.g., Wilcher v. State, 697 So. 2d 1087, 1108
(Miss. 1997); Holly v. State, 716 So. 2d 979, 985 (Miss. 1993);
Taylor v. State, 452 So. 2d 441, 450 (Miss. 1984); McCormick v.
State, 802 So. 2d 157, 161-62 (Miss. Ct. App. 2001); Coleman v.
State, 788 So. 2d 788, 793 (Miss. Ct. App. 2000).
Thus, the state preservation rule is an independent and
adequate state ground for the Mississippi Supreme Court’s denial
of Foster’s Eighth Amendment claim. Foster argues that federal
review is nevertheless proper on grounds of “cause and
prejudice.” Specifically, he maintains that we should not
recognize the state procedural bar because his counsel rendered
ineffective assistance in failing to file a motion to transfer
his case to youth court. However, the Mississippi Supreme Court
based its denial of Foster’s Eighth Amendment claim on his
counsel’s failure to raise the claim in the trial court, not on
his counsel’s failure to file a transfer motion. See Foster, 639
So. 2d at 1295. Foster does not argue that federal habeas review
is appropriate notwithstanding his procedural default because his
counsel rendered ineffective assistance by failing to raise the
Eighth Amendment claim in the trial court.
Thus, we conclude that reasonable jurists would agree that
federal review of Foster’s Eighth Amendment claim is precluded
51
under the “independent and adequate state ground” doctrine.
Given this conclusion, it is unnecessary for us to address
whether reasonable jurists would find the merits of the claim
debatable. Cf. Dowthitt, 230 F.3d at 753 n.30 (“As we find that
the first prong of the Slack inquiry for procedural claims has
not been met, we do not need to address the second prong.”). We
thus deny Foster’s request for a COA on his Eighth Amendment
claim.
V. CONCLUSION
For the foregoing reasons, we (1) AFFIRM the district
court’s denial of habeas relief on Foster’s claim of ineffective
assistance of counsel based on the failure to investigate and to
present mitigating evidence; (2) GRANT Foster’s request for a COA
on his claim of ineffective assistance of counsel based on the
failure to file a motion to transfer his case to youth court and
AFFIRM the district court’s denial of habeas relief on that
claim; and (3) DENY Foster’s request for a COA on his Eighth
Amendment claim.
52