United States v. Hall ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JULY 28, 2006
July 5, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
____________________
No. 04-70050
____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ORLANDO CORDIA HALL
Defendant-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
Before KING, SMITH, and STEWART, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Orlando Hall, a federal prisoner under a
sentence of death, has applied for a certificate of appealability
to challenge the district court’s denial of his motion to vacate
his conviction and sentence under 28 U.S.C. § 2255. Hall
previously sought, and was denied, a certificate of appealability
from the district court. For the reasons discussed below, we
DENY Hall’s application for a certificate of appealability.
I. BACKGROUND
Orlando Cordia Hall (“Hall”) ran a marijuana trafficking
enterprise in Pine Bluff, Arkansas, along with Bruce Webster
(“Webster”) and Marvin Holloway (“Holloway”). Hall, Webster, and
Holloway bought marijuana in the Dallas/Fort Worth area, assisted
by Steven Beckley (“Beckley”), who lived in Irving, Texas.
Typically, Beckley drove the marijuana back to Arkansas, and
Holloway stored the marijuana in his house.
On September 21, 1994, Holloway drove Hall from Pine Bluff
to Little Rock, Arkansas, and Hall then flew from Little Rock to
Dallas in order to buy marijuana. Beckley and Hall’s brother,
Demetrius Hall (“D. Hall”) picked Hall up at the Dallas airport.
Later that day, Hall and Beckley met two local drug dealers,
Stanfield Vitalis (“Vitalis”) and Neil Rene (“N. Rene”), at a car
wash and gave them $4700 to procure marijuana. Hall and Beckley
returned to the car wash to pick up the marijuana, but Vitalis
and N. Rene did not return. Hall then spoke with Vitalis and N.
Rene by telephone, and Vitalis and N. Rene told Hall that they
had been robbed of both their car and the $4700 entrusted to
them.
Hall and Beckley then gave Vitalis’s and N. Rene’s phone
number to a friend who worked for the telephone company, and this
friend told them that the number was associated with an address
at the Polo Run Apartments in Arlington, Texas. Hall, D. Hall,
2
and Beckley began surveilling this address, and they saw Vitalis
and N. Rene exit an apartment and approach the same car which
they claimed had been stolen along with the $4700. Based on this
surveillance, Hall and Beckley concluded that Vitalis and N. Rene
had lied about the robbery and had kept the $4700 for themselves.
Hall called Holloway on September 24, 1994, and instructed
him to drive Webster to the airport in Little Rock. Webster then
flew from Little Rock to Dallas. That evening, Hall, D. Hall,
Beckley, and Webster drove to the Polo Run Apartments in a car
owned by Hall’s sister Cassandra. Hall and Webster each carried
handguns, D. Hall carried a souvenir baseball bat, and Beckley
carried duct tape and a jug of gasoline.
When they arrived, Webster and D. Hall knocked on the front
door of the apartment that Vitalis and N. Rene had left. Lisa
Rene (“Rene”), N. Rene’s sixteen-year-old sister, was alone in
the apartment and refused them entry. When Webster and D. Hall
began issuing threats, Rene called her sister and 911. Webster
attempted to kick in the front door, but when that failed he and
D. Hall circled around to the patio and broke into the apartment
through a glass door. Webster then entered the apartment,
tackled Rene, and dragged her back to Hall’s sister’s car. The
group then drove away from the Polo Run Apartments and returned
to Hall’s sister’s apartment, where Beckley’s car was parked.
There, they forced Rene into Beckley’s car and then drove off in
a group. During this second drive Hall raped Rene. Later, the
3
group returned to Hall’s sister’s apartment, and from there
Beckley, D. Hall, and Webster drove back to Pine Bluff along with
Rene. Hall remained behind and flew back to Arkansas the next
day.
Once Beckley, D. Hall, and Webster reached Pine Bluff,
Holloway provided them with money, which they used to move into a
motel room. There, they tied Rene to a chair and raped her
repeatedly. On September 25, 1994, Hall and Holloway arrived at
the motel room and took Rene into the bathroom for approximately
twenty minutes. When they emerged, Hall told Beckley, “She know
too much,” and then he left the motel with Holloway and Webster.
After leaving the motel, Hall and Webster went to Byrd Lake
Park and dug a grave. That evening, Hall, Webster, and Beckley
took Rene to Byrd Lake Park, but they could not find the grave
site in the dark, so they returned to the motel room. Early the
next morning, on September 26, 1994, Beckley and D. Hall moved
Rene to another motel because they were concerned that a security
guard at the first motel was becoming suspicious.
Later on the morning of the 26th, Webster, Hall, and Beckley
again drove Rene to Byrd Lake Park, after covering her eyes with
a mask, and they took her to the grave site, which they were able
to locate in the daylight. At the grave site, Hall placed a
sheet over Rene’s head and then hit her once in the head with a
shovel. Rene screamed and attempted to run away, but Beckley
grabbed her and hit her twice in the head with the shovel.
4
Beckley then handed the shovel to Hall, and Hall and Beckley took
turns beating her. When they had finished, Webster gagged Rene,
dragged her into the grave, covered her with gasoline, and
covered her with dirt. In its current brief before this court,
the government reminds us that the medical report supported
findings that Rene was alive but unconscious when she was buried
by Webster, that she died from the effects of the multiple blunt
force injuries she suffered during her beating, combined with
asphyxia, and that she may have regained consciousness in the
grave before her death. After Rene was buried, the three men
returned to the motel and picked up D. Hall.
On September 29, 1994, an arrest warrant was issued in
Arlington for Hall, D. Hall, and Beckley for Rene’s kidnapping,
and D. Hall, Beckley, and Webster were arrested. On September
30, 1994, Hall surrendered to Pine Bluff authorities in the
presence of his attorney. Based on his attorney’s advice, Hall
did not give a statement at arrest, but he indicated that he
would talk once he was transported to Texas. On October 5, 1994,
Hall gave a written statement to FBI and Arlington County
officials in which he substantially implicated himself in Rene’s
kidnapping and death.
The United States District Court for the Northern District
of Texas issued a criminal complaint on October 26, 1994,
charging Hall, D. Hall, Webster, and Beckley with kidnapping in
violation of 18 U.S.C. § 1201(a)(1). On November 4, 1994, a six-
5
count superseding indictment was returned, charging Hall, D.
Hall, Webster, Beckley, and Holloway with kidnapping in which a
death occurred in violation of 18 U.S.C. § 1201(a)(1), conspiracy
to commit kidnapping in violation of 18 U.S.C. § 1201(c),
traveling in interstate commerce with intent to promote the
possession of marijuana with intent to distribute in violation of
18 U.S.C. § 1952, using a telephone to promote the unlawful
activity of extortion in violation of 18 U.S.C. § 1952, traveling
in interstate commerce with intent to promote extortion in
violation of 18 U.S.C. § 1952, and using and carrying a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c).
The government filed notice of its intent to seek the death
penalty against Hall on February 23, 1995. The district court
severed Hall’s trial from the trial of his codefendants on April
6, 1995, and his trial began on October 2, 1995. On October 31,
1995, the jury convicted Hall of kidnapping in which a death
occurred, conspiracy to commit kidnapping, traveling in
interstate commerce to promote possession of marijuana with
intent to distribute, and using and carrying a firearm during a
crime of violence. After a separate hearing, the jury
recommended, by unanimous vote, that Hall receive the death
penalty.1
1
Hall was sentenced to death for the kidnapping
conviction, life imprisonment for the conspiracy conviction, and
sixty months imprisonment for each of the remaining two
convictions.
6
Hall appealed, and his conviction and sentence were affirmed
by this court on August 21, 1998. United States v. Hall, 152
F.3d 381, 389-90 (5th Cir. 1998) [hereinafter Hall]. Hall filed
a petition for rehearing with this court, which was denied on
October 1, 1998. Hall then petitioned the Supreme Court for a
writ of certiorari, which was denied on May 17, 1999. United
States v. Hall, 526 U.S. 1117 (1999).
Hall filed his initial motion to vacate his conviction and
sentence, pursuant to 28 U.S.C. § 2255, in May 2000. In June
2000, the district court granted Hall’s request to file a
discovery motion. Hall filed an initial discovery motion in
August 2000 and a supplemental discovery motion in May 2001. The
district court denied both motions in April 2002. Hall then
filed a second § 2255 motion to vacate in June 2002, and he filed
an amended version of this motion to vacate in September 2002.
In this second amended motion, Hall raised twelve claims for
relief from his conviction and sentence.2 See Hall v. United
2
The district court found that the twelve claims listed
in Hall’s motion raised nine issues, specifically whether:
A. Hall’s rights under the Fifth Amendment were violated
because the indictment against him did not allege any
aggravating factors that rendered Hall eligible for
the death penalty (claim one).
B. Hall was denied his Sixth Amendment right to the
effective assistance of counsel (claim two).
C. A juror’s contact with the victim’s family and other
extraneous information that entered into the jury’s
deliberations violated Hall’s rights under the Fifth,
7
States, No. 4:00-CV-422-Y, slip op. at 6, 2004 WL 1908242 (N.D.
Tex. Aug. 24, 2004) [hereinafter Dist. Ct. Op.].
The government filed a response to this second amended
motion to vacate in January 2003, and Hall replied in March 2003.
Sixth, and Eighth Amendments (claims three through
five).
D. The government violated Hall’s rights under the Fifth
and Sixth Amendments by failing to disclose
exculpatory and mitigating information concerning
government witness Larry Nichols (claim six).
E. Hall’s rights under the Fifth, Sixth, and Eighth
Amendments were violated because of false testimony
given by government witnesses Larry Nichols and
Steven Beckley (claims seven and twelve).
F. The government violated Hall’s Sixth Amendment rights
by using jail inmate Larry Nichols to elicit
information from Hall (claim eight).
G. Hall’s rights under the Fifth, Sixth, and Eighth
Amendments were violated when the government provided
a statement to the defense made by Alonso Airy that
contained false information for the purpose of
dissuading the defense from calling Airy to the stand
(claim nine).
H. The government interfered with Hall’s Sixth Amendment
right to counsel when it advised his initial defense
attorneys about information that Hall intended to
kidnap the attorneys in an escape attempt (claim
ten).
I. Hall’s rights under the Fifth And [sic] Eighth
Amendments were violated by the racially
discriminatory effects of the federal capital
sentence scheme (claim eleven).
Hall v. United States, No. 4:00-CV-422-Y, slip op. at 6-7, 2004
WL 1908242 (N.D. Tex. Aug. 24, 2004) [hereinafter Dist. Ct. Op.].
The district court also noted that Hall moved for “an evidentiary
hearing before this Court on all of his claims.” Id. at 7.
8
On June 7, 2004, the district court conducted an evidentiary
hearing limited to the extraneous influence on the jury issues
raised by Hall’s third, fourth, and fifth claims for relief,
which were grouped together by the district court as issue C in
the list reproduced in note 2 supra. On August 24, 2004, the
district court issued a comprehensive, careful memorandum opinion
and order, denying all of the claims presented in Hall’s § 2255
motion for relief.
Hall filed a notice of appeal from the district court’s
order denying his § 2255 motion on November 9, 2004, and he
applied to the district court for a certificate of appealability
(“COA”) on that same date as well. The district court denied
Hall’s COA application on December 6, 2004, citing Hernandez v.
Johnson, 213 F.3d 243, 248 (5th Cir. 2000), and finding that Hall
had failed to make a substantial showing of the denial of a
federal constitutional right. On July 18, 2005, Hall filed the
present application for a COA with this court.
II. DISCUSSION
This court may not consider an appeal from the denial of a
28 U.S.C. § 2255 motion for relief unless either the district
court or this court issues a COA. 28 U.S.C. § 2253(c)(1)(B). To
obtain a COA, an applicant such as Hall “must make a substantial
showing of the denial of a constitutional right.” United States
v. Garza, 165 F.3d 312, 314 (1999) (citing 28 U.S.C.
9
§ 2253(c)(2), and United States v. Kimler, 150 F.3d 429, 431 n.1
(5th Cir. 1998)). An applicant such as Hall “need not establish
that he will win on the merits”; rather, “he need only
demonstrate that the questions he raises are debatable among
reasonable jurists.” Garza, 165 F.3d at 314 (citing United
States v. Rocha, 109 F.3d 225, 227 n.2 (5th Cir. 1997)). “In
determining whether to grant a COA, our inquiry is limited to a
threshold examination that ‘requires an overview [of Hall’s
current claims] . . . and a general assessment of their merits.’”
Smith v. Dretke, 422 F.3d 269, 273 (5th Cir. 2005) (quoting
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). Because this
matter involves a sentence of death, “any doubts as to whether a
COA should be issued must be resolved” in Hall’s favor. Smith,
422 F.3d at 273 (quoting Hernandez, 213 F.3d at 248) (internal
alterations omitted).
Hall raises several distinct claims in his current
application for a COA. First, Hall believes that a COA should
issue to determine whether the district court erred in denying
five of the specific substantive claims in his § 2255 motion.
Second, Hall claims a COA should issue to address whether the
district court erred by limiting the June 7, 2004, evidentiary
hearing solely to his extraneous influence upon the jury claims.
Third, Hall claims that a COA should issue to address whether the
district court erred in denying all discovery. Fourth, Hall
10
claims that a COA should issue to determine whether the district
court erred in denying him reasonable additional funds to develop
further evidence. Finally, Hall claims that this court should
assign a new judge if it decides that a remand is necessary. The
government has provided substantive and direct responses to all
of the claims discussed above.3
The remainder of this opinion will discuss the claims in
Hall’s application for a COA, and the government’s substantive
response to these claims, in greater detail. Because both Hall
and the government devote most of their attention to Hall’s five
general merits claims--particularly his ineffective assistance of
counsel claim--these will be addressed first, together with
related procedural claims.
3
In responding to Hall’s second amended § 2255 motion,
the government also argued that Hall was “procedurally barred
from raising all but his second and part of his third through
fifth claims for relief because [the barred claims] were not
raised on direct appeal and he has failed to allege any cause and
prejudice for the procedural default.” Dist. Ct. Op. at 7-8.
The district court was not persuaded by the government’s
procedural objections. Although it recognized that many of the
claims “were not raised on direct appeal and are not based on new
law or facts,” the district court chose to address the claims “in
the interests of justice” because “Hall . . . alleged that his
appellate counsel was ineffective for not raising these claims.”
Dist. Ct. Op. at 8.
In responding to Hall’s current application for a COA, the
government briefly observes (in a single footnote) that it “is
not abandoning any of those procedural bars,” and it argues that
“[i]n the event this Court elects to grant COA on any issue, the
government will rely on those procedural bars in its [subsequent]
response.” Gov’t Br. at 8 n.1. Because these arguments have not
been sufficiently briefed at this stage, we will not consider
them at any greater length.
11
A. Hall’s Substantive Claims
In his current application for a COA, Hall reiterates five
of the substantive claims from his § 2255 motion: his ineffective
assistance of counsel claim, his extraneous influence on the jury
claim, his incomplete indictment claim, his prosecutorial
misconduct claim, and his selective prosecution claim. Related
to these five claims is his procedural claim that the district
court erred in limiting the evidentiary hearing to the extraneous
influence on the jury claim. Of the five substantive claims, the
ineffective assistance of counsel claim is the most important to
his current application; in his brief before this court, Hall
acknowledges that the “centerpiece of this case is . . . [the]
penalty-phase IAC [ineffective assistance of counsel] claim.”
Therefore, the ineffective assistance of counsel claim will be
considered first, and the sentencing component of this claim will
be considered most extensively.
1. Hall’s Ineffective Assistance of Counsel Claim
In the proceedings before the district court, Hall claimed
that his trial counsel was constitutionally ineffective on twelve
separate grounds, all of which are substantially reiterated in
his current application for a COA.4 After separately and
4
More specifically, Hall contended that his trial counsel
was constitutionally ineffective for:
1) failing to conduct a timely investigation into
potential mitigating evidence, thereby emphasizing
some evidence while not presenting more persuasive
12
extensively considering each of Hall’s arguments, the district
court concluded that Hall received “constitutionally effective
assistance of counsel at his trial” because his attorneys
“conducted reasonable investigations in all areas of the case
mitigating evidence through additional witnesses and
presenting ill-prepared witnesses;
2) failing to present documentary evidence at the
punishment phase of the trial to corroborate
testimony;
3) failing to call available and known witnesses to
testify at punishment;
4) failing to question government witnesses in order to
present additional mitigating evidence;
5) failing to appropriately cross-examine government
witness Larry Nichols at the punishment phase;
6) failing to re-interview a potential defense witness
after he appeared to have altered his testimony;
7) failing to make a closing argument at the guilt phase
of the trial;
8) failing to argue effectively that Hall should have
been allowed to make a statement in allocution;
9) making uninformed and unreasonable decisions
regarding their choice and use of witnesses;
10) failing to adequately argue their motions for
continuance;
11) making an ineffective closing argument at the
punishment phase; and
12) failing to conduct an adequate voir dire.
Dist. Ct. Op. at 16-17. Although Hall has reordered, combined,
and separated these twelve grounds in his current application for
a COA, they are substantially the same as the grounds considered
by the district court.
13
. . . vigorously cross-examined government witnesses . . . ably
argued all objections and points of law; and eloquently defended
their client in their closing statements.” The government now
argues that the “record demonstrates that the [district] court
conducted an exhaustive review of each of Hall’s claims, and
properly denied relief. No COA should issue because no court
would resolve Hall’s issues in a different manner.” Hall
believes that each of his twelve grounds was sufficient to
support his ineffective assistance of counsel claim, and in his
current application for a COA, he argues that reasonable jurists
could debate the district court’s decision on each of these
twelve grounds.
To establish ineffective assistance of counsel, Hall must
satisfy a two-part test and show both that his counsel’s
performance was deficient and that he was actually prejudiced by
the deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984) (stating that an ineffective assistance of
counsel claim has “two components” and requiring convicted
defendants to show both that “counsel’s performance was
deficient” and “that the deficient performance prejudiced the
defense”). We determine whether counsel’s performance was
deficient “by examining whether the challenged representation
fell below an objective standard of reasonableness.” Cotton v.
Cockrell, 343 F.3d 746, 752 (5th Cir. 2003) (citing Kitchens v.
Johnson, 190 F.3d 698, 701 (5th Cir. 1999)). Crucially, “a fair
14
assessment” of counsel’s challenged conduct requires reviewing
courts to make “every effort . . . to eliminate the distorting
effects of hindsight . . . and to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689.
When it has been shown that “‘counsel made an adequate
investigation,’” we have held that “‘any strategic decisions made
as a result of that investigation fall within the wide range of
objectively reasonable professional assistance.’” Cotton, 343
F.3d at 752 (quoting Smith v. Cockrell, 311 F.3d 661, 668 (5th
Cir. 2002)). Of course, even if Hall could establish that his
counsel’s performance was deficient, satisfying the first step of
the Strickland test, he would also have to establish that the
“‘prejudice caused by the deficiency is such that there is a
reasonable probability that the result of the proceedings would
have been different[,]’” thereby rendering the trial
“‘fundamentally unfair or unreliable.’” Cotton, 343 F.3d at 753
(quoting Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir. 1997)).
But because, as will be discussed immediately below, no
reasonable jurist could debate the district court’s conclusion
that Hall’s counsel provided reasonable, vigorous, and thorough
assistance at Hall’s trial and sentencing, we need not address
this second step of the Strickland test, and so we will not
consider whether the errors Hall alleges could have prejudiced
his defense.
15
a. Hall’s Mitigation Arguments
The acknowledged “centerpiece” of Hall’s current application
for a COA is his argument that his trial counsel failed to
present various mitigation evidence and arguments at Hall’s
sentencing because they failed to conduct an objectively
reasonable investigation into Hall’s family background. We
observed, when considering Hall’s direct appeal, that
[i]n support of his claim that he experienced an
upbringing that militated against the imposition of the
death penalty, Hall offered only the testimony of two of
his family members[5] . . . . Additionally, this
testimony indicated that Hall was not himself the object
of his father’s abuse and that, throughout his childhood,
Hall attended school and church and was properly housed,
fed, and clothed.
Hall, 152 F.3d at 413. Hall now argues that his upbringing was
somewhat more difficult than we recognized on direct appeal.
More specifically, Hall now argues that he was beaten with belts
and switches by both of his parents, but particularly his father,
as a form of discipline, and he argues that this discipline
constituted abuse. He also argues that his trial counsel failed
to present evidence of this alleged abuse because they failed to
adequately investigate his background before sentencing, and he
concludes that his trial counsel’s failure to present evidence of
5
The two family members who testified at Hall’s trial
were Hall’s mother and his sister Cassandra, whose car and
apartment were used in Rene’s abduction. Both offered
uncontroverted testimony that Hall’s father beat Hall’s mother
throughout their marriage, until the marriage ended in divorce
when Hall was fifteen. See Hall, 152 F.3d at 413.
16
this abuse substantially prejudiced his defense at sentencing,
constituting ineffective assistance of counsel. In support of
this argument, Hall submitted several highly detailed
declarations from family members and assorted experts along with
his second amended § 2255 motion.
Although we did not consider some of the allegations
presented in these declarations during Hall’s direct appeal, we
did consider the significant evidence, presented by Hall’s trial
counsel to the jury, which demonstrated that Hall’s upbringing
was marked by violence. As we stated in Hall’s direct appeal,
his trial counsel presented uncontroverted evidence that his
mother was repeatedly beaten by his father throughout his
childhood.6 See Hall, 152 F.3d at 413 (noting the
“uncontroverted testimony that Hall’s father . . . beat Hall’s
mother throughout their marriage”). Moreover, we observe that in
6
More specifically, Hall’s mother testified at trial that
Hall’s father:
was abusive towards her [Hall’s mother] during most of
their marriage including when she was pregnant; that she
had been beaten with the butt of a gun, by a two-by-four,
and with fists; that her teeth were knocked out; that she
was dragged out of bed and beaten . . . after getting
home from work or from a store; that this was all done in
front of the children; that the children tried to
intervene, but would get knocked around themselves; that
the police were called several times, but arrested
[Hall’s father] on only one occasion; that Hall would
physically protect her from [Hall’s father]; and that she
stayed with [Hall’s father] because she had small
children and had no place to go . . . .
Dist. Ct. Op. at 27-28 (citing R. 18:113-116).
17
reviewing Hall’s argument, “our principal concern . . . is not
whether counsel should have presented a mitigation case” of the
sort Hall envisions. Wiggins v. Smith, 539 U.S. 510, 523 (2003)
(citing Strickland, 466 U.S. at 691). “Rather, we focus on
whether the investigation supporting counsel’s decision not to
introduce mitigating evidence of [Hall’s] background was itself
reasonable.” Id.
To support his current argument that his trial counsel’s
investigation was objectively unreasonable and therefore
deficient, Hall has presented declarations from various experts
purporting to show that his trial counsel fell short of then-
prevailing professional norms requiring a wide-ranging and
thorough inquiry into his family, medical, and social history.
Hall believes that these expert declarations demonstrate that his
trial counsel failed to conduct sufficiently extensive interviews
with his family members about his alleged childhood abuse. At
the very least, he argues that these declarations have created a
fact question on this issue because they conflict with affidavits
given by his trial counsel and submitted by the government
defending the sufficiency of the mitigation investigation.
Even if these expert declarations are assumed to be true, no
reasonable jurist could debate the district court’s conclusion
that the mitigation investigation of Hall’s counsel was
objectively reasonable. To begin, Hall’s trial counsel spoke
18
with Hall and presented him with a lengthy questionnaire. From
the questionnaire and their initial conversations, Hall’s trial
counsel learned that Hall felt that he had a reasonably happy and
peaceful childhood, although Hall also indicated that he had been
whipped when he was bad. Hall’s trial counsel also made use of a
private investigator to help evaluate and investigate Hall’s
background. Hall’s trial counsel also interviewed Hall’s mother
and sister Cassandra, who told him that Hall’s father had
extremely violent tendencies. Based on these interviews, Hall’s
trial counsel decided to call both women to testify. Hall’s
trial counsel also employed the services of a mitigation
specialist named Tena Francis (“Francis”), who has since
submitted multiple declarations castigating Hall’s trial counsel
for, inter alia, failing to employ her earlier and failing to
adopt all of her tactical litigation suggestions.
Notwithstanding her subsequent critical declarations, Francis
interviewed additional family members and a minister familiar
with Hall’s childhood and background while she was employed by
Hall’s trial counsel, and she sent summaries of these interviews
to Hall’s trial counsel before sentencing.7
7
Hall’s trial counsel ultimately decided against calling
these additional family members as witnesses for tactical
reasons. In denying Hall’s § 2255 motion, the district court
examined this decision and concluded that “[i]t was reasonable
. . . not to call as witnesses a father who was opposed to
testifying, two brothers who were imprisoned criminals
themselves, and a sister who at the time remained hostile to her
brother, notwithstanding what they now state they would have
19
Although Hall’s experts have attacked some of the strategic
and tactical litigation decisions made by Hall’s trial counsel,
they have not raised serious fact questions about the
reasonableness of the investigation upon which those litigation
decisions were made. The crux of Hall’s current argument is that
Hall’s trial counsel conducted an insufficient investigation
either because counsel was unaware that Hall had been physically
abused as a child or because counsel was unaware that the violent
discipline inflicted upon Hall constituted abuse.8 The
testified to at trial.” Dist. Ct. Op. at 30.
More specifically, Hall’s father was opposed to testifying
in large part because of his reluctance to admit to his extensive
physical abuse of Hall’s mother. One of the two brothers in
question had been incarcerated for firing a gun into a crowd and
injuring nine people; the other brother was in prison for drug
possession. Finally, the sister in question was opposed to
testifying because “she was very angry . . . at Hall for lying to
her about his involvement [in Rene’s kidnapping and death] and
for involving [their brother] Demetrius Hall [in Rene’s
kidnapping and death].” Dist. Ct. Op. at 30. No reasonable
jurist could debate the district court’s conclusion that Hall’s
counsel acted reasonably in choosing not to call these additional
witnesses.
8
This core of Hall’s argument can be found in the
declaration of Jill Miller (“Miller”), a forensic social worker,
whose declaration was submitted along with Hall’s second amended
§ 2255 motion. In her declaration, Miller stated:
First, this characterization--that the Hall children were
not “abused”--was incorrect. The physical discipline
imposed on the children in this family, by both parents,
was unduly harsh and rose to the level of abuse. . . .
[Furthermore,] the dynamics and effects of family
violence cannot be uncovered simply by asking someone if
she was “abused.” . . . Counsel’s examination of these
witnesses reflects a failure to grasp this basic
principle . . . . At the same time, the true extent and
severity of the physical beatings [visited on Hall’s
20
government has provided affidavits from Hall’s trial counsel
which contradict these points,9 but more importantly, this core
of Hall’s argument is also clearly and directly contradicted by
the declarations that he has presented and upon which he now
relies. In both her declaration given on June 11, 2002, and her
declaration given on March 11, 2003, after she reviewed one of
Hall’s counsel’s affidavits, Francis repeatedly stated that
Hall’s trial counsel “was informed, by me [Francis] . . . that
mother and her children] were not communicated by the
testimony actually presented at [Hall’s] penalty phase.
Miller Decl. (June 12, 2002) at 17.
9
According to one of his trial counsel’s affidavits, Hall
himself indicated that he had been whipped by his parents during
counsel’s first interview with Hall, and his subsequent, thorough
investigation into Hall’s background was based on his knowledge,
resulting from extensive experience, “that defendants in that
situation cannot necessarily be relied upon to be one-hundred
percent truthful and forthcoming.” Ware Aff. (Jan. 15, 2003) at
3, 5.
Hall’s counsel also stated that after he directed Francis to
interview Hall’s additional family members and conduct further
background investigation, she “later reported . . . that she was
sure that there must have been severe child abuse in the home,
including abuse of the defendant . . . .” However, despite
subsequent interviews, counsel was unable to elicit any further
information about this alleged abuse from Hall’s mother and
sister, the witnesses who were reasonably chosen to testify at
Hall’s sentencing. Ware Aff. (Jan. 15, 2003) at 20 (“Although I
spoke with them on additional occasions neither Cassandra [Hall’s
sister] nor [Hall’s mother] nor the defendant ever said anything
that supported Tena Francis’s feeling that the defendant must
have been physically abused as a child . . . . When I traveled to
Arkansas and again interviewed [Hall’s mother], she did not
indicate anything of much additional significance on those
particular topics, although, once again I asked her about them
specifically after . . . explaining the significance of such
information.”)
21
the Hall children had been subjected to serious domestic violence
in the family throughout their childhoods,” and she also
repeatedly acknowledged that Hall’s trial counsel subsequently
and repeatedly tried to discuss this issue with Hall’s mother,
but that “her [Hall’s mother’s] answers lacked the kind of
details I [Francis] had noted in my reports.” Therefore, even if
the declarations presented by Hall are assumed to be true, Hall’s
central argument lacks support. Contrary to the conclusory
allegations found in Hall’s application for a COA and Miller’s
declaration, it is clear that: Hall’s trial counsel was aware
that Hall had been subjected to physical discipline as a child;
Hall’s trial counsel was aware of expert opinions that this
discipline constituted abuse; Hall’s trial counsel personally
conducted further investigation and also directed Francis to
conduct further investigation into this issue; and finally,
Hall’s trial counsel attempted, albeit unsuccessfully, to elicit
testimony about this issue from the family witnesses who were
reasonably chosen to testify at Hall’s sentencing.
In light of Hall’s counsel’s considerable prior experience
and thorough efforts to investigate the potential mitigation case
that Hall now describes, no reasonable jurist could debate the
district court’s conclusion that “Hall’s counsel performed a
reasonably substantial and independent investigation into
potential mitigating circumstances and therefore did not provide
ineffective assistance of counsel.” Therefore, Hall is not
22
entitled to a COA on this issue. Moreover, because this
conclusion is supported not only by the subsequent affidavits
submitted by the government but also by the very declarations
upon which Hall now relies, no reasonable jurist could debate the
district court’s conclusion that the declarations submitted by
Hall have failed to “create any contested fact issues.”
Accordingly, because Hall’s expert declarations have failed to
create a contested fact issue about the objective reasonableness
of his trial counsel’s mitigation investigation, no reasonable
jurist could debate the district court’s decision not to provide
an evidentiary hearing to address this issue. As a result, Hall
is not entitled to a COA based on the district court’s limitation
on the evidentiary hearing.
Contrary to the arguments advanced in Hall’s reply brief,
our recent decision in Smith v. Dretke, 422 F.3d 369, does not
directly control this application for a COA. In Smith, we
granted an application for a COA based in part on our holding
that “reasonable jurists could debate whether the [mitigation]
investigation that supported trial counsel’s strategy at
sentencing was reasonable and adequate.” 422 F.3d at 284. In
his reply brief, Hall argues that our opinion in Smith
illustrates why Hall’s application also merits a COA. But
whatever superficial similarities Hall’s application may bear to
the application we considered in Smith, several critical
23
distinctions prevent the direct application of Smith’s holding to
this matter. Unlike Hall’s trial counsel, the trial counsel in
Smith could not remember specific details about their background
investigation, such as “exactly who they contacted or what was
learned from the individuals they contacted,” and the record in
Smith tended to “support[] the conclusion that trial counsel only
contacted those individuals who actually testified at trial,”
whereas the record in this matter indicates that Hall’s trial
counsel conducted a much broader investigation. Id. at 277.
Moreover, unlike Hall’s trial counsel, the trial co-counsel in
Smith provided substantive statements about the defendant’s
background which were directly “contrary to the actual testimony
presented at sentencing . . . .” Id. at 281. Based on these and
other shortcomings without parallel in the matter at hand, we
held in Smith that “reasonable jurists could debate whether trial
counsel conducted a reasonable investigation.” Id. But because
these concerns are not raised by Hall’s application for a COA,
Smith does not control this application for a COA.
b. Hall’s Additional Ineffective Assistance of
Counsel Arguments
In addition to the mitigation arguments discussed above,
Hall has provided six additional specific ineffective assistance
of counsel arguments which he believes merit a COA. First, Hall
argues that his trial counsel failed to adequately prepare for
and cross-examine Larry Nichols, a former cellmate of Hall’s.
24
Second, Hall argues that his trial counsel failed to obtain an
opportunity for allocution for Hall. Third, Hall argues that his
trial counsel failed to effectively argue several motions for a
continuance. Fourth, Hall argues that his trial counsel failed
to effectively conduct voir dire. Fifth, Hall argues that his
trial counsel failed to present an effective closing argument.
Sixth, Hall argues that his trial counsel failed to present
adequate evidence of Hall’s good conduct during his past
incarceration. The district court reviewed all of these claims
individually and in detail before denying Hall’s ineffective
assistance of counsel claim, and no reasonable jurist could
debate the district court’s conclusions. These arguments each
“essentially come[] down to a matter of degrees[,]” and we have
held in the past that these sorts of questions “are even less
susceptible to judicial second-guessing” than most ineffective
assistance of counsel arguments. Kitchens, 190 F.3d at 703; see
also Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000)
(citing Kitchens and Strickland, and stating the need to be
“particularly wary” of arguments that second-guess the
performance of trial counsel by a matter of degrees). Because
Hall has offered little more than his displeasure with the
outcome of his trial and sentencing hearing to support these
arguments, no reasonable jurist could debate the district court’s
decision to deny him relief on these grounds, and no reasonable
jurist could debate the district court’s refusal to consider
25
these grounds during its evidentiary hearing. Therefore, Hall is
not entitled to a COA on these substantive issues, and he is not
entitled to a COA based on the district court’s decision to limit
the evidentiary hearing.
Hall also claims that he is entitled to a COA on his
ineffective assistance of counsel claim because of the cumulative
effect of the various errors he alleges. Our clear precedent
indicates that ineffective assistance of counsel cannot be
created from the accumulation of acceptable decisions and
actions. See Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.
2000) (stating that in the absence of specific demonstrated
error, a defendant cannot, by definition, show that cumulative
error of counsel deprived him of a fair trial); Yohey v. Collins,
985 F.2d 222, 229 (5th Cir. 1993) (stating that because certain
alleged errors did not rise to constitutionally ineffective
assistance of counsel, and because certain other claims were
meritless, a petitioner had “presented nothing to cumulate”).
Accordingly, no reasonable jurist could debate the district
court’s conclusion that the cumulative effect of the alleged
errors did not constitute ineffective assistance of counsel, and
Hall is not entitled to a COA on this issue.
2. Hall’s Extraneous Influence on the Jury Claim
Hall’s extraneous influence on the jury claim is based on
two incidents that allegedly occurred during the trial. First,
26
Hall alleges that juror Jacqueline Holmes (“Holmes”) had contact
during Hall’s trial with Hall’s victim’s mother. This first
allegation is based on letters allegedly written by Holmes to
Hall in prison after the conclusion of Hall’s trial. Second,
Hall alleges that at least one juror--who may or may not have
been Holmes--attended an event at which prayers were offered for
Hall’s victim.
As discussed above, the district court conducted an
evidentiary hearing to resolve this claim on June 7, 2004, and at
this hearing, Holmes testified under oath. With respect to
Hall’s first allegation, Holmes admitted that she had written
letters to Hall after the trial. She also admitted that in these
letters she stated that she had met Hall’s victim’s mother during
the course of the trial. At the evidentiary hearing, however,
Holmes maintained that these post-trial letters to Hall were not
true: she testified that she had never met the victim’s mother,
and she claimed that she had lied in her letters in order to
encourage Hall’s correspondence with her. With respect to Hall’s
second allegation, Holmes testified that she had not attended any
prayer ceremony of the sort described by Hall, nor was she aware
of any other juror who had done so. Id.
With respect to Hall’s first allegation, the district court
found Holmes’s testimony during the evidentiary hearing “to be
credible,” and therefore ruled that “Hall has not established
27
that any inappropriate ex parte contact occurred.” With respect
to Hall’s second allegation, the district court stated that even
[a]ssuming that this allegation is indeed true, and [a
juror] attended [a prayer ceremony], it is not evidence
that there was any outside influence on the jury.
Instead Hall offers merely speculation that there may
have possibly been some unknown person at the [prayer
ceremony] who said something to the juror that influenced
her vote. Mere speculation that some discussion between
a juror and an unknown person occurred does not establish
that extrinsic evidence entered the jury deliberations,
especially where Jacqueline Holmes’s sworn testimony is
that she does not recall any juror discussing a [prayer
ceremony], much less any prayer offered on behalf of the
victim [during the jury’s deliberations].
Id. at 66-67.
In his current application, Hall argues that he is entitled
to a COA on this extraneous influence on the jury claim because
reasonable jurists could debate the district court’s conclusion
and with the limitations the district court imposed on the
evidentiary hearing it held on this issue.10 But by holding the
evidentiary hearing, the court provided Hall with sufficient
opportunity to investigate his first allegation about Holmes’s
10
In particular, Hall argues that the evidentiary hearing
was insufficient because Hall lacked access to videotaped
interviews with the jurors. In response, the government observes
that “[s]ecuring a copy of the broadcast [interviews] . . . would
bring Hall no closer to showing an illegal or prejudicial
intrusion into the jury process” because Hall’s allegations still
fail to demonstrate “that any extraneous evidence was introduced
into the jury’s deliberations, or that any juror violated the
court’s instructions to forego discussion about the case outside
of the deliberation process, especially given the testimony from
Holmes.” Gov’t Br. at 31 (citing, inter alia, United States v.
Riley, 544 F.2d 237, 242 (5th Cir. 1976); United States v.
Ianniello, 866 F.2d 540, 543 (2d Cir. 1989)).
28
conduct, and it found Holmes’s direct testimony credible. No
reasonable jurist could find fault with either the district
court’s method or conclusion, particularly in light of the
limitations on a juror’s testimony on any individual juror’s
deliberations or the jury’s collective deliberations. See, e.g.,
United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995)
(reviewing the limitations on subsequent testimony about juror
deliberations set forth by this court’s precedent and Federal
Rule of Evidence 606(b)). With respect to Hall’s second
allegation, no reasonable jurist could debate the district
court’s conclusion that Hall has merely offered speculative and
conclusory allegations that “are insufficient to raise a
constitutional issue.” United States v. Pineda, 988 F.2d 22, 23
(5th Cir. 1993) (quoting United States v. Woods, 870 F.2d 285,
288 n.3 (5th Cir. 1989)).
3. Hall’s Incomplete Indictment Claim
In his second amended § 2255 motion, Hall claimed that the
original indictment against him violated his Fifth Amendment
rights because it did not allege the aggravating circumstances
and the culpable mental state that made him eligible for the
death penalty. The district court denied this claim for relief,
after applying our recent precedent and the recent precedent of
the Supreme Court. See Dist. Ct. Op. at 13-16 (citing, inter
alia, Schirro v. Summerlin, 542 U.S. 348 (2004), United States v.
29
Robinson, 267 F.3d 278 (5th Cir. 2004), United States v.
Matthews, 312 F.3d 652 (5th Cir. 2002), and United States v.
Brown, 305 F.3d 304 (5th Cir. 2002)). In his current application
for a COA, Hall acknowledges the contrary precedent of this court
and the Supreme Court cited by the district court--precedent that
we must follow. Because Hall concedes in a footnote that he has
included this claim in his current application in order “to
preserve this issue for further review[,]” we will not consider
this claim any further.
4. Hall’s Prosecutorial Misconduct Claim
Hall’s prosecutorial misconduct claim revolves around Larry
Nichols (“Nichols”), one of Hall’s fellow inmates who provided
testimony against Hall during the sentencing phase of Hall’s
trial. More specifically, Hall now claims that the government
concealed Nichols’s full criminal history from Hall, violated
Hall’s Sixth Amendment rights by deliberately using Nichols to
elicit information from Hall outside the presence of Hall’s
counsel, and encouraged or tolerated perjury by Nichols.
In denying Hall’s § 2255 motion, the district court held
that these claims of prosecutorial misconduct lacked factual
support. The district court found, based on a review of the
trial record and an affidavit from Hall’s trial counsel, that the
government did not withhold any information about Nichols’s prior
criminal conduct from Hall’s trial counsel. The district court
30
also recognized that Hall’s Sixth Amendment rights were not
violated for two reasons: first, because Nichols’s testimony
directly contradicts Hall’s claims; and second, because the very
text of the report Hall selectively cites undercuts his claims.
Finally, the district court found that Hall failed to show that
Nichols’s allegedly false statements about his prior criminal
behavior or his prior contact with the government were material.
See, e.g., O’Keefe v. United States, 128 F.3d 885, 893-94 (5th
Cir. 1997) (stating that a conviction obtained through the use of
false testimony cannot be overturned unless the allegedly false
statements were material). Because no reasonable jurist could
debate the district court’s conclusions, no COA should issue on
Hall’s claim of prosecutorial misconduct. Additionally, because
Hall has failed to raise any contested fact issues about the
alleged prosecutorial misconduct, no reasonable jurist could
debate the district court’s decision not to provide an
evidentiary hearing to address this issue, and Hall is not
entitled to a COA based on the district court’s limitation on the
evidentiary hearing.
5. Hall’s Selective Prosecution Claim
Hall also argues that a COA should issue because reasonable
jurists could conclude the district court erred in denying Hall’s
selective prosecution claim. In denying Hall’s § 2255 motion,
the district court found that Hall’s statistics fell short of
31
establishing a prima facie selective prosecution case under the
standard set forth in United States v. Armstrong, 517 U.S. 456
(1996). Armstrong requires a defendant such as Hall to show that
federal prosecutorial policy had both a discriminatory effect and
a discriminatory intent; in this matter, as the district court
and the government both point out, Hall has not provided any
direct evidence of discriminatory intent. Furthermore, the
district court noted that Hall’s statistical evidence is similar
to evidence rejected by this court in the past. Dist. Ct. Op. at
86-87 (citing, inter alia, United States v. Jones, 287 F.3d 325,
333-35 (5th Cir. 2002); United States v. Webster, 162 F.3d 308,
333-35 (5th Cir. 1999)). Because no reasonable jurist could
debate the district court’s conclusions, no COA should issue on
this claim. Additionally, because Hall has failed to raise any
contested fact issues about the alleged selective prosecution, no
reasonable jurist could debate the district court’s decision not
to provide an evidentiary hearing to address this issue, and Hall
is not entitled to a COA based on the district court’s limitation
on the evidentiary hearing.
B. Hall’s Procedural Claims
In addition to the substantive and procedural claims
considered above, Hall has raised two other procedural claims in
32
this application for a COA.11 First, Hall argues that a COA is
appropriate because reasonable jurists could debate the district
court’s blanket denial of discovery. Second, Hall argues that
the district court’s denial of Hall’s request for funds to
develop evidence merits a COA. In explaining why none of Hall’s
substantive claims merits a COA, we have also explained why the
district court’s decision to limit the evidentiary hearing does
not merit a COA. Similarly, because Hall has not raised any
contested fact issues that might entitle him to relief, no
reasonable jurist could debate the district court’s decisions to
deny his motions for discovery.
We now turn to Hall’s final remaining claim, that a COA
should issue because the district court denied him “reasonably
necessary funds” to develop supporting evidence. In responding
to Hall’s denial of funds claim, the government observes that
Hall has wholly failed to identify any specific needs for
additional post-conviction funded investigation. Moreover, as
the government also observes, despite this alleged lack of
sufficient funding, Hall has provided several expert declarations
and evaluations related to his ineffective assistance of counsel
claim. In the past, “this court has held that a COA is not
11
In his application for a COA, Hall also argued that this
case should be reassigned if a remand was necessary in order to
foreclose any claim of waiver. Because we have denied his
application for a COA without remanding any issue to the district
court, this claim is mooted.
33
necessary to appeal the denial of funds for expert assistance,”
reviewing such claims directly for abuse of discretion. Smith,
422 F.3d at 288 (citing Hill v. Johnson, 210 F.3d 481, 487 n.3
(5th Cir. 2000)).
Most of our past holdings, however, relied on the text of 21
U.S.C. § 848(q)(4)(B), which was recently repealed by the USA
Patriot Improvement and Authorization Act of 2005, Pub. L. No.
109-177, Title II, §§ 221(4), 222(c), 120 Stat. 192, 231-32
(2006). See Smith, 422 F.3d at 287-88 (relying upon the text of
21 U.S.C. § 848(q)(4)(B)); Hill, 210 F.3d at 487 n.3 (stating
that “[a] COA is not required for appeals under § 848(q)(4)(B)”);
cf. Jackson v. Dretke, No. 05-70014, 2006 WL 1308063, at *10 (5th
Cir. May 11, 2006) (citing Hill and Smith, without citing any
statutory provision, and stating that a “COA is not required to
appeal the denial of funds for expert assistance”). Moreover,
the government’s brief, which predates the enactment of the USA
Patriot Improvement and Authorization Act of 2005, does not
request direct review and the abuse of discretion standard, but
instead simply claims that Hall’s claim for a COA based on
insufficient funding lacks all merit. In any event, because Hall
has not pointed to any specific needs or limitations caused by
the alleged lack of funds, his funding claim fails whether it is
considered as a claim for a COA or a claim on direct review. No
reasonable jurist could debate the district court’s funding
decisions, and therefore the district court’s decision to deny
34
Hall’s overbroad funding requests could not have been an abuse of
discretion.
III. CONCLUSION
For the reasons discussed above, Hall’s application for a
COA is DENIED.
35