Robison v. Johnson , 151 F.3d 256 ( 1998 )

Revised August 28, 1998
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 97-10240
____________
LARRY KEITH ROBISON,
Appellant,
versus
GARY JOHNSON, Director, Texas Dept. of
Criminal Justice, Institutional Division,
Respondent.
Appeal from the United States District Court
For the Northern District of Texas
August 13, 1998
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Larry Keith Robison was sentenced to death after being
convicted of capital murder in Texas state court. Robison filed a
petition for habeas corpus relief in federal district court. The
district court denied Robison’s petition and his subsequent request
for Certificate of Appealability (“COA”). Robison now requests a
COA on eight separate issues he raised below. We deny COA with
regard to all but his Penry1 claim, with regard to which we grant
COA but affirm the district court’s dismissal on the merits.
I
In 1983, Larry Keith Robison stood trial for intentionally
killing Bruce Gardner in the course of committing robbery, in
violation of Tex. Penal Code § 19.03(a)(2). Robison pursued an
insanity defense, presenting evidence that he was a paranoid
schizophrenic, but the jury returned a verdict of guilty. On
direct appeal, the Texas Court of Criminal Appeals reversed
Robison’s conviction, holding that the trial court had abused its
discretion by improperly limiting defense counsel’s voir dire
questioning regarding potential bias towards the insanity defense,
in violation of Article I, § 10 of the Texas Constitution.
Robinson v. Texas, 720 S.W.2d 808 (Tex. Crim. App. 1986).
In 1987, Robison stood trial again on the same charge, relying
as before on a defense of insanity. The jury returned a verdict of
guilty and then, during the sentencing phase that followed,
answered affirmatively to the two special issues set forth in
article 37.071 of the Texas Code of Criminal Procedure. The trial
court accordingly sentenced Robison to death by lethal injection.
On direct appeal, the Texas Court of Criminal Appeals affirmed
Robison’s conviction and sentence. Robison v. Texas, 888 S.W.2d
1
Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L.
Ed. 2d 256 (1989).
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473 (Tex. Crim. App. 1994)(en banc). After Robison’s application
for habeas corpus relief in state court was denied, Robison filed
the instant habeas corpus petition in district court. The district
court denied Robison’s petition without an evidentiary hearing and
later denied his request for COA on each issue raised here.
II
Robison seeks a COA from this court on each of the following
issues: (1) Whether Robison received ineffective assistance of
counsel in violation of the Sixth Amendment because his attorney
failed to keep a psychiatrist’s report from the jury; (2) Whether
Robison received ineffective assistance of counsel because his
attorney failed to present evidence of Robison’s thought process
during the commission of the offense; (3) Whether Robison received
ineffective assistance of counsel because his attorney advised
Robison not to testify; (4) Whether Robison received ineffective
assistance of counsel and was denied his constitutional right to
counsel based on his attorney’s failure to follow Robison’s written
instructions as to how to conduct his defense; (5) Whether the
Texas “special issues” scheme for determining when to impose a
sentence of death violates the Eighth and Fourteenth Amendments to
the U.S. Constitution as applied to Robison because the special
issues did not allow the jury to consider Robison’s mental illness
as a mitigating factor (“Penry claim”); (6) Whether Robison’s claim
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of newly discovered evidence states a ground for federal habeas
relief; (7) Whether Texas Code of Criminal Procedure article 46.03
§ 1(e), which mandates that jurors not be informed of the
consequences of a verdict of not guilty by reason of insanity,
deprived Robison of his right to due process; and (8) Whether the
district court erred in denying Robison’s motion for an evidentiary
hearing.
“A [COA] may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Specifically, the applicant must demonstrate
that the issue on which he seeks a COA is “debatable among jurists
of reason.” Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert.
denied, ___ U.S. ___, 118 S. Ct. 399, 139 L. Ed. 2d 312 (1997). In
determining whether to grant a COA, “[w]e resolve doubts . . . in
favor of the petitioner, and we may properly consider the severity
of the penalty in making this determination.” Id. (citations
omitted). With these standards in mind, we consider in turn each
of the issues raised by Robison.2
2
Before addressing these issues, we briefly dispose of
Robison’s contention that the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) does not apply to his case. Following the
Supreme Court’s decision in Lindh v. Murphy, we requested
supplemental briefing on the issue of whether AEDPA applied to
Robison’s habeas claim. See Lindh v. Murphy, ___U.S.___, 117 S.
Ct. 2059, 138 L. Ed. 2d 481 (1997) (holding that AEDPA applies only
to cases filed after the effective date of April 24, 1996).
Robison argues that the “filing date” referred to by Lindh should
be interpreted to mean the date of conviction. The state, on the
other hand, argues that the appropriate filing date should be the
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A
Robison contends that his trial attorney rendered ineffective
assistance of counsel by giving the report of a psychiatrist, Dr.
Buckholtz, to his testifying expert, Dr. Price, thereby allowing
the report to be discovered and then used by the state in cross-
examination. After spending several hours with Robison over the
course of two visits, Dr. Buckholtz rendered an opinion that
Robison was sane at the time he committed the murders and prepared
a detailed, written report summarizing his conversations with
Robison and disclosing his ultimate opinion. Robison contends that
his counsel’s performance was deficient because he allowed this
damaging report to be discovered by the state and used against him
in front of the jury. The state habeas court made the following
findings of fact related to this issue:
(1) At his first trial in 1983, [Robison] was
represented by J.R. Molina and Charles Roach.
In preparation for [Robison]’s first trial and
just seven months after the crimes, counsel
employed C.D. Buckholtz, M.D., to conduct a
mental evaluation of [Robison].
(2) Dr. Buckholtz found that [Robison] was not
insane during the commission of the crimes and
date on which the defendant filed the particular federal habeas
petition in question. Following our request for supplemental
briefing, we resolved this issue in favor of the state, holding
that AEDPA applies to habeas petitions filed in federal district
court after AEDPA’s effective date. See United States v. Carter,
117 F.3d 262 (5th Cir. 1997); United States v. DeLario, 120 F.3d
580 (5th Cir. 1997). Because Robison filed this federal habeas
petition in the Northern District of Texas on December 12, 1996,
several months after AEDPA’s effective date of April 24, 1996, we
will apply AEDPA standards to his habeas claim.
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counsel elected not to present his testimony
at the 1983 trial.
(3) [Robison] was represented by different
counsel, David Bays and Sherry Hill (now
presiding Judge of County Criminal Court
Number One of Tarrant County), at his second
trial nearly five years after the commission
of the crimes. In preparation for [Robison]’s
second trial, his mother, Lois Robison,
retained Randall Price, Ph.D., to evaluate
[Robison].
(4) Along with other materials, [Robison]’s new
counsel gave Buckholtz’s report to Price.
Price testified at the 1987 trial, and on
cross-examination, the State reviewed Price’s
materials, including Buckholtz’s report. The
State subsequently cross-examined Price about
the report and mentioned it during argument.
The jury did not otherwise see the report.
(5) While, at their request, the jury received
portions of Price’s testimony on cross-
examination during deliberations, it also
received at its request portions of the
defense’s cross-examination of the State’s
psychiatrist Dr. Griffith.
(6) Counsel provided Buckholtz’s report to Price
in order that Price should have before him all
available information in making his evaluation
of [Robison] and to deflect any criticism from
the State on cross-examination.
(7) The prosecutor at [Robison]’s second trial,
Greg Pipes, reviews the jail and penitentiary
records of an accused in a major trial.
Tarrant County Jail records reflect that Dr.
Buckholtz visited [Robison] on May 17, 1983.
(8) Price testified that the totality of
[Robison]’s medical history was critical in
evaluating his mental state.
(9) Notwithstanding the trial court’s express
consent to [Robison] raising issues
independently of his counsel, at no time
during trial did [Robison] assert any
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privilege to prevent disclosure of Buckholtz’s
report, nor did he voice any objection to the
trial court. Moreover, in a letter [Robison]
submitted with his final affidavit in this
writ proceeding, he gave written instructions
to his counsel expressing a desire to be
forthright with the jury and he deferred to
counsel on matters of strategy.
Robison does not challenge these findings of fact, and we presume
them to be correct. See 28 U.S.C. § 2254(e). The state habeas
court concluded as a matter of law that “[c]ounsel’s challenged
actions are presumptively within the scope of sound trial strategy”
and that “[g]iven [Robison]’s instructions to counsel and his
silence at trial, counsel’s action of providing Buckholtz’s report
to Price was justifiable as sound trial strategy.”
To succeed on an ineffective assistance of counsel claim,
Robison must show that (1) his counsel’s performance was
constitutionally deficient and (2) his counsel’s ineffectiveness
resulted in actual prejudice. See Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To
satisfy the first prong of the Strickland test, the petitioner must
show that his “counsel’s representation fell below an objective
standard of reasonableness.” Id. Moreover, petitioner must
“overcome the strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,”
Williams v. Cain, 125 F.3d 269, 276 (5th Cir. 1997) (internal
quotations and citation omitted), and this presumption of adequacy
includes making “[e]very effort . . . to eliminate the distorting
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effects of hindsight” and to assume “that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’”
Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988) (quoting
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The second
prong, prejudice, “requires a showing that counsel’s errors
deprived the defendant of a fair trial.” See Strickland, 466 U.S.
at 687, 104 S. Ct. at 2064.
Robison argues that his counsel’s performance was
constitutionally defective because he essentially handed over this
confidential, damaging report to the state. The state disagrees,
contending that counsel exercised sound trial strategy in providing
Price with Buckholtz’s report to aid Price in his evaluation of
Robison and to protect him on cross-examination.
The state’s position is supported by the state habeas court’s
findings of fact that Robison’s counsel showed the report to Price
to ensure that Price had “all available information” and to aid in
“deflecting criticism from the state on cross-examination.” We
recognize that Buckholtz’s report contained certain damaging
passages and an opinion contrary to defense’s position. However,
given the state habeas court’s factual findings, we conclude that
Robison has failed to overcome the strong presumption that his
counsel’s decision to provide Buckholtz’s report to Price
constituted sound trial strategy. See Strickland, 466 U.S. at 689,
104 S. Ct. at 2065. We therefore hold that Robison has not made a
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substantial showing of the denial of a constitutional right with
regard to this issue.
B
Robison next contends that his counsel was ineffective in
failing to present evidence of his thought process at the guilt-
innocence stage of trial by either introducing his autobiography,
entitled “The Making of a Schizophrenic,” or, assuming the
autobiography was inadmissible, developing and presenting that
thought process through his expert, Dr. Price. The autobiography
is Robison’s 31-page account of his thoughts leading up to and
including the time of the murders. The state habeas court made the
following findings of fact with regard to the autobiography:
(10) . . . At the punishment stage of his trial, in
order to evade cross-examination, [Robison]
elected not to testify, but he desired to
introduce the document into evidence.
(11) After a conference with the prosecution,
defense counsel advised [Robison] that the
State would not acquiesce to the admission of
the document unless [Robison] took the stand.
[Robison] then requested the document be
introduced into the record for purposes of
review, which the trial court permitted. . .
.
The court concluded that the autobiography was inadmissible as
evidence and, alternatively, that counsel could have omitted the
autobiography as a matter of trial strategy.
Applying the two-prong Strickland test to this claim, we first
address counsel’s failure to introduce the autobiography into
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evidence. The state court determined that the autobiography was
inadmissible, and we do not question that determination. See
Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480, 116 L.
Ed. 2d 385 (1991) (“[I]t is not the province of a federal habeas
court to reexamine state court determinations on state-law
questions.”). This essentially forecloses Robison’s claim under
Strickland that his counsel performed deficiently in failing to
introduce inadmissible evidence. Cf. Murray v. Maggio, 736 F.2d
279, 283 (5th Cir. 1984) (“Counsel is not required to engage in the
filing of futile motions.”).
We also conclude that Robison has failed to show that his
counsel was deficient in developing his thought process through Dr.
Price. First, we note that to the extent that it was relevant,
Robison’s counsel did, in fact, elicit testimony regarding how
Robison’s “thought process” supported a diagnosis of paranoid
schizophrenia. Dr. Price explained to the jury that Robison
suffered from an “underlying fixed delusional system,” which
manifested itself in beliefs such as the following:
He believed that . . . after he killed the first person,
that the clock in the))it was in the bathroom, I believe,
a digital clock, he said that it flipped over to where it
was zeros, and then it started acting like it was a stop
clock, and he thought that was a message that he was
supposed to start trying to free other souls.
Robison’s counsel went on to elicit from Dr. Price testimony as to
why this particular episode demonstrated the type of “underlying
fixed delusional system” typical of paranoid schizophrenics:
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I said to [Robison] . . . “Well, but, you know
clocks don’t do that.” And he said, “Well, this one
really did that.” And I said, “Well, don’t you think
that was something that you thought it did?” And he
said, “No, that’s what it did.”
So, there was still underlying))if you asked enough
questions and spent enough time, there was still an
underlying symptomology or a picture there of chronic
paranoid schizophrenia.
Furthermore, in light of the contents of the autobiography, we
cannot conclude that counsel employed unsound trial strategy in not
having Dr. Price extensively quote from or otherwise refer to the
document. Robison appears to allege that had the jury known more
about his “thoughts” during the murders, they might have been more
convinced that he was “crazy.” Having reviewed the autobiography,
however, we conclude that reasonable lawyers may well disagree
about whether the jury would in fact have reacted as Robison
theorizes or would instead have reached the opposite conclusion.
Because Robison’s argument fails the first prong of
Strickland, Robison has failed to make a substantial showing that
he was deprived of constitutionally effective counsel in this
instance.
C
Robison argues that trial counsel rendered ineffective
assistance by advising him not to testify at the guilt-innocence
stage of the trial. In response, the state contends that counsel’s
advice not to testify was well within the bounds of reasonable
professional assistance. We evaluate this claim of ineffective
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assistance under the two-prong standard of Strickland, keeping in
mind that “the decision whether to put a Defendant on the stand is
a ‘judgment call’ which should not easily be condemned with the
benefit of hindsight.” United States v. Garcia, 762 F.2d 1222,
1226 (5th Cir. 1985).
The state habeas court found that Robison’s counsel “strongly
advised [Robison] against testifying because of the risk that he
might adversely expose himself before the jury on cross-
examination.” The court also made the following findings:
(16) Counsel did not deny [Robison] the opportunity
to testify at the guilt/innocence stage of
trial. [Robison] voluntarily gave up his
right to testify in order to avoid cross-
examination. . . .
(29) [Robison] realized during trial that counsel
could not prevent him from testifying and
[Robison] has failed to complain about any
inability to testify in the previous nine
years; thus, counsel did not deny [Robison]
the right to testify.
The state habeas court concluded that “[p]roperly, counsel strongly
advised [Robison] against testifying.”
Robison challenges findings (16) and (29) as not supported by
the record. Specifically, he argues that the discussion on the
record about his desire to testify took place at the punishment
stage of trial and that it was not until the punishment stage that
counsel overbore his will and persuaded him not to testify.
Robison contends that the soundness of trial counsel’s strategy was
questionable considering the nature of the defense))insanity))and
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his desire to testify. Although he concedes that the decision was
partially one of strategy, he argues that the decision ultimately
should rest with the accused and not his lawyer.
These objections do not provide the type of clear and
convincing evidence necessary to rebut the presumed correctness of
the state habeas court’s factual finding that Robison voluntarily
relinquished his right to testify at the guilt-innocence stage.3
We therefore conclude that Robison has not shown that his trial
counsel performed deficiently in advising and persuading Robison
not to testify. Moreover, even with the benefit of hindsight, we
find that counsel’s strong recommendation against Robison’s
testifying represented reasonable trial strategy. See Hollenbeck
v. Estelle, 672 F.2d 451, 454 (5th Cir. 1982) (holding that it was
not unreasonable trial strategy for counsel to advise defendant not
to testify as to self-defense where defendant “might do more harm
3
The trial record reveals that during the punishment
phase, Robison’s counsel questioned him about his desire to
testify. During that exchange, Robison acknowledged that counsel
had warned him that the prosecutor “would try to make him angry and
look real bad in front of the jury.” Robison further admitted that
counsel had spoken to him many times about testifying and had
consistently and strongly recommended against it because of the
anticipated, intense cross-examination. Counsel then asked him,
“Taking all of that into consideration, I can’t keep you off the
witness stand, and you know that?” Robison answered, “Yes.” When
counsel specifically asked Robison whether he wanted to testify,
Robison said that he wanted to have his autobiography introduced
into evidence but did not want to be subjected to cross-
examination. The state refused that request, however, so Robison
asked that the autobiography be entered into the record for
purposes of appellate review, which the court allowed.
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than good by attempting to explain how six shots were fired in
self-defense”). For these reasons, we hold that Robison has failed
to make a substantial showing of the denial of his constitutional
right to effective assistance of counsel.
D
Robison contends that his trial counsel’s failure to follow
his explicit instructions, as detailed in a letter he wrote to
counsel, constituted constitutionally ineffective assistance and
violated his Sixth Amendment right to counsel. In response, the
state maintains that these claims are procedurally barred and, in
any event, meritless.
Robison presented this claim in a supplemental habeas petition
to the state habeas court. Relying on Texas Code of Criminal
Procedure article 11.071 §§ 4(b) and (f), the state court found
that Robison’s supplemental petition was untimely filed and that
Robison had failed to demonstrate good cause to excuse the delay.
On review of Robison’s federal habeas petition, the district court
held that this claim was procedurally barred.
When the district court dismisses a petition on procedural,
nonconstitutional grounds, we employ a two-step COA process. See
Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997). First, we must
determine if the applicant has made a credible showing that his
claim is not procedurally barred. See id. If the applicant meets
that requirement, we then determine if he “has ‘made a substantial
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showing of the denial of a constitutional right’” with respect to
the underlying claim. Id. (quoting 28 U.S.C. § 2253(c)(2)).
The state argues that because the state court unambiguously
based its denial of relief on a state procedural default and
Robison is unable to show cause or prejudice for this default, the
district court correctly held that this claim was procedurally
barred. See Meanes v. Johnson, 138 F.3d 1007, 1010 (5th Cir. 1998)
(“It is well settled that federal habeas review of a claim is
procedurally barred if the last state court to consider the claim
expressly and unambiguously based its denial of relief on a state
procedural default.”); id. at 1011 (“Where a state court has
explicitly relied on a procedural bar, a state prisoner normally
may not obtain federal habeas relief absent a showing of cause for
the default and actual prejudice.”). Robison, however, maintains
that he can show cause and prejudice.4 In order to show cause,
Robison must demonstrate that some objective factor external to his
defense prevented him from raising this claim. See United States
v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996). One such objective
4
Robison does not contend that the state procedural rule
in this case has not been strictly or regularly applied by the
state. See Stokes v. Anderson, 123 F.3d 858, 859-60 (5th Cir.
1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1091, 140 L. Ed. 2d
147 (1998) (explaining that to establish that a state procedural
bar is not “adequate,” the “petitioner bears the burden of showing
that the state did not strictly or regularly follow [the]
procedural bar around the time of his direct appeal”).
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factor is “a showing that the factual or legal basis for the claim
was not reasonably available to counsel at the prior occasion.”
Id.
Robison claims to have demonstrated cause by presenting
evidence that his current counsel was prevented from obtaining
access to the trial file that included Robison’s letter to his
trial counsel until after the state limitations period had run.
Even assuming arguendo that Robison’s excuse is true, however,
Robison has not sufficiently demonstrated cause for the procedural
default. Robison was obviously aware of the letter and of the
instructions he had given his counsel therein. It was Robison’s
instructions, however communicated, and not the letter itself, that
form the “factual basis of the claim.” See Guerra, 94 F.3d at 993.
Robison thus knew of the factual basis of the claim before his
current counsel’s discovery of the letter. The fact that Robison
may have been unable to produce the best evidence of this
communication until later does not constitute cause for the delay
in bringing this claim before the court. We thus conclude that
Robison has failed to make a credible showing that his claim is not
procedurally barred.
E
Relying on Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934,
106 L. Ed. 2d 256 (1989), Robison contends that his sentence of
death was rendered in violation of the Eighth and Fourteenth
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Amendments, as applied to him, because the special issues provided
in Texas Code of Criminal Procedure article 37.071 did not provide
an adequate vehicle for the jury to take into account Robison’s
mitigating evidence of mental illness. Pursuant to article 37.071,
the trial court asked the jury the two following statutorily
mandated special issues at sentencing:
(1) Was the conduct of the Defendant, Larry Keith
Robison, that caused the death of Bruce
Gardner, committed deliberately and with the
reasonable expectation that the death of the
deceased or another would result?
(2) Is there a probability that the Defendant,
Larry Keith Robison, would commit criminal
acts of violence that would constitute a
continuing threat to society?
The trial court also gave the following instruction:
You are further instructed that in determining each
of these Special Issues, you may take into consideration
all of the evidence submitted to you in the full trial of
this case, that is, all of the evidence submitted to you
in the first part of this case wherein you were called
upon to determine the guilt or innocence of the
Defendant, and all of the evidence, if any, admitted
before you in the second part of the trial wherein you
are called upon to determine the answers to the Special
Issues hereby submitted to you.
Upon receiving a unanimous, affirmative response to each of the two
questions, the judge assessed a sentence of death.
In Penry, the Supreme Court set aside Penry’s capital
sentence, holding that although Penry’s evidence of mental
retardation and childhood abuse was placed before the jury at
sentencing, the sentencer had no reliable means of giving
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mitigating effect to that evidence. Penry, 492 U.S. at 328, 109 S.
Ct. at 2952. “Penry’s application has since been limited to that
narrow class of situations in which the petitioner’s mitigating
evidence was placed beyond the jury’s effective reach.” Lucas v.
Johnson, 132 F.3d 1069, 1082 (5th Cir. 1998), petition for cert.
filed, (U.S. Jun. 8, 1998) (No. 97-9463); see, e.g., Johnson v.
Texas, 509 U.S. 350, 369-70, 113 S. Ct. 2658, 2670, 125 L. Ed. 2d
290 (1993) (holding that the Texas special issues permitted jurors
to consider mitigating evidence of youth in evaluating petitioner’s
future dangerousness); Graham v. Collins, 506 U.S. 461, 475-76, 113
S. Ct. 892, 902, 122 L. Ed. 2d 260 (1993) (holding that the Texas
special issues permitted jurors to consider mitigating evidence of
youth, family background, and positive character traits because the
evidence “had mitigating relevance to the second special issue
concerning his likely future dangerousness”). The question
presented by Robison’s claim is, therefore, “whether the mitigating
evidence [he] presented was within the effective reach of the jury
under either of the interrogatories considered by the jury.” Id.;
see also Lackey v. Scott, 28 F.3d 486, 489 (5th Cir. 1994) (“A
state’s refusal to give additional instructions does not amount to
constitutional error unless there is a ‘reasonable likelihood that
the jury applied the challenged instruction in a way that prevents
the consideration of constitutionally relevant mitigating
evidence.’”) (quoting Johnson, 509 U.S. at 367, 113 S. Ct. at 2669
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(1993)).
Robison raised this claim in his direct appeal to the Texas
Court of Criminal Appeals, claiming, as he does here, that “the
jurors were not able to consider the mitigating effect of his
mental disease or defect during the punishment phase of the
trial.”5 Robison, 888 S.W.2d at 486. Consistent with our case
law, the court explained that to successfully raise a Penry claim,
Robison had to show that he had presented mitigating evidence that
was “beyond the effective reach of the sentencer.” Id. at 487. In
setting forth the requirements for making such a showing, the court
emphasized that it is not the labels imposed by society that are
mitigating, but rather the “specifics of the evidence, presented at
trial, and how that evidence affected the personal moral
culpability of the defendant.” Id. The court distinguished Penry
in this respect, explaining that “it was not that [Penry] was
‘mentally retarded’ and abused as a child,” but rather the fact
that “[a] psychiatrist testified that Penry was unable to learn
from his mistakes . . . . It is this testimony, and not the label
of ‘mental retardation,’ that society believes is mitigating.” Id.
at 488.
The court reviewed in detail the evidence of mental illness
5
The Supreme Court decided Penry after Robison’s
conviction but before his direct appeal. Thus, the Texas Court of
Criminal Appeals imposed no procedural bar and instead reached the
merits of Robison’s Penry claim.
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that Robison presented at trial. The court noted that Robison’s
expert witness, Dr. Price, testified on behalf of Robison about his
insanity defense, speaking extensively about the nature of
schizophrenia and describing the typical behavior of a person
suffering from schizophrenia. The court further noted that
evidence at trial indicated that several of Robison’s relatives had
been diagnosed as schizophrenics and that there may be a hereditary
link to the disease. The court also indicated that much evidence
of Robison’s history of drug and alcohol abuse was admitted,
including accounts of Robison’s hospitalization for drug use.
Price testified that certain drugs, such as LSD and amphetamines,
tend to cause a person to exhibit symptoms that appear
schizophrenic, and the state’s witness, Dr. Griffith, testified
that Robison was faking mental illness, had engaged in extensive
drug use, and that Robison’s behavior was attributable to drug-
induced psychosis, which exhibits similar symptoms to
schizophrenia. Finally, evidence at trial indicated that
schizophrenia was episodic and could become manifest at certain
times and then go into remission at others. Both Price and
Griffith testified that schizophrenia is treatable. After
recounting all of this evidence, the court concluded that it was
“insufficient to raise a ‘Penry’ issue,” explaining that even
“assuming arguendo that [Robison] was schizophrenic, there was no
evidence that [Robison’s] mental disease decrease[d] his personal
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moral culpability.” Id. at 488-89. The court therefore overruled
Robison’s point of error that the special issues failed to provide
an adequate mechanism for the jury to consider and give effect to
his mitigating evidence.
With respect to the first special issue, the Supreme Court
explained in Penry that a rational juror could have concluded based
on Penry’s confession, that Penry acted deliberately in killing his
victim. However, because Penry was mentally retarded, and “thus
less able than a normal adult to control his impulses or to
evaluate the consequences of his conduct, . . . that same juror
could also conclude that Penry was less morally culpable than
defendants who have no such excuse, but who acted ‘deliberately’ as
that term is commonly understood.” Id. at 322-23, 109 S. Ct. at
2949 (internal quotations and citations omitted). The Court
therefore concluded that it could not be sure that the jury was
able to give effect to Penry’s mitigating evidence in answering the
first special issue, reasoning that a juror could believe that
Penry’s mental retardation diminished his moral culpability but
also believe that he committed the crime deliberately. Id. at 323,
109 S. Ct. at 2949. Turning to the second special issue, the Court
concluded that Penry’s evidence of mental retardation and resultant
inability to learn from his mistakes was relevant only as an
aggravating factor because it suggested that Penry would be a
continuing threat to society and therefore would compel the jury to
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answer “yes” to the second special issue. According to the Court,
Penry’s mental retardation and history of abuse was thus a “two-
edged sword: it may diminish his blameworthiness for his crime
even as it indicates there is a probability he will be dangerous in
the future.” Id. at 324, 109 S. Ct. at 2949. Therefore, the Court
concluded that the second special issue also did not provide a
vehicle for the jury to give mitigating effect to Penry’s mental
retardation.
Robison contends that the reasoning of Penry applies equally
to him. He argues that the first special issue did not allow the
jury to give mitigating effect to his mental illness.
Specifically, he claims that not knowing one’s conduct is wrong and
not being able to conform one’s conduct to the requirements of the
law do not disable one from acting deliberately. Thus, he
continues, the jury could have concluded that he acted deliberately
but at the same time concluded that he could not conform his
conduct to the law. With respect to the second issue, he contends
that despite the treatable nature of schizophrenia, the jury could
have nonetheless found him to be more dangerous, not less so
because treatability does not give assurance of a lasting cure.
Given the similarities between Robison’s evidence of mental
illness and the evidence discussed in Penry, we find that Robison
has made a “substantial showing of the denial of a constitutional
right” on this issue, and we accordingly grant COA on it. 28
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U.S.C. § 2253(c)(2). We therefore review this claim under the
standard set forth in 28 U.S.C. § 2254(d): we will grant Robison’s
petition for writ of habeas corpus only if the state court
adjudication of the claim “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court.” An application
of federal law is “unreasonable” only if it is “so clearly
incorrect that it would not be debatable among reasonable jurists.”
Nobles v. Johnson, 127 F.3d 409, 418 (5th Cir. 1997), cert. denied,
118 S. Ct. 1845, 140 L. Ed. 2d 1094 (1998) (internal quotations and
citation omitted). In other words, “an application of law to facts
is unreasonable only when it can be said that reasonable jurists
considering the question would be of one view that the state court
ruling was incorrect.” Id. at 416 (internal quotations and
citation omitted).
Although we question whether Robison could show that his
mitigating evidence was beyond the effective reach of the jury with
respect to the first special issue, see Lucas, 132 F.3d at 1082
(holding that the sentencer could effectively consider the
mitigating aspects of Lucas’s evidence of mental illness))including
expert testimony that Lucas was psychotic and suffered from
schizophrenia))under the first special issue), we need not decide
that issue here because we can affirm the district court’s decision
with respect to the second special issue. See Davis v. Scott, 51
-23-
F.3d 457, 464 (5th Cir. 1995) (concluding that it “need not
consider whether the second special issue provided another,
separate, adequate means” for the jury to consider Davis’s
mitigating evidence because it had already determined that the jury
had an adequate means through the first special issue). In
relation to the second issue, the state distinguishes Penry’s
mental retardation from Robison’s mental illness, arguing that the
former is constant while schizophrenia is treatable and capable of
going into remission. Furthermore, the state points out that
defense counsel itself argued during the punishment phase that for
precisely those reasons, the jury should answer “no” to the second
question: there was no probability of future dangerousness because
Robison had improved, was))according to his own expert))in
remission, would be in a controlled environment for life, and
therefore could continue to be in remission. Robison responds by
arguing that the treatable nature of his mental illness does not
assure a long-lasting cure and, therefore, the jury could
nonetheless have found Robison to be more dangerous, not less.
Based on the evidence Robison presented at trial, we conclude
that the jury could give mitigating effect to Robison’s evidence of
mental illness in answering the second special issue, which
concerned Robison’s future dangerousness. See Davis, 51 F.3d at
464 (explaining that “a Penry claim does not arise when
constitutionally relevant evidence ‘can be given mitigating effect
-24-
in some way under the Texas special issues’”) (quoting Motley v.
Collins, 18 F.3d 1223, 1234 (5th Cir. 1994)) (emphasis in
original). In Lucas, experts testified that Lucas was “psychotic
and suffered from schizophrenia.” Lucas, 132 F.3d at 1082. The
trial testimony also indicated that Lucas “responded well to
antipsychotic drugs like Thorazine and that his particular illness
could be treated in a controlled environment.” Id. Distinguishing
Penry, we held that “[t]his prospect of medical treatment placed
the evidence of his mental illness and abusive childhood within
‘the effective reach of the sentencer’ as a potential mitigating
factor with respect to the second issue” because “the jury could
have considered whether, in an institutional setting, the
probability that Lucas posed as a future danger to society was not
so great as to merit imposition of the death sentence.” Id.; see
also Davis, 51 F.3d at 464 (concluding that jury could give
mitigating effect to Davis’s evidence under the second special
issue because the evidence did not demonstrate “that he was unable
to learn from his mistakes” but did demonstrate that “he responded
positively to a structured environment”). That distinction applies
with equal weight to Robison’s case: both Robison’s expert and the
state’s expert testified that schizophrenia is treatable, and
Robison’s expert testified that he was currently in a state of
remission, which he attributed to being a result of the structure
of prison life. See Graham, 506 U.S. at 475, 113 S. Ct. at 902
-25-
(holding that “Graham’s evidence))unlike Penry’s))had mitigating
relevance to the second special issue concerning his likely future
dangerousness” because his evidence “quite readily could have
supported a negative answer”) (emphasis in original). We thus hold
that the conclusion of the Texas Court of Criminal Appeals that
Robison’s evidence did not raise a Penry issue was not a “decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court.” 28 U.S.C. § 2254(d). We accordingly affirm the district
court’s dismissal of this claim.
F
Robison claims he has newly discovered evidence supporting his
claim of insanity, and he contends that his execution without
examination of this new evidence would be so fundamentally unfair
as to violate due process under the Fourteenth Amendment. Robison
alleges no other constitutional violation in conjunction with his
claim of newly discovered evidence. He raised this claim in both
his state and federal habeas petitions, and both courts rejected
the claim without an evidentiary hearing.
Robison’s alleged new evidence is that after his conviction
was affirmed on direct appeal, his half-sister was diagnosed as
manic depressive and schizoaffective. Dr. Price, who testified on
Robison’s behalf at the second trial, concluded in an affidavit
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attached to Robison’s state habeas petition that this new
information would “lend very heavy weight in support of [his]
diagnosis.” In addition, Dr. Duckers, an expert subpoenaed to
testify at Robison’s trial but ultimately not called because he
attributed Robison’s psychosis more to drug use than to
schizophrenia, swears in an affidavit that Robison’s new evidence
“would change [his] professional opinion of the cause of Mr.
Robison’s psychosis and [would cause him to] attribute [the
psychosis] more to schizophrenia than drug use.”
The state habeas court found that “in the context of the
jury’s awareness of [Robison’s] own medical history and his
family’s medical history, the fact that [Robison’s] half-sister has
succumbed to a mental health problem years after the commission of
the crimes is of little or no import and does not support a claim
of actual innocence.” In support of this finding, we note that at
trial Robison presented testimony regarding his own mental health
history, which included diagnoses of schizophrenia, as well as
evidence that four people in Robison’s family were diagnosed with
schizophrenia (including a great-grandfather and two uncles). In
addition, Dr. Price testified about the possible genetic basis of
schizophrenia.
We reject Robison’s claim of newly discovered evidence.
Contrary to Robison’s reliance on the often-quoted “actual
innocence” dicta in the Supreme Court case Herrera v. Collins, 506
-27-
U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993),6 we have held
in this circuit that “the existence merely of newly discovered
evidence relevant to the guilt of a state prisoner is not a ground
for relief on federal habeas corpus,” and “the Supreme Court’s
Herrera opinion does not alter this entrenched habeas principle.”7
Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir. 1998). Moreover,
even assuming the application of the “actual innocence” dicta in
Herrera (and assuming additionally that proof of insanity deserves
the same treatment as claims of “actual innocence”), Robison’s
demonstration here that yet another relative suffers from a related
but not identical mental disorder does not rise to the standard of
“truly persuasive.” Robison has failed to make a substantial
6
Robison refers to the following passage in Herrera:
We may assume, for the sake of argument in deciding this
case, that in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial
would render the execution of a defendant
unconstitutional, and warrant federal habeas relief if
there were no state avenue open to process such a claim.
Id. at 417, 113 S. Ct. at 869.
7
We also note that in Robison’s case, “a further bar to
construing Herrera as effecting such a substantial expansion of
federal habeas law is the language ignored by the petitioner that
federal habeas relief would be warranted only ‘if there were no
state avenue open to process such a claim.’” Lucas, 132 F.3d at
1075 (quoting Herrera, 506 U.S. at 417, 113 S. Ct. at 869).
Following the Supreme Court’s Herrera case, Texas began recognizing
“actual innocence” claims. See State ex rel. Holmes v. Court of
Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994) (announcing that it
would begin entertaining postconviction applications for the writ
of habeas corpus alleging actual innocence as an independent ground
for relief).
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showing of the denial of a constitutional right with respect to
this issue.
G
Robison contends that Texas Code of Criminal Procedure article
46.03 § 1(e) violates due process because it prohibits the accused
from informing the jury of the consequences of a not guilty by
reason of insanity (NGI) verdict.8 Robison claims that members of
a venire may have erroneous impressions about the consequences of
such a verdict that should be corrected in order to ensure
fundamental fairness, and more specifically, that in his particular
trial, the state played on these erroneous impressions by implying
that Robison would be released into society after an NGI verdict.9
8
Robison challenges this statute only as it applies to the
particular circumstances of his case; he explicitly states in his
application for COA that he does not challenge the statute
“globally.”
9
Specifically, Robison argues that the state made the
following and other similar statements:
“[O]ur law says that if a person is insane at the exact
time of the offense, then he cannot be held responsible
for his actions.”
If the jury return an NGI verdict, “that would be the end
of the trial. He would be found not guilty by reason of
insanity, and you’d be discharged and return to [your
job].”
“But the law says that if they [the defense] prove it to
you by a preponderance of the evidence, then the law
excuses them for having met that burden of insanity.”
“Our law says . . . that if someone meets our legal
definition of insanity, and if they are insane under our
legal definition, that their conduct is excused under the
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Addressing this issue on direct appeal, the Texas Court of
Criminal Appeals held that the state did not erroneously indicate
that a verdict of NGI would result in Robison’s release into
society.10 Robison v. State, 888 S.W.2d 473, 475-76 (Tex. Crim.
App. 1994). Distinguishing the remarks made by the state in this
case from an explicit declaration that a defendant will go free
following an NGI verdict, the court did not find fault with the
state for “confront[ing] the premise of the insanity defense,
[which is that] a defendant is excused of the criminal
responsibility for his actions and that the jurors’
responsibilities end at that point.”11 Id. at 476.
We conclude that Robison has not made a substantial showing of
the denial of a constitutional right with regard to this issue. As
the Texas Court of Criminal Appeals found, the state did not say
law.”
“Our law says we don’t have temporary insanity, and a
person can’t get off or relieve himself of responsibility
for his acts unless he proves himself legally insane.”
10
The Court of Criminal Appeals also rejected Robison’s
facial challenge to this statute, reasoning that the statute
reflects the policy judgment of the legislature. Robison v. State,
888 S.W.2d 473, 475-76 (Tex. Crim. App. 1994).
11
Specifically declining to address the situation in which
the state does indicate that a defendant would be released into
society upon a finding of NGI, the court did, however, state that
“[a]t that point the trial court would possibly be permitted to
declare a mistrial or instruct the jury that the state is incorrect
as to the law of insanity, but the law precludes any discussion of
the consequences of a finding of not guilty by reason of insanity.”
Id. at 476 n.3.
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that the defendant would go free if the jury rendered a verdict of
NGI and instead said only that the defendant is relieved of
responsibility. See Shannon v. United States, 512 U.S. 573, 587,
114 S. Ct. 2419, 2428, 129 L. Ed. 2d 459 (1994) (holding that
instruction concerning the consequences of an NGI verdict “is not
to be given as a matter of general [federal criminal] practice,”
but “recogniz[ing] that an instruction of some form may be
necessary under certain limited circumstances” such as when “a
witness or prosecutor states in the presence of the jury that a
particular defendant would ‘go free’”). Furthermore, the court
instructed the jury that it should neither “consider nor discuss
the effect of a verdict of not guilty by reason of insanity,” and
this instruction should have sufficiently safeguarded Robison’s due
process rights. See United States v. Levine, 80 F.3d 129 (5th
Cir.), cert. denied, 117 S. Ct. 83, 136 L. ED.2d 40 (1996) (finding
no violation of due process or right to fair trial where the
prejudicial effect of the prosecutor’s statement that “buy[ing]
[Levine’s] insanity defense” would mean that Levine “walk[s] out of
this courtroom a free man,” was minimized by two instructions by
the district court).
H
Lastly, Robison argues that the district court erred in
denying his motion for an evidentiary hearing, which Robison
requested with respect to (1) his newly discovered evidence claim
-31-
(regarding his half-sister’s recent diagnosis) and (2) his claim of
ineffective assistance of counsel based on the failure to develop
Robison’s state of mind through his expert. The district court
denied Robison’s motion for evidentiary hearing on the grounds that
he did not meet the test set forth in 28 U.S.C. § 2254(e)(2), which
provides, in relevant part:
If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim unless the
applicant shows that ))
(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.
Robison contends that any failure to develop the factual basis of
his claim was not attributable to his lack of attempt to do so but
to the state’s denial of a “true” hearing. He argues that the
state denied him such a “true” hearing by not hearing witnesses,
observing their demeanor, or seeing their credibility tested by
cross-examination.
We have stated that “a petitioner cannot be said to have
‘failed to develop’ a factual basis for his claim unless the
-32-
undeveloped record is a result of his own decision or omission.”
McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998). Assuming
arguendo that Robison has cleared this initial hurdle of §
2254(e)(2), he must still show that the district court abused its
discretion in denying the hearing. See id. at 1060 (explaining
that § 2254(e)(2) “specifies the situations where evidentiary
hearings are allowed, not where they are required”) (emphasis in
original); see also id. (stating that the subsequent decision to
hold an evidentiary hearing is “committed to the district court’s
discretion pursuant to Rule 8 of the Rules Governing § 2254
Cases”). Given our resolution of these two claims, see supra Parts
II.B and II.F, which reveals no relevant factual disputes that
would require development in order to assess the claims, we hold
that the district court did not abuse its discretion in denying
Robison’s motion for an evidentiary hearing.
III
For the foregoing reasons, we DENY COA on all issues except
the Penry claim, on which we GRANT COA. With respect to the Penry
claim, we AFFIRM the district court’s dismissal on the merits.
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