Davis v. Johnson

REVISED, November 6, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-20507
_____________________
WILLIAM PRINCE DAVIS,
Petitioner-Appellant,
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
October 21, 1998
Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
KING, Circuit Judge:
William Prince Davis, a Texas death row inmate, requests a
certificate of appealability in order to appeal the district
court’s dismissal of his writ of habeas corpus. In resolving
this appeal, we must decide an issue of first impression for this
circuit, namely, whether the one-year limitations period for the
filing of federal habeas claims by state prisoners is a statute
of limitations subject to equitable tolling or is a
jurisdictional bar. We conclude that the limitations period does
not circumscribe federal jurisdiction, and can be equitably
tolled in appropriate, albeit extraordinary circumstances.
However, because we find that Davis has not made a substantial
showing of the denial of a constitutional right, we deny Davis
leave to appeal on all issues presented for appellate review.
I. FACTS AND PROCEDURAL HISTORY
In September 1978, William Prince Davis (Davis) was tried in
the 209th District Court of Harris County, Texas for a capital
offense, murder occurring during a robbery. The Texas Court of
Criminal Appeals summarized the facts of Davis’s underlying crime
as follows:
On the evening of June 2, 1978, [Davis] appeared at the
door of the office of the Red Wing Ice Cream Company,
just as several of the company drivers were turning in
their day’s receipts. The proprietor, Richard Lang,
aware that something was amiss, began to approach
[Davis]. [Davis] shot Lang once in the lower chest
with a .32 calibre pistol, and then ordered the drivers
up against the wall. He escaped with more than $700
and a shotgun. Lang died. At the time of this offense
[Davis] was twenty-one years old.
Ex parte Davis, 866 S.W.2d 234, 237 (Tex. Crim. App. 1993) (en
banc). The guilt-innocence phase of Davis’s trial lasted only
one day, and on September 18, 1978, the jury found Davis guilty
of capital murder.
During the punishment phase of Davis’s trial, the prosecutor
introduced evidence of Davis’s extensive criminal history. On
September 19, 1978, the jury returned affirmative answers to two
special questions, asked pursuant to the capital sentencing
scheme employed by the State of Texas at the time of Davis’s
trial. In their answers, the jury found that Davis acted
“deliberately” and that he probably would be dangerous in the
2
future.1 On October 2, 1978, the trial court sentenced Davis to
death.
On direct appeal, the Texas Court of Criminal Appeals
affirmed Davis’s conviction and death sentence, see Davis v.
State, 597 S.W.2d 358 (Tex. Crim. App. 1980) (en banc), and the
United States Supreme Court declined to grant a writ of
certiorari, see Davis v. Texas, 449 U.S. 976 (1980).
After failing in his efforts on direct appeal, Davis filed a
state application for a writ of habeas corpus in 1989, which the
Court of Criminal Appeals denied in a one-page unpublished
opinion. Davis then filed a second state application for habeas
relief in 1991, raising essentially the same issues as he does in
this federal petition. Two years later, the 209th District Court
issued findings of fact and conclusions of law and recommended
that habeas relief be denied. The Court of Criminal Appeals then
denied habeas relief. See Ex parte Davis, 866 S.W.2d at 234.
On February 13, 1997, Davis requested an appointment of
counsel because his state habeas counsel had become
incapacitated. Two weeks later, Davis moved for an extension of
1
Specifically, the special issues read:
Issue No. 1: Do you find from the evidence beyond a
reasonable doubt that the conduct of the defendant,
William Prince Davis, that caused the death of the
deceased was committed deliberately and with the
reasonable expectation that the death of the deceased
or another would result?
Issue No. 2: Do you find from the evidence beyond a
reasonable doubt that there is a probability that the
defendant, William Prince Davis, would commit criminal
acts of violence that would constitute a continuing
threat to society?
3
time to file a federal habeas petition. On March 4, the district
court appointed counsel in the federal proceedings and granted
Davis an extension to file his petition until May 26, 1997. On
February 18, 1998, the district court granted a further extension
allowing Davis to file his petition by April 20, 1998.2 On April
6, 1998, the district court granted Davis’s motion to extend his
filing deadline to May 8, 1998. On May 8, Davis filed his
federal habeas petition, raising several ineffective assistance
of counsel claims. Respondent Johnson filed a motion in the
district court to dismiss the petition as time-barred, claiming
that Davis filed his petition after the applicable one-year
statute of limitations had run.
On June 2, 1998, the district court denied Davis habeas
relief on alternative grounds. First, the court found that
Davis’s petition was untimely because it was filed after the
applicable one-year limitations period. It ruled that it was
“without the power to resurrect the petition” after the filing
period had lapsed and that it therefore may have erred by
previously granting Davis extensions of time to file beyond the
statutory period. Davis v. Johnson, 8 F.Supp.2d 897, 900 (S.D.
2
Davis claims that the district court did not notify
appointed counsel of his appointment until February 9, 1998.
This lack of notice, Davis argues, justifies equitably tolling
the applicable limitations period in this case to allow his
habeas petition to proceed. Because we assume without deciding,
infra, that the circumstances of this case justify equitably
tolling the one-year statute of limitations, it is not necessary
for this court to remand for factual findings concerning when
Davis’s attorney received notice of his appointment, and, more
generally, whether equitable tolling would be warranted.
4
Tex. 1998). Second, the district court analyzed the merits of
Davis’s ineffective assistance of counsel claims and found them
to be lacking. Based on these findings, the court dismissed the
habeas petition. The district court also denied Davis a
certificate of appealability (COA) to appeal his denial of habeas
relief to this Court.
II. DISCUSSION
Davis claims that the district court should have equitably
tolled the applicable one-year limitations period rather than
dismiss his petition as time-barred. He also argues that he is
entitled to a COA to appeal claims related to his underlying
state-court conviction based on the Sixth Amendment right to the
effective assistance of counsel. Specifically, Davis argues that
his attorney was ineffective in three situations--first, by
failing to object to prosecutorial statements concerning youth as
a mitigating factor; second, by inadequately defining the term
“deliberate” for the jury; and third, by failing to offer certain
testimony during the punishment phase of the trial. We consider
each issue in turn.
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Davis must obtain a COA in order to appeal the
denial of his habeas petition.3 A COA may only be issued if the
prisoner has made a “substantial showing of the denial of a
3
Because Davis filed his § 2254 petition in May 1998, the
COA requirement of AEDPA applies to his case. See Green v.
Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997).
5
constitutional right.” 28 U.S.C. § 2253(c)(2). “A ‘substantial
showing’ requires the applicant to ‘demonstrate that the issues
are debatable among jurists of reason; that a court could resolve
the issues (in a different manner); or that the questions are
adequate to deserve encouragement to proceed further.’” Drinkard
v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)), cert. denied, 117 S. Ct.
1114 (1997).
Davis’s first contention is that the district court erred by
dismissing his federal habeas claim as barred by the statute of
limitations. “When the district court dismisses a petition on
procedural, nonconstitutional grounds, we employ a two-step COA
process.” Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998)
(reviewing district court dismissal of habeas petition as
procedurally barred); see Murphy v. Johnson, 110 F.3d 10, 11 (5th
Cir. 1997) (reviewing district court dismissal for non-exhaustion
of state-court remedies). First, we must determine if Davis has
made a credible showing that his claim should not have been
dismissed as time-barred. See Robison, 151 F.3d at 263; Murphy,
110 F.3d at 11. If Davis meets that requirement, we can then
decide if his contentions regarding his underlying state court
conviction raise a substantial showing of the denial of a
constitutional right. See Robison, 151 F.3d at 263; Murphy, 110
F.3d at 11.
6
B. Statute of Limitations
Section 101 of AEDPA, incorporated as 28 U.S.C.
§ 2244(d)(1), included a one-year period of limitations within
which state prisoners could file federal habeas corpus
petitions.4 Specifically, § 2244(d) was amended to read:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final
by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation
of the Constitution or laws of the United States
is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due diligence.
(2) The time during which a properly filed application
for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of
limitation under this subsection.
In this case, the Supreme Court denied Davis a writ of certiorari
on direct appeal in 1980, and his last state petition for a writ
of habeas corpus was decided in 1993. Thus, under a literal
reading of § 2244(d), Davis’s right to petition a federal court
for habeas relief terminated years before he filed his petition
4
The addition of a period of limitations for federal habeas
claims altered the habeas landscape significantly; before AEDPA
there was no defined time limit on bringing § 2254 habeas claims.
See Lonchar v. Thomas, 517 U.S. 314, 327 (1996); Brown v.
Angelone, 150 F.3d 370, 371-72 (4th Cir. 1998).
7
in May 1998. However, in United States v. Flores, 135 F.3d 1000,
1006 (5th Cir. 1998), we held that for § 2254 petitions, “one
year, commencing on April 24, 1996, presumptively constitutes a
reasonable time for those prisoners whose convictions had become
final prior to the enactment of the AEDPA to file for relief.”5
We formulated the Flores rule to ensure that federal habeas
claims were not retroactively time-barred before the effective
date of AEDPA. See id. at 1005. Thus, Davis had until April 24,
1997 to petition a federal court for habeas relief. See Flanagan
v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998) (holding that the
limitations period for convictions becoming final before AEDPA’s
effective date ends April 24, 1997); accord Ross v. Artuz, 150
F.3d 97, 103 (2d Cir. 1998).
Davis failed to file his federal habeas claim until May
1998, after the limitations period had run, and the district
court therefore dismissed his petition as time-barred. Davis
argues that the district court failed to consider whether the
AEDPA limitations period should have been equitably tolled, and
that his case presents an appropriate circumstance in which to
equitably toll the statute of limitations to allow his habeas
claim to proceed.
In order to decide the question of whether the AEDPA
limitations period should have been equitably tolled in this
5
Although Flores arose in the context of a § 2255 habeas
claim, and not a § 2254 petition, as is the case here, we noted
in that opinion that the April 24, 1996 finality date applied to
both sections. See Flores, 135 F.3d at 1003 n.7.
8
case, we must first determine whether the period is a statute of
limitations or a jurisdictional bar. If the one-year filing
period in § 2244(d)(1) is a limitation on the jurisdiction of
federal courts, then federal courts lack the power to extend the
period to allow for late adjudication of claims. However, if the
AEDPA period is a statute of limitations, courts can, in
extraordinary circumstances, allow late claims to proceed under
the doctrine of equitable tolling. “The doctrine of equitable
tolling preserves a plaintiff’s claims when strict application of
the statute of limitations would be inequitable.” Lambert v.
United States, 44 F.3d 296, 298 (5th Cir. 1995) (citing Burnett
v. New York Cent. R.R. Co., 380 U.S. 424, 428 (1965)).
Whether AEDPA’s one-year limitations period limits federal
court jurisdiction or is subject to equitable tolling is a
question of first impression for this circuit. See Henderson v.
Johnson, 1 F.Supp.2d 650, 653 (N.D. Tex. 1998). The only circuit
courts to have considered the question have held that the AEDPA
limitations period is not a jurisdictional bar. See Miller v.
New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.
1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.
denied, No. 98-5195, 1998 WL 407280 (Oct. 5, 1998); Calderon v.
United States Dist. Court, 128 F.3d 1283, 1289 (9th Cir. 1997),
cert. denied, 118 S. Ct. 899 (1998); cf. Henderson, 1 F.Supp.2d
at 654 (holding that the limitation is not a jurisdictional bar);
Parker v. Bowersox, 975 F. Supp. 1251, 1252 (W.D. Mo. 1997)
(adopting the Calderon rationale and holding that the AEDPA
9
period is not jurisdictional). We now join our sister circuits
in concluding that AEDPA’s one-year statute of limitations does
not operate as a jurisdictional bar and can, in appropriate
exceptional circumstances, be equitably tolled.
“The objective of a court called upon to interpret a statute
is to ascertain congressional intent and give effect to
legislative will.” Johnson v. American Airlines, Inc., 745 F.2d
988, 992 (5th Cir. 1984) (citing Philbrook v. Glodgett, 421 U.S.
707, 713 (1975)). The clearest indication of congressional
intent is the words of the statute itself. See Hall Fin. Group,
Inc. v. DP Partners, Ltd. Partnership (In re DP Partners Ltd.
Partnership), 106 F.3d 667, 670 (5th Cir.), cert. denied, 118 S.
Ct. 63 (1997). When the language of a statute is unambiguous we
must follow its plain meaning. See Stiles v. GTE Southwest Inc.,
128 F.3d 904, 907 (5th Cir. 1997).
A plain reading of the language of § 2244, which contains
the AEDPA limitations period, leads to the conclusion that
Congress intended that the limitations period be interpreted as a
statute of limitations. The limitations period does not “speak
in jurisdictional terms” and does not explicitly refer to any
limitations on jurisdiction. Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 394 (1982). Instead, § 2244(d)(1) states
only that “a 1-year period of limitation shall apply” and does
not contain any restrictive language that would imply a limit on
federal court jurisdiction. The Supreme Court has held that
limitations periods with even more limiting language than the
10
AEDPA provision could be equitably tolled. See Burnett, 380 U.S.
at 426 (holding that a limitations period mandating that “no
action shall be maintained . . . unless commenced within three
years from the day the cause of action accrued” was subject to
equitable tolling). In addition, the limitation period does not
establish an absolute outside limit within which suits must be
filed, as in the ERISA limitations period we recently found to be
a statute of repose. See Radford v. General Dynamics Corp., 151
F.3d 396, 400 (5th Cir. 1998). In that case, we found that a
limitations period mandating that “[n]o action may be commenced .
. . after the earlier of” six years after the last violation or
three years after discovery of the violation should be
interpreted as a statute of repose that could not be equitably
tolled. 29 U.S.C. § 1113; see Radford, 151 F.3d at 400; see also
Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (holding
that because a provision requiring that potential plaintiffs
exhaust administrative remedies before bringing § 1983 civil
rights suits did not use “sweeping and direct” language limiting
federal jurisdiction, the provision was not a jurisdictional
bar). Section 2244(d)(1) does not prohibit the courts from
entertaining actions after the statutory limit has passed;
instead, it merely sets forth the relevant statute of
limitations. Therefore, the statutory language of § 2244(d)(1)
indicates that Congress did not intend the limitations period to
divest federal jurisdiction.
11
This interpretation of § 2244(d)(1) is consistent with a
plain reading of AEDPA’s placement within the federal habeas
statute. When Congress amended the habeas corpus provisions by
enacting AEDPA, it took care to separate jurisdiction provisions
from this limitations-period provision. The explicit grant of
jurisdiction to the district courts relating to the habeas writ
is contained in 28 U.S.C. § 2241. Congress chose to insert the
AEDPA limitation amendment into § 2244, which concerns the
finality of determinations and contains provisions relating to
non-jurisdictional limitations, such as restraints on duplicative
and frivolous litigation. This plain reading of the statute as a
whole implies that Congress did not intend by its choice of
language and placement to limit federal jurisdiction through
adoption of a one-year limitations period for federal habeas
claims.
AEDPA’s statutory language and construction clearly evinces
a congressional intent to impose a one-year statute of
limitations for the filing of federal habeas claims by state
prisoners. We hold, therefore, that the one-year period of
limitations in § 2244(d)(1) of AEDPA is to be construed as a
statute of limitations, and not a jurisdictional bar. As such,
in rare and exceptional circumstances, it can be equitably
tolled. See Conaway v. Control Data Corp., 955 F.2d 358, 361-62
(5th Cir. 1992) (finding that because a limitations period is not
a jurisdictional requirement, “the limitation statute is subject
to estoppel and equitable tolling”) (citing Zipes, 455 U.S. at
12
393); see also Calderon, 128 F.3d at 1289 (“[AEDPA’s] one-year
timing provision is a statute of limitations subject to equitable
tolling, not a jurisdictional bar.”).
We are persuaded that reasonable juries might differ with
regard to equitably tolling the statute of limitations based on
the extraordinary circumstances present in this case. Davis has
therefore made a credible showing that the district court erred
in dismissing his federal habeas petition as untimely. Following
Robison and Murphy, we can now consider whether Davis has made a
substantial showing of the denial of a constitutional right with
respect to his underlying state court conviction. See Robison,
151 F.3d at 263; Murphy, 110 F.3d at 11.
C. Ineffective Assistance of Counsel
Davis also claims that his trial counsel’s performance
denied him the effective assistance of counsel guaranteed by the
Sixth Amendment. Davis asserts that his counsel rendered
ineffective assistance by--first, failing to object when the
prosecutor committed jurors to disregarding Davis’s youth as a
potential mitigating factor in deciding Davis’s punishment;
second, failing to object when the prosecutor equated the
“intentional” standard used in the guilt-innocence phase of the
trial with the “deliberate” standard used in the punishment
phase; and third, failing to introduce certain oral testimony
during the punishment phase of the trial.
To prevail on his ineffective assistance of counsel claims,
Davis must demonstrate that his attorney’s performance was
13
deficient, and that the deficiency prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). An
attorney’s performance is deficient only when the representation
falls below an objective standard of reasonableness. See id. at
687-88. Our review of the performance of Davis’s attorney must
be “highly deferential,” and we must make every attempt to
“eliminate the distorting effects of hindsight.” Id. at 689. We
must also maintain a “strong presumption that . . . the
challenged action might be considered sound trial strategy.” Id.(internal quotation marks omitted).
To prove that his attorney’s conduct prejudiced his defense,
Davis “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Davis must therefore
show that, absent his counsel’s deficiencies, there is a
reasonable probability that the jury would not have sentenced him
to death. See id. at 695. A reasonable probability is a
probability “sufficient to undermine confidence in the outcome.”
Id. at 694.
The Texas Court of Criminal Appeals, in Davis’s state habeas
proceeding, has already considered the merits of and denied
relief on each of Davis’s Sixth Amendment claims. See Ex parte
Davis, 866 S.W.2d 234 (Tex. Crim. App. 1993). We have previously
found that an explicit denial of relief on the merits by the
Texas Court of Criminal Appeals is an “adjudication on the
14
merits” entitled to deference under AEDPA. 28 U.S.C. § 2254(d);
see Jackson v. Johnson, 150 F.3d 520, 523-24 (5th Cir. 1998).
We have determined that both prongs of the Strickland test
involve mixed questions of law and fact. See Nobles v. Johnson,
127 F.3d 409, 418 (5th Cir. 1997), cert. denied, 118 S. Ct. 1845(1998). Under the AEDPA deference scheme, a federal court will
not disturb a state court’s application of law to facts unless
the state court’s conclusions involved an “unreasonable
application” of clearly established federal law as determined by
the Supreme Court. 28 U.S.C. § 2254(d)(1); see Corwin v.
Johnson, 150 F.3d 467, 471 (5th Cir. 1998); Nobles, 127 F.3d at
418. An application of federal law is unreasonable when
“‘reasonable jurists considering the question would be of one
view that the state court ruling was incorrect.’” Corwin, 150
F.3d at 471-72 (quoting Drinkard, 97 F.3d at 769). In addition,
any state-court factual determinations must be presumed correct
unless rebutted by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1); Jackson, 150 F.3d at 524.
With this standard in mind, we now consider Davis’s
arguments.
1. Youth as a mitigating factor
Davis’s trial attorney did not object when the prosecutor
instructed the jury on two occasions that Davis’s youth could not
be considered to be a mitigating factor in the punishment
determination. First, during voir dire, Davis’s counsel did not
object to the prosecutor obtaining commitments from each eventual
15
juror that he or she would not consider Davis’s “youthful
appearance and age,” and commitments from one-half of the jurors
not to consider any evidence of youth at all during punishment
deliberations. Second, Davis’s attorney also failed to object
during the prosecutor’s summation during the punishment phase of
the trial, when the prosecutor reminded each juror of his or her
commitment not to consider youth in selecting a punishment.6
Davis argues that these failures constituted ineffective
assistance of counsel in violation of the Sixth Amendment.
The Texas Court of Criminal Appeals held that this conduct
by Davis’s attorney did not prejudice Davis’s defense. See Ex
parte Davis, 866 S.W.2d at 239-40. The court noted that youth is
only relevant as a mitigating factor to the second special issue,
whether Davis would be dangerous in the future, and that a jury
may find youth mitigating within that context only if it could
find that a defendant’s “violent conduct is a product of his
youth, [and that] he may be expected to outgrow it.” Id. at 240
(citing Johnson v. Texas, 509 U.S. 350, 368 (1993)). The state
court found that the wealth of evidence presented during the
punishment phase of the trial concerning Davis’s extensive
criminal past foreclosed any reasonable probability that the jury
6
In relevant part, the prosecutor told the jury:
You promised me on voir dire that the age of the
defendant was irrelevant, that the youthful appearance
of a defendant was irrelevant. You told me that you
could answer the questions based upon the evidence and
not merely your personal desire. . . . My purpose in
this argument is to hold you to that promise.
16
would have found Davis capable of reforming his conduct as he
matured.7 See id. at 239-40. Because “no other mitigating
aspect of youth need have been considered,” the court found that
Davis’s defense was not prejudiced and he therefore was not
deprived of effective assistance of counsel under the Sixth
Amendment. Id. at 240. We cannot say that this state-court
conclusion involved an unreasonable application of the Strickland
test.
The Supreme Court, in Johnson v. Texas, 509 U.S. 350, 368
(1993), articulated that “[t]he relevance of youth as a
mitigating factor derives from the fact that the signature
7
Specifically, the Court of Criminal Appeals recounted
that:
the punishment phase of trial revealed that by the time
he was ten years old [Davis] was skipping school and
stealing bicycles. At twelve he was sent to a
detention home for boys for a year, and before he was
fifteen he returned there twice. At fifteen [Davis]
landed in the reformatory at Gatesville for eighteen
months. At seventeen he was convicted of three
instances of aggravated robbery and one instance of
burglary of a habitation, and was assessed four
concurrent six year sentences. In one of the
aggravated robberies [Davis] used a pistol, and when
police tried to apprehend him, he took a hostage. In
another aggravated robbery he wielded a butcher knife.
At the time of his arrest for the instant offense
[Davis] confessed that between the time of his parole
and his arrest he committed at least five robberies and
thirteen burglaries. Only five days after killing
Lang, [Davis] returned to burglarize the Red Wing Ice
Cream Company. [Davis] estimated that from the age of
twelve up to the day of trial he had spent only a year
and a half outside institutional walls. He admitted
that in this brief time he committed over twenty
violent or potentially violent felony offenses.
Ex parte Davis, 866 S.W.2d at 239-40.
17
qualities of youth are transient; as individuals mature, the
impetuousness and recklessness that dominate in younger years may
subside.” Thus, the state court did not err in determining that
the relevant question under Strickland is whether the jury would
have decided not to impose the death penalty after considering
whether Davis’s crime was a product of youthful immaturity. The
prosecutor legitimately presented detailed evidence concerning
Davis’s extensive criminal past during the punishment phase of
the trial that could have reasonably persuaded jurors that
Davis’s crime was not a product of his youth. Based on this
evidence, we cannot say that the state court’s determination that
Davis’s defense was not prejudiced by his attorney’s failure to
object to the prosecutor’s statements was unreasonable. This
conclusion was not “so clearly incorrect that it would not be
debatable among reasonable jurists.” Drinkard, 97 F.3d at 769;
see Brock v. McCotter, 781 F.2d 1152, 1158 (5th Cir. 1986)
(finding no Sixth Amendment violation after prosecutor improperly
told juror that youth could not be considered a mitigating
factor, as “where no reasonable person would view a particular
fact as mitigating it may properly be excluded as irrelevant”).
Therefore, we decline to issue Davis a COA on this ground.
2. Intentional versus deliberate conduct
Davis next claims that because his counsel inadequately
maintained the distinction between an intentional and a
deliberate killing, he was denied effective assistance of counsel
under the Sixth Amendment. The prosecutor told eight eventual
18
jurors that “deliberate” meant nothing more than purposeful, and
during his punishment-phase summation, he told the jurors that
because they had found Davis’s killing to be intentional in the
guilt-innocence phase of the trial, they had already decided that
the killing was deliberate. Davis’s attorney failed to object to
these prosecutorial statements. Davis also claims that his
attorney did not distinguish between the two terms during his
cross-examination of Davis during the punishment phase of the
trial and that he confused the terms in his final summation.
The Texas Court of Criminal Appeals found that the failure
of Davis’s attorney to distinguish between “intentional” and
“deliberate” was not deficient under the first Strickland prong.
See Ex parte Davis, 866 S.W.2d at 241. The state court found
that at the time of Davis’s trial in 1978, Texas courts had not
yet explicitly articulated a distinction between the two terms.
See id. at 240-41. Therefore, the failure of Davis’s attorney to
distinguish between them was objectively reasonable and could not
constitute constitutionally defective assistance of counsel. See
id. at 241. We find that this state-court conclusion is a
reasonable application of Strickland.
It was not until 1981, when the Texas Court of Criminal
Appeals decided Heckert v. State, 612 S.W.2d 549 (Tex. Crim. App.
1981), that Texas law clearly distinguished “deliberate” from
“intentional” conduct.8 Before that time, even the Texas Supreme
8
The Heckert court found that the two standards were not
identical. See Heckert, 612 S.W.2d at 552-53. Later Texas cases
have made clear that “deliberate” is a higher standard than
19
Court used the terms interchangeably. See Blansett v. State, 556
S.W.2d 322, 327 n.6 (Tex. Crim. App. 1977); see also Morin v.
State, 682 S.W.2d 265, 271 (Tex. Crim. App. 1983) (Clinton, J.,
dissenting) (noting that before Heckert, the terms were not
precisely distinguished). Given the lack of clarity between the
two terms at the time of Davis’s trial, we cannot say that the
state court was unreasonable in holding that Davis’s attorney was
not deficient under Strickland. See Williams v. Scott, 35 F.3d
159, 164 (5th Cir. 1994) (finding that because “no definite
distinction between deliberately and intentionally had been
authoritatively expressed” before defendant’s 1981 trial,
defendant’s counsel was not deficient for failing to object to
statements equating the two terms); cf. Motley v. Collins, 18
F.3d 1223, 1227 (5th Cir. 1994) (finding no Strickland violation
when defendant’s attorney failed to object during voir dire to
prosecutor’s statements equating intentional and deliberate where
the defendant “has not shown how a more favorable definition of
‘deliberately’ would have caused at least one juror to return a
negative answer to the first special issue”) (footnote omitted);
Landry v. Lynaugh, 844 F.2d 1117, 1120 (5th Cir. 1988) (finding
no Strickland prejudice when attorney did not object to
prosecutor’s voir dire statements equating intentional and
deliberate). Davis’s request for a COA on this issue is
therefore denied.
“intentional,” only encompassing conduct that results from a
“determination on the part of an actor to kill.” Cannon v.
State, 691 S.W.2d 664, 677 (Tex. Crim. App. 1985).
20
3. Failure to introduce oral testimony
Lastly, Davis complains that his trial counsel was
ineffective because he did not attempt to introduce certain oral
testimony during the punishment phase of the trial. During the
guilt-innocence portion of the trial, Davis’s attorney attempted
to introduce the testimony of Detective John Deloney, the
detective to whom Davis orally confessed the day before Davis
made a written statement. The testimony Davis’s attorney
attempted to elicit related to Davis’s state of mind at the time
of the shooting. Specifically, Deloney would have testified that
Davis told him he thought Lang, the victim, was coming after him
to take the gun, and that Davis had remarked, “I had to shoot the
man. He was going to take the gun away from me.” These
assertions were not in Davis’s written confession. The trial
judge excluded the testimony as irrelevant to the issue of guilt
or innocence, and Davis’s counsel did not attempt to introduce
the testimony during the punishment phase of the trial.
Davis asserts that Deloney’s testimony was relevant to the
first capital sentencing issue of deliberateness. He contends
that the testimony evidences a lack of premeditation and planning
concerning the killing, and therefore the jury should have been
able to consider the testimony and credibility of the detective.
The failure of his attorney to introduce the testimony, Davis
argues, amounted to ineffective assistance of counsel in
violation of the Sixth Amendment.
21
The Texas Court of Criminal Appeals disagreed, finding that
Davis had not overcome the Strickland presumption that the
decision not to call Deloney was part of his attorney’s trial
strategy. See Ex parte Davis, 866 S.W.2d at 242. The state
court noted that Davis’s attorney had already introduced
testimony similar to Deloney’s proposed testimony during both the
guilt and punishment phases of Davis’s trial. See id. The court
found that the attorney’s decision not to elicit Deloney’s
testimony during the punishment phase was consistent with his
apparent trial strategy of having Davis “acknowledge all guilt as
a predicate to rehabilitation” in an effort to persuade the jury
that Davis would not be dangerous in the future. Id. The Court
of Criminal Appeals then denied Davis relief because he did not
overcome the presumption, explicit in Strickland, that his
attorney “‘made all significant decisions in the exercise of
reasonable professional judgment.’” Id. (quoting Strickland, 466
U.S. at 690).
We find the state court’s conclusion that Davis was not
denied effective assistance of counsel because of his attorney’s
failure to introduce Deloney’s testimony to be a reasonable
application of Strickland. The Court of Criminal Appeals stated
that Davis’s counsel “was clearly attempting to paint his client
as a penitent, willing to take responsibility for his offense,
and therefore capable of rehabilitation.” Id. at 239. Deloney’s
testimony implied that after the killing, Davis thought the death
was the victim’s fault--he stated that he “had to shoot [Lang]”
22
because “[h]e was going to take the gun away from me.” The state
court did not unreasonably apply Strickland in indulging a strong
presumption that Davis’s attorney’s failure to introduce
Deloney’s statement therefore “might be considered sound trial
strategy.” Strickland, 466 U.S. at 689 (internal quotation marks
omitted); see also Duff-Smith v. Collins, 973 F.2d 1175, 1183
(5th Cir. 1992) (finding that decision not to offer potentially
damaging testimony was protected as trial strategy). Because
Davis has not attempted to rebut this presumption, after applying
AEDPA’s deferential standard of review we cannot say that the
state court erred in denying Davis’s requested relief, and we
decline to issue a COA on this issue. Cf. Teague v. Scott, 60
F.3d 1167, 1172 (5th Cir. 1995) (“A decision regarding trial
tactics cannot be the basis for a claim of ineffective assistance
of counsel unless counsel’s tactics are shown to be so ill chosen
that it permeates the entire trial with an obvious unfairness.”)
(internal quotation marks omitted).
III. CONCLUSION
For the foregoing reasons, we DENY Davis’s request for a
certificate of appealability and VACATE our grant of a stay of
his execution.
23