Grant v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2005
Charles R. Fulbruge III
Clerk
No. 04-40526
Summary Calendar
MARQUIS DE LA VICTOR GRANT,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:03-CV-103
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Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Marquis de la Victor Grant, Texas prisoner # 877091,
appeals the district court’s denial of his 28 U.S.C. § 2254
application challenging his conviction for attempted capital
murder. We review the district court’s factual findings for
clear error and the district court’s conclusions of law de novo.
See Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir. 2002);
United States v. Pierce, 959 F.2d 1297, 1300 n.3 (5th Cir. 1992).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40526
-2-
An ineffective-assistance-of-counsel claim is a mixed
question of law and fact. See Kitchens v. Johnson, 190 F.3d 698,
701 (5th Cir. 1999). The 28 U.S.C. § 2254(e)(1) presumption of
correctness applies to explicit and implicit findings of fact
which are necessary to the state court’s conclusions of mixed law
and fact. See Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th
Cir. 2001).
Grant argues that trial counsel, E.J. Van Buren, performed
no investigation and did not prepare for trial. He points out
that counsel has been disbarred because of unprofessional conduct
involving at least three client matters, that counsel had been
charged with possession of cocaine, and that counsel’s drug abuse
was well known. Grant further asserts that counsel did not
coordinate evidence to present a defense. He contends that his
own trial testimony that he did not intend to kill the state
trooper only makes sense in light of the psychologist’s affidavit
that Grant suffers from a frontal-lobe impairment. Grant
contends that at least one juror would have insisted on a lesser
sentence if the available mitigating evidence had been presented
and that counsel’s failure to do so was prejudicial.
While there is no evidence in the record that trial counsel
investigated the possibility of a defense based on mental
impairment, neither is there any evidence in the record that
trial counsel was on notice that investigation into the
possibility of such a defense was warranted. We have held that
No. 04-40526
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“counsel is not constitutionally ineffective for insufficiently
investigating a defendant’s mental or psychological condition
when there is nothing to put counsel on notice that such a
condition exists.” Miniel v. Cockrell, 339 F.3d 331, 345 (5th
Cir. 2003). Here, there is no indication in the record that any
family member or Grant’s behavior itself put trial counsel on
notice that mental impairment might be a viable defense such that
further investigation was warranted. Grant’s mother’s affidavit
does not aver that she told counsel regarding the injuries to
Grant that she chronicled in her affidavit, and nothing in the
psychologist’s affidavit indicates that evidence of a frontal-
lobe impairment would have been evident to counsel. Finally,
counsel’s misconduct in other cases is insufficient to show that
trial counsel was ineffective in this particular case. See
Bridge v. Lynaugh, 838 F.2d 770, 776 (5th Cir. 1988).
Grant has not shown that counsel’s performance was
deficient, and, consequently, his ineffectiveness-assistance
claim for failure to investigate fails. See Strickland v.
Washington, 466 U.S. 668, 697 (1984). Because Grant’s alleged
facts would not entitle him to relief if true, the district court
did not err in not holding an evidentiary hearing. See Beathard
v. Johnson, 177 F.3d 340, 346 (5th Cir. 1999). The judgment of
the district court is AFFIRMED.