Hood v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 2, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 00-41272
CHARLES DEAN HOOD,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
(99-CV-109 )
--------------------
Before SMITH, WIENER, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Charles Dean Hood appeals the district
court’s denial of 28 U.S.C. § 2254 relief. We affirm.
I. FACTS AND PROCEEDINGS
Hood’s petition for writ of habeas corpus stems from his 1990
conviction and death sentence for the murders of Ronald Williamson
and Tracie Lynn Wallace. During the fall of 1989, Hood, who was
employed by Williamson, began living with Williamson and Wallace,
*
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this opinion should not be published and is not precedent except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.
Williamson’s girlfriend. On November 1, 1989, Williamson came home
from work for lunch and found a note purportedly written by Wallace
stating that she had gone jogging. Williamson grew suspicious when
he noticed that Wallace’s name had been misspelled and called the
police to report her possible abduction. When the police arrived
at Williamson’s home, they discovered the bodies of Williamson and
Wallace with gunshot wounds to their heads.
Prior to his trial, Hood moved for the appointment of an
independent psychiatrist to assist him in preparing a mitigation
defense at sentencing. The trial judge granted his motion in part
and issued an order specifying that Hood was to elect in writing
either of two alternatives: (1) Have Dr. Sidney Brooks conduct the
psychiatric examination and report his findings to both parties, or
(2) Hood and the State each designate a psychiatrist who together
would conduct a joint interview of Hood and report only to the
designating parties.
Although no written election was ever made, Dr. Brooks
examined Hood and concluded that he had a brain dysfunction and an
antisocial personality, and that in the future he was likely to act
out his aggressions on other persons or property. Dr. Brooks did
not testify at trial, but the State presented psychiatric evidence
that, in the future, Hood would probably commit criminal acts of
2
violence and was therefore a continuing threat to society, a
finding necessary for the jury to impose the death penalty.1
Hood’s conviction and sentence were affirmed by the Texas
Court of Criminal Appeals.2 The Supreme Court of the United States
denied certiorari.3 In April 1997, Hood’s state habeas application
was denied by the Texas Court of Criminal Appeals,4 and in February
2000, Hood sought federal habeas relief.
Although it ultimately denied habeas relief, the district
court found that Hood’s counsel had misread the trial court’s order
regarding the appointment of a psychiatrist, which in turn had
resulted in a violation, albeit harmless, of his right to a
psychiatrist under Ake v. Oklahoma.5 The district court concluded
that counsel had performed deficiently by assigning to a paralegal
the duty of collecting mitigating evidence to be used at Hood’s
sentencing. It therefore granted Hood a certificate of
appealability (COA) on (1) whether Hood’s counsel’s misreading of
the trial court’s order regarding Hood’s psychiatric examination
and counsel’s delegating to an untrained legal assistant the
1
See TEX. CRIM. PROC. CODE ANN. § 37.071(b)(2) (Vernon 1981 &
Supp. 2003).
2
Hood v. State, No. 72,167 (Tex. Crim. App. Nov. 24, 1993)
(unpublished).
3
Hood v. Texas, 513 U.S. 834 (1994).
4
Ex parte Hood, No. 41,168-01 (Tex. Crim. App. Apr. 21, 1999)
(unpublished).
5
470 U.S. 68 (1985).
3
investigation into potential mitigating evidence created a
reasonable probability that the result of his punishment hearing
would have been different if counsel’s performance had been
adequate, and (2) whether the cumulative effect of the violations
of Hood’s rights under Ake and his counsel’s deficient performance
deprived him of a fair trial.
II. ANALYSIS
A. Strickland Prejudice
1. Standard of Review
At issue is Hood’s sentence, not his conviction. Under the
AEDPA,6 a federal habeas petition may not be granted with respect
to a claim adjudicated on the merits in state court unless that
court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.”7 “A decision is contrary to clearly established
Federal law ‘if the state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law or if the
state court decides a case differently than [the] Court has on a
6
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996).
7
28 U.S.C. § 2254(d)(1) & (2).
4
set of materially indistinguishable facts.’”8
“Under § 2254(d)(1)’s ‘unreasonable application’ language, a writ
may issue ‘if the state court identifies the correct governing
legal principle from [the] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.’”9
In this case, the “clearly established Federal law” is the
Supreme Court’s decision in Strickland v. Washington,10 governing
claims based on ineffective assistance of counsel. For Hood to
prevail on such a claim, he must show that (1) his counsel’s
performance was deficient because it fell below an objective
standard of reasonableness, and (2) such deficient performance
prejudiced Hood’s defense.11 Given the limited scope of the COA
grant, however, we need examine only whether Hood has met
Strickland’s prejudice prong, under which he “‘must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.’”12
8
Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000) (quoting
Williams v. Taylor, 529 U.S. 362, 413 (2000)).
9
Id. (quoting Williams, 529 U.S. at 413).
10
466 U.S. 668 (1984).
11
Id. at 687-94.
12
Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (quoting
Strickland, 466 U.S. at 694).
5
For the sentencing phase of a capital case, counsel must
conduct a “reasonably substantial, independent investigation into
potential mitigating circumstances.”13 In determining whether Hood
was prejudiced by a deficient presentation of mitigating evidence,
we must compare the evidence presented at sentencing with the
mitigating evidence adduced in the post-conviction record to
ascertain if “additional mitigating evidence [is] so compelling
that there is a reasonable probability at least one juror could
have reasonably determined that, because of [Hood’s] reduced moral
culpability, death was not an appropriate sentence[.]”14
2. Deficiency of Performance
Hood contends that if the new mitigating evidence presented
during his state habeas proceeding had been presented during the
penalty-phase proceeding of his trial, there is a reasonable
probability that at least one juror would have voted to spare his
life. During the penalty phase, the defense’s primary mitigation
witness was Hood’s mother, whose testimony painted the following
picture: (1) From the time of his birth, Hood’s family moved
frequently; (2) he was hit by a septic truck at age three, injuring
his lower back and leg and possibly causing speech and behavior
13
Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc)
(internal quotations and citation omitted), cert. denied, 537 U.S.
1104 (2003).
14
Id. at 241 (footnote omitted).
6
problems; and (3) he was a chronic truant throughout his short
school career in which he achieved only a seventh grade education.
The new mitigating evidence presented during the state
habeas proceeding consisted primarily of affidavits, social
services records, school records, and a social history report.
That evidence augments the evidence of mitigating circumstances
presented during the penalty phase of Hood’s trial by (1)
presenting additional details about his injuries caused by the
septic truck; (2) providing more details regarding his behavioral
problems in school and his learning disability; and (3) adding new
claims that (a) Hood and his siblings suffered physical and
emotional abuse at the hands of their domineering father, (b) his
father sexually molested Hood’s two sisters, and (c) Hood may have
suffered some type of brain damage at birth.
Our determination whether the state court unreasonably applied
Strickland is guided by the Supreme Court’s decisions in Williams
and, most recently, Wiggins v. Smith.15 In each case, the Court
held that the petitioner had established Strickland prejudice from
counsel’s constitutionally deficient presentation of mitigating
evidence.16 In Hood’s case, however, the mitigating evidence is far
weaker and the evidence in support of the death penalty
considerably stronger than in Williams and Wiggins. As we shall
15
--- U.S. ----, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).
16
See Wiggins, 123 S. Ct. at 2543; Williams, 529 U.S. at 398.
7
explain, this ultimately prevents his establishing the requisite
prejudice.
We have construed Williams to require that an evaluation of
Strickland prejudice include consideration of both the quantity and
quality of the additional mitigating evidence.17 Hood presented a
total of 217 pages of mitigating evidence, yet 107 pages of that
evidence, approximately one-half, consists solely of social service
and counseling records pertaining to the sexual abuse suffered by
Hood’s sisters. Even though these social service documents verify
the tragic circumstances surrounding the relationship of Hood’s
sisters with their father, as well as their mother’s inadequate
response to the abuse, they do not specifically relate to Hood.
The quality of the remaining evidence is wanting. For
example, State witness Dr. Richard Coons, a psychiatrist, testified
on cross-examination during the penalty phase that children like
Hood, who had been “nearly crushed to death by a truck,” may
develop brain or personality problems if there was damage to the
brain. Hood’s hospital records which document the injuries he
received from the septic truck make clear, however, that he
suffered no head injury. Additionally, despite testimony that Hood
suffered speech problems after his accident, trial witnesses
Cynthia Insashi and Peggy Kliener testified that they had not
noticed anything unusual about Hood’s speech. Furthermore, no
17
See Neal, 286 F.3d at 243.
8
medical records were adduced to support or expand on Mrs. Hood’s
affidavit testimony that her son was born with an enlarged head and
black face, suggesting possible brain damage.
Evidence that Hood’s sisters were sexually abused by their
father is not of the same quality as evidence previously held to
have the capability of reducing a capital defendant’s moral
culpability in the eyes of the jury.18 Significantly, there is no
testimony that Hood knew of his sisters’ abuse or how he was
affected by it.
Furthermore, while there is new evidence that Hood was
physically abused by his domineering father, Hood had categorically
denied during his evaluation with Dr. Brooks that he had ever been
physically abused by either parent. The State certainly would have
introduced this fact to the jury to rebut any allegation of abuse,
and such conflicting evidence would have created a credibility
issue for the jury which might not have been resolved in Hood’s
favor.
Although the mitigating evidence revealed that Hood’s I.Q. was
low-average, it was nevertheless markedly higher than those of
Williams and Neal.19 Evidence that Hood is predisposed to impulsive
18
Cf. Wiggins, 123 S. Ct. at 2533 (Wiggins gang-raped in
foster care and sexually abused by his Job Corps supervisor); Neal,
286 F.3d at 238 (Neal forced to sodomize 30 to 40 inmates in
succession and raped by two others).
19
See Williams, 529 U.S. at 396 (“‘[B]orderline mentally
retarded’”); Neal, 286 F.3d at 237 (I.Q. of 54, “low end of mild
retardation”).
9
behavior is likewise undercut by the fact that the murders of
Williamson and Wallace were premeditated.20
Even though Dr. Marc Walter’s post-trial neuropsychological
examination “suggest[ed]” that Hood had brain damage or
dysfunction, with an impairment in the left temporal lobe of his
brain, Dr. Walter’s report did not, for purposes of reducing his
moral culpability, connect this purported brain damage with Hood’s
ability or inability to control his behavior. Rather, Dr. Walter
was of the opinion that Hood’s brain dysfunction rendered him
incapable of proceeding pro se in his state habeas proceedings.
Also, mitigating evidence of Hood’s brain dysfunction is
cumulative of testimony on that same subject that was heard by the
jury at Hood’s penalty-phase proceeding. During defense counsel’s
cross examination of State psychiatrist Dr. Richard Coons, the jury
learned that Dr. Brooks had diagnosed Hood with “neurophysiological
brain dysfunction with probable left temporal cortical and deep
temporal limbic brain dysfunction.” Dr. Coons testified that Dr.
Brooks’s diagnosis referred to a biological dysfunction within the
brain and that there are scientists who theorize that a congenital
problem with the brain may cause specified individuals to be
conscienceless, causing the antisocial personality disorder with
which Hood was diagnosed. The jury thus learned that Hood had been
20
Cf. Williams, 529 U.S. at 398 (“[I]n each case [Williams’s]
violent behavior was a compulsive reaction rather than the product
of cold-blooded premeditation.”).
10
diagnosed by one physician with a brain disorder and, furthermore,
that such a disorder might possibly be the cause of his behavior.
We weigh the totality of the mitigating evidence adduced at
trial and in the state habeas proceeding against the aggravating
evidence.21 During both the guilt-innocence and penalty phases, the
jury heard the following aggravating evidence concerning the
offense, Hood’s lack of remorse, his history of violence, his
criminal history, and his future dangerousness.
The jury learned that Hood shot each victim once in the head,
placed plastic bags over Tracie Wallace’s head and upper torso,
affixed the bags to her body with duct tape, and stuffed her nude
body into a water heater closet. Hood showed no remorse for the
murders.22 That same morning, Hood calmly ordered flowers for Jill
Workman, his girlfriend in Indiana, representing to the florist
that he was Ronald Williamson, using Williamson’s credit card,
wearing Williamson’s gold watch and showing it off to the
employees. At a pawn shop on that same day, Hood traded one of
Williamson’s diamond rings for a wedding band set, presumably for
Jill Workman. He also attempted to cash two company checks that he
had stolen from Williamson’s computer business, forging
Williamson’s signature on the checks.
21
Id. at 397.
22
Cf. id. at 367, 398 (Williams alerted police to his
responsibility for the homicide, showed remorse, and assisted their
investigation).
11
While Hood was driving from Texas to Indiana in Williamson’s
Cadillac, he called Workman on Williamson’s cell phone, telling her
he was driving a new car that he had just purchased and that he was
going to give her a gold watch. Workman testified that during this
conversation Hood sounded “excited” and “happy.” The day after the
murders, Hood called Williamson’s son, told him he had been
arrested for his father’s murder, and denied any involvement in the
crime.
The jury also learned that Hood had a history of violent
conduct.23 He had assaulted his father during an altercation with
his (Hood’s) girlfriend, Trava Henry, and her mother. Hood told
the responding officer that he would beat up or kill anyone who
tried to touch him. Hood also assaulted Henry when she attempted
to end their relationship, and he displayed sexual aggression
towards her.
Amy Hartman testified that Hood had raped her when she was 16
years old and told her that if he ever saw her again or if she
reported the rape, he would kill her. Hood was fired from a
job at a fast food restaurant after only three days on the job when
he engaged in a verbal altercation with another employee, and he
23
Cf. Wiggins, 123 S. Ct. at 2543-44 (Wiggins had no record
of violent conduct and no prior convictions).
12
even fought with a fellow inmate while incarcerated awaiting trial
on the instant offense.24
The jury learned additionally that Hood had a prior criminal
record. He had juvenile adjudications for breaking and entering
and had been convicted as an adult of the felony offenses of
forgery and theft. While on parole, he was not prompt for his
parole appointments, and he failed to complete his parole because
he absconded to Texas. Finally, the jury heard testimony that Hood
had been diagnosed with antisocial personality disorder, was a
sociopath with little chance of rehabilitation, and would more
likely than not pose a future danger to the public.
We conclude that, when viewed in the light of the quality of
the mitigating evidence as compared with the strength of the
aggravating evidence, Hood has failed to show that the “additional
mitigating evidence [is] so compelling that there is a reasonable
probability at least one juror could have reasonably determined
that, because of [Hood’s] reduced moral culpability, death was not
an appropriate sentence[.]”25 The state court’s prejudice
determination was therefore a reasonable application of Strickland,
and Hood is not entitled to habeas relief on this claim.
B. Cumulative Error
24
Cf. Williams, 529 U.S. at 395-96 (Williams received
commendations for good behavior in prison and thrived in its
structured environment).
25
See Neal, 286 F.3d at 241 (footnote omitted).
13
In support of his cumulative error argument, Hood relies
solely on his contention that if the defense had presented the new
mitigating evidence adduced during his state habeas proceeding, at
least one juror might have determined that a life sentence was
appropriate. “[F]ederal habeas corpus relief may only be granted
for cumulative errors in the conduct of a state trial where (1) the
individual errors involved matters of constitutional dimension
rather than mere violations of state law; (2) the errors were not
procedurally defaulted for habeas purposes; and (3) the errors ‘so
infected the entire trial that the resulting conviction violates
due process.’”26 To determine whether application of the cumulative
error doctrine warrants relief, we “review the record as a whole to
determine whether the errors more likely than not caused a suspect
verdict.”27 Claims that are not prejudicial, however, cannot be
cumulated, regardless of the number raised.28 Hood’s failure to
satisfy Strickland’s prejudice prong precludes his showing
constitutional error with regard to his ineffective assistance
claims.29 Inasmuch as counsel’s alleged deficiencies resulted in
no prejudice, Hood’s claim of ineffective assistance of counsel
26
Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en
banc) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
27
Spence v. Johnson, 80 F.3d 989, 1001 (5th Cir. 1996)
(internal quotations and citation omitted).
28
Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996).
29
See Strickland, 466 U.S. at 697.
14
cannot be cumulated with the Ake error claim, so his cumulative
error claim necessarily fails.30
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
30
See Westley, 83 F.3d at 726.
15