Lewis v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10616
ANDRE ANTHONY LEWIS
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 Northern District of Texas
(93-CV-0329-G)
- - - - - - - - - -
December 21, 2000
ON PETITION FOR PANEL REHEARING
Before KING, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Andre Anthony Lewis has petitioned this
panel to rehear its decision to affirm the district court’s
denial of his application for a writ of habeas corpus. After a
*
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this opinion should not be published and is not precedent except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.
1
review of Lewis’s petition for panel rehearing, and in light of
the Supreme Court’s recent decision in (Terry) Williams v.
Taylor, 120 S. Ct. 1495 (2000), we grant rehearing in part,
vacate section II.C of the panel opinion as to its discussion of
the punishment phase ineffective assistance of counsel claims,
vacate the district court’s judgment insofar as it denied habeas
relief on Lewis’s punishment phase ineffective assistance of
counsel claims and remand for an evidentiary hearing solely on
those claims. We also correct a legal misstatement in our panel
opinion.
First, our unpublished disposition of Lewis’s petition for
habeas relief does contain a misstatement of law. The erroneous
pronouncement appears in the discussion of Lewis’s claim that his
Sixth Amendment right to effective assistance of counsel, as
clarified by the Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984), was violated by the failure of counsel to
present, at the punishment phase of the trial, evidence of
Lewis’s abusive childhood. Specifically, the statement (and
accompanying footnote1) on page ten of our unpublished opinion
that “[a]t the time of Lewis’s trial, evidence of such abuse was
not admissible relative to Texas’s special issues at the
1
Footnote 14 read as follows: “Lewis was found guilty on
June 2, 1987, well prior to the Supreme Court’s decision in Penry
v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934 (1989) which set forth
the current rule allowing evidence of abuse at the punishment
phase of a capital trial.”
2
punishment phase” is an incorrect statement of applicable law.
Lewis’s trial occurred before the Supreme Court’s decision
in Penry v. Lynaugh, 492 U.S. 302 (1989); therefore, his counsel
did not have the guidance of that decision in formulating Lewis’s
defense strategy. Nevertheless, evidence of abuse suffered by
the defendant was admissible at the punishment phase of the
trial, see May v. Collins, 904 F.2d 228, 232 (5th Cir. 1990),2 so
the assertion to the contrary in our original opinion was
erroneous.
In light of our error, and due to (Terry) Williams v.
Taylor, 120 S. Ct. 1495 (2000), an analogous case that was not
briefed until the Request for a Panel Rehearing,3 we withdraw the
portion of section II.C in our panel opinion discussing
ineffective assistance of counsel at the punishment phase and
replace it with the following analysis.
As our decision to remand turns on the inescapable
2
Lewis was entitled to introduce “as a mitigating factor,
any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.” Lockett v. Ohio, 438 U.S.
586, 604 (1978); see also Burger v. Kemp, 483 U.S. 776, 789-90
n.7 (1987) (noting that evidence of childhood abuse and mental
problems was “relevant mitigating evidence that the sentencer
could not have refused to consider and could not have been
precluded from considering had counsel sought to introduce it”).
3
(Terry) Williams v. Taylor was decided April 18, 2000.
Upon the Petition for Rehearing, this court requested a response
from Respondent-Appellee Gary L. Johnson, Director of the Texas
Department of Criminal Justice, to address Lewis’s post-(Terry)
Williams ineffective assistance of counsel argument.
3
similarities between (Terry) Williams and the instant case, we
are bound to discuss its reasoning. In (Terry) Williams, the
Supreme Court found that “Williams had a right–-indeed, a
constitutionally protected right–-to provide the jury with the
mitigating evidence that his trial counsel either failed to
discover or failed to offer.” 120 S. Ct. at 1513; see also
Lockett v. Anderson, 230 F.3d 695, 711 (5th Cir. 2000) (“It is
clear that defense counsel’s failure to investigate the basis of
his client’s mitigation defense can amount to ineffective
assistance of counsel.”). The Court undertook to apply the
Strickland v. Washington, 466 U.S. 668, 687 (1984),4 framework to
hold that Williams was denied his constitutionally guaranteed
right to effective assistance of counsel when his attorneys
failed to investigate and present substantial mitigating evidence
during the sentencing phase of his capital murder trial.
4
The Strickland framework to determine ineffective
assistance of counsel provides:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result
unreliable.
466 U.S. at 687.
4
Specifically, in regard to the first prong of deficient
performance, the Court found that “[t]o establish
ineffectiveness, a ‘defendant must show that counsel’s
representation fell below an objective standard of
reasonableness.’” (Terry) Williams, 120 S. Ct. at 1511 (quoting
Strickland, 466 U.S. at 688).5
In concluding that Williams’s counsel was deficient, the
Supreme Court relied on several factors: (1) “counsel did not
begin to prepare for that phase of the proceeding until a week
before the trial,” id. at 1514; (2) counsel introduced only three
punishment phase witnesses, whose testimony amounted to the
conclusion that Williams was a “nice boy,” see id. at 1500; (3)
counsel “failed to conduct an investigation that would have
uncovered extensive records graphically describing Williams’
nightmarish childhood,” id. at 1514; (4) counsel’s failure was
not a result of strategy, but was based on an erroneous
understanding of state law, see id.; (5) counsel had “failed to
introduce available evidence that Williams was ‘borderline
5
As a benchmark for “objective” standards, the Court
looked, as they had in Strickland, see 466 U.S. at 688, to the
ABA Standards for Criminal Justice to find that “trial counsel
did not fulfill their obligation to conduct a thorough
investigation of the defendant’s background.” Terry Williams,
120 S. Ct. at 1515 (citing 1 ABA STANDARDS FOR CRIMINAL JUSTICE 4-4.1
cmt. at 4-55 (2d ed. 1980)). The Court then applied this
standard to the particular facts presented in (Terry) Williams.
See id.; see also Strickland, 466 U.S. at 687 (requiring a case-
by-case determination for ineffective assistance of counsel
claims).
5
mentally retarded’ and did not advance beyond sixth grade in
school,” id.; (6) Williams had received a commendation from the
prison, see id.; and (7) counsel failed even to return the phone
call of a character witness who was willing to testify on
Williams’s behalf, see id.Lewis argues that his state counsel was equally ineffective
for failing to put on available and substantial mitigating
evidence at the punishment phase of trial. First, like
Williams’s counsel, Lewis’s counsel did not begin to prepare for
the punishment phase of trial until one week before trial began.
Lewis argues that according to the records of trial counsel,
counsel only began meeting with family members to discuss
mitigation evidence and strategy on May 22, 1987, one week before
the trial began on May 27, 1987. Lewis alleges that from trial
counsel’s own records, only twelve hours of counsel’s time was
devoted to punishment phase investigation or legal strategy
before trial. This omission is more troubling because counsel
had eight months to prepare for trial in which they called no
guilt-phase witnesses. See, e.g., Lockett, 230 F.3d at 714(requiring “informed strategic choices”); Moore v. Johnson, 194
F.3d 586, 615 (5th Cir. 1999) (“Strickland does not . . . require
deference to decisions that are not informed by an adequate
investigation into the controlling facts and law.”); Wilson v.
Butler, 813 F.2d 664, 672 (5th Cir. 1987) (remanding for
evidentiary hearing because record did not reflect whether
6
counsel made a sound strategic decision not to investigate and
present mitigation evidence of troubled background and mental
impairment).
Second, in comparison to the three witnesses called in
Williams’s case (including taped testimony from a psychiatrist),
Lewis’s sole punishment phase defense consisted of one witness,
his grandmother. The defense’s entire punishment phase lasted
for sixteen pages of trial transcript, with most of the direct
examination objected to and stricken on hearsay grounds. As has
been discovered by federal habeas counsel, character witnesses,
including Lewis’s high school football coach and math teacher and
Lewis’s aunt, were willing to testify about Lewis’s cognitive
difficulties and abusive childhood, but were never contacted by
defense counsel. According to the affidavit evidence, Lewis’s
sister, Tammy Tonnette Lewis-Berry, was also willing to testify
about the abuse and was even at the courthouse during the trial,
but was never asked to testify.6
Third, Lewis’s federal habeas counsel has adduced
substantial mitigating evidence that was not investigated or used
6
Our concern is not with whether certain witnesses were or
were not called. See Strickland, 466 U.S. at 689 (recognizing
the deference given to decisions of counsel and the “distorting
effects of hindsight”). Instead, we concern ourselves with
whether this omission was, in fact, a tactical decision. See id.
at 680 (recognizing that “[c]ounsel may not exclude certain lines
of defense for other than strategic reasons.”); Bouchillon v.
Collins, 907 F.2d 589, 597 (5th Cir. 1990) (“Tactical decisions
must be made in the context of a reasonable amount of
investigation, not in a vacuum.”).
7
in state court. Like Williams, Lewis suffered from severe
childhood physical, psychological, and sexual abuse, and experts
have found neurological impairments that may have had a
mitigating effect on the jury. The allegations submitted in the
affidavits of Lewis’s habeas counsel include a childhood equally
as disturbing and relevant to mitigation as that in (Terry)
Williams.7 See (Terry) Williams, 120 S. Ct. at 1516 (“Mitigating
evidence unrelated to dangerousness may alter the jury’s
7
For example, Lewis’s Petition for Panel Rehearing includes
the following summary of Lewis’s proffered mitigation evidence:
Andre Lewis grew up in violent, drug-ridden areas of West
Dallas, including the George Loving Projects which were
renowned for high levels of lead contamination. Massive
amounts of documentary evidence were presented in Mr.
Lewis’s writ relating to his low intelligence, his horrific
childhood characterized by severe physical, sexual and
psychological abuse, neglect, poverty, chronic isolation,
complete lack of positive role models and chemically
dependent parents. His father would make his children take
off all their clothes and whip them on their genitals until
they were bloody. Dr. Daniel Jay Sonkin, a psychologist and
expert on family violence, characterizes Mr. Lewis’s
childhood as ‘one of the most severe cases’ of abuse that he
has ever reviewed. Mr. Lewis was exposed to extremely toxic
levels of lead . . . . Dr. Richard L. Peck conducted a
psychological investigation of Andre Lewis in 1992 and found
that his condition was consistent with that of trauma
victims or victims of childhood abuse; he had significant
cognitive deficits, was unable to process disparate pieces
of information, had symptoms of neuropathy, had cognitive
impairment symptoms consistent with lead poisoning. . . .
Mr. Lewis was remembered by his teachers as being easily
led, simple and quiet. According to his football coaches,
he could not understand the strategy of the game to the
extent that they simply had to tell him to go with the ball.
These findings are confirmed by the results of
neuropsychological testing performed by experts. . . .
(citations to the record omitted).
8
selection of penalty.”); see also Abdur’rahman v. Bell, 226 F.3d
696, 722 (6th Cir. 2000) (Cole, J., concurring in part and
dissenting in part) (“Th[e] abuse, while not a justification for
petitioner’s criminal conduct, is relevant, mitigating evidence
that should have been presented to the jury.”).8
Fourth, again as in (Terry) Williams, this failure to
introduce evidence was admittedly based on counsel’s erroneous
understanding of state law. The record includes two signed
statements by counsel that their decisions were based on a belief
that evidence of abuse at the punishment phase of Mr. Lewis’s
capital murder trial “was not relevant under the special issues
in the Texas death penalty statute.”9 As discussed above, this
belief was incorrect.10
Fifth, despite counsel’s earlier request for a psychologist,
8
While Lewis’s state counsel have stated that they were
aware of the abuse, they did not follow up on investigating and
procuring documentary evidence to support this claim. We have
previously required counsel who have been put on notice of
possible abuse or other mitigating evidence to pursue that
evidence, or to make an informed strategic decision not to pursue
that evidence. See Moore, 194 F.3d at 616 (“[Counsel] testified
that he was aware of Moore’s troubled background at trial. That
awareness, which included knowledge that Moore’s family was
physically abusive, should have triggered some sort of inquiry
into Moore’s background.”).
9
The lower court recognized this fact when it held:
“Petitioner’s trial counsel’s affidavits preclude a finding that
the decision not to present evidence of his abusive childhood was
a tactical decision . . . .”
10
As discussed infra, the fact that counsel erroneously
understood the law may not be sufficient to find ineffectiveness.
9
and the court’s tentative grant of funds for a psychologist,11
counsel never had Lewis undergo psychological testing. As has
been demonstrated by Lewis’s federal habeas counsel, such testing
may have developed mitigation evidence useful for the punishment
phase of trial.12 See Moore, 194 F.3d at 613-15 (granting relief
due in part to federal habeas counsel’s production of
“substantial evidence of impaired mental development and
functioning, and some evidence of organic brain damage resulting
from severe trauma”); see also Loyd v. Whitley, 977 F.2d 149,
157-58 (5th Cir. 1992) (granting relief where counsel failed to
develop independent evidence of mental disease or defect).
Further, school records and teachers’ affidavits were not
investigated to demonstrate Lewis’s long-standing cognitive
difficulties.
Despite these factual similarities to the ineffective
assistance of counsel holding in (Terry) Williams, we cannot
reach the conclusion that Lewis’s attorneys were deficient
without further factual development. Our primary concern is that
Texas law at the time of Lewis’s trial presented a vexing problem
11
On March 6, 1987, the state court granted a motion
approving the appointment of a defense psychologist, but
requested a cost estimate for the proposed expert. Despite its
availability, counsel neither provided the court an estimate nor
sought the services of a psychologist to evaluate Lewis.
12
The fact that counsel initially requested the appointment
of a psychologist belies the argument that counsel was unaware of
any mental infirmities of Lewis.
10
for defense counsel seeking to introduce mitigating evidence. As
was ably argued in the State’s Response to Appellant’s Petition
for Panel Rehearing, the existing Texas capital sentencing law
created a dilemma13 for counsel not to introduce certain
mitigating evidence that might have a double-edged nature.14 As
stated, the affidavits submitted by Lewis’s counsel implicitly
reflect this Hobson’s choice not to introduce mitigating evidence
of childhood abuse or mental impairment because they thought it
13
As Judge Reavley recognized in May v. Collins:
This fixed state of the law left defense counsel
representing victims of child abuse and mental impairment
with a tactical dilemma: (1) either to present the
mitigating evidence, which would do more harm than good by
bolstering the state's case with regard to future
dangerousness, and then to pursue a losing constitutional
argument; or (2) to withhold that evidence and hope that
other arguments would persuade the jury to impose a life
sentence. Any capable defense attorney would pursue the
latter course, as did May's counsel. Counsel's tactical
decision, wise and necessary at the time, may be considered
imprudent today because of an unpredictable change in the
law. The important reality is that May's jurors were
prevented from hearing extremely probative evidence on his
moral culpability and on the appropriateness of a death
sentence. Consequently, May has been deprived of the
sentencing jury's fully informed judgment of his crime and
his character. He has been caught in a web spun of words
and logic that, in the end, has deprived May of his
constitutional rights, a deprivation that may cost him his
life.
904 F.2d 228, 234 (5th Cir. 1990) (Reavley, J., concurring).
14
In the non-Texas (Terry) Williams case, the Supreme Court
found that the double-edge nature of the evidence did not excuse
counsel’s deficient performance. See 120 S. Ct. at 1514 (“Of
course, not all of the additional evidence was favorable to
Williams.”).
11
could be considered by the jury only as an aggravating factor.
While counsel’s statement on relevancy was, as we noted,
incorrect, the remaining question is whether this erroneous
understanding fell below an objective standard of reasonableness
at the time of Lewis’s trial.15 With the issue thus framed, we
turn to the standard for granting an evidentiary hearing.
“A defendant is entitled to an evidentiary hearing if he
alleges facts that, if proved, would entitle him to relief, and
the record reveals a genuine factual dispute as to the alleged
facts.” Theriot v. Whitley, 18 F.3d 311, 315 (5th Cir. 1994).
From our analysis of (Terry) Williams, Lewis has alleged facts
that may entitle him to relief on the deficient performance of
counsel claim. Further, under the pre-AEDPA standards for
granting an evidentiary hearing, we find that a question exists
15
From a quick review of pre-Penry Texas capital cases in
this circuit, it appears that despite this dilemma, other trial
counsel regularly investigated and pursued mitigation evidence as
a matter of course, but for strategic reasons often decided
against offering this evidence in the punishment phase. See,
e.g., Crane v. Johnson, 178 F.3d 309, 315 (5th Cir. 1999) (“All
of the evidence that Crane contends should have been presented at
the punishment phase of his trial had a double-edged quality.
Trial counsel decided the evidence was potentially more harmful
than helpful.”); Washington v. Johnson, 90 F.3d 945, 953 (5th
Cir. 1996) (after interviewing family and teachers and retaining
investigator to develop mitigation evidence, counsel decided not
to introduce mental health evidence); Mann v. Scott, 41 F.3d 968,
983-84 (5th Cir. 1994) (counsel admitted in affidavit that he
made a strategic decision not to introduce evidence of abuse).
The question remaining for the evidentiary hearing is whether it
can be said that Lewis’s counsel undertook any strategic
calculation or informed balancing about possible mitigating
evidence.
12
about the reasonableness of counsel’s punishment phase
performance in the context of the Texas special issues statute,
raising a substantial issue of material fact.16 An evidentiary
hearing is thus appropriate.17
To be entitled to an evidentiary hearing, Lewis must also
allege facts that would entitle him to relief based on the
prejudice prong of Strickland’s ineffective assistance of counsel
framework. Again, we are bound by the Supreme Court’s decision
in (Terry) Williams, which found that counsel’s deficient
performance “prejudiced Williams within the meaning of
Strickland.” 120 S. Ct. at 1516. The Court recognized that
there existed “a reasonable probability that the result of the
sentencing proceeding would have been different if competent
counsel had presented and explained the significance of all the
available evidence.” Id. (Terry) Williams therefore cautions us
not to dismiss the prejudicial effect of failure to investigate
and introduce mitigation evidence in the punishment phase of a
16
See 28 U.S.C. § 2254(d) (1994); Townsend v. Sain, 372
U.S. 293 (1963). “A federal habeas court must hold an
evidentiary hearing if there are disputed facts and the
petitioner did not receive a full and fair hearing in a state
court, either at trial or in a collateral proceeding. This
standard applies equally to ineffective assistance of counsel
claims.” Wiley v. Puckett, 969 F.2d 86, 98 (5th Cir. 1992)
(citations omitted). Under the pre-AEDPA standard, we are
satisfied that the prerequisites for an evidentiary hearing have
been met.
17
We note that there has never been an evidentiary hearing
in state or federal court on this or any issue in Lewis’s case.
13
capital case. See id. “Mitigating evidence unrelated to
dangerousness may alter the jury’s selection of penalty, even if
it does not undermine or rebut the prosecution’s death-
eligibility case.” Id. at 1516.
In evaluating whether there was “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” id. at 1502 (quoting
Strickland, 466 U.S. at 694), the Court looked “to the totality
of the available mitigating evidence,” id. at 1515, and concluded
that such “unprofessional service prejudiced Williams within the
meaning of Strickland.” Id. We find the omitted evidence in
Lewis is similar in degree and kind to (Terry) Williams and,
consequently, that Lewis has alleged facts that demonstrate
prejudice and, thus, if proven in an evidentiary hearing, may
entitle him to relief.18
However, as in our discussion on deficiency, our concern
centers around the particular dilemma created by the Texas
special issues statute. In remanding this case, we charge the
district court to determine under the then-existing Texas death
penalty statute, and in light of (Terry) Williams, whether Lewis
was prejudiced by counsel’s failure to adequately investigate and
18
We recognize that in (Terry) Williams, “prejudice” was
found despite the existence of serious aggravating evidence,
including several violent felony convictions and expert testimony
that “Williams would pose a serious continuing threat to
society.” (Terry) Williams, 120 S. Ct. at 1500.
14
present mitigating evidence in the punishment phase of his trial.
Therefore, we GRANT Lewis’s petition for panel rehearing,
VACATE section II.C of the panel opinion as to its discussion of
the punishment phase ineffective assistance of counsel claims,
VACATE the district court’s judgment insofar as it denied habeas
relief on Lewis’s punishment phase ineffective assistance of
counsel claims and REMAND to the district court with instructions
to conduct a full evidentiary hearing solely on those claims. In
all other respects, we DENY the petition for panel rehearing.
No member of the panel nor judge in regular active service
of the court having requested that the court be polled on
Rehearing En Banc (FED. R. APP. P. and 5TH CIR. R. 35), the Petition
for Rehearing En Banc is DENIED.
15