Wilson v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 17, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-41084
MARVIN LEE WILSON,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
(6:01-CV-186)
--------------------
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Marvin Lee Wilson, a Texas death row
inmate, is before us seeking a certificate of appealability (COA)
to contest the district court’s grant of summary judgment
dismissing his federal habeas corpus petition filed pursuant to 28
U.S.C. § 2254. We deny COA.
*
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this opinion should not be published and is not precedent except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.
I
FACTS AND PROCEEDINGS
Wilson was convicted and sentenced to death for the murder of
Jerry Williams during the course of a kidnaping. See Wilson v.
State, 938 S.W.2d 57, 58 (Tex. Crim. App. 1996). On direct appeal,
the Texas Court of Criminal Appeals (CCA) reversed because of
improper jury arguments by the prosecutor and remanded for a new
trial. Id. at 58-62.
Following remand, Wilson was retried and was again convicted
and sentenced to death. Wilson v. State, 7 S.W.3d 136, 139 (Tex.
Crim. App. 1999). The discrete facts of Wilson’s crime as
reflected by the evidence were summarized by the state appellate
court on direct appeal. Id. at 139-41. Wilson’s conviction and
sentence were affirmed on direct appeal, id. at 141-48, and he
filed a state habeas application, which the CCA denied on the basis
of the trial court’s findings.
After exhausting his state remedies, Wilson filed the instant
§ 2254 petition in which he argued that (1) the trial court erred
in failing to instruct the jury that if he were sentenced to life
in prison, he would not be eligible for parole until he had served
35 years; (2) the statutory definition of kidnaping contained in
the Texas capital murder statute is unconstitutional and overly
broad; (3) the prosecutor exercised peremptory strikes in a
racially discriminatory manner (“Batson claim”); (4) the State
2
violated his right to be free from an unreasonable search and
seizure by introducing evidence seized pursuant to an invalid
search warrant; and (5) counsel provided ineffective assistance at
both the trial and appellate level (“ineffective assistance
claim”). The state filed a motion for summary judgment, arguing
that Wilson’s claims were procedurally barred or were otherwise
without merit.
The district court concluded that all of Wilson’s claims were
without merit, granted the state’s motion for summary judgment, and
dismissed Wilson’s § 2254 petition. Wilson timely filed notices of
appeal and a request for COA, which the district court denied.
II
ANALYSIS
A. AEDPA Review
To obtain a COA, Wilson must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When,
as here, the district court’s dismissal is on the merits, “[t]he
petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Determination whether to issue a COA does not involve full
consideration of the merits of the habeas claims; instead, it
“requires an overview of the claims in the habeas petition and a
general assessment of their merits.” Miller-El v. Cockrell, 123 S.
3
Ct. 1029, 1039 (2003). A petitioner must prove “something more
than the absence of frivolity or the existence of mere good faith,”
but he is not required to show that he would succeed on appeal.
Id. at 1040 (quotation marks and citation omitted). We review the
district court’s application of the AEDPA to the petitioner’s
constitutional claims and ask whether the district court’s
resolution of those claims was debatable among jurists of reason.
Id. at 1039.
The AEDPA provides a scheme of deference to be used in
reviewing claims in a state prisoner’s habeas corpus petition that
were adjudicated on the merits in state-court proceedings. See 28
U.S.C. § 2254(d); see also Hill v. Johnson, 210 F.3d 481, 484-85
(5th Cir. 2000). The AEDPA’s scheme of deference for claims thus
adjudicated requires a federal court to defer to the state court’s
resolution of both pure questions of law and mixed questions of law
and fact unless the state court’s determination was “contrary to”
or an “unreasonable application” of clearly established federal law
as determined by the Supreme Court. See Hill, 210 F.3d at 485(internal quotation marks omitted); see also § 2254(d)(1). A state
court’s decision is contrary to clearly established federal law if
it “applies a rule that contradicts the governing law set forth” in
Supreme Court cases or “if the state court confronts a set of facts
that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from
[the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06
4
(2000). A state court’s decision involves an unreasonable
application of clearly established federal law if the state court
“correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.” Id. at
407-08. Factual findings by the state court are presumed to be
correct in the absence of clear and convincing evidence to the
contrary. See 28 U.S.C. § 2254(e)(1).
Here, the district court found that the state habeas court’s
findings and conclusions were not entitled to deference under the
AEDPA because the judge who presided over Wilson’s habeas
proceeding had not presided over his trial. Nevertheless, in
addressing Wilson’s Batson claim, the court did defer to the trial
court’s findings.
In cases governed by pre-AEDPA law, we have held that factual
findings following a paper hearing by a judge other than the one
who presided at trial are not entitled to the presumption of
correctness. See Salazar v. Johnson, 96 F.3d 789, 792 (5th Cir.
1996)(because the state habeas judge was not the judge at the state
trial, the paper hearing was not an adequate and fair hearing);
Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996) (same, but
noting that a “paper hearing” conducted in a habeas proceeding by
a judge other than the trial judge was not automatically prevented
from receiving the presumption of correctness); Nethery v. Collins,
993 F.2d 1154, 1157 n.8 (5th Cir. 1993). We have not, however,
addressed in a precedential post-AEDPA opinion, the treatment to be
5
afforded a state court’s factual findings when, as here, they were
based on a paper record with conflicting affidavits and different
judges.1 We need not do so here because the resolution of that
issue is not determinative of the outcome in this case: The state
habeas court’s factual findings are supported by the remainder of
the record and Wilson cannot rebut them. Even if we were to review
Wilson’s claims de novo, we would not conclude that he has made a
substantial showing of the denial of a constitutional right in
connection with any of the claims we consider today.
In seeking a COA from us, Wilson has briefed only two of the
claims he made in the district court, viz., the Batson claim, and
the ineffective assistance claim. In so doing, Wilson has
abandoned all other claims previously advanced. To be preserved,
arguments must be briefed, Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993), and claims not adequately argued in the body of the
brief are deemed abandoned on appeal. Id. at 224-25. Wilson is
deemed to have abandoned all claims not briefed on appeal,
preserving only his Batson claim and his ineffective assistance
claim.
B. Batson Claim
Wilson argues that the prosecutor exercised peremptory strikes
in a racially discriminatory manner. The Equal Protection Clause
forbids a prosecutor to challenge potential jurors solely on
1
We granted a COA on this issue in Bass v. Cockrell, No. 02-
20289. The case is now in the briefing stages.
6
account of their race. Batson v. Kentucky, 476 U.S. 79, 89
(1986). In Batson, the Supreme Court outlined a three-step process
for evaluating defense claims that a prosecutor used peremptory
challenges in a manner violative of the Equal Protection Clause:
(1) A defendant must make a prima facie showing that the prosecutor
has exercised his peremptory challenges on the basis of race; (2)
the burden then shifts to the prosecutor to articulate race-neutral
reasons for striking the veniremen in question; and (3) the trial
court must determine whether the defendant has carried his burden
of proving purposeful discrimination. Hernandez v. New York, 500
U.S. 352, 358-59 (1991), citing Batson, 476 U.S. at 96-98.
A defendant may establish a prima facie case of discrimination
solely on the basis of evidence concerning the prosecutor's
exercise of peremptory challenges. Batson, 476 U.S. at 96. To do
so, the defendant must show that he is a member of a cognizable
racial group and that the prosecutor exercised peremptory
challenges to veniremen of that group. The defendant must also
demonstrate that “these facts and any other relevant circumstances
raise an inference that the prosecutor used [peremptory challenges]
to exclude” the veniremen on account of race. Id.; accord, United
States v. Clemons, 941 F.2d 321, 323 (5th Cir. 1991).
The trial court should consider all relevant circumstances in
determining whether the defendant has established a prima facie
case. Factors to be considered by the trial court include a
“pattern” of strikes against veniremen of the challenged racial
7
group and the prosecutor’s questions and statements during voir
dire and in exercising challenges. The Supreme Court expressed
confidence in the ability of trial courts to supervise voir dire
and determine whether the circumstances create an inference of
discrimination. Batson, 476 U.S. at 96-97.
Wilson contends that the prosecution used peremptory
challenges to eliminate black veniremen but accepted non-black
veniremen who possessed the same characteristics as the eliminated
Blacks. Accordingly, he insists the race-neutral reasons offered
by the prosecutor for excusing prospective black jurors were
pretextual.
In Miller-El, a case involving a Batson claim and the standard
for the issuance of a COA, the Supreme Court held that “[s]ince
Miller-El’s claim rest[ed] on a Batson violation, resolution of his
COA application require[d] a preliminary, though not definitive,
consideration of the three-step framework mandated by Batson.”
Miller-El, 123 S. Ct. at 1040. In Miller-El, the State conceded
that Miller-El had established a prima facie showing of
discrimination, and Miller-El acknowledged that the State proceeded
through step two of the Batson analysis by proffering facially
neutral explanations for the strikes. Id. Thus, the third step
presented the determinative question, i.e., whether Miller-El had
carried his burden of showing purposeful discrimination. Id.
The Supreme Court held that “[i]n the context of the threshold
examination [of a] Batson claim the issuance of a COA can be
8
supported by any evidence demonstrating that, despite the neutral
explanation of the prosecution, the peremptory strikes in the final
analysis were race based,” id. at 1041, and stated that “[i]t goes
without saying that this includes the facts and circumstances that
were adduced in support of the prima facie case.” Id. The Court
held that “[o]nly after a COA is granted will a reviewing court
determine whether the trial court’s determination of the
prosecutor’s neutrality with respect to race was objectively
unreasonable and ha[d] been rebutted by clear and convincing
evidence to the contrary.” Id. The Court also held that
“[w]hether a comparative juror analysis would demonstrate the
prosecutors’ rationales to have been pretexts for discrimination is
an unnecessary determination at this stage” of the appeal process.
Id. at 1043. Rather, explained the Supreme Court, “[a]t this
stage, . . . we only ask whether the District Court’s application
of AEDPA deference, as stated in §§ 2254(d)(2) and (e)(1), to the
petitioner’s Batson claim was debatable amongst jurists of reason.”
Id. at 1041-42.
The Supreme Court concluded in Miller-El that the district
court erred when it “accepted without question” the fact-findings
made by the state trial court and when it failed to give full
consideration to the substantial evidence the petitioner put forth
in support of his prima facie case, id. at 1042, and that we had
evaluated the petitioner’s application for a COA in the same way.
Id. The Court held that such analysis was error because it
9
required the petitioner to meet the requirements for actual habeas
corpus relief, rather than those needed for the issuance of a COA.
Id. The Court further reasoned that rather than deciding the
merits of the appeal, we should only have inquired whether a
“substantial showing” of the denial of a constitutional right had
been proved. Id.
When read in isolation, portions of the Court’s language in
Miller-El might suggest that an appellate court lacks jurisdiction
to deny a COA to a petitioner based on the merits of the petition;
yet the court in Miller-El also stated that the primary
consideration at the COA stage is “the debatability of the
underlying constitutional claim, not the resolution of that
debate.” Id. Further, the Court said that the “issuance of a COA
must not be pro forma or a matter of course,” and that a petitioner
seeking a COA must prove “something more than the absence of
frivolity[.]” Id. at 1040 (quoting Barefoot v. Estelle, 463 U.S.
800, 893 (1983)). Thus, the Supreme Court left open the
possibility that COA may be denied if there can be no debate
regarding the underlying constitutional claim under the facts as
advanced by the petitioner.
In the instant case, Wilson and the State appear to agree that
Wilson established a prima facie case of discrimination, and that
the State presented race-neutral explanations to rebut that prima
facie case. Therefore, we turn to the third step of Batson. We
10
examine whether Wilson has made a substantial showing that the
State engaged in purposeful discrimination when it exercised
various peremptory challenges.
Wilson first contends that the prosecution improperly struck
Euraline Andrus because (1) “[s]he was extremely weak on the death
penalty;” and (2) she had two sons who, she believed, were treated
unfairly by the criminal justice system. We consider the latter
justification first.
Wilson claims that this second explanation for striking Andrus
was a pretext for discrimination. In support of this contention,
Wilson argues that the State failed to exclude two similarly-
situated jurors: John Murphy, who also felt betrayed by the legal
system, and Lisa Ann Phillips, who had friends and family who were
serving time.
Contrary to Wilson’s contentions, Andrus (who was stricken),
Murphy, and Phillips (who were not) did not have the same or
similar attitudes about the criminal justice system. Murphy felt
“betrayed” by it, not because he or someone else he knew had been
treated unfairly, but because “[l]ife in prison” did not mean
“life” but some lesser sentence (“15, 20 years; and then they get
paroled”). Murphy related that when he sat on a jury previously,
the jurors were under the impression that the defendant was to be
sentenced to life, only to find out later that he would probably
receive a lesser sentence. He stated that he and the other jurors
felt “betrayed.”
11
Phillips admitted that she had friends and family in the
penitentiary; however, unlike Andrus, Phillips expressed no
animosity towards the justice system or the prosecutors who
participated in their cases; whereas Andrus felt that her sons had
been treated unfairly by the arresting officer and the district
attorney’s office.
Wilson has failed to demonstrate that Andrus, Murphy and
Phillips were similarly situated. As a result, it seems clear that
the State’s second asserted justification for excluding Andrus (her
attitude toward the criminal justice system) was a legitimate,
race-neutral explanation. Therefore, without even examining the
State’s other justification for striking Andrus (her attitude
toward the death penalty), we can conclude that Wilson has not made
a substantial showing that the exclusion of Andrus was
discriminatory. See Moore v. Keller Indus., 948 F.2d 199, 202 (5th
Cir. 1991) (concluding that “because multiple reasons led [the
defense] counsel to strike [two jurors] the existence of other
jurors with some of their individual characteristics does not
demonstrate that the reasons assigned were pretextual”); see also
Alverio v. Sam’s Warehouse Club, Inc., 253 F.3d 933, 941 (7th Cir.
2001) (“[W]here a party gives multiple reasons for striking a
juror, it is not enough for the other side to assert that the
empaneled juror shares one attribute with the struck juror.”).
12
Wilson next contends that the State violated Batson when it
struck Tammy Ruffin because she was too anxious to serve on the
jury, but failed to strike Kellie Meaux, Robert Huckaby, Viole
Willis, Jack Oliver, Clifford Tomplait, Christine Thompson, or
Michael McFarland, each of whom expressed a desire to serve on the
jury. Our review of the record satisfies us that Ruffin did not
have the same or similar attitude toward serving as did the other
seven identified by Wilson.
Ruffin, who was stricken, acknowledged that she did not
believe in the death penalty, but went on to explain that she
wanted to serve on the jury because she was a “starting paralegal”
and that she was “trying to learn certain things.” In contrast,
Meaux, who professed a belief in the death penalty, stated that she
did not “have a problem with being on the jury.” Likewise,
Huckaby, who also expressed a belief in the death penalty, said
that although he did not particularly want to serve on the jury, he
understood that it was his “duty to serve” and that he “believe[d]
in that.” And, Willis, another acknowledged believer in the death
penalty, declined the opportunity to be excused on account of his
age, explaining that he believed that it was his “civic duty” to
serve on a jury and that “anytime that you’re asked to serve your
community that you should do so.” Oliver, another proponent of the
death penalty, explained that the reason he wanted to serve on the
jury was that he thought more people “ought to try to serve on a
jury instead of trying to avoid it” and that he had the “time and
13
know-how to do it.” Thompson, who considered the death penalty to
be warranted in certain cases (“if a person messes with a child,
that, to me, deserves a death penalty”), was asked whether she
wanted to serve on the jury, to which she responded somewhat
equivocally, “I think so.”
Tomplait, yet another death penalty proponent, stated that he
was willing to serve on the jury if he were needed because he is
“retired” and “available,” in contrast to some others for whom “it
would be a hardship on them.” He explained further that he was an
“American and [that] we have a jury system and the jury system is
made up of citizens.” Tomplait also ventured the belief that it
was his responsibility to serve and that he “always tried to be a
responsible person.” McFarland, too conceded a belief in the death
penalty, relating that he was willing to serve on the jury “more so
than not” and explaining that he had never served on a jury before
and that he would not take jury service lightly because a “man’s
life [was] at stake.” Although McFarland said that he did not
necessarily want to participate in a process that could result in
the death of another individual, he understood that it was his
civic duty and he was willing to do that.
Regarding Ruffin, Wilson appears to confuse the desire to sit
on the jury for her own purposes, i.e., to learn about the law,
14
with the desires of the other seven veniremen to fulfill their
civic duties. Ruffin is not comparable to these other veniremen.2
In Wilson’s next Batson claim he asserts that the State
committed a violation when it struck Cynthia Robertson because she
was equivocal about the death penalty and her job exposed her to
“fact situations that causes inmates to go to the penitentiary,”
but failed to strike Lattell Guidry whose answers on the jury form
were equivocal with regard to the death penalty and whose drug
counseling clients often went to prison. We do not view these two
potential jurors as being sufficiently similar for purpose of a
Batson comparison.
Robertson and Guidry did not have similar beliefs about the
death penalty. Although both said that they believed in the death
penalty, only Robertson stated that she did not want to have any
part in the death-penalty process and did not want to be on the
jury. Even though Guidry initially said that she did not want to
be a part of the trial process, she ultimately decided that she
could participate and fulfill her civic duty. It is true that both
2
Furthermore, the State offered two additional reasons for
striking Ruffin: She does not believe that a first degree felony
is a serious crime, and she appeared to be “too immature mentally
to understand the seriousness of this trial.” Wilson does not
suggest that these additional reasons are pretextual; in fact, both
age and the prosecutor’s belief that a juror would have trouble
understanding the complexities of the case have been recognized as
legitimate reasons for peremptorily striking a potential juror.
Clemons, 941 F.2d at 325 (age); United States v. Hinojosa, 958 F.2d
624, 632 (5th Cir. 1992)(trouble understanding the complexities of
the case).
15
hold jobs that bring them in contact with the criminal element, but
Robertson works in the prison system whereas Guidry is a drug
counselor. Accordingly, Wilson’s attempt to compare Guidry and
Robertson in support of his Batson claim fails.
Wilson next contends that the State violated Batson when it
offered an additional reason for striking Robertson, i.e. for not
knowing that the trial consisted of two phases (the guilt/innocence
and punishment phases), but failed to strike Dianna Kasper, who was
also unaware of the different phases. Wilson’s attempt to compare
Kasper and Robertson fails to provide support for his Batson claim.
Even after being questioned by the State and defense counsel,
Robertson still exhibited a lack of sufficient understanding of the
murder trial process. For example, Robertson was initially unaware
of the fact that the jury could convict Wilson of the lesser-
included offense of kidnaping, and the rule that the defendant
never has the burden of proof. Robertson also indicated that,
notwithstanding a defendant’s constitutional right not to testify,
she would like to hear from the defendant during trial.
In contrast, Kasper had a much more sophisticated
understanding of the trial process. She said that she was aware
that Wilson could be convicted of the lesser-included offense of
kidnaping and that she did not expect the defendant to testify. It
is apparent from the record that the State’s decision to strike
Robertson, but not Kasper, does not constitute evidence of
discrimination. The prosecutor’s belief that Robertson had trouble
16
understanding the complexities of the case is a race-neutral reason
for removing her from the jury. Hinojosa, 958 F.2d at 632.
Continuing, Wilson next asserts that the State improperly
struck Joseph Tackwood because (1) he did not understand the
difference between guilt beyond a reasonable doubt and guilt beyond
all doubt, (2) he wore dark sunglasses, and (3) he had never
thought about serving on the jury, even after the general voir
dire. Wilson claims that first reason given by the State was a
pretext for discrimination. Wilson relies on the fact that the
State did not strike Xuan Duong and Viole Willis, non-African-
American veniremen, who (according to Wilson) also expressed
confusion about the concept of guilt beyond a reasonable doubt.
We need not determine whether Tackwood, Duong, and Willis had
similar difficulties understanding the State’s burden of proof. As
we have seen, the State had alternative reasons for striking
Tackwood from the jury. Tackwood’s appearance (wearing dark
sunglasses) and the prosecutor’s inability to make eye contact (“I
couldn’t see his eyes”) are legitimate, race-neutral grounds for a
peremptory strike. See United States v. Bentley-Smith, 2 F.3d
1368, 1374 (5th Cir. 1993)(challenges may be based on subjective
factors such as lack of eye contact); Clemons, 941 F.2d at 324-25(juror’s physical appearance is a legitimate basis for a peremptory
strike). Wilson does not contend that these rationales applied to
any other juror. Because the State clearly had a race-neutral
17
rational for striking Tackwood, Wilson cannot make a substantial
showing that the exclusion of Tackwood was racially discriminatory.
See Moore, 948 F.2d at 202.
Although Wilson next complains about the striking of Lois
Hayward, who is black, he concedes that she was struck for medical
reasons. Wilson likewise contests the State’s proffered reasons
for striking Alfred Thomas: that he did not believe in the death
penalty and that he knew Wilson’s wife and considered her to be
truthful. And Wilson complains of the State’s striking Mary Nixon
for refusing to say where her husband worked, for being combative
and abrupt with both State and defense counsel, and for displaying
an attitude that was not conducive to working with 11 other people.
Wilson does not now contend, however, that the use of these
peremptory strikes violated Batson; neither does he attempt to draw
any similarities between Thomas and Nixon on the one hand and, on
the other hand, the veniremen who were not stricken.
Wilson does insist that the State violated Batson when it
struck Fay Gabriel for having served on a hung jury, yet failed to
strike Dianna Kasper who also had served on a hung jury. The
prosecutor explained the difference: Gabriel was stricken because
she appeared to be “very proud of the fact that she hung that jury
up.” Contrary to Wilson’s contention, Gabriel and Kasper did not
exhibit the same or similar attitude. Gabriel volunteered that in
her prior jury service, she had “held out” for a not guilty
18
verdict, causing the judge to declare a mistrial. Kasper, in
contrast, did not claim to be the juror whose vote produced the
hung jury. Moreover, a prosecutor’s perception of a venireman as
strong-willed and obstinate, and the prosecutor’s belief that a
venireman might not engage in meaningful deliberations, are
legitimate grounds for a peremptory strike. Washington v. Johnson,
90 F.3d 945, 954 (5th Cir. 1996).
In sum, Wilson has failed to make a substantial showing of the
denial of a constitutional right with regard to his Batson claim.
Accordingly, COA is denied on it.
C. Ineffective Assistance Claim: Trial Counsel
To demonstrate that he received ineffective assistance at
trial, a defendant must show, under the two-prong test enunciated
in Strickland v. Washington, 466 U.S. 668, 687 (1984), that
counsel’s assistance was deficient and that the deficiency
prejudiced his defense. A failure to establish either deficient
performance or resulting prejudice defeats the claim. Id. at 697.
To demonstrate a deficient performance, a defendant must show that
“counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. at 687. To demonstrate prejudice, a defendant 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, and that counsel’s errors were so serious
19
that they rendered the proceedings unfair or the result unreliable.
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). As claims of
ineffective assistance of counsel involve mixed questions of law
and fact, they are governed by the standards set forth in §
2254(d)(1). See Briseno v. Cockrell, 274 F.3d 204, 206-08 (5th
Cir. 2001).
Wilson argues first that his trial counsel was ineffective for
failing “to gather the probable cause affidavits that were a matter
of public record.” He insists that in one of the probable cause
affidavits, there is a reference to an individual named “Gun.”
Wilson contends that “Gun” was a member of a gang called the
Bloods.
This claim is at best conclusional. Wilson fails entirely to
explain how counsel’s failure to gather the affidavits and to
ascertain that one or more of them contained references to “Gun”
would have altered the outcome of trial. Conclusional allegations
of ineffective assistance of counsel are insufficient to establish
habeas relief. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.
2000). Here the defense was well aware of “Gun,” knew that the
search warrant referenced someone with the nickname “Gun,” and knew
that “Gun” was, or might have been, a member of the Bloods. This
claim is without merit.
Wilson next advances a one-sentence argument that his trial
counsel was ineffective for failing to request a charge on the
lesser-included offense of murder. In a capital case, the jury
20
must be permitted to consider a verdict of guilt of a noncapital
offense when the evidence presented would support such a verdict.
Beck v. Alabama, 447 U.S. 625, 634-38 (1980). Accordingly, a
“defendant is entitled to an instruction on a lesser included
offense if the evidence would permit a jury rationally to find him
guilty of the lesser offense and acquit him of the greater.” Id.
at 635 (citations omitted); see Cordova v. Lynaugh, 838 F.2d 764,
767 (5th Cir. 1988). In Beck, the Court reasoned that precluding
the jury from convicting a defendant of a non-capital offense,
thereby forcing either conviction of a capital offense or
acquittal, undermines the reliability of the jury’s verdict. Beck,
447 U.S. at 637, 642-43. The mandatory instruction on a lesser
included noncapital offense provides a third option as a safeguard
against the risk of an “all or nothing” jury verdict on the capital
offense. Id.; see also Spaziano v. Florida, 468 U.S. 447, 455
(1984).
We have held that when a claim turns on application of state
law rather than federal law, a jury instruction on lesser included
offenses is mandated if, under state law as applied to the facts of
the case, a rational juror could vote to convict the defendant of
the lesser offense and to acquit on the greater. Hill v. Black,
932 F.2d 369, 374 (5th Cir. 1991). In Texas, murder is a lesser
included offense of capital murder. TEX. PENAL CODE ANN. § 19.03(c).
Nonetheless, Wilson has failed to direct our attention to any
evidence in the record that would support a verdict of murder.
21
Wilson’s bald assertion that a lesser-offense instruction was
warranted is insufficient to earn him habeas relief. See Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (conclusional
allegations insufficient to warrant § 2254 relief). As Wilson
cannot show that he was entitled to a lesser-included-offense
instruction, he fails to demonstrate that counsel was ineffective
for failing to request such an instruction.
Furthermore, a lesser-included-offense instruction for murder
would have been inconsistent with the defense theory that Wilson
did not murder Jerry Williams; that instead he was killed by “Gun”
or someone else at “Gun’s” direction. Thus, in addition to lack of
entitlement, the failure of counsel to request a murder instruction
was a legitimate strategic choice, on its own sufficient to eschew
deficient performance. See Turner v. Johnson, 106 F.3d 1178, 1187
& n.40 (5th Cir. 1997).
Wilson’s next ineffective-assistance claim is that trial
counsel performed deficiently when he “showed up at jail and
improperly pressured a material witness to change his story.”
Wilson contends that this “evidence was repeatedly argued by the
State during its closing arguments.” Wilson confusingly argues
that the “fact that the jury was to consider future dangerousness
when coupled with these jailhouse visits, surely prejudiced” his
rights.
Following the homicide, the material witness, Lavergne,
identified Lewis in a photographic line-up and told law enforcement
22
agents that the man he identified in the photo was the “‘helper’”
rather than the “primary actor.” Wilson, 7 S.W.3d at 140.
According to Lavergne, the other man, who Lavergne described as
having a “‘gerry curl,’” made the threats and conducted most of the
beatings. When the same photograph of Lewis was shown to Lavergne
at trial, however, he testified that the person pictured was the
one with the gerry curl and hence the primary actor, even though
Lavergne had identified Lewis as the “helper” rather than the
primary actor when he was shown the picture of Lewis at Wilson’s
first trial.
This contradiction in Lavergne’s testimony prompted further
questioning which eventually revealed that defense counsel had
visited Lavergne three times while he was in jail on an unrelated
offense. This revelation allowed the State to suggest that defense
counsel had pressured Lavergne to change his testimony with regard
to who was the primary actor. The State was also able to elicit
the facts that (1) outside the presence of the prosecutor, defense
counsel had shown Lavergne a photographic line-up; and (2) Wilson
was present on this occasion and asked Lavergne for his father’s
name and whether he had a new baby. Lavergne testified that
Wilson’s questions scared and intimidated him “[a] little bit.”
Defense counsel’s meetings with Lavergne were reiterated during the
State’s closing arguments.
Even if we assume that Wilson’s trial counsel had attempted to
alter Lavergne’s testimony, Wilson does not argue that, but for
23
counsel’s engaging in such behavior, he (Wilson) would not have
been found guilty of capital murder or, even if found guilty, he
would not have been sentenced to death. All that Wilson asserts
is the bald conclusion that his “rights” were “prejudiced.” In
addition, Wilson’s argument —— that counsel’s jailhouse visits,
when coupled with the issue of future dangerousness, established
prejudice —— is nonsensical. Again, conclusional allegations of
prejudice are insufficient to establish ineffective assistance of
counsel. See Green v. Johnson, 160 F.3d 1029, 1041 (5th Cir.
1998).
Wilson next insists that the “biggest error occurred when
defense counsel performed an in-court comparison” of Wilson and
“Gun.” Trial counsel had “Gun” stand next to Wilson, apparently to
show how similar they looked and to suggest that “Gun,” not Wilson,
had killed Williams. This ploy appears to have backfired when the
State proved that “Gun” had been in jail at the time of the murder
and obviously could not have killed Williams.
It also appears, however, that defense counsel was aware that
“Gun” was in jail at the time of the shooting yet, for whatever
reason, made the tactical decision to conduct the in-court
comparison. “We will not find inadequate representation merely
because, with the benefit of hindsight, we disagree with counsel’s
strategic choices.” Green v. Johnson, 116 F.3d 1115, 1122 (5th
Cir. 1997). Accordingly, this claim fails to establish the
deficient-performance prong of Strickland.
24
Finally, Wilson claims that, cumulatively, the sum of trial
counsel’s errors rendered his conviction and sentence
constitutionally unreliable. As reflected by the foregoing
analysis, however, Wilson has failed to demonstrate either
deficiency or prejudice with regard to any of trial counsel’s
professional assistance; and absent specific deficiency and
prejudicial performance, there can be no cumulative ineffective
assistance of counsel.
We deny COA on Wilson’s claim of ineffective assistance of
trial counsel claim.
D. Ineffective Assistance Claim: Appellate Counsel
The Strickland standard also applies to claims of ineffective
assistance of appellate counsel, and Wilson must show both that his
appellate attorney’s errors constituted deficient performance and
that his case was prejudiced as a result. See Williams v. Collins,
16 F.3d 626, 635 (5th Cir. 1994). Wilson argues that counsel was
ineffective for failing to raise the Batson claim on appeal. To
show prejudice, Wilson must show a reasonable probability that, but
for his appellate counsel’s error, the outcome of his appeal would
have been different. Pitts v. Anderson, 122 F.3d 275, 279 (5th
Cir. 1997).
As we have determined that Wilson’s Batson claim is without
merit, appellate counsel cannot be found ineffective for having
failed to raise it; prejudice cannot result from counsel’s failure
25
to assert a meritless claim or make a meritless argument. See
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
We deny COA on the issue of ineffective assistance of
appellate counsel.
III
CONCLUSION
Wilson has failed to make a substantial showing that he was
denied a constitutional right or that jurists of reason could
debate the correctness of the denial of his habeas claims.
Miller-El, 123 S. Ct. at 1040; Slack, 529 U.S. at 484; 28 U.S.C.
§ 2253(c)(2). Wilson is therefore not entitled to a COA.
COA DENIED.
26