Lagrone v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS September 2, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 02-10976
_____________________
EDWARD LEWIS LAGRONE,
Petitioner - Appellant,
versus
DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CV-521
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:1
Edward Lewis LaGrone was convicted of capital murder and
sentenced to death. He seeks a Certificate of Appealability
(“COA”) to appeal the district court’s denial of federal habeas
relief for nineteen claims. We DENY a COA for each of the claims.
I
LaGrone was convicted of capital murder by a Texas jury in May
1993. The State presented evidence that he impregnated ten-year-
old Shakiesha Lloyd. In an attempt to prevent Shakiesha and her
1
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this opinion should not be published and is not precedent except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.
mother, Pamela Lloyd, from pursuing sexual assault charges against
him, LaGrone went to their residence and shot and killed Shakiesha
and two of her elderly great-aunts.
The Texas Court of Criminal Appeals affirmed LaGrone’s
conviction and sentence on direct appeal, and the Supreme Court
denied certiorari. LaGrone v. State, 942 S.W.2d 602 (Tex. Crim.
App.) (en banc), cert. denied, 522 U.S. 917 (1997).
LaGrone filed an application for state habeas relief in
October 1998. The Texas Court of Criminal Appeals adopted the
trial court’s findings of fact and conclusions of law, and denied
relief. Ex parte LaGrone, No. 40,890-01 (Tex. Crim. App. June 23,
1999) (unpublished).
LaGrone filed his federal habeas petition on December 7, 1999,
and an amended petition on March 27, 2002. The district court
adopted the magistrate judge’s recommendation and denied relief.
LaGrone v. Cockrell, 2002 WL 1968246 (N.D. Tex. Aug. 19, 2002).
The district court also denied LaGrone’s request for a COA.
II
LaGrone now requests a COA from this court for nineteen
claims. The State concedes exhaustion of all of the claims except
for the claims of ineffective assistance of counsel on appeal and
actual innocence. The district court noted, however, that the
actual innocence claim was presented in LaGrone’s state habeas
application. In any event, the district court had jurisdiction to
2
deny relief on the merits of any unexhausted claims. See 28 U.S.C.
§ 2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”).
“[U]ntil a COA has been issued federal courts of appeals lack
jurisdiction to rule on the merits of appeals from habeas
petitioners.” Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).
To obtain a COA, LaGrone must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-
El, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483 (2000).
To make such a showing, he must demonstrate that “reasonable
jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 123 S.Ct. at 1039 (quoting Slack, 529
U.S. at 484). Because the district court denied relief on the
merits, rather than on procedural grounds, LaGrone “must
demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”
Slack, 529 U.S. at 484.
In determining whether to grant a COA, our examination is
limited “to a threshold inquiry into the underlying merit of
[LaGrone’s] claims.” Miller-El, 123 S.Ct. at 1034. “This
threshold inquiry does not require full consideration of the
3
factual or legal bases adduced in support of the claims.” Id. at
1039. Instead, our determination is based on “an overview of the
claims in the habeas petition and a general assessment of their
merits.” Id. “Any doubt regarding whether to grant a COA is
resolved in favor of the petitioner, and the severity of the
penalty may be considered in making this determination.” Tennard
v. Cockrell, 284 F.3d 591, 594 (5th Cir. 2002).
III
We now turn to consider whether LaGrone has satisfied the
standard for issuance of a COA for each of his claims.
A
Claim 1: Exclusion of Evidence of Pamela Lloyd’s Drug Addiction
LaGrone claims that he was denied due process, a fair trial,
due course of law and equal protection, his right to confront
witnesses against him, and his right to effective assistance of
counsel when the state trial court refused to allow the defense to
present evidence of Pamela Lloyd’s addiction to and abuse of crack
cocaine, and refused to allow the defense an opportunity to prove
the effect that Pamela’s drug use had on the credibility and
reliability of her identification of LaGrone as the perpetrator.
At trial, Pamela Lloyd testified that she heard LaGrone’s
voice inside her home at the time of the murders. Her
identification of his voice was based on her acquaintance with him
for six years prior to the offense, her involvement in a six-month
4
relationship with him in 1985, and her numerous telephone
conversations with him in the days preceding the murders, after she
learned that her daughter, Shakiesha, was pregnant. Pamela’s
brother, Dempsey Lloyd, and her son, Charles Lloyd, also identified
LaGrone as the perpetrator.
LaGrone asserts that Dempsey and Charles Lloyd did not
identify him as the perpetrator immediately after the murders, and
that they changed their stories to identify him as the sole shooter
shortly before trial. He therefore contends that Pamela’s
identification of him as the shooter was critical to the State’s
case, and that he should have been allowed to fully impeach her
credibility.
In a hearing outside the presence of the jury, Pamela
testified that she had not used drugs on May 30, 1991, the date of
the murders, and that she stopped using cocaine after she learned
of Shakiesha’s pregnancy on May 26, 1991. The trial court ruled
that former Texas Rule of Criminal Evidence 608(b) prohibited
defense counsel from impeaching Pamela with evidence regarding her
use of, and addiction to, crack cocaine.
Dr. Schmitt, the defense psychologist, testified outside the
presence of the jury that, in his opinion, a person who had used
crack cocaine for several years and who had stopped for a period of
five days would still be affected psychologically, would be
suffering depressive symptoms that would make it difficult to be
5
productive or focused, and would have diminished responsiveness to
external stimulation, including voices. The trial court ruled that
Dr. Schmitt’s testimony was not admissible to impeach Pamela’s
testimony.
On direct appeal, the Texas Court of Criminal Appeals held
that, in order to impeach a witness’s perceptual capacity with
evidence of drug addiction, a party must demonstrate actual drug-
based mental impairment during the witness’s observation of the
crime. 942 S.W.2d at 613. The court reasoned that, since Pamela
was not under the influence of crack cocaine at the time of the
murders, impeachment evidence of prior drug use was properly
excluded. Id. at 613-14. The court also held that the trial
court’s evidentiary rulings were reasonable because the evidence
was prejudicial and collateral and, therefore, the Confrontation
Clause was not violated. Id. at 614.
Because the state court found the evidence to be inadmissible
under state rules of evidence, the district court refused to review
the state court’s interpretation of its own law. See Weeks v.
Scott, 55 F.3d 1059, 1063 (5th Cir. 1995) (federal habeas court
does not review state court’s interpretation of its own law).
Instead, the district court held that LaGrone was required to show
that the state court’s evidentiary rulings violated the
Confrontation Clause or that the error so infected the trial with
unfairness as to constitute a denial of due process. See Little v.
6
Johnson, 162 F.3d 855, 862 (5th Cir. 1998) (habeas relief not
warranted unless wrongfully excluded evidence “has played a
crucial, critical, and highly significant role in the trial”). The
district court held that Pamela’s testimony was not crucial to the
State’s case, because the totality of her testimony was that she
heard LaGrone, a man she had known for a number of years and had
dated for a period of time, speak one sentence inside of her house
at the time of the murders, and there were two other people
(Dempsey and Charles Lloyd) who gave eyewitness identification
testimony. The district court reasoned that, because there was no
evidence that Pamela’s prior drug use would have so inhibited her
powers of perception that she could not recognize a familiar voice,
the limitation of defense counsel’s cross-examination of Pamela,
and the exclusion of Dr. Schmitt’s testimony regarding the effect
of recent drug use on perceptual capacity, did not so limit the
defense’s ability to adequately confront Pamela that it constituted
a federal constitutional violation. The district court concluded
that the state court’s decision was not an unreasonable application
of federal law.
Reasonable jurists would not find the district court’s
assessment of this claim debatable or wrong. Even assuming that
the evidence was excluded erroneously, Pamela’s identification of
LaGrone did not play a “crucial, critical, and highly significant
role in the trial.” Little, 162 F.3d at 862. In addition to her
7
identification of LaGrone, the State also presented the testimony
of Dempsey and Charles Lloyd, who identified LaGrone as the
perpetrator. Furthermore, there was evidence that: LaGrone had a
girlfriend buy the murder weapon for him; the same gun was used to
kill all three victims; and LaGrone had a motive to kill Shakiesha
and the other family members because he was the father of her
unborn child and Pamela was pressing charges against him for
sexually assaulting Shakiesha. Because LaGrone has not made a
substantial showing of the denial of a constitutional right, we
deny a COA for this claim.
B
Claim 2: Failure to Disclose Victim Impact Statement
LaGrone claims that he was denied his right to due process and
equal protection as a result of the State’s failure to produce, and
the trial court’s failure to order the production of, Pamela’s
victim impact statement. LaGrone argues that the statement was
relevant and admissible to impeach the reliability and credibility
of Pamela’s identification testimony, because it was further proof
of her incapacity to accurately perceive the events on the morning
of the murders.
Approximately two weeks after the murders, Pamela completed a
“victim impact statement” form. In response to a question asking
how the crime had affected her, she wrote: “afraid, cannot sleep,
lack of appetite, mind comes & goes.” After trial, the State gave
8
defense counsel a copy of the statement. LaGrone moved for a new
trial, arguing that the prosecution had violated a pre-trial
discovery order and Brady v. Maryland, 373 U.S. 83 (1963), by
failing to disclose the statement prior to trial. The trial court
denied the motion.
On direct appeal, the Texas Court of Criminal Appeals held
that the State had no duty to disclose the statement because it was
not admissible under the Texas Rules of Criminal Evidence, which
prohibit the use of inchoate prior drug use including “nebulous
withdrawal symptoms” for impeachment. Furthermore, the Court of
Criminal Appeals held that, even assuming the statement was
admissible, LaGrone had not met his burden of showing that the
statement was material, because the statement’s “temporal and
logical context” contradicted LaGrone’s attempt to connect the
statement with Pamela’s identification of him. The Court of
Criminal Appeals concluded that LaGrone had failed to establish a
reasonable probability that the outcome of the trial would have
been different if the statement had been disclosed and defense
counsel had used it to impeach Pamela’s testimony. 942 S.W.2d at
615-16.
The district court held that the state court’s decision was
not an unreasonable application of Brady. The district court
observed that Pamela’s statement that her mind “comes and goes” was
not material to her identification testimony because the statement
9
was not about her perception of the murders, but instead was in
response to a question asking her to state how the crime had
affected her. The district court noted that Charles and Dempsey
Lloyd had identified LaGrone by sight as the shooter, and also
noted the evidence that LaGrone had a girlfriend buy the murder
weapon for him, that the same gun killed all three victims, and
that he had a motive to kill Shakiesha and the others because he
was the father of Shakiesha’s unborn child and Pamela was pressing
charges against him for sexually assaulting Shakiesha. The
district court concluded that, in the light of all of this other
evidence linking LaGrone to the crime, the state court did not
unreasonably apply federal law when it concluded that the slight
impeachment value Pamela’s victim impact statement might have had
was not material.
The district court’s assessment of the materiality of Pamela’s
statement is neither debatable nor wrong. The statement pertains
to the effects of the crime on Pamela and not to her perceptual
capacity at the time of the murders. Because LaGrone has not made
a substantial showing of a Brady violation, we deny a COA for this
claim.
C
Claims 3 and 5: Lack of Parole Instruction
LaGrone claims that the Texas death penalty statute, the Texas
Constitution, and the Texas Code of Criminal Procedure, facially
10
and as applied to him, violate due process, equal protection, and
the Eighth Amendment prohibition against cruel and unusual
punishment because they prohibited the jury from being informed
about his parole eligibility, while allowing the State to use
future dangerousness as a ground to support the death penalty
(claim 3). He also claims that he was denied due process and equal
protection because the trial court did not inform the jury of his
parole ineligibility for thirty-five years if given a life
sentence, and the effect of parole laws on his parole eligibility
had he been given a life sentence (claim 5). LaGrone acknowledges
that these claims are foreclosed by Fifth Circuit precedent.
Nevertheless, he argues that the length of time a defendant will
actually serve on a life sentence is highly relevant to a juror’s
decision on the issue of future dangerousness. His equal
protection argument is based on the fact that, in non-capital
felony cases, Texas law requires that the jury be instructed on
parole and the minimum sentence the defendant must serve before
becoming eligible for parole.
The state habeas court held that the trial court’s refusal to
instruct the jury on LaGrone’s parole eligibility did not violate
LaGrone’s federal constitutional rights.
The district court held that the state court’s conclusion is
a reasonable application of federal law. The district court
observed that LaGrone was convicted of a capital murder that was
11
committed in May 1991, before the law changed, effective September
1, 1991, to increase the parole ineligibility period for a life
sentence for capital murder to thirty-five years. Thus, had
LaGrone been sentenced to life imprisonment, under the law in
effect at the time the murders were committed, he would have been
eligible for parole in only fifteen years. The district court
relied on Fifth Circuit precedent holding that a parole eligibility
instruction is not required in Texas cases, but only in cases where
life-without-parole is a sentencing option. See Wheat v. Johnson,
238 F.3d 357, 361 (5th Cir. 2001); Hughes v. Johnson, 191 F.3d 607,
617 (5th Cir. 1999). The district court observed further that,
even assuming such an instruction is required, LaGrone’s claim
would be barred by the non-retroactivity principle of Teague v.
Lane, 489 U.S. 288 (1989). See Clark v. Johnson, 227 F.3d 273, 282
(5th Cir. 2000) (Teague bars claim that trial court’s failure to
instruct jury that petitioner would not be eligible for parole for
thirty-five years if sentenced to life imprisonment violated
Simmons v. South Carolina, 512 U.S. 154 (1994)).
The district court’s assessment of these claims is not
debatable or wrong. As LaGrone has acknowledged, his claims are
foreclosed by Fifth Circuit precedent. See Tigner v. Cockrell, 264
F.3d 521, 524-26 (5th Cir. 2001) (failure to instruct jury on
parole does not violate due process, the Eighth Amendment, or the
equal protection clause). Because LaGrone has not made a
12
substantial showing of the denial of a constitutional right, we
deny a COA for these claims.
D
Claim 4: Constitutionality of No Life-Without-Parole Option
LaGrone claims that the Texas death penalty statute, the Texas
Constitution, and the Texas Code of Criminal Procedure, facially
and as applied to him, violate due process, equal protection, and
the Eighth Amendment’s prohibition against cruel and unusual
punishment because they do not provide for a sentence of life
without parole. LaGrone argues that the statutory scheme allows
the State to systematically prove that virtually all capital
defendants constitute a future danger as a result of the State’s
failure to provide a sentence of life without parole and because of
the State’s record of releasing convicted felons after they have
served only a very small portion of their sentences.
The district court noted that LaGrone had failed to exhaust
this claim in state court, but denied relief on the merits,
pursuant to 28 U.S.C. § 2254(b)(2). The district court held that
the Texas capital sentencing scheme is not unconstitutional for
failing to provide life without parole as a sentencing option.
The district court’s assessment of this claim is neither
debatable nor wrong. As LaGrone acknowledges, this claim is
foreclosed by Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir.
1986) (rejecting identical claim). Because LaGrone has not made a
13
substantial showing of the denial of a constitutional right, we
deny a COA for this claim.
E
Claim 6: Ineffective Assistance/Parole Instruction
LaGrone claims that he was denied the effective assistance of
counsel and due process because his trial counsel failed to request
a jury instruction explaining that he was ineligible for parole for
thirty-five years and explaining the effect of parole laws on his
parole eligibility. He also argues that his appellate counsel
rendered ineffective assistance by failing to raise the issue on
direct appeal.
The state habeas court concluded that, because parole was not
a proper consideration for jury deliberation in a capital murder
case, and because the trial court would have rightfully denied the
instruction had counsel requested it, trial counsel was not
ineffective for failing to make the request.
The district court noted that LaGrone would have been eligible
for parole after only fifteen years (not thirty-five, as claimed by
LaGrone). It noted further that the jury was informed during the
punishment phase that LaGrone had been convicted of murder
previously, had received a twenty-year sentence, and had been
released on parole before serving his entire sentence. The
district court concluded that the state court did not unreasonably
apply Strickland v. Washington, 466 U.S. 668 (1984). The district
14
court held that LaGrone had failed to show how trial counsel were
ineffective for failing to request that the jury be informed that,
if LaGrone received a life sentence, he would again become eligible
for parole, after only fifteen years. Furthermore, the district
court concluded that LaGrone was not prejudiced by counsel’s
failure to request the instruction, because the Constitution does
not require such an instruction. Although the district court held
that LaGrone’s claim of ineffective assistance on appeal was not
exhausted, it denied relief on the merits of that claim, holding
that appellate counsel was not ineffective for failing to raise a
nonmeritorious ground on appeal.
The district court’s assessment of this claim is neither
debatable nor wrong. LaGrone’s counsel did not render deficient
performance by failing to request an instruction to which LaGrone
was not entitled. Furthermore, LaGrone was not prejudiced by
counsel’s failure to ask the trial court to inform the jury that,
if LaGrone were sentenced to life imprisonment, he would be
eligible for parole after serving only fifteen years.
F
Claim 7: “Probability”/Reduction of State’s Burden
The jury was instructed to answer the following special issue
on future dangerousness: “Do you find from the evidence beyond a
reasonable doubt that there is a probability that the Defendant
would commit criminal acts of violence that would constitute a
15
continuing threat to society?” (Emphasis added.) LaGrone claims
that he was denied due process because the use of the term
“probability” in this instruction reduced the State’s burden of
proof on the future dangerousness special issue from “beyond a
reasonable doubt” to only a “probability.”
On direct appeal, the Texas Court of Criminal Appeals held
that the inclusion of the term “probability” in the special issue
on future dangerousness did not lessen impermissibly the State’s
burden of proof beyond a reasonable doubt. 942 S.W.2d at 618.
The district court held that the state court’s conclusion is
not contrary to clearly established federal law, because LaGrone’s
jury was clearly instructed regarding the State’s burden of proof
beyond a reasonable doubt on the special issues. The district
court noted that the charge at the punishment phase included the
following instructions on the State’s burden of proof on the
special issues:
The burden of proof in this phase of the trial
still rests upon the State and never shifts to
the defendant. The prosecution has the burden
of proving that a “Yes” answer is appropriate
to each question submitted to you in this
phase of the trial beyond a reasonable doubt
and if it fails to do so as to any question,
you must not answer that question “Yes.” The
law does not require a defendant to prove that
the answer to a question is “No,” or produce
any evidence at all.
....
In the event a juror has a reasonable doubt
that a “yes” answer is the proper answer to a
16
question after considering all the evidence,
and these instructions, that juror should vote
to answer such question “No.”
....
The Court will impose the death penalty if the
jury’s answers to all of the questions are
“Yes”; therefore, in order to warrant the
imposition of the death penalty, you must
believe, beyond a reasonable doubt, that the
evidence supports affirmative answers to all
the questions.
Reasonable jurists would not find debatable the district
court’s assessment of this claim. The jury was clearly instructed
that the State had the burden of proof beyond a reasonable doubt on
all of the special issues. Accordingly, we deny a COA for this
claim.
G
Claim 8: Refusal to Define “Probability”
LaGrone claims that he was denied due process and equal
protection because the trial court refused to define the term
“probability”, as used in the special punishment issue on future
dangerousness, and because the term “probability” is vague and
indefinite.
On direct appeal, the Texas Court of Criminal Appeals held
that the term “probability” is not unconstitutionally vague or
indefinite. 942 S.W.2d at 618. The district court held that this
conclusion is not contrary to clearly established federal law.
17
The district court’s assessment of this claim is not debatable
wrong. As LaGrone acknowledges, this claim is foreclosed by our
precedent. See Hughes v. Johnson, 191 F.3d 607, 615 (5th Cir.
1999) (failure to define “probability” does not make that term
unconstitutionally vague).
H
Claims 9-12: State-sponsored Psychiatric Examination
LaGrone claims that he was denied his Sixth Amendment right to
counsel, his Fifth Amendment right to counsel and right not to
incriminate himself, and his right to due process and equal
protection when he was compelled to submit to a state-sponsored
psychiatric examination on the issue of future dangerousness.
Prior to trial, LaGrone filed a motion seeking independent
expert witnesses in psychiatry and psychology. In support of the
motion, he asserted that his mental and physical condition would be
a significant factor at both the guilt and sentencing phases of
trial. The trial court granted the motion, allowing LaGrone to be
examined by Dr. Schmitt.
In response, the State moved to have LaGrone examined by its
own mental health expert for the purpose of rebutting the testimony
of LaGrone’s expert should he testify on the issue of future
dangerousness. The trial court granted the State’s motion,
ordering that Dr. Coons be allowed to examine LaGrone. The trial
court also ordered the State to notify LaGrone’s counsel in advance
18
of the time and place of the examination. Although the trial court
refused to allow LaGrone’s counsel to be present during the
examination by Dr. Coons, it provided that LaGrone could recess the
interview and consult with his counsel. The court ordered Dr.
Coons not to relate anything about the examination to the State,
but instead ordered him to deliver his report to the court for in
camera inspection. Finally, the court ordered that, if LaGrone
presented mental health expert testimony at trial, Dr. Coons would
be allowed to observe that testimony and, thereafter, his report
would be turned over to the State.
At the punishment phase, LaGrone called Dr. Schmitt as an
expert witness. He testified regarding psychological tests he
administered to LaGrone, as well as information LaGrone told him
regarding his family history and previous drug use. He testified
that, in his opinion, LaGrone would not pose a future danger to
society.
In rebuttal, the State called Dr. Coons, who testified that he
attempted to examine LaGrone pursuant to the court’s order, but
that LaGrone refused to be interviewed by him. He testified
further regarding LaGrone’s reasons for refusing to cooperate: Dr.
Coons was hired by the prosecution and probably would not be fair,
and it was unlikely that Dr. Coons’ evaluation would help him.
Because of LaGrone’s lack of cooperation, Dr. Coons was unable to
give an opinion based upon his examination of LaGrone. Instead, in
19
response to hypothetical questions and, based upon the tests
administered by Dr. Schmitt and LaGrone’s history, he testified
that, in his opinion, there is a probability that a person with a
criminal background such as LaGrone’s would pose a continuing
threat to society.
LaGrone argues that he did not waive his Fifth and Sixth
Amendment rights, and that the trial court violated those rights,
as well as the equal protection clause, by ordering him to submit
to the examination by Dr. Coons. He contends that his Fifth and
Sixth Amendment rights were also violated by Dr. Coons’s refusal to
honor his exercise of his Fifth and Sixth Amendment rights; Dr.
Coons’s commenting to the jury that he had exercised those rights;
Dr. Coons’s opinion testimony beyond the scope of his expertise and
qualifications; and the denial of his right to have his attorney
present during Dr. Coons’s examination.
In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court
held that the admission of a psychiatrist’s testimony on future
dangerousness, which was the result of an interview conducted
pursuant to court order, violated Smith’s Fifth Amendment privilege
against self-incrimination because Smith was not advised before the
examination that he had the right to remain silent and that any
statement he made could be used against him at sentencing. The
Court observed that Smith had not requested the examination and had
not offered any psychological evidence; therefore, Smith had no
20
indication that the results of the examination would be used as
evidence against him. Id. at 466-68. The Court also held that
Smith’s Sixth Amendment rights were violated, because his counsel
was not notified in advance that the examination would encompass
the issue of future dangerousness; therefore, Smith was denied the
assistance of counsel in deciding whether to submit to the
examination. Id. at 470-71. The Court stated that a different
situation would arise where a defendant intends to introduce
psychiatric evidence at the penalty phase. Id. at 472.
In Buchanan v. Kentucky, 483 U.S. 402, 422-25 (1987), the
Court held that, when the defense requests a psychiatric evaluation
or presents psychiatric evidence, and trial counsel was aware of
the existence and scope of the examination, the prosecution may “at
the very least” rebut the defense’s presentation with evidence from
the defense-sponsored psychiatric reports.
Our court has held that a defendant’s Fifth and Sixth
Amendment rights are not violated when he is examined by a state-
sponsored psychiatrist and testimony based on the examination is
admitted at trial, after the defendant first introduces psychiatric
evidence, either on future dangerousness or insanity, the testimony
is admitted only for rebuttal, and defense counsel has received
advance notice of the scope of the examination. See Williams v.
Lynaugh, 809 F.2d 1063, 1067-69 (5th Cir. 1987); Vardas v. Estelle,
715 F.2d 206, 208-11 (5th Cir. 1983).
21
On direct appeal, the Texas Court of Criminal Appeals held
that, when a capital murder defendant indicates an intent to
present a mental health expert at the punishment phase of his
trial, his Fifth and Sixth Amendment rights are not violated by the
trial court allowing a State expert to examine him as well, so long
as his counsel is made aware that the results of the examination
may be used at the punishment phase, and the State’s expert
testifies in rebuttal to defense mental health evidence. 942
S.W.2d at 611-12.
The district court held that the state court did not
unreasonably apply federal law. The district court concluded that
LaGrone’s Fifth and Sixth Amendment rights were not violated
because LaGrone first introduced psychiatric evidence on the issue
of future dangerousness, the State presented Dr. Coons’s testimony
for rebuttal purposes only, and LaGrone’s counsel had advance
notice of the scope of Dr. Coons’s examination. The district court
held that LaGrone had failed to demonstrate that he has any greater
rights under the due process or equal protection clauses.
The district court’s assessment of this claim is neither
debatable nor wrong. LaGrone has not made a substantial showing
that his federal constitutional rights were violated by Dr. Coons’s
attempt to examine him or by Dr. Coons’s testimony. See Williams,
809 F.2d at 1067-69; Vardas, 715 F.2d at 208-11. We therefore deny
a COA for these claims.
22
I
Claims 13 and 14: Voir Dire/Definition of Common Terms
LaGrone claims that he was denied a fair trial and due process
when the trial court restricted the questioning of five prospective
jurors about their understanding of the term “probability”; and
when the trial court sustained the State’s objection to the
questioning of one prospective juror regarding his understanding of
the term “criminal acts of violence.” LaGrone argues that the
terms “probability” and “criminal acts of violence” are central to
the jury’s understanding of, and answer to, the special punishment
issue on future dangerousness and, because those terms are not
defined by the law, each juror’s understanding of those terms is
important to the outcome of the trial and to counsel in exercising
peremptory challenges.
On direct appeal, the Texas Court of Criminal Appeals held
that it was within the trial court’s discretion to limit the voir
dire examination regarding undefined terms used in the special
issues. 942 S.W.2d at 609.
The district court held that the state court’s determination
is not contrary to clearly established law. It relied on Fifth
Circuit precedent holding that a criminal trial is not
constitutionally infirm because the state trial judge would not
permit defense counsel to question prospective jurors as to their
understanding of terms included in the special punishment issues.
23
See Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th Cir. 1984)
(trial court’s refusal to allow counsel to inquire into a
prospective juror’s understanding of the terms “deliberately,”
“probability” and “criminal acts of violence” did not violate due
process or Sixth Amendment rights to trial by jury and counsel).
Because relief for these claims is foreclosed by our
precedent, the district court’s assessment of these claims is not
debatable or wrong. We therefore deny a COA for these claims.
J
Claim 15: Denial of Challenge for Cause
LaGrone claims that he was denied a fair trial and due process
when the trial court denied his challenge for cause to one
prospective juror who testified that he did not consider good
family background, economic deprivation, and good jail behavior to
be mitigating circumstances. LaGrone argues that the right to
present mitigating evidence is hollow if the sentencer will not
give such evidence effect in the sentencing decision.
During voir dire, defense counsel questioned prospective juror
Conner about whether he would consider certain circumstances as
evidence that would mitigate against the imposition of the death
penalty. Although Conner indicated that he would consider evidence
of mental illness, mental retardation, and a history of good deeds
as mitigating factors in assessing punishment, he stated that he
would not consider evidence of strong family ties or a record of
24
good behavior in jail as mitigating evidence and would most likely
not consider evidence of childhood economic deprivation as
mitigating unless it was of an unusual nature. Defense counsel
challenged Conner for cause, claiming that his inability to
consider these circumstances as mitigating evidence constituted a
bias against the law. The trial court denied the challenge, and
defense counsel later used a peremptory strike to remove Conner
from the panel.
On direct appeal, the Texas Court of Criminal Appeals held
that it was within the trial court’s discretion to deny the
challenge for cause, because LaGrone failed to establish that
Conner was biased against the law. 942 S.W.2d at 616.
The district court stated that a defendant in a capital case
is not entitled to challenge prospective jurors for cause simply
because they might view the evidence the defendant offers in
mitigation of the death sentence as aggravating instead of
mitigating. It therefore concluded that a prospective juror’s
statement that he does not consider a certain type of evidence as
mitigating does not subject him to a challenge for cause because it
is not evidence that he will be unable to perform his duties as a
juror. The district court held further that, even if the trial
court erred in denying the challenge for cause, LaGrone cannot
prove that the jury was, in fact, not impartial -- Conner was
struck by defense counsel and did not serve on the jury, and
25
LaGrone has identified no other juror who sat on the panel who was
not impartial and/or was subject to a challenge for cause.
Accordingly, the district court held that the state court’s
determination is not contrary to federal law.
The district court’s assessment of this claim is not debatable
or wrong. The trial court should grant a challenge for cause when
a prospective juror’s views would “prevent or substantially impair
the performance of his duties as a juror in accordance with his
instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45
(1980); Wainwright v. Witt, 469 U.S. 412, 424 (1985). In a capital
case, a trial court must grant a challenge for cause if a
prospective juror states that he would automatically impose a death
sentence without considering individual aggravating and mitigating
circumstances. Morgan v. Illinois, 504 U.S. 719, 729 (1992); see
also Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (“the sentencer
may not be precluded from considering, and may not refuse to
consider, any constitutionally relevant mitigating evidence”)
(emphasis added). The law does not, however, require a juror to
consider any particular circumstance as mitigating. Soria v.
Johnson, 207 F.3d 232, 244 (5th Cir. 2000) (Soria was not entitled
to challenge prospective jurors for cause who might view his
evidence offered in mitigation as aggravating).
LaGrone exercised a peremptory challenge against Conner,
“which is fatal to his claim that his right to an impartial jury
26
was violated.” Id. at 245 (citing Ross v. Oklahoma, 487 U.S. 81,
88 (1988)). Although LaGrone states conclusorily that he was
required to accept an objectionable juror because he was out of
peremptory strikes, he has not identified any juror who was not
impartial. Accordingly, LaGrone has not made a substantial showing
that his jury was not impartial. We therefore deny a COA for this
claim.
K
Claim 16: Clemency Procedures
LaGrone claims that his execution after review under current
Texas clemency procedures would violate his rights to substantive
and procedural due process, the Eighth Amendment’s prohibition
against cruel and unusual punishment, and international law. He
argues that Texas has arbitrarily and routinely denied persons
sentenced to death any meaningful review of their applications for
commutation. He argues that the Texas clemency procedures are
unconstitutional for the following reasons: Since 1972, the Texas
Board of Pardons and Paroles has held only one live clemency
hearing; decisions of the Board on commutation of death sentences
are made individually by board members, and they vote on cases by
facsimile; every post-Furman death sentence commutation granted in
Texas was sought by state trial officials, for the purpose of
avoiding a re-trial; no commutations of the death penalty have been
granted in cases where the commutation was sought by the convicted
27
person; and no commutations have been granted for mercy, doubts
about guilt, mental illness or capacity, rehabilitation, or other
humanitarian reasons. LaGrone concedes that his due process
challenge to the Texas system of commutation for death sentences is
foreclosed by our precedent. See Moody v. Rodriguez, 164 F.3d 893,
894 (5th Cir. 1999).
LaGrone also argues that the State’s failure to provide any
real or meaningful process for commutation violates Article 6, §§
1 and 4 of the International Covenant on Civil and Political Rights
(“ICCPR”), which requires that anyone sentenced to death have the
right to seek pardon or commutation.
The State argues that LaGrone’s claim based on the ICCPR is
not constitutionally cognizable, and that he lacks standing to
raise it, because he has not yet filed any request for clemency and
there is no indication of when, if ever, such a request might be
filed and no way of determining whether, if filed, his request will
be denied. The State argues further that, even if LaGrone could
complain about the Texas clemency process, he has no inherent
constitutional right to clemency, and the Fifth Circuit has held
that Texas capital clemency procedures provide the minimal
procedural safeguards required by federal law. Faulder v. Texas
Board of Pardons & Paroles, 178 F.3d 343, 344-45 (5th Cir. 1999);
Moody v. Rodriguez, 164 F.3d 893, 894 (5th Cir. 1999). Regarding
28
international law, the State argues that LaGrone’s interpretation
of the ICCPR is not binding on this court.
The state habeas court concluded that the Texas clemency
process satisfies the minimal procedural safeguards articulated in
Justice O’Connor’s concurring opinion in Ohio Adult Parole
Authority v. Woodard, 523 U.S. 272, 288-90 (1998). The court also
concluded that the ratification of the ICCPR did not provide
LaGrone with any rights not already provided by the federal
Constitution.
The district court held that the state court’s conclusions
were not an unreasonable application of federal law. The district
court concluded that LaGrone had failed to prove a violation of his
due process rights because there is no evidence that LaGrone will
be denied access to the clemency process when the time comes, nor
is there evidence that clemency decisions are made in an arbitrary
manner. The district court held further that LaGrone failed to
show how the Texas clemency process violates international law,
because the Senate has declared Articles 1-27 of the ICCPR not
self-executing, meaning that they cannot be in effect as law in the
United States without action by Congress incorporating the
provisions into domestic law. See Beazley v. Johnson, 242 F.3d
248, 267-68 (5th Cir. 2001).
The district court’s assessment of this claim is not debatable
or wrong. We therefore deny a COA for LaGrone’s clemency claim.
29
L
Claim 17: Ineffective Assistance of Counsel/Psychiatric Expert
LaGrone claims that his trial counsel rendered ineffective
assistance by presenting the testimony of psychologist Dr. Schmitt
during the punishment phase.
Dr. Schmitt testified that, based on his interview and
psychological testing, LaGrone has definite ideas of right and
wrong; but those ideas differ from those of general society because
of the “survival environment” in which LaGrone was raised. He
testified that LaGrone is a bright man with uncultivated talents
and abilities who is capable of being treated; that he believed
LaGrone would seek to improve himself in prison by continuing his
education and developing his artistic talents; and that he believed
LaGrone would not be violent. Although Dr. Schmitt conceded that
LaGrone would be dangerous if he were free to walk away from the
courtroom that day without any psychological treatment, he
emphasized that, if given a life sentence, LaGrone would not be a
future threat to society.
On cross-examination, Dr. Schmitt testified that LaGrone
retaliates when threatened, humiliated, or mistreated. He
reiterated, however, that he believed that LaGrone would get
psychological help and improve himself in prison, and that, without
help, LaGrone would be capable of violence. He testified that when
LaGrone is within a system of clearly-defined rules and
30
expectations and is under close supervision, his propensity for
violence is greatly diminished.
LaGrone argues that, although Dr. Schmitt’s testimony was
presented supposedly for the purpose of mitigation and to persuade
the jury to answer “no” to the special issue on future danger, Dr.
Schmitt instead testified that LaGrone showed no remorse and that,
if LaGrone were allowed to walk out of the courtroom, Dr. Schmitt
would not feel safe. He asserts that the State was thus able to
prove future danger merely by cross-examining the defense’s own
expert. He also argues that, by placing Dr. Schmitt on the witness
stand, his defense counsel opened the door to the State to present
the hypothetical opinion testimony of Dr. Coons, that LaGrone would
constitute a future danger to society even if he spent the rest of
his life in prison society. LaGrone argues that, if the defense
had not presented Dr. Schmitt’s testimony, the State would not have
been permitted to present Dr. Coons’s testimony in rebuttal.
The district court held that the state habeas court’s
determination that LaGrone’s counsel provided reasonably effective
assistance of counsel is not an unreasonable application of
Strickland, because LaGrone failed to establish either deficient
performance or prejudice. The district court stated that, because
Dr. Schmitt’s testimony was, on balance, supportive of the
defense’s goal of a life sentence, defense counsel used sound trial
strategy in deciding to call him as a witness. The district court
31
noted that Dr. Coons’s opinion on LaGrone’s future dangerousness
was given in response to a hypothetical question, and was not based
upon an examination of LaGrone. The court stated that LaGrone
presented no authority to support his contention that, had Dr.
Schmitt not testified for the defense at all, the State would have
been prevented from calling Dr. Coons to the stand to answer
hypothetical questions. Even assuming deficient performance, the
district court held that LaGrone failed to establish that there is
a reasonable probability that he would have received a life
sentence had Dr. Schmitt and Dr. Coons not testified: Given that
the jury had already convicted LaGrone of killing three people, and
had heard evidence that he had previously been convicted of murder,
sexually assaulted two teenaged girls, sold illegal drugs, and shot
Dempsey Lloyd twice with a shotgun, there is no reasonable
probability that the jury would have determined that LaGrone would
not be a future danger to society.
Reasonable jurists would not find debatable the district
court’s assessment of this claim. LaGrone has not made a
substantial showing that counsel rendered deficient performance by
presenting Dr. Schmitt’s testimony, or that there is a reasonable
probability that the outcome of the punishment phase would have
been different had counsel not presented the testimony. We
therefore deny a COA for this claim.
M
32
Claim 18: Actual Innocence and Selective Prosecution
LaGrone claims that he was denied due process, equal
protection, and a fair trial because he is actually and factually
innocent of the crime and because he was selectively prosecuted.
LaGrone states that all of the identifying witnesses, in their
original statements to the police, said that several men came into
the house on the morning of the murders. None of the witnesses
initially told the police that they saw LaGrone come into the house
and commit the murders. At trial, however, the identifying
witnesses all changed their stories to testify that only one person
entered the house, and that LaGrone was that person. LaGrone
maintains that there was significant evidence that the original
stories of the witnesses -- that several unidentified men entered
the house and committed the murders -- was the truth, as well as
evidence that another person admitted on more than one occasion
that he committed the murders. He asserts that one reasonable
inference from the evidence is that the murders may have been
related to Pamela Lloyd’s connections to the drug-trafficking
community.
LaGrone notes that his present counsel have received
information that, since his trial, Pamela Lloyd has been convicted
of and sentenced to prison for the murder of her boyfriend; and
that Dempsey and Charles Lloyd are both dead, possibly murdered.
33
He does not explain how any of this information is relevant to his
actual innocence or selective prosecution claims.
The state habeas court concluded that LaGrone had failed to
establish that he was actually innocent of capital murder because
he had not presented any newly discovered evidence. It rejected
LaGrone’s contention that the State created a false impression that
only one person entered the house and committed the murders, on the
ground that LaGrone was not entitled to relief because the jury in
reaching its verdict judged the credibility of witnesses. Finally,
the state habeas court concluded that LaGrone had failed to prove
that he was selectively prosecuted based on the State’s failure to
prosecute the men on the porch, because those men were not
similarly situated to LaGrone, inasmuch as the evidence showed that
LaGrone was either the sole or primary actor.
The district court held that the state court’s conclusions are
neither unreasonable applications of, nor contrary to, federal law.
The district court observed that LaGrone’s actual innocence claim
was raised in his state habeas application and therefore rejected
the State’s argument that the claim was not exhausted. The
district court held that LaGrone’s claim of actual innocence could
not be the basis for habeas relief absent an independent federal
constitutional violation. See Dowthitt v. Johnson, 230 F.3d 733,
741 (5th Cir. 2000) (a claim of actual innocence is not a ground
for federal habeas relief in the absence of an independent
34
constitutional violation, but is merely a gateway through which the
petitioner must pass in order to have an otherwise barred claim
considered on the merits). The district court rejected LaGrone’s
contention that the State presented a false impression at trial
that LaGrone was the only person who entered the house and shot and
killed the victims, because LaGrone failed to prove that the State
presented false testimony at trial. The court rejected LaGrone’s
selective prosecution claim because LaGrone failed to prove that
similarly-situated individuals were not prosecuted and thus failed
to establish that the prosecutorial policy had a discriminatory
effect and that it was motivated by a discriminatory purpose. See
McCleskey v. Kemp, 481 U.S. 279, 297, 306-07 (1987). The district
court noted that the State presented evidence that the same shotgun
fired all of the shell cartridges retrieved from the scene;
LaGrone’s girlfriend testified that, at his request, she bought the
shotgun used to commit the murders; and Charles and Dempsey Lloyd,
both of whom were familiar with LaGrone, testified that LaGrone
came into the house and began shooting people. Based on this
evidence, it was the State’s theory that only one person killed the
three victims, and that LaGrone was that person. Thus, the
district court concluded that LaGrone failed to show that the State
had a discriminatory purpose in prosecuting him, because the record
indicates that the State prosecuted him because the totality of the
evidence pointed to him as the perpetrator. The other three men
35
were not similarly situated to LaGrone, as the evidence indicates
that one person did the shooting, and there is no evidence that any
person other than LaGrone was the shooter.
The district court’s assessment of this claim is not debatable
among jurists of reason. LaGrone has not made a substantial
showing that he is entitled to relief because he is actually
innocent, or because he was selectively prosecuted. Accordingly,
we a deny a COA for these claims.
N
Claim 19: Denial of Access to State’s File and Evidence
LaGrone’s final claim is that he was denied due process and
equal protection during the state and federal habeas proceedings as
a result of the State’s refusal to grant his state and federal
habeas counsel access to the State’s file and evidence. LaGrone
states that the Tarrant County District Attorney’s office advised
his federal habeas counsel that, once the direct appeal is
complete, the State’s file is closed, and the District Attorney’s
office does not produce material to the attorneys appointed to
represent habeas petitioners. The District Attorney’s office
advised counsel to make any requests for discovery to the Texas
Attorney General’s office; but the Attorney General’s office does
not have possession of the State’s prosecution file or evidence.
LaGrone argues that, without access to the State’s file and
evidence, there is no way that state or federal habeas counsel can
36
do a complete job of determining whether he has received adequate
representation, whether he was denied exculpatory evidence, or
whether there was other error.
The state habeas court concluded that, because the prosecution
satisfied its obligations under Brady v. Maryland, and because
there is no general constitutional right to discovery or access to
the prosecution’s files, LaGrone’s claim with respect to the state
habeas proceedings was without merit. The district court held that
the state court’s conclusion is not contrary to federal law,
because LaGrone’s claim is an attack on a proceeding collateral to
his detention and not the detention itself. See Rudd v. Johnson,
256 F.3d 317, 319-20 (5th Cir. 2001) (rejecting claim of denial of
due process based on lack of access to State’s case file during
state habeas proceeding).
Regarding the lack of access to the State’s file during the
federal habeas proceeding, the district court noted that the
Supreme Court has never held that the federal Constitution requires
that the State maintain an open file policy. See Kyles v. Whitley,
514 U.S. 419, 437 (1995). The court noted further that LaGrone has
not alleged, much less shown, that any exculpatory, impeachment, or
mitigating evidence was withheld from his counsel. See United
States v. Bagley, 473 U.S. 667, 675 (1985) (“The prosecutor is not
required to deliver his entire file to defense counsel, but only to
37
disclose evidence favorable to the accused that, if suppressed,
would deprive the defendant of a fair trial.”).
The district court’s assessment of this claim is not debatable
or wrong. LaGrone has not made a substantial showing that he was
denied due process or equal protection as a result of counsel’s
lack of access to the prosecution’s files during the state and
federal habeas proceedings. We therefore deny a COA for this
claim.
IV
With respect to each of his nineteen claims, LaGrone has not
made a substantial showing of the denial of a constitutional right.
We therefore deny his request for a COA.2
COA DENIED.
2
The district court concluded that LaGrone’s federal habeas
petition was untimely filed, but found that equitable tolling was
warranted. Because we have denied LaGrone’s request for a COA, it
is not necessary for us to consider the State’s argument that the
claims are time-barred and that equitable tolling is unwarranted.
38