Capital Defense Weekly
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Finally, in Florida this week several prison guards have been suspended as investigations into the beating to death Frank Valdez, a death row inmate, continue.
http://www.sptimes.com/News/72099/State/Inmate_was_fatally_be.shtml

The right to counsel guaranteed to criminal defendants by the Sixth Amendment "is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); see also Strickland, 466 U.S. at 686. The Supreme Court in Strickland set the bar high for ineffective assistance claims. Petitioner must first establish that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Recognizing that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," the Court stated: "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Such an assessment is highly deferential to defense counsel's decisions at trial, with the attorney presumed to have rendered professionally adequate assistance. See id. at 690. A petitioner may overcome this presumption only by demonstrating that "the identified acts or omissions were outside the wide range of professionally competent assistance," id., meaning that the challenged action cannot reasonably be considered sound trial strategy under the circumstances of the case, see id. at 689.

Even if petitioner shows that his lawyer's performance was deficient, he must still prove that this prejudiced his defense. See id. at 687, 693. Though it is not enough for petitioner to establish merely that "the errors had some conceivable effect on the outcome of the proceeding," he is not required to "show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693. To prove prejudice, petitioner must demonstrate only that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," with a reasonable probability defined as "a probability sufficient to undermine confidence in the outcome." Id. at 694.

Lord's claim of ineffective assistance turns on counsel's failure to call to the stand three witnesses who, if believed, would have cleared Lord of the murder. However, it is impossible to judge any one piece of evidence without understanding the rest of the case. Omission of an item of proof may seem foolish until one understands the tradeoffs counsel would have had to make to include it. Did the item contradict other defense evidence? Was it so inherently implausible as to undermine defense counsel's credibility? Such questions cannot be answered without a thorough understanding of the case as presented to the jury. We therefore describe what happened at trial before considering the three absent witnesses.

*****
"A lawyer who fails adequately to investigate, and to introduce into evidence, [information] that demonstrate[s] his client's factual innocence, or that raise[s] sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance." Hart v. Gomez, No. 98-15932, 1999 WL 387247, at *3 (9th Cir. June 15, 1999). Mindful of the deference we owe counsel's trial strategy, we nevertheless conclude that counsel's cursory investigation of the three possible alibi witnesses, and their subsequent failure to put them on the stand, constitute deficient performance that was prejudicial to Lord's defense.

Though trial counsel claim that the statements of Holden, Huff and Ayers were vague and/or inaccurate, the police and investigator reports on which they relied in 1987 do not support their judgment. Holden and Huff spoke to the police the day after they saw the girl they thought was Tracy, and again a few days later. These reports were taken the closest in time to Tracy's disappearance and, not surprisingly, contain the fewest discrepancies.*fn6 The most important elements of the boys' statements remained consistent in each interview with police and defense investigators during the four-month period following Tracy's disappearance and murder: After going clam digging together on Wednesday, September 17, 1986, they saw a girl they believed was Tracy walking near Highway 308, and were certain the girl was not Tracy's sister, Shannon. Nor did any of the police or defense investigators conclude that the boys' statements were inaccurate. Zornes, for example, merely reported that the boys could not come up with a compelling temporal landmark to fix the day they saw Tracy.

Contrary to trial counsel's impressions, Holden, Huff and Ayers never expressed any significant doubt about the sighting. In 1986 and 1987, they steadfastly told the police and defense investigators that they were sure about their story.*fn7 To this day, none of the three has wavered from his belief that it was Tracy Parker whom they saw on September 17, 1986.

In fact, Ayers maintained in his affidavit that "I have never suggested to anyone that there was doubt [about seeing Tracy on September 17]," a statement echoed by Huff who said in his affidavit that "I have never expressed doubt about the identification or the date."

Though the boys had slightly inconsistent recollections of the sighting, all of the discrepancies were minor and turned on the kind of highly specific details that eyewitnesses often remember differently. Cf. United States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996) (discrepancies in eyewitness accounts of what a robber was wearing and whether he displayed a gun did not render the testimony insufficient to support the robber's conviction). After carefully reviewing the various statements given by Holden, Huff and Ayers over the years, we are struck by the monotonous consistency of their stories and the steadfastness with which they keep insisting that it was Tracy Parker they saw on September 17, 1986.

Trial counsel's failure to present their testimony was all the more questionable in light of the weaknesses in the prosecution's case against Lord. The prosecution had no DNA evidence or witnesses to the murder; no one had seen Tracy and Lord together on the day she disappeared; none of the trace physical evidence introduced at trial conclusively tied Lord to the crime; and much of the blood-related evidence was tainted by Phillips's mishandling of the leuco-malachite green tests, not to mention his subsequent attempts to cover up his mistakes.

Holden, Huff and Ayers's mutually reinforcing statements were probably the strongest evidence of Lord's innocence that trial counsel could have offered. The case they actually presented consisted solely of attacks on the reliability of the State's physical evidence and the credibility of its witnesses; they presented no contrary physical proof, no satisfactory explanation of the inconsistencies in Lord's statements about his whereabouts on the evening of Tracy's disappear ance and, perhaps most importantly, no alibi. Holden, Huff and Ayers, three young men with no ties to Lord and with no reason to lie, could have given Lord a formidable defense: The victim was seen walking around well after the time Lord was supposed to have killed her.

Had the jury believed the boys' testimony, Lord's suspicious behavior on the evening of September 16th could have been seen as odd but hardly indicative of murder. Similarly, his efforts to influence testimony might have been dismissed as an innocent man's desperate attempt to concoct an alibi. This would have left Lord's jail-house confessions to witnesses who had been partially impeached and, in any event, were subject to doubt because of their evident self-interest in pleasing the prosecution. Presenting the testimony of the boys would not have entailed significant costs in terms of the defense strategy. Ness and Mandel conceded that the boys' statements dovetailed with their defense and would not have opened the door to any damaging evidence. Nor would the proffer of three witnesses, who were unrelated in any fashion to the defendant or the victim, have tainted Lord's attorneys. The jury might have believed the boys were mistaken, but certainly would not have thought that counsel was presenting manufactured testimony.

We would nevertheless be inclined to defer to counsel's judgment if they had made the decision not to present the three witnesses after interviewing them in person. Few decisions a lawyer makes draw so heavily on professional judgment as whether or not to proffer a witness at trial. A witness's testimony consists not only of the words he speaks or the story he tells, but of his demeanor and reputation. A witness who appears shifty or biased and testifies to X may persuade the jury that not-X is true, and along the way cast doubt on every other piece of evidence proffered by the lawyer who puts him on the stand. But counsel cannot make such

judgments about a witness without looking him in the eye and hearing him tell his story.*fn8

Here, counsel appear to have made their decision to exclude the three witnesses based on a vague impression-apparently a misimpression--that the police and investigators who spoke to the witnesses did not find them credible. We find no such suggestion in the various reports, and this impression may have been dispelled had counsel talked to the boys. Having now heard their story--from their affidavits and district court testimony--we believe a competent attorney would not have failed to put them on the stand. *fn9

We cannot say that the government's case was so strong that the testimony of these three witnesses could not have raised a reasonable doubt in the minds of the jurors. Rather, we find the possibility that their testimony would have led to Lord's acquittal to be "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. If Holden, Huff and Ayers had testified, the State might still have won a conviction by exploiting the inconsistencies in their accounts or convincing the jury that it was Tracy's sister they saw that day. That, however, would be a very different case. As it is, we find ourselves "in grave doubt as to the harmlessness of an error that affects substantial rights, " and must conclude that counsel's omission of this evidence prejudiced Lord's defense. O'Neal v. McAninch, 513 U.S. 432, 445 (1995).

We have found similar omissions of potentially exculpatory evidence to constitute deficient, and prejudicial, performance by counsel. We held in Brown v. Myers , 137 F.3d 1154, 1158 (9th Cir. 1998), that trial counsel's failure to investigate and put on the stand possible alibi witnesses constituted ineffective assistance which "prejudiced [petitioner ] to the extent that it undermines confidence in the outcome of his trial." In Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994), Sanders's brother made out-of-court confessions to the murder for which Sanders was convicted. We determined that counsel's failure to call the brother to testify at trial or, if he invoked the Fifth Amendment, to introduce the brother's extra-judicial statements, was professionally deficient performance. See id. at 1457-60. Such evidence would clearly have provided a strong defense and "[counsel's] failure to investigate [was] inexplicable, as [was] his failure to utilize[the brother's] confession, except as the result of incompetence and indifference." Id. at 1459. In Hart v. Gomez, 1999 WL 387247, Hart was convicted of molesting his daughter during visits to a camping resort. His daughter had testified that "Hart never molested her during visits on which he was accompanied by another adult." Id. at *1. Hart's girlfriend tes tified at trial that she had been with him during all of the trips alleged in the information, and had witnessed no molestation. See id. Hart's trial counsel, however, did not introduce grocery receipts and the girlfriend's personal calendars, which would have corroborated her testimony that she was present at all of the trips and, thereby, "demonstrate[d] [Hart's] factual innocence [.]" Id. at *3. We concluded that "[the girlfriend's] evidence, if believed by the jury, would have demonstrated the truthfulness of her testimony and established that . . . no molestation occurred during the time period set forth in the information--or at the least that the molestation as charged in the information had not been proved beyond a reasonable doubt." Id.

As in Brown, Sanders and Hart, Lord's trial counsel had at their fingertips information that could have undermined the prosecution's case, yet chose not to develop this evidence and use it at trial. When questioned about their reasons, they have offered no persuasive justification. Their performance therefore fell "outside the wide range of professionally competent assistance" that Strickland requires, 466 U.S. at 690, and we conclude 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.

Hooks v. Ward (10th Cir.) Holding the district court did not adequately address questions of procedural default, relating to appellate ineffectiveness as cause remand ordered. Relief denied, however,  on failure to instruct on lesser included offenses & the constitutionality of the aggravating circumstances in the penalty phase.
 

Kimmelman, Osborn, and Brecheen do not establish a rigid constitutional rule prohibiting Oklahoma from requiring the presentation of ineffective assistance of trial counsel claims on direct appeal. Instead, those cases identify the importance of the Sixth Amendment right to counsel and mandate that no state procedure for resolving claims of ineffective assistance will serve as a procedural bar to federal habeas review of those claims unless the state procedures comply with the imperatives set forth in Kimmelman: (1) allowing petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel's performance and (2) providing a procedural mechanism whereby a petitioner can adequately develop the factual basis of his claims of ineffectiveness.

Id. at 1262-63 (footnotes omitted).

. . . . Applying these principles to Hooks, it is clear that Hooks failed to raise on direct appeal all but one of the claims of ineffectiveness of trial counsel he now asserts. In his direct appeal in Oklahoma state court, Hooks was not represented by the same lawyer who defended him at trial. Thus, the first Kimmelman requirement is met.

Before addressing the second Kimmelman requirement, we must address a preliminary argument advanced by Hooks. Hooks claims that the Oklahoma Court of Criminal Appeals did not rely on procedural bar in denying his other claims of ineffective assistance of trial counsel raised in his application for postconviction relief before the Oklahoma state courts, but rather, resolved all those ineffectiveness claims on their merits by invoking the doctrine of resjudicata. If a state court decides an issue on the merits, state procedural bars will not preclude federal habeas review. See Ylst v. Nunnemaker, 501 U.S. 797, 801-03 (1991).

In affirming the denial of postconviction relief to Hooks on his claims of ineffective trial counsel, the Oklahoma Court of Criminal Appeals stated:

We note that Hooks's application for post-conviction relief alleges thirteen instances of trial counsel ineffectiveness which he did not directly raise and this Court did not explicitly consider when analyzing this issue on direct appeal. Yet, the fact remains that trial counsel's ineffectiveness was brought to this Court's attention on direct appeal. Accordingly, we consider this issue [ineffectiveness of trial counsel] -- and all instances of trial counsel ineffectiveness which could have been raised but were not -- res judicata for purposes of Hooks's post-conviction appeal. But cf. U.S. v. Galloway, 56 F.3d 1239, 1241-42 (10th Cir. 1995) (fact that ineffective assistance of counsel claim is raised and adjudicated on direct appeal will not procedurally bar an ineffectiveness claim in a collateral proceeding where new instances of ineffectiveness are advanced in support of that claim).

Hooks II, 902 P.2d at 1122 n.4.⁽⁵⁾

Focusing on the court's use of the term "res judicata," Hooks argues that the Oklahoma Court of Criminal Appeals' decision affirming denial of postconviction relief constitutes a ruling on the merits as opposed to a procedural bar. We disagree.

It is clear that the Oklahoma Court of Criminal Appeals views resjudicata for ineffective assistance of trial counsel claims as a procedural bar and not a ruling on the merits. SeeSlaughter v. State of Oklahoma, 969 P.2d 990, 995 (Okla. Crim. App. 1998) ("Petitioner claims he was denied the effective assistance of both trial and appellate counsel . . . . The issue of ineffective assistance of counsel was raised and addressed on direct appeal. Therefore, further consideration of the issue is barred by res judicata. Despite the procedural bar of res judicata, a claim of ineffective assistance of trial counsel can be brought for the first time on post-conviction, but only if it requires fact-finding outside of the direct appeal record . . . ." (emphasis added and citations omitted)); Turrentine v. State of Oklahoma, 965 P.2d 985, 987-88 (Okla. Crim. App.) ("In Propositions II and IV, [Petitioner] argues he was denied the effective assistance of trial counsel . . . . Despite the procedural bar of res judicata, a claim of ineffective assistance of trial counsel can be brought for the first time on post-conviction, but only if it requires fact-finding outside of the direct appeal record." (emphasis added)), cert. denied, 119 S. Ct. 624 (1998). Cf.United States v. Galloway, 56 F.3d 1239, 1242-43 (10th Cir. 1995) (in banc), (holding that "the fact that an ineffectiveness claim is raised and adjudicated on direct appeal will not procedurally bar an ineffectiveness claim in a proceeding under 28 U.S.C. § 2255, where new reasons are advanced in support of that claim.")

Turning then to the second prong of Kimmelman, it is clear that Hooks' claims of ineffective assistance of trial counsel required further development of the record. Consequently, we are presented with the question whether Oklahoma's remand procedure is adequate.

Because the record below is largely silent on the adequacy of Oklahoma's Rule 3.11, the resolution of this issue on appeal will depend on which party has the burden of proof to establish the adequacy or inadequacy of the state procedures. The Fifth Circuit places that burden on the petitioner. See Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997) ("The petitioner bears the burden of showing that the state did not strictly or regularly follow a procedural bar around the time of his direct appeal [in cases similar to his]."), cert. denied, 118 S. Ct. 1091 (1998); see also Robison v. Johnson, 151 F.3d 256, 263 n.4 (5th Cir. 1998), cert. denied, 119 S. Ct. 1578 (1999); Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996); Amos v. Scott, 61 F.3d 333, 340-41 (5th Cir. 1995). By contrast, two federal district courts in California have placed the burden of proving the adequacy of a state procedural bar on the state. In declaring a California state procedural bar inadequate to foreclose federal habeas review, the United States District Court for the Eastern District of California stated in Karis v. Vasquez, 828 F. Supp. 1449 (E.D. Cal. 1993):

Without citation to authority, the respondents assert that the burden of demonstrating that procedural default rules are not regularly and consistently applied rests with petitioner. I cannot agree. Procedural default is an affirmative defense which may be waived. Moreover, it is respondents who seek a dismissal, and ordinarily under such circumstances the burden rests with the proponent of the defense and of the motion.

Id. at 1463 n.21 (citations omitted). See also Coleman v. Calderon, No. C-89-1906-RMW, 1996 WL 83882, at *3 (N.D. Cal. Feb. 20, 1996) (Unpublished Order), aff'd on other grounds by 150 F.3d 1105 (9th Cir.), rev'd on other grounds by 119 S. Ct. 500 (1998).

There is no doubt that "state-court procedural default . . . is an affirmative defense," and that the state is "obligated to raise procedural default as a defense or lose the right to assert the defense thereafter." Gray v. Netherland, 518 U.S. 152, 165-66 (1996). In addition, the state is undoubtedly in a better position to establish the regularity, consistency and efficiency with which it has applied Rule 3.11 in the past to allow direct appellants to develop a factual record challenging the adequacy of trial counsel than are habeas petitioners, who often appear pro se, to prove the converse. Cf. 2 McCormick on Evidence § 337, at 431 (John W. Strong ed., 4th ed. 1992) ("If proof of the facts is inaccessible . . . it is usually fairer . . . to place the burden of proof and persuasion on the party claiming its existence."). Accordingly, we conclude that the state bears the burden of proving the adequacy of a state procedural bar in order to preclude federal habeas review.
. . . . .Although a determination of the adequacy of the state procedural bar defense is a necessary prologue to our consideration of most of Hooks' claims of ineffective trial counsel, we can reach the merits of one of his ineffective trial counsel claims because Hooks did raise on direct state appeal one such claim.⁽⁸⁾ In addition, we can consider on the merits Hooks' claim of ineffective assistance of appellate counsel because that claim was raised and decided on the merits in Hooks' state postconviction proceedings.
 
 

B. Merits

1. Did Hooks' trial counsel render ineffective assistance in not allowing Hooks to testify at trial?

On direct appeal, the Oklahoma Court of Criminal Appeals stated that "Hooks contends that defense counsel was ineffective because Hooks was not allowed to testify during either the first or second, stage of trial." Hooks I, 862 P.2d at 1283. Before the federal district court and before this court, Hooks has pared his claim to an allegation that his trial counsel was ineffective only for "fail[ing] to allow Mr. Hooks to testify in the second stage."

Under AEDPA's amendments to § 2254(d), we cannot grant the writ of habeas corpus unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. §2254(d)(1). Applying the general framework laid out in Strickland v. Washington, 466 U.S. 668 (1984), we conclude that the Oklahoma Court of Criminal Appeals decision was neither "contrary to [nor] involved an unreasonable application of Federal law, as determined by the Supreme Court of the United States." Thus we affirm the district court's denial of the writ on this claim.

In order to prevail on a claim of ineffective assistance of counsel, petitioner must demonstrate: "(1) that his counsel's performance fell below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his defense." Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998) (citing Strickland, 466 U.S. at 688, 694 ). In Hickman, we explained the application of the Strickland standard:

To satisfy the first prong of this test, petitioner must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. We review petitioner's ineffective assistance of counsel claim from the perspective of his counsel at the time he rendered his legal services, not in hindsight. In addition, in considering counsel's performance, we focus on not what is prudent or appropriate, but only what is constitutionally compelled. To satisfy the second prong, petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

160 F.3d at 1273 (citations and quotations omitted). "In the specific context of a challenge to a death sentence, the prejudice component of Strickland focuses on whether the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Brecheen v. Reynolds, 41 F.3d 1343, 1365 (10th Cir. 1994) (quotation omitted).

In addressing this claim in Hooks' direct appeal, the Oklahoma Court of Criminal Appeals identified the proper standard under Strickland. SeeHooks I, 862 P.2d at 1283. The court quoted a hearing conducted in the trial court's chambers at the end of the prosecution's case during the first phase of trial that clearly evidenced Hooks' understanding of his right to testify on his own behalf and his personal decision not to testify. Id. The court then provided the following analysis:

Whether a defendant will testify on his own behalf at a criminal trial is a decision properly left to the accused. See Rule 1.2(a) of the Rules of Professional Conduct, 5 O.S.Supp.1988, Ch. 1, App. 3-A. Assuming Hooks was influenced by defense counsel's advice, which may have suggested that he not testify, such advice is a matter of trial strategy and will not be considered ineffective assistance of counsel. See Camron v. State, 829 P.2d 47, 54 (Okl. Cr. 1992). Hooks has failed to establish defense counsel's performance was deficient. Even if we were to assume that defense counsel's performance was deficient, he has failed to demonstrate any possibility that, but for counsel's errors, the result of the trial would have been different. This assignment of error is denied.

Id.

While the state court opinion is a reasonable application of Strickland on its face, it is further corroborated by the testimony adduced at the federal evidentiary hearing in April 1997. Testimony from the federal evidentiary hearing illustrates that Hooks' trial counsel's performance was not legally deficient. Regarding Hooks' trial lawyer's decision not to call him as a witness during the penalty phase of the trial, the following exchange took place:

"[Q.] Why did you decide not to present . . . Hooks as a witness in the second stage?

A. I didn't think he would make a good witness.

. . .

[A.] Was he a good witness on -- was he ready to be a good witness on May, whatever day, the 10th, that he would have testified? I didn't think so. That was my call at the time.

I don't remember ordering him not to testify or telling him that he would not be allowed to testify. I don't remember him insisting on testifying.

In light of Strickland's command that "[j]udicial scrutiny of counsel's performance must be highly deferential," and its admonition not to indulge in the temptation to "second-guess counsel's assistance after . . . adverse sentence," 466 U.S. at 689, we cannot say that Hooks' counsel performed below the prevailing professional norms in advising Hooks not to testify at the sentencing phase of his trial.

Further, the April 1997 federal evidentiary hearing corroborates the Oklahoma Court of Criminal Appeals' conclusion, under Strickland's second prong, that Hooks suffered no prejudice from his trial lawyer's advice not to testify at the second stage of his trial. Hooks argues that his testimony from the evidentiary hearing established: (1) his love for his father and the disturbance he felt from watching his father yell at and beat his mother; (2) the problems he had after losing his father and brother through "traumatic events"; (3) the bias of Shanna Allen, one of the prosecution's witnesses; and (4) "[m]ost importantly," his love for Shalimein. As to his love for Shalimein, Hooks argues that his testimony at the evidentiary hearing demonstrated: (1) his shock at killing her; (2) that he did not "run away when he realized what he had done"; and (3) that he was "sorry" for killing her.

However, Hooks' jury heard similar sentiments regarding his love for Shalimein from Hooks himself, through the replay at trial of Hooks' taped confession to police. Therein, Hooks explained that he started arguing with Shalimein over money, and that at some point she slapped him, which prompted him to hit and then beat her. Hooks explained his dismay once he realized what he had done: "I fell back on the floor, I fell on the floor and I took the razor and I said God what have I done. And my baby was just lying there. And I was fixin break it off, cut my wrists." Hooks continued:

Cut my wrists, my wrists. Cause I had hate what happened and I was fixing to cut my wrists. But something just wouldn't let me do it so go get her mother, go get some help. She wasn't breathing I felt her heart. I (unintelligible) Shalimein get up, I was grabbing her, holding her trying to make her get up, get up and she just kept flopping down and it scared me so bad I just grabbed the baby and run out of there.

All I could think of was get help, get help. . . . I said come on get up now and quit playing joke on me come on get up, you know I didn't hurt you, come on we fight like this I'm sorry. I was saying that. And I glanced back in there and she still laying there, then all of the sudden I didn't feel no heart beating. I took a mirror, you know cause I watched it on T.V., they say that if you take a mirror and put it in some, in front of somebody's uh mouth if, if they don't, if it don't get foggy that means that they, something ain't right you know. And I hear heart beating and stop and then I put that mirror in there and I didn't get no pulse and I mean I just ran into a state a shock. I didn't believe it. I grabbed my baby I run over to her mother's house.

. . .

I just didn't mean it to be like this that's all. So help me God.

. . .

I wanta live. I regret what I have done. I'm not that kinda person and Shalimein no matter what baby please, get well for me, good Lord up above you know how I am. Get well for Vargus, for me, long as I know you all are all right I feel a lot better inside, because only reason I'm making this statement is because no matter what I say I can't bullshit myself I can't live knowing I done what I done.

While Hooks' taped confession might not have accomplished all that Hooks claims he would have by testifying at trial, we believe the jury was exposed to his claims that he loved Shalimein, that he never meant to kill her, that he was anguished when he realized how badly he had beaten her, and that he attempted to get help for her instead of running away. In light of the fact that the jury heard Hooks' "most important[]" message at trial, we conclude that he failed to carry his burden here to demonstrate that in the absence of his trial attorney's advice not to testify he would have testified and the jury would have "concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695.⁽⁹⁾ Accordingly, the Oklahoma Court of Criminal Appeals decision rejecting Hooks' claim of ineffective assistance of counsel for advising Hooks not to testify at sentencing was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court.

2. Did Hooks' appellate counsel render ineffective assistance by failing to raise or adequately brief certain issues?

Hooks claims that the two lawyers who represented him in his state direct appeal, Robert Boren ("Boren") and Patrick Lavelle ("Lavelle"), provided ineffective assistance by (1) failing to raise "critical issues," and (2) insufficiently researching and briefing the issues that they did raise. He first raised this claim in his application for state postconviction relief. There, the Oklahoma Court of Criminal Appeals held that Hooks' appellate counsel were not constitutionally ineffective under Strickland. Hooks II, 902 P.2d at 1123-24. We conclude that the state court's decision was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.
...

III. Whether Hooks was denied his right to due process by the trial court's refusal to instruct the jury on lesser included offenses.

Predicated on Beck v. Alabama, 447 U.S. 625 (1980) and Schad v. Arizona, 501 U.S. 624 (1991), Hooks claims that he was denied his federal constitutional right to due process of law when the state trial court refused to instruct the jury on second degree murder and first degree manslaughter with respect to Shalimein. In his state direct appeal, Hooks made an analogous claim based only on a state law that required the trial court to instruct the jury on lesser included offenses supported by the evidence, which the Oklahoma Court of Criminal Appeals denied. See Hooks I, 862 P.2d at 1280. In his state application for postconviction relief, Hooks, for the first time, raised his federal constitutional claim under Beck. Based on "resjudicata," the Oklahoma Court of Criminal Appeals refused to consider this claim because the court had previously resolved Hooks' related state law claims regarding lesser included instructions. See Hooks II, 902 P.2d at 1122 & n.7. While the Oklahoma Court of Criminal Appeals appeared to rely on state procedural bar in refusing to consider Hooks' Beck claim, the appellee has never asserted procedural bar as a defense on federal habeas. As such, we will consider Hooks' Beck claim on the merits, as did the federal district court, which denied it based on a finding that there was "not sufficient credible evidence, admitted and/or omitted, that would support a finding that Hooks acted without deliberate intent on October 6, 1988."

....

IV. Whether sentencing stage instructions regarding aggravating circumstances were unconstitutional.

Under Oklahoma law, in order to impose a sentence of death, a jury must unanimously find (1) at least one of the statutory aggravating circumstances beyond a reasonable doubt, and (2) that the/those aggravating circumstance(s) is/are not outweighed by mitigating circumstances. See Okla. Stat. Ann. tit. 21 § 701.11. After the sentencing hearing, Hooks' jury found three aggravating circumstances beyond a reasonable doubt:

1. The defendant was previously convicted of a felony involving the use or threat of violence to the person.

2. The murder of Shalimein Blaine was especially heinous, atrocious or cruel.

3. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
 

On direct appeal, Hooks challenged only the sufficiency of the evidence supporting the three aggravating circumstances. The Oklahoma Court of Criminal Appeals found that sufficient evidence supported each aggravating circumstance, and thus denied Hooks' assignment of error. See Hooks I, 862 P.2d at 1282-83. In his application for postconviction relief, Hooks challenged the constitutionality of each of the aggravators. The Oklahoma Court of Criminal Appeals considered the issue barred by the doctrine of "res judicata" because it had previously rejected Hooks' sufficiency claims related to the aggravators. SeeHooks II, 902 P.2d at 1122 & n.8.

 
IV.
Joseph also asserts several complaints with respect to certain miti- gating evidence which was not presented at sentencing. Essentially, Joseph's mitigating evidence issues can be broken down into three parts. First, Joseph contends that he received ineffective assistance of counsel due to the failure of his attorneys to investigate and present evidence tending to prove that Joseph suffers from brain damage. Second, Joseph claims that the mental health expert provided to him was ineffective, denying him a competent mental health evaluation. Finally, Joseph contends that both the Commonwealth and his own counsel were at fault in his failure to receive certain mental health records -- the Commonwealth for not turning them over pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and his own counsel for fail- ing to request them. Each of these claims must be denied.

A.
The only portion of Joseph's mitigating evidence issue that the dis- trict court decided on the merits was his suggestion that his attorneys' failure to properly investigate and present mitigating evidence relative to possible brain damage constituted ineffective assistance of counsel. The district court analyzed the steps taken by Joseph's attorneys in light of relevant case law and determined that their performance did not fall below the constitutional standard for effective assistance. Fol- lowing our own similar inquiry, we too find that Joseph's counsel met the requisite level of competency in this regard. See Smith v. Moore, 137 F.3d 808, 817 (4th Cir. 1998).
The Sixth Amendment entitles criminal defendants to effective assistance of counsel, that is, assistance which does not "so under- mine[ ] the proper functioning of the adversarial process that the trial can not be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1983). Effective assistance of coun- sel is a two prong inquiry requiring the petitioner to prove, first, that his counsel's performance was defective and, second, that he was prejudiced by that defective performance. Strickland, 466 U.S. at 687, 694. In this instance, we need not look beyond the first prong as Joseph has failed to show defective performance on the part of his trial counsel. Joseph alleges that there was readily available evidence at the time of his trial that he suffered from some brain damage or dysfunction which was compounded by his cocaine use at the time of the crime. Joseph contends that his trial counsel's investigation should have uncovered this evidence and led to its presentation as mitigating evi- dence at sentencing. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to coun- sel's judgments." Strickland, 466 U.S. at 691. The actions of Joseph's trial counsel were reasonable in the circumstances of this case.

Two psychologists evaluated Joseph in preparation for trial - Dr. Henry Gwaltney, the Commonwealth's expert, and Dr. Andrew Bil- lups, the defense expert. Dr. Billups conducted eight sessions with Joseph, lasting between one and two hours each, during which he administered standard psychological testing. Dr. Billups further inter- viewed Joseph's mother, reviewed his high school records, and con- sidered documents including trial transcripts and video tapes pertaining to this and Joseph's other criminal convictions. Following his extensive evaluation, Dr. Billups testified that Joseph was of "nor- mal intelligence without any defect of memory or cognitive ability" and that "[t]here was no evidence of any difficulty inasfar as his con- tact with reality, no evidence of delusions or psychosis, schizophrenia or any major types of mental illness."

Likewise, Dr. Gwaltney observed Joseph on and off for eleven days at Central State Hospital. He reviewed much of the same mate- rial as Dr. Billups, as well as Dr. Billups' own report, and conducted a variety of physical and laboratory tests. Like Dr. Billups, Dr. Gwalt- ney also concluded that Joseph suffered from "no diagnosable mental disorder."

Not by hindsight, we "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland , 466 U.S. at 690. It was perfectly reasonable for Joseph's trial counsel to believe that Dr. Bil- lups, a psychologist with specialized training in capital sentencing, had ample opportunity to elicit the types of medical and family infor- mation that Joseph now claims were material to his defense and to depend on him, which they did. Furthermore, Joseph's trial attorneys were limited in how far they could press Dr. Billups with respect to Joseph's future dangerousness, without emphasizing Dr. Gwaltney's forthcoming testimony, which they knew about, that Joseph was a future danger, testimony which Dr. Billups could not rebut. This was a reasonable strategic decision made after thorough investigation of law and facts and one which will not be revisited by this court. Strickland, 466 U.S. at 690-91.

B.
Joseph further contends that his constitutional rights were compro- mised because Dr. Billups did not provide him with a competent men- tal health examination. The district court determined that this claim had been procedurally defaulted due to Joseph's failure to raise it on direct appeal.
Joseph notes correctly, however, that the issue was raised in state habeas and decided on the merits, and we note the district court alter- nately decided the claim was without merit. It found Joseph's claim to be without merit in light of circuit precedent which forecloses a right to an effective expert witness.  See Wilson v. Greene, 155 F.3d 396, 401 (4th Cir. 1998) ("The Constitution does not entitle a criminal defendant to the effective assistance of an expert witness."); Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992); Waye v. Murray, 884 F.2d 765, 767 (4th Cir. 1989).

Joseph relies on some of the language in Ake v. Oklahoma, 470 U.S. 68, 83 (1996), which refers to the necessity of a "competent" mental health expert and an "appropriate" evaluation. We have noted, however, that "[a]lthough Ake refers to an `appropriate' evaluation, we doubt that the Due Process Clause prescribes a malpractice stan- dard for a court-appointed psychiatrist's performance. Rather, the decision in Ake reflects primarily a concern with ensuring a defendant access to a psychiatrist or psychologist, not with guaranteeing a par- ticular substantive result." Wilson, 155 F.3d at 401 (italics in origi- nal).

As we reasoned in Wilson, "[e]ven if Ake's use of the term `appro- priate' suggests that an examination must satisfy some minimal level of professional competence," Dr. Billups' met that standard here. 155 F.3d at 402. The expert in Wilson met with the defendant on two sep- arate occasions to discuss his background and evaluate his cognitive processes, and we found his evaluation to be appropriate. 155 F.3d at 402-03. Here, Dr. Billups conducted eight extensive sessions with Joseph during which he conducted various psychological tests and clinical interviews. He also reviewed other documents and evidence relating to the crime in question, Joseph's prior criminal convictions, and his educational background. He testified for Joseph in the sen- tencing part of the trial. We are of opinion his was an appropriate examination under the standard of Ake.

C.
Finally, Joseph blames both the Commonwealth and his trial coun- sel for failure to produce the Central State Hospital records which both Dr. Billups and his trial counsel in hindsight now assert would have assisted in their preparation of mitigating evidence. As the dis- trict court recognized, Joseph readily admits that he failed to raise any claim against the Commonwealth prior to his federal habeas petition. He attempts to excuse that procedural default by arguing ineffective assistance on the part of his state habeas counsel. As discussed above, that avenue is foreclosed by our decision in Mackall v. Angelone, 131 F.3d at 449.

The district court also found procedural default with respect to Joseph's claim of ineffective assistance against his trial attorneys for failure to obtain the Central State Hospital records. In doing so, the district court correctly determined that Joseph's state habeas petition failed to mention "the Central State Hospital records specifically or the failure to obtain hospital records generally other than vague refer- ences to the failure to investigate Joseph's mental and social history." In order to avoid procedural default, the "substance" of Joseph's claim must have been "fairly presented" in state court. Townes v. Murray, 68 F.3d 840, 846 (4th Cir. 1995) (quoting Anderson v. Hanks, 459 U.S. 4, 6 (1982) (citation omitted)). That requires "[t]he ground relied upon [to] be presented face-up and squarely. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick." Townes, 68 F.3d at 846 (quoting Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation omitted)). In arguing against procedural default of this issue, Joseph points to an argument he made in state court claiming ineffective assistance of counsel because the attorneys provided to him by the public defender's office were overburdened and provided inadequate resources. He went on to contend that the efforts of the investigator shared by that office were deficient. It is in that context, not in the context of his attorney's fail- ure to procure specific records from Central State Hospital, that Joseph stated "[f]or example, the collection of records was insuffi- cient and there was no analysis and follow-up investigation based on these records."
We agree with the district court that this complaint about the inves- tigator in the public defender's office does not fairly present the sub- stance of Joseph's current claim that his trial counsel was ineffective in his failure to procure the Central State Records. Although it is most doubtful that the issue was presented at all in the state courts, any allusion to the issue was not "face-up and squarely" as required by Townes. The district court is affirmed on the issue.
 

971528P.pdf Harris v.  Bowersox (8th Cir) Denial of habeas relief affirmed; depravity of mind instruction not unconstitutionally vague; Missouri reasonable doubt instruction constitutionally sound; admission of bad acts evidence did not undermine the fundamental fairness of the trial; and no ineffective assistance by trial counsel for failing to present testimony of eyewitness.

 
A. Depravity of Mind Aggravating Circumstance Instruction
 

Under Missouri law, in first degree murder cases for which the death penalty is possible, the jury considers specific statutory aggravating circumstances, see Mo. Rev. Stat. § 565.032.2 (West Supp. 1999), any one of which, if found by the jury, is sufficient to sustain a death sentence. During the penalty phase of Harris's murder trial, the trial court presented the jury with five possible aggravating circumstances based on § 565.032.2. The jury found all five circumstances present. We granted a certificate of appealability as to the depravity of mind aggravating circumstance instruction.
 

Aggravating circumstance number 4, as contained in Instruction 17, reads as follows:
 

"Whether the murder of Stanley "Hank" Willoughby involved depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman. You can make a determination of depravity of mind only if you find that the defendant killed Stanley "Hank" Willoughby as a part of defendant's plan to kill more than one person and thereby exhibited a callous disregard for the sanctity of all human life."
 

(J.A. at 287.) Harris contends that this instruction is unconstitutionally vague. The district court agreed but denied relief, concluding rather that any error was harmless error. As we explain below, while we agree with the district court's harmless error analysis, we do not believe the instruction is unconstitutionally vague.
 

We agree with the district court's conclusion that Missouri's statutory definition of depravity of mind, *fn2 standing alone, does not pass constitutional muster. See Sidebottom v. Delo, 46 F.3d 744, 755 (8th Cir.), cert. denied, 516 U.S. 849 (1995). As the district court aptly recognized, however, "a state supreme court may salvage a facially-vague statute by construing it to provide the sentencing body with objective criteria for applying the statute." Mathenia v. Delo, 975 F.2d 444, 449 (8th Cir. 1992) (quotations omitted), cert. denied, 507 U.S. 995 (1993). The district court concluded that a proper limiting construction had not been applied in Harris's case, but denied habeas relief after conducting a harmless error analysis.
 

With all due respect to the experienced district court, we conclude that the state court properly limited the instruction by requiring that the jury find a plan to kill more than one person in order to satisfy the depravity of mind instruction. After the district court decided Harris's case, we upheld the validity of a nearly identical instruction in Ramsey v. Bowersox, 149 F.3d 749, 754 (8th Cir. 1998), cert. denied, 119 S. Ct. 1083 (U.S. 1999). In Ramsey, the Missouri court gave "a limiting construction [to the depravity of mind instruction] by instructing the jury it could find depravity if it found [the defendant]... planned to kill more than one person, and had a callous disregard for human life." Id. We are bound by Ramsey and therefore conclude that no constitutional error resulted from the depravity of mind instruction used in Harris's case. In fact, during Harris's direct appeal, Missouri's Supreme Court compared the instruction used in Harris's case to the "nearly identical instruction" it had previously found constitutionally sound in Ramsey's case. Harris, 870 S. W. 2d at 813 (discussing State v. Ramsey, 864 S. W. 2d 320, 328 (Mo. 1993) (en banc)).
 

Moreover, even assuming that the instruction is unconstitutionally vague, we believe, like the district court, any resulting error is harmless beyond a reasonable doubt. See Williams v. Clarke, 40 F.3d 1529, 1540, 1541 (8th Cir. 1994) (holding that federal appellate courts "are authorized to engage in constitutional harmless error analysis in the first instance" when a state appellate court does not undertake such an analysis, and that such error must be harmless beyond a reasonable doubt), cert.*fn3 denied, 514 U.S. 1033 (1995). Missouri is a "nonweighing" state— only one aggravating factor need be present in order to validly impose a death sentence. *fn4 See Ramsey, 149 F.3d at 754-55; Sloan v. Delo, 54 F.3d 1371, 1385-86 (8th Cir. 1995), cert. denied, 516 U.S. 1056 (1996). In Harris's case, the jury found four other, unrelated aggravating circumstances. In particular, the jury found that Harris had two first degree robbery convictions and one conviction for armed criminal action. See Mo. Rev. Stat. § 565.032.2(1). The jury also found that Harris murdered Willoughby for the purpose of receiving something of monetary value. See id. § 565.032.2(4). Therefore, even if the depravity of mind instruction used in Harris's case was unconstitutionally vague, the jury's penalty phase verdict is reliable beyond a reasonable doubt because the jury found several other aggravating circumstances. See Stringer v. Black, 503 U.S. 222, 232 (1992); Ramsey, 149 F.3d at 754-55.
 

In sum, we conclude that the depravity of mind aggravating circumstance instruction applied in Harris's case is constitutionally sound, and even if it were not, any resulting error is harmless beyond a reasonable doubt.
 
 

Sherril v.Hargett (10th Cir) Petitioner held to have procedurally defaulted his jury instruction claim as the "cause" he offers to excuse the default,  ineffective assistance of appellate claim, is without merit.

Howard v. O'Sullivan(7th Cir)  Relief denied on the merits (1) that the Illinois trial court's admission into evidence of a .38 caliber pistol denied Petitioner a fundamentally fair trial, and on procedural default grounds  (2) that Petitioner's lawyers at trial were so ineffective as to deny him his Sixth Amendment right to counsel (trial counsel failed to investigate and interview numerous potential alibi witnesses and to gather certain documentary evidence that might have cast doubt on the credibility of prosecution witnesses.)
 
 

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In memory of Harold McQueen & Rebecca O'Hearn -- both murdered, one by a man the other by a state. Dedicated to the men and women, attorneys, paralegals, investigators, legal support staff and jail house attorneys who fight daily for the most basic of human rights, the right to life. --------------39C694756D8412079E53763F--