Robison v. Johnson

• Decision Date: 13 August 1998
• Docket Number: No. 97-10240,97-10240
• Citation: 151 F.3d 256
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Larry Keith ROBISON, Petitioner-Appellant, v. Gary JOHNSON, Director, Texas Dept. of Criminal Justice, Institutional Division, Respondent-Appellee.

Page 256

151 F.3d 256

Larry Keith ROBISON, Petitioner-Appellant, v. Gary JOHNSON, Director, Texas Dept. of Criminal Justice Institutional Division, Respondent-Appellee.

No. 97-10240.

United States Court of Appeals Fifth Circuit.

Aug. 13, 1998.

Order on Rehearing Sept. 21, 1998.

William Stanley Harris, Fort Worth, TX, for Petitioner-Appellant.

Delane T. Hendrix, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Larry Keith Robison was sentenced to death after being convicted of capital murder in Texas state court. Robison filed a petition for habeas corpus relief in federal district court. The district court denied Robison's petition and his subsequent request for Certificate of Appealability ("COA"). Robison now requests a COA on eight separate issues he raised below. We deny COA with regard to all but his Penry ¹ claim, with regard to which we grant COA but affirm the district court's dismissal on the merits.

I

In 1983, Larry Keith Robison stood trial for intentionally killing Bruce Gardner in the course of committing robbery, in violation of Tex. Penal Code § 19.03(a)(2). Robison pursued an insanity defense, presenting evidence that he was a paranoid schizophrenic, but the jury returned a verdict of guilty. On direct appeal, the Texas Court of Criminal Appeals reversed Robison's conviction, holding that the trial court had abused its discretion by improperly limiting defense counsel's voir dire questioning regarding potential bias towards the insanity defense, in violation of Article I, § 10 of the Texas Constitution. Robinson v. Texas, 720 S.W.2d 808 (Tex.Crim.App.1986).

In 1987, Robison stood trial again on the same charge, relying as before on a defense of insanity. The jury returned a verdict of guilty and then, during the sentencing phase that followed, answered affirmatively to the two special issues set forth in article 37.071 of the Texas Code of Criminal Procedure. The trial court accordingly sentenced Robison to death by lethal injection. On direct appeal, the Texas Court of Criminal Appeals affirmed Robison's conviction and sentence. Robison v. Texas, 888 S.W.2d 473 (Tex.Crim.App.1994) (en banc). After Robison's application for habeas corpus relief in state court was denied, Robison filed the instant habeas corpus petition in district court. The district court denied Robison's petition without an evidentiary hearing and later denied his request for COA on each issue raised here.

II

Robison seeks a COA from this court on each of the following issues: (1) Whether Robison received ineffective assistance of counsel in violation of the Sixth Amendment because his attorney failed to keep a psychiatrist's report from the jury; (2) Whether Robison received ineffective assistance of counsel because his attorney failed to present evidence of Robison's thought process during the commission of the offense; (3) Whether Robison received ineffective assistance of counsel because his attorney advised Robison not to testify; (4) Whether Robison received ineffective assistance of counsel and was denied his constitutional right to counsel based on his attorney's failure to follow Robison's written instructions as to how to conduct his defense; (5) Whether the Texas "special issues" scheme for determining when to impose a sentence of death violates the Eighth and Fourteenth Amendments to the U.S. Constitution as applied to Robison because the special issues did not allow the jury to consider Robison's mental illness as a mitigating factor ("Penry claim"); (6) Whether Robison's claim of newly discovered evidence states a ground for federal habeas relief; (7) Whether Texas Code of Criminal Procedure article 46.03 § 1(e), which mandates that jurors not be informed of the consequences of a verdict of not guilty by reason of insanity, deprived Robison of his right to due process; and (8) Whether the district court erred in denying Robison's motion for an evidentiary hearing.

"A [COA] may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Specifically, the applicant must demonstrate that the issue on which he seeks a COA is "debatable among jurists of reason." Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 399, 139 L.Ed.2d 312 (1997). In determining whether to grant a COA, "[w]e resolve doubts ... in favor of the petitioner, and we may properly consider the severity of the penalty in making this determination." Id. (citations omitted). With these standards in mind, we consider in turn each of the issues raised by Robison. ²

A

Robison contends that his trial attorney rendered ineffective assistance of counsel by giving the report of a psychiatrist, Dr. Buckholtz, to his testifying expert, Dr. Price, thereby allowing the report to be discovered and then used by the state in cross-examination. After spending several hours with Robison over the course of two visits, Dr. Buckholtz rendered an opinion that Robison was sane at the time he committed the murders and prepared a detailed, written report summarizing his conversations with Robison and disclosing his ultimate opinion. Robison contends that his counsel's performance was deficient because he allowed this damaging report to be discovered by the state and used against him in front of the jury. The state habeas court made the following findings of fact related to this issue:

(1) At his first trial in 1983, [Robison] was represented by J.R. Molina and Charles Roach. In preparation for [Robison]'s first trial and just seven months after the crimes, counsel employed C.D. Buckholtz, M.D., to conduct a mental evaluation of [Robison].

(2) Dr. Buckholtz found that [Robison] was not insane during the commission of the crimes and counsel elected not to present his testimony at the 1983 trial.

(3) [Robison] was represented by different counsel, David Bays and Sherry Hill (now presiding Judge of County Criminal Court Number One of Tarrant County), at his second trial nearly five years after the commission of the crimes. In preparation for [Robison]'s second trial, his mother, Lois Robison, retained Randall Price, Ph.D., to evaluate [Robison].

(4) Along with other materials, [Robison]'s new counsel gave Buckholtz's report to Price. Price testified at the 1987 trial, and on cross-examination, the State reviewed Price's materials, including Buckholtz's report. The State subsequently cross-examined Price about the report and mentioned it during argument. The jury did not otherwise see the report.

(5) While, at their request, the jury received portions of Price's testimony on cross-examination during deliberations, it also received at its request portions of the defense's cross-examination of the State's psychiatrist Dr. Griffith.

(6) Counsel provided Buckholtz's report to Price in order that Price should have before him all available information in making his evaluation of [Robison] and to deflect any criticism from the State on cross-examination.

(7) The prosecutor at [Robison]'s second trial, Greg Pipes, reviews the jail and penitentiary records of an accused in a major trial. Tarrant County Jail records reflect that Dr. Buckholtz visited [Robison] on May 17, 1983.

(8) Price testified that the totality of [Robison]'s medical history was critical in evaluating his mental state.

(9) Notwithstanding the trial court's express consent to [Robison] raising issues independently of his counsel, at no time during trial did [Robison] assert any privilege to prevent disclosure of Buckholtz's report, nor did he voice any objection to the trial court. Moreover, in a letter [Robison] submitted with his final affidavit in this writ proceeding, he gave written instructions to his counsel expressing a desire to be forthright with the jury and he deferred to counsel on matters of strategy.

Robison does not challenge these findings of fact, and we presume them to be correct. See 28 U.S.C. § 2254(e). The state habeas court concluded as a matter of law that "[c]ounsel's challenged actions are presumptively within the scope of sound trial strategy" and that "[g]iven [Robison]'s instructions to counsel and his silence at trial, counsel's action of providing Buckholtz's report to Price was justifiable as sound trial strategy."

To succeed on an ineffective assistance of counsel claim, Robison must show that (1) his counsel's performance was constitutionally deficient and (2) his counsel's ineffectiveness resulted in actual prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To satisfy the first prong of the Strickland test, the petitioner must show that his "counsel's representation fell below an objective standard of reasonableness." Id. Moreover, petitioner must "overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Williams v. Cain, 125 F.3d 269, 276 (5th Cir.1997) (internal quotations and citation omitted), and this presumption of adequacy includes making "[e]very effort ... to eliminate the distorting effects of hindsight" and to assume "that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir.1988) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). The second prong, prejudice, "requires a showing that counsel's errors deprived the defendant of a fair trial." See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Robison argues that his counsel's performance was constitutionally defective because he essentially handed over this confidential, damaging report to the state. The state disagrees, contending that counsel exercised sound trial strategy in providing Price with Buckholtz's report...