Roberts v. Dretke, 02-51339.

• Decision Date: 09 January 2004
• Docket Number: No. 02-51339.,02-51339.
• Citation: 356 F.3d 632
• Parties: Douglas Alan ROBERTS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

356 F.3d 632

Douglas Alan ROBERTS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 02-51339.

United States Court of Appeals, Fifth Circuit.

January 9, 2004.

Andrew A. Hammel, Owen & Rountree, Austin, TX, Bryce Edward Benjet, Texas

Defender Service, Austin, TX, for Petitioner-Appellant.

Tommy Lee Skaggs, Office of Atty. Gen. for State of Texas, Austin, TX, for Respondent-Appellee.

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

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

EMILIO M. GARZA, Circuit Judge:

Petitioner Douglas Alan Roberts ("Roberts") seeks a certificate of appealability ("COA") on his claims that his attorney rendered ineffective assistance in his Texas death penalty trial, wherein he was convicted of capital murder and sentenced to death.¹ Roberts contends that his trial attorney, Steven Pickell ("Pickell"), rendered ineffective assistance of counsel because of his deficient preparation, including (1) his failure to adequately prepare for trial, specifically his failure to hire an investigator and interview witnesses for trial including Roberts's family members about testifying as mitigating witnesses in the punishment phase of Roberts's trial; (2) failure to properly develop evidence of Roberts's mental illness; and (3) his failure to make adequate use of Roberts's court-appointed psychiatrist. Roberts maintains that the state court decision holding that Pickell satisfied the minimum standard of performance required of an attorney representing a capital client who is known to have mental health problems is an unreasonable application of clearly established federal law, and that the district court's conclusion to the contrary is an least debatable among jurists of reason.

I

Before trial, Roberts advised Pickell of his desire to be convicted and sentenced to death. Pickell filed several pre-trial motions on Roberts's behalf, including a motion for expenses for a mental health expert, which the court granted to the extent of $1,000. A court-appointed psychiatrist, Dr. Michael Arambula ("Dr. Arambula"), conducted a "mental status examination" of Roberts. Pickell did not ask Dr. Arambula to investigate Roberts's family history, compile a social or psychiatric history of Roberts, or evaluate the potential mitigating evidence. The purpose of Dr. Arambula's mental status examination of Roberts was, simply, to ascertain whether Roberts was competent to direct his trial strategy towards death.

In preparing his report, Dr. Arambula relied exclusively on his own clinical interview with Roberts, the police reports, and the victim's autopsy report. Dr. Arambula was not, however, furnished with any other medical records, such as the record of Roberts's treatment for "psychiatric problems" and "suicide ideation," which occurred less then one year before the crime at issue in this case. Nor was Dr. Arambula made aware of a head injury Roberts had suffered as a child. In his report, which was furnished to Pickell, Dr. Arambula concluded that Roberts did not suffer from any significant degree of depression, and that "[t]he most salient issue in Douglas Roberts's history is his addiction to crack cocaine."² Dr. Arambula concluded that, in seeking the death penalty for himself, Roberts was simply exercising his "right" to choose death over life.³

At various stages of the trial proceedings, Roberts and Pickell held "defense conferences" outside of the presence of the trial court and the prosecutor. These conferences, which Pickell transcribed, provide a record of Roberts's direction of a trial strategy towards death: Roberts instructed Pickell to excuse venire members who expressed any reservations about assessing the death penalty; not to "fight the death penalty" or ask for a life sentence in the closing argument; not to request a jury instruction on the parole laws, not to contact Roberts's family members about the trial or subpoena them as mitigation witnesses for the punishment phase; not to call Dr. Arambula or any other mental health expert as a mitigation witness at the punishment phase, not to request that the jury be instructed that its failure to reach a decision on punishment will result in a life sentence; and not to present any evidence that would "help the jury answer [the punishment] questions in such a way that a life sentence would result." Consistent with Roberts's instructions, Pickell accepted venire members who were favorable to the death penalty; struck venire members opposed to the death penalty; conducted no individual voir dire to rehabilitate venire members who had initially indicated they were opposed to the death penalty;⁴ did not interview Roberts's family members before trial; called no witnesses at the guilt/innocence phase of the trial; called no witnesses at the punishment phase; did not request a jury instruction on the parole laws; and made no argument in favor of a life sentence.

On direct appeal, Roberts argued that Pickell rendered ineffective assistance by complying with Roberts's self-destructive orders and directions. Roberts maintained that Pickell should have ignored his directions where those directions worked to Roberts's detriment. The court rejected this argument. It reasoned that, in every instance where Pickell followed Roberts's self-destructive instructions, Pickell had advised a contrary course of action, but Roberts had "disregarded that advice and directed his counsel to comply with the requests and orders." The court concluded that Roberts "cannot now claim his trial counsel was ineffective for complying with [Roberts's] own orders and requests on the conduct of his defense."

On state habeas review, Roberts claimed that Pickell rendered ineffective assistance of counsel. Roberts argued that Pickell's failure to request a competency hearing; to furnish Dr. Arambula with copies of his psychiatric records; school records and other background information; and to furnish the trial court with a copy of Dr. Arambula's report constituted ineffective assistance. The court found that Pickell failed to make Roberts's previous medical records available to Dr. Arambula and failed to advise Dr. Arambula of a head injury Roberts suffered as a child. However, the court also found that Pickell "did not observe, during the course of his pretrial meetings with the defendant or at any other phase of his investigation," evidence to support "incompetency or insanity." It reasoned that Pickell's "lay" observations in dealing with Roberts, taken together with his prior experience, led him to believe that there was no reasonable expectation that it would be of any value to raise issues of incompetency or insanity. The court thus concluded:

The actions and demeanor of the defendant through these proceedings did not raise an issue as to require or necessitate a competency hearing. The failure of trial counsel, Mr. Pickell, to request a competency hearing, was not error nor did it amount to ineffectiveness of counsel.

On federal habeas review, Roberts reurged his state-court claim of ineffective assistance of counsel. Roberts argued that Pickell rendered ineffective assistance by (1) failing to request a competency hearing for Roberts; (2) refusing Roberts's request for an EEG; (3) failing to adequately investigate Roberts's background; (4) failing to request a full neurophysical evaluation of Roberts; (5) failing to adequately prepare Dr. Arambula by furnishing him with copies of Roberts's relevant medical records; (6) deferring to Roberts's desires to waive individual voir dire, not to request a jury instruction regarding the impact of parole eligibility on a life sentence, not to call Roberts's family members to testify in mitigation at the punishment phase of trial, and not to argue in favor of a life sentence; (7) failing to request a speedy trial and, instead; (8) advising Roberts to waive individual voir dire as a means of securing a speedier trial setting; (9) failing to advise Roberts that jurors who favor the death penalty were predisposed to convict; and (10) failing to adequately cross-examine and rebut bloodstain pattern analysis testimony given by a prosecution witness.

In support of his petition, Roberts offered materials that had never been presented to the state courts, including: affidavits from his father and brother, records relating to his nine-day treatment at a psychiatric hospital for "suicide ideation," documents relating to a lawsuit stemming from an accident in which he was injured as a child, his own affidavit, his mother's mental health records, his own medical records from prison, and his handwritten notes to Pickell.

The federal habeas court found that Roberts failed to exhaust all available state remedies with regard to several aspects of his ineffective assistance claim, including his allegations that Pickell was ineffective for refusing Roberts's request for an EEG; for failing to request a neurophysical evaluation of Roberts; for failing to advise Roberts that jurors who favor the death penalty were predisposed to convict; and for failing to adequately cross-examine and rebut bloodstain pattern analysis testimony given by a prosecution witness. Thus the district court found that Roberts had procedurally defaulted on these aspects of his ineffective assistance claim.

On the merits, the federal habeas court concluded that Pickell's decision not to request a competency hearing did not constitute ineffective assistance of counsel. The district court found that Pickell did not perform deficiently because he "could have reasonably relied on Dr. Arambula's conclusions, which confirmed said counsel's own independent observations regarding [Roberts's] obvious ability to consult with counsel and understand the proceedings against him." Additionally, the court concluded that Pickell's performance did not...