677 F.2d 1086 (5th Cir. 1982), 81-4018, Gray v. Lucas

Docket Nº:81-4018.
Citation:677 F.2d 1086
Party Name:Jimmy Lee GRAY, Petitioner-Appellant, v. Eddie LUCAS, Warden, et al., Respondents-Appellees.
Case Date:June 10, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1086

677 F.2d 1086 (5th Cir. 1982)

Jimmy Lee GRAY, Petitioner-Appellant,

v.

Eddie LUCAS, Warden, et al., Respondents-Appellees.

No. 81-4018.

United States Court of Appeals, Fifth Circuit

June 10, 1982

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        Richard E. Shapiro, New Orleans, La., Albert Sidney Johnston, Jr., Biloxi, Miss., for petitioner-appellant.

        Bill Allain, Atty. Gen., Billy L. Gore, Jackson, Miss., for respondents-appellees.

        Appeal from the United States District Court for the Southern District of Mississippi.

        Before CLARK, Chief Judge, and THORNBERRY and GARZA, Circuit Judges.

        CLARK, Chief Judge:

        Jimmy Lee Gray appeals from the district court's order denying his petition for habeas corpus relief. We affirm.

       I. Background

        On June 25, 1976, Derissa Jean Scales, a three-year old girl, disappeared from her parents' apartment in Pascagoula, Mississippi. Because Gray, who lived nearby, was the last person seen with Derissa, he was questioned by the police about her disappearance. Gray admitted to the police that he had taken Derissa for a ride in the country, stopped the car on a back road, talked with Derissa and touched her vaginal area. He claimed that Derissa then wandered away from the car and fell into a shallow ditch filled with water. Gray stated that he pulled her out of the ditch while she was still breathing, put her into the trunk of his car half alive and began to drive back to Pascagoula. On the way back, Gray crossed a bridge over Black Creek. He stopped the car, opened the trunk, and threw Derissa Scales into the water. 1

        Gray was convicted in state court of capital murder and sentenced to death. The conviction, however, was reversed on appeal and the case was remanded for a new trial. See Gray v. State, 351 So.2d 1342 (Miss.1977). About three weeks before the second trial, Fielding Wright and James Heidelberg were appointed to represent Gray. At the second trial, Gray was again convicted and sentenced to death. The second conviction was upheld on appeal. See Gray v. State, 375 So.2d 994 (Miss.1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980).

        Gray filed a petition for habeas corpus alleging twenty-two separate constitutional violations. Chief among Gray's claims were that he had been denied effective assistance of counsel and that the record developed by the trial court was insufficient to determine the merits of his claim under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Although the district court only discussed these two claims in detail, it dismissed all of Gray's claims as

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lacking merit. On appeal, Gray reasserts his ineffective assistance and Witherspoon claims. He also contends that the evidentiary hearing held by the district court was inadequate, its findings of fact were inadequate and its disposition of the claims raised in his habeas petition was improper.

       II. Ineffective Assistance

        Because Gray's ineffective assistance claims are directed solely at his counsels' efforts during the sentencing phase of his second trial, we will discuss only that portion of the trial. Hindsight shows us that Wright and Heidelberg properly perceived that unless they could get Gray's statements to the police suppressed, they had little chance of avoiding a conviction at the guilt phase of his trial. Their primary aim became to avoid the death penalty at the sentencing phase. To this end, Heidelberg spoke with Gray frequently, explained to him the nature of the bifurcated trial, and asked him if there were anyone whom he wanted to testify on his behalf. Even though Gray steadfastly maintained that he did not want character witnesses, Heidelberg explored the possibility of having family members testify. This proved unsuccessful, however, since Gray's mother believed that her son should be executed and Gray's brother was unable to come to Mississippi for the trial. Heidelberg also spoke to a police officer who had befriended Gray and contacted Gray's local parole officer. He tried to get in touch with Gray's former employer and girlfriend, but both had left Pascagoula. Heidelberg talked with Louis Fondren, the attorney for Gray's first trial, and discussed possible witnesses with him.

        Heidelberg also considered investigating two other sources of witnesses. Before Gray moved to Pascagoula, Gray had been imprisoned in Arizona for second degree murder. Because Gray had been a model prisoner, it was possible that people who had worked with Gray in prison could testify on his behalf. Heidelberg, however, chose not to pursue this testimony for two reasons. First, Gray did not provide Heidelberg with names of any of these witnesses and Arizona refused to release Gray's prison record, which might have contained such information. Although a suit could have been instituted in Arizona to compel the release of Gray's records, Heidelberg testified that the defense lacked the funds to file suit in Arizona. Moreover, even if the information had been available, Heidelberg was hesitant to rely on these witnesses. He felt the weight of their testimony on Gray's good character while imprisoned would be overcome by the emphasis they would place on Gray's previous conviction in Arizona for the murder of another young girl.

        A second source of witnesses which Heidelberg considered using was a group of people who had written to Gray after the murder of Derissa Scales. Most of their correspondence concerned religious matters. Heidelberg decided, however, that these people would not make good witnesses because they had never known Gray personally and had only corresponded for a short time. Moreover, Heidelberg was concerned that some of these correspondents had only been interested in exploiting Gray.

        Instead of trying to establish that Gray had some worth in his life, Wright and Heidelberg decided Gray's best chance to avoid the death penalty lay in trying to convince the jury he was mentally disturbed. 2 Gray had told Wright and Heidelberg that at times he became emotionally disturbed, that various things set him off and that while he knew what he was doing he could not stop himself from doing it. Being subject to such an irresistible impulse does not render a person legally insane in Mississippi. However, this emotional impairment can be offered as a mitigating factor at the sentencing phase.

        To support this line of proof, Wright had Gray analyzed by a local psychiatrist, Dr. Bridges. Dr. Bridges, however, advised Wright that his testimony would not support

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Wright's theory. Wright therefore decided to rely on a standardized personality test, the Minnesota Multiphasic Personality Inventory, which Gray had taken approximately nine years before trial. This test concluded that there was a 95% probability that Gray was mentally disturbed. Wright had discussed the validity of the test with Dr. Bridges and was aware that it was dated. He felt, however, that its conclusion would be clear to the lay jury and that it was the most persuasive piece of evidence available to the defense.

        To get this test admitted into evidence Wright made a deal with the prosecutor. The prosecutor would agree to let the test come into evidence if Wright would agree to let the state's psychologist, Dr. Stanley, testify in rebuttal. Stanley had previously examined Gray to determine if he were competent to stand trial. Wright stated that he had wanted Stanley to testify since Stanley's testimony could be used to establish that Gray was mentally disturbed. Although Wright did not interview Stanley before trial, he did review the reports which Stanley had compiled on Gray.

        Gray's present counsel now faults the course pursued by Wright and Heidelberg for two reasons. 3 First, he claims that their failure to interview certain witnesses prevented them from making an informed decision on what defenses to offer at the sentencing phase. Second, he claims that having chosen to argue only that Gray was mentally disturbed, Wright and Heidelberg failed to prepare adequately for Gray's defense. He claims that these omissions deprived Gray of his right to the effective assistance of counsel.

        In this circuit, the standard for constitutionally effective assistance of counsel is "not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974). The determination of whether a counsel rendered reasonably effective assistance turns in each case on the totality of facts in the entire record. See Washington v. Estelle, 648 F.2d 276 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981); United States v. Gray, 565 F.2d 881 (5th Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). Thus, we must consider a counsel's performance in light of "the number, nature, and seriousness of the charges ... the strength of the prosecution's case and the strength and complexity of the defendant's possible defenses." Washington v. Watkins, 655 F.2d 1346, 1357 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 2021, 71 L.Ed.2d ---- (1982). In this context, we recently recognized that while attorneys are not held to a higher standard in capital cases, the severity of the charge is part of the " 'totality of circumstances in the entire record' that must be considered in the effective assistance calculus." Id.

        Gray does not contend that Wright and Heidelberg were not reasonably likely to render effective assistance. He claims instead that they failed to...

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