Boyd v. Johnson

• Decision Date: 12 February 1999
• Docket Number: No. 97-10823,97-10823
• Citation: 167 F.3d 907
• Parties: Charles Anthony BOYD, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 907

167 F.3d 907

Charles Anthony BOYD, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 97-10823.

United States Court of Appeals Fifth Circuit.

Feb. 12, 1999.

Gary Alan Udashen, Milner, Lobel, Goranson, Sorrels, Udashen & Wells, Dallas, TX, for Petitioner-Appellant.

Erik E. Cary, Austin, TX, for Respondent-Appellee.

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

Before KING, Chief Judge, and POLITZ and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Charles Anthony Boyd was convicted of capital murder and sentenced to death. ¹ He requests a Certificate of Probable Cause ("CPC") to appeal the district court's denial of his petition for habeas corpus under 28 U.S.C. § 2254. He contends that the district court erred because (1) counsel was ineffective for failing to present mitigating evidence of his retardation to the jury at sentencing; (2) the jury was prevented impermissibly from giving mitigating effect to evidence of his retardation and his positive character traits; (3) the failure to instruct the jury on the parole implications of a life sentence in a capital case rendered the Texas sentencing scheme unconstitutional; and (4) the admission of extraneous offenses at the sentencing phase violated due process and the Eighth Amendment. We deny Boyd's request for a CPC.

I

A Texas jury convicted Boyd of capital murder in 1987, and sentenced him to death, answering affirmatively the special sentencing issues. ² On direct appeal, the Texas Court of Criminal Appeals affirmed his conviction. See Boyd v. State, 811 S.W.2d 105 (Tex.Crim.App.) (en banc), cert. denied, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991). Boyd filed a state habeas corpus application, and the Texas Court of Criminal Appeals denied relief.

Boyd then filed a federal habeas petition in district court pursuant to 28 U.S.C. § 2254. The district court denied habeas relief for all but two of Boyd's claims. The district court ordered an evidentiary hearing concerning the claim that trial counsel's failure to develop and to present evidence of Boyd's mental retardation constituted ineffective assistance of counsel, and the claim that the trial court erred in failing to give a jury instruction under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The Magistrate Judge conducted an evidentiary hearing, recommending that the district court deny relief. The district court adopted the findings of the Magistrate Judge and denied relief. Boyd filed a request for a CPC, which the district court also denied. ³ Boyd appeals this denial. To obtain a CPC, Boyd must make a substantial showing that he has been denied a federal right. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).

II

Boyd argues he received ineffective assistance of counsel in violation of the Sixth Amendment. He asserts that he received ineffective assistance because his trial counsel failed to discover and to present evidence of mental retardation, which could have been used to challenge the voluntariness of his confessions and could have been relevant to the jury in determining whether to impose the death penalty.

In order to prove ineffective assistance of counsel, Boyd must show (1) deficient performance, meaning that the attorney's representation "fell below an objective standard of reasonableness," and (2) that the deficient performance resulted in actual prejudice. Strickland v. Washington, 466 U.S. 668, 688, 692, 104 S.Ct. 2052, 2064, 2067, 80 L.Ed.2d 674 (1984). As the Court stated in Strickland, "[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, 104 S.Ct. at 2065.

According to Boyd, his trial counsel performed deficiently in failing to discover mitigating evidence of his mental retardation. At trial, his attorneys introduced two prison packets that were created during Boyd's prior incarceration. One prison packet indicated Boyd has an I.Q. of 67, and the other stated his I.Q. is 80. At the evidentiary hearing, Boyd presented testimony from Dr. James Shadduck that an I.Q. below 70 indicates retardation, and that Boyd received an I.Q. score of 64 on a test administered by him. Shadduck testified he had reviewed school records showing an I.Q. of 71. Shadduck concluded that Boyd was retarded and that his retardation should have been apparent to any observer. Dr. Alan Hopewell also testified that he had examined Boyd and found him to be retarded. Other witnesses testified to Boyd's mental state, including family members and attorneys who had worked with Boyd. Citing the I.Q. tests introduced at trial, along with the post-trial I.Q. tests, Boyd alleges that his counsel's failure to investigate his mental capacity constituted ineffective assistance.

The district court found that the evidence of Boyd's retardation is conflicting. The district court stated that the credibility of Drs. Shadduck and Hopewell suffered on cross-examination. The credibility of Boyd's mother and sister, who testified to Boyd's retardation, was undermined by their earlier contradictory testimony at the sentencing phase of the trial. The district court did not credit the testimony of two of Boyd's other witnesses who were either employees or associates of Boyd's present counsel.

Other evidence cast doubt on the obviousness of Boyd's retardation. Boyd's attorney Paul Brauchle testified that he did not believe that Boyd was retarded, based on his observations of Boyd and from information from Boyd's family. He stated that Boyd assisted him in the jury selection process and that he was unable to remember having had information that Boyd scored low on an I.Q. test. The district court found Brauchle's testimony credible. The district court additionally found the testimony of Michael Byck, who also served as trial counsel, to be highly credible. Byck testified he saw no "red flags" that would indicate Boyd's retardation. Conversations with Boyd's family, and the school records, did not suggest to Byck that Boyd was retarded. The district court concluded that the isolated I.Q. score of 67 in the prison packet was not enough to compel the attorneys to investigate, when the other evidence available at trial contradicted a suggestion of retardation.

Under Strickland, we consider whether the failure of Boyd's counsel to develop and to present the evidence of retardation constituted deficient performance. Boyd's lowest I.Q. score of 64 is on the upper borderline of mental retardation. See Penry, 492 U.S. at 308 n. 1, 109 S.Ct. at 2941 n. 1. In other cases, we have found that counsel did not perform deficiently in failing to develop similar evidence of retardation. In Andrews v. Collins, 21 F.3d 612, 624 (5th Cir.1994), the defendant presented an I.Q. score of 68, which conflicted with testimony presented by the state that Andrews's I.Q. was between 70 and 80. We found that Andrews's counsel did not perform deficiently in failing to present the evidence of his low intelligence. See also Smith v. Black, 904 F.2d 950, 977 (5th Cir.1990)(finding that counsel was not deficient for failing to present mitigating evidence of I.Q. of 70), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992), aff'd in relevant part, 970 F.2d 1383 (5th Cir.1992); cf. Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir.1986)(finding counsel ineffective for failing to present evidence of I.Q. score below 41).

The evidence of Boyd's retardation must be considered in tandem with the impressions that he gave the attorneys. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.... In particular, what investigation decisions are reasonable depends critically on such information." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Boyd's attorneys testified that they did not believe Boyd was retarded, based on their observations and interactions with him, and the district court found this testimony to be credible. The attorneys decided not to investigate Boyd's mental state because they did not believe retardation was an issue. In light of both Boyd's own actions and the conflicting evidence of retardation, the failure of Boyd's counsel to present evidence of Boyd's borderline retardation cannot be considered to have fallen "below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.

Even had counsel been aware of Boyd's retardation, it was not ineffective assistance to abstain from further investigation. The Court determined in Penry that mitigating evidence of mental retardation has relevance to moral culpability beyond the special issues. See Penry, 492 U.S. at 322, 109 S.Ct. at 2948. Prior to Penry, however, evidence of mental retardation had a greater potential for negatively impacting the defense, because the jury might use such evidence to support a "yes" answer to the second special issue, the defendant's future dangerousness. See Lackey v. Scott, 28 F.3d 486, 490 (5th Cir.1994), vacated on other grounds, 52 F.3d 98, 99 (5th Cir.1995). In cases tried before Penry, it was not ineffective assistance to fail to seek or to develop evidence regarding a defendant's mental retardation. See Washington v. Johnson, 90 F.3d 945, 953 (5th Cir.1996)("This case was tried before the Supreme Court's Penry decision, and we have not previously held counsel incompetent for failing to anticipate Penry."), cert. denied, 520 U.S. 1122, 117 S.Ct. 1259, 137 L.Ed.2d 338 (1997). Because the evidence of retardation may have influenced the jury negatively, Boyd's counsel did not perform...