Charles v. Stephens

• Decision Date: 18 November 2013
• Docket Number: No. 12–70016.,12–70016.
• Parties: Derrick Dewayne CHARLES, Petitioner–Appellant, v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

736 F.3d 380

Derrick Dewayne CHARLES, Petitioner–Appellant,

v.William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 12–70016.

United States Court of Appeals,Fifth Circuit.

Nov. 18, 2013.

Paul Edward Mansur, Denver City, TX, Cathryn Stewart Crawford, TX, Defender Service, Austin, TX, for Petitioner–Appellant.

Fredericka Searle Sargent, Assistant Attorney General, for Respondent–Appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:

Derrick Dewayne Charles appeals the district court's denial of his 28 U.S.C. § 2254 application challenging his death sentence for the murder of three people. The district court denied his application, but granted a Certificate of Appealability (“COA”) on his claim that he was prejudiced by his counsel's deficient performance at trial. We AFFIRM.

I.

In 2002, Texas charged Charles with capital murder for killing three victims during the same criminal transaction. Charles pleaded guilty and the case proceeded to the punishment phase, in which the jury deliberated the special issues of Charles's future dangerousness and whether sufficient circumstances mitigated against a death sentence.

In seeking a death sentence, the state emphasized Charles's prior lawlessness, which the district court described as follows:

While a juvenile, the police arrested Charles several times. His prior crimes included trespass of an apartment, assault, fighting with police officers, several incidents of burglary, theft, and threatening teachers. While in Texas Youth Commission (“TYC”) custody his numerous rule violations resulted more than one hundred write-ups and confinement in lock-down twenty-two times. At TYC he bragged about selling dope, threatened staff, fought with other students, and received a “chronic serious offender” classification. Upon his release, he failed to attend weekly parole appointments. After serving time in the Texas Department of Criminal Justice (“TDCJ”) for burglary of a habitation, Charles only met with his parole officer once.

Charles v. Thaler, No. 4:09–0592, 2011 WL 5040438, at *4 (S.D.Tex. Oct. 24, 2011).

In response, defense counsel focused on proving that Charles would not be a future societal threat. The district court summarized the testimony presented:

Trial counsel began the defense's case for a life sentence during the cross-examination of the State's witnesses. Trial counsel's cross-examination revealed that Charles was young, was remorseful for the murders, only acted aggressively when provoked by others, had committed only minor infractions while in TYC custody, had never assaulted correctional officers, and was generally a good inmate. Also, trial counsel elicited testimony that one victim's sister forgave Charles for the murders.

Trial counsel affirmatively presented punishment phase testimony through four witnesses. Trial counsel called Dr. Walter Quijano, a psychologist who often testified in capital murder trials, to describe how prison security measures and classification systems would lessen Charles'[s] future dangerousness. Trial counsel supported Dr. Quijano's testimony with testimony from a correctional officer who explained that, since his arrest for capital murder, Charles had only committed two minor infractions of jail rules. The defense also solicited testimony to counter the State's negative evidence from two juvenile corrections officers from TYC who described Charles as a likeable youth and good student whose behavior improved while in custody. Trial counsel focused closing arguments on showing that Charles would not be a future danger to society.

Charles, 2011 WL 5040438, at *7–8.

Pursuant to the jury's answers to the special issues based on this evidence, the trial court sentenced Charles to death. The Texas Court of Criminal Appeals affirmed Charles's conviction and sentence on direct appeal. Charles v. Texas, No. 74,694, 2005 WL 283598 (Tex.Crim.App. Feb. 2, 2005) (unpublished).

While his direct appeal was pending, Charles filed an application for state habeas relief, raising an ineffective-assistance-of-counsel claim under the Sixth Amendment. Charles argued that his trial counsel inadequately investigated and presented mitigating evidence at sentencing. More specifically, Charles cited the failure of his trial counsel to investigate and present mitigating evidence regarding his potential drug use at the time of the crime, troubled family background, and mental health history.¹ Charles argued that trial counsel should have discovered this mitigating evidence (1) from his stepfather, Leroy Phillips, who trial counsel did not call as a witness, and (2) from Charles's medical records from his hospitalization at Gulf Pines Hospital as an adolescent, which trial counsel knew about but never found.²

At the state habeas proceedings, Phillips submitted an affidavit describing testimony he would have given if trial counsel had called him as a witness at Charles's trial. The district court summarized the affidavit as follows:

Charles—who was born prematurely and had two seizures as an infant—had a history of depression. His mother's own undiagnosed schizophrenia made her an inattentive parent who sometimes failed to provide adequate food and clothing. Instability, poverty, discord, and turbulence marked Charles'[s] home life. His mother's own mental problems allegedly prevented her from seeing to fruition Charles'[s] treatment for depression.

Charles, 2011 WL 5040438, at *15.

Ultimately, Charles's trial counsel decided not to call Phillips as a witness because his testimony, in the opinion of trial counsel, would not be helpful. According to trial counsel, Phillips gave Charles's bloody clothing from the crime to police, turned in Charles for prior crimes, suffered an assault from Charles, and attempted to teach Charles right from wrong throughout his life.

The Gulf Pines Hospital records, which state habeas counsel discovered by contacting Charles's psychologist, Dr. Lawrence Ginsberg, outlined Charles's adolescent mental and behavioral problems. When Charles was ten years old, Dr. Ginsberg evaluated Charles and recommended hospitalization at Gulf Pines. Upon Charles's first admission in 1993, the hospital provisionally diagnosed him with Oppositional Defiant Disorder, Depressive Disorder, and Rule Out Seizure Disorder. A psychological report suggested that further testing could rule out neurological problems. Admission records noted that ten-year-old Charles had been violent towards peers, easily lost his temper, had witnessed domestic violence, easily became angered, opposed authority, and started treatment at the hospital due to “serious dysfunctionality at home and at school.”

In addition to his behavioral problems, the hospital admission records showed that Charles had risk of suicide, mental anguish, and a medical history that included seizures as an infant, premature birth, and occasional stuttering. A psychosocial assessment noted that Charles came from a “very deprived background,” did not have many opportunities for leisure and recreation, and lived in a bad area. Although the psychosocial assessment suspected “some other significant problems at home,” it identified Charles's family as supportive, “genuinely concerned about [him],” and hopeful that he could go back to school without “fighting and being mean.”

After Charles's initial admission to Gulf Pines in 1993, Dr. Ginsberg assumed responsibility for Charles's treatment and recommended that he stay two or three weeks in the hospital. Instead of following Dr. Ginsberg's recommendation, however, Charles's mother removed him from Gulf Pines after two days and scheduled additional treatment through outpatient therapy. Charles's outpatient therapy continued intermittently until 1995, when his parents again admitted him to Gulf Pines due to depression, decreased amounts of sleep, irritability, and episodes of violence, which included threats and fighting at school, explosive outbursts, and generally disruptive behavior:

On the day of admission, [Charles] had been expelled from school for the fourth time. He threatened to flatten the tires of a teacher's car. He had been fighting and had been assaultive in school. He was using profane language in school and had been very disruptive. Mother notes decreased amounts of sleep, irritability, labile mood, crying spells, impaired memory, and impaired concentration. The patient was charged by the police with assault by threat.

Records from Charles's second visit to Gulf Pines chronicled a range of behavioral and mental issues similar to those of his first visit, but provide more detail into Charles's potential mental problems. Specifically, the records explained that Charles tested “in the intellectually deficientrange of intelligence,” likely had “some organic damage that is contributing to his behavior problems,” and exhibited “some signs of neurological problems.” Results from neurological testing, however, showed that Charles was within normal limits.

Charles remained at Gulf Pines for three weeks during his second visit. During this time, Charles exhibited poor behavior. He swore at and stole from peers, destroyed property, refused to participate in and disrupted therapy sessions, and was described as “silly, vulgar, immature, superficial, [and] non-working.” Upon his discharge, however, the records described Charles as stable and as demonstrating an improved mood, listing his parents as “very supportive” and his mother as “healthy [and] willing to follow direction.”

After reviewing this undiscovered mitigating evidence, the state habeas court denied Charles's petition for habeas relief, reasoning that Charles's trial counsel did not perform deficiently and that trial counsel made “a reasonable, plausible trial decision, made after thorough investigation,...