Kitchens v. Johnson

• Citation: 190 F.3d 698
• Decision Date: 28 September 1999
• Docket Number: No. 98-10060,98-10060
• Parties: (5th Cir. 1999) WILLIAM JOSEPH KITCHENS, 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 698

190 F.3d 698 (5th Cir. 1999)

WILLIAM JOSEPH KITCHENS, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

No. 98-10060

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

September 28, 1999

REVISED, October 12, 1999

Appeal from the United States District Court For the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

William Joseph Kitchens ("Kitchens"), a Texas death-row inmate, appeals the district court's denial of his 28 U.S.C. 2254 motion. The basic issue on appeal is whether Kitchens received effective assistance of counsel as guaranteed by the Sixth Amendment. The main point of contention is whether counsel properly investigated and presented mitigating evidence of child abuse, alcoholism, and mental illness. Having reviewed the record, and having considered the parties' arguments, we affirm the district court's judgment.

I.

In 1986 Kitchens was charged with capital murder in Taylor County, Texas, for the shooting death of Patti Webb. Two lawyers were appointed to defend Kitchens, Randy Dale and Jon McDurmitt ("counsel"). Kitchens ultimately pleaded guilty to murder, but proceeded to trial on the capital murder charge. After a trial that lasted roughly one week, the jury convicted Kitchens of the capital offense of intentional murder in the course of a robbery or sexual assault. In the subsequent penalty phase of the trial, the jury was asked to answer the two special sentencing issues required by Article 37.071(b) of the Texas Code of Criminal Procedure.¹ See Tex. Code Crim. P. art. 37.071. The jury answered each question in the affirmative, and the trial court sentenced Kitchens to death.

Kitchens appealed his conviction and sentence to the Texas Court of Criminal Appeals, which affirmed by published opinion of October 30, 1991. Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991). The United States Supreme Court denied Kitchens' subsequent petition for writ of certiorari on June 1, 1992. Kitchens v. Texas, 504 U.S. 958 (1992). On February 4, 1993, Kitchens filed an application for a state writ of habeas corpus. A two-day hearing was held by the state trial court, and on November 27, 1996, in an unpublished per curiam opinion, the Texas Court of Criminal Appeals adopted the trial court's findings of fact and conclusions of law and denied Kitchens' petition.

Kitchens next filed a petition for federal habeas corpus relief on September 2, 1997. The district court denied the petition on November 26, 1997, and denied Kitchens motion for a certificate of appealability ("COA") on May 18, 1998. This Court then granted a COA on two separate issues which now form the basis of the present appeal.

II.

Kitchens filed his federal habeas corpus petition in September 1997, after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Thus, we must review his petition under the more stringent AEDPA standards. Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997). The AEDPA provision that guides our review is 28 U.S.C. 2254(d). It provides:

(d)An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1)resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2)resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. 2254(d). As this section is applied, questions of law and mixed questions of law and fact are reviewed under subsection (d)(1) of 2254. Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir. 1996). For questions of law, this subsection permits a federal court to grant habeas corpus relief only if the state court decision rested on a legal determination that was "contrary to . . . clearly established federal law." 28 U.S.C. 2254(d)(1); Drinkard, 97 F.3d at 767-68. For mixed questions of law and fact, subsection (d)(1) affords relief only if the state court decision rested on "an unreasonable application of clearly established federal law." 28 U.S.C. 2254(d)(1); Drinkard, 97 F.3d at 767-68.

Questions of fact, on the other hand, are reviewed under subsection (d)(2) of 2254. Id. at 767. That provision affords relief only if the state court adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence." 28 U.S.C. 2254(d)(2); Drinkard, 97 F.3d at 767. Importantly, state factual findings are presumed correct unless rebutted by the petitioners with clear and convincing evidence. 28 U.S.C. 2254(e)(1); Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir. 1999), cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.E.d.2d ___, 68 U.S.L.W. 3136 (1999).

III.

We granted a certificate of appealability on two separate issues, each relating to whether Kitchens received effective assistance of counsel as guaranteed by the Sixth Amendment. The first is whether counsel adequately investigated and presented mitigating evidence of child abuse, alcoholism, and mental illness. The second is whether counsel gave an effective closing argument at both the guilt and penalty phases of trial.

A.

We evaluate an ineffective assistance of counsel claim under the standard announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner must show (1) that counsel's representa-tion was deficient, and (2) actual prejudice resulting from the deficient performance. Strickland, 466 U.S. at 687; Earhart v. Johnson, 132 F.3d 1062, 1066 (5th Cir. 1998). Because an ineffective assistance of counsel claim is a mixed question of law and fact, we look to whether the state court decision rested on "an unreasonable application of clearly established federal law." 28 U.S.C. 2254(d)(1); Drinkard, 97 F.3d at 767-68. A state court's application of federal law is unreasonable when "reasonable jurists considering the question would be of one view that the state court ruling was incorrect." Drinkard, 97 F.3d at 769. With those standards in mind, we turn to the first issue in this appeal: whether counsel effectively investigated and presented mitigating evidence of child abuse, alcoholism,and mental illness.

B.

On appeal Kitchens maintains that his trial attorneys were ineffective by failing to investigate and present evidence that his father physically abused him as a child and forced him to consume alcohol at a very young age. Kitchens also contends that counsel failed to investigate and present hospital records indicating that Kitchens was hospitalized on numerous occasions for attempted suicide, depression, black outs, and hallucinations. Kitchens insists that had counsel properly uncovered this evidence and utilized it at trial, there would have been a reasonable probability that the jury would not have sentenced him to death.

In evaluating whether counsel's performance was deficient, we look to whether the challenged representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. However, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Thus, "[a] conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (quotations and citation omitted). "We will not find inadequate representation merely because, with the benefit of hindsight, we disagree with counsel's strategic choices." Id.

In this case, the state trial court conducted a two-day hearing and concluded that counsel was not ineffective under Strickland. The court found that counsel's failure to present evidence of child abuse and early alcohol consumption was a strategic decision founded on the belief that the value of that evidence did not outweigh the risk that other damaging evidence would come into the record. In particular, counsel believed that evidence relating to Kitchens' childhood would have opened the door to evidence of drug use, as well as specific instances where Kitchens was violent even when sober. Similarly, the court concluded that counsel's decision not to present the hospital records was a strategic decision because the records also showed that Kitchens had repeatedly rejected alcohol-abuse treatment and was a heavy drug user. The state trial court rejected the assertion that counsel's investigation was inadequate. The state court noted that his attorneys were aware of his childhood history, and interviewed several family members, but decided not to develop that evidence due to its double-edged quality.

When presented with Kitchens' claim of ineffective assistance of counsel, the federal district court found that the state court's findings were adequately supported by the record. The district court agreed that counsel's decisions were based on strategic concerns. Citing Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996), the district court observed that the Fifth Circuit has repeatedly denied claims of ineffective assistance of counsel for failure to present "double edged" evidence where counsel has made an informed decision not to present it. The district court also found that Kitchens' had not demonstrated the requisite prejudice under the second prong of Strickland.

On appeal Kitchens claims that the findings of the state court are contradicted by the record. He contends that counsel's failure to present evidence of his...