Mitchell v. Epps, 10–70006.

• Decision Date: 16 May 2011
• Docket Number: No. 10–70006.,10–70006.
• Citation: 641 F.3d 134
• Parties: William Gerald MITCHELL, Petitioner–Appellant,v.Christopher B. EPPS, Commissioner, Mississippi Department of Corrections, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

641 F.3d 134

William Gerald MITCHELL, Petitioner–Appellant,

v.Christopher B. EPPS, Commissioner, Mississippi Department of Corrections, Respondent–Appellee.

No. 10–70006.

United States Court of Appeals, Fifth Circuit.

May 16, 2011.

Kenneth Harold Coghlan (Court–Appointed), Rayburn Coghlan Law Firm, P.L.L.C., Oxford, MS, for Petitioner–Appellant.Marvin Luther White, Jr., Asst. Atty. Gen., Jackson, MS, for Respondent–Appellee.Appeal from the United States District Court for the Southern District of Mississippi.Before JOLLY, CLEMENT and ELROD, Circuit Judges.E. GRADY JOLLY, Circuit Judge:

In July 1998, William Gerald Mitchell was convicted and sentenced to death for the November 1995 capital murder of Patty Milliken. The Mississippi Supreme Court denied post-conviction relief, and the federal district court denied habeas relief and denied a certificate of appealability (“COA”). Mitchell has requested a COA from this court authorizing him to appeal the denial of relief on his claims that he received ineffective assistance of counsel and that he is mentally retarded and ineligible for execution. Because the district court's decision denying relief on these claims is not debatable among reasonable jurists and Mitchell's claims are not adequate to deserve encouragement to proceed further, we DENY his request for a COA.

I.

On the evening of November 21, 1995, near the end of her shift, Patty Milliken told her co-worker at a Biloxi convenience store that she was going to go outside with Mitchell to smoke a cigarette and talk. She left her purse and car keys in the convenience store. When she did not return, her co-worker reported to the police that she was missing. Milliken had written Mitchell's telephone number on a piece of paper that the police found in her purse. The police cross-referenced the telephone number to an address. When they arrived at that address, Mitchell, who was in the yard, ran from them. The police later spotted Mitchell at a gas station, and pursued him when he fled from the gas station in his car. He was arrested for traffic violations.

Milliken's body was found the following morning under a bridge. She had been beaten, strangled, sexually assaulted, and crushed after having been run over by a car. After the police searched Mitchell's car, he was charged with Milliken's murder. At the time of Milliken's murder, Mitchell was under a sentence of life imprisonment for a previous murder, and had been on parole for approximately eleven months.

The jury found Mitchell guilty of capital murder. At the punishment phase, Mitchell called four witnesses. His wife, Mary Louise Mitchell, testified that she met Mitchell at the penitentiary. The last time he lived with her was in 1990 or 1991. She told the jury that they had adopted her son's child. She stated that Mitchell had a wonderful relationship with her adult daughters, and that he worked and took care of her children, allowing her to use some of his earnings to support them. She stated that he worked as a roofer, then as a direct care worker at the Mississippi State Hospital, and then went to truck driving school and became a truck driver. She said that Mitchell had never been violent to or around her.

Mitchell's stepfather, Albert Reed, Jr., testified that he married Mitchell's mother when Mitchell was four years old. According to Reed, Mitchell was a normal youngster and everybody loved him. Mitchell never had any problems with the law and worked for his grandfather's lawn business. He testified that Mitchell served in the Army, and something happened to change Mitchell when he got back from Korea.

Mitchell's sister, Marie Cornelia Mitchell Dunn, testified that during their childhood, they did what normal children do, playing and going to school. She said that Mitchell worked “all the time” when he was young. She also testified about Mitchell's military service. She admitted that she was aware that he had been convicted of murder in 1975. She stated that her brother reads the Bible, and that is what has saved him: “A person who has committed two murders reads the Bible and that's what he does everyday.” ¹

Rosemary Reed, Mitchell's mother, testified that Mitchell had normal boyhood activities, and was “just a typical boy.” He was a Boy Scout and did normal things that Scouts do, such as camping. She testified about his military service. According to her, Korea was a bad place for him to be. She testified about his conviction for murder in 1975 and his sentence of life imprisonment.

The jury did not find Mitchell's mitigating evidence to be persuasive, and he was sentenced to death. The Mississippi Supreme Court affirmed his conviction and sentence on March 29, 2001, and denied rehearing on August 23, 2001. Mitchell v. State, 792 So.2d 192 (Miss.2001). The Supreme Court denied certiorari. Mitchell v. Mississippi, 535 U.S. 933, 122 S.Ct. 1308, 152 L.Ed.2d 218 (2002).

The Mississippi Supreme Court denied post-conviction relief on August 19, 2004, and denied rehearing on December 2, 2004. Mitchell v. State, 886 So.2d 704 (Miss.2004). The Supreme Court denied certiorari. Mitchell v. Mississippi, 544 U.S. 1022, 125 S.Ct. 1982, 161 L.Ed.2d 864 (2005).

Mitchell filed his federal habeas petition on June 15, 2005. On March 19, 2010, in a thorough and well-reasoned opinion, the district court denied relief and denied Mitchell's request for a COA. Mitchell v. Epps, No. 1:04–cv–865, 2010 WL 1141126 (S.D.Miss. Mar.19, 2010).

II.

Mitchell requests a COA from this court authorizing him to appeal the denial of habeas relief on two issues: (1) whether he was denied the effective assistance of counsel during the guilt² and sentencing phases of trial; and (2) whether he is mentally retarded and entitled to an evidentiary hearing on that issue. We address the ineffective assistance claim first, and then turn to the mental retardation claim.

A.

Because Mitchell's ineffective assistance of counsel claim was adjudicated on the merits by the Mississippi Supreme Court, the district court's consideration of Mitchell's claim was governed by 28 U.S.C. § 2254(d). That section provides:

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).

For the district court, “[t]he pivotal question [was] whether the state court's application of the Strickland [ v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. at 788. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Id. at 786 (internal quotation marks and citation omitted).

The district court held that Mitchell's ineffective assistance claim was not exhausted in state court and consequently is procedurally barred from review, except for his claim that counsel failed to discover and present evidence of mental retardation at sentencing. It held that the Mississippi Supreme Court's denial of relief on Mitchell's Strickland claim was not unreasonable because Mitchell failed to show that he met the standard for mental retardation defined by state law and, therefore, his counsel could not be faulted for failing to present evidence of mental retardation. Assuming Mitchell's claim that his trial counsel should have offered evidence of other mental disorders were not barred, the district court held that Mitchell was not prejudiced, because the evidence Mitchell claimed should have been presented was not of such persuasive character that it would have influenced the jury's appraisal of his moral culpability.

Mitchell has requested a COA from this court authorizing him to appeal the district court's denial of relief. To obtain a COA, Mitchell must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “Where a district court has rejected the constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong,” id., “or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citation omitted). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029....