Smith v. Dretke

• Decision Date: 17 August 2005
• Docket Number: No. 03-20401.,03-20401.
• Citation: 422 F.3d 269
• Parties: Roy Gene SMITH, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

422 F.3d 269

Roy Gene SMITH, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 03-20401.

United States Court of Appeals, Fifth Circuit.

August 17, 2005.

Michael B. Charlton, Law Office of Michael B. Charlton, El Prado, NM, Alexander Lee Calhoun, Law Office of Alex Calhoun, Austin, TX, Alexander Lee Calhoun, Law Office of Alex Calhoun, Austin, TX, for Petitioner-Appellant.

Kelli L. Weaver, Austin, TX, for Respondent-Appellee.

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

Before SMITH, DeMOSS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Petitioner-appellant Roy Gene Smith ("Smith") was convicted in the Texas state courts and sentenced to death for the capital murder of James Whitmire. The district court denied Smith's petition for a writ of habeas corpus and denied a certificate of appealability (COA) sua sponte. Smith now requests a COA from this court on three issues, (1) whether his trial counsel provided ineffective representation, (2) whether the jury instructions given at the sentencing phrase of his trial violated his constitutional rights pursuant to Penry v. Johnson,¹ and (3) whether the district court erred in denying his request for funds under 21 U.S.C. § 848 for a psychologist. For the foregoing reasons, we grant a COA as to Smith's ineffective assistance of counsel and Penry claims. However, we find that the district court did not abuse its discretion in denying Smith's request for funds.

Factual and Procedural Background

On October 8, 1988, Smith and Mary Williams ("Williams") spent the day smoking crack cocaine at a boarding house. Around 8:00 p.m., Smith and Williams left the boarding house. As they walked down the street, they came upon 67-year-old James Whitmire. Smith approached Whitmire and asked him for a job. Whitmire responded that he had no work available and then turned away. Smith unzipped his jacket, drew a .22 caliber pistol, and began shooting Whitmire. After Whitmire fell Smith continued shooting, hitting him several times. Williams fled the scene.

After Whitmire was dead, Smith searched his pockets and stole $4.27. As Smith rifled through Whitmire's clothing, two men approached Smith and asked him what he was doing. The men fled when Smith began shooting at them. Smith later reunited with Williams and they purchased hot dogs with the stolen money. The couple spent the night in an abandoned house.

The next day, Williams returned to her home and contacted the police. The police searched for Smith and, after a chase, placed him under arrest. Smith subsequently signed a written statement that the district court regurgitated as follows:

Last night I approached a guy and robbed him. When I pull my pistol he hollered "I'm not giving up my money." I already had it cocked. I just kept firing. Afterwards I reached into his left back pocket and took his wallet, and his front pocket had $4.27 in it. The wallet had no money.

The gun I used was a .22 revolver, I don't know the make. The guy that got shot was an old guy, I'd say about 54 or 55. After I shot him I ran all the way back to Mills Court. I hid in an abandoned house, and stayed there until daybreak. About 3:00 to 3:15 this afternoon, I went to the park. I had the gun in a brown paper bag. The next thing I knew was that you all arrived. I rolled over the hill and peeped up, and saw that you all were coming up. I panicked and ran. I ran to this old abandoned garage and threw the pistol down in the yard, by the garage. I climbed up in the garage, and hid, and that is when the officer opened the door. This is the God honest truth.

Smith v. Cockrell, No. H-00-1771, slip op. at 2-3 (S.D. Tex. filed March 31, 2003). Smith also confessed that in the week prior to the homicide, he committed another capital murder, another shooting, and several robberies.

After a jury trial, Smith was convicted of capital murder in the 208th Judicial Court of Harris County, Texas, Judge Benjamin A. Martinez presiding. The district court summarized the evidence adduced at the punishment phase of trial as follows:

During the punishment phase of trial, the State elicited testimony concerning Smith's extensive criminal history. The State also introduced evidence relating to Smith's week-long crime spree before Whitmire's homicide, including his confession to several crimes. Additionally, the State introduced testimony of violent threats by Smith in prison and his poor parole history.

At the punishment phase, the defense presented testimony from Smith's sister, Carolyn Smith, who described the crime-ridden environment her brother lived in [Smith grew up in an area in Houston, Texas known as "Fifth Ward"] and testified that she had never known her brother to use crack cocaine. She also described her brother as calm and not violent. Smith's mother, Wilbert Lee Smith, testified on his behalf. She testified that her son never used crack cocaine or carried a gun. She also described her son's childhood and the crime-infested neighborhood in which she lived, commented on his good behavior in the penitentiary, and pleaded for mercy. A Harris County Sheriff's Deputy, Thomas Gentry, testified that Smith had no major trouble while previously incarcerated. Finally, Smith took the stand himself and explained that he had been on a drug binge at the time of the homicide and did not remember killing Whitmire. Smith also expressed remorse for the killing.

Id. at 3-4.

Following the admission of this evidence, the state trial court instructed the jury to answer Texas' special issue questions in the negative if the mitigation evidence sufficiently required the imposition of a life sentence. On May 11, 1990, the jury affirmatively answered all three special issues and the trial court sentenced Smith to death by lethal injection accordingly. The Texas Court of Criminal Appeals affirmed Smith's conviction and sentence on February 24, 1993. Smith v. State, No. 71,009 (Tex.Crim.App.1993). The United States Supreme Court denied Smith's petition for a writ of certiorari on November 15, 1993. Smith v. Texas, 510 U.S. 979, 114 S.Ct. 474, 126 L.Ed.2d 425 (1993).

Collateral proceedings then ensued. On April 18, 1997, Smith filed a state writ of habeas corpus raising one ground for relief. The presiding judge at the time of trial was not the same judge presiding over Smith's state habeas petition. On August 24, 1999, the state habeas court, in the absence of an evidentiary hearing, entered findings of fact and conclusions of law recommending the denial of state habeas relief. On September 29, 1999, the Texas Court of Criminal Appeals affirmed the denial of habeas relief. Ex Parte Smith, No. 42,801-01 (Tex.Crim.App.1999).

On May 30, 2000, Smith timely filed his federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. This case arises on appeal from the United States District Court for the Southern District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for summary judgment. On March 31, 2003, the district court granted the State's motion for summary judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D.Tex. filed March 31, 2003). The district court also denied Smith's COA request sua sponte. On September 22, 2003, Smith timely filed his appeal, requesting a COA from this court.

Standard of review

Because Smith's federal petition for habeas review was filed on May 30, 2000 we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate "that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

In determining whether to grant a COA, our inquiry is limited to a threshold examination that "requires an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather "the question is the debatability of the underlying constitutional claim, not the resolution of that debate." Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that "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 337, 123 S.Ct. 1029. At the COA stage, we do not apply the deferential AEDPA standard of review to examine the merits of the habeas petition. Id. at 342, 123 S.Ct. 1029 ("Before the issuance of a COA, the Court of Appeals had no jurisdiction to resolve the merits of petitioner's constitutional claims."). Our immediate task is to determine, not the ultimate merits of Smith's claims, but only whether Smith has demonstrated that "jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). "Because the present case involves the death penalty, any doubts as to whether a COA...