U.S. v. Jones, 01-10142.

• Decision Date: 27 March 2002
• Docket Number: No. 01-10142.,01-10142.
• Citation: 287 F.3d 325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

287 F.3d 325

UNITED STATES of America, Plaintiff-Appellee, v. Louis JONES, Defendant-Appellant.

No. 01-10142.

United States Court of Appeals, Fifth Circuit.

March 27, 2002.

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Delonia Anita Watson, Fort Worth, TX, Tanya K. Pierce, Asst. U.S. Atty., Lubbock, TX, for Plaintiff-Appellee.

Floyd D. Holder, Jr., Law Firm of Floyd Holder, Timothy W. Floyd, Texas Tech University, School of Law, Lubbock, TX, for Defendant-Appellant.

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

Before WIENER, BENAVIDES, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellant Louis Jones seeks a Certificate of Appealability ("COA") on the bases of ineffective assistance of counsel (two particulars), racial discrimination stemming from an alleged systematic pattern in the prosecution of death penalty cases by the United States Attorney General's office, and alleged selective prosecution of death penalty cases based on the geographic location of the defendant at the time that the crime was committed. We deny his application on all issues.

I. BACKGROUND.

Jones, a retired servicemember, was convicted of kidnaping with death resulting to the victim, in violation of 18 U.S.C. § 1202(a)(2), punishable by death under the Federal Death Penalty Act ("FDPA") of 1994, 18 U.S.C. § 3591, et seq. Jones directly appealed his conviction and death sentence to this court and to the United States Supreme Court, both of which affirmed his sentences. See United States v. Jones, 132 F.3d 232 (5th Cir.1998), aff'd Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). The details of the crime and subsequent history are contained in those cases; a brief summation is all that is necessary for this review.

Petitioner Louis Jones, Jr., kidnaped Private Tracie Joy McBride at gunpoint from the Goodfellow Air Force Base in San Angelo, Texas. He brought her to his house and sexually assaulted her. Soon thereafter, petitioner drove Private McBride to a bridge just outside of San Angelo, where he repeatedly struck her in the head with a tire iron until she died. Petitioner administered blows of such severe force that, when the victim's body was found, the medical examiners observed that large pieces of her skull had been driven into her cranial cavity or were missing.

See 527 U.S. at 376, 119 S.Ct. 2090. Having exhausted his direct appeal, Jones sought a COA on collateral attack under 28 U.S.C. § 2255 from the district court, which denied his request. He now seeks such a COA from this court, on the issues as outlined. We have jurisdiction under 28 U.S.C. § 2253.

II. STANDARD OF REVIEW.

To prevail on an application for a COA, a petitioner must make a "substantial showing of the denial of a constitutional right, a demonstration that ... includes showing 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." Moore v. Johnson, 225 F.3d 495, 500 (5th Cir.2000), quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). "Because the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [the petitioner's] favor." Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).

III. ANALYSIS.

A. Ineffective Assistance of Counsel.

Jones makes two claims under the heading of ineffective assistance of counsel ("IAC"). First, he asserts that his trial counsel's admission of Jones's responsibility for McBride's death during his opening statement at trial violated Jones's rights under the Fifth and Sixth Amendments. Second, Jones asserts that a jury charge encompassing the language of 18 U.S.C. § 3593(e), as requested by his trial counsel, violated his rights under the Sixth Amendment.

We review IAC claims under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner must show (1) that counsel's representation was deficient, and (2) actual prejudice resulted from the deficient performance. Id. at 687, 104 S.Ct. 2052; Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir.1999).

As to Jones's first IAC claim, the issue is whether his counsel's comments regarding Jones's responsibility for Private McBride's death during his opening statement was properly a matter of considered trial strategy. Counsel's opening statement included the following remarks:

"I want to say to you at the very outset that Louis Jones does not dispute that he is responsible for the death of Tracie McBride. You will hear no excuses about insanity or self-defense. You will hear no evidence of justification." The remainder of counsel's opening statement made it clear that the defense strategy was to admit those incontestable issues that the defense could not avoid¹ to the jury, force the government to prove each element of its case, and rely on the presentation of mitigating evidence.²

Jones argues that this statement amounts to an admission of guilt to his capital murder charge. He further contends that such an admission amounts to an abandonment of his case by his defense counsel and is constitutionally infirm.

Jones further asserts that such a statement by counsel in the guilt-innocence phase without his client's consent is ineffective assistance of counsel. He notes, however, that the district court found that he was fully apprised of his counsel's informed strategic decision and that he concurred in its use, without attempting to contradict that finding. The record supports such a finding. Regardless, Jones argues as though his consent had not been obtained and as though his counsel's statement amounted to an "admission of guilt" of the crime charged. The authorities Jones cites to support his position are factually distinguishable from his case and are unconvincing.

The Eleventh Circuit has held that where a capital defendant seeks a verdict of not guilty by his testimony as well as by his plea, counsel, though faced with strong evidence against his client, may not concede the issue of guilt merely to avoid a somewhat hypocritical presentation during the sentencing phase and thereby maintain his credibility before the jury. See Francis v. Spraggins, 720 F.2d 1190, 1194 (11th Cir.1983) (after an opening statement, hearing the prosecution's strong evidence, and having his capital defendant client testify that he denied any knowledge of crimes charged or making exculpatory statements to the police, defense counsel said to the jury at final argument, "I think [the defendant] went in the house and I think he committed the crime of murder..."). That circuit has also held that counsel is ineffective in a capital case when he fails to understand the reason for a bifurcated trial, attempts a wholly unsupported affirmative defense of insanity and then abandons it mid-trial, fails to argue that a lesser included manslaughter offense might be applicable, commits various other blunders during trial, and openly admits his client's guilt for malice murder during closing arguments in the guilt-innocence phase while pleading for mercy from the jury. See Young v. Zant, 677 F.2d 792, 796-98 (11th Cir.1982).

Jones's other authorities are similar. See, e.g., United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir.1991) ("[a] lawyer who informs the jury [in his closing argument] that it is his view of the evidence that there is no reasonable doubt regarding the only factual issues that are in dispute has utterly failed to subject the prosecution's case to meaningful adversarial testing") (internal quotations and citations omitted). See also Wiley v. Sowders, 647 F.2d 642, 649 (6th Cir.1981) (defense counsel is ineffective when he "surrender[s] the sword" by admitting in his closing arguments that his clients were "guilty as charged by the Commonwealth's Attorney's office" and that the prosecutor "has proved to you beyond a reasonable doubt that these gentlemen are guilty of this crime," without his clients' consent).

None of these authorities reflect the facts in Jones's case. Jones's defense counsel recognized the strength of the prosecution's evidence and decided not to attempt an affirmative defense. He elected to rely on making the prosecution prove each element of the offense and on his ability to negate that proof in one or more elements. He did not put Jones on the stand, where contrary testimony might have been elicited from him. He obtained Jones's informed and knowing consent to pursue this trial tactic. He informed the jury in his opening statement that he would require the prosecution to prove each and every element of the offense charged, that of capital murder. His statement that Jones "[did] not dispute that he [was] responsible for the death of Tracie McBride" and would not be presenting insanity, self-defense, or justification defenses does nothing to undercut that trial tactic. Furthermore, a statement of responsibility for a death is not an admission as to each of the elements of a capital murder charge. Where defense counsel has admitted his client's responsibility for something less than the crime charged, we have held such a decision to be a permissible trial tactic, depending on the circumstances. Kitchens, 190 F.3d at 704 (in a capital murder case, pleading guilty to murder and arguing in closing that the defendant had committed a "very brutal, a very savage murder, but [] not a capital murder ..." was a valid strategic decision to bolster credibility with the jury).

"Informed strategic decisions of counsel are given a heavy measure of deference and should not be second guessed." Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir.), cert. denied, 528 U.S. 1013, 120 S.Ct. 522, 145 L.Ed.2d 401 (1999). There is nothing in the record to suggest that Jones's counsel blundered through the trial,...