U.S. v. Webster

• Citation: 392 F.3d 787
• Decision Date: 07 December 2004
• Docket Number: No. 03-11194.,03-11194.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bruce Carneil WEBSTER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

392 F.3d 787

UNITED STATES of America, Plaintiff-Appellee, v. Bruce Carneil WEBSTER, Defendant-Appellant.

No. 03-11194.

United States Court of Appeals, Fifth Circuit.

December 7, 2004.

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Nancy E. Larson, Richard Bratton Roper, III, Asst. U.S. Attys., Fort Worth, TX, for Plaintiff-Appellee.

Gary Allen Taylor, Austin, TX, Philip Alan Wischkaemper, Snuggs & Wischkaemper, Lubbock, TX, for Defendant-Appellant.

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

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Bruce Webster requests a certificate of appealability ("COA") for issues the district court, which granted a COA on two issues, deemed unworthy of collateral review. Because Webster has failed to make a substantial showing of the denial of a constitutional right, we deny his application.

I.

In 1996, a federal jury convicted Webster of, and sentenced him to death for, three offenses — kidnapping resulting in death, conspiring to kidnap, and using and carrying a firearm during a crime of violence — for his role in the shocking and exceedingly brutal kidnapping, rape, and murder of sixteen-year-old Lisa Rene.¹ We affirmed the conviction and sentence on direct appeal, see United States v. Webster, 162 F.3d 308 (5th Cir.1998), cert. denied, 528 U.S. 829, 120 S.Ct. 83, 145 L.Ed.2d 70 (1999).

In September 2000 Webster filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255, and an amended § 2255 motion challenging his conviction and sentence on sixteen grounds in August 2002. The district court rejected Webster's claims and dismissed his petition. See Webster v. United States, No. 4:00-CV-1646-Y, 2003 WL 23109787 (N.D.Tex. Sept.30, 2003).

Webster subsequently filed (in the district court) an application for a COA on all grounds raised in his § 2255 motion. In January 2004, the district court issued a COA limited to Webster's claims that (1) his mental retardation renders him ineligible for the death penalty and (2) the evidence was insufficient to warrant the finding that he is not mentally retarded.² Webster thereafter filed the instant application with this court expressly limited (as is the government's brief in opposition) to requesting a COA on the issues not certified by the district court.³

II.

A defendant may not appeal a final order in a § 2255 proceeding unless a circuit justice or judge issues a COA. See 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, Webster must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).⁴ He must demonstrate 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).

In determining whether to grant a COA, we are limited "to a threshold inquiry into the underlying merit of [Webster's] claims." Id. "This threshold inquiry does not require full consideration of the factual and legal bases adduced in support of the claims." Id. at 336, 123 S.Ct. 1029. Instead, our determination is based on "an overview of the claims in the habeas petition and a general assessment of their merits." Id. In death penalty cases, "any doubts as to whether a COA should issue must be resolved in [petitioner's] favor." Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).

III.

A.

Before the jury retired for deliberations at the penalty phase, the district court excused juror Albert Fox and elevated an alternate. Webster alleges that the court committed constitutional error in replacing the dismissed juror with an alternate. Because this claim was raised and rejected on direct appeal, see Webster, 162 F.3d at 345-47, the district court properly held that Webster was barred from raising it on collateral review.⁵ We therefore deny a COA on this issue.

B.

After imposing a death sentence on the verdict, the district court entered a factual finding that Webster is not mentally retarded and is therefore not immune from the death penalty under 18 U.S.C. § 3596(c).⁶ Webster challenged this finding on direct appeal, claiming that the statutory scheme precluded factfinding by the court absent the defendant's motion, and that the court acted without notice thereby depriving him of due process. Reviewing the statutory challenge for plain error as a result of Webster's failure to object, and the due process claim de novo, we rejected both claims. See Webster, 162 F.3d at 351-52.

Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Webster sought habeas relief, asserting that he has a due process right to have the jury make the determination as to retardation.⁷ The district court denied relief, concluding that Apprendi does not retroactively apply to initial habeas petitions under § 2255 and that the absence of mental retardation is not an element of the sentence constitutionally required to be found by the jury. Webster seeks a COA on this claim.

Webster has not made the requisite showing of the denial of a constitutional right in this instance. As an initial matter, the procedural rule announced in Apprendi is not retroactively applicable to initial habeas petitions under § 2255. See United States v. Brown, 305 F.3d 304, 309 (5th Cir.2002). Although this court has yet to determine whether Ring applies retroactively, because "the rule in Ring is essentially an application of Apprendi, logical consistency suggests that the rule announced in Ring is not retroactively applicable." In re Johnson, 334 F.3d 403, 405 n. 1 (5th Cir.2003).⁸

Even assuming arguendo that Ring applies retroactively, "neither Ring [nor] Apprendi... render[s] the absence of mental retardation the functional equivalent of an element of capital murder which the state must prove beyond a reasonable doubt." Id. at 405 (emphasis added).⁹ Thus, because Apprendi does not apply retroactively to Webster's initial § 2255 motion, and Ring, even if retroactive, does not render the absence of mental retardation an element of the sentence that is constitutionally required to be determined by a jury, Webster has failed to make the requisite showing. We deny a COA on this issue.

C.

Webster contends that his trial counsel provided ineffective assistance of counsel under the Sixth Amendment. He alleges the following specific deficiencies:

(1) Counsel failed to investigate and present additional evidence demonstrating mental retardation and the extreme abuse Webster suffered as a child;

(2) Counsel failed to investigate and present (for purposes of mitigation and impeachment) evidence of racial discrimination in Webster's Arkansas school district;

(3) Counsel allowed a "breakdown in communication and a dispute over money with the mitigation specialist" to affect the sentencing phase of trial; and

(4) Counsel failed to object to the district court's factual finding regarding mental retardation.

To make a substantial showing of the denial of his Sixth Amendment right to reasonably effective assistance of counsel, Webster must satisfy Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, he must demonstrate "that counsel's performance was deficient," id. at 687, 104 S.Ct. 2052, and that "the deficient performance prejudiced ... [his] defense," id.

To establish deficient performance, a petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88, 104 S.Ct. 2052. Judicial scrutiny of counsel's performance must be "highly deferential," id. at 689, 104 S.Ct. 2052, and we must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time," id. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

To establish prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. The district court's denial of relief is not debatable among jurists of reason, even on threshold review, so we deny a COA on these claims.

1.

Webster contends that his trial counsel were ineffective in failing to investigate and present additional mitigating evidence demonstrating mental retardation and the extreme abuse he suffered as a child. The district court denied habeas relief, characterizing this ineffective assistance claim as one of degree — i.e., Webster does not allege that counsel utterly failed to present evidence of mental retardation and child abuse but, instead, that counsel were ineffective for failing to investigate and present enough of such evidence. After engaging in an exhaustive review of the trial record, the district court determined that defense counsel presented a significant amount of such evidence; and, although more of the same or similar evidence could have been furnished, counsel were not constitutionally ineffective for failing to present more of the same.

Indeed, our review of the trial record confirms that Webster's counsel were far from constitutionally ineffective in investigating and presenting evidence of his mental condition and the abuse he suffered as a child. During the punishment phase, counsel presented lengthy and detailed testimony from four medical experts regarding Webster's mental capacity¹⁰ and the testimony of a fifth medical expert on surrebuttal to critique the...