Man Kills Convenience Store Clerk: Death Penalty: Appeals Court: Mitigating Circumstances — (Death Penalty News)

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Death Penalty News

Wednesday, February 8, 2012

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 TURNER v. EPPS — (Leagle)

Before: KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM.
Edwin Hart Turner (“Petitioner”) seeks a Certificate of Appealability (“COA”) on his claim that he received ineffective assistance of counsel during the mitigation phase of his capital case. In the alternative, Petitioner requests that we remand to the district court for an evidentiary hearing on his claim. After review, we find that Petitioner has not made a substantial showing of the denial of a constitutional right and, therefore, we deny his COA on this ground. Petitioner is also not entitled to a COA on his claim that the district court abused its discretion in choosing not to hold an evidentiary hearing.

On December 12, 1995, Petitioner and another individual, Paul Stewart, were drinking beer and smoking marijuana while driving around in Stewart’s car. Eventually, Petitioner and Stewart decided to rob convenience stores in Carroll County, Mississippi. They first drove to Mims Truck Stop, but left after finding it too crowded. They then drove to Mims Turkey Village Truck Stop, about four miles away. At around 2:00 a.m. on December 13th, the two entered the store wearing masks and carrying rifles. Petitioner shot the store clerk in the chest. Petitioner and Stewart then tried to open the cash register, and at one point, both men shot at the register. After their unsuccessful attempts to open the register, Petitioner placed the barrel of his rifle inches from the store clerk’s head and shot him.

Petitioner and Stewart then drove back to Mims Truck Stop. While Stewart went inside the store, Petitioner approached Everett Curry, who was pumping gas outside. Petitioner ordered Curry to the ground, robbed him, and shot him in the head. Meanwhile, inside the store, Stewart grabbed some of the store’s cash. Petitioner then came into the store and pointed his gun at the people inside. Stewart testified at trial that he told Petitioner there was no need to kill anyone else because Stewart already had the money from the cash register. The pair left the store and returned to Petitioner’s home. The next morning, police officers arrived at Petitioner’s home and found the two guns used in the crimes inside. They also found the hockey mask Stewart used during the robberies in the backseat of Petitioner’s car.

After the two were arrested, Stewart gave a full confession and pleaded guilty to two counts of capital murder. As part of his plea, Stewart agreed to testify against Petitioner. The jury ultimately found Petitioner guilty of two counts of capital murder while engaged in an armed robbery and imposed the death penalty. The convictions and death sentence were affirmed on direct appeal. Turner v. State, 732 So.2d 937 (Miss. 1999), cert. denied, Turner v. Mississippi, 528 U.S. 969 (1999).
Petitioner then filed for post-conviction relief in Mississippi state court. In support of his habeas petition, Petitioner submitted numerous affidavits from family members, as well as an affidavit from Petitioner’s girlfriend at the time of the crimes. Petitioner claimed that these affidavits showed his trial counsel’s lack of sufficient investigation and presentation of mitigation evidence during the sentencing phase of the trial. Petitioner also provided the state court with an affidavit from a doctor offering a different assessment of Petitioner’s mental illnesses from that offered by the expert witness called by the defense during the mitigation phase. The Mississippi Supreme Court denied the habeas petition, finding that: Petitioner had not shown a deficiency in counsel’s pre-trial investigation or performance; the information provided in the affidavits was cumulative of testimony given at trial; and counsel’s decision not to call additional mitigation witnesses was a strategic choice within counsel’s range of discretion. Turner v. State, 953 So.2d 1063 (Miss. 2007).
Petitioner subsequently filed for habeas relief in federal district court on numerous grounds. The district court denied the petition, finding that Petitioner did not rebut the Mississippi Supreme Court’s factual findings by clear and convincing evidence and Petitioner had not shown that the Mississippi Supreme Court’s application of the Strickland standard was unreasonable.¹ In the same memorandum opinion and order, the district court also denied Petitioner’s request for an evidentiary hearing and his request for a COA. After the district court denied Petitioner’s motion to alter or amend judgment, Petitioner timely appealed to this court, seeking a COA on his claim of ineffective assistance of counsel. In the alternative, Petitioner seeks a remand for an evidentiary hearing.

…Under the “unreasonable application” clause, a federal court may grant relief if the state court identified the correct legal principle, but unreasonably applied that principle to the facts of the petitioner’s case… In reviewing a state court’s decision, this court focuses on “the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam).
Alternatively, a petitioner may obtain habeas relief under § 2254(d)(2) when the state court’s decision was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Williams, 529 U.S. at 386. A state court’s factual determination is “not unreasonable merely because the federal court would have reached a different conclusion in the first instance.” Wood v. Allen, 130 S.Ct. 841, 849 (2010).²

B. Strickland/Wiggins Standard
Petitioner does not contend that he is innocent of the two victims’ murders or the commission of the accompanying robberies. Instead, he focuses his claims for habeas relief on the sentencing phase. The familiar Strickland standard, applied to capital sentencing in Wiggins, governs Petitioner’s claim that his constitutional rights were violated due to the ineffective assistance of counsel…

1. Counsel’s Performance
When reviewing counsel’s performance, a court should make every effort to “eliminate the distorting effects of hindsight” and “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. Judicial scrutiny of counsel’s performance is highly deferential, and there is a “strong presumption that counsel performed adequately and exercised reasonable professional judgment.” Virgil, 446 F.3d at 608 (internal citation omitted). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Wiggins, 539 U.S. at 521-22 (quoting Strickland, 466 U.S. at 690-91). However, courts are “not required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all.” Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999). If counsel did not make an informed decision, the court must reject an assertion of strategy. Lockett v. Anderson, 230 F.3d 695, 715 (5th Cir. 2000).
To render performance that is constitutionally sufficient, counsel should pursue all reasonable leads… (noting that, to a degree, counsel should be able to rely on an expert to determine what evidence is necessary to an effective evaluation, and what additional evidence the expert needs to complete testing).
2. Prejudice
The prejudice prong of the Strickland/Wiggins standard asks “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” … To establish prejudice, the new evidence must be so compelling as to create a reasonable probability that a juror could have reasonably assessed Petitioner’s moral culpability differently. Neal, 286 F.3d at 241.

Keeping the appropriate standards in mind, we must determine whether reasonable jurists could debate the propriety of the district court’s resolution of Petitioner’s claim for habeas relief. We address each argument raised by the Petitioner in turn.
A. Ineffective Assistance of Counsel
1. Reasonableness of the State Court’s Factual Findings
Petitioner has not shown that the reasonableness of the state court’s findings of fact is debatable. The state court was not unreasonable in finding that almost all of the background factual information contained in the affidavits attached to the habeas petition tracked the testimony of the three defense witnesses during the sentencing phase. Those three witnesses testified to Petitioner’s tragic upbringing, the alcohol abuse by Petitioner’s parents, Petitioner’s involuntary commitments to mental institutions, and Petitioner’s two attempted suicides. While some of the new affidavits may have provided more details or a slightly different perspective, we cannot find that this renders unreasonable the state court’s factual determination that such testimony was cumulative.
Further, we do not find that reasonable jurists could debate whether the state court was unreasonable in finding that counsel interviewed “numerous” or “many” witnesses during the course of the pre-trial investigation. The affidavits provide that counsel interviewed at least five witnesses prior to the sentencing phase, and we will not discredit a state court’s finding simply because Petitioner objects to the use of the term “many.” We also note that the state court further supported its holding as to the sufficiency of the pre-trial investigation with an unchallenged finding that counsel reviewed Petitioner’s extensive medical and psychiatric files.

2. State Court Application of the Strickland/Wiggins Standard

Turning to the state court’s application of the Strickland/Wiggins standard, we ultimately find that reasonable jurists could not debate whether the state court unreasonably applied Strickland/Wiggins when it held that counsel’s pre-trial investigation was sufficient. The record demonstrates that counsel interviewed several witnesses and reviewed Petitioner’s medical and psychiatric files. Further, counsel hired two different experts to evaluate Petitioner before trial. Although counsel utilized one of those experts at trial (Dr. Galvez), Petitioner urges that counsel should have interviewed more witnesses and conducted an investigation into the effects of Prozac on Petitioner’s mental state at the time of the crimes. Petitioner claims that additional investigation would have led counsel to uncover evidence of Petitioner’s increasingly strange behavior just before the crimes. Such information, Petitioner avers, was not provided to the defense’s testifying expert and, had it been, that expert would likely have diagnosed Petitioner with a different mental illness or testified that Prozac exacerbated Petitioner’s mental illness rather than helped to cure his depression.
… Any new evidence provided in the affidavits of the family members is not significant enough to render it debatable among jurists of reason whether a juror would have decided against imposing the death penalty based upon this additional evidence.

Turning to the issue of investigation into the effects of Prozac,⁵ we again cannot find that reasonable jurists would debate whether counsel rendered deficient performance by failing to uncover evidence of Petitioner’s strange behavior, Petitioner’s family history of mental illness, or that Prozac could potentially trigger or exacerbate mania. Even if counsel was or should have been aware that Petitioner acted increasingly strangely in the months leading up to the crime, it is difficult to see how this information would cause reasonable counsel to conduct more investigation, especially given Petitioner’s extensive history of mental illness.

Further, counsel hired two independent experts to examine Petitioner, and the testifying expert testified that he reviewed approximately eighteen inches worth of medical records in preparing his diagnosis. While counsel cannot completely abdicate a responsibility to conduct a pre-trial investigation simply by hiring an expert, counsel should be able to rely on that expert to alert counsel to additional needed information or other possible routes of investigation. Both experts hired by the defense, the prosecution’s testifying expert, and doctors from Whitfield Institution diagnosed Petitioner with a combination of depression, borderline personality disorder, and alcohol and substance abuse issues. These doctors were aware of Petitioner’s increased Prozac dosage just prior to his transfer to Whitfield…
We further agree with the district court’s finding that the opinions expressed in the new expert affidavits, some of which were submitted by Petitioner to the district court for the first time, indicate a mere disagreement among experts.⁶ At best, these affidavits only speculate as to what the defense expert would have said if he had this information. Further, the only timely submission to the district court was Dr. Zimmerman’s affidavit. His affidavit is wholly conclusory about the effects of Prozac on an individual such as Petitioner. Further, he purports to opine “to a reasonable degree of medical certainty,” but he is a psychologist, not a medical doctor.
Even assuming that counsel should have done more investigation into Petitioner’s family history and the effects of Prozac, we find that reasonable jurists could not debate whether Petitioner has demonstrated resulting prejudice. The jury heard testimony from three family members and the defense expert about Petitioner’s significant history of mental illness and suicide attempts. We cannot see how testimony that a relative also had a mental illness or that Petitioner acted increasingly strangely just before committing the crimes would have a reasonable probability of changing the outcome…

IV. Conclusion

Petitioner’s request for a COA on two issues is DENIED.