" Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison."
How later courts described this case
- " Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison."
- "Under the system of government created by our Constitution, it is up to the legislatures, not the courts, to decide on the wisdom and utility of legislation."
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
______________________ Fifth Circuit
No. 06-70003 FILED
______________________ January 22, 2007
Derrick SONNIER, Charles R. Fulbruge III
Clerk
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
________________________________________________
Before HIGGINBOTHAM, BENAVIDES, and DENNIS,
Circuit Judges.
DENNIS, Circuit Judge:
Petitioner Derrick Sonnier, a Texas death row
inmate, filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 with the United
States District Court for the Southern District of
1
Texas on June 4, 2004 and amended it on August 5,
2004. Respondent Doug Dretke1 filed a motion for
summary judgment on July 14, 2005. The district
court granted respondent’s motion for summary
judgment and denied Sonnier’s petition for a writ
of habeas corpus in a memorandum and order dated
January 23, 2006. It additionally denied a
Certificate of Appealability (COA) sua sponte.
Sonnier now seeks a COA from this court.
I. Background
Sonnier was convicted of the capital murder of
Melody Flowers and her son, Patrick Flowers, by a
Texas jury.2 At sentencing, Sonnier’s attorneys,
pursuant to his wishes and instructions, did not
1
On June 1, 2006, Nathaniel Quarterman succeeded Doug
Dretke, the previously named respondent-appellee, as Director of
the Correctional Institutions Division of the Texas Department of
Criminal Justice. Quarterman is substituted as a party. Fed. R.
App. P. 43(c)(2).
2
Specifically, the jury found Sonnier guilty of
intentionally and knowingly killing the two in the same criminal
transaction in violation of Texas Penal Code § 1903.
2
present any mitigation evidence. Sonnier, on the
record, confirmed that he had consistently
instructed his attorneys not to present any
mitigation evidence. Based upon the jury’s
answers to interrogatories under the 1991 Texas
capital sentencing scheme, the trial court
sentenced Sonnier to death.
Sonnier’s motion for new trial was denied, and
his conviction and sentence were affirmed by the
Texas Court of Criminal Appeals. See Sonnier v.
State, 913 S.W. 2d 511 (Tex. Crim. App. 1995).
Sonnier instituted state habeas proceedings in
which his petition was denied. See Ex Parte
Sonnier, No. 57,256-01 (Tex. Crim. App. Nov. 5,
2003)(unpublished). Sonnier then filed his
federal habeas petition in the district court.
The district court granted the State’s motion for
summary judgment, dismissed Sonnier’s petition in
3
its entirety, and denied a COA. Sonnier now
requests a COA from this court, claiming that:
(1) his trial counsel was ineffective for (a)
failing to investigate for mitigation evidence and
for (b) failing to present mitigating evidence at
the punishment phase of his trial; (2) he was
constitutionally entitled, under Simmons v. South
Carolina, 513 U.S. 154 (1994), to inform the jury
that, if sentenced to life imprisonment, rather
than death, he would not be eligible for parole
for 35 years; and (3) Texas Code of Criminal
Procedure article 37.071, as amended effective
September 1, 1991, is unconstitutional.
II. Legal Standard
Our review of Sonnier’s request for a COA is
governed by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), which provides that a
petitioner can appeal a district court’s dismissal
4
of a petition under 28 U.S.C. § 2254 only if
either the district court or this court issues a
COA. See 28 U.S.C. § 2253(c)(1); Fed. R. App. P.
22(b)(1). A court can issue a COA “only if the
applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The Supreme Court has explained that
under this standard, a COA should issue only when
the petitioner demonstrates “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 v. Cockrell, 537 U.S. 322,
327 (2003). Thus, a petitioner seeking a COA must
show that “‘reasonable jurists would find the
district court’s assessment of the constitutional
claims debatable or wrong.’” Id. at 338 (quoting
5
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When determining whether a petitioner has
established an entitlement to a COA, we do not
fully consider the underlying factual and legal
bases in support of the petitioner’s claims. Id.
at 336. Rather, this court conducts only a
limited, “threshold inquiry into the underlying
merit of [the petitioner’s] claims.” Id. at 327.
Finally, in capital cases, doubts over whether a
COA should issue are to be resolved in favor of
the petitioner. See Newton v. Dretke, 371 F.3d
250, 254 (5th Cir. 2004).
III. Discussion
A. Ineffective Assistance of Counsel
Sonnier first asserts that he is entitled to a
COA because his trial counsel, Wilford Anderson
and Stephen Morris, were ineffective during the
punishment phase of his trial for failing to: (1)
6
investigate for mitigating evidence; and (2)
present known available mitigating evidence.
The Sixth Amendment guarantees a criminal
accused the right to assistance of counsel; “[t]he
right to counsel is the right to the effective
assistance of counsel.” McMann v. Richardson, 397
U.S. 759, 771 n. 14 (1970). The Supreme Court has
explained the Sixth Amendment right to counsel as
follows: “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the
adversarial process that the trial cannot be
relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686
(1984). Strickland provides a two-pronged test to
analyze its provided benchmark:
(1) the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so
serious that counsel was not functioning
7
as the “counsel” guaranteed by the Sixth
Amendment;...
(2) the defendant must show that the
deficient performance prejudiced his
defense. This requires showing that
counsel’s errors were so serious as to
deprive the defendant of a fair trial, a
trial whose result is reliable.
Id. at 687. Both prongs must be satisfied for a
defendant to carry his burden and thus, succeed on
an ineffective assistance of counsel claim.
As to the first prong, deficient performance,
we measure the adequacy of counsel’s performance
against an objective standard of reasonable
performance based on accepted professional norms.
See Rompilla v. Beard, 545 U.S. 374, 380 (2005)
(citing Strickland, 466 U.S. at 688). “Because of
the difficulties inherent in making the
evaluation, the court must indulge a strong
presumption that counsel’s conduct falls within
the wide range of reasonable professional
assistance; that is, the defendant must overcome
8
the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial
strategy.’” Strickland, 466 U.S. at 689.
As to the second prong, prejudice to the
defense, a petitioner must show that there is a
reasonable probability that, absent counsel’s
deficient representation, the outcome of the
proceedings would have been different. Rompilla,
545 U.S. at 390 (citing Strickland, 466 U.S. at
694). A reasonable probability is a probability
sufficient to undermine confidence in the outcome
of the trial. Strickland, 466 at U.S. at 694. To
assess prejudice during the sentencing phase of a
capital proceeding, the court “reweigh[s] the
evidence in aggravation against the totality of
the available mitigating evidence.” Wiggins v.
Smith, 539 U.S. 510, 534 (2003). To find
prejudice, there must be a reasonable probability
9
that, absent the error, the sentencer would have
concluded that the balance of aggravating and
mitigating circumstances did not warrant death.
Strickland, 466 U.S. at 695.
With these standards in mind, we turn to
Sonnier’s claims of ineffective assistance of
counsel. Sonnier asserts that his trial
attorneys’ performance was deficient in two
respects: (1) they failed to investigate for
mitigation evidence; and (2) they failed to
present mitigation evidence. This deficient
performance, he alleges, prejudiced his defense.
Failure to Investigate for Mitigation Evidence
Sonnier first asserts that his trial attorneys
were deficient because they failed to investigate
for mitigation evidence. Sonnier and the State
disagree as to the exact extent of counsel’s
investigatory efforts. Sonnier’s current
10
attorneys, in conclusory fashion, urge that his
trial attorneys failed to conduct any
investigation for mitigation evidence, which they
claim resulted in a verdict unworthy of
confidence. The state’s attorneys, by contrast,
assert that Sonnier’s allegation of failure to
investigate fails. As they argue, “Counsel’s
investigation led him to believe that he should
present evidence. Counsel asked Sonnier to allow
them to offer the testimony. Indeed the witnesses
were in the courtroom ready to testify. After
counsel had investigated and settled upon a
strategy, the decision not to proceed was
Sonnier’s.” They further allege that Sonnier’s
trial counsel contacted his family members and
solicited their attendance at his trial.
The record reveals that one of Sonnier’s trial
attorneys, Stephen Morris, prepared a sworn
11
affidavit that stated that:
(1) Sonnier refused to cooperate in any way to
try to fashion a defense and that Sonnier had
become belligerent towards one of his
attorneys for his efforts to convince Sonnier
to mount one;
2) he asked Sonnier every day to speak with
his attorneys to help them prepare a defense
and that Sonnier refused;
(3) the attorneys sent a private investigator
to talk to Sonnier, hoping that he [the
investigator] could foster a relationship with
Sonnier that would lead to Sonnier’s
cooperation, but that Sonnier refused to speak
to him;
(4) Sonnier, insisting that he did not hang
around with any of his neighbors, refused to
provide names of other people who lived at the
12
apartment complex where he and the victim
resided who could have been present in the
complex when the murders occurred;
(5) Sonnier’s relatives, whom the attorneys
wanted to call as witnesses should Sonnier be
found guilty, were present at the trial at the
request of co-counsel, Anderson; and
(6) Sonnier objected to his attorneys’
speaking with his family members about
mitigation evidence.
The state habeas court found the affidavit of
Morris to be credible.
To determine whether counsel’s performance was
deficient, we must measure it against an objective
standard of reasonable performance based on
accepted professional norms. See Rompilla, 545
U.S. at 380 (citing Strickland, 466 U.S. at 688).
The Supreme Court, in Strickland, addressed an
13
ineffective assistance claim based on an
attorney’s failure to investigate for and present
mitigation evidence. Relying upon the guideposts
of the American Bar Association‘s Guidelines for
the Appointment and Performance of Counsel in
Death Penalty Cases,3 it noted that counsel has a
duty to make reasonable investigations or to make
a reasonable decision that makes particular
investigations unnecessary. Strickland, 466 U.S.
at 691.
Applying that standard, we conclude that the
trial attorneys stopped short of making a
reasonable investigation for purposes of
uncovering relevant mitigating evidence that could
have been useful in reaching two goals that it was
3
The version of these Guidelines in place at the time of
Sonnier’s trial provided that “investigation for preparation of
the sentencing phase should be conducted regardless of any
initial assertion by the client that mitigation is not to be
offered.” American Bar Association, Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases §
11.4.1c (1989).
14
their duty to pursue: (1) fully informing Sonnier
of all available mitigating evidence and their
opinion of its potential effectiveness based on
their professional knowledge and experience; and
(2) persuading the sentencing jury that Sonnier’s
moral culpability was not sufficient to warrant
the death penalty.
According to the record prepared for our
review, the trial attorneys did not talk to
Sonnier’s family and acquaintances at the length
or in the depth required for these purposes. If
any of these persons could have presented or
directed counsel to highly effective mitigation
evidence, it appears unlikely that the truncated
investigation of the family and other witnesses by
Sonnier’s
trial attorneys would have uncovered it.
Sonnier’s refusal to consent to their undertaking
more extensive and in-depth discussions with his
15
family and acquaintances to determine the nature
and extent of the mitigation evidence available
was not reasonable grounds for their failure to do
so.
Having found deficient performance with
respect to Sonnier’s attorneys failure to
investigate for mitigation evidence, we now turn
to the second prong of the Strickland analysis,
prejudice. Sonnier carries the burden of showing
that his trial attorneys’ ineffective
investigation for mitigation evidence prejudiced
his defense. After reviewing the mitigation
evidence that Sonnier’s current counsel now
contend that his trial attorneys failed to
discover and present, we conclude that the
requisite showing of such prejudice has not been
made.
Sonnier presents the affidavits of Rosa
16
Christine Law, his mother, and Cynthia Patterson,
his investigator, to show the nature and extent of
the available mitigation evidence. Law’s sworn
statement is that she was never approached by or
interviewed by Sonnier’s attorneys or investigator
regarding any potential testimony in Sonnier’s
favor. Instead, she attested, she had one very
brief telephone conversation with trial attorney
Anderson a few days prior to trial regarding
locating a witness. Law explains that she was
never interviewed regarding her son’s background
or personal history nor was she ever asked to
testify about it, though she was available and
willing to do so. Had she testified, she would
have explained that Sonnier “was never a problem,”
“was respectful to everyone,” and “is a kind
person who loves children.” Further, she would
have testified that she could not believe he would
17
ever harm a child and that when speaking to her
son shortly after his arrest, he was “very
distraught and just ‘out of it.’” Additionally,
Law would have spoken of visiting her son’s
apartment a week prior to the murders where she
met Melody Flowers, one of the victims, and
noticed no problems between her son and Flowers.
She also noted that “everyone went in and out of
each other’s apartments without knocking and
appeared to be more like brothers and sisters,
than neighbors.”
Sonnier’s investigator, Cynthia Patterson,
explains in her affidavit that Roxanne Saunders,
Rose Bias, Hattie Buckley, and Paul Goodwin were
willing to come to court and testify regarding
Sonnier’s good character but were not interviewed
or asked to testify. Additionally, Patterson
states that Shirley Goodwin, Carol DeJean, Sarah
18
Lewis, and Jackie Bourne were present, available,
and willing to testify at Sonnier’s trial.
According to the investigator’s affidavit,
Shirley Goodwin is Sonnier’s step-mother and,
though she recalled speaking to Sonnier’s
attorneys a couple of times during the trial in
brief, approximately two-minute conversations, she
could not recall being asked to testify or being
asked any questions regarding Sonnier’s background
or personal history. Goodwin was never
interviewed prior to trial by Sonnier’s attorneys
and could not recall being asked for the names of
character witnesses. If asked, she would have
testified that Sonnier was kind, respectful, and
loving, that she had never witnessed violent or
aggressive behavior on his part, that he was kind
to his girlfriend and her children, and that he
loved Patrick Flowers, one of the victims, and was
19
not capable of hurting him.
Patterson’s affidavit also states that Carol
DeJean is Sonnier’s aunt who was present at his
trial but, despite speaking to his attorneys in
general conversation, was not asked to testify.
Had she been asked to do so, she would have
testified that Sonnier was even-tempered, mild-
mannered, and well-mannered. Further, she would
have expressed that he loved children and was very
kind to her children. Additionally, she would
have stated that she had never heard Sonnier raise
his voice and never witnessed him do anything that
would indicate that he was capable of violence.
She noted that she would never believe that
Sonnier committed this type of offense.
Sarah Lewis, Sonnier’s aunt, is also
referenced in Patterson’s affidavit. Patterson
explains that Lewis did not speak with the
20
attorneys and that no one asked her to testify.
She described Sonnier as a person who loved kids,
loved everybody, and stated that he is easy to get
along with, would not harm anybody, and would let
someone harm him instead of harming them to
protect himself. She also stated that he was good
with his girlfriend’s kids and Melody Flowers’s
children.
Finally, Patterson’s affidavit presents the
statements of Jackie Bourne, Sonnier’s cousin, who
asked one of the attorneys whether Sonnier would
be allowed to have witnesses testify on his
behalf. The attorney explained that Sonnier did
not want testimony on his behalf. Had she been
asked to testify, Bourne would have described
Sonnier as a sweet person who was not a problem.
Further, she would have stated that she does not
believe Sonnier is capable of committing this type
21
of offense and has never displayed any indications
of violence. She also would have explained that
she never saw him act inappropriately towards
females and that he went to school, did his work,
and stayed at home.
Although this mitigation evidence, if
discovered and presented, would have shown some
favorable aspects of Sonnier’s character, after
re-weighing the aggravating evidence of record4
against it, we do not find that there is a
reasonable probability that its introduction would
have caused the jury to decline to impose the
4
The record shows that Melody Flowers, the adult victim,
was a neighbor of Sonnier. Prior to her death, the evidence
shows that Sonnier, on more than one occasion, intruded into her
apartment without her knowledge or consent and scared her. Upon
doing so, he would laugh and taunt her for her fear. The precise
cause of Melody Flowers’s death is unknown; it could have been
from any of the four harms she endured: (1) the bludgeoning with
a hammer upon her head; (2) the asphyxia due to manual and
ligature strangulation; (3) the stomping upon her chest and neck;
(4) or the two stabbings to her chest. Patrick Flowers, the
child victim, died from being stabbed twice in the chest, one of
which penetrated his heart; he was thereafter submerged in a
bathtub.
22
death penalty in this case; nor does the failure
of trial counsel to discover and present it
undermine our confidence in the jury’s
determination of the sentence.
Our conclusion in this regard is illumined,
although not necessarily controlled by, a
comparison with cases in which the Supreme Court
determined whether there was a reasonable
probability that the trial attorneys’ failure to
discover and present mitigation evidence had
affected the outcome of the sentencing
proceedings. For example, in Williams v. Taylor,
529 U.S. 362,395-96, the Court held that the
defendant’s trial counsel were prejudically
ineffective when they failed to discover or
introduce mitigation evidence in the form of
extensive records that graphically described
petitioner’s:
23
(1) nightmarish childhood, including grossly
unsanitary living conditions; (2) parents’
alcoholism, as well as their convictions and
incarceration for criminal neglect of their
children; (3) severe and repeated beatings by his
parents; (4) commitments to social services
bureau; (5) placements in abusive foster homes;
and his (6) borderline mental retardation.
Similarly, in Rompilla v. Beard, 545 U.S. 374,
391-91, the defendant’s attorney was prejudicially
ineffective because of her failure to secure and
review a prior conviction file, which included
evidence of petitioner’s: (1) severely alcoholic
parents; (2) mother’s chronic drunkenness during
her pregnancy; (3) drinking problems; (4) father’s
overt abuse towards his mother; (5) infidelity in
respect to his mother; (5)parents’ violent fights;
(6) father’s verbal and physical abuse of him and
24
his siblings, including striking them with his
hands and fists, leather straps, belts and sticks,
in addition to locking them in a pen, filthy with
dog excrement; (7) horrific living conditions,
including no indoor plumbing, sleeping in the
attic with no heat, no clothes and attending
school in rags; and (8) petitioner’s mental
retardation. On the other hand, in Woodford v.
Visciotti, 537 U.S. 19, 26 (2002), the United
States Supreme Court ruled that the California
Supreme Court’s rejection of an ineffective
assistance of counsel claim was not objectively
unreasonable. In that case, counsel failed to
discover and present evidence of Woodford’s (1)
dysfunctional family in which he suffered
continual psychological abuse; (2) low self-
esteem; (3) depression; (4) club feet; (5)
feelings of inadequacy, incompetence, inferiority;
25
and (6) 20 changes of residences. Id.
The weight of the failure to discover
mitigation evidence by Sonnier’s trial counsel is
comparable to that of the neglect urged
unsuccessfully as grounds for Strickland’s
ineffective assistance claim. There, the Supreme
Court explained, “At most this evidence shows that
numerous people who knew the respondent thought he
was generally a good person and that a
psychiatrist and a psychologist believed he was
under considerable emotional stress that did not
rise to the level of extreme disturbance. Given
the overwhelming aggravating factors, there is no
reasonable probability that the omitted evidence
would have changed the conclusion that the
aggravating circumstances outweighed the
mitigating circumstances and, hence, the sentence
imposed.” Strickland, 466 U.S. at 700.
26
For these reasons, we conclude that Sonnier
has failed to carry his burden under Strickland of
showing that there was a reasonable probability
that his capital sentencing jury would have
imposed a life imprisonment sentence rather than
the death penalty if his trial attorneys had
investigated more diligently for mitigation
evidence. Accordingly, we conclude that he has
not shown that the error prejudiced him or
rendered his penalty trial unreliable, and we must
therefore deny his request for a COA in this
respect.
Failure to Present Mitigation Evidence
Sonnier’s current counsel argue additionally
that his trial attorneys were ineffective, due to
their failure to present any mitigation evidence.
They argue that Sonnier’s family and friends were
present at his trial and ready and willing to
27
testify on his behalf, yet the defense attorneys
did not present them. By contrast, the State
argues that because Sonnier’s trial attorneys were
acting upon his instructions, Sonnier cannot now
complain of their inaction.
The record shows that Sonnier directed his
attorneys not to present mitigation evidence.
Trial attorney, Stephen Morris’s, affidavit states
that:
(1) upon the guilty verdict, the attorneys
called for a recess, during which they
urged Sonnier to reconsider and allow them
to call witnesses, but he refused;
(2) Morris spoke with Sonnier, as he would
have had Sonnier been his own brother, in
an effort to convince Sonnier to allow his
attorneys to put mitigation evidence
before the jury on his behalf, but he
28
refused;
(3) Sonnier’s other attorney, Mr.
Anderson, informed the court, on the
record, that Sonnier would not allow
counsel to call witnesses on his behalf;
(4) Sonnier, upon inquiry by the trial
court, openly admitted that he had
discussed his decision with counsel and
was instructing them not to present
evidence at punishment.
Furthermore, the record also shows that Sonnier
was informed of the advisability of presenting
such mitigation evidence. Morris’s affidavit
states, “I spoke with him as earnestly as I could
concerning the critical need to have the jury hear
from his relatives and friends in his defense.”
Additionally, the trial court transcript shows the
following colloquy by Mr. Anderson, one of
29
Sonnier’s attorneys:
Mr. Morris and I have discussed presenting
witnesses on behalf of Mr. Sonnier, those
witnesses being various family members of
Mr. Sonnier. We have advised Mr. Sonnier
of our desire to present those witnesses
on his behalf in his best interest,
especially at this part of the trial,
punishment phase of trial. Mr. Sonnier
has advised us that he does not want us to
put on any witnesses or put forth any
evidence or testimony in regards to the
defense at this stage of the trial. We
have advised him it is our opinion that he
should do so, but he has indicated that he
does not want to have any witnesses
testify in his behalf. Had we called
witnesses to testify in his behalf, they
would testify as to their knowledge of Mr.
Sonnier, their relationship with Mr.
Sonnier, the length of time they have
known him. They would testify as to the
type of person Mr. Sonnier is in a
positive sense and would, in our opinion,
present evidence that would help mitigate
any punishment that may be assessed by the
jury, allow them to consider some evidence
of mitigation in determining how they
would answer special issue number two.
After hearing this recitation, the trial judge
spoke directly to the defendant, asking, “Mr.
30
Sonnier, have you discussed this with your
attorneys and are you instructing them not to call
witnesses in your behalf in the punishment stage
of trial?” Sonnier replied, “Yes, sir, Your
Honor, I am.” On appeal, Sonnier does not dispute
that he was informed of the importance of
presenting mitigation evidence.
Under Fifth Circuit case law, “when a
defendant blocks his attorney’s efforts to defend
him, including forbidding his attorney from
interviewing his family members for purposes of
soliciting their testimony as mitigating evidence
during the punishment phase of the trial, he
cannot later claim ineffective assistance of
counsel.” Roberts v. Dretke, 356 F.3d 632, 638
(5th Cir. 2004); see also Autry v. McKaskle, 727
F.2d 358, 361-62 (5th Cir. 1984); United States v.
31
Masat, 896 F.2d 88, 93 (5th Cir. 1990);5 Dowthitt
v. Johnson, 230 F.3d 733 (5th Cir. 2000).6
5
The Masat court explained, “...[I]t is apparent that we
are being asked to permit a defendant to avoid conviction on the
ground that his lawyer did exactly what he asked him to do. That
argument answers itself.” United States v. Masat, 896 F.2d 88,
93 (5th Cir. 1990). The court then cited the Eleventh Circuit
case of Mulligan v. Kemp, 771 F.2d 1436 (11th Cir. 1985),
“...[W]e must give great deference to the choices which are made
under the explicit direction of the client...[I]f counsel is
commanded by his client to present a certain defense, and if he
does thoroughly explain the potential problems with the suggested
approach, then his ultimate decision to follow the client’s will
may not be lightly disturbed.” Id. at 1441-42. But see Hardwick
v. Crosby, 320 F.3d 1127 n. 215 (11th Cir. 2003), where the
Eleventh Circuit provided, “Even if Hardwick [the defendant] did
ask Tassone [his attorney] not to present mitigating evidence, .
. . Tassone had a duty to Hardwick at the sentencing phase to
present available mitigating witnesses as Hardwick’s only defense
against the death penalty.
6
This is consistent with other federal circuits’
jurisprudence, as well. See e.g., Shelton v. v. Carroll, 464
F.3d 423 (3d Cir. 2006); Campbell v. Polk, 447 F.3d 270 (4th Cir.
2006)(no ineffective assistance of counsel where defendant
strongly insisted that his attorney not call his mother, even
after he was advised of the need for family witnesses); Frye v.
Lee, 235 F.3d 897, 906-07 (4th Cir. 2000)(no ineffective
assistance of counsel where the attorney failed to present
supplemental witnesses during the sentencing phase where the
defendant adamantly refused to allow counsel to contact members
of the defendant’s family or engage their services in obtaining
mitigating evidence, despite repeated requests by defense
counsel to do so); Jones v. Page, 76 F.3d 831 (7th Cir.
1996)(defendant could not complain of ineffective assistance of
counsel based on his attorney’s failure to call defendant’s
grandmother as a mitigation witness when the defendant personally
instructed the attorney not to do so); Hall v. Washington, 106
F.3d 742 (7th Cir. 1997)(defendant waives his claim for
ineffective assistance of counsel if his refusal to cooperate
causes his attorney’s deficient performance); Williams v.
Woodford, 384 F.3d 567 (9th Cir. 2004)(no ineffective assistance
of counsel when, among other things, the defendant specifically
32
Furthermore, even if this Fifth circuit
precedent could be found contrary to or an
unreasonable application of the Supreme Court’s
decisions, Sonnier’s ineffective assistance claim
regarding his trial attorneys’ failure to present
mitigating evidence would still fail. When
directly applying the second prong of the
Strickland analysis to the alleged ineffectiveness
of Sonnier’s trial counsel in failing to present
the mitigation evidence shown to have been
available, we find that it necessarily duplicates
and reaches the same result as the foregoing
analysis of his failure to investigate claim.
Given the overwhelming aggravating factors, there
is no reasonable probability that the omitted
evidence would have changed the conclusion that
requested that no witnesses be called); James v. Gibson, 211 F.3d
543 (10th Cir. 2000)(no ineffective assistance of counsel where
defendant directly influenced counsel by requesting that his
grandfather not be called as a witness).
33
the aggravating circumstances outweighed the
mitigating circumstances and, hence, warranted the
capital punishment sentence that was imposed.
B. Due Process Violation in Voir Dire
Sonnier’s second claim, based upon Simmons v.
South Carolina, 512 U.S. 154 (1994), is that he
was deprived of due process of law when, during
jury selection, the trial court refused to allow
the defense to inform the jury that if convicted,
Sonnier would be ineligible for parole until he
had served 35 years. In Simmons, the court held
that where a state argues in favor of the death
penalty based upon the defendant’s future
dangerousness, the defendant must be allowed to
respond to that argument with evidence showing
that if sentenced to life in prison, he will not
be eligible for parole. Simmons, 512 U.S. at 165.
Simmons does not apply to the facts of this
34
case. Unlike the South Carolina sentencing scheme
at issue in Simmons, the Texas death penalty
statutes under which Sonnier was sentenced did
offer life imprisonment without parole as a
possible sentence. Instead, they provided only
for sentences of death or life imprisonment with
the possibility of parole. Sonnier’s argument, as
he concedes, is foreclosed by Supreme Court and
Fifth Circuit precedent. See Ramdass v. Angelone,
530 U.S. 156, 169 (2000) (“Simmons applies only to
instances where, as a legal matter, there is no
possibility of parole if the jury decides the
appropriate sentence is life in prison.”); Green
v. Johnson, 160 F.3d 1029, 1045 (5th Cir. 1998);
Wheat v. Johnson, 238 F.3d 357, 362 (5th Cir.
1999) (finding Simmons inapplicable to the Texas
sentencing scheme); Miller v. Johnson, 200 F.3d
274, 290 (5th Cir. 2000)(“[B]ecause Miller would
35
have been eligible for parole under Texas law if
sentenced to life, we find his reliance on Simmons
unavailing.”); Hughes v. Johnson, 191 F.3d 607,
617 (5th Cir. 1999). Accordingly, we conclude
that Sonnier’s case does not fall within the scope
of Simmons and that a COA cannot be issued on the
grounds he asserts.
C. Constitutionality of Texas Code of Criminal
Procedure article 37.071
Sonnier’s final argument is that the Texas
death penalty statute, Texas Code of Criminal
Procedure article 37.071, violates the Eighth and
Fourteenth Amendments. The Texas legislature
amended article 37.071, effective September 1,
1991, by removing the deliberateness7 and
provocation special issues and adding a general
7
The amended statute retains the deliberateness special
issue for defendants found guilty of capital murder under the law
of the parties.
36
mitigation special issue.8
Under the 1991 version of the statute
applicable here, the jury is first asked whether
there is a probability that the defendant would
commit criminal acts of violence that would
constitute a continuing threat to society. See
TEX. CODE CRIM. PRO. ANN. art. 37.071, Section
2(b)(1).9 The court must charge the jury that in
deliberating on that interrogatory, it shall
consider all evidence admitted at the guilt or
innocence stage and the punishment stage,
including evidence of the defendant’s background
or character or the circumstances of the offense
that militates for or mitigates against the
imposition of the death penalty. See TEX. CODE
8
This addition requires a jury to consider all mitigation
evidence and allows a jury to impose a life sentence if the
mitigation evidence so warrants.
9
The state must prove this issue beyond a reasonable doubt,
and the jury shall return a special verdict of “yes” or “no.”
See TEX. CODE CRIM. PRO. ANN. art. 37.071, Section 2(c).
37
CRIM. PRO. ANN. art. 37.071, Section 2(d)(1). If
the jury returns a unanimous,10 affirmative finding
as to the first issue, the court shall then
instruct the jury to answer the following issue:
Whether, taking into consideration all of the
evidence, and the personal moral culpability of
the defendant, there is a sufficient mitigating
circumstance or circumstances to warrant that a
sentence of life imprisonment rather than a death
sentence be imposed. See TEX. CODE CRIM. PRO. ANN.
art. 37.071, Section 2(e)(1). The court must
charge the jury that in answering that
interrogatory, it must consider mitigating
evidence to be evidence that a juror might regard
as reducing the defendant’s moral blameworthiness.
See TEX. CODE CRIM. PRO. ANN. art. 37.071, Section
10
See TEX. CODE CRIM. PRO. ANN. art. 37.071, Section
2(d)(2).
38
2(f)(4). If the jury then returns a unanimous,11
negative finding, the court shall sentence the
defendant to death. See TEX. CODE CRIM. PRO. ANN.
art. 37.071, Section 2(g). Sonnier was sentenced
under the amended version of the article and now
challenges its constitutionality.
I. The Eighth Amendment Claim
In its last term, the United States Supreme
Court, referencing Furman v. Georgia, 408 U.S. 238
(1972) and Gregg v. Georgia, 428 U.S. 153 (1976),
explained that a state capital sentencing system
must satisfy two requirements in order to be
constitutionally permissible. Kansas v. Marsh,
126 S.Ct. 2516, 2524-25 (2006). First, it must
“rationally narrow the class of death-eligible
defendants.” Id. at 2524. Second, it must
11
See TEX. CODE CRIM. PRO. ANN. art. 37.071, Section
2(f)(2).
39
“permit a jury to render a reasoned,
individualized sentencing determination based on
a death-eligible defendant’s record, personal
characteristics, and the circumstances of his
crime.” Id. at 2524-25. “So long as a state
system satisfies these requirements, our
precedents establish that a State enjoys a range
of discretion in imposing the death penalty. . .
.” Id. at 2525.
Sonnier argues that “the amended version of
article 37.071 regresses from the safeguards of
the former version and renders the imposition of
the death sentence arbitrary and erratic in
violation of the Eighth Amendment’s prohibition of
cruel and unusual punishment.” In essence,
Sonnier’s argument is that the removal of the
deliberateness special issue renders the Texas
capital sentencing system constitutionally
40
impermissible because, without consideration of
whether the defendant’s actions in committing the
crime were deliberate, the sentencing scheme fails
to rationally narrow the class of death-eligible
defendants. We do not agree.
In Kansas v. Marsh, the Supreme Court
addressed the constitutionality of the Kansas
capital sentencing scheme. Under KAN. STAT. ANN.
§ 21-3439, the death penalty is an option only
after a defendant is convicted of capital murder.
According to KAN. STAT. ANN. § 21-4624(e), a
defendant becomes eligible for imposition of the
death penalty as follows:
If, by unanimous vote, the jury finds
beyond a reasonable doubt that one or more
of the aggravating circumstances
enumerated in K.S.A. 21-4625 and
amendments thereto exist and, further,
that the existence of such aggravating
circumstances is not outweighed by any
mitigating circumstances which are found
to exist, the defendant shall be sentenced
41
to death; otherwise the defendant shall be
sentenced as provided by law. (emphasis
added).
One of the aggravating circumstances enumerated in
KAN. STAT. ANN. § 21-462512 is that “the defendant
knowingly or purposely killed or created a great
risk of death to more than one person.” KAN.
STAT. ANN. § 21-4625(2).
The Court found that “[t]he Kansas death
penalty statute satisfies the constitutional
12
The complete list of exclusive aggravating factors is as
follows:
(1) The defendant was previously convicted of a in which the
defendant inflicted great bodily harm, disfigurement,
dismemberment or death on another.
(2) The defendant knowingly or purposely killed or created a
great risk of death to more than one person.
(3) The defendant committed the crime for the defendant’s self or
another for the purpose of receiving money or any other thing of
monetary value.
(4) The defendant authorized or employed another person to commit
the crime.
(5) The defendant committed the crime in order to avoid or
prevent a lawful arrest or prosecution.
(6) The defendant committed the crime in an especially heinous,
atrocious or cruel manner.
(7) The defendant the crime while serving a sentence of
imprisonment on conviction of a felony.
(8) The victim was killed while engaging in, or because of the
victim’s performance or prospective performance of, the victim’s
duties as a witness in a criminal proceeding.
42
mandates of Furman and its progeny because it
rationally narrows the class of death-eligible
defendants.” Marsh, 126 S.Ct. at 2526. As it
explained:
Kansas’ procedure narrows the universe of
death-eligible defendants consistent with
Eighth Amendment requirements. Under
Kansas law, imposition of the death
penalty is only an option after a
defendant is convicted of capital murder,
which requires that one or more specific
elements beyond intentional premeditated
murder be found. Once convicted of
capital murder, the defendant becomes
eligible for the death penalty only if the
State seeks a separate sentencing hearing,
and proves beyond a reasonable doubt the
existence of one or more statutorily
enumerated aggravating circumstances. Id.
The Texas capital sentencing scheme bears some
striking similarities to the Kansas scheme at
issue in Marsh. First, under both Texas law and
Kansas law, the death penalty is only an option
for those defendants convicted of the crime of
43
capital murder.13 Under Texas law, a person
commits capital murder if he commits murder14 and:
(1) the person murders a peace officer or
fireman who is acting in the lawful
discharge of an official duty and who the
person knows is a peace officer of
fireman;
(2) the person intentionally commits the
murder in the course of committing or
attempting to commit kidnaping, burglary,
robbery, aggravated sexual assault, arson,
obstruction or retaliation, or terroristic
threat under Section 22.07(a)(1), (3),
(4), (5), or (6);
(3) the person commits the murder for
remuneration or the promise of
13
Compare TEX. CODE CRIM. PRO. art. 37.071 with KAN. STAT.
ANN. § 21-3439.
14
Under Texas law, a person commits murder if he:
(1) intentionally or knowingly causes the death of an
individual;
(2) intends to cause serious bodily injury and commits an
act clearly dangerous to human life that causes the death of
an individual; or
(3) commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the
commission or attempt, he commits or attempts to commit an
act clearly dangerous to human life that causes the death of
an individual.
V.T.C.A, Penal Code § 19.02(b)(1).
44
remuneration or employs another to commit
the murder for remuneration or the promise
of remuneration;
(4) the person commits the murder while
escaping or attempting to escape from a
penal institution;
(5) the person, while incarcerated in a
penal institution, murders another:
(A) who is employed in the operation of
the penal institution; or
(B) with the intent to establish,
maintain, or participate in a combination
or in the profits of a combination;
(6) the person:
(A) while incarcerated for an offense
under this section or Section 19.02,
murders another; or
(B) while serving a sentence of life
imprisonment or a term of 99 years for an
offense under Section 20.04, 22.021, or
29.03, murders another;
(7) the person murders more than one
person:
(A) during the same criminal transaction;
or
(B) during different criminal transactions
but the murders are committed pursuant to
the same scheme or course of conduct;
45
(8) the person murders an individual under
six years of age; or
(9) the person murders another person in
retaliation for or on account of the
service or status of the other person as a
judge or justice of the supreme court, the
court of criminal appeals, a court of
appeals, a district court, a criminal
district court, a constitutional county
court, a statutory county court, a justice
court, or a municipal court.
V.T.C.A. § 19.03. This distinction between
capital murder and other categories of murder is
the initial narrowing of the class of persons who
may potentially face the death penalty.
Second, under both the Texas and Kansas
schemes, once a defendant is convicted of capital
murder, he becomes eligible for the death penalty
only if the State seeks a separate sentencing
hearing. Compare TEX. CODE CRIM. PRO. art. 37.071
with KAN. STAT. ANN. § 21-4706.
Additionally, under both state schemes, the
46
government must prove beyond a reasonable doubt
the existence of one or more statutorily
enumerated aggravating circumstances. Under the
Texas scheme, a defendant will be eligible for the
death penalty only upon a unanimous jury finding
that “there is a probability that the defendant
would commit criminal acts of violence that would
constitute a continuing threat to society.” TEX.
CODE CRIM. PROC. ANN. art. 37.071 (1991). This is
somewhat analogous to KAN. STAT. ANN. § 21-4624,
which requires the existence of one or more
aggravating circumstances for death sentence
eligibility.
Consequently, we conclude that the Texas
scheme, like the one in place in Kansas, is
constitutionally valid under the rationale
provided in Marsh, in that it rationally narrows
the classes of defendants determined to be
47
eligible and selected for the death penalty. The
Texas capital sentencing scheme, like the Kansas
system, limits the death penalty, first, to
defendants convicted of capital murder under one
or more of the aggravating circumstances inherent
in the definition of that crime, and, second, to
those capital murderers who are determined to be
eligible for the death penalty by virtue of the
jury’s finding of an additional aggravating
circumstance in respect to their character,
background, and crime, i.e., the probability that
they will commit criminal acts of violence that
would constitute a continuing threat to society.
In Thompson v. Lynaugh, 821 F.2d 1054 (5th
Cir. 1987), this court addressed an argument that
the pre-1991 version of Article 37.071 failed to
narrow the class of death-eligible defendants.
Specifically, Thompson argued that the
48
“deliberateness” special issue duplicated the
finding of an “intentional” killing at the guilt-
innocence phase of trial. In Thompson, the court
stated, “...[T]he Texas death penalty scheme
requires the jury to find at least one aggravating
circumstance-a future threat to society-that does
not duplicate any finding made at the guilt phase.
Hence, we need not reach the argument that the
special issue about ‘deliberateness’ duplicates a
guilt-phase issue.” Id. at 1059 (emphasis added).
The court went on to discuss two other cases,
Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985)
and Lowenfield v. Phelps, 817 F.2d 285 (5th Cir.
1987) that involved duplication arguments. The
Thompson court noted, “Thompson’s case is readily
distinguishable from both Collins and Lowenfield
by the existence of an alternative narrowing issue
at the penalty phase [future dangerousness].” Id.
49
at 1060. These statements by the Thompson court
indicate that a jury finding of the aggravating
circumstance of future dangerousness suffices to
satisfy the Eighth Amendment. As such, the
removal of “deliberateness” as a special issue has
no adverse constitutional effect upon a capital
defendant’s Eighth Amendment rights because the
amended article continues to require the finding
of an aggravating factor, i.e., future
dangerousness, as a safeguard against
arbitrariness.
Though the “deliberateness” special issue has
been removed, the imposition of the death penalty
under the amended article is not arbitrary,
erratic, wanton, or freakish. The amended Texas
capital sentencing scheme, by retaining the future
dangerousness special issue, continues, much like
the constitutionally-valid Kansas scheme in Marsh,
50
to rationally narrow the class of death-eligible
defendants, as mandated by of the Eighth Amendment
under Furman.
ii. The Fourteenth Amendment Claim
Sonnier also argues that the amended article
violates the Fourteenth Amendment’s Equal
Protection Clause. According to Sonnier, the
amended article treats those convicted of capital
murder prior to September 1, 1991 differently than
those convicted of capital murder after this date.
He further asserts in conclusory fashion that,
regardless of the level of review15 we employ, “the
change in the law violate[s] [his] Equal
Protection Rights. . . .”
The Government, on the other hand, argues that
this classification, differentiating between two
15
As discussed in detail infra, the levels of review are
strict scrutiny and rational basis scrutiny.
51
classes of defendants, is rational. According to
it, if Sonnier’s argument prevails, the
Legislature could never change a penal law or
procedure.
The Equal Protection Clause demands that
similarly situated persons be treated similarly
under the law. Plyler v. Doe, 457 U.S. 202, 216
(1982). However, the Supreme Court has explained
that:
[t]he Fourteenth Amendment's promise that
no person shall be denied the equal
protection of the laws must coexist with
the practical necessity that most
legislation classifies for one purpose or
another, with resulting disadvantage to
various groups or persons. We have
attempted to reconcile the principle with
the reality that by stating that, if a law
neither burdens a fundamental right16 nor
16
The Supreme court has explained that fundamental rights,
for equal protection purposes, are such rights as: a right of a
uniquely private nature, the right to vote, right of interstate
travel and rights guaranteed by the First Amendment.
Massachusetts Bd. of Retirement v. Murgia, 96 S.Ct.at 2566.
52
targets a suspect class,17 we will uphold
the legislative classification so long as
it bears a rational relation to some
legitimate end.
Romer v. Evans, 116 S.Ct. at 1620, 1627
(year)(internal citations omitted). By contrast,
if a classification does target a suspect class or
impact a fundamental right, it will be strictly
scrutinized and upheld only if it is precisely
tailored to further a compelling government
interest. Plyler v. Doe, 457 U.S. at 217-18.
The purpose of the Equal Protection Clause is
to secure every person within the state’s
jurisdiction against intentional and arbitrary
discrimination. Village of Willowbrook v. Olech,
120 S.Ct. 1073, 1075 (2000). “Even if a neutral
17
A suspect class, as used in an equal protection analysis,
is one saddled with such disabilities, or subjected to a history
of purposeful unequal treatment, or relegated to such a position
of political powerlessness as to command extraordinary protection
from the majoritarian political process. Massachusetts Bd. Of
Retirement v. Murgia, 96 S.Ct. 2562, 2567 (1976). Examples of
suspect classes are those based upon race, ancestry, or religion.
Id.; Anderson v. Winter, 631 F.2d 1238, 1240 (5th Cir. 1980).
53
law has a disproportionately adverse impact. . .,
it is unconstitutional under the Equal Protection
Clause only if that impact can be traced to a
discriminatory purpose.” United States v.
Galloway, 951 F.2d 64, 66 (5th Cir. 1992)(quoting
Personnel Adm’r v. Feeney, 442 U.S. 256, 272
(1979)); see also United States v. Crew, 916 F.2d
980, 984 (5th Cir. 1990)(“It is well established
that showing of discriminatory intent or purpose
is required to establish a valid equal protection
claim.”). Discriminatory purpose, in this
context, implies that the decision maker selected
or reaffirmed a particular course of action at
least in part because of, not merely in spite of,
its adverse effects. Id.
As we begin our analysis, it is important for
us to remember the warning of the United States
Supreme Court: equal protection is not a license
54
for courts to judge the wisdom, fairness, or logic
of legislative choices. F.C.C. v. Beach
Communications, Inc., 113 S.Ct. 2096, 2101 (1993);
see also Ferguson v. Skrupa, 372 U.S. 726, 729
(1963) (“Under the system of government created by
our Constitution, it is up to the legislatures,
not the courts, to decide on the wisdom and
utility of legislation.”).
The first inquiry for this court is whether
the Texas legislature, in amending article 37.071,
established a classification at all. We find that
the omission of the deliberateness special issue
results in a classification among convicted
capital offenders, based upon the date of their
underlying crime. Those defendants facing a death
sentence prior to September 1, 1991, enjoyed the
advantage that the state was required to prove an
additional aggravating circumstance to show that
55
they were eligible for the death penalty;
specifically, the jury was asked to consider, in
deciding whether to impose the death penalty,
whether the defendant acted deliberately. By
contrast, those defendants facing a death sentence
after September 1, 1991, did not enjoy jury
consideration of the deliberateness special issue.
Our equal protection analysis cannot end here,
however, because mere classification does not of
itself deprive a group of equal protection of the
law. Carrington v. Rash, 85 S.Ct. 775, 778. We
must next determine whether Sonnier has carried
his requisite burden of showing the existence of
discriminatory purpose, which implies more than
intent as volition or intent as awareness of
consequences; it implies that the decision maker
selected or reaffirmed a particular course of
action at least in part because of, not merely in
56
spite of, its adverse effects. United States v.
Galloway, 951 F.2d at 66. We cannot find that
Sonnier has carried this burden because nowhere
has he even alleged an invidious purpose on the
part of the Texas legislature in amending this
article.
Furthermore, the Supreme Court has explained
the widely-accepted rule that “the 14th Amendment
does not forbid statutes and statutory changes to
have a beginning, and thus to discriminate between
the rights of an earlier and later time.” Sperry
& Hutchinson Co. V. Rhodes, 220 U.S. 502, 505
(1911).
IV. Conclusion
We cannot grant a COA to Sonnier. Sonnier has
failed to demonstrate that jurists of reason could
disagree with the district court’s resolution of
his constitutional claims or that jurists could
57
conclude the issues presented are adequate to
deserve encouragement to proceed further, as
required by the United States Supreme Court’s
interpretation of 28 U.S.C. § 2253(c)(2) in
Miller-El v. Cockrell.
In sum, we reject each of Sonnier’s arguments.
As to his ineffective assistance of counsel
claims, we recognize that counsel’s failure to
conduct an in-depth investigation for mitigation
evidence constitutes deficient performance under
Strickland’s requisite first prong. Nevertheless,
we find that Sonnier did not carry his burden of
showing that his attorneys’ deficient performance
prejudiced his death penalty defense under the
second requirement of Strickland. As for his
Simmons claim, following United States and Fifth
Circuit precedent, we hold that Simmons is
inapplicable to the Texas death penalty sentencing
58
scheme at issue in the instant case. Finally, the
Texas death penalty sentencing scheme does not
violate either the Eighth or Fourteenth Amendment.
It sufficiently narrows the death-eligible class
and does not deny Sonnier equal protection the
laws.
For these reasons, we deny Sonnier’s request
for a COA in its entirety.
59